had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"7. The facts of the case, particularly concerning events on or about 8 November 1993 when the gendarmes carried out an operation at Çitlibahçe, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.\",\n \"The Commission heard witnesses in Ankara on 7 February 1997. These included the applicant; Avni Dulaş her son; and Emin Bulen, a villager. The Commission also had regard to the oral evidence given by witnesses on 3 and 4 July 1996 in the case of Çakıcı (see Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV), which concerned the same operation. This included the testimony of İzzet Çakıcı, whose brother had disappeared after being taken into custody by the gendarmes; Remziye Çakıcı, a villager and spouse of the disappeared person; Fevzi Okatan, previously muhtar of the village; Ertan Altınoluk the gendarme commander of the operation; and Mehmet Bitgin, a villager.\",\n \"8. The Commission’s findings of fact are set out in its report of 6 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).\",\n \"A. The Commission’s findings of fact\",\n \"9. Çitlibahçe was in a district in which terrorist activity was intense in 1993. The PKK used to come to the village, holding meetings and taking food by force. The security forces made regular visits and operations were not uncommon. They told the villagers not to give food to the PKK.\",\n \"10. The applicant, Avni Dulaş and Remziye Çakıcı all recalled an incident in July 1993 when villagers were forced by the security forces to pull up their tobacco crops. Although there was some disparity amongst the witnesses as to how this was done, the witnesses’ accounts were similar in stating that the tobacco crops were destroyed by order of the security forces. The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops. The Commission did not make any finding in regard of this aspect as it was not the subject-matter of any specific complaint.\",\n \"11. Shortly before 8 November 1993, PKK terrorists went to the village of Dadaş in the Hazro district and took away five teachers, the imam and the imam’s brother. All, save one of the teachers, were shot. The imam’s brother, though wounded, survived.\",\n \"12. Following the discovery of the bodies of the teachers, the gendarmes at Hazro gathered information from their contacts and sources as to what had happened and who had been involved. They had descriptions of the villagers in the area who had been assisting the PKK in holding the group of teachers. On 8 November 1993, an operation, under the command of Lieutenant Altınoluk, was carried out by the Hazro gendarmes in Çitlibahçe, while gendarmes from Lice went to Bağlan nearby.\",\n \"13. Concerning what happened during the operation at Çitlibahçe, the Commission’s Delegates had earlier found Lieutenant Altınoluk to be an evasive witness, with a volubly unhelpful response to questioning. They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations, which were often contradictory and inconsistent. On the other hand, the Delegates had found that the villagers, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who gave eyewitness accounts, were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions. Their evidence was found to support the testimony of the witnesses heard in this case. In this regard, the Commission’s Delegates found the applicant to be a convincing witness, an elderly, simple and unsophisticated lady who was on the whole credible. Her oral testimony was largely consistent with the statement given by her to the Human Rights Association shortly after the incident. While there were some inconsistencies in her accounts, the Commission considered that they could be attributed to the applicant’s advanced years and the passage of time since the events in question. Her evidence accorded in essentials with that of her son Avni Dulaş and the villager Emin Bilen.\",\n \"14. The Commission found that the Hazro gendarmes included Çitlibahçe in the operation since they intended to look for and take into custody Ahmet Çakıcı, who, as a person already under suspicion of involvement in PKK activities, would be likely to have information about the kidnap group that passed through the village.\",\n \"15. When the gendarmes arrived at the village, early in the morning, they left their vehicles outside and entered. They gathered the men together in one place and the women in another. Ahmet Çakıcı had hidden. A search was carried out by the gendarmes, who also started setting fire to houses. Ahmet Çakıcı was found and taken into custody. He was last seen by the witnesses being taken by village guards and soldiers to the vehicles.\",\n \"16. The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers. They set fire to her house, which had seven rooms and was made of timber. The family stored provisions, crops and wheat inside and these, along with the furniture and other household goods, were destroyed. About fifty houses in the village were burned down. She stated that once they had caught Ahmet Çakıcı the gendarmes left. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave.\",\n \"17. Having regard to the evidence as a whole, the Commission accepted the evidence of the applicant as regards its principal elements. It did not find the matters referred to by the Government as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses, which its Delegates assessed in generally positive terms. While the Commission took note of the applicant’s age, its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence.\",\n \"18. The Commission found in conclusion that the applicant’s property, furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of Çitlibahçe on 8 November 1993. This led to the evacuation of the village. The possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions).\",\n \"19. The applicant and other villagers went to Diyarbakır after the operation. Accompanied by her son and three or four other villagers, the applicant went to the Human Rights Association. She made a statement and thumbprinted it.\",\n \"20. Sometime later, the applicant was summoned to a police station. In his evidence to the Delegates, her son, Avni Dulaş remembered that she had been summoned to the public prosecutor’s office in about the summer of 1995. He accompanied her there. She had been asked to make a statement. The public prosecutor read out of a file, stating that she had complained to Europe about Turkey. He told the Delegates that he thought the prosecutor was trying to put pressure on his mother.\",\n \"B. The Government’s submissions on the facts\",\n \"21. The Government emphasised the terrorism which was prevalent in this region from the early 1990’s and created a public danger threatening the life of the nation. The PKK had killed thousands of innocent victims and exerted intolerable pressure on the local population. The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam.\",\n \"22. The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on 8 February 1993. She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission. He issued a decision of non-jurisdiction, transferring the file to the Hazro governor. The Hazro Administrative Council began an investigation and found that her claims were unsubstantiated.\",\n \"23. The Government submitted that the applicant’s various accounts, oral and written, were inconsistent and implausible, in particular the details purportedly noted down by the Human Rights Association in her application to the Commission.\",\n \"C. New material\",\n \"24. On 11 May 2000, the Government submitted a copy of the statement taken by the Diyarbakır public prosecutor from the applicant via an interpreter on 10 October 1995. This had not been provided to the Commission.\",\n \"25. According to the statement, thumbprinted by the applicant, the letter from the Ministry of Justice, the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them. She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement. As regarded the events, she could not remember the exact date but about two years before 20 or more army vehicles had come to Çitlibahçe, with soldiers and village guards. They rounded up the villagers and set fire to the houses. After the village burned down, she went to Diyarbakır.\",\n \"26. The statement recorded that she was shown the application and letter of authority and asked about them. She stated the thumbprints were hers. She said that she thought her application was going to Ankara to claim her rights. She was illiterate and ignorant and did not know anything about European human rights. She made her statement to them as she thought this would get something done about the damage which she had suffered. She wanted the State to vindicate her rights. She did not want to start a case in Europe in the way that he had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW AND PRACTICE","A. Administrative liability","27. Article 125 of the Turkish Constitution provides as follows:","“All acts or decisions of the administration are subject to judicial review ...","The administration shall be liable to indemnify any damage caused by its own acts and measures.”","28. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.","29. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:","“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”","B. Criminal responsibility","30. The Turkish Criminal Code makes it a criminal offence","– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),","– to oblige an individual through force or threats to commit or not to commit an act (Article 188),","– to issue threats (Article 191),","– to make an unlawful search of an individual’s home (Articles 193 and 194),","– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),","– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or","– to damage another’s property intentionally (Articles 526 et seq.).","31. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.","32. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).","33. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.","C. Provisions on compensation","34. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.","35. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.","36. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.","D. Provisions on emergency measures","37. Extensive powers have been granted to the Regional Governor of the State of Emergency by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.","38. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces.","39. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:","“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”","According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.","THE LAW","I. the court’s assessment of the facts","40. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1214, § 78).","41. The Government argued that the Commission gave undue weight to the evidence of the applicant and the other villager witnesses whose evidence was in their view unreliable and inconsistent. The Court observes that the Government’s points concerning these witnesses were taken into consideration by the Commission in its report, which approached its task of assessing the evidence with the requisite caution, giving detailed consideration to the elements which supported the applicant’s claims and those which cast doubt on their credibility. It does not find that the criticisms made by the Government raise any matter of substance which might warrant the exercise of its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission (see paragraphs 9-20 above).","II. THE GOVERNMENT’S PRELIMINARY OBJECTION","42. The Government submitted that the applicant had not used any domestic remedy, not even lodging a criminal complaint, in respect of her allegations. Her only excuse for this was an alleged fear of reprisals. The applicant had available to her an administrative remedy regarding the strict liability of the State for protecting the citizen from damage, as well as the possibility pursuing a civil action for damages.","43. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65 ‑ 67).","44. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which remedies operate, as well as the personal circumstances of the applicant (see the Akdivar and Others v. Turkey judgment, cited above, p. 1211, § 69, and the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-I, p. 907, §§ 65-66).","45. Regard must therefore be had in this case to the situation which existed in south-east Turkey at the time of the events complained of by the applicant, which was characterised by violent confrontations between the security forces and members of the PKK (see the Mentes and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 58). In such a situation, as the Court has recognised in previous cases, there may be obstacles to the proper functioning of the system of the administration of justice (see the Akdivar and Others v. Turkey judgment, cited above, pp. 1211, § 70).","46. The Court recalls that, despite the extent of the problem of village destruction, there appeared in these previous cases to be no example of compensation being awarded in respect of allegations that property had purposely been destroyed by members of the security forces or of prosecutions having been brought against them in respect of such allegations. Furthermore, there had consistently been a general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred. The Government have provided no information since that would lead the Court to reach any different conclusion (see the Selçuk and Asker v. Turkey judgment, cited above, p. 908, § 68).","47. Accordingly, the Court finds that it has not been demonstrated by the Government with sufficient certainty that effective and accessible domestic remedies existed for complaints such as the applicant’s. Having regard to the circumstances in which her house and property, along with others in her village, were destroyed, the Court considers it understandable if the applicant considered it pointless to attempt to secure satisfaction through national legal channels. The insecurity and vulnerability of the applicant following the destruction of her home is also of some relevance in this context (see the Selçuk and Asker judgment, cited above, p. 908, § § 70-71).","48. The Court concludes that there existed special circumstances which dispensed the applicant from the obligation to exhaust domestic remedies. It follows that the Government’s preliminary objection on non-exhaustion must be dismissed.","III ALLEGED VIOLATION OF ARTICLE 3 of the CONVENTION","49. The applicant invoked Article 3 of the Convention, which provides:","“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”","50. The applicant submitted that the circumstances in which she had been forced from her house, which was burned in front of her eyes, and forcibly evicted so that she was left destitute and without security amounted as a minimum to inhuman and degrading treatment.","51. The Government rejected this complaint as being without any basis.","52. Article 3, as the Court has frequently underlined, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15 (see, inter alia, the Aksoy v. Turkey judgment, p. 2278, § 62).","53. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52).","54. The applicant in the present case was aged over 70 at the time of the events. Her home and property were destroyed before her eyes, depriving her of means of shelter and support, and obliging her to leave the village and community, where she had lived all her life. No steps were taken by the authorities to give assistance to her in her plight.","55. Having regard to the manner in which her home was destroyed and her personal circumstances therefore, the Court finds that the applicant must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3 (see also the Selçuk and Asker v. Turkey judgment, cited above, p. 910, §§ 77-78).","56. The Court concludes that there has been a violation of Article 3 of the Convention.","IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION and article 1 of protocol no. 1","57. The applicant complained of the destruction of her home and property, invoking Article 8 of the Convention and Article 1 of Protocol No. 1, which provide:","Article 8:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","Article 1 of Protocol No. 1:","“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.","The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”","58. The applicant submitted that the destruction of her home, property and possessions represented a serious violation of her right to respect for private and family life, her right to respect for home and her right to peaceful enjoyment of property. Further, the expulsion from her home and the fact that she cannot return to her village represented a serious interference with her lifestyle and a continuing violation of her right to peaceful enjoyment of her possessions. She contended that the expulsion from her village constituted separate and additional violations of both Articles above.","59. The Government submitted the applicant’s allegations had no factual foundation and that there was no substantiation of her claims that the security forces had burned and destroyed her house and goods.","60. The Court has found it established that the applicant’s house and property were deliberately destroyed by the security forces, obliging her to leave her village. There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted particularly grave and unjustified interferences with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions (see also the Mentes and Others v. Turkey judgment, cited above, p. 2711, § 73; the Selçuk and Asker v. Turkey judgment, cited above, p. 911, § 86).","61. The Court, accordingly, finds violations of Article 8 of the Convention and Article 1 of Protocol No. 1.","V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","62. The applicant complained that she has not had an effective remedy within the meaning of Article 13 of the Convention, which provides:","“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”","63. The applicant, referring to the previous village destruction cases, submitted that she had no effective remedy available to her in respect of her complaints. There were undoubted practical difficulties and inhibitions barring villagers like the applicant from obtaining redress in south-east Turkey, where broad emergency powers had been conferred on the Emergency Governors and their subordinates. Public prosecutors had never brought any prosecutions concerning the village destructions and in this case conducted no investigation, referring the matter to an Administrative Council, which was a non-judicial body lacking in independence.","64. The Government argued that the applicant could have taken administrative or civil proceedings seeking damages or made a criminal complaint to the public prosecutor, which constituted effective remedies within the meaning of Article 13 of the Convention.","65. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy v. Turkey judgment, cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, pp. 1895-96, § 103; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).","66. Where an individual has an arguable claim that her home and possessions have been purposely destroyed by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigation procedure (see the Mentes and Others v. Turkey judgment, cited above, p. 2715, § 89).","67. On the basis of the evidence adduced in the present case, the Court has found that the applicant’s home and property were destroyed, disclosing violations of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. The applicant’s complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113).","68. The Court refers to its findings above that it has not been established with sufficient certainty that the remedies referred to by the Government provided in the circumstances of this case any effective prospect of obtaining redress (see paragraph 47 above). Furthermore, while the applicant did not approach any domestic authority with her complaints before introducing her application to the Commission, it appears that, following communication of this application to the Government on 27 February 1995, the public prosecutor summoned the applicant (see paragraphs 20 and 22). A statement taken by him dated 10 October 1995 has been provided, thumbprinted by the applicant, in which she maintained her claim that soldiers had burned her home. It is not apparent however that the public prosecutor took any other investigative step, before issuing a decision of non-competence and referring it to the Administrative Council. The Court has already found in a number of cases that this body made up of civil servants, hierarchically dependent on the governor, an executive officer linked to the security forces under investigation, cannot be regarded as independent (see the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1731-33, §§ 77-82, and the Oğur v. Turkey [GC] no. 21594/93, §§ 85-93, ECHR 1999-III). No thorough or effective investigation was therefore conducted into the applicant’s allegations.","69. The Court concludes therefore that there has been a breach of Article 13 of the Convention.","Vi. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION","70. The applicant invoked Article 18 of the Convention which provides:","“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”","71. The applicant argued that the enforced evacuation of 2-3 million people from villages in the south-east of Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention.","72. The Government denied this assertion.","73. Having regard to its findings above, the Court does not consider it necessary to examine this complaint separately.","ViI. Alleged practices by the authorities in violation of the convention","74. The applicant maintained that there existed in Turkey an officially tolerated practice of destroying villages and failing to provide effective remedies, which aggravated the breach of which she had been victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies.","75. Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities.","VIII. ALLEGED VIOLATION OF former ARTICLE 25 OF THE CONVENTION","76. Finally, the applicant complained that she had been subject to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now replaced by Article 34), which provided:","“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”","77. The applicant submitted that she had been summoned by the public prosecutor, who asked her about her application to the Commission and put pressure on her.","78. The Government argued that the public prosecutor was justified in summoning the applicant in order to pursue his own investigation into her complaints. He had to question her about her application as it was the basis for opening his own file.","79. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v. Turkey judgment, cited above, p. 1219, § 105; the Aksoy v. Turkey judgment cited above, p. 2288, § 105; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; and Ergı v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1784, § 105). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see the above mentioned Kurt v. Turkey judgment, loc. cit. ).","Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 25 § 1 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt v. Turkey judgments, cited above, p. 1219, § 105 and pp. 1192-93, § 160, respectively). In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention ( ibid .).","80. In the instant case, the Court recalls that the Government had not provided any information to the Commission about the authorities’ contacts with the applicant and that the Commission reached its finding of undue interference on the basis of the oral testimony of the applicant and her son. The statement now provided to the Court (see paragraphs 24-26) indicates that the applicant was shown the statement made by her to the Human Rights Association (HRA) and the letter of authority concerning her legal representation before the Commission. It also appears that she was asked to verify her thumbprint and to verify the contents of the statement as accurate. The text of the statement also implies that the applicant was questioned as to whether she wanted to maintain an application to the Commission in Europe and whether she wished to pursue a complaint against the HRA lawyer. Though the applicant maintained that her statement to the HRA was accurate and repeated the substance of her allegation against the security forces, it does not appear that the public prosecutor pursued any questions with a view to adding to the factual detail of the applicant’s complaints.","81. In these circumstances, the Court is not satisfied that the interview related solely to the public prosecutor’s duty to collect information about the applicant’s complaints for the purpose of his own investigation. It also trespassed into verifying the authenticity of the applicant’s application and whether she wanted to continue it. The applicant not unreasonably must have felt intimidated by this interview and felt under pressure to withdraw complaints considered as being against the State. This constituted undue interference with her petition to the Convention organs.","82. The respondent State has therefore failed to comply with its obligations under former Article 25 § 1 of the Convention.","Ix. APPLICATION OF ARTICLE 41 OF THE CONVENTION","83. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Pecuniary damages","84. The applicant claimed pecuniary damage in respect of the loss of her house, household goods, food stuffs, loss of income and costs incurred for alternative accommodation of 76,164.84 pounds sterling (GBP).","85. The Government argued the applicant’s claims were out of all proportion to the value of the items listed and were, in any event, unsubstantiated and largely imaginary. Furthermore, the applicant’s allegations that her home and possessions had been destroyed by security forces were unfounded and therefore, there was no requirement to award any compensation. Any just satisfaction should not exceed reasonable limits or lead to unjust enrichment.","86. The Court recalls its finding that the applicant’s home and possessions were destroyed by security forces (see § 60 above). In view of this finding it is undoubtedly necessary to award compensation for pecuniary damage. However, as the applicant has not substantiated her claims as to the quantity and value of her lost property with any documentary or other evidence, the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.","1. House and outbuildings","87. The applicant claimed damages in respect of a house covering 250 square metres, which she valued at GBP 3,224.37 and a barn measuring 250 square metres and valued at GBP 2,149.58.","88. The Government disputed that the applicant, a villager in the rural area of Hazro, would own a house of the dimensions claimed.","89. The Commission has not made any findings as to the nature and size of the applicant’s house and outbuildings.","90. The Court notes that the Government have not provided an inspection report of the site to contradict the applicant’s figures, as in the Bilgin case (see the Bilgin v. Turkey judgment of 16 November 2000, § 142). Making its assessment on an equitable basis therefore, the Court awards an amount of GBP 5,000 in respect of the destroyed buildings, which sum is to be converted into Turkish liras at the rate applicable at the date of payment.","2. Other property","91. The applicant submitted claims in respect of 300 acres of irrigated arable land, 50 acres of dry arable land, a 20 acre fruit orchard, 30 acres of vineyards, a 50 acre tobacco field and 100 pear trees, assessed altogether at GBP 33,960.16; livestock worth in total GBP 3,731.62, household goods worth in total GBP 2,129.55 and food stuffs and tobacco stores worth an estimated value of GBP 4,824.38.","92. The Government submitted that the applicant’s claims were highly exaggerated and failed to reflect economic or any other reality.","93. The Court recalls that it has been found established that the contents of the applicant’s house had been destroyed and that, after her house had been burned, she had been obliged to leave Çitlibahçe (see paragraph 60), which must have entailed some consequential losses. The Court further recalls the Commission’s finding that the damaged household goods in the applicant’s home included a fridge, television, kitchen utensils, household goods, and produce, including tobacco, wheat, barley, lentils, and winter provisions (see paragraphs 16 and 18).","94. In the absence of any independent and conclusive evidence as to the applicant’s claims for other property and on the basis of principles of equity, the Court awards an amount of GBP 4,000, such sum to be converted into Turkish liras at the rate applicable at the date of payment. The Court has not awarded any sum in respect of the cultivated land and orchards in respect of which it has not been established that the applicant has been expropriated nor in respect of the livestock as it has not been established that this livestock perished as a consequence of the destruction of the applicant’s house and outbuildings.","3. Loss of income","95. The applicant claimed an amount of GBP 22,904.33 in compensation for loss of income from farming.","96. The Government disputed that any award of such a speculative nature should be made.","97. The Court is satisfied that the applicant must have suffered loss of income as a result of being forced from her home and village. In the absence of independent evidence on the size of the applicant’s landholdings and income derived therefrom, and having regard to equitable considerations, the Court awards under this head an amount of GBP 3,000, to be converted into Turkish liras at the rate applicable at the date of payment.","4. Alternative accommodation","98. The applicant claimed the reimbursement of rent to an amount of 1,401,960,860 Turkish liras (TRL) which she paid in Diyarbakır between August 1993 and June 1997 and 1,561,000,000 TRL for rent paid in İstanbul since June 1997, which corresponds to GBP 3,204.61 for a 60 month period.","99. The Government considered these claims excessive.","100. In the absence of documentary substantiation of this part of the applicant’s claim and having regard to the information at its disposal concerning the rates for rented accommodation, the Court awards the applicant on an equitable basis for costs of alternative housing an amount of GBP 600, such sum to be converted into Turkish liras at the rate applicable at the date of payment.","B. Non-pecuniary damage","101. Referring to the destruction of her home and possessions, expulsion from her village and her inability to return there, the applicant claimed GBP 50,000 for non-pecuniary damage.","102. The Government, rejecting that any violations had occurred, submitted that no award for non-pecuniary damage should be awarded and that, if such an award was to be made, the Court should take into account the economic circumstances prevailing in Turkey.","103. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 (see §§ 56, 61 and 69). Additionally, the applicant was hindered in the effective exercise of her right of petition under the Convention (see § 82).","104. The Court awards the applicant GBP 10,000 for non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment.","C. Costs and expenses","105. The applicant claimed a total of GBP 17,881.40 for fees and costs incurred in bringing the application, less legal aid received from the Council of Europe of 7,500 French francs (FRF). A sum of GBP 5,075.16 was claimed in respect of fees and costs incurred by lawyers in Turkey and GBP 3,000 in respect of the Kurdish Human Rights Project (KHRP).","106. The Government submitted that the claims for costs and fees were excessive and unsubstantiated. They disputed that any sums should be awarded in respect of the role of the KHRP.","107. The Court is not persuaded that the fees claimed in respect of the KHRP were necessarily incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, the Court awards the applicant the sum of GBP 14,900 together with any value-added tax that may be chargeable, less the 7,500 FRF received by way of legal aid from the Council of Europe, such sum to be paid into the sterling bank account in the United Kingdom as set out in her just satisfaction claim.","D. Default interest","108. The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of the present judgment, namely 7.5% per annum."],"string":"[\n \"II. RELEVANT DOMESTIC LAW AND PRACTICE\",\n \"A. Administrative liability\",\n \"27. Article 125 of the Turkish Constitution provides as follows:\",\n \"“All acts or decisions of the administration are subject to judicial review ...\",\n \"The administration shall be liable to indemnify any damage caused by its own acts and measures.”\",\n \"28. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.\",\n \"29. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:\",\n \"“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”\",\n \"B. Criminal responsibility\",\n \"30. The Turkish Criminal Code makes it a criminal offence\",\n \"– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),\",\n \"– to oblige an individual through force or threats to commit or not to commit an act (Article 188),\",\n \"– to issue threats (Article 191),\",\n \"– to make an unlawful search of an individual’s home (Articles 193 and 194),\",\n \"– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),\",\n \"– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or\",\n \"– to damage another’s property intentionally (Articles 526 et seq.).\",\n \"31. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.\",\n \"32. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).\",\n \"33. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.\",\n \"C. Provisions on compensation\",\n \"34. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.\",\n \"35. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.\",\n \"36. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.\",\n \"D. Provisions on emergency measures\",\n \"37. Extensive powers have been granted to the Regional Governor of the State of Emergency by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.\",\n \"38. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces.\",\n \"39. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:\",\n \"“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”\",\n \"According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.\",\n \"THE LAW\",\n \"I. the court’s assessment of the facts\",\n \"40. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1214, § 78).\",\n \"41. The Government argued that the Commission gave undue weight to the evidence of the applicant and the other villager witnesses whose evidence was in their view unreliable and inconsistent. The Court observes that the Government’s points concerning these witnesses were taken into consideration by the Commission in its report, which approached its task of assessing the evidence with the requisite caution, giving detailed consideration to the elements which supported the applicant’s claims and those which cast doubt on their credibility. It does not find that the criticisms made by the Government raise any matter of substance which might warrant the exercise of its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission (see paragraphs 9-20 above).\",\n \"II. THE GOVERNMENT’S PRELIMINARY OBJECTION\",\n \"42. The Government submitted that the applicant had not used any domestic remedy, not even lodging a criminal complaint, in respect of her allegations. Her only excuse for this was an alleged fear of reprisals. The applicant had available to her an administrative remedy regarding the strict liability of the State for protecting the citizen from damage, as well as the possibility pursuing a civil action for damages.\",\n \"43. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65 ‑ 67).\",\n \"44. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which remedies operate, as well as the personal circumstances of the applicant (see the Akdivar and Others v. Turkey judgment, cited above, p. 1211, § 69, and the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-I, p. 907, §§ 65-66).\",\n \"45. Regard must therefore be had in this case to the situation which existed in south-east Turkey at the time of the events complained of by the applicant, which was characterised by violent confrontations between the security forces and members of the PKK (see the Mentes and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 58). In such a situation, as the Court has recognised in previous cases, there may be obstacles to the proper functioning of the system of the administration of justice (see the Akdivar and Others v. Turkey judgment, cited above, pp. 1211, § 70).\",\n \"46. The Court recalls that, despite the extent of the problem of village destruction, there appeared in these previous cases to be no example of compensation being awarded in respect of allegations that property had purposely been destroyed by members of the security forces or of prosecutions having been brought against them in respect of such allegations. Furthermore, there had consistently been a general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred. The Government have provided no information since that would lead the Court to reach any different conclusion (see the Selçuk and Asker v. Turkey judgment, cited above, p. 908, § 68).\",\n \"47. Accordingly, the Court finds that it has not been demonstrated by the Government with sufficient certainty that effective and accessible domestic remedies existed for complaints such as the applicant’s. Having regard to the circumstances in which her house and property, along with others in her village, were destroyed, the Court considers it understandable if the applicant considered it pointless to attempt to secure satisfaction through national legal channels. The insecurity and vulnerability of the applicant following the destruction of her home is also of some relevance in this context (see the Selçuk and Asker judgment, cited above, p. 908, § § 70-71).\",\n \"48. The Court concludes that there existed special circumstances which dispensed the applicant from the obligation to exhaust domestic remedies. It follows that the Government’s preliminary objection on non-exhaustion must be dismissed.\",\n \"III ALLEGED VIOLATION OF ARTICLE 3 of the CONVENTION\",\n \"49. The applicant invoked Article 3 of the Convention, which provides:\",\n \"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\",\n \"50. The applicant submitted that the circumstances in which she had been forced from her house, which was burned in front of her eyes, and forcibly evicted so that she was left destitute and without security amounted as a minimum to inhuman and degrading treatment.\",\n \"51. The Government rejected this complaint as being without any basis.\",\n \"52. Article 3, as the Court has frequently underlined, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15 (see, inter alia, the Aksoy v. Turkey judgment, p. 2278, § 62).\",\n \"53. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52).\",\n \"54. The applicant in the present case was aged over 70 at the time of the events. Her home and property were destroyed before her eyes, depriving her of means of shelter and support, and obliging her to leave the village and community, where she had lived all her life. No steps were taken by the authorities to give assistance to her in her plight.\",\n \"55. Having regard to the manner in which her home was destroyed and her personal circumstances therefore, the Court finds that the applicant must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3 (see also the Selçuk and Asker v. Turkey judgment, cited above, p. 910, §§ 77-78).\",\n \"56. The Court concludes that there has been a violation of Article 3 of the Convention.\",\n \"IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION and article 1 of protocol no. 1\",\n \"57. The applicant complained of the destruction of her home and property, invoking Article 8 of the Convention and Article 1 of Protocol No. 1, which provide:\",\n \"Article 8:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"Article 1 of Protocol No. 1:\",\n \"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\",\n \"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\",\n \"58. The applicant submitted that the destruction of her home, property and possessions represented a serious violation of her right to respect for private and family life, her right to respect for home and her right to peaceful enjoyment of property. Further, the expulsion from her home and the fact that she cannot return to her village represented a serious interference with her lifestyle and a continuing violation of her right to peaceful enjoyment of her possessions. She contended that the expulsion from her village constituted separate and additional violations of both Articles above.\",\n \"59. The Government submitted the applicant’s allegations had no factual foundation and that there was no substantiation of her claims that the security forces had burned and destroyed her house and goods.\",\n \"60. The Court has found it established that the applicant’s house and property were deliberately destroyed by the security forces, obliging her to leave her village. There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted particularly grave and unjustified interferences with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions (see also the Mentes and Others v. Turkey judgment, cited above, p. 2711, § 73; the Selçuk and Asker v. Turkey judgment, cited above, p. 911, § 86).\",\n \"61. The Court, accordingly, finds violations of Article 8 of the Convention and Article 1 of Protocol No. 1.\",\n \"V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\",\n \"62. The applicant complained that she has not had an effective remedy within the meaning of Article 13 of the Convention, which provides:\",\n \"“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\",\n \"63. The applicant, referring to the previous village destruction cases, submitted that she had no effective remedy available to her in respect of her complaints. There were undoubted practical difficulties and inhibitions barring villagers like the applicant from obtaining redress in south-east Turkey, where broad emergency powers had been conferred on the Emergency Governors and their subordinates. Public prosecutors had never brought any prosecutions concerning the village destructions and in this case conducted no investigation, referring the matter to an Administrative Council, which was a non-judicial body lacking in independence.\",\n \"64. The Government argued that the applicant could have taken administrative or civil proceedings seeking damages or made a criminal complaint to the public prosecutor, which constituted effective remedies within the meaning of Article 13 of the Convention.\",\n \"65. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy v. Turkey judgment, cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, pp. 1895-96, § 103; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).\",\n \"66. Where an individual has an arguable claim that her home and possessions have been purposely destroyed by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigation procedure (see the Mentes and Others v. Turkey judgment, cited above, p. 2715, § 89).\",\n \"67. On the basis of the evidence adduced in the present case, the Court has found that the applicant’s home and property were destroyed, disclosing violations of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. The applicant’s complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113).\",\n \"68. The Court refers to its findings above that it has not been established with sufficient certainty that the remedies referred to by the Government provided in the circumstances of this case any effective prospect of obtaining redress (see paragraph 47 above). Furthermore, while the applicant did not approach any domestic authority with her complaints before introducing her application to the Commission, it appears that, following communication of this application to the Government on 27 February 1995, the public prosecutor summoned the applicant (see paragraphs 20 and 22). A statement taken by him dated 10 October 1995 has been provided, thumbprinted by the applicant, in which she maintained her claim that soldiers had burned her home. It is not apparent however that the public prosecutor took any other investigative step, before issuing a decision of non-competence and referring it to the Administrative Council. The Court has already found in a number of cases that this body made up of civil servants, hierarchically dependent on the governor, an executive officer linked to the security forces under investigation, cannot be regarded as independent (see the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1731-33, §§ 77-82, and the Oğur v. Turkey [GC] no. 21594/93, §§ 85-93, ECHR 1999-III). No thorough or effective investigation was therefore conducted into the applicant’s allegations.\",\n \"69. The Court concludes therefore that there has been a breach of Article 13 of the Convention.\",\n \"Vi. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION\",\n \"70. The applicant invoked Article 18 of the Convention which provides:\",\n \"“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”\",\n \"71. The applicant argued that the enforced evacuation of 2-3 million people from villages in the south-east of Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention.\",\n \"72. The Government denied this assertion.\",\n \"73. Having regard to its findings above, the Court does not consider it necessary to examine this complaint separately.\",\n \"ViI. Alleged practices by the authorities in violation of the convention\",\n \"74. The applicant maintained that there existed in Turkey an officially tolerated practice of destroying villages and failing to provide effective remedies, which aggravated the breach of which she had been victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies.\",\n \"75. Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities.\",\n \"VIII. ALLEGED VIOLATION OF former ARTICLE 25 OF THE CONVENTION\",\n \"76. Finally, the applicant complained that she had been subject to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now replaced by Article 34), which provided:\",\n \"“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”\",\n \"77. The applicant submitted that she had been summoned by the public prosecutor, who asked her about her application to the Commission and put pressure on her.\",\n \"78. The Government argued that the public prosecutor was justified in summoning the applicant in order to pursue his own investigation into her complaints. He had to question her about her application as it was the basis for opening his own file.\",\n \"79. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v. Turkey judgment, cited above, p. 1219, § 105; the Aksoy v. Turkey judgment cited above, p. 2288, § 105; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; and Ergı v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1784, § 105). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see the above mentioned Kurt v. Turkey judgment, loc. cit. ).\",\n \"Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 25 § 1 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt v. Turkey judgments, cited above, p. 1219, § 105 and pp. 1192-93, § 160, respectively). In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention ( ibid .).\",\n \"80. In the instant case, the Court recalls that the Government had not provided any information to the Commission about the authorities’ contacts with the applicant and that the Commission reached its finding of undue interference on the basis of the oral testimony of the applicant and her son. The statement now provided to the Court (see paragraphs 24-26) indicates that the applicant was shown the statement made by her to the Human Rights Association (HRA) and the letter of authority concerning her legal representation before the Commission. It also appears that she was asked to verify her thumbprint and to verify the contents of the statement as accurate. The text of the statement also implies that the applicant was questioned as to whether she wanted to maintain an application to the Commission in Europe and whether she wished to pursue a complaint against the HRA lawyer. Though the applicant maintained that her statement to the HRA was accurate and repeated the substance of her allegation against the security forces, it does not appear that the public prosecutor pursued any questions with a view to adding to the factual detail of the applicant’s complaints.\",\n \"81. In these circumstances, the Court is not satisfied that the interview related solely to the public prosecutor’s duty to collect information about the applicant’s complaints for the purpose of his own investigation. It also trespassed into verifying the authenticity of the applicant’s application and whether she wanted to continue it. The applicant not unreasonably must have felt intimidated by this interview and felt under pressure to withdraw complaints considered as being against the State. This constituted undue interference with her petition to the Convention organs.\",\n \"82. The respondent State has therefore failed to comply with its obligations under former Article 25 § 1 of the Convention.\",\n \"Ix. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"83. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Pecuniary damages\",\n \"84. The applicant claimed pecuniary damage in respect of the loss of her house, household goods, food stuffs, loss of income and costs incurred for alternative accommodation of 76,164.84 pounds sterling (GBP).\",\n \"85. The Government argued the applicant’s claims were out of all proportion to the value of the items listed and were, in any event, unsubstantiated and largely imaginary. Furthermore, the applicant’s allegations that her home and possessions had been destroyed by security forces were unfounded and therefore, there was no requirement to award any compensation. Any just satisfaction should not exceed reasonable limits or lead to unjust enrichment.\",\n \"86. The Court recalls its finding that the applicant’s home and possessions were destroyed by security forces (see § 60 above). In view of this finding it is undoubtedly necessary to award compensation for pecuniary damage. However, as the applicant has not substantiated her claims as to the quantity and value of her lost property with any documentary or other evidence, the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.\",\n \"1. House and outbuildings\",\n \"87. The applicant claimed damages in respect of a house covering 250 square metres, which she valued at GBP 3,224.37 and a barn measuring 250 square metres and valued at GBP 2,149.58.\",\n \"88. The Government disputed that the applicant, a villager in the rural area of Hazro, would own a house of the dimensions claimed.\",\n \"89. The Commission has not made any findings as to the nature and size of the applicant’s house and outbuildings.\",\n \"90. The Court notes that the Government have not provided an inspection report of the site to contradict the applicant’s figures, as in the Bilgin case (see the Bilgin v. Turkey judgment of 16 November 2000, § 142). Making its assessment on an equitable basis therefore, the Court awards an amount of GBP 5,000 in respect of the destroyed buildings, which sum is to be converted into Turkish liras at the rate applicable at the date of payment.\",\n \"2. Other property\",\n \"91. The applicant submitted claims in respect of 300 acres of irrigated arable land, 50 acres of dry arable land, a 20 acre fruit orchard, 30 acres of vineyards, a 50 acre tobacco field and 100 pear trees, assessed altogether at GBP 33,960.16; livestock worth in total GBP 3,731.62, household goods worth in total GBP 2,129.55 and food stuffs and tobacco stores worth an estimated value of GBP 4,824.38.\",\n \"92. The Government submitted that the applicant’s claims were highly exaggerated and failed to reflect economic or any other reality.\",\n \"93. The Court recalls that it has been found established that the contents of the applicant’s house had been destroyed and that, after her house had been burned, she had been obliged to leave Çitlibahçe (see paragraph 60), which must have entailed some consequential losses. The Court further recalls the Commission’s finding that the damaged household goods in the applicant’s home included a fridge, television, kitchen utensils, household goods, and produce, including tobacco, wheat, barley, lentils, and winter provisions (see paragraphs 16 and 18).\",\n \"94. In the absence of any independent and conclusive evidence as to the applicant’s claims for other property and on the basis of principles of equity, the Court awards an amount of GBP 4,000, such sum to be converted into Turkish liras at the rate applicable at the date of payment. The Court has not awarded any sum in respect of the cultivated land and orchards in respect of which it has not been established that the applicant has been expropriated nor in respect of the livestock as it has not been established that this livestock perished as a consequence of the destruction of the applicant’s house and outbuildings.\",\n \"3. Loss of income\",\n \"95. The applicant claimed an amount of GBP 22,904.33 in compensation for loss of income from farming.\",\n \"96. The Government disputed that any award of such a speculative nature should be made.\",\n \"97. The Court is satisfied that the applicant must have suffered loss of income as a result of being forced from her home and village. In the absence of independent evidence on the size of the applicant’s landholdings and income derived therefrom, and having regard to equitable considerations, the Court awards under this head an amount of GBP 3,000, to be converted into Turkish liras at the rate applicable at the date of payment.\",\n \"4. Alternative accommodation\",\n \"98. The applicant claimed the reimbursement of rent to an amount of 1,401,960,860 Turkish liras (TRL) which she paid in Diyarbakır between August 1993 and June 1997 and 1,561,000,000 TRL for rent paid in İstanbul since June 1997, which corresponds to GBP 3,204.61 for a 60 month period.\",\n \"99. The Government considered these claims excessive.\",\n \"100. In the absence of documentary substantiation of this part of the applicant’s claim and having regard to the information at its disposal concerning the rates for rented accommodation, the Court awards the applicant on an equitable basis for costs of alternative housing an amount of GBP 600, such sum to be converted into Turkish liras at the rate applicable at the date of payment.\",\n \"B. Non-pecuniary damage\",\n \"101. Referring to the destruction of her home and possessions, expulsion from her village and her inability to return there, the applicant claimed GBP 50,000 for non-pecuniary damage.\",\n \"102. The Government, rejecting that any violations had occurred, submitted that no award for non-pecuniary damage should be awarded and that, if such an award was to be made, the Court should take into account the economic circumstances prevailing in Turkey.\",\n \"103. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 (see §§ 56, 61 and 69). Additionally, the applicant was hindered in the effective exercise of her right of petition under the Convention (see § 82).\",\n \"104. The Court awards the applicant GBP 10,000 for non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment.\",\n \"C. Costs and expenses\",\n \"105. The applicant claimed a total of GBP 17,881.40 for fees and costs incurred in bringing the application, less legal aid received from the Council of Europe of 7,500 French francs (FRF). A sum of GBP 5,075.16 was claimed in respect of fees and costs incurred by lawyers in Turkey and GBP 3,000 in respect of the Kurdish Human Rights Project (KHRP).\",\n \"106. The Government submitted that the claims for costs and fees were excessive and unsubstantiated. They disputed that any sums should be awarded in respect of the role of the KHRP.\",\n \"107. The Court is not persuaded that the fees claimed in respect of the KHRP were necessarily incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, the Court awards the applicant the sum of GBP 14,900 together with any value-added tax that may be chargeable, less the 7,500 FRF received by way of legal aid from the Council of Europe, such sum to be paid into the sterling bank account in the United Kingdom as set out in her just satisfaction claim.\",\n \"D. Default interest\",\n \"108. The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of the present judgment, namely 7.5% per annum.\"\n]"}}},{"rowIdx":294,"cells":{"id":{"kind":"number","value":299,"string":"299"},"case_name":{"kind":"string","value":"Klass and Others v. Germany"},"judgement_date":{"kind":"string","value":"6 September 1978"},"facts_summary":{"kind":"string","value":"In this case the applicants, five German lawyers, complained about legislation in Germany empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them."},"law_summary":{"kind":"string","value":"The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that, due to the threat of sophisticated forms of espionage and terrorism, some legislation granting powers of secret surveillance was, under exceptional conditions, “necessary in a democratic society” in the interests of national security and/or the prevention of disorder or crime."},"title":{"kind":"string","value":"Terrorism and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Prevention of terrorism"},"facts_source":{"kind":"list like","value":["10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.","All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \"the G 10\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).","11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).","Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.","12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:","\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\" (ibid, pp. 16-17).","13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.","On this point, the Agent of the Government made the following declaration before the Court:","\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:","At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\"","The contested legislation","14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\". Under the same provision, these rights were to lapse \"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\".","15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.","The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:","\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\"","16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:","\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.","(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\"","17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \"imminent dangers\" threatening the \"free democratic constitutional order\", \"the existence or the security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic and the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).","Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\" (sub-paragraph 2).","18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).","The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).","Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).","19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \"the G 10 Commission\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.","20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.","The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).","21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.","The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).","The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.","The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.","For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.","22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:","\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\"","The official statement of reasons accompanying the Bill contains the following passage in this connection:","\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...","The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\" (Bundestag document V/1880 of 13 June 1967, p. 8).","23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).","The Agent of the Government admitted that this remedy might be employed only on rare occasions.","24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.","25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.","Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).","These provisions are not, however, in issue in the present case."],"string":"[\n \"10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.\",\n \"All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \\\"the G 10\\\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).\",\n \"11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).\",\n \"Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.\",\n \"12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:\",\n \"\\\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\\\" (ibid, pp. 16-17).\",\n \"13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.\",\n \"On this point, the Agent of the Government made the following declaration before the Court:\",\n \"\\\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:\",\n \"At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\\\"\",\n \"The contested legislation\",\n \"14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \\\"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\\\". Under the same provision, these rights were to lapse \\\"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\\\".\",\n \"15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.\",\n \"The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:\",\n \"\\\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\\\"\",\n \"16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:\",\n \"\\\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.\",\n \"(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\\\"\",\n \"17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \\\"imminent dangers\\\" threatening the \\\"free democratic constitutional order\\\", \\\"the existence or the security of the Federation or of a Land\\\", \\\"the security of the (allied) armed forces\\\" stationed on the territory of the Republic and the security of \\\"the troops of one of the Three Powers stationed in the Land of Berlin\\\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).\",\n \"Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \\\"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\\\" (sub-paragraph 2).\",\n \"18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).\",\n \"The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).\",\n \"Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).\",\n \"19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \\\"the G 10 Commission\\\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.\",\n \"20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.\",\n \"The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).\",\n \"21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.\",\n \"The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).\",\n \"The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.\",\n \"The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.\",\n \"For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.\",\n \"22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:\",\n \"\\\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\\\"\",\n \"The official statement of reasons accompanying the Bill contains the following passage in this connection:\",\n \"\\\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...\",\n \"The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\\\" (Bundestag document V/1880 of 13 June 1967, p. 8).\",\n \"23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).\",\n \"The Agent of the Government admitted that this remedy might be employed only on rare occasions.\",\n \"24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.\",\n \"25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.\",\n \"Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).\",\n \"These provisions are not, however, in issue in the present case.\"\n]"},"law_source":{"kind":"list like","value":["PROCEEDINGS BEFORE THE COMMISSION","26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.","On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:","\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\"","27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:","\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.","As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\"","The Commission then expressed the opinion:","- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \"civil rights\";","- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \"criminal charge\";","- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).","The report contains various separate opinions.","28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:","\"I ... invite the Court","to find that the application was inadmissible;","in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\"","She repeated these concluding submissions at the hearing on 10 March 1978.","29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:","\"May it please the Court to say and judge","1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;","2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\"","AS TO THE LAW","I. ON ARTICLE 25 PARA. 1 (art. 25-1)","30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \"inadmissible\". They argued that the applicants could not be considered as \"victims\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:","\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\"","In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.","31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \"victims\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.","The Delegates considered that the Government were requiring too rigid a standard for the notion of a \"victim\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.","The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.","32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \"Belgian Linguistic\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).","The present case concerns, inter alia, the interpretation of the notion of \"victim\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).","33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \"any alleged breach\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \"to be the victim of a violation ... of the rights set forth in (the) Convention\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \"Belgian Linguistic\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).","34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.","The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.","35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.","36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.","In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:","\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\"","This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).","The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.","37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).","At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \"victims\".","38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \"(claim) to be the victim of a violation\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.","Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.","II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)","39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:","\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"","40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).","41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).","Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \"private life\" and \"correspondence\" referred to by this provision.","In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \"interference by a public authority\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.","The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.","42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.","43. In order for the \"interference\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \"in accordance with the law\". This requirement is fulfilled in the present case since the \"interference\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.","44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \"necessary in a democratic society in the interests of national security\" and/or \"for the prevention of disorder or crime\". Before the Court the Government submitted that the interference was additionally justified \"in the interests of ... public safety\" and \"for the protection of the rights and freedoms of others\".","45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \"imminent dangers\" threatening \"the free democratic constitutional order\", \"the existence or security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic or the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).","46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.","On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.","47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.","48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.","49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).","Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.","50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.","The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.","51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \"contact-persons\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.","Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).","52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).","As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).","53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.","The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).","54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \"form of political control\", inadequate in comparison with the principle of judicial control which ought to prevail.","It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \"interference\" resulting from the contested legislation to what is \"necessary in a democratic society\".","55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.","56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.","The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.","Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.","The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.","57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.","The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.","In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).","58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.","The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \"interference\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \"interference\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).","59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.","The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.","The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.","60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.","III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)","61. The applicants also alleged a breach of Article 13 (art. 13) which provides:","\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"","62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.","63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.","64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \"are violated\" is to have an effective remedy before a national authority even where \"the violation has been committed\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \"violation\" has occurred. However, a person cannot establish a \"violation\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \"effective remedy before a national authority\" to everyone who claims that his rights and freedoms under the Convention have been violated.","65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \"an effective remedy before a national authority\" within the meaning of Article 13 (art. 13).","The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.","66. The Court observes firstly that the applicants themselves enjoyed \"an effective remedy\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.","67. As regards the issue whether there is \"an effective remedy\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \"national authority\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.","In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.","68. The concept of an \"effective remedy\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \"necessary in a democratic society\" for any one of the purposes mentioned in Article 8 (art. 8).","The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).","69. For the purposes of the present proceedings, an \"effective remedy\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \"effective\" in this limited sense.","70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.","71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).","72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).","IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)","73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:","\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"","74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \"civil right\", and to the laying of a \"criminal charge\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \"civil\" or the \"criminal\" head.","75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).","Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.","As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.","The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).","The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated."],"string":"[\n \"PROCEEDINGS BEFORE THE COMMISSION\",\n \"26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.\",\n \"On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:\",\n \"\\\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\\\"\",\n \"27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:\",\n \"\\\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.\",\n \"As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\\\"\",\n \"The Commission then expressed the opinion:\",\n \"- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \\\"civil rights\\\";\",\n \"- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \\\"criminal charge\\\";\",\n \"- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).\",\n \"The report contains various separate opinions.\",\n \"28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:\",\n \"\\\"I ... invite the Court\",\n \"to find that the application was inadmissible;\",\n \"in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\\\"\",\n \"She repeated these concluding submissions at the hearing on 10 March 1978.\",\n \"29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:\",\n \"\\\"May it please the Court to say and judge\",\n \"1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;\",\n \"2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\\\"\",\n \"AS TO THE LAW\",\n \"I. ON ARTICLE 25 PARA. 1 (art. 25-1)\",\n \"30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \\\"inadmissible\\\". They argued that the applicants could not be considered as \\\"victims\\\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:\",\n \"\\\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\\\"\",\n \"In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.\",\n \"31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \\\"victims\\\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.\",\n \"The Delegates considered that the Government were requiring too rigid a standard for the notion of a \\\"victim\\\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.\",\n \"The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.\",\n \"32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \\\"Belgian Linguistic\\\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).\",\n \"The present case concerns, inter alia, the interpretation of the notion of \\\"victim\\\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).\",\n \"33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \\\"any alleged breach\\\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \\\"to be the victim of a violation ... of the rights set forth in (the) Convention\\\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \\\"Belgian Linguistic\\\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).\",\n \"34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.\",\n \"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.\",\n \"35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.\",\n \"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.\",\n \"In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:\",\n \"\\\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\\\"\",\n \"This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).\",\n \"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.\",\n \"37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).\",\n \"At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \\\"victims\\\".\",\n \"38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \\\"(claim) to be the victim of a violation\\\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.\",\n \"Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.\",\n \"II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)\",\n \"39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:\",\n \"\\\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\\\"\",\n \"40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).\",\n \"41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).\",\n \"Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \\\"private life\\\" and \\\"correspondence\\\" referred to by this provision.\",\n \"In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \\\"interference by a public authority\\\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.\",\n \"The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.\",\n \"42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.\",\n \"43. In order for the \\\"interference\\\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \\\"in accordance with the law\\\". This requirement is fulfilled in the present case since the \\\"interference\\\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.\",\n \"44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \\\"necessary in a democratic society in the interests of national security\\\" and/or \\\"for the prevention of disorder or crime\\\". Before the Court the Government submitted that the interference was additionally justified \\\"in the interests of ... public safety\\\" and \\\"for the protection of the rights and freedoms of others\\\".\",\n \"45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \\\"imminent dangers\\\" threatening \\\"the free democratic constitutional order\\\", \\\"the existence or security of the Federation or of a Land\\\", \\\"the security of the (allied) armed forces\\\" stationed on the territory of the Republic or the security of \\\"the troops of one of the Three Powers stationed in the Land of Berlin\\\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).\",\n \"46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.\",\n \"On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.\",\n \"47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.\",\n \"48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.\",\n \"49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).\",\n \"Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.\",\n \"50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.\",\n \"The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.\",\n \"51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \\\"contact-persons\\\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.\",\n \"Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).\",\n \"52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).\",\n \"As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).\",\n \"53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.\",\n \"The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).\",\n \"54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \\\"form of political control\\\", inadequate in comparison with the principle of judicial control which ought to prevail.\",\n \"It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \\\"interference\\\" resulting from the contested legislation to what is \\\"necessary in a democratic society\\\".\",\n \"55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.\",\n \"56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.\",\n \"The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.\",\n \"Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.\",\n \"The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.\",\n \"57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.\",\n \"The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.\",\n \"In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).\",\n \"58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.\",\n \"The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \\\"interference\\\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \\\"interference\\\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).\",\n \"59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.\",\n \"The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.\",\n \"The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \\\"Belgian Linguistic\\\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \\\"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\\\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.\",\n \"60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.\",\n \"III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)\",\n \"61. The applicants also alleged a breach of Article 13 (art. 13) which provides:\",\n \"\\\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\\\"\",\n \"62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.\",\n \"63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.\",\n \"64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \\\"are violated\\\" is to have an effective remedy before a national authority even where \\\"the violation has been committed\\\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \\\"violation\\\" has occurred. However, a person cannot establish a \\\"violation\\\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \\\"effective remedy before a national authority\\\" to everyone who claims that his rights and freedoms under the Convention have been violated.\",\n \"65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \\\"an effective remedy before a national authority\\\" within the meaning of Article 13 (art. 13).\",\n \"The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.\",\n \"66. The Court observes firstly that the applicants themselves enjoyed \\\"an effective remedy\\\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.\",\n \"67. As regards the issue whether there is \\\"an effective remedy\\\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \\\"national authority\\\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.\",\n \"In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.\",\n \"68. The concept of an \\\"effective remedy\\\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \\\"necessary in a democratic society\\\" for any one of the purposes mentioned in Article 8 (art. 8).\",\n \"The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).\",\n \"69. For the purposes of the present proceedings, an \\\"effective remedy\\\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \\\"effective\\\" in this limited sense.\",\n \"70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.\",\n \"71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).\",\n \"72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).\",\n \"IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)\",\n \"73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:\",\n \"\\\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\\\"\",\n \"74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \\\"civil right\\\", and to the laying of a \\\"criminal charge\\\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \\\"civil\\\" or the \\\"criminal\\\" head.\",\n \"75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).\",\n \"Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.\",\n \"As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.\",\n \"The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).\",\n \"The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated.\"\n]"}}},{"rowIdx":295,"cells":{"id":{"kind":"number","value":300,"string":"300"},"case_name":{"kind":"string","value":"Klass and Others v. Germany"},"judgement_date":{"kind":"string","value":"6 September 1978"},"facts_summary":{"kind":"string","value":"In this case the applicants, five German lawyers, complained in particular about legislation in Germany empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them."},"law_summary":{"kind":"string","value":"The Court held that there had been no violation of Article 8 of the Convention, finding that the German legislature was justified to consider the interference resulting from the contested legislation with the exercise of the right guaranteed by Article 8 § 1 as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 § 2). The Court observed in particular that powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. Noting, however, that democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction, the Court considered that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications was, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime."},"title":{"kind":"string","value":"Legal professional privilege"},"subtitle":{"kind":"string","value":"Secret surveillance"},"facts_source":{"kind":"list like","value":["10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.","All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \"the G 10\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).","11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).","Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.","12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:","\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\" (ibid, pp. 16-17).","13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.","On this point, the Agent of the Government made the following declaration before the Court:","\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:","At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\"","The contested legislation","14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\". Under the same provision, these rights were to lapse \"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\".","15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.","The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:","\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\"","16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:","\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.","(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\"","17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \"imminent dangers\" threatening the \"free democratic constitutional order\", \"the existence or the security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic and the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).","Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\" (sub-paragraph 2).","18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).","The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).","Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).","19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \"the G 10 Commission\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.","20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.","The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).","21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.","The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).","The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.","The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.","For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.","22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:","\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\"","The official statement of reasons accompanying the Bill contains the following passage in this connection:","\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...","The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\" (Bundestag document V/1880 of 13 June 1967, p. 8).","23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).","The Agent of the Government admitted that this remedy might be employed only on rare occasions.","24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.","25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.","Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).","These provisions are not, however, in issue in the present case."],"string":"[\n \"10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.\",\n \"All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \\\"the G 10\\\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).\",\n \"11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).\",\n \"Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.\",\n \"12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:\",\n \"\\\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\\\" (ibid, pp. 16-17).\",\n \"13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.\",\n \"On this point, the Agent of the Government made the following declaration before the Court:\",\n \"\\\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:\",\n \"At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\\\"\",\n \"The contested legislation\",\n \"14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \\\"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\\\". Under the same provision, these rights were to lapse \\\"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\\\".\",\n \"15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.\",\n \"The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:\",\n \"\\\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\\\"\",\n \"16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:\",\n \"\\\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.\",\n \"(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\\\"\",\n \"17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \\\"imminent dangers\\\" threatening the \\\"free democratic constitutional order\\\", \\\"the existence or the security of the Federation or of a Land\\\", \\\"the security of the (allied) armed forces\\\" stationed on the territory of the Republic and the security of \\\"the troops of one of the Three Powers stationed in the Land of Berlin\\\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).\",\n \"Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \\\"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\\\" (sub-paragraph 2).\",\n \"18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).\",\n \"The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).\",\n \"Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).\",\n \"19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \\\"the G 10 Commission\\\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.\",\n \"20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.\",\n \"The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).\",\n \"21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.\",\n \"The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).\",\n \"The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.\",\n \"The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.\",\n \"For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.\",\n \"22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:\",\n \"\\\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\\\"\",\n \"The official statement of reasons accompanying the Bill contains the following passage in this connection:\",\n \"\\\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...\",\n \"The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\\\" (Bundestag document V/1880 of 13 June 1967, p. 8).\",\n \"23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).\",\n \"The Agent of the Government admitted that this remedy might be employed only on rare occasions.\",\n \"24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.\",\n \"25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.\",\n \"Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).\",\n \"These provisions are not, however, in issue in the present case.\"\n]"},"law_source":{"kind":"list like","value":["PROCEEDINGS BEFORE THE COMMISSION","26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.","On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:","\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\"","27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:","\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.","As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\"","The Commission then expressed the opinion:","- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \"civil rights\";","- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \"criminal charge\";","- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).","The report contains various separate opinions.","28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:","\"I ... invite the Court","to find that the application was inadmissible;","in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\"","She repeated these concluding submissions at the hearing on 10 March 1978.","29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:","\"May it please the Court to say and judge","1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;","2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\"","AS TO THE LAW","I. ON ARTICLE 25 PARA. 1 (art. 25-1)","30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \"inadmissible\". They argued that the applicants could not be considered as \"victims\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:","\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\"","In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.","31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \"victims\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.","The Delegates considered that the Government were requiring too rigid a standard for the notion of a \"victim\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.","The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.","32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \"Belgian Linguistic\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).","The present case concerns, inter alia, the interpretation of the notion of \"victim\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).","33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \"any alleged breach\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \"to be the victim of a violation ... of the rights set forth in (the) Convention\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \"Belgian Linguistic\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).","34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.","The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.","35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.","36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.","In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:","\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\"","This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).","The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.","37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).","At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \"victims\".","38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \"(claim) to be the victim of a violation\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.","Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.","II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)","39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:","\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"","40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).","41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).","Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \"private life\" and \"correspondence\" referred to by this provision.","In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \"interference by a public authority\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.","The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.","42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.","43. In order for the \"interference\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \"in accordance with the law\". This requirement is fulfilled in the present case since the \"interference\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.","44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \"necessary in a democratic society in the interests of national security\" and/or \"for the prevention of disorder or crime\". Before the Court the Government submitted that the interference was additionally justified \"in the interests of ... public safety\" and \"for the protection of the rights and freedoms of others\".","45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \"imminent dangers\" threatening \"the free democratic constitutional order\", \"the existence or security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic or the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).","46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.","On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.","47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.","48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.","49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).","Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.","50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.","The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.","51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \"contact-persons\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.","Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).","52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).","As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).","53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.","The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).","54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \"form of political control\", inadequate in comparison with the principle of judicial control which ought to prevail.","It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \"interference\" resulting from the contested legislation to what is \"necessary in a democratic society\".","55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.","56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.","The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.","Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.","The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.","57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.","The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.","In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).","58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.","The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \"interference\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \"interference\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).","59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.","The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.","The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.","60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.","III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)","61. The applicants also alleged a breach of Article 13 (art. 13) which provides:","\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"","62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.","63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.","64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \"are violated\" is to have an effective remedy before a national authority even where \"the violation has been committed\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \"violation\" has occurred. However, a person cannot establish a \"violation\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \"effective remedy before a national authority\" to everyone who claims that his rights and freedoms under the Convention have been violated.","65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \"an effective remedy before a national authority\" within the meaning of Article 13 (art. 13).","The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.","66. The Court observes firstly that the applicants themselves enjoyed \"an effective remedy\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.","67. As regards the issue whether there is \"an effective remedy\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \"national authority\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.","In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.","68. The concept of an \"effective remedy\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \"necessary in a democratic society\" for any one of the purposes mentioned in Article 8 (art. 8).","The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).","69. For the purposes of the present proceedings, an \"effective remedy\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \"effective\" in this limited sense.","70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.","71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).","72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).","IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)","73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:","\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"","74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \"civil right\", and to the laying of a \"criminal charge\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \"civil\" or the \"criminal\" head.","75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).","Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.","As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.","The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).","The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated."],"string":"[\n \"PROCEEDINGS BEFORE THE COMMISSION\",\n \"26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.\",\n \"On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:\",\n \"\\\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\\\"\",\n \"27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:\",\n \"\\\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.\",\n \"As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\\\"\",\n \"The Commission then expressed the opinion:\",\n \"- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \\\"civil rights\\\";\",\n \"- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \\\"criminal charge\\\";\",\n \"- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).\",\n \"The report contains various separate opinions.\",\n \"28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:\",\n \"\\\"I ... invite the Court\",\n \"to find that the application was inadmissible;\",\n \"in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\\\"\",\n \"She repeated these concluding submissions at the hearing on 10 March 1978.\",\n \"29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:\",\n \"\\\"May it please the Court to say and judge\",\n \"1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;\",\n \"2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\\\"\",\n \"AS TO THE LAW\",\n \"I. ON ARTICLE 25 PARA. 1 (art. 25-1)\",\n \"30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \\\"inadmissible\\\". They argued that the applicants could not be considered as \\\"victims\\\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:\",\n \"\\\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\\\"\",\n \"In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.\",\n \"31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \\\"victims\\\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.\",\n \"The Delegates considered that the Government were requiring too rigid a standard for the notion of a \\\"victim\\\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.\",\n \"The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.\",\n \"32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \\\"Belgian Linguistic\\\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).\",\n \"The present case concerns, inter alia, the interpretation of the notion of \\\"victim\\\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).\",\n \"33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \\\"any alleged breach\\\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \\\"to be the victim of a violation ... of the rights set forth in (the) Convention\\\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \\\"Belgian Linguistic\\\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).\",\n \"34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.\",\n \"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.\",\n \"35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.\",\n \"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.\",\n \"In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:\",\n \"\\\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\\\"\",\n \"This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).\",\n \"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.\",\n \"37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).\",\n \"At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \\\"victims\\\".\",\n \"38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \\\"(claim) to be the victim of a violation\\\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.\",\n \"Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.\",\n \"II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)\",\n \"39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:\",\n \"\\\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\\\"\",\n \"40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).\",\n \"41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).\",\n \"Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \\\"private life\\\" and \\\"correspondence\\\" referred to by this provision.\",\n \"In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \\\"interference by a public authority\\\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.\",\n \"The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.\",\n \"42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.\",\n \"43. In order for the \\\"interference\\\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \\\"in accordance with the law\\\". This requirement is fulfilled in the present case since the \\\"interference\\\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.\",\n \"44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \\\"necessary in a democratic society in the interests of national security\\\" and/or \\\"for the prevention of disorder or crime\\\". Before the Court the Government submitted that the interference was additionally justified \\\"in the interests of ... public safety\\\" and \\\"for the protection of the rights and freedoms of others\\\".\",\n \"45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \\\"imminent dangers\\\" threatening \\\"the free democratic constitutional order\\\", \\\"the existence or security of the Federation or of a Land\\\", \\\"the security of the (allied) armed forces\\\" stationed on the territory of the Republic or the security of \\\"the troops of one of the Three Powers stationed in the Land of Berlin\\\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).\",\n \"46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.\",\n \"On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.\",\n \"47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.\",\n \"48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.\",\n \"49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).\",\n \"Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.\",\n \"50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.\",\n \"The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.\",\n \"51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \\\"contact-persons\\\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.\",\n \"Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).\",\n \"52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).\",\n \"As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).\",\n \"53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.\",\n \"The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).\",\n \"54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \\\"form of political control\\\", inadequate in comparison with the principle of judicial control which ought to prevail.\",\n \"It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \\\"interference\\\" resulting from the contested legislation to what is \\\"necessary in a democratic society\\\".\",\n \"55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.\",\n \"56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.\",\n \"The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.\",\n \"Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.\",\n \"The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.\",\n \"57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.\",\n \"The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.\",\n \"In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).\",\n \"58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.\",\n \"The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \\\"interference\\\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \\\"interference\\\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).\",\n \"59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.\",\n \"The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.\",\n \"The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \\\"Belgian Linguistic\\\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \\\"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\\\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.\",\n \"60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.\",\n \"III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)\",\n \"61. The applicants also alleged a breach of Article 13 (art. 13) which provides:\",\n \"\\\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\\\"\",\n \"62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.\",\n \"63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.\",\n \"64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \\\"are violated\\\" is to have an effective remedy before a national authority even where \\\"the violation has been committed\\\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \\\"violation\\\" has occurred. However, a person cannot establish a \\\"violation\\\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \\\"effective remedy before a national authority\\\" to everyone who claims that his rights and freedoms under the Convention have been violated.\",\n \"65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \\\"an effective remedy before a national authority\\\" within the meaning of Article 13 (art. 13).\",\n \"The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.\",\n \"66. The Court observes firstly that the applicants themselves enjoyed \\\"an effective remedy\\\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.\",\n \"67. As regards the issue whether there is \\\"an effective remedy\\\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \\\"national authority\\\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.\",\n \"In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.\",\n \"68. The concept of an \\\"effective remedy\\\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \\\"necessary in a democratic society\\\" for any one of the purposes mentioned in Article 8 (art. 8).\",\n \"The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).\",\n \"69. For the purposes of the present proceedings, an \\\"effective remedy\\\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \\\"effective\\\" in this limited sense.\",\n \"70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.\",\n \"71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).\",\n \"72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).\",\n \"IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)\",\n \"73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:\",\n \"\\\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\\\"\",\n \"74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \\\"civil right\\\", and to the laying of a \\\"criminal charge\\\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \\\"civil\\\" or the \\\"criminal\\\" head.\",\n \"75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).\",\n \"Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.\",\n \"As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.\",\n \"The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).\",\n \"The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated.\"\n]"}}},{"rowIdx":296,"cells":{"id":{"kind":"number","value":301,"string":"301"},"case_name":{"kind":"string","value":"Gillan and Quinton v. the United Kingdom"},"judgement_date":{"kind":"string","value":"12 January 2010"},"facts_summary":{"kind":"string","value":"This case concerned the police power in the United Kingdom, under sections 44-47 of the Terrorism Act 2000, to stop and search individuals without reasonable suspicion of wrongdoing."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”."},"title":{"kind":"string","value":"Terrorism and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Prevention of terrorism"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","6. The applicants were born in 1977 and 1971 respectively and live in London.","A. The searches","7. Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations.","8. At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes.","9. At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a photographer's jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it.","B. The judicial review proceedings","1. The High Court","10. The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review. Prior to the High Court hearing, the Secretary of State offered the applicants a procedure which would have enabled the High Court to review in closed session, with the benefit of submissions from a special advocate, the underlying intelligence material which had been the basis for the Secretary of State's decision to confirm the authorisation (section 46 of the 2000 Act: see paragraphs 30-31 below). The applicants, however, indicated that they did not consider it necessary or appropriate to proceed in this way, since they did not intend to challenge the assessment that there was a general threat of terrorism against the United Kingdom. Instead, they contended, first, that the authorisation and confirmation in question, since they formed part of a rolling programme of authorisations covering the entire London area, were ultra vires and unlawful, since there were a number of clear indications that Parliament had intended an authorisation under section 44 of the 2000 Act (“a section 44 authorisation ”) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. Secondly, the applicants claimed that the use of the section 44 authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. Thirdly, the applicants claimed that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention.","11. On 31 October 2003, the Divisional Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held that Parliament had envisaged that a section 44 authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of State were not ultra vires.","Brooke LJ held as follows, in connection with the applicants'second ground of challenge:","“The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism.","It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power.","We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that, in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed .... But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future. ... ”","Finally, the court found that the powers were provided for by law and not disproportionate, given the risk of terrorist attack in London.","2. The Court of Appeal","12. The Court of Appeal gave judgment on 2 9 July 2004 ([2004] EWCA Civ 1067). As to the proper interpretation of the legislation, it held that:","“It is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed.","We do not find it surprising that the word'expedient'should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism.","Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.”","13. The Court of Appeal did not consider it necessary to determine whether Article 5 § 1 applied, since it held that any deprivation of liberty was justifiable under Article 5 § 1(b). However it held that, if the point had to be decided, the better view was that there was no deprivation of liberty, taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another. Nor did it consider that Articles 10 and 11 applied. Although the applicants'evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration, those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the Convention and, properly used as a measure of limited duration to search for articles connected with terrorism, the stop and search power would not impinge on the rights to freedom of expression or assembly.","14. The respondent Commissioner of the Metropolitan Police had conceded that the stop and search measures amounted to interferences with the applicants'Article 8 rights, and the Court of Appeal accepted that this was the correct approach, describing section 44 as “an extremely wide power to intrude on the privacy of the members of the public”. It considered that the interference was, however, in accordance with the law, for the following reasons:","“'The law'that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of'law'in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law. ”","Furthermore, given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of the power could not, as a matter of general principle, be said to be disproportionate : the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred. Having regard to the nature of the arms fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, the police were entitled to decide that section 44 powers should be exercised in connection with it. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants.","3. The House of Lords","15. The House of Lords, on 8 March 2006, unanimously dismissed the applicants'appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing:","“ 1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44 -47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance. ”","16. The first issue before the House of Lords was as to the proper construction of the statute. The applicants had argued that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism. Lord Bingham rejected this interpretation, since the word “expedient” in the section had a meaning quite distinct from “necessary”. He continued:","“ 14. ... But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give'expedient'a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.","15. The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants'challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.”","17. Lord Bingham rejected the applicants'contention that the “rolling programme” of authorisations had been ultra vires, as follows:","“ 18. The appellants'second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ... found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as'a special case, having vulnerable assets and relevant residential pockets in almost every borough'. ”","18. On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure. However, since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested, handcuffed, confined or removed to any different place, such a person should not be regarded “ as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting ”. Article 5 did not, therefore, apply.","19. As to the question whether Article 8 was applicable, Lord Bingham was:","“ 28. ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that'private life'has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level. ”","20. Lord Bingham did not consider that the power to stop and search under sections 44-45, properly used in accordance with the statute and Code A, could be used to infringe a person's rights under Articles 10 or 11 of the Convention.","21. Despite his doubts as to the applicability of Articles 5, 8, 10 or 11, Lord Bingham went on to consider whether the stop and search powers complied with the requirement of “lawfulness” under the Convention, as follows:","“ 34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.","35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as'law'rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.”","22. Lord Hope of Craighead agreed with Lord Bingham. In particular, he considered that the stop and search power complied with the principle of legality for the following reasons:","“ 48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary?","49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised.","50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word'terrorism'for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to.","51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law ... on the ground that it is arbitrary?","...","55. ... The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily.","56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality.","57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority. ”","23. Lord Brown of Eaton-under-Heywood observed, inter alia:","“ 74. Given the exceptional (although, as Lord Bingham has explained, neither unique nor particularly novel) nature of [the section 44] power (often described as the power of random search, requiring for its exercise no reasonable suspicion of wrongdoing), it is unsurprisingly hedged about with a wide variety of restrictions and safeguards. Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these. It can be used only by a constable in uniform (section 44 (1) and (2)). It can be used only to search for terrorist-connected articles (section 45(1) (a)). The person searched must not be required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves (section 45(3)). The search must be carried out at or near the place where the person or vehicle is stopped (section 45(4)). And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search (section 45(4)). Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure, and radically though it departs from our traditional understanding of the limits of police power, it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties. Nevertheless, given, as the respondents rightly concede, that in certain cases at least such a procedure will be sufficiently intrusive to engage a person's article 8 right to respect for his private life, and given too that this power is clearly open to abuse—the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer's part—the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be'in accordance with the law.'","75. For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law (as here clearly it does in the 2000 Act); not only must that law be adequately accessible to the public (as here clearly it is —unlike, for example, the position in Malone v United Kingdom (1985) 7 EHRR 14); not only must the law be reasonably foreseeable, to enable those affected to regulate their conduct accordingly (a requirement surely here satisfied by the public's recognition, from the very terms of the legislation, that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it); but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily.","76. As I understand the appellants'argument, it is upon this final requirement that it principally focuses: this power, submits Mr Singh, is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse. True, he acknowledges, if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages (and, no doubt, to police disciplinary action). But, he submits, it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise. Assume, for example, that a police officer in fact exercises this power for racially discriminatory reasons of his own, how could that be established? There are simply no effective safeguards against such abuse, no adequate criteria against which to judge the propriety of its use. Certainly it is provided by paragraph 2.25 of Code A (a published code issued under section 66 of the Police and Criminal Evidence Act 1984) that:'Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers'. But, say the appellants, there is simply no way of policing that instruction with regard to the exercise of so wide a random power. No way, that is, submits [counsel for the applicants], unless it is by stopping and searching literally everyone (as, of course, occurs at airports and on entry to certain other specific buildings) or by stopping and searching on a strictly numerical basis, say every tenth person. Only in one or other of these ways, the appellants'argument forces them to contend, could such a power as this be exercisable consistently with the principle of legal certainty: there cannot otherwise be the necessary safeguards in place to satisfy the Convention requirement as to'the quality of the law'...","77. I would reject this argument. In the first place it would seem to me impossible to exercise the section 44 power effectively in either of the ways suggested. Imagine that following the London Underground bombings last July the police had attempted to stop and search everyone entering an underground station or indeed every tenth (or hundredth) such person. Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power. That, as Lord Bingham puts it in paragraph 35 of his opinion, is not'to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting [but rather] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.'It is to be hoped, first, that potential terrorists will be deterred (certainly from carrying the tools of their trade) by knowing of the risk they run of being randomly searched, and, secondly, that by the exercise of this power police officers may on occasion (if only very rarely) find such materials and thereby disrupt or avert a proposed terrorist attack. Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action.","78. In his 2001 review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1989 (amended as explained by Lord Bingham in paragraph 9 of his opinion) and the Northern Ireland (Emergency Provisions) Act 1996, Mr John Rowe QC said this of the power to stop and search those entering or leaving the United Kingdom with a view to finding out whether they were involved in terrorism:","' The “intuitive” stop","37. It is impossible to overstate the value of these stops ...","38. I should explain what I mean by an “intuitive stop”. It is a stop which is made “cold” or “at random”—but I prefer the words “on intuition”—without advance knowledge about the person or vehicle being stopped.","39. I do not think such a stop by a trained Special Branch officer is “cold” or “random”. The officer has experience and training in the features and circumstances of terrorism and terrorist groups, and he or she may therefore notice things which the layman would not, or he or she may simply have a police officer's intuition. Often the reason for such a stop cannot be explained to the layman.'","79. Later in his review Mr Rowe noted of the more general stop and search powers originally contained in sections 13A and 13B of the 1989 Act that'these powers were used sparingly, and for good reason'. I respectfully agree that the section 44 power (as it is now) should be exercised sparingly, a recommendation echoed throughout a series of annual reports on the 2000 Act by Lord Carlile of Berriew QC, the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe—see most recently paragraph 106 of his 2005 report, suggesting that the use of the power'could be cut by at least 50 per cent without significant risk to the public or detriment to policing.'To my mind, however, that makes it all the more important that it is targeted as the police officer's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever. In short, the value of this legislation, just like that allowing people to be stopped and searched at ports, is that it enables police officers to make what Mr Rowe characterised as an intuitive stop.","80. Of course, as the Privy Counsellor Review Committee chaired by Lord Newton of Braintree noted in its December 2003 report on the Anti-Terrorism, Crime and Security Act 2001:","' Sophisticated terrorists change their profile and methods to avoid presenting a static target. For example, al Qaeda is reported to place particular value on recruiting Muslim converts because they judge them to be less likely to be scrutinised by the authorities.'","It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items).","81. Is such a conclusion inimical to Convention jurisprudence or, indeed, inconsistent with domestic discrimination law? In my judgment it is not, provided only that police officers exercising this power on the ground pay proper heed to paragraph 2.25 of Code A:","' The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).'","Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination. ”","C. The County Court proceedings","24. The applicants also commenced a claim in the County Court on 8 September 2004 for, inter alia, damages under the Human Rights Act 1998 on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of Articles 8, 10 and 11 of the Convention, to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism. The claims were stayed pending the outcome of their appeal to the House of Lords and were finally heard in February 2007. The County Court rejected the applicants'claims and determined that the power had, in respect to each of them, been properly and lawfully exercised. The applicants did not seek to appeal against this judgment."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"6. The applicants were born in 1977 and 1971 respectively and live in London.\",\n \"A. The searches\",\n \"7. Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations.\",\n \"8. At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes.\",\n \"9. At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a photographer's jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it.\",\n \"B. The judicial review proceedings\",\n \"1. The High Court\",\n \"10. The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review. Prior to the High Court hearing, the Secretary of State offered the applicants a procedure which would have enabled the High Court to review in closed session, with the benefit of submissions from a special advocate, the underlying intelligence material which had been the basis for the Secretary of State's decision to confirm the authorisation (section 46 of the 2000 Act: see paragraphs 30-31 below). The applicants, however, indicated that they did not consider it necessary or appropriate to proceed in this way, since they did not intend to challenge the assessment that there was a general threat of terrorism against the United Kingdom. Instead, they contended, first, that the authorisation and confirmation in question, since they formed part of a rolling programme of authorisations covering the entire London area, were ultra vires and unlawful, since there were a number of clear indications that Parliament had intended an authorisation under section 44 of the 2000 Act (“a section 44 authorisation ”) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. Secondly, the applicants claimed that the use of the section 44 authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. Thirdly, the applicants claimed that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention.\",\n \"11. On 31 October 2003, the Divisional Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held that Parliament had envisaged that a section 44 authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of State were not ultra vires.\",\n \"Brooke LJ held as follows, in connection with the applicants'second ground of challenge:\",\n \"“The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism.\",\n \"It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power.\",\n \"We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that, in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed .... But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future. ... ”\",\n \"Finally, the court found that the powers were provided for by law and not disproportionate, given the risk of terrorist attack in London.\",\n \"2. The Court of Appeal\",\n \"12. The Court of Appeal gave judgment on 2 9 July 2004 ([2004] EWCA Civ 1067). As to the proper interpretation of the legislation, it held that:\",\n \"“It is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed.\",\n \"We do not find it surprising that the word'expedient'should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism.\",\n \"Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.”\",\n \"13. The Court of Appeal did not consider it necessary to determine whether Article 5 § 1 applied, since it held that any deprivation of liberty was justifiable under Article 5 § 1(b). However it held that, if the point had to be decided, the better view was that there was no deprivation of liberty, taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another. Nor did it consider that Articles 10 and 11 applied. Although the applicants'evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration, those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the Convention and, properly used as a measure of limited duration to search for articles connected with terrorism, the stop and search power would not impinge on the rights to freedom of expression or assembly.\",\n \"14. The respondent Commissioner of the Metropolitan Police had conceded that the stop and search measures amounted to interferences with the applicants'Article 8 rights, and the Court of Appeal accepted that this was the correct approach, describing section 44 as “an extremely wide power to intrude on the privacy of the members of the public”. It considered that the interference was, however, in accordance with the law, for the following reasons:\",\n \"“'The law'that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of'law'in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law. ”\",\n \"Furthermore, given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of the power could not, as a matter of general principle, be said to be disproportionate : the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred. Having regard to the nature of the arms fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, the police were entitled to decide that section 44 powers should be exercised in connection with it. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants.\",\n \"3. The House of Lords\",\n \"15. The House of Lords, on 8 March 2006, unanimously dismissed the applicants'appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing:\",\n \"“ 1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44 -47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance. ”\",\n \"16. The first issue before the House of Lords was as to the proper construction of the statute. The applicants had argued that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism. Lord Bingham rejected this interpretation, since the word “expedient” in the section had a meaning quite distinct from “necessary”. He continued:\",\n \"“ 14. ... But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give'expedient'a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.\",\n \"15. The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants'challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.”\",\n \"17. Lord Bingham rejected the applicants'contention that the “rolling programme” of authorisations had been ultra vires, as follows:\",\n \"“ 18. The appellants'second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ... found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as'a special case, having vulnerable assets and relevant residential pockets in almost every borough'. ”\",\n \"18. On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure. However, since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested, handcuffed, confined or removed to any different place, such a person should not be regarded “ as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting ”. Article 5 did not, therefore, apply.\",\n \"19. As to the question whether Article 8 was applicable, Lord Bingham was:\",\n \"“ 28. ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that'private life'has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level. ”\",\n \"20. Lord Bingham did not consider that the power to stop and search under sections 44-45, properly used in accordance with the statute and Code A, could be used to infringe a person's rights under Articles 10 or 11 of the Convention.\",\n \"21. Despite his doubts as to the applicability of Articles 5, 8, 10 or 11, Lord Bingham went on to consider whether the stop and search powers complied with the requirement of “lawfulness” under the Convention, as follows:\",\n \"“ 34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.\",\n \"35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as'law'rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.”\",\n \"22. Lord Hope of Craighead agreed with Lord Bingham. In particular, he considered that the stop and search power complied with the principle of legality for the following reasons:\",\n \"“ 48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary?\",\n \"49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised.\",\n \"50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word'terrorism'for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to.\",\n \"51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law ... on the ground that it is arbitrary?\",\n \"...\",\n \"55. ... The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily.\",\n \"56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality.\",\n \"57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority. ”\",\n \"23. Lord Brown of Eaton-under-Heywood observed, inter alia:\",\n \"“ 74. Given the exceptional (although, as Lord Bingham has explained, neither unique nor particularly novel) nature of [the section 44] power (often described as the power of random search, requiring for its exercise no reasonable suspicion of wrongdoing), it is unsurprisingly hedged about with a wide variety of restrictions and safeguards. Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these. It can be used only by a constable in uniform (section 44 (1) and (2)). It can be used only to search for terrorist-connected articles (section 45(1) (a)). The person searched must not be required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves (section 45(3)). The search must be carried out at or near the place where the person or vehicle is stopped (section 45(4)). And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search (section 45(4)). Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure, and radically though it departs from our traditional understanding of the limits of police power, it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties. Nevertheless, given, as the respondents rightly concede, that in certain cases at least such a procedure will be sufficiently intrusive to engage a person's article 8 right to respect for his private life, and given too that this power is clearly open to abuse—the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer's part—the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be'in accordance with the law.'\",\n \"75. For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law (as here clearly it does in the 2000 Act); not only must that law be adequately accessible to the public (as here clearly it is —unlike, for example, the position in Malone v United Kingdom (1985) 7 EHRR 14); not only must the law be reasonably foreseeable, to enable those affected to regulate their conduct accordingly (a requirement surely here satisfied by the public's recognition, from the very terms of the legislation, that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it); but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily.\",\n \"76. As I understand the appellants'argument, it is upon this final requirement that it principally focuses: this power, submits Mr Singh, is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse. True, he acknowledges, if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages (and, no doubt, to police disciplinary action). But, he submits, it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise. Assume, for example, that a police officer in fact exercises this power for racially discriminatory reasons of his own, how could that be established? There are simply no effective safeguards against such abuse, no adequate criteria against which to judge the propriety of its use. Certainly it is provided by paragraph 2.25 of Code A (a published code issued under section 66 of the Police and Criminal Evidence Act 1984) that:'Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers'. But, say the appellants, there is simply no way of policing that instruction with regard to the exercise of so wide a random power. No way, that is, submits [counsel for the applicants], unless it is by stopping and searching literally everyone (as, of course, occurs at airports and on entry to certain other specific buildings) or by stopping and searching on a strictly numerical basis, say every tenth person. Only in one or other of these ways, the appellants'argument forces them to contend, could such a power as this be exercisable consistently with the principle of legal certainty: there cannot otherwise be the necessary safeguards in place to satisfy the Convention requirement as to'the quality of the law'...\",\n \"77. I would reject this argument. In the first place it would seem to me impossible to exercise the section 44 power effectively in either of the ways suggested. Imagine that following the London Underground bombings last July the police had attempted to stop and search everyone entering an underground station or indeed every tenth (or hundredth) such person. Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power. That, as Lord Bingham puts it in paragraph 35 of his opinion, is not'to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting [but rather] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.'It is to be hoped, first, that potential terrorists will be deterred (certainly from carrying the tools of their trade) by knowing of the risk they run of being randomly searched, and, secondly, that by the exercise of this power police officers may on occasion (if only very rarely) find such materials and thereby disrupt or avert a proposed terrorist attack. Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action.\",\n \"78. In his 2001 review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1989 (amended as explained by Lord Bingham in paragraph 9 of his opinion) and the Northern Ireland (Emergency Provisions) Act 1996, Mr John Rowe QC said this of the power to stop and search those entering or leaving the United Kingdom with a view to finding out whether they were involved in terrorism:\",\n \"' The “intuitive” stop\",\n \"37. It is impossible to overstate the value of these stops ...\",\n \"38. I should explain what I mean by an “intuitive stop”. It is a stop which is made “cold” or “at random”—but I prefer the words “on intuition”—without advance knowledge about the person or vehicle being stopped.\",\n \"39. I do not think such a stop by a trained Special Branch officer is “cold” or “random”. The officer has experience and training in the features and circumstances of terrorism and terrorist groups, and he or she may therefore notice things which the layman would not, or he or she may simply have a police officer's intuition. Often the reason for such a stop cannot be explained to the layman.'\",\n \"79. Later in his review Mr Rowe noted of the more general stop and search powers originally contained in sections 13A and 13B of the 1989 Act that'these powers were used sparingly, and for good reason'. I respectfully agree that the section 44 power (as it is now) should be exercised sparingly, a recommendation echoed throughout a series of annual reports on the 2000 Act by Lord Carlile of Berriew QC, the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe—see most recently paragraph 106 of his 2005 report, suggesting that the use of the power'could be cut by at least 50 per cent without significant risk to the public or detriment to policing.'To my mind, however, that makes it all the more important that it is targeted as the police officer's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever. In short, the value of this legislation, just like that allowing people to be stopped and searched at ports, is that it enables police officers to make what Mr Rowe characterised as an intuitive stop.\",\n \"80. Of course, as the Privy Counsellor Review Committee chaired by Lord Newton of Braintree noted in its December 2003 report on the Anti-Terrorism, Crime and Security Act 2001:\",\n \"' Sophisticated terrorists change their profile and methods to avoid presenting a static target. For example, al Qaeda is reported to place particular value on recruiting Muslim converts because they judge them to be less likely to be scrutinised by the authorities.'\",\n \"It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items).\",\n \"81. Is such a conclusion inimical to Convention jurisprudence or, indeed, inconsistent with domestic discrimination law? In my judgment it is not, provided only that police officers exercising this power on the ground pay proper heed to paragraph 2.25 of Code A:\",\n \"' The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).'\",\n \"Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination. ”\",\n \"C. The County Court proceedings\",\n \"24. The applicants also commenced a claim in the County Court on 8 September 2004 for, inter alia, damages under the Human Rights Act 1998 on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of Articles 8, 10 and 11 of the Convention, to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism. The claims were stayed pending the outcome of their appeal to the House of Lords and were finally heard in February 2007. The County Court rejected the applicants'claims and determined that the power had, in respect to each of them, been properly and lawfully exercised. The applicants did not seek to appeal against this judgment.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW AND PRACTICE","A. The introduction of the police power to stop and search without reasonable suspicion","25. Police officers have the power to stop and search individuals under a range of legislation. For example, section 1 of the Police and Criminal Evidence Act 1984 allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items. Section 60 of the Criminal Justice and Public Order Act 1994 allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons.","26. The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign between 1992 and 1994 in and around London. Section 81 of the Criminal Justice and Public Order Act 1994 inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) in similar terms to section 44 of the 2000 Act (see paragraph 30 below), but without any requirement that the Secretary of State confirm the authorisation. The Prevention of Terrorism (Additional Powers) Act 1996 created an additional, separate power to stop and search pedestrians, under section 13B of the 1989 Act. The 1996 Act also established for the first time the confirmation procedure involving the Secretary of State.","B. Consideration of the need to retain the power to stop and search without reasonable suspicion","27. In 1995 the Government asked Lord Lloyd of Berwick, a House of Lords judge, to undertake an Inquiry into the need for specific counter-terrorism legislation in the United Kingdom following the decrease in terrorism connected to Northern Ireland. The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections 13A and 13B of the 1989 Act. In his Report (Cm 3420, § 10, October 1996), Lord Lloyd noted that between February and August 1996 the police in London had carried out searches of 9,700 drivers and passengers and 270 pedestrians under sections 13A and 13B of the 1989 Act. When considering whether similar powers should be retained in any permanent counter-terrorism legislation that might be enacted, he observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented :","“ As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.”","In the end Lord Lloyd recommended that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State's confirmation should be required in relation to each provision. Since the Police and Criminal Evidence Act Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for additional safeguards.","C. The Terrorism Act 2000","28. The 2000 Act was intended to overhaul, modernise and strengthen the law relating to terrorism in the light, inter alia, of Lord Lloyd's Inquiry.","“Terrorism” is defined, in section 1, as follows:","“(1) In this Act'terrorism'means the use or threat of action where -","(a) the action falls within subsection (2),","(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and","(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.","(2) Action falls within this subsection if it -","(a) involves serious violence against a person,","(b) involves serious damage to property,","(c) endangers a person's life, other than that of the person committing the action,","(d) creates a serious risk to the health or safety of the public or a section of the public, or","(e) is designed seriously to interfere with or seriously to disrupt an electronic system.","(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.","(4) In this section -","(a)'action'includes action outside the United Kingdom,","(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,","(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and","(d)'the government'means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.","(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”","29. Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist.","30. Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to the requirement of reasonable suspicion. These sections provide for a three stage procedure.","The first stage, under section 44, is authorisation :","“ 44 (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -","(a) the vehicle;","(b) the driver of the vehicle;","(c) a passenger in the vehicle;","(d) anything in or on the vehicle or carried by the driver or a passenger.","(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -","(a) the pedestrian;","(b) anything carried by him.","(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.","(4) An authorisation may be given -","(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;","(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;","(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;","(d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.","(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.”","By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days. The existence and contents of section 44 authorisations are not within the public domain.","31. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide.","32. The third stage, under section 45, involves the exercise of the stop and search power by a police constable:","“(1) The power conferred by an authorisation under section 44(1) or (2) -","(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and","(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.","(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.","(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.","(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.","(5) Where -","(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and","(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),","the written statement shall be provided.","(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.”","33. These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).","34. Sections 44-47 of the 2000 Act came into force on 19 February 2001. It was disclosed during the domestic proceedings in the present case that successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time.","D. The Code of Practice","35. A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document.","36. The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided:","“1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.","1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.”","Paragraph 3.5 of the Code provided:","“ There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ... ”","Certain steps were required by paragraph 3.8 to be taken before the search:","“3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:","(a) that they are being detained for the purposes of a search;","(b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;","(c) the legal search power which is being exercised; and","(d) a clear explanation of;","(i) the purpose of the search in terms of the article or articles for which there is a power to search; ...","(iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.”","Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11:","“3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained .... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances.","3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.”","A record was required to be made at the time or as soon as practicable (paragraph 4.1):","“4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.”","E. Reports by Lord Carlile of Berriew QC on the operation of the section 44 stop and search power","37. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once every 12 months and Lord Carlile of Berriew QC has been appointed as Independent Reviewer to prepare the annual report, inter alia.","38. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said:","“ No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons. ”","39. In Lord Carlile's “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”, he commented on the section 44 power as follows:","“67. Part 5 of the Act contains counter-terrorism powers available to the police to deal with operational situations. During 2003 these powers have become more controversial, particularly because of increased levels of protest arising from the war against Iraq. In particular, section 44 has been the cause of considerable anxiety and debate.","...","75. Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints, some from organisations and others from individuals. I cannot comment here on individual cases ...","...","79. In London there have been rolling 28 day authorisations for the whole of the area policed by the Metropolitan police and the City of London Police. I have seen detailed figures for the use of the powers in every part of that area. In some parts of London the section 44/45 powers have been used very little. In others, with obvious targets such as an airport or Parliament, there has been more extensive use, as one would expect. There is no part of London where the powers have not been used at all between the beginning of February 2001 and the end of August 2003, the period for which I have statistics. There are huge differences between the boroughs in this context: I take this to be evidence of specific operational decisions by the police. The nature of London means that a terrorist may well live in one borough, have associates in others, and have targets in yet others. Having said that, at present there is no other city with continuous section 44 authorisations.","...","83. Lord Justice Brooke's judgment [in the present case: see paragraph 11 above] exactly reflects my own concerns on this front. Whilst the section 44 authorisations for the Metropolitan Police area, and for parts of Gloucestershire and neighbouring areas, at the material times were justifiable and proof from judicial review, their use gave some rise for anxiety. That anxiety arises from the contents of section 45, and the difficulty faced in real-time situations by constables confronted by complex legislative decisions.","84. Pursuant to section 45, a section 44/45 search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be'for articles of a kind which could be used in connection with terrorism'. This calls at least theoretically for officers to pause for thought between (a) stop, (b) commencement of search, and (c) during search. If the search commences as defined in section 45(1)(a), but the officer realises at any given moment that in reality he is searching for non-terrorism articles, he should change gear into a non-[Terrorism Act 2000] search procedure. This is asking a lot of an officer who may have been briefed in short form at a testing scene.","...","86. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough. The use of section 44 authorisations elsewhere in the country has been relatively sparing. However, I would urge the Home Office and [the Association of Chief Police Officers] ... to produce new, short, clear and preferably nationally accepted guidelines for issue to all officers in section 44 authorised areas. All briefings should remind officers that, even where there is a section 44 authorisation, other stop and search powers may be judged more appropriate with some individuals stopped. Whilst agreeing with the Chief Constable of Gloucestershire that the powers are drawn widely, and with the Metropolitan Police that they have great potential utility to protect the public, in using the powers appropriate attention should be given to the important right to protest within the law.”","40. In his report on the operation of the 2000 Act in 2005 (May 2006), Lord Carlile commented:","“ 91. In 2003 and 2004 I received many complaints, some from organisations and others from individuals, about the operation of sections 44 and 45. These and some litigation have been taken seriously by the police. As a result, I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections 43-45.","92. The crucial thing is that police officers on the ground, exercising relatively unfamiliar powers sometimes in circumstances of some stress, should have a greater degree of knowledge of the scope and limitations of those powers. Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. An incident on the 31st March 2006 at a hospital in Staffordshire yet again highlighted this. In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations.","...","95. ... [Section 44 ] authorisations have been used extensively in 2005, unsurprisingly in the immediate aftermath of the events of the 7th and 21st July.","96. Although available in Scotland, to date section 44 powers have never been authorised by a Scottish police force. I had anticipated that they might have been deployed for the 2005 meeting of the G8 Summit in Scotland. They were not. London apart, I doubt that there is evidence that Scotland is less at risk from terrorism than other parts of the country. This perpetuates the question of why section 44 is needed in England and Wales if it is not required in Scotland. There is no other provision specific to Scots Law to explain the difference of approach. At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes.","97. My view continues as expressed a year ago - that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. This view has not been affected by the events of July 2005.","98. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search.","99. The Home Office scrutinises applications critically. It is a sound approach for them to refuse unless the circumstances are absolutely clear.","100. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough, and fairly extensive use is understandable. However, I emphasise that they should be used sparingly. Evidence of misuse, especially in an arbitrary way, will not find favour with the courts and could fuel demands for repeal. It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”","41. In his report on the operation of the 2000 Act in 2006 (June 2007), Lord Carlile observed:","“ 113. My view continues as expressed in the past two years – that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles.","114. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Its utility has been questioned publicly by senior Metropolitan Police staff with wide experience of terrorism policing.","115. The Home Office continues to scrutinise applications critically. I think that they could and should refuse more often. There are instances in which public order stop and search powers are as effective – and they are always more palatable to those stopped and searched.","116. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. However, I emphasise again that they should be used sparingly. They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”","42. In his report into the operation of the 2000 Act in 2007 (June 2008), Lord Carlile noted that the criticism of the section 44 power had increased further during the preceding year and continued:","“130. I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. ... ”","Nonetheless, he concluded that the powers remained necessary and proportionate to the continuing terrorist threat.","43. Finally, in his report on the operation of the 2000 Act in 2008 (June 2009), Lord Carlile commented:","“140. Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person's freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice; but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to'balance'the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing.","141. Useful practice guidance on stop and search in relation to terrorism was produced during 2008 by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers [ACPO]. This guidance emphasises crucial requirement, which include that –","● These powers are exceptional","● The geographical extent of section 44 authorisations must be clearly defined","● The legal test is expediency for the purposes of preventing acts of terrorism","● Community impact assessments are a vital part of the authorisation process","● The Home Secretary should be provided with a detailed justification for a section 44 authorisation","● Chief officers must expect the Home Office to apply detailed and rigorous scrutiny in considering whether to confirm authorisations","● Leaflets should be made available to the public in an area where the power is being deployed","● Officers must keep careful records","...","146. My view remains as expressed in the past four years, but reinforced: that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas, and in relation to some sites, but not others with strikingly similar risk profiles. Where other stop and search powers are adequate to meet need, there is no need to apply for or to approve the use of the section. Its primary purpose is to deal with operationally difficult places at times of stress, when there is a heightened likelihood of terrorists gaining access to a significant location. For example, I have no criticism of its careful use at the time of a major demonstration at London Heathrow Airport : terrorists might well use the opportunity of participation in such a demonstration to enter, photograph or otherwise reconnoitre, and otherwise add to their knowledge of a potential target such as Heathrow. Nor do I criticise its use at or near critical infrastructure or places of especial national significance.","147. I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers. However, a pilot project is about to start in which the section is deployed in a different way. I shall examine that project closely. The alarming numbers of usages of the power (between 8,000 and 10,000 stops per month as we entered 2009) represent bad news, and I hope for better in a year's time. The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.","148. I am sure that safely it could be used far less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever resulted in conviction of a terrorism offence. Its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing.","149. It should not be taken that the lesser usage of section 44 in places other than London means that such places are less safe, or more prone to terrorism. There are different ways of achieving the same end. The effect on community relations of the extensive use of the section is undoubtedly negative. Search on reasonable and stated suspicion, though not in itself a high test, is more understandable and reassuring to the public.","150. I emphasise that I am not in favour of repealing section 44. Subject to the views expressed above, in my judgment section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. ”","F. Ministry of Justice statistics on race and the use of the section 44 stop and search power","44. Under section 95 of the Criminal Justice Act 1991, the Secretary of State is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race. In a report published pursuant to this obligation in October 2007, “ Statistics on Race and the Criminal Justice System – 2006 ”, the Ministry of Justice recorded that:","“ A total of 44,543 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34% (Table 4.6). Searches of Asian people increased from 3,697 to 6,805 (up 84%), searches of Black people increased from 2,744 to 4,155 (up 51%). Searches of people in the Other ethnic group also increased, from 1,428 in 2004/5 to 1,937 in 2005/6 (up 36%), as did searches of White people, increasing from 24,782 in 2004/5 to 30,837 in 2005/6 (up 24%). Over half of searches took place in the Metropolitan Police area and 15% in the City of London, compared to 40% and 20% respectively in 2004/5. The large increases in comparison to the 2004/5 figures may be explained, in part, by the London bombings of 7 July 2005. As with stop and searches under s. 1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000.","In 2005/6, 25,479 searches of vehicle occupants were made under section 44 (1) (Table 4.7). Seventy-five per cent of those searched in 2005/6 were White, 11% Asian and 8% Black. There was a slight increase in the proportion of White people searched and a slight fall in the proportion of Black people searched under this provision compared to 2004/5. Forty-six arrests of vehicle occupants in connection with terrorism resulted from section 44 (1) searches, compared to 38 in the previous year. Arrests under non-terrorism legislation following the use of this provision remained constant between 2004/5 and 2005/6 at 246. Most arrests following a section 44 (1) search were in London. This most likely reflects the increased use of the powers in London.","The number of stop and searches of pedestrians under section 44(2) nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44 (2) searches compared to 24 in the previous year and five in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.”","45. In the report published the following year, in July 2008, “ Statistics on Race and the Criminal Justice System – 2006/7 ”, the Ministry of Justice recorded that:","“ A total of 37,000 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2006/7 compared with 45,000 in 2005/6 and represents a decrease of 16.5% (Table 4.6). Over a third of police force areas did not record any use of this power in 2006/7. Searches decreased for all ethnic groups but the biggest fall was for Asian people (19.1%), followed by those in the White group (15.8%), those in the Other category (15.4%), and lastly Black people (13.3%). Nine areas did increase the number searched under Section 44 and this included the [ Metropolitan Police] who registered an 11.3% rise. This contrasts with the City of London where there was a 69.2% fall. The proportion of Asian people searched under Section 44 in the Met police area (19.1%) exceeded the proportion of Black persons (12.5%).","In 2006/7 23,000 searches of vehicle occupants were made under Section 44(1) (Table 4.7). Seventy-two per cent of those searched during this period were White, a fall of three percentage points on the previous year, 10% Black (up 2 percentage points), and 13% Asian (up 2 percentage points). Fourteen arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 46 the previous year. Four of these involved Black persons and four Asians. Arrests under non-terrorism legislation following the use of this provision have remained constant between 2004/5 and 2006/7 at 246.","The number of stop and searches of pedestrians under Section 44(2) has reduced by just over 28% between 2005/6 and 2006/7 from 19,000 to 13,700. A large part of this fall can be accounted for by the decrease in the City of London from 3,149 to 425 over the two year period. The proportion of White pedestrians searched under Section 44(2) has increased since the previous year from 61% of the total to 66%. Asian people remain the highest BME group both searched (17%) and subsequently arrested in connection with terrorism (29%) .”","46. The most recent report, “ Statistics on Race and the Criminal Justice System 2007/8 ”, published in April 2009, recorded a significant increase in the use of the section 44 powers:","“ A total of 117,278 searches of people were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2007/08 compared with 37,197 in 2006/07 and represents an increase of 215% (Table 4.6). Just under a fifth (19%) of police force areas did not record any use of this power in 2007/08. Searches increased for all ethnic groups but the biggest rise was for Black people (322%), followed by those in the Asian group (277%), those in the Other category (262%), and lastly White people (185%).","The large rise in the number of stop and searches made under the Terrorism Act largely reflects increases in the use of this power by the Metropolitan police. In 2007/08 the Metropolitan police were responsible for 87% of searches made under section 44 (1) and 44 (2) of the Terrorism Act 2000, compared to 68% of those made in 2006/07. The Metropolitan police used this power on 76,496 more occasions than in the previous year, which represents an increase of 303%. This rise is directly attributable to the robust response by the Metropolitan police to the threat of terror related networks in London since the Haymarket bomb in 2007.","Tables 4.7 and 4.8 show selected police force areas, where the total number stopped and searched under s. 44 (1) & (2) of the Terrorism Act 2000 exceeded 1,000 people in 2007/08.","In 2007/08, 65,217 searches of vehicle occupants were made under Section 44 (1) (Table 4.7). Sixty-four per cent of those searched during this period were White, a fall of eight percentage points on the previous year, 13% were Black (up 3 percentage points), and 16% were Asian (up 4 percentage points). Thirty-four arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 14 the previous year. Nine of these involved Black persons and 10 Asians. Arrests under non-terrorism legislation following the use of stop and search under Section 44 (1) increased to 665 from 246 in 2006/07.","The number of stop and searches of pedestrians under Section 44 (2) has increased by 280% between 2006/07 and 2007/08 from 13,712 to 52,061 (Table 4.8). As previously mentioned, this large increase can be attributable to the Metropolitan police's robust response to the Haymarket bombs. The proportion of White pedestrians searched under Section 44 (2) has decreased since the previous year from 66% of the total to 61%. Asian people remain the highest BME group both searched (19%) and subsequently arrested in connection with terrorism (29%) .”","G. The Seventh Report of the Joint Committee on Human Rights","47. In its Report, “Demonstrating respect for rights? A human rights approach to policing protest”, published in March 2009, the Parliamentary Joint Committee on Human Rights recommended, in connection with section 44 of the 2000 Act:","“ Counter-terrorism powers","86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion. Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines which note:","Domestic legislation designed to counter terrorism or'extremism'should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion.","87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations. Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat. The following comment by David Mead reflects the views of a number of witnesses:","... there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all.","88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003. Less well-known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t-shirts.","89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists. Mr North said'terrorism is a word we ought to reserve for some kind of insurgency, or guerrilla of asymmetrical warfare'. In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that'insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism'.","90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that'there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them'.","91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published. He pointed out, however, that:","If you have a big protest near a big power station or airport, [ ... ] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires ...","92. The new guidance on stop and search noted that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to'search for articles of evidence that relate to terrorism'and that'[the section 44] power should be used sparingly'. In the light of the decision of the House of Lords in Gillan, which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria. The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states'officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic.'The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that'the requirements of the Human Rights Act 1998'should be included in the community impact assessment. Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film.","93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order of protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest .”","H. Metropolitan police proposal to curtail use of the section 44 powers in London","48. In May 2009 the Metropolitan Police published a report summarising the conclusions of their review into the use of the power under section 44 of the 2000 Act. The report stated that the “ emerging findings ” from the review supported a three-layered approach to the use of the power, namely that the power should continue to be available in the vicinity of sites across London of key symbolic or strategic importance, but that elsewhere, except where authorised by a specific directive, officers should only stop and search individuals using the power under section 43 of the 2000 Act, where they had grounds to suspect that the person might be engaged in a terrorism-related offence.","THE LAW","49. The applicants complained that their being stopped and searched by the police under sections 44 -47 of the 2000 Act gave rise to violations of their rights under Articles 5, 8, 10 and 11 of the Convention.","Article 5 provides:","“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:","(a) the lawful detention of a person after conviction by a competent court;","(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;","(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;","(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;","(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;","(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.","2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.","3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.","4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.","5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”","Article 8 provides:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","Article 10 provides:","“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.","2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”","Article 11 provides:","“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.","2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”","I. ADMISSIBILITY","50. The Government submitted that the applicants had not fully exhausted domestic remedies. First, they had not pursued the offer made by the High Court to hold a closed hearing with a special advocate to assist in determining whether or not, in the light of all the evidence relating to the risk of terrorist attack, the police and Secretary of State had been justified in issuing and confirming the authorisation order under section 44 of the 2000 Act (see paragraph 10 above). Secondly, the applicants did not appeal against the County Court's judgment rejecting their claims that, on the facts, the stop and search powers had been used against them in the vicinity of the arms fair unlawfully and for an improper purpose (see paragraph 24 above). It followed, therefore, that insofar as the applicants sought to argue before the Court that either the authorisation order in question or the stop and search measures used against them by the police had not been justified on the facts, they had failed to exhaust domestic remedies.","51. The applicants submitted that their complaint in the proceedings before the Court related to the compatibility of the terms of the statutory scheme with the Convention; it was their contention that, even if the power was used in accordance with domestic law, it breached Convention rights. They had brought this challenge in the domestic proceedings up to and including the House of Lords. While it was correct that they had not sought before the national courts to challenge the intelligence which had led to the making of the authorisation under section 44, this did not form part of their challenge in the present application either. The County Court proceedings had been stayed until the House of Lords gave judgment. Once that judgment had been delivered, the resumed County Court proceedings were limited to determining whether the section 44 powers had been exercised in accordance with domestic law. An appeal against the County Court's judgment would not, therefore, have been an effective remedy in respect of the applicants'complaints under the Convention.","52. The Court notes that the applicants'complaints in the present case are focussed on the general compatibility of the stop and search powers with the above provisions of the Convention. They do not seek to challenge whether the section 44 authorisation which applied to them was justified in view of the intelligence available to the Metropolitan Police Commissioner and the Secretary of State, nor whether the constables stopped them “for the purpose of searching for articles of a kind which could be used in connection with terrorism.” Since the applicants do not, therefore, dispute that the stop and search measures used against them complied with the terms of the 2000 Act, the remedies identified by the Government would have been neither relevant nor effective in relation to the complaints before the Court. It therefore rejects the Government's preliminary objection.","53. The Court notes, in addition, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","II. THE MERITS","A. Alleged violation of Article 5 of the Convention","1. The parties'submissions","54. The applicants contended that when the police officers stopped and searched them they were subjected to a deprivation of liberty within the meaning of Article 5 § 1. It was relevant that the police officer had the power to compel compliance with the section 44 procedure and had express powers to use reasonable force and/or to detain a person who refused to submit. The applicants had had no choice as to whether or not to comply with the police officer's order and would have been liable to criminal prosecution if they had refused. There was a total restraint on their liberty: they could not choose to turn around and walk away. Moreover, this power absolutely to restrict a person's movement was provided for the purpose of securing compliance with the search power, not merely incidental to it. Whilst the procedure might sometimes be relatively brief, that was not necessarily the case, especially given the breadth of the search power and the fact that a person could be required to remain with the police officer for as long as was reasonably necessary to permit the search to be carried out.","It was the applicants'case that, if Article 5 did apply, the measures in question were not “lawful” and “in accordance with a procedure prescribed by law” because of the breadth of the discretion afforded to the executive.","55. The Government submitted that the Court had never found the exercise of a power to stop and search to constitute a deprivation of liberty within Article 5 of the Convention. Moreover, in a number of cases the Convention organs had refused to find that restrictions on liberty far more intrusive than those at issue in the present case fell within the ambit of Article 5 (the Government referred inter alia to Raimondo v. Italy, 22 February 1994, Series A no. 281 ‑ A; Trijonis v. Lithuania, no. 2333/02, 15 December 2005; Raninen v. Finland, 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII; Gartukayev v. Russia, no. 71933/01, 13 December 2005; and also Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85, § 235; X. v. Germany, no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 131; Guenat v. Switzerland, no. 2472/94, Commission decision of 10 April 1995, DR 81-B, p. 13 ). The Government argued that when the power to stop and search was looked at against this background, the ordinary exercise by the police of such a power would plainly not in usual circumstances engage Article 5, and did not do so in the applicants'cases. There were a number of specific features which argued against the applicability of Article 5 in the particular circumstances of each applicant's case. First, the duration of the searches (20 minutes in respect of the first applicant and either five or 30 minutes in respect of the second) was clearly insufficient to amount to a deprivation of liberty in the absence of any aggravating factors. Secondly, the purpose for which the police exercised their powers was not to deprive the applicants of their liberty but to conduct a limited search for specified articles. Thirdly, the applicants were not arrested or subjected to force of any kind. Fourthly, there was no close confinement in a restricted place. Fifthly, the applicants were not placed in custody or required to attend a particular location: they were searched on the spot.","The Government further reasoned that if, contrary to their submissions, Article 5 were held to apply, the stop and search of each applicant was lawful and justified under Article 5 § 1(b).","2. The Court's assessment","56. The Court recalls that Article 5 § 1 is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§92-93, Series A no. 39; Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93; H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR 2004 ‑ IX).","57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention.","B. Alleged violation of Article 8 of the Convention","1. Whether there was an interference with the applicants'Article 8 rights","58. The Court will first consider whether the stop and search measures amounted to an interference with the applicants'right to respect for their private life","a. The parties'submissions","59. The applicants pointed out that the Court of Appeal had described section 44 as “an extremely wide power to intrude on the privacy of members of the public” and the Metropolitan Police Commissioner had conceded in the domestic court that the exercise of the powers amounted to an interference with the individual's Article 8 rights (see paragraph 14 above). They submitted that Lord Bingham had been wrong to conclude that Article 8 was not engaged because “an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach” the requisite level of seriousness. They reasoned that a person at an airport submitted to be searched because it was known that airport officials had coercive powers and because the freedom to travel by air was conditional upon agreeing to be searched. Such a person could, therefore, choose not to travel by air or leave behind any personal items which he would not wish to have examined in public. Section 44 was, however, qualitatively different. Citizens engaged in lawful business in any public place could, without any prior notice or any reasonable suspicion of wrongdoing whatsoever, be required to submit all their personal effects to a detailed coercive examination. They could not turn away and leave, as they could if they were, for example, hesitant to enter a public building with a search at the entrance. They would have no idea in advance that they were present in an area where active section 44 powers were in force. The Court's case-law, for example Peck v. the United Kingdom, no. 44647/98, §§ 57-63, ECHR 2003-I, made it clear that an individual did not automatically forfeit his privacy rights merely by taking his personal items into a public place such as a street. Moreover, the common thread running through Article 8 was personal autonomy. That concept was substantially undermined by the police power to require submission to a coercive search in a public place, particularly since the lack of prior notice entailed that everyone had to assume that, wherever they went in public, they might be required to submit to a search.","60. The Government submitted that the searches of the applicants did not amount to an interference with their right to respect for their private lives. Not every act that might impinge upon a person's autonomy or physical integrity would entail such an interference ( see Costello-Roberts v. the United Kingdom, § 36, judgment of 25 March 1993, Series A no. 247-C ). Whether or not the right to private life was engaged by a particular measure impinging on a person's autonomy or physical integrity would depend both upon the seriousness of that measure and upon the degree to which the person concerned had in the circumstances acted in a sphere where public life or the interests of other people were necessarily engaged. While the Government accepted that in certain circumstances a particularly intrusive search might amount to an interference with Article 8, they submitted that a normal, respectful search under section 45 of the 2000 Act would not and that there was no interference in the applicants'cases. The applicants were not searched at home, or even in a police station, but on the spot. In accordance with the Code (see paragraph 36 above), since neither applicant was asked to remove any articles of clothing, only an examination of outer garments and bags was conducted, of the type to which passengers regularly submit at airports. The applicants were not asked for personal details beyond their names, addresses and places of birth. In both cases, the intrusion was of relatively brief duration. Moreover, the applicants had brought themselves into contact with the public sphere through their voluntary engagement with a public demonstration. The fact that in other circumstances a more intrusive search might be conducted did not enable the present applicants to complain of any interference with their rights under Article 8: the Court did not examine the possible operation of legislation in abstracto.","b. The Court's assessment","61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. In this connection, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor ( see P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX and Peck, cited above, § § 57-63 ). In Foka, cited above, § 85, where the applicant was subjected to a forced search of her bag by border guards, the Court held that “any search effected by the authorities on a person interferes with his or her private life.”","62. Turning to the facts of the present case, the Court notes that sections 44-47 of the 2000 Act permit a uniformed police officer to stop any person within the geographical area covered by the authorisation and physically search the person and anything carried by him or her. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves. Paragraph 3.5 of the related Code of Practice further clarifies that the police officer may place his or her hand inside the searched person's pockets, feel around and inside his or her collars, socks and shoes and search the person's hair (see paragraph 36 above). The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both (see paragraph 33 above). In the domestic courts, although the House of Lords doubted whether Article 8 was applicable, since the intrusion did not reach a sufficient level of seriousness, the Metropolitan Police Commissioner conceded that the exercise of the power under section 44 amounted to an interference with the individual's Article 8 rights and the Court of Appeal described it as “an extremely wide power to intrude on the privacy of the members of the public”. (see paragraphs 14 and 19 above).","63. The Government argue that in certain circumstances a particularly intrusive search may amount to an interference with an individual's Article 8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court's view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.","64. The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual's Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.","65. Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act. For the reasons above, the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008- ... ).","2. Whether the interference was “in accordance with the law”","a. The parties'submissions","i. The applicants","66. The applicants submitted that the object of the legal certainty requirement running through the Convention was to give protection against arbitrary interference by the public authorities. It followed that “law” must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power might be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions. The executive could not be granted an unfettered discretion; moreover, the scope of any discretion conferred on the executive had to be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power might be exercised. In addition, there had to be legal safeguards against abuse.","67. The applicants submitted that the requirement of accessibility was not met in their case. Whilst sections 44-47 of the 2000 Act were adequately accessible to the public, the authorisation and confirmation were not. Thus, a member of the public would know that a section 44 power to stop and search could be conferred on the police, but would not know at any given time or in any given place whether it had been so conferred. He could not know whether, if he went to any particular location, he would be liable to be stopped and searched and, if he were stopped and searched, he could not know whether the police officer was authorised to carry out the procedure. When, unknown to a member of the public, the power had been conferred on a constable, the constable's discretion to stop and search was broad and ill-defined, requiring no grounds of suspicion and constrained solely by the condition that it could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism.","68. They contended that although the 2000 Act and Code A (see paragraphs 28-36 above) informed the public of the availability and scope of the section 44 powers, if duly authorised, they did not require the fact or details of any authorisation to be publicised in any way, even retrospectively. In the applicants'view, the efficacy of the section 44 power would not be weakened by advance notification of its availability. Prior notice would reinforce the deterrent effect of the measure. Furthermore, the availability and scope of other stop and search powers, for example, at ports and borders, were publicised without undermining their efficacy. During the domestic proceedings the Government had consented to the retrospective publication of the authorisations relevant to the case, which covered the whole of the Metropolitan Police District. It could not be correct that the purpose of using the section 44 power had been “wholly undermined” because the extent of the authorisation was now known.","69. The applicants further alleged that there were insufficient safeguards against misuse of the power to stop and search. The Government had appointed an Independent Reviewer into the operation of the 2000 Act (see paragraphs 37-43 above). However, concerning the “extensive” deployment nationwide of section 44 powers, for example, Lord Carlile had decided that it would not be in the public interest to provide details of the reasons and events.","70. No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants'own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism.","ii. The Government","71. The Government submitted that the requirement of lawfulness under the Convention was met in the present case by a combination of the legislative provisions; the information given to individuals following a search under section 44; the precise instructions in the Code on how search powers were to be exercised; and the availability of court proceedings to challenge the use of those powers by the police in individual cases. Sections 44-45 of the 2000 Act were clear as to their effect. They gave notice to citizens that they might be required to submit to a stop and search and provided safeguards against abuse, well in excess of provisions of national law that the Court or Commission in cases had held to be sufficiently foreseeable in the national security context (as in, for example, Brind v. the United Kingdom (dec. ), no. 18714/91, 9 May 1994; Al-Nashif v. Bulgaria, no. 50963/99, §§ 117-129, 20 June 2002; Esbester v. the United Kingdom (dec. ), no. 18601/91, 2 April 1993).","72. In this regard, it was relevant that the statutory framework in sections 44-46 of the 2000 Act carefully defined and restricted the purposes for which the search powers could be used; who could issue authorisations; under what circumstances and for how long authorisations could be issued; who could confirm those authorisations; in what circumstances and for how long authorisations could be given and in what circumstances the search powers themselves could be exercised. In addition the Code, which was a public document, set out very detailed instructions on the exercise of the stop and search power. It required an officer conducting a search to explain to the individual who was stopped the precise purpose of the search, the nature of the legal power exercised and the fact and nature of any authorisation given for the search. The authorisation could be challenged by way of judicial review proceedings on the ground that it exceeded the enabling power in section 44 of the 2000 Act. If the search were claimed to have been conducted for improper purposes, or contrary to the provisions of the 2000 Act or the Code, it could be challenged by way of judicial review proceedings or in a County Court action for damages. Further protection against any arbitrary interference with individuals'rights was provided by the oversight of Lord Carlile, who was appointed as Independent Reviewer to monitor the exercise of the powers under the 2000 Act.","73. The Government rejected the applicants'contention that authorisations should be published in advance. First, and crucially, it would wholly undermine the purpose for which authorisations were given. Publishing details of authorisations would by implication reveal those places where such measures to protect against terrorist attack had not been put in place, identifying them as soft targets for terrorists. It would undermine the ability of the police to use stop and search powers effectively, without giving advance warning to terrorists, where they suspected terrorists to be operating. It would also assist terrorists in assessing the State's effectiveness in penetrating their networks or understanding their activities.","74. The Government maintained that there were adequate safeguards against the misuse of the power. The combination of oversight by the Independent Reviewer and scrutiny by the national courts fully met any assertion that the section 44-46 powers could be used arbitrarily. For example, in the applicants'case, the County Court was able to – and did – examine whether the officers used their powers under section 45 for their proper purpose, namely to look for terrorist articles. The officers were not free to act arbitrarily. The applicants had a right to cross-examine them and the court was free to form its own view about their evidence. The fact that, in the event, the County Court accepted the officers'evidence did not in any way indicate that its oversight was inadequate.","75. In the Government's view, the applicants'complaints in this connection were, in essence, a collateral attack on the absence of any “reasonable suspicion” requirement in sections 44-46 of the 2000 Act. But there were good reasons why officers should not have to act upon reasonable suspicion: as Lord Bingham pointed out in the House of Lords (see paragraph 21 above), this was to ensure that a constable was not deterred from stopping and searching a person whom he suspected as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It reflected the fact that intelligence rarely provided complete information about when and where a terrorist attack might occur and thus that vital decisions had to be taken on the basis of partial information.","b. The Court's assessment","76. The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008- ... ).","77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96).","78. It is not disputed that the power in question in the present case has a basis in domestic law, namely sections 44-47 of the 2000 Act (see paragraphs 28-34 above). In addition, the Code of Practice, which is a public document, sets out details of the manner in which the constable must carry out the search (see paragraphs 35-36 above).","79. The applicants, however, complain that these provisions confer an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice. The House of Lords considered that this discretion was subject to effective control, and Lord Bingham identified eleven constraints on abuse of power (see paragraph 16 above). However, in the Court's view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.","80. The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power.","81. The authorisation must be limited in time to 28 days, but it is renewable. It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary. However, many police force areas in the United Kingdom cover extensive regions with a concentrated populations. The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London. The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a “rolling programme” since the powers were first granted (see paragraph 34 above).","82. An additional safeguard is provided by the Independent Reviewer (see paragraph 37 above). However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that “section 44 could be used less and I expect it to be used less” (see paragraphs 38-43 above).","83. Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above).","84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.","85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.","86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.","87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.","C. Alleged violations of Articles 10 and 11 of the Convention","88. The applicants further alleged that their rights to freedom of expression under Article 10, and freedom of assembly under Article 11, of the Convention were violated. It was argued that a stop and search which had the effect of delaying, even temporarily, contemporaneous reporting or filming of a protest amounted to an interference with Article 10 rights. It was further argued that the legislation itself, with its inadequate safeguards, might well have an intimidatory and chilling effect on the exercise of those rights in the form of peaceful protest and that this was precisely the position in the case of the first applicant.","89. The Government argued that neither the existence of the powers to stop and search nor the exercise of those powers in the particular circumstances of the applicants'case constituted an interference with their Article 10 or 11 rights.","90. In the light of its above conclusion that there has been a violation of Article 8, the Court does not consider it necessary to examine the applicants'remaining complaints under the Convention.","III. APPLICATION OF ARTICLE 41 OF THE CONVENTION","91. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","92. The applicants submitted that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of GBP 500 each in respect of non-pecuniary damage.","93. The Government submitted that, in view of the short duration of the stop and search, no monetary compensation should be awarded.","94. The Court agrees with the Government that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.","B. Costs and expenses","95. The applicants also claimed GBP 40, 652.06, including value-added tax (VAT), for the costs and expenses incurred before the Court. These included GBP 8,178.92 costs of Liberty (charging at GBP 210 per hour for principal lawyers and GBP 111 per hour for a trainee solicitor) together with the fees of three counsel totalling GBP 32,473.14 including VAT.","96. The Government submitted that the hourly rates charged by the applicants'representatives and the number of hours claimed for were excessive, particularly since the issues had already been litigated in detail before the domestic courts.","97. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and awards made in comparable cases against the United Kingdom (see, for example, S. and Marper, cited above), the Court considers it reasonable to award the sum of EUR 35,000 covering costs for the proceedings before the Court, less EUR 1,1 50 already received by way of legal aid.","C. Default interest","98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC LAW AND PRACTICE\",\n \"A. The introduction of the police power to stop and search without reasonable suspicion\",\n \"25. Police officers have the power to stop and search individuals under a range of legislation. For example, section 1 of the Police and Criminal Evidence Act 1984 allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items. Section 60 of the Criminal Justice and Public Order Act 1994 allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons.\",\n \"26. The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign between 1992 and 1994 in and around London. Section 81 of the Criminal Justice and Public Order Act 1994 inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) in similar terms to section 44 of the 2000 Act (see paragraph 30 below), but without any requirement that the Secretary of State confirm the authorisation. The Prevention of Terrorism (Additional Powers) Act 1996 created an additional, separate power to stop and search pedestrians, under section 13B of the 1989 Act. The 1996 Act also established for the first time the confirmation procedure involving the Secretary of State.\",\n \"B. Consideration of the need to retain the power to stop and search without reasonable suspicion\",\n \"27. In 1995 the Government asked Lord Lloyd of Berwick, a House of Lords judge, to undertake an Inquiry into the need for specific counter-terrorism legislation in the United Kingdom following the decrease in terrorism connected to Northern Ireland. The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections 13A and 13B of the 1989 Act. In his Report (Cm 3420, § 10, October 1996), Lord Lloyd noted that between February and August 1996 the police in London had carried out searches of 9,700 drivers and passengers and 270 pedestrians under sections 13A and 13B of the 1989 Act. When considering whether similar powers should be retained in any permanent counter-terrorism legislation that might be enacted, he observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented :\",\n \"“ As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.”\",\n \"In the end Lord Lloyd recommended that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State's confirmation should be required in relation to each provision. Since the Police and Criminal Evidence Act Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for additional safeguards.\",\n \"C. The Terrorism Act 2000\",\n \"28. The 2000 Act was intended to overhaul, modernise and strengthen the law relating to terrorism in the light, inter alia, of Lord Lloyd's Inquiry.\",\n \"“Terrorism” is defined, in section 1, as follows:\",\n \"“(1) In this Act'terrorism'means the use or threat of action where -\",\n \"(a) the action falls within subsection (2),\",\n \"(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and\",\n \"(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.\",\n \"(2) Action falls within this subsection if it -\",\n \"(a) involves serious violence against a person,\",\n \"(b) involves serious damage to property,\",\n \"(c) endangers a person's life, other than that of the person committing the action,\",\n \"(d) creates a serious risk to the health or safety of the public or a section of the public, or\",\n \"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.\",\n \"(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.\",\n \"(4) In this section -\",\n \"(a)'action'includes action outside the United Kingdom,\",\n \"(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,\",\n \"(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and\",\n \"(d)'the government'means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.\",\n \"(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”\",\n \"29. Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist.\",\n \"30. Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to the requirement of reasonable suspicion. These sections provide for a three stage procedure.\",\n \"The first stage, under section 44, is authorisation :\",\n \"“ 44 (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -\",\n \"(a) the vehicle;\",\n \"(b) the driver of the vehicle;\",\n \"(c) a passenger in the vehicle;\",\n \"(d) anything in or on the vehicle or carried by the driver or a passenger.\",\n \"(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -\",\n \"(a) the pedestrian;\",\n \"(b) anything carried by him.\",\n \"(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.\",\n \"(4) An authorisation may be given -\",\n \"(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;\",\n \"(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;\",\n \"(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;\",\n \"(d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.\",\n \"(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.”\",\n \"By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days. The existence and contents of section 44 authorisations are not within the public domain.\",\n \"31. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide.\",\n \"32. The third stage, under section 45, involves the exercise of the stop and search power by a police constable:\",\n \"“(1) The power conferred by an authorisation under section 44(1) or (2) -\",\n \"(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and\",\n \"(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.\",\n \"(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.\",\n \"(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.\",\n \"(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.\",\n \"(5) Where -\",\n \"(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and\",\n \"(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),\",\n \"the written statement shall be provided.\",\n \"(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.”\",\n \"33. These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).\",\n \"34. Sections 44-47 of the 2000 Act came into force on 19 February 2001. It was disclosed during the domestic proceedings in the present case that successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time.\",\n \"D. The Code of Practice\",\n \"35. A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document.\",\n \"36. The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided:\",\n \"“1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.\",\n \"1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.”\",\n \"Paragraph 3.5 of the Code provided:\",\n \"“ There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ... ”\",\n \"Certain steps were required by paragraph 3.8 to be taken before the search:\",\n \"“3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:\",\n \"(a) that they are being detained for the purposes of a search;\",\n \"(b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;\",\n \"(c) the legal search power which is being exercised; and\",\n \"(d) a clear explanation of;\",\n \"(i) the purpose of the search in terms of the article or articles for which there is a power to search; ...\",\n \"(iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.”\",\n \"Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11:\",\n \"“3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained .... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances.\",\n \"3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.”\",\n \"A record was required to be made at the time or as soon as practicable (paragraph 4.1):\",\n \"“4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.”\",\n \"E. Reports by Lord Carlile of Berriew QC on the operation of the section 44 stop and search power\",\n \"37. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once every 12 months and Lord Carlile of Berriew QC has been appointed as Independent Reviewer to prepare the annual report, inter alia.\",\n \"38. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said:\",\n \"“ No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons. ”\",\n \"39. In Lord Carlile's “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”, he commented on the section 44 power as follows:\",\n \"“67. Part 5 of the Act contains counter-terrorism powers available to the police to deal with operational situations. During 2003 these powers have become more controversial, particularly because of increased levels of protest arising from the war against Iraq. In particular, section 44 has been the cause of considerable anxiety and debate.\",\n \"...\",\n \"75. Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints, some from organisations and others from individuals. I cannot comment here on individual cases ...\",\n \"...\",\n \"79. In London there have been rolling 28 day authorisations for the whole of the area policed by the Metropolitan police and the City of London Police. I have seen detailed figures for the use of the powers in every part of that area. In some parts of London the section 44/45 powers have been used very little. In others, with obvious targets such as an airport or Parliament, there has been more extensive use, as one would expect. There is no part of London where the powers have not been used at all between the beginning of February 2001 and the end of August 2003, the period for which I have statistics. There are huge differences between the boroughs in this context: I take this to be evidence of specific operational decisions by the police. The nature of London means that a terrorist may well live in one borough, have associates in others, and have targets in yet others. Having said that, at present there is no other city with continuous section 44 authorisations.\",\n \"...\",\n \"83. Lord Justice Brooke's judgment [in the present case: see paragraph 11 above] exactly reflects my own concerns on this front. Whilst the section 44 authorisations for the Metropolitan Police area, and for parts of Gloucestershire and neighbouring areas, at the material times were justifiable and proof from judicial review, their use gave some rise for anxiety. That anxiety arises from the contents of section 45, and the difficulty faced in real-time situations by constables confronted by complex legislative decisions.\",\n \"84. Pursuant to section 45, a section 44/45 search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be'for articles of a kind which could be used in connection with terrorism'. This calls at least theoretically for officers to pause for thought between (a) stop, (b) commencement of search, and (c) during search. If the search commences as defined in section 45(1)(a), but the officer realises at any given moment that in reality he is searching for non-terrorism articles, he should change gear into a non-[Terrorism Act 2000] search procedure. This is asking a lot of an officer who may have been briefed in short form at a testing scene.\",\n \"...\",\n \"86. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough. The use of section 44 authorisations elsewhere in the country has been relatively sparing. However, I would urge the Home Office and [the Association of Chief Police Officers] ... to produce new, short, clear and preferably nationally accepted guidelines for issue to all officers in section 44 authorised areas. All briefings should remind officers that, even where there is a section 44 authorisation, other stop and search powers may be judged more appropriate with some individuals stopped. Whilst agreeing with the Chief Constable of Gloucestershire that the powers are drawn widely, and with the Metropolitan Police that they have great potential utility to protect the public, in using the powers appropriate attention should be given to the important right to protest within the law.”\",\n \"40. In his report on the operation of the 2000 Act in 2005 (May 2006), Lord Carlile commented:\",\n \"“ 91. In 2003 and 2004 I received many complaints, some from organisations and others from individuals, about the operation of sections 44 and 45. These and some litigation have been taken seriously by the police. As a result, I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections 43-45.\",\n \"92. The crucial thing is that police officers on the ground, exercising relatively unfamiliar powers sometimes in circumstances of some stress, should have a greater degree of knowledge of the scope and limitations of those powers. Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. An incident on the 31st March 2006 at a hospital in Staffordshire yet again highlighted this. In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations.\",\n \"...\",\n \"95. ... [Section 44 ] authorisations have been used extensively in 2005, unsurprisingly in the immediate aftermath of the events of the 7th and 21st July.\",\n \"96. Although available in Scotland, to date section 44 powers have never been authorised by a Scottish police force. I had anticipated that they might have been deployed for the 2005 meeting of the G8 Summit in Scotland. They were not. London apart, I doubt that there is evidence that Scotland is less at risk from terrorism than other parts of the country. This perpetuates the question of why section 44 is needed in England and Wales if it is not required in Scotland. There is no other provision specific to Scots Law to explain the difference of approach. At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes.\",\n \"97. My view continues as expressed a year ago - that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. This view has not been affected by the events of July 2005.\",\n \"98. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search.\",\n \"99. The Home Office scrutinises applications critically. It is a sound approach for them to refuse unless the circumstances are absolutely clear.\",\n \"100. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough, and fairly extensive use is understandable. However, I emphasise that they should be used sparingly. Evidence of misuse, especially in an arbitrary way, will not find favour with the courts and could fuel demands for repeal. It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”\",\n \"41. In his report on the operation of the 2000 Act in 2006 (June 2007), Lord Carlile observed:\",\n \"“ 113. My view continues as expressed in the past two years – that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles.\",\n \"114. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Its utility has been questioned publicly by senior Metropolitan Police staff with wide experience of terrorism policing.\",\n \"115. The Home Office continues to scrutinise applications critically. I think that they could and should refuse more often. There are instances in which public order stop and search powers are as effective – and they are always more palatable to those stopped and searched.\",\n \"116. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. However, I emphasise again that they should be used sparingly. They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”\",\n \"42. In his report into the operation of the 2000 Act in 2007 (June 2008), Lord Carlile noted that the criticism of the section 44 power had increased further during the preceding year and continued:\",\n \"“130. I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. ... ”\",\n \"Nonetheless, he concluded that the powers remained necessary and proportionate to the continuing terrorist threat.\",\n \"43. Finally, in his report on the operation of the 2000 Act in 2008 (June 2009), Lord Carlile commented:\",\n \"“140. Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person's freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice; but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to'balance'the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing.\",\n \"141. Useful practice guidance on stop and search in relation to terrorism was produced during 2008 by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers [ACPO]. This guidance emphasises crucial requirement, which include that –\",\n \"● These powers are exceptional\",\n \"● The geographical extent of section 44 authorisations must be clearly defined\",\n \"● The legal test is expediency for the purposes of preventing acts of terrorism\",\n \"● Community impact assessments are a vital part of the authorisation process\",\n \"● The Home Secretary should be provided with a detailed justification for a section 44 authorisation\",\n \"● Chief officers must expect the Home Office to apply detailed and rigorous scrutiny in considering whether to confirm authorisations\",\n \"● Leaflets should be made available to the public in an area where the power is being deployed\",\n \"● Officers must keep careful records\",\n \"...\",\n \"146. My view remains as expressed in the past four years, but reinforced: that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas, and in relation to some sites, but not others with strikingly similar risk profiles. Where other stop and search powers are adequate to meet need, there is no need to apply for or to approve the use of the section. Its primary purpose is to deal with operationally difficult places at times of stress, when there is a heightened likelihood of terrorists gaining access to a significant location. For example, I have no criticism of its careful use at the time of a major demonstration at London Heathrow Airport : terrorists might well use the opportunity of participation in such a demonstration to enter, photograph or otherwise reconnoitre, and otherwise add to their knowledge of a potential target such as Heathrow. Nor do I criticise its use at or near critical infrastructure or places of especial national significance.\",\n \"147. I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers. However, a pilot project is about to start in which the section is deployed in a different way. I shall examine that project closely. The alarming numbers of usages of the power (between 8,000 and 10,000 stops per month as we entered 2009) represent bad news, and I hope for better in a year's time. The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.\",\n \"148. I am sure that safely it could be used far less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever resulted in conviction of a terrorism offence. Its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing.\",\n \"149. It should not be taken that the lesser usage of section 44 in places other than London means that such places are less safe, or more prone to terrorism. There are different ways of achieving the same end. The effect on community relations of the extensive use of the section is undoubtedly negative. Search on reasonable and stated suspicion, though not in itself a high test, is more understandable and reassuring to the public.\",\n \"150. I emphasise that I am not in favour of repealing section 44. Subject to the views expressed above, in my judgment section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. ”\",\n \"F. Ministry of Justice statistics on race and the use of the section 44 stop and search power\",\n \"44. Under section 95 of the Criminal Justice Act 1991, the Secretary of State is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race. In a report published pursuant to this obligation in October 2007, “ Statistics on Race and the Criminal Justice System – 2006 ”, the Ministry of Justice recorded that:\",\n \"“ A total of 44,543 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34% (Table 4.6). Searches of Asian people increased from 3,697 to 6,805 (up 84%), searches of Black people increased from 2,744 to 4,155 (up 51%). Searches of people in the Other ethnic group also increased, from 1,428 in 2004/5 to 1,937 in 2005/6 (up 36%), as did searches of White people, increasing from 24,782 in 2004/5 to 30,837 in 2005/6 (up 24%). Over half of searches took place in the Metropolitan Police area and 15% in the City of London, compared to 40% and 20% respectively in 2004/5. The large increases in comparison to the 2004/5 figures may be explained, in part, by the London bombings of 7 July 2005. As with stop and searches under s. 1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000.\",\n \"In 2005/6, 25,479 searches of vehicle occupants were made under section 44 (1) (Table 4.7). Seventy-five per cent of those searched in 2005/6 were White, 11% Asian and 8% Black. There was a slight increase in the proportion of White people searched and a slight fall in the proportion of Black people searched under this provision compared to 2004/5. Forty-six arrests of vehicle occupants in connection with terrorism resulted from section 44 (1) searches, compared to 38 in the previous year. Arrests under non-terrorism legislation following the use of this provision remained constant between 2004/5 and 2005/6 at 246. Most arrests following a section 44 (1) search were in London. This most likely reflects the increased use of the powers in London.\",\n \"The number of stop and searches of pedestrians under section 44(2) nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44 (2) searches compared to 24 in the previous year and five in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.”\",\n \"45. In the report published the following year, in July 2008, “ Statistics on Race and the Criminal Justice System – 2006/7 ”, the Ministry of Justice recorded that:\",\n \"“ A total of 37,000 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2006/7 compared with 45,000 in 2005/6 and represents a decrease of 16.5% (Table 4.6). Over a third of police force areas did not record any use of this power in 2006/7. Searches decreased for all ethnic groups but the biggest fall was for Asian people (19.1%), followed by those in the White group (15.8%), those in the Other category (15.4%), and lastly Black people (13.3%). Nine areas did increase the number searched under Section 44 and this included the [ Metropolitan Police] who registered an 11.3% rise. This contrasts with the City of London where there was a 69.2% fall. The proportion of Asian people searched under Section 44 in the Met police area (19.1%) exceeded the proportion of Black persons (12.5%).\",\n \"In 2006/7 23,000 searches of vehicle occupants were made under Section 44(1) (Table 4.7). Seventy-two per cent of those searched during this period were White, a fall of three percentage points on the previous year, 10% Black (up 2 percentage points), and 13% Asian (up 2 percentage points). Fourteen arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 46 the previous year. Four of these involved Black persons and four Asians. Arrests under non-terrorism legislation following the use of this provision have remained constant between 2004/5 and 2006/7 at 246.\",\n \"The number of stop and searches of pedestrians under Section 44(2) has reduced by just over 28% between 2005/6 and 2006/7 from 19,000 to 13,700. A large part of this fall can be accounted for by the decrease in the City of London from 3,149 to 425 over the two year period. The proportion of White pedestrians searched under Section 44(2) has increased since the previous year from 61% of the total to 66%. Asian people remain the highest BME group both searched (17%) and subsequently arrested in connection with terrorism (29%) .”\",\n \"46. The most recent report, “ Statistics on Race and the Criminal Justice System 2007/8 ”, published in April 2009, recorded a significant increase in the use of the section 44 powers:\",\n \"“ A total of 117,278 searches of people were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2007/08 compared with 37,197 in 2006/07 and represents an increase of 215% (Table 4.6). Just under a fifth (19%) of police force areas did not record any use of this power in 2007/08. Searches increased for all ethnic groups but the biggest rise was for Black people (322%), followed by those in the Asian group (277%), those in the Other category (262%), and lastly White people (185%).\",\n \"The large rise in the number of stop and searches made under the Terrorism Act largely reflects increases in the use of this power by the Metropolitan police. In 2007/08 the Metropolitan police were responsible for 87% of searches made under section 44 (1) and 44 (2) of the Terrorism Act 2000, compared to 68% of those made in 2006/07. The Metropolitan police used this power on 76,496 more occasions than in the previous year, which represents an increase of 303%. This rise is directly attributable to the robust response by the Metropolitan police to the threat of terror related networks in London since the Haymarket bomb in 2007.\",\n \"Tables 4.7 and 4.8 show selected police force areas, where the total number stopped and searched under s. 44 (1) & (2) of the Terrorism Act 2000 exceeded 1,000 people in 2007/08.\",\n \"In 2007/08, 65,217 searches of vehicle occupants were made under Section 44 (1) (Table 4.7). Sixty-four per cent of those searched during this period were White, a fall of eight percentage points on the previous year, 13% were Black (up 3 percentage points), and 16% were Asian (up 4 percentage points). Thirty-four arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 14 the previous year. Nine of these involved Black persons and 10 Asians. Arrests under non-terrorism legislation following the use of stop and search under Section 44 (1) increased to 665 from 246 in 2006/07.\",\n \"The number of stop and searches of pedestrians under Section 44 (2) has increased by 280% between 2006/07 and 2007/08 from 13,712 to 52,061 (Table 4.8). As previously mentioned, this large increase can be attributable to the Metropolitan police's robust response to the Haymarket bombs. The proportion of White pedestrians searched under Section 44 (2) has decreased since the previous year from 66% of the total to 61%. Asian people remain the highest BME group both searched (19%) and subsequently arrested in connection with terrorism (29%) .”\",\n \"G. The Seventh Report of the Joint Committee on Human Rights\",\n \"47. In its Report, “Demonstrating respect for rights? A human rights approach to policing protest”, published in March 2009, the Parliamentary Joint Committee on Human Rights recommended, in connection with section 44 of the 2000 Act:\",\n \"“ Counter-terrorism powers\",\n \"86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion. Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines which note:\",\n \"Domestic legislation designed to counter terrorism or'extremism'should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion.\",\n \"87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations. Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat. The following comment by David Mead reflects the views of a number of witnesses:\",\n \"... there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all.\",\n \"88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003. Less well-known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t-shirts.\",\n \"89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists. Mr North said'terrorism is a word we ought to reserve for some kind of insurgency, or guerrilla of asymmetrical warfare'. In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that'insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism'.\",\n \"90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that'there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them'.\",\n \"91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published. He pointed out, however, that:\",\n \"If you have a big protest near a big power station or airport, [ ... ] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires ...\",\n \"92. The new guidance on stop and search noted that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to'search for articles of evidence that relate to terrorism'and that'[the section 44] power should be used sparingly'. In the light of the decision of the House of Lords in Gillan, which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria. The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states'officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic.'The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that'the requirements of the Human Rights Act 1998'should be included in the community impact assessment. Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film.\",\n \"93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order of protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest .”\",\n \"H. Metropolitan police proposal to curtail use of the section 44 powers in London\",\n \"48. In May 2009 the Metropolitan Police published a report summarising the conclusions of their review into the use of the power under section 44 of the 2000 Act. The report stated that the “ emerging findings ” from the review supported a three-layered approach to the use of the power, namely that the power should continue to be available in the vicinity of sites across London of key symbolic or strategic importance, but that elsewhere, except where authorised by a specific directive, officers should only stop and search individuals using the power under section 43 of the 2000 Act, where they had grounds to suspect that the person might be engaged in a terrorism-related offence.\",\n \"THE LAW\",\n \"49. The applicants complained that their being stopped and searched by the police under sections 44 -47 of the 2000 Act gave rise to violations of their rights under Articles 5, 8, 10 and 11 of the Convention.\",\n \"Article 5 provides:\",\n \"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\",\n \"(a) the lawful detention of a person after conviction by a competent court;\",\n \"(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;\",\n \"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\",\n \"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;\",\n \"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;\",\n \"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.\",\n \"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\",\n \"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\",\n \"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\",\n \"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\",\n \"Article 8 provides:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"Article 10 provides:\",\n \"“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.\",\n \"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\",\n \"Article 11 provides:\",\n \"“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.\",\n \"2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”\",\n \"I. ADMISSIBILITY\",\n \"50. The Government submitted that the applicants had not fully exhausted domestic remedies. First, they had not pursued the offer made by the High Court to hold a closed hearing with a special advocate to assist in determining whether or not, in the light of all the evidence relating to the risk of terrorist attack, the police and Secretary of State had been justified in issuing and confirming the authorisation order under section 44 of the 2000 Act (see paragraph 10 above). Secondly, the applicants did not appeal against the County Court's judgment rejecting their claims that, on the facts, the stop and search powers had been used against them in the vicinity of the arms fair unlawfully and for an improper purpose (see paragraph 24 above). It followed, therefore, that insofar as the applicants sought to argue before the Court that either the authorisation order in question or the stop and search measures used against them by the police had not been justified on the facts, they had failed to exhaust domestic remedies.\",\n \"51. The applicants submitted that their complaint in the proceedings before the Court related to the compatibility of the terms of the statutory scheme with the Convention; it was their contention that, even if the power was used in accordance with domestic law, it breached Convention rights. They had brought this challenge in the domestic proceedings up to and including the House of Lords. While it was correct that they had not sought before the national courts to challenge the intelligence which had led to the making of the authorisation under section 44, this did not form part of their challenge in the present application either. The County Court proceedings had been stayed until the House of Lords gave judgment. Once that judgment had been delivered, the resumed County Court proceedings were limited to determining whether the section 44 powers had been exercised in accordance with domestic law. An appeal against the County Court's judgment would not, therefore, have been an effective remedy in respect of the applicants'complaints under the Convention.\",\n \"52. The Court notes that the applicants'complaints in the present case are focussed on the general compatibility of the stop and search powers with the above provisions of the Convention. They do not seek to challenge whether the section 44 authorisation which applied to them was justified in view of the intelligence available to the Metropolitan Police Commissioner and the Secretary of State, nor whether the constables stopped them “for the purpose of searching for articles of a kind which could be used in connection with terrorism.” Since the applicants do not, therefore, dispute that the stop and search measures used against them complied with the terms of the 2000 Act, the remedies identified by the Government would have been neither relevant nor effective in relation to the complaints before the Court. It therefore rejects the Government's preliminary objection.\",\n \"53. The Court notes, in addition, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"II. THE MERITS\",\n \"A. Alleged violation of Article 5 of the Convention\",\n \"1. The parties'submissions\",\n \"54. The applicants contended that when the police officers stopped and searched them they were subjected to a deprivation of liberty within the meaning of Article 5 § 1. It was relevant that the police officer had the power to compel compliance with the section 44 procedure and had express powers to use reasonable force and/or to detain a person who refused to submit. The applicants had had no choice as to whether or not to comply with the police officer's order and would have been liable to criminal prosecution if they had refused. There was a total restraint on their liberty: they could not choose to turn around and walk away. Moreover, this power absolutely to restrict a person's movement was provided for the purpose of securing compliance with the search power, not merely incidental to it. Whilst the procedure might sometimes be relatively brief, that was not necessarily the case, especially given the breadth of the search power and the fact that a person could be required to remain with the police officer for as long as was reasonably necessary to permit the search to be carried out.\",\n \"It was the applicants'case that, if Article 5 did apply, the measures in question were not “lawful” and “in accordance with a procedure prescribed by law” because of the breadth of the discretion afforded to the executive.\",\n \"55. The Government submitted that the Court had never found the exercise of a power to stop and search to constitute a deprivation of liberty within Article 5 of the Convention. Moreover, in a number of cases the Convention organs had refused to find that restrictions on liberty far more intrusive than those at issue in the present case fell within the ambit of Article 5 (the Government referred inter alia to Raimondo v. Italy, 22 February 1994, Series A no. 281 ‑ A; Trijonis v. Lithuania, no. 2333/02, 15 December 2005; Raninen v. Finland, 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII; Gartukayev v. Russia, no. 71933/01, 13 December 2005; and also Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85, § 235; X. v. Germany, no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 131; Guenat v. Switzerland, no. 2472/94, Commission decision of 10 April 1995, DR 81-B, p. 13 ). The Government argued that when the power to stop and search was looked at against this background, the ordinary exercise by the police of such a power would plainly not in usual circumstances engage Article 5, and did not do so in the applicants'cases. There were a number of specific features which argued against the applicability of Article 5 in the particular circumstances of each applicant's case. First, the duration of the searches (20 minutes in respect of the first applicant and either five or 30 minutes in respect of the second) was clearly insufficient to amount to a deprivation of liberty in the absence of any aggravating factors. Secondly, the purpose for which the police exercised their powers was not to deprive the applicants of their liberty but to conduct a limited search for specified articles. Thirdly, the applicants were not arrested or subjected to force of any kind. Fourthly, there was no close confinement in a restricted place. Fifthly, the applicants were not placed in custody or required to attend a particular location: they were searched on the spot.\",\n \"The Government further reasoned that if, contrary to their submissions, Article 5 were held to apply, the stop and search of each applicant was lawful and justified under Article 5 § 1(b).\",\n \"2. The Court's assessment\",\n \"56. The Court recalls that Article 5 § 1 is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§92-93, Series A no. 39; Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93; H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR 2004 ‑ IX).\",\n \"57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention.\",\n \"B. Alleged violation of Article 8 of the Convention\",\n \"1. Whether there was an interference with the applicants'Article 8 rights\",\n \"58. The Court will first consider whether the stop and search measures amounted to an interference with the applicants'right to respect for their private life\",\n \"a. The parties'submissions\",\n \"59. The applicants pointed out that the Court of Appeal had described section 44 as “an extremely wide power to intrude on the privacy of members of the public” and the Metropolitan Police Commissioner had conceded in the domestic court that the exercise of the powers amounted to an interference with the individual's Article 8 rights (see paragraph 14 above). They submitted that Lord Bingham had been wrong to conclude that Article 8 was not engaged because “an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach” the requisite level of seriousness. They reasoned that a person at an airport submitted to be searched because it was known that airport officials had coercive powers and because the freedom to travel by air was conditional upon agreeing to be searched. Such a person could, therefore, choose not to travel by air or leave behind any personal items which he would not wish to have examined in public. Section 44 was, however, qualitatively different. Citizens engaged in lawful business in any public place could, without any prior notice or any reasonable suspicion of wrongdoing whatsoever, be required to submit all their personal effects to a detailed coercive examination. They could not turn away and leave, as they could if they were, for example, hesitant to enter a public building with a search at the entrance. They would have no idea in advance that they were present in an area where active section 44 powers were in force. The Court's case-law, for example Peck v. the United Kingdom, no. 44647/98, §§ 57-63, ECHR 2003-I, made it clear that an individual did not automatically forfeit his privacy rights merely by taking his personal items into a public place such as a street. Moreover, the common thread running through Article 8 was personal autonomy. That concept was substantially undermined by the police power to require submission to a coercive search in a public place, particularly since the lack of prior notice entailed that everyone had to assume that, wherever they went in public, they might be required to submit to a search.\",\n \"60. The Government submitted that the searches of the applicants did not amount to an interference with their right to respect for their private lives. Not every act that might impinge upon a person's autonomy or physical integrity would entail such an interference ( see Costello-Roberts v. the United Kingdom, § 36, judgment of 25 March 1993, Series A no. 247-C ). Whether or not the right to private life was engaged by a particular measure impinging on a person's autonomy or physical integrity would depend both upon the seriousness of that measure and upon the degree to which the person concerned had in the circumstances acted in a sphere where public life or the interests of other people were necessarily engaged. While the Government accepted that in certain circumstances a particularly intrusive search might amount to an interference with Article 8, they submitted that a normal, respectful search under section 45 of the 2000 Act would not and that there was no interference in the applicants'cases. The applicants were not searched at home, or even in a police station, but on the spot. In accordance with the Code (see paragraph 36 above), since neither applicant was asked to remove any articles of clothing, only an examination of outer garments and bags was conducted, of the type to which passengers regularly submit at airports. The applicants were not asked for personal details beyond their names, addresses and places of birth. In both cases, the intrusion was of relatively brief duration. Moreover, the applicants had brought themselves into contact with the public sphere through their voluntary engagement with a public demonstration. The fact that in other circumstances a more intrusive search might be conducted did not enable the present applicants to complain of any interference with their rights under Article 8: the Court did not examine the possible operation of legislation in abstracto.\",\n \"b. The Court's assessment\",\n \"61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. In this connection, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor ( see P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX and Peck, cited above, § § 57-63 ). In Foka, cited above, § 85, where the applicant was subjected to a forced search of her bag by border guards, the Court held that “any search effected by the authorities on a person interferes with his or her private life.”\",\n \"62. Turning to the facts of the present case, the Court notes that sections 44-47 of the 2000 Act permit a uniformed police officer to stop any person within the geographical area covered by the authorisation and physically search the person and anything carried by him or her. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves. Paragraph 3.5 of the related Code of Practice further clarifies that the police officer may place his or her hand inside the searched person's pockets, feel around and inside his or her collars, socks and shoes and search the person's hair (see paragraph 36 above). The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both (see paragraph 33 above). In the domestic courts, although the House of Lords doubted whether Article 8 was applicable, since the intrusion did not reach a sufficient level of seriousness, the Metropolitan Police Commissioner conceded that the exercise of the power under section 44 amounted to an interference with the individual's Article 8 rights and the Court of Appeal described it as “an extremely wide power to intrude on the privacy of the members of the public”. (see paragraphs 14 and 19 above).\",\n \"63. The Government argue that in certain circumstances a particularly intrusive search may amount to an interference with an individual's Article 8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court's view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.\",\n \"64. The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual's Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.\",\n \"65. Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act. For the reasons above, the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008- ... ).\",\n \"2. Whether the interference was “in accordance with the law”\",\n \"a. The parties'submissions\",\n \"i. The applicants\",\n \"66. The applicants submitted that the object of the legal certainty requirement running through the Convention was to give protection against arbitrary interference by the public authorities. It followed that “law” must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power might be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions. The executive could not be granted an unfettered discretion; moreover, the scope of any discretion conferred on the executive had to be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power might be exercised. In addition, there had to be legal safeguards against abuse.\",\n \"67. The applicants submitted that the requirement of accessibility was not met in their case. Whilst sections 44-47 of the 2000 Act were adequately accessible to the public, the authorisation and confirmation were not. Thus, a member of the public would know that a section 44 power to stop and search could be conferred on the police, but would not know at any given time or in any given place whether it had been so conferred. He could not know whether, if he went to any particular location, he would be liable to be stopped and searched and, if he were stopped and searched, he could not know whether the police officer was authorised to carry out the procedure. When, unknown to a member of the public, the power had been conferred on a constable, the constable's discretion to stop and search was broad and ill-defined, requiring no grounds of suspicion and constrained solely by the condition that it could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism.\",\n \"68. They contended that although the 2000 Act and Code A (see paragraphs 28-36 above) informed the public of the availability and scope of the section 44 powers, if duly authorised, they did not require the fact or details of any authorisation to be publicised in any way, even retrospectively. In the applicants'view, the efficacy of the section 44 power would not be weakened by advance notification of its availability. Prior notice would reinforce the deterrent effect of the measure. Furthermore, the availability and scope of other stop and search powers, for example, at ports and borders, were publicised without undermining their efficacy. During the domestic proceedings the Government had consented to the retrospective publication of the authorisations relevant to the case, which covered the whole of the Metropolitan Police District. It could not be correct that the purpose of using the section 44 power had been “wholly undermined” because the extent of the authorisation was now known.\",\n \"69. The applicants further alleged that there were insufficient safeguards against misuse of the power to stop and search. The Government had appointed an Independent Reviewer into the operation of the 2000 Act (see paragraphs 37-43 above). However, concerning the “extensive” deployment nationwide of section 44 powers, for example, Lord Carlile had decided that it would not be in the public interest to provide details of the reasons and events.\",\n \"70. No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants'own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism.\",\n \"ii. The Government\",\n \"71. The Government submitted that the requirement of lawfulness under the Convention was met in the present case by a combination of the legislative provisions; the information given to individuals following a search under section 44; the precise instructions in the Code on how search powers were to be exercised; and the availability of court proceedings to challenge the use of those powers by the police in individual cases. Sections 44-45 of the 2000 Act were clear as to their effect. They gave notice to citizens that they might be required to submit to a stop and search and provided safeguards against abuse, well in excess of provisions of national law that the Court or Commission in cases had held to be sufficiently foreseeable in the national security context (as in, for example, Brind v. the United Kingdom (dec. ), no. 18714/91, 9 May 1994; Al-Nashif v. Bulgaria, no. 50963/99, §§ 117-129, 20 June 2002; Esbester v. the United Kingdom (dec. ), no. 18601/91, 2 April 1993).\",\n \"72. In this regard, it was relevant that the statutory framework in sections 44-46 of the 2000 Act carefully defined and restricted the purposes for which the search powers could be used; who could issue authorisations; under what circumstances and for how long authorisations could be issued; who could confirm those authorisations; in what circumstances and for how long authorisations could be given and in what circumstances the search powers themselves could be exercised. In addition the Code, which was a public document, set out very detailed instructions on the exercise of the stop and search power. It required an officer conducting a search to explain to the individual who was stopped the precise purpose of the search, the nature of the legal power exercised and the fact and nature of any authorisation given for the search. The authorisation could be challenged by way of judicial review proceedings on the ground that it exceeded the enabling power in section 44 of the 2000 Act. If the search were claimed to have been conducted for improper purposes, or contrary to the provisions of the 2000 Act or the Code, it could be challenged by way of judicial review proceedings or in a County Court action for damages. Further protection against any arbitrary interference with individuals'rights was provided by the oversight of Lord Carlile, who was appointed as Independent Reviewer to monitor the exercise of the powers under the 2000 Act.\",\n \"73. The Government rejected the applicants'contention that authorisations should be published in advance. First, and crucially, it would wholly undermine the purpose for which authorisations were given. Publishing details of authorisations would by implication reveal those places where such measures to protect against terrorist attack had not been put in place, identifying them as soft targets for terrorists. It would undermine the ability of the police to use stop and search powers effectively, without giving advance warning to terrorists, where they suspected terrorists to be operating. It would also assist terrorists in assessing the State's effectiveness in penetrating their networks or understanding their activities.\",\n \"74. The Government maintained that there were adequate safeguards against the misuse of the power. The combination of oversight by the Independent Reviewer and scrutiny by the national courts fully met any assertion that the section 44-46 powers could be used arbitrarily. For example, in the applicants'case, the County Court was able to – and did – examine whether the officers used their powers under section 45 for their proper purpose, namely to look for terrorist articles. The officers were not free to act arbitrarily. The applicants had a right to cross-examine them and the court was free to form its own view about their evidence. The fact that, in the event, the County Court accepted the officers'evidence did not in any way indicate that its oversight was inadequate.\",\n \"75. In the Government's view, the applicants'complaints in this connection were, in essence, a collateral attack on the absence of any “reasonable suspicion” requirement in sections 44-46 of the 2000 Act. But there were good reasons why officers should not have to act upon reasonable suspicion: as Lord Bingham pointed out in the House of Lords (see paragraph 21 above), this was to ensure that a constable was not deterred from stopping and searching a person whom he suspected as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It reflected the fact that intelligence rarely provided complete information about when and where a terrorist attack might occur and thus that vital decisions had to be taken on the basis of partial information.\",\n \"b. The Court's assessment\",\n \"76. The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008- ... ).\",\n \"77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96).\",\n \"78. It is not disputed that the power in question in the present case has a basis in domestic law, namely sections 44-47 of the 2000 Act (see paragraphs 28-34 above). In addition, the Code of Practice, which is a public document, sets out details of the manner in which the constable must carry out the search (see paragraphs 35-36 above).\",\n \"79. The applicants, however, complain that these provisions confer an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice. The House of Lords considered that this discretion was subject to effective control, and Lord Bingham identified eleven constraints on abuse of power (see paragraph 16 above). However, in the Court's view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.\",\n \"80. The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power.\",\n \"81. The authorisation must be limited in time to 28 days, but it is renewable. It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary. However, many police force areas in the United Kingdom cover extensive regions with a concentrated populations. The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London. The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a “rolling programme” since the powers were first granted (see paragraph 34 above).\",\n \"82. An additional safeguard is provided by the Independent Reviewer (see paragraph 37 above). However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that “section 44 could be used less and I expect it to be used less” (see paragraphs 38-43 above).\",\n \"83. Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above).\",\n \"84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.\",\n \"85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.\",\n \"86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.\",\n \"87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.\",\n \"C. Alleged violations of Articles 10 and 11 of the Convention\",\n \"88. The applicants further alleged that their rights to freedom of expression under Article 10, and freedom of assembly under Article 11, of the Convention were violated. It was argued that a stop and search which had the effect of delaying, even temporarily, contemporaneous reporting or filming of a protest amounted to an interference with Article 10 rights. It was further argued that the legislation itself, with its inadequate safeguards, might well have an intimidatory and chilling effect on the exercise of those rights in the form of peaceful protest and that this was precisely the position in the case of the first applicant.\",\n \"89. The Government argued that neither the existence of the powers to stop and search nor the exercise of those powers in the particular circumstances of the applicants'case constituted an interference with their Article 10 or 11 rights.\",\n \"90. In the light of its above conclusion that there has been a violation of Article 8, the Court does not consider it necessary to examine the applicants'remaining complaints under the Convention.\",\n \"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"91. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"92. The applicants submitted that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of GBP 500 each in respect of non-pecuniary damage.\",\n \"93. The Government submitted that, in view of the short duration of the stop and search, no monetary compensation should be awarded.\",\n \"94. The Court agrees with the Government that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.\",\n \"B. Costs and expenses\",\n \"95. The applicants also claimed GBP 40, 652.06, including value-added tax (VAT), for the costs and expenses incurred before the Court. These included GBP 8,178.92 costs of Liberty (charging at GBP 210 per hour for principal lawyers and GBP 111 per hour for a trainee solicitor) together with the fees of three counsel totalling GBP 32,473.14 including VAT.\",\n \"96. The Government submitted that the hourly rates charged by the applicants'representatives and the number of hours claimed for were excessive, particularly since the issues had already been litigated in detail before the domestic courts.\",\n \"97. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and awards made in comparable cases against the United Kingdom (see, for example, S. and Marper, cited above), the Court considers it reasonable to award the sum of EUR 35,000 covering costs for the proceedings before the Court, less EUR 1,1 50 already received by way of legal aid.\",\n \"C. Default interest\",\n \"98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":297,"cells":{"id":{"kind":"number","value":302,"string":"302"},"case_name":{"kind":"string","value":"Nada v. Switzerland"},"judgement_date":{"kind":"string","value":"12 September 2012 (Grand Chamber)"},"facts_summary":{"kind":"string","value":"The Swiss Federal Taliban Ordinance was enacted pursuant to several UN Security Council Resolutions. It had the effect of preventing the applicant, an Egyptian national, from entering or transiting through Switzerland due to the fact that his name had been added to the list annexed to the UN Security Council’s Sanctions Committee of persons suspected of being associated with the Taliban and al-Qaeda. The applicant had been living in an Italian enclave of about 1.6 square kilometres surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by a lake. He claimed that the restriction made it difficult for him to leave the enclave and therefore to see his friends and family, and that it caused him suffering due to his inability to receive appropriate medical treatment for his health problems. He further found it difficult to remove his name from the Ordinance, even after the Swiss investigators had found the accusations against him to be unsubstantiated."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, and a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 8. It observed in particular that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. Furthermore, the applicant did not have any effective means of obtaining the removal of his name and therefore no remedy in respect of the violations of his rights. Lastly, the Court declared inadmissible the applicant’s complaints under Article 5 (right to liberty and security) of the Convention, finding, like the Swiss Federal Court, that the applicant had not been “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland."},"title":{"kind":"string","value":"Terrorism and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Prevention of terrorism"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","A. Background to the case","11. The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano.","12. He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder.","13. In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology.","14. The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture.","15. On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”).","16. On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title.","17. By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda.","18. On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them).","19. On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant.","20. On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder.","21. On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance.","22. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant.","23. On 10 September 2002 Switzerland became a member of the United Nations.","24. When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized.","25. On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban.","26. On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border.","27. On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him.","28. By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant.","29. On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions.","30. By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list.","31. On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”).","32. By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure.","33. On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance.","34. On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation.","35. On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list.","36. By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal.","37. In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence.","38. The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law ( jus cogens ), he argued that Switzerland was not obliged to implement them.","39. By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision.","40. On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting.","B. Federal Court judgment of 14 November 2007","41. By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits.","42. It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council.","43. The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression).","44. The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime.","45. However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations.","46. The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed.","47. The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens.","48. As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows:","“7.4 ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment.","The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)).","...”","49. The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights.","50. The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude ( Ermessensspielraum ) in implementing them:","“8.1 The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)).","The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)).","As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list.","Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance.","...","8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance.","It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights.","The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...”","51. The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows:","“9.1 The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity.","9.2 For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses.","United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ...","On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.”","52. Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows:","“10.1 Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions.","According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ...","10.2 Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation.","The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions.","The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval.","10.3 The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings.","The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.”","C. Developments subsequent to the Federal Court’s judgment","53. Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision.","54. On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court.","During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient.","As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council.","55. The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6.","56. On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand.","57. On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation.","58. By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation.","59. In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant.","60. On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list.","61. On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban.","62. On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009.","63. By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example.","D. Efforts made to improve the sanctions regime","64. The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"A. Background to the case\",\n \"11. The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano.\",\n \"12. He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder.\",\n \"13. In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology.\",\n \"14. The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture.\",\n \"15. On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”).\",\n \"16. On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title.\",\n \"17. By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda.\",\n \"18. On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them).\",\n \"19. On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant.\",\n \"20. On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder.\",\n \"21. On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance.\",\n \"22. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant.\",\n \"23. On 10 September 2002 Switzerland became a member of the United Nations.\",\n \"24. When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized.\",\n \"25. On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban.\",\n \"26. On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border.\",\n \"27. On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him.\",\n \"28. By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant.\",\n \"29. On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions.\",\n \"30. By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list.\",\n \"31. On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”).\",\n \"32. By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure.\",\n \"33. On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance.\",\n \"34. On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation.\",\n \"35. On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list.\",\n \"36. By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal.\",\n \"37. In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence.\",\n \"38. The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law ( jus cogens ), he argued that Switzerland was not obliged to implement them.\",\n \"39. By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision.\",\n \"40. On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting.\",\n \"B. Federal Court judgment of 14 November 2007\",\n \"41. By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits.\",\n \"42. It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council.\",\n \"43. The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression).\",\n \"44. The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime.\",\n \"45. However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations.\",\n \"46. The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed.\",\n \"47. The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens.\",\n \"48. As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows:\",\n \"“7.4 ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment.\",\n \"The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)).\",\n \"...”\",\n \"49. The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights.\",\n \"50. The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude ( Ermessensspielraum ) in implementing them:\",\n \"“8.1 The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)).\",\n \"The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)).\",\n \"As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list.\",\n \"Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance.\",\n \"...\",\n \"8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance.\",\n \"It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights.\",\n \"The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...”\",\n \"51. The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows:\",\n \"“9.1 The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity.\",\n \"9.2 For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses.\",\n \"United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ...\",\n \"On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.”\",\n \"52. Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows:\",\n \"“10.1 Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions.\",\n \"According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ...\",\n \"10.2 Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation.\",\n \"The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions.\",\n \"The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval.\",\n \"10.3 The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings.\",\n \"The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.”\",\n \"C. Developments subsequent to the Federal Court’s judgment\",\n \"53. Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision.\",\n \"54. On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court.\",\n \"During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient.\",\n \"As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council.\",\n \"55. The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6.\",\n \"56. On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand.\",\n \"57. On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation.\",\n \"58. By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation.\",\n \"59. In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant.\",\n \"60. On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list.\",\n \"61. On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban.\",\n \"62. On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009.\",\n \"63. By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example.\",\n \"D. Efforts made to improve the sanctions regime\",\n \"64. The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE","A. Domestic law","1. Federal Constitution","65. Article 190 (“Applicable law”) of the Federal Constitution provides:","“The Federal Court and the other authorities shall be required to apply federal statutes and international law.”","2. Ordinance of 2 October 2000 instituting measures against persons and entities associated with Osama bin Laden, the group “al ‑ Qaeda” or the Taliban (“the Taliban Ordinance”)","66. The Ordinance of 2 October 2000, instituting measures against persons and entities associated with Osama bin Laden, the group “al-Qaeda” or the Taliban, has been amended several times. The relevant provisions read as follows, in the version that was in force in the period under consideration in the present case, and in particular at the time when the Federal Court delivered its judgment (14 November 2007).","Article 1 – Ban on supply of military equipment and similar goods","“1. The supply, sale or brokerage of arms of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts or accessories for the above-mentioned, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.","...","3. The supply, sale or brokerage of technical advice, assistance and training related to military activities, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.","4. Paragraphs 1 and 3 above shall apply only to the extent that the Property Regulation Act of 13 December 1996, the Federal Act on War Materiel of 13 December 1996 and their respective implementing ordinances are not applicable.","...”","Article 3 – Freezing of assets and economic resources","“1. Assets and economic resources owned or controlled by the individuals, undertakings, groups or entities referred to in Annex 2 hereto shall be frozen.","2. It shall be prohibited to supply funds to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, or to make assets or economic resources available to them, directly or indirectly.","3. The State Secretariat for Economic Affairs (SECO) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs 1 and 2 above.","4. The SECO may authorise, after consulting the competent services of the Federal Department of Foreign Affairs and the Federal Department of Finance, payments from blocked accounts, transfers of frozen capital assets and the release of frozen economic resources, in order to protect Swiss interests or to prevent hardship cases.”","Article 4 – Mandatory declaration","“1. Anyone holding or managing assets acknowledged to be covered by the freezing of assets under Article 3 § 1 hereof must immediately declare them to the SECO.","2. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 3 § 1 hereof must immediately declare them to the SECO.","3. The declaration must give the name of the beneficiary, the purpose and the amount of the assets or economic resources frozen.”","Article 4a – Entry into and transit through Switzerland","“1. Entry into and transit through Switzerland shall be prohibited for the individuals listed in Annex 2 hereto.","2. The Federal Office for Migration may, in conformity with the decisions of the United Nations Security Council or for the protection of Swiss interests, grant exemptions.”","B. International law","1. United Nations Charter","67. The United Nations Charter was signed in San Francisco on 26 June 1945. The relevant provisions for the present case read as follows.","Preamble","“ We the peoples of the United Nations, determined","to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and","to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and","to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and","to promote social progress and better standards of life in larger freedom,","and for these ends","to practice tolerance and live together in peace with one another as good neighbors, and","to unite our strength to maintain international peace and security, and","to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and","to employ international machinery for the promotion of the economic and social advancement of all peoples,","have resolved to combine our efforts to accomplish these aims.","Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.”","Article 1","“The Purposes of the United Nations are:","1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;","...","3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and","...”","Article 24","“1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.","2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.","...”","Article 25","“The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”","68. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. Article 39 reads as follows:","“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”","69. Chapter XVI is entitled “Miscellaneous Provisions”. Article 103 reads as follows:","“In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”","2. Resolutions adopted by the Security Council in connection with its measures against al ‑ Qaeda and the Taliban and that are relevant to the present case","70. Resolution 1267 (1999) was adopted on 15 October 1999. It created the Sanctions Committee, consisting of all Security Council members. This Committee was in particular entrusted with the task of requesting all States to keep it informed of the steps taken to ensure the effective implementation of the measures required under the Resolution, namely the denial of permission for aircraft associated with the Taliban to use their territory for take-off or landing, unless the Sanctions Committee had approved the flight in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s funds and other financial resources. The relevant parts of this Resolution read as follows.","Resolution 1267 (1999)","“...","The Security Council,","Reaffirming its previous resolutions, in particular Resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998 and 1214 (1998) of 8 December 1998, and the statements of its President on the situation in Afghanistan,","Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,","Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law,","Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists,","Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security,","Deploring the fact that the Taliban continues to provide safe haven to [Osama bin Laden] and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations,","Noting the indictment of [Osama bin Laden] and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S/1999/1021),","Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security,","Stressing its determination to ensure respect for its resolutions,","Acting under Chapter VII of the Charter of the United Nations,","...","3. Decides that on 14 November 1999 all States shall impose the measures set out in paragraph 4 below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph 2 above;","4. Decides further that, in order to enforce paragraph 2 above, all States shall:","(a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph 6 below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj;","(b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need;","5. Urges all States to cooperate with efforts to fulfil the demand in paragraph 2 above, and to consider further measures against [Osama bin Laden] and his associates;","6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations:","...","7. Calls upon all States to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph 4 above;","8. Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph 4 above and to impose appropriate penalties;","9. Calls upon all States to cooperate fully with the Committee established by paragraph 6 above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this Resolution;","10. Requests all States to report to the Committee established by paragraph 6 above within 30 days of the coming into force of the measures imposed by paragraph 4 above on the steps they have taken with a view to effectively implementing paragraph 4 above;","...”","71. By Resolution 1333 (2000), adopted on 19 December 2000, the Security Council extended the application of the sanctions provided for under Resolution 1267 (1999) to any individuals or entities identified by the Sanctions Committee as being associated with al-Qaeda or Osama bin Laden. The Resolution further required a list to be maintained for the implementation of the United Nations sanctions. The passages that are relevant to the present case read as follows.","Resolution 1333 (2000)","“...","The Security Council,","Reaffirming its previous resolutions, in particular Resolution 1267 (1999) of 15 October 1999 and the statements of its President on the situation in Afghanistan,","Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,","Recognizing the critical humanitarian needs of the Afghan people,","...","8. Decides that all States shall take further measures:","(a) To close immediately and completely all Taliban offices in their territories;","(b) To close immediately all offices of Ariana Afghan Airlines in their territories;","(c) To freeze without delay funds and other financial assets of [Osama bin Laden] and individuals and entities associated with him as designated by the Committee, including those in the [al-Qaeda] organization, and including funds derived or generated from property owned or controlled directly or indirectly by [Osama bin Laden] and individuals and entities associated with him, and to ensure that neither they nor any other funds or financial resources are made available, by their nationals or by any persons within their territory, directly or indirectly for the benefit of [Osama bin Laden], his associates or any entities owned or controlled, directly or indirectly, by [Osama bin Laden] or individuals and entities associated with him including the [al-Qaeda] organization and requests the Committee to maintain an updated list, based on information provided by States and regional organizations, of the individuals and entities designated as being associated with [Osama bin Laden], including those in the [al-Qaeda] organization;","...","12. Decides further that the Committee shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate, that the prohibition imposed by paragraph 11 above shall not apply to humanitarian flights operated by, or on behalf of, organizations and governmental relief agencies on the list approved by the Committee, that the Committee shall keep the list under regular review, adding new organizations and governmental relief agencies as appropriate and that the Committee shall remove organizations and governmental agencies from the list if it decides that they are operating, or are likely to operate, flights for other than humanitarian purposes, and shall notify such organizations and governmental agencies immediately that any flights operated by them, or on their behalf, are thereby subject to the provisions of paragraph 11 above;","...","16. Requests the Committee to fulfil its mandate by undertaking the following tasks in addition to those set out in Resolution 1267 (1999):","(a) To establish and maintain updated lists based on information provided by States, regional, and international organizations of all points of entry and landing areas for aircraft within the territory of Afghanistan under control by the Taliban and to notify member States of the contents of such lists;","(b) To establish and maintain updated lists, based on information provided by States and regional organizations, of individuals and entities designated as being associated with [Osama bin Laden], in accordance with paragraph 8 (c) above;","(c) To give consideration to, and decide upon, requests for the exceptions set out in paragraphs 6 and 11 above;","(d) To establish no later than one month after the adoption of this Resolution and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above;","...","17. Calls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraphs 5, 8, 10 and 11 above;","...”","72. In Resolution 1363 (2001), adopted on 30 July 2001, the Security Council decided to set up a mechanism to monitor the measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring Group”), consisting of up to five experts selected on the basis of equitable geographical distribution.","73. In Resolution 1373 (2001), adopted on 28 September 2001 – following the events of 11 September 2001 – the Security Council decided that States should take a series of measures to combat international terrorism and ensure effective border controls in this connection. The passages that are relevant to the present case read as follows.","Resolution 1373 (2001)","“...","The Security Council,","...","1. Decides that all States shall:","(a) Prevent and suppress the financing of terrorist acts;","(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;","(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;","(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;","2. Decides also that all States shall:","(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;","(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;","(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;","(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;","(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;","...","3. Calls upon all States to:","...","(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts;","...”","74. In Resolution 1390 (2002), adopted on 16 January 2002, the Security Council decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions. This Resolution also made the sanctions regime more precise and transparent, because the Sanctions Committee was requested to update regularly the list of persons concerned by the sanctions, to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions, and to make any information it considered relevant, including the list of persons concerned, publicly available. The passages that are relevant to the present case read as follows:","Resolution 1390 (2002)","“...","The Security Council,","...","2. Decides that all States shall take the following measures with respect to [Osama bin Laden], members of the [al-Qaeda] organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the Committee established pursuant to Resolution 1267 (1999) hereinafter referred to as ‘the Committee’;","(a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory;","(b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified;","(c) Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities;","...","8. Urges all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee unless to do so would compromise the investigation or enforcement actions; ...”","75. In Resolution 1526 (2004), adopted on 30 January 2004, the Security Council requested States, on the submission of new names to be added to the Committee’s list, to supply information facilitating the identification of the persons or entities concerned. It also expressly encouraged States to inform, as far as possible, the persons and entities on the Committee’s list of the measures taken against them, of the Committee’s guidelines and of Resolution 1452 (2002) concerning the possibility of exemption from certain sanctions.","76. In response to a surge in criticism of the sanctions regime, the Security Council adopted increasingly detailed resolutions to strengthen the procedural safeguards. In this connection, Resolution 1730 (2006) established the current procedure by creating a “focal point” to receive delisting requests in respect of persons or entities on the lists kept by the Sanctions Committee. Under that Resolution the focal point was responsible for forwarding such requests, for their information and possible comments, to the designating government(s) and to the government(s) of citizenship and residence. That was to be followed by a consultation between the governments concerned, with or without the focal point acting as an intermediary. If recommended by one of those governments, the delisting request was to be placed on the agenda of the Sanctions Committee, which would take decisions by consensus among its fifteen members.","77. Resolution 1735 (2006) established a procedure for notifying the individuals or entities whose names were on the list. It further clarified the criteria for delisting as follows:","“14. ... the Committee, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria set out in relevant resolutions, in particular Resolution 1617 (2005); in making the evaluation in (ii) above, the Committee may consider, among other things, whether the individual is deceased, or whether it has been affirmatively shown that the individual or entity has severed all association, as defined in Resolution 1617 (2005), with [al-Qaeda], [Osama bin Laden], the Taliban, and their supporters, including all individuals and entities on the Consolidated List;”","78. The procedure was subsequently reinforced with the adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the present case. In the latter, adopted on 17 December 2009, the Security Council decided to create an Office of the Ombudsperson, whose task is to receive requests from individuals concerned by the sanctions imposed by the Security Council in the fight against terrorism. Under that Resolution, persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the Ombudsperson, who examines each case impartially and independently and then submits a report to the Sanctions Committee explaining the reasons for or against delisting.","3. Vienna Convention on the Law of Treaties (1969)","79. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows:","“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”","80. Article 30 (“Application of successive treaties relating to the same subject matter”) reads as follows:","“1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.","2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.","3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.","4. When the parties to the later treaty do not include all the parties to the earlier one:","(a) as between States Parties to both treaties the same rule applies as in paragraph 3;","(b) as between a State Party to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations.","5. Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.”","4. Work of the United Nations International Law Commission","81. The report of the study group of the International Law Commission entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, contains the following observations concerning Article 103 of the Charter:","4. Harmonization – systemic integration","“37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict:","... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153]. [1]","38. This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways. It may appear as the thumb-rule that when creating new obligations, States are assumed not to derogate from their obligations. Jennings and Watts, for example, note the presence of a:","presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ..., pp. 240-44].","39. As the International Court of Justice stated in the Right of Passage case:","it is a rule of interpretation that a text emanating from a government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [ Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) ICJ Reports 1957 p. 142].","...","331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine ...”","5. Relevant international case-law","82. The measures taken under the Security Council resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined, at international level, by the Court of Justice of the European Communities (“CJEC”) and by the United Nations Human Rights Committee.","(a) The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission (Court of Justice of the European Communities)","83. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P – hereinafter “ Kadi ”) concerned the freezing of the applicants’ assets pursuant to European Community Regulations adopted in connection with the implementation of Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all United Nations member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council’s Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (“the EC Treaty”). They contended that the EC Regulations had been adopted ultra vires.","84. On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the “General Court”) rejected those complaints and confirmed the lawfulness of the Regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens ), including those arising from the EC Treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights.","85. Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the “Court of Justice of the European Union”). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008, the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the “Community judicature” to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this “would not entail any challenge to the primacy of that resolution in international law”.","86. The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages:","“...","281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23).","...","290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community.","...","293. Observance of the undertakings given in the context of the United Nations is required just as much in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.","294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them.","...","296. Although, because of the adoption of such an act, the Community is bound to take, under the EC Treaty, the measures necessitated by that act, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation.","297. Furthermore, the Court has previously held that, for the purposes of the interpretation of the contested Regulation, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that Regulation, according to the fourth recital in the preamble thereto, is designed to implement ( Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law cited).","298. It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of the United Nations. The Charter of the United Nations leaves the members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order.","299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations.","300. What is more, such immunity from jurisdiction for a Community measure like the contested Regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.”","87. The CJEC concluded that the contested Regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled.","(b) The case of Sayadi and Vinck v. Belgium (United Nations Human Rights Committee)","88. In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning Communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that Resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to initiate urgently a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so.","89. The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants’ right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State Party’s delisting requests showed that the restrictions were not necessary to protect national security or public order.","90. The Committee also found an unlawful attack on the complainants’ honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State Party’s requests for removal, their personal contact details were still accessible to the public.","91. In the Committee’s opinion, although the State Party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future.","92. On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee.","6. Relevant case-law of other States","93. The measures in question have also been examined at national level, by the United Kingdom Supreme Court and the Canadian Federal Court.","(a) The case of Ahmed and others v. HM Treasury (United Kingdom Supreme Court)","94. The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions.","95. In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations:","“6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”","96. He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows:","“81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee [the Sanctions Committee]. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that Article 3 § 1 (b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that Article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny.","82. I would treat HAY’s case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committee’s list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasury’s Sanctions Team informed his solicitors that the delisting request was submitted on 26 June 2009 but that at the Committee’s first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain delisting are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy.”","97. The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counterterrorism context (“the Terrorism Order”) and the order implementing the al-Qaeda and Taliban Resolutions (“the al-Qaeda Order”). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown’s dissenting opinion on this point).","(b) The case of Abdelrazik v. Canada (Minister of Foreign Affairs) (Federal Court, Canada)","98. In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), Canada’s Federal Court took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council Resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary.","99. Zinn J, who pronounced the lead judgment in the case, stated in particular:","“51. I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.”","100. He further observed:","“54. ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.”","101. After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban Resolutions, the judge concluded that the applicant’s right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment).","THE LAW","I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS","A. Compatibility of the complaints with the Convention and Protocols thereto","1. The parties’ submissions","(a) The Government","102. The Government requested the Court to declare the application inadmissible as being incompatible ratione personae with the Convention. They argued that the impugned measures had been based on Security Council Resolutions 1267 (1999) et seq., which, under Articles 25 and 103 of the United Nations Charter, were binding and prevailed over any other international agreement. In this connection they referred in particular to the provisional measures order of the International Court of Justice in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 15, § 39:","“Whereas both Libya and the United Kingdom, as members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in Resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;”","The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the measures in issue.","103. The Government added that those measures, emanating as they did from the United Nations Security Council, fell outside the scope of the Court’s review. The application in the present case was therefore also inadmissible ratione materiae.","(b) The applicant","104. The applicant argued that his application was compatible ratione personae with the Convention. He took the view that the direct effect of the obligations under the Security Council Resolutions was irrelevant to the issue of whether or not the restrictions imposed on him were attributable to the respondent State, since those restrictions had been authorised by the Government at national level in accordance with Article 190 of the Federal Constitution. Relying on Article 27 of the Vienna Convention on the Law of Treaties, he added that Switzerland could not hide behind its domestic legal arrangements when it came to fulfilling its international obligations (see paragraph 79 above).","105. The applicant also took the view that the Swiss authorities had applied the possibilities of derogation envisaged in the Security Council Resolutions in a much more restrictive manner than was required by the sanctions regime. The Federal Court itself had noted this in its judgment of 14 November 2007. Rather than automatically having to implement the Security Council Resolutions, the national authorities had therefore enjoyed a certain margin of appreciation in taking the measures in issue. The applicant added in this connection that his delisting, as decided by the Sanctions Committee on 23 September 2009, had not taken effect in Switzerland until a week later. He saw this as further proof that the application of the Security Council Resolutions was not automatic.","106. Lastly, the applicant argued that it was not a matter, in the present case, of calling into question the primacy of the United Nations Charter under Article 103 thereof – a finding of a violation of the Convention not being, in his opinion, capable of affecting the validity of States’ international obligations – but simply of ensuring that the Charter was not used as a pretext to avoid compliance with the provisions of the Convention.","2. Submissions of third-party interveners","(a) The French Government","107. The French Government took the view that the reservation of Convention observance, in the sense of ensuring “equivalent protection”, could not be applied appropriately in the present case because the measures laid down by Switzerland arose necessarily from the United Nations Security Council Resolutions, which all States were required to apply and which also had to be given precedence over any other international rule. In those circumstances France was of the view that the measures in question could not be regarded as falling within Switzerland’s “jurisdiction” for the purposes of Article 1 of the Convention; otherwise that notion would be rendered meaningless.","108. The French Government pointed out that, although in its judgment of 30 June 2005 in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) the Court had regarded as compatible with Article 1 of the Convention an application disputing the validity of a national measure simply implementing a regulation of the European Communities that itself stemmed from a Security Council resolution, the Court had noted in that judgment that it was the EC Regulation and not the Security Council Resolution that constituted the legal basis of the national measure in issue (ibid., § 145).","109. The French Government were also convinced that, even though the measures in issue did not concern missions conducted outside the territory of the member States, like those in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”), but rather measures implemented in domestic law, the arguments emerging from that case-law, which stemmed from the nature of the Security Council’s missions and States’ obligations arising therefrom, should lead the Court likewise to declare the disputed measures attributable to the United Nations and thus to find the applicant’s complaints incompatible ratione personae with the Convention. Thus they argued that the present case provided the Court with an opportunity to transpose onto the member States’ actual territory the principles established in Behrami and Saramati, taking into account the hierarchy of international law norms and the various legal spheres arising therefrom.","110. The French Government also pointed out that, in its Kadi judgment (see paragraph 83 above), the CJEC had relied on the constitutional nature of the EC Treaty for its review of a regulation implementing Security Council resolutions. Such considerations being absent in the present case, the French Government had difficulty conceiving what could justify a finding by the Court, in disregard of Article 103 of the United Nations Charter, that Switzerland was responsible for the implementation of resolutions that it was required to apply and to which it also had to give precedence over any other undertaking.","(b) The United Kingdom Government","111. The United Kingdom Government observed that the entry-and-transit ban had been imposed on the applicant in the context of the Taliban Ordinance, which they regarded as having merely implemented Security Council resolutions that were binding on all States, having been adopted under Chapter VII of the United Nations Charter (Article 25 thereof): the obligations arising from those resolutions thus took precedence, under Article 103 of the Charter, over all other international agreements. In this connection the United Kingdom Government were of the opinion that the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Article 5 or 8 of the Convention. They took the view that, particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council had used “clear and explicit language” to impose on States specific measures that might conflict with their other international obligations, in particular those arising from human rights instruments. Referring to the judgment recently delivered in Al ‑ Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011), they thus argued that the respondent State had been obliged to apply the measures in issue.","(c) JUSTICE","112. The organisation JUSTICE considered that the sanctions regime established by Security Council Resolution 1267 (1999) was the source of the draconian restrictions on the Convention rights of the listed persons and their families, in particular the right to respect for their private and family life, the right to the enjoyment of property and freedom of movement.","113. The severity of that interference with Convention rights was exacerbated by the inability of the listed persons to challenge effectively the decision to list them, including the evidential basis for the decision. Consequently, the sanctions regime also failed to afford those persons and their families the right of access to a court and the right to an effective remedy. JUSTICE took the view that the procedures of the Sanctions Committee did not therefore provide equivalent protection for those Convention rights.","114. Those conclusions, it observed, were reflected in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the United Nations Special Rapporteur on Terrorism and Human Rights and in the decisions of the Canadian Federal Court ( Abdelrazik ), the United Kingdom Supreme Court ( Ahmed ) and the CJEC ( Kadi ) (see “Relevant international case-law” and “Relevant case-law of other States”, paragraphs 82-92 and 93-101 above).","115. JUSTICE was convinced that the Court was not obliged to interpret Article 103 of the Charter in such a manner that it would result in Convention rights being displaced. In particular, the “maintenance of international peace and security”, though the primary function of the Security Council, was not the pre-eminent principle either of international law or of the Charter. At least equal importance was to be attached to the principle of respect for fundamental rights, as indeed was reflected in the Preamble to the Charter.","3. The Court’s assessment","116. In the light of the arguments set out by the parties and third-party interveners, the Court must determine whether it has jurisdiction to entertain the complaints raised by the applicant. For that purpose it will have to examine whether the application falls within the scope of Article 1 of the Convention and thus engages the responsibility of the respondent State.","(a) Compatibility ratione personae","117. Article 1 of the Convention reads as follows:","“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”","118. As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; Al-Jedda, cited above, § 74; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII; and Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). “Jurisdiction” under Article 1 is a threshold criterion for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others, cited above, § 130; Al-Jedda, cited above, § 74; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).","119. The notion of jurisdiction reflects the meaning given to that term in public international law (see Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; and Banković and Others, cited above, §§ 59-61), such that a State’s jurisdiction is primarily territorial (see Al-Skeini and Others, cited above, § 131, and Banković and Others, cited above, § 59) and is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312).","120. Relying on the Court’s decision in Behrami and Saramati (cited above), the intervening French Government, in particular, argued that the measures taken by the member States of the United Nations to implement Security Council resolutions under Chapter VII of the Charter were attributable to the United Nations and were thus incompatible ratione personae with the Convention. The Court cannot endorse that argument. It would point out that it found in Behrami and Saramati that the impugned acts and omissions of the Kosovo Force (KFOR), whose powers had been validly delegated to it by the Security Council under Chapter VII of the Charter, and those of the United Nations Interim Administration Mission in Kosovo (UNMIK), a subsidiary organ of the United Nations set up under the same Chapter, were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective-security objective (ibid., § 151). In the present case, by contrast, the relevant Security Council resolutions, especially Resolutions 1267 (1999), 1333 (2000), 1373 (2001) and 1390 (2002), required States to act in their own names and to implement them at national level.","121. In the present case the measures imposed by the Security Council Resolutions were implemented at national level by an Ordinance of the Federal Council, and the applicant’s requests for exemption from the ban on entry into Swiss territory were rejected by the Swiss authorities (the Federal Office of Immigration, Integration and Emigration – IMES, then the Federal Office for Migration – FOM). The acts in question therefore relate to the national implementation of United Nations Security Council resolutions (see, mutatis mutandis, Bosphorus, cited above, § 137, and contrast Behrami and Saramati, cited above, § 151). The alleged violations of the Convention are thus attributable to Switzerland.","122. The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.","123. Accordingly, the Court dismisses the objection that the application is incompatible ratione personae with the Convention.","(b) Compatibility ratione materiae","124. The Government argued that the present application was also incompatible ratione materiae with the Convention. In this connection they emphasised the binding nature of the resolutions adopted by the Security Council under Chapter VII of the United Nations Charter and its primacy over any other international agreement, in accordance with Article 103 thereof.","125. The Court finds that these arguments concern more the merits of the complaints than their compatibility with the Convention. Consequently, the Government’s objection as to the incompatibility ratione materiae of the application with the Convention should be joined to the merits.","B. Whether the applicant is a “victim”","1. The parties’ submissions","126. The Government pointed out that on 23 September 2009 the applicant’s name had been deleted from the list annexed to the Security Council Resolutions providing for the impugned sanctions and on 29 September 2009 the Taliban Ordinance had been amended accordingly, with effect from 2 October 2009. Thus, they argued, the impugned measures against the applicant had been completely discontinued. In the Government’s opinion, the dispute had therefore been resolved within the meaning of Article 37 § 1 (b) of the Convention and, as a result, they asked the Court to strike the application out of its list, in accordance with that provision.","127. The applicant disagreed with that argument. He took the view that the mere fact that the situation had evolved in such a way that his name had been deleted from the Sanctions Committee’s list, that the Taliban Ordinance had been amended accordingly and that the sanctions against him had been lifted, since the beginning of October 2009, had not deprived him of his victim status as regards the breaches of his rights prior to that date.","2. The Court’s assessment","128. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; and Eckle v. Germany, 15 July 1982, § 66, Series A no. 51).","129. In the present case, the Court observes that the sanctions imposed on the applicant have been lifted and that he is now authorised to cross the border of Campione d’Italia to enter or pass through Switzerland freely. However, the lifting of sanctions, which was not decided until September-October 2009, has not deprived the applicant of his status as victim of the restrictions from which he suffered from the time his name was added, in November 2001, to the Sanctions Committee’s list and to the list annexed to the Taliban Ordinance, or at least from 27 November 2003, when he was informed that he was no longer authorised to cross the border (see paragraph 26 above). The lifting of the sanctions cannot be regarded as an acknowledgment by the Government, even implicitly, of a violation of the Convention, for the purposes of the above-cited case-law. Moreover, it was not followed by any redress within the meaning of that case-law.","130. Accordingly, the applicant may claim to have been the victim of the alleged violations of the Convention for a period of at least six years. As a result, the Government’s objection as to an alleged lack of victim status should be dismissed.","C. Whether domestic remedies have been exhausted","1. The parties’ submissions","(a) The Government","131. The Government observed that, according to the Security Council’s sanctions regime, exemptions from the entry-and-transit ban could be granted when they were necessary for the fulfilment of a judicial process, or for other reasons, in particular of a medical, humanitarian or religious nature, subject to the approval of the Sanctions Committee (see Resolution 1390 (2002), paragraph 2(b)). To take account of such situations, Article 4a § 2 of the Taliban Ordinance provided that the FOM could, in accordance with the decisions of the Security Council or for the protection of Swiss interests, grant exemptions.","132. The Government contended that the various decisions given by the FOM had not been appealed against, and the action taken before it concerned only the question of the delisting of the applicant and the organisations associated with him from Annex 2 to the Taliban Ordinance.","133. The Government pointed out that, both before and after the Federal Court’s judgment, the applicant had not appealed against any decision of the former IMES or of the FOM (the IMES having been incorporated into the FOM on its creation in 2005) concerning exemptions from the sanctions regime. In addition, the authorities had granted exemptions (in decisions of 20 September 2006 and 11 September 2008) that had not been used by the applicant. The applicant had explained in this connection that the duration of the exemptions had not been sufficient, in view of his age and the distance to be travelled, for him to make the intended journeys. On this subject the Government pointed out that the first exemption, for one day, had been granted for a journey to Milan in connection with judicial proceedings, and that it took only one hour to drive from Campione d’Italia to the centre of Milan. The second exemption, for two days, had been granted to the applicant for a journey to Berne and Sion, both cities being less than three and a half hours away from Campione by car.","134. Lastly, the Government argued that the applicant could at any time have requested to move house, even temporarily, to another part of Italy, the country of which he was a national. Such a request would have been submitted by the competent Swiss authority (the IMES, then the FOM) to the Sanctions Committee. As the sanctions had been formulated in general terms, the Government were of the opinion that the Committee would most probably have authorised the applicant’s move.","135. For these reasons the Government submitted that the applicant had failed to exhaust domestic remedies.","(b) The applicant","136. Concerning the first three refusals by the FOM (26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended that there was no clear domestic case-law as to whether the Swiss authorities had any margin of appreciation in the granting of exemptions from the restrictions imposed on him and that no clarification had been provided by the Federal Court in this connection. Furthermore, no action appeared to have been taken by the FOM or any other authority to clarify the position regarding the grant of exemptions. In his submission it could not therefore be said that an effective remedy, within the meaning of the Court’s case-law, was available.","137. As regards the Government’s argument that he had failed to make use of the exemptions granted to him by the FOM (on 20 September 2006 and 11 September 2008), he alleged that they concerned only a partial lifting of the measures imposed on him, in respect of very specific situations. Given his age and the length of the journeys involved, he argued that the exemptions for one or two days were far from sufficient.","138. As to the general sanctions regime, the applicant submitted that he had exhausted domestic remedies, because he had challenged before the Federal Court the restrictions imposed by the Taliban Ordinance, of which he complained before the Court.","139. The applicant further observed that the Government’s argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting was purely speculative. He also pointed out that such an option – which he did not consider possible in his case, particularly because of the freezing of his assets by the sanctions regime and the fact that it had not been envisaged by the Federal Court – would in any event have provided redress only for part of the impugned restrictions.","2. The Court’s assessment","140. The Court reiterates that the only remedies Article 35 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see Tsomtsos and Others v. Greece, 15 November 1996, § 32, Reports 1996 ‑ V).","141. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX).","142. Moreover, an applicant who has availed himself of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, for example, Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III, and Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV).","143. In the present case the Court notes that the applicant did not challenge the refusals by the IMES and the FOM to grant his requests for exemption from the sanctions regime and that on two occasions he was granted exemptions that he did not use (see paragraphs 34 and 57 above).","144. However, even supposing that those exemptions had alleviated certain effects of the sanctions regime, by allowing him to leave the enclave of Campione d’Italia for medical or legal reasons, the Court is of the view that the issue of exemptions was part of a broader situation whose origin lay in the addition by the Swiss authorities of the applicant’s name to the list annexed to the Taliban Ordinance, which was based on the Sanctions Committee’s list. In this connection, it should be observed that the applicant submitted many requests to the national authorities for the deletion of his name from the list annexed to the Taliban Ordinance – requests that were denied by the State Secretariat for Economic Affairs (SECO) and the Federal Department of Economic Affairs (see paragraphs 30-32 above). The Federal Council, to which he appealed against the Department’s decision, referred the case to the Federal Court. By a judgment of 14 November 2007, that court dismissed his appeal without examining the merits of the complaints under the Convention. Consequently, the Court takes the view that the applicant has exhausted domestic remedies relating to the sanctions regime as a whole, the application of which in his case stemmed from the addition of his name to the list annexed to the Taliban Ordinance.","145. In these circumstances, the Court does not find it necessary to address, at this stage, the argument raised by the Government to the effect that the applicant could have been reasonably expected to move from Campione d’Italia, where he had been living since 1970, to another region of Italy. That question will, by contrast, play a certain role when it comes to examining the proportionality of the impugned measures (see paragraph 190 below).","146. As to the complaint under Article 8 that the addition of the applicant’s name to the list annexed to the Taliban Ordinance had impugned his honour and reputation, the Court acknowledges that it was raised, at least in substance, before the domestic authorities. The applicant indeed claimed that the addition of his name to the Sanctions Committee’s list was tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case (see paragraphs 33 and 38 above).","147. Consequently, the Court dismisses the Government’s objection as to the inadmissibility of the application for failure to exhaust domestic remedies in respect of the applicant’s complaints under Articles 5 and 8.","148. As regards the complaint under Article 13, the Court finds that the objection of non-exhaustion of remedies is closely linked to the merits of the complaint. Accordingly, the Court joins it to the merits.","II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","149. The applicant complained that the measure by which he was prohibited from entering or passing through Switzerland had breached his right to respect for his private life, including his professional life, and his family life. He contended that this ban had prevented him from seeing his doctors in Italy or in Switzerland and from visiting his friends and family. He further claimed that the addition of his name to the list annexed to the Taliban Ordinance had impugned his honour and reputation. In support of these complaints he relied on Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","A. Admissibility","150. The Court finds that it should first examine the applicability of Article 8 in the present case.","151. It reiterates that “private life” is a broad term not susceptible to exhaustive definition (see, for example, Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Tysiąc v. Poland, no. 5410/03, § 107, ECHR 2007 ‑ I; Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008; Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). The Court has found that health, together with physical and moral integrity, falls within the realm of private life (see Glor, cited above, § 54, and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; see also Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). The right to private life also encompasses the right to personal development and to establish and develop relationships with other human beings and the outside world in general (see, for example, S. and Marper, cited above, § 66).","152. It should moreover be observed that Article 8 also protects the right to respect for “family life”. Under that provision the State must in particular act in a manner calculated to allow those concerned to lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The Court determines the existence of family life on a case-by-case basis, looking at the circumstances of each case. The relevant criterion in such matters is the existence of effective ties between the individuals concerned (ibid.; see also K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII, and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 93, 2 November 2010).","153. The Court would further reiterate that Article 8 also protects the right to respect for one’s home (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109).","154. In the light of that case-law, the Court finds that the complaints submitted by the applicant under Article 8 are indeed to be examined under that Article. It cannot be excluded that the measure prohibiting him from entering Switzerland prevented him – or at least made it more difficult for him – to consult his doctors in Italy or Switzerland or to visit his friends and family. Article 8 therefore applies in the present case in both its “private life” aspect and its “family life” aspect.","155. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.","B. Merits","1. The parties’ submissions","(a) The applicant","156. The applicant alleged that the restrictions on his freedom of movement had prevented him from taking part in family events (such as funerals or weddings), which had taken place during the period when he was unable to travel freely on account of the sanctions regime. He thus claimed to be a victim of a violation of his right to respect for his private and family life. In this connection, he contended that his status as an Italian national, not resident in the territory of the respondent State, did not prevent him from complaining of a violation of his rights by Switzerland, especially given the very special situation of the Campione d’Italia enclave, being surrounded by Swiss territory. He even took the view that, given the integration of Campione d’Italia into the Canton of Ticino, in particular its economic integration, it would have been appropriate for the Swiss authorities to treat him as a Swiss national for the purposes of the sanctions regime. Moreover, he asserted that, contrary to the Government’s allegation, he did not have the option of living elsewhere in Italy.","157. The applicant further observed that the addition of his name to the list annexed to the Taliban Ordinance had caused damage to his honour and reputation, since that list enumerated persons suspected of helping to finance terrorism. In support of that view he referred to the case of Sayadi and Vinck v. Belgium (see paragraphs 88-92 above) in which the Human Rights Committee found that the addition of the complainants’ names to the Sanctions Committee’s list had constituted an unlawful attack on their honour.","158. In the applicant’s submission, those circumstances were aggravated by the fact that he had never been given an opportunity to challenge the merits of the allegations against him.","159. There had thus been a violation of Article 8 on various counts.","(b) The Government","160. The Government observed that the applicant had been free to receive all the visits he wished in Campione d’Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d’Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the exhaustion of domestic remedies, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8.","161. In response to the applicant’s allegation that he had never been able to find out the factors which had led to the impugned measures, or to challenge them before a court, the Government stated that, as shown in their earlier observations, the impugned measures had not breached the applicant’s rights under Article 8. Consequently, the procedural aspect of that provision was not applicable.","162. For those reasons the Government were of the opinion that the restrictions imposed did not constitute an interference with the applicant’s rights under Article 8. If the Court were to find otherwise, the Government argued that the measure was in any event necessary in a democratic society under Article 8 § 2.","2. The Court’s assessment","(a) Whether there has been an interference","163. The Court finds it appropriate to begin by examining the applicant’s allegation that he sustained interference with his right to respect for his private and family life on account of the fact that he was prohibited from entering or passing through Switzerland.","164. The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory. In other words, the Convention does not as such guarantee the right of an alien to enter a particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII; Boujlifa v. France, 21 October 1997, § 42, Reports 1997 ‑ VI; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94).","165. In the present case, the Court observes that the Federal Court found that the impugned measure constituted a significant restriction on the applicant’s freedom (see paragraph 52 above), as he was in a very specific situation on account of the location of Campione d’Italia, an enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that opinion. It takes the view that the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others – in particular his friends and family – living outside the enclave (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v. Switzerland, no. 24404/05, §§ 69-72, both judgments of 29 July 2010).","166. In view of the foregoing, the Court finds that there has been an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1.","(b) Whether the interference was justified","167. The interference with the applicant’s right to respect for his private and family life, as found above, will breach Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether it was “in accordance with the law”, pursued one or more of the legitimate aims enumerated in that paragraph and was “necessary in a democratic society” to achieve such aims. The Court finds it appropriate first to reiterate certain principles that will guide it in its subsequent examination.","(i) General principles","168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (see Bosphorus, cited above, § 153, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein).","169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18).","170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited above, § 55; and the Banković decision, cited above, §§ 55 ‑ 57; see also the references cited in the International Law Commission study group’s report entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, paragraph 81 above).","171. As regards, more specifically, the question of the relationship between the Convention and Security Council resolutions, the Court found as follows in its Al-Jedda judgment (cited above):","“101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment.","102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to ‘achieve international cooperation in ... promoting and encouraging respect for human rights and fundamental freedoms’. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.”","172. The Grand Chamber confirms those principles. However, in the present case it observes that, contrary to the situation in Al-Jedda, where the wording of the resolution in issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the above-mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that Resolution (see also paragraph 7 of Resolution 1267 (1999), paragraph 70 above, in which the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the Resolution).","(ii) Legal basis","173. The Court notes that the question of the existence of a legal basis is not a matter of dispute between the parties. It observes that the impugned measures were taken pursuant to the Taliban Ordinance, adopted to implement the relevant Security Council resolutions. To be precise, the ban on entry into and transit through Switzerland was based on Article 4a of that Ordinance (see paragraph 66 above). The measures therefore had a sufficient legal basis.","(iii) Legitimate aim","174. The applicant did not appear to deny that the impugned restrictions were imposed in pursuit of legitimate aims. The Court finds it established that those restrictions pursued one or more of the legitimate aims enumerated in Article 8 § 2: firstly, they sought to prevent crime, and, secondly, as the relevant Security Council resolutions had been adopted to combat international terrorism under Chapter VII of the United Nations Charter (“Action with respect to threats to the peace, breaches of the peace, and acts of aggression”), they were also capable of contributing to Switzerland’s national security and public safety.","(iv) “Necessary in a democratic society”","(α) Implementation of Security Council resolutions","175. The respondent Government, together with the French and United Kingdom Governments, intervening as third parties, argued that the Swiss authorities had no latitude in implementing the relevant Security Council resolutions in the present case. The Court must therefore firstly examine those resolutions in order to determine whether they left States any freedom in their implementation and, in particular, whether they allowed the authorities to take into account the very specific nature of the applicant’s situation and therefore to meet the requirements of Article 8 of the Convention. In order to do so, it will particularly take account of the wording of those resolutions and the context in which they were adopted (see Al-Jedda, cited above, § 76, with the reference cited therein to the relevant case-law of the International Court of Justice). It will moreover have regard to the objectives pursued by those resolutions (see, to that effect, the Kadi judgment of the CJEC, § 296, paragraph 86 above), as stated mainly in the preambles thereto, read in the light of the purposes and principles of the United Nations.","176. The Court observes that Switzerland did not become a member of the United Nations until 10 September 2002: it had thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a member of that organisation, whereas it was already bound by the Convention. Similarly, it had implemented at domestic level the entry-and-transit ban concerning the applicant, as required by Resolution 1390 (2002) of 16 January 2002 (see paragraph 74 above), on 1 May of that year by the amendment of Article 4a of the Taliban Ordinance. The Court acknowledges that this Resolution, particularly in the light of paragraph 2, was addressed to “all States” and not only the members of the United Nations. However, the Court observes that the United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to United Nations member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions (see to the same effect, mutatis mutandis, the Kadi judgment of the CJEC, § 298, paragraph 86 above).","177. In the present case, the applicant mainly challenged the Swiss entry-and-transit ban imposed on him in particular through the implementation of Resolution 1390 (2002). Whilst paragraph 2(b) of that Resolution required States to take such measures, it stated that the ban did “not apply where entry or transit [was] necessary for the fulfilment of a judicial process ...” (see paragraph 74 above). In the Court’s view, the term “necessary” was to be construed on a case-by-case basis.","178. In addition, in paragraph 8 of Resolution 1390 (2002), the Security Council “[urged] all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory ...” (see paragraph 74 above). The wording “where appropriate” also had the effect of affording the national authorities a certain flexibility in the mode of implementation of the Resolution.","179. Lastly, the Court would refer to the motion by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counterterrorism resolutions (see paragraph 63 above). Even though that motion was drafted in rather general terms, it can nevertheless be said that the applicant’s case was one of the main reasons for its adoption. In any event, in the Court’s view, the Swiss Parliament, in adopting that motion, was expressing its intention to allow a certain discretion in the application of the Security Council’s counterterrorism resolutions.","180. In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council.","(β) Whether the interference was proportionate in the present case","181. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, S. and Marper, cited above, § 101, and Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with the cases cited therein).","182. The object and purpose of the Convention, being a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145), call for its provisions to be interpreted and applied in a manner that renders its guarantees practical and effective (see, among other authorities, Artico v. Italy, 13 May 1980, § 33, Series A no. 37). Thus, in order to ensure “respect” for private and family life within the meaning of Article 8, the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 86, 13 December 2007).","183. The Court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right in issue whilst fulfilling the same aim must be ruled out (see Glor, cited above, § 94).","184. In any event, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, S. and Marper, cited above, § 101, and Coster, cited above, § 104). A margin of appreciation must be left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference (see S. and Marper, cited above, § 102).","185. In order to address the question whether the measures taken against the applicant were proportionate to the legitimate aim that they were supposed to pursue, and whether the reasons given by the national authorities were “relevant and sufficient”, the Court must examine whether the Swiss authorities took sufficient account of the particular nature of his case and whether they adopted, in the context of their margin of appreciation, the measures that were called for in order to adapt the sanctions regime to the applicant’s individual situation.","186. In doing so, the Court is prepared to take account of the fact that the threat of terrorism was particularly serious at the time of the adoption, between 1999 and 2002, of the resolutions prescribing those sanctions. That is unequivocally shown by both the wording of the resolutions and the context in which they were adopted. However, the maintaining or even reinforcement of those measures over the years must be explained and justified convincingly.","187. The Court observes in this connection that the investigations conducted by the Swiss and Italian authorities concluded that the suspicions about the applicant’s participation in activities related to international terrorism were clearly unfounded. On 31 May 2005 the Swiss Federal Prosecutor closed the investigation opened in October 2001 in respect of the applicant, and on 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the proceedings against him in Italy had been discontinued (see paragraph 56 above). The Federal Court, for its part, observed that the State which had conducted the investigations and criminal proceedings could not itself proceed with the deletion, but it could at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting (see paragraph 51 above).","188. In this connection the Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005 (see paragraph 61 above). Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (see, in this connection, Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above).","189. As regards the scope of the prohibition in question, the Court emphasises that it prevented the applicant not only from entering Switzerland but also from leaving Campione d’Italia at all, in view of its situation as an enclave, even to travel to any other part of Italy, the country of which he was a national, without breaching the sanctions regime.","190. Moreover, the Court considers that the applicant could not reasonably have been required to move from Campione d’Italia, where he had been living since 1970, to settle in another region of Italy, especially as it cannot be ruled out that, as a result of the freeze imposed by paragraph 1(c) of Resolution 1373 (2001) (see paragraph 73 above), he could no longer dispose freely of all his property and assets. Regardless of whether a request for authorisation to move house would have had any chance of success, it should be pointed out that the right to respect for one’s home is protected by Article 8 of the Convention (see, for example, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004 ‑ XI, and Gillow, cited above, § 46).","191. The Court would further observe that the present case has a medical aspect that should not be underestimated. The applicant was born in 1931 and has health problems (see paragraph 14 above). The Federal Court itself found that, although Article 4a § 2 of the Taliban Ordinance was formulated more as an enabling provision, it did oblige the authorities to grant an exemption in all cases where the United Nations sanctions regime so permitted, as a more far-reaching restriction on individual freedom of movement would not have been justified either by the Security Council resolutions or by the public interest and would have been disproportionate in the light of the applicant’s particular situation (see paragraph 52 above).","192. In reality, the IMES and the FOM denied a number of requests for exemption from the entry-and-transit ban that had been submitted by the applicant for medical reasons or in connection with judicial proceedings. He did not appeal against those refusals. Moreover, in the two cases where his requests were accepted, he waived the use of those exemptions (for one and two days respectively), finding that their length was not sufficient for him to make the intended journeys in view of his age and the considerable distance to be covered. The Court can understand that he may have found those exemptions to be insufficient in duration, in view of the above-mentioned factors (see, in particular, paragraph 191 above).","193. It should be pointed out in this connection that, under paragraph 2(b) of Resolution 1390 (2002), the Sanctions Committee was entitled to grant exemptions in specific cases, especially for medical, humanitarian or religious reasons. During the meeting of 22 February 2008 (see paragraph 54 above), a representative of the Federal Department of Foreign Affairs indicated that the applicant could request the Sanctions Committee to grant a broader exemption in view of his particular situation. The applicant did not make any such request, but it does not appear, in particular from the record of that meeting, that the Swiss authorities offered him any assistance to that end.","194. It has been established that the applicant’s name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least until the adoption of Resolution 1730 (2006), it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure. Indeed, in the applicant’s case Switzerland was neither his State of citizenship nor his State of residence, and the Swiss authorities were not therefore competent to undertake such action. However, it does not appear that Switzerland ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose (see, mutatis mutandis, the case of Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above). It can be seen from the record of the meeting of 22 February 2008 (see paragraph 54 above) that the authorities merely suggested that the applicant contact the Italian Permanent Mission to the United Nations, adding that Italy at that time had a seat on the Security Council.","195. The Court acknowledges that Switzerland, along with other States, made considerable efforts that resulted, after a few years, in improvement to the sanctions regime (see paragraphs 64 and 78 above). It is of the opinion, however, in view of the principle that the Convention protects rights that are not theoretical or illusory but practical and effective (see Artico, cited above, § 33), that it is important in the present case to consider the measures that the national authorities actually took, or sought to take, in response to the applicant’s very specific situation. In this connection, the Court considers in particular that the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health. It further finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order should have allowed some alleviation of the sanctions regime applicable to the applicant, having regard to those realities, in order to avoid interference with his private and family life, without however circumventing the binding nature of the relevant resolutions or compliance with the sanctions provided for therein.","196. In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see, for example, Soering, cited above, § 87, and Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25), the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation.","197. That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent (see, in this connection, paragraphs 81 and 170 above).","198. Having regard to all the circumstances of the present case, the Court finds that the restrictions imposed on the applicant’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other. Consequently, the interference with his right to respect for private and family life was not proportionate and therefore not necessary in a democratic society.","(γ) Conclusion","199. In view of the foregoing, the Court dismisses the Government’s preliminary objection that the application was incompatible ratione materiae with the Convention and, ruling on the merits, finds that there has been a violation of Article 8 of the Convention. Having regard to that conclusion, and notwithstanding that the applicant’s allegation that the addition of his name to the list annexed to the Taliban Ordinance also impugned his honour and reputation constitutes a separate complaint, the Court finds that it does not need to examine that complaint separately.","III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION","200. The applicant complained that he had not had an effective remedy by which to have his Convention complaints examined. He thus alleged that there had been a violation of Article 13, which reads as follows:","“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”","A. Admissibility","201. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It finds, moreover, that no other ground for declaring it inadmissible has been established. The complaint should thus be declared admissible.","B. Merits","1. The parties’ submissions","(a) The applicant","202. The applicant argued, relying on the Al-Nashif v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests of the protection of sources and information critical to national security, on the one hand, and the right to an effective remedy, on the other, could be reconciled through a specially adapted procedure. In the present case, however, no such procedure had been available, either before United Nations bodies or before the domestic authorities.","203. He further pointed out that the above-mentioned Sayadi and Vinck case (see paragraphs 88-92 above), where the Human Rights Committee had concluded that an effective remedy was constituted by the court order requiring the Belgian government, which had forwarded the complainants’ names to the Sanctions Committee in the first place, to submit a delisting request to that Committee, was not relevant to the present case for two reasons. Firstly, because he was not complaining that Switzerland had failed to have his name removed from the United Nations list; the Human Rights Committee had clearly confirmed that the relevant authority lay entirely with the Sanctions Committee and not with the State itself. Secondly, in his case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi and Vinck, although observing that the respondent Government were obliged to support the applicant in any endeavour to secure delisting, had not actually ordered it to do so.","204. The applicant thus argued that the conformity of the impugned measures with Articles 3, 8 and 9 of the Convention was not subject to the scrutiny of any domestic court and that, accordingly, there had been a violation of Article 13.","(b) The Government","205. In the Government’s submission, Article 13 required that where an individual had an arguable complaint that there had been a violation of the Convention, he or she should have a remedy before a “national authority”. The Government submitted that, having regard to their previous arguments, the applicant’s complaints were not made out. They argued that, should the Court decide not to follow that assessment, there had not in any event been a violation of Article 13 taken in conjunction with Article 8 in the present case.","206. The Government pointed out that the applicant had requested the deletion of his name and those of the organisations with which he was associated from the list annexed to the Taliban Ordinance. That request had apparently been examined by the Federal Court, which had found that the applicant did not have an effective remedy in respect of that issue since, being bound by the Security Council resolutions, it was not able to annul the sanctions imposed on the applicant. The Federal Court had nevertheless emphasised that, in that situation, it was for Switzerland to request the applicant’s delisting or to support such a procedure initiated by him. In this connection, the Government observed that Switzerland was not itself entitled to lodge a delisting request – as the applicant did not have Swiss nationality and did not live in Switzerland – as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant himself, and it had apparently done so by sending his lawyer a formal attestation of the discontinuance of criminal proceedings against him.","2. The Court’s assessment","(a) Applicable principles","207. The Court observes that Article 13 guarantees the availability at national level of a remedy by which to complain about a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21 December 2000, with the cases cited therein, especially Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996 ‑ VI). Under certain conditions, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, in particular, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116).","208. However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts, cited above, § 40), but seeks only to ensure that anyone who makes an arguable complaint about a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39).","(b) Application of those principles to the present case","209. The Court is of the opinion that, in view of its finding of a violation of Article 8 above, the complaint is arguable. It therefore remains to be ascertained whether the applicant had, under Swiss law, an effective remedy by which to complain of the breaches of his Convention rights.","210. The Court observes that the applicant was able to apply to the national authorities to have his name deleted from the list annexed to the Taliban Ordinance and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine on the merits his complaints concerning the alleged violations of the Convention. In particular, the Federal Court took the view that whilst it could verify whether Switzerland was bound by the Security Council resolutions, it could not lift the sanctions imposed on the applicant on the ground that they did not respect human rights (see paragraph 50 above).","211. The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level, even after its improvement by the most recent resolutions, could not be regarded as an effective remedy within the meaning of Article 13 of the Convention (ibid.).","212. The Court would further refer to the finding of the CJEC that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” (see the Kadi judgment of the CJEC, § 299, paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council Resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those Resolutions.","213. Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above).","214. Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8.","IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION","215. Relying on Article 5 § 1 of the Convention, the applicant argued that by preventing him from entering or transiting through Switzerland, because his name was on the Sanctions Committee’s list, the Swiss authorities had deprived him of his liberty. Under Article 5 § 4, he complained that the authorities had not undertaken any review of the lawfulness of the restrictions to his freedom of movement. Those provisions read as follows:","“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:","(a) the lawful detention of a person after conviction by a competent court;","(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;","(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;","(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;","(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;","(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.","...","4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.","...”","1. Submissions of the parties and third-party interveners","(a) The Government","216. The Government, referring to the Guzzardi v. Italy (6 November 1980, Series A no. 39) and S.F. v. Switzerland (no. 16360/90, Commission decision of 2 March 1994, Decisions and Reports 76-B, pp. 13 et seq.) cases, argued that there had been no “deprivation of liberty” in the present case. They stated that the purpose of the measure in question had never been to confine the applicant to the territory of Campione d’Italia. Only a ban on entering and transiting through Switzerland had been imposed on him. The fact that the applicant found that his movements were restricted by the impugned measure was attributable only to himself, because he had chosen to live in an Italian enclave surrounded by Swiss territory. Neither the sanctions as decided by the United Nations, nor their implementation by the Swiss authorities, had obliged him to remain a resident of Campione d’Italia. At any time he could thus have requested authorisation to transfer his home to another part of Italy.","217. As regards the effects and conditions of the measure, the Government observed that the applicant was not subject to any restriction apart from the ban – albeit theoretical in their view – on his entry into or transit through Switzerland. In particular, he was not under surveillance by the Swiss authorities, had no specific obligations and could have received as many visits as he wished. He was also able, at all times, to meet his lawyers freely. The Government further pointed out that the border between Campione d’Italia and Switzerland was not patrolled, so the ban on entry into Switzerland could not have been perceived by him as a physical obstacle.","218. For those reasons the Government contended that the impugned measure could not be regarded as a deprivation of liberty within the meaning of Article 5 § 1.","(b) The applicant","219. The applicant argued that the present case could not be compared to S.F. v. Switzerland (cited above), in which the Commission had declared inadmissible the complaint of an applicant under Article 5 that he had not been authorised to leave Campione d’Italia for several years. Firstly, in the applicant’s case the inability to leave the area was not the result of a criminal conviction and, secondly, he had been unable to challenge the impugned restrictions in the context of a fair hearing, unlike the applicant in S.F. v. Switzerland.","220. The applicant did not dispute the fact that no physical obstacle prevented him from leaving Campione d’Italia, but he pointed out that the border with Switzerland was nevertheless occasionally subject to spot-checks and that, if it had been discovered in the context of such a check that he was attempting to enter a territory from which he was banned, he would have faced proceedings entailing heavy penalties.","221. The applicant stated that Campione d’Italia had a surface area of 1.6 sq. km and that, therefore, the space in which he could move freely was even smaller than that of the applicant in Guzzardi (cited above), who was on an island of 2.5 sq. km.","222. Moreover, the applicant pointed out that even the Federal Court itself had recognised that the restrictions amounted in effect to house arrest. For all those reasons, he contended that Article 5 § 1 should be applicable in his case.","(c) The French Government","223. The French Government, intervening as a third party, were of the opinion that Article 5 of the Convention could not be applicable to the situation of a person who was refused entry into or transit through a given territory, and that the particular circumstances of the case, stemming from the applicant’s residence in an Italian enclave within the Canton of Ticino, could not change that assessment, unless the substance of that provision were to be substantially distorted.","2. The Court’s assessment","224. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or is provided for by a lawful derogation under Article 15 of the Convention, which allows for a Contracting State “[i]n time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, among other authorities, Al-Jedda, cited above, § 99; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-63, ECHR 2009; and Ireland v. the United Kingdom, cited above, § 194).","225. Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, a Protocol not ratified by Switzerland. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; Guzzardi, cited above, §§ 92 ‑ 93; Storck v. Germany, no. 61603/00, § 71, ECHR 2005 ‑ V; and Engel and Others v. the Netherlands, 8 June 1976, § 59, Series A no. 22).","226. The Court is further of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question (see Engel and Others, § 59, and Guzzardi, § 92, both cited above) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel and Others, § 59, and Amuur, § 43, both cited above). Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, mutatis mutandis, Austin and Others, cited above, § 59).","227. The Court observes that, in support of his argument that Article 5 must apply in the present case, the applicant relied particularly on the above-cited Guzzardi case. In that case, the application had been lodged by an individual who, being suspected of belonging to a “band of mafiosi”, had been forced to live on an island within an (unfenced) area of 2.5 sq. km, together with other residents in a similar situation and supervisory staff. The Court found that the applicant had been “deprived of his liberty” within the meaning of Article 5 and that he could therefore rely on the guarantees under that provision (see also Giulia Manzoni v. Italy, 1 July 1997, §§ 18 ‑ 25, Reports 1997 ‑ IV).","228. By contrast, in the S.F. v. Switzerland case (cited above), where the applicant complained about not being authorised to leave Campione d’Italia for several years, the Commission declared the complaint inadmissible, finding that Article 5 was not applicable in that case. The Grand Chamber finds it appropriate in the present case to opt for the latter approach, for the following reasons.","229. In the applicant’s concrete situation, the Court acknowledges that the restrictions were maintained for a considerable length of time. However, it observes that the area in which the applicant was not allowed to travel was the territory of a third country, Switzerland, and that, under international law, that country had the right to prevent the entry of an alien (see paragraph 164 above). The restrictions in question did not prevent the applicant from freely living and moving within the territory of his permanent residence, where he had chosen, of his own free will, to live and carry on his activities. The Court considers that, in these circumstances, his case differs radically from the factual situation in Guzzardi (cited above) and that the prohibition imposed upon the applicant does not raise an issue under Article 5 of the Convention.","230. The Court further recognises that Campione d’Italia represents a small area of territory. However, it observes that the applicant was not, strictly speaking, in a situation of detention, nor was he actually under house arrest: he was merely prohibited from entering or transiting through a given territory, and as a result of that measure he was unable to leave the enclave.","231. In addition, the Court notes that the applicant did not dispute before it the Swiss Government’s assertion that he had not been subjected to any surveillance by the Swiss authorities and had not been obliged to report regularly to the police (contrast Guzzardi, cited above, § 95). Nor does it appear, moreover, that he was restricted in his freedom to receive visitors, whether his family, his doctors or his lawyers (ibid.).","232. Lastly, the Court would point out that the sanctions regime permitted the applicant to seek exemptions from the entry or transit ban and that such exemptions were indeed granted to him on two occasions but he did not make use of them.","233. Having regard to all the circumstances of the present case, and in accordance with its case-law, the Court, like the Federal Court (see paragraph 48 above), finds that the applicant was not “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland.","234. It follows that the complaints under Article 5 of the Convention are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.","V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION","235. Relying essentially on the same arguments as those examined by the Court under Articles 5 and 8, the applicant complained of treatment in breach of Article 3. He further alleged that his inability to leave the enclave of Campione d’Italia to go to a mosque had breached his freedom to manifest his religion or belief as guaranteed by Article 9.","236. In view of all the material in its possession, and even supposing that those complaints had been duly raised before the domestic courts, the Court does not find any appearance of a violation of Articles 3 and 9 of the Convention.","237. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.","VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION","238. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","239. The applicant did not submit any claim in respect of pecuniary or non-pecuniary damage.","240. Accordingly, there is no call to award him any sum on that account.","B. Costs and expenses","241. As regards costs and expenses, the applicant sought the reimbursement of 75,000 pounds sterling plus value-added tax, for his lawyers’ fees in connection with the proceedings before the Court, together with 688.22 euros (EUR) for expenses incurred by his lawyer in travelling to Campione d’Italia, for telephone calls and for office expenses.","242. The Government pointed out that the applicant had chosen to be represented by a lawyer practising in London who charged an hourly rate that was much higher than the average rates in Switzerland, and that this choice had entailed considerable travel expenses. In their submission, even if it were to be accepted that the present case was indeed as complex as the applicant claimed, the number of hours invoiced was excessive. Consequently, they submitted that in the event of the application being upheld, an amount of no more than 10,000 Swiss francs would be a fair award.","243. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, ECHR 2010). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (ibid.).","244. The Court does not share the Government’s opinion that the applicant should assume the consequences of his choice to be represented by a British lawyer. It would point out in this connection that, under Rule 36 § 4 (a) of the Rules of Court, the applicant’s representative must be “an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them ...”. However, it notes that only the complaints submitted under Articles 8 and 13 resulted, in the present case, in a finding of a violation of the Convention. The remainder of the application is inadmissible. The sum claimed by the applicant is therefore excessive.","245. Consequently, having regard to the material in its possession and the criteria set out above, the Court finds it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses he has incurred in the proceedings before it.","C. Default interest","246. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE\",\n \"A. Domestic law\",\n \"1. Federal Constitution\",\n \"65. Article 190 (“Applicable law”) of the Federal Constitution provides:\",\n \"“The Federal Court and the other authorities shall be required to apply federal statutes and international law.”\",\n \"2. Ordinance of 2 October 2000 instituting measures against persons and entities associated with Osama bin Laden, the group “al ‑ Qaeda” or the Taliban (“the Taliban Ordinance”)\",\n \"66. The Ordinance of 2 October 2000, instituting measures against persons and entities associated with Osama bin Laden, the group “al-Qaeda” or the Taliban, has been amended several times. The relevant provisions read as follows, in the version that was in force in the period under consideration in the present case, and in particular at the time when the Federal Court delivered its judgment (14 November 2007).\",\n \"Article 1 – Ban on supply of military equipment and similar goods\",\n \"“1. The supply, sale or brokerage of arms of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts or accessories for the above-mentioned, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.\",\n \"...\",\n \"3. The supply, sale or brokerage of technical advice, assistance and training related to military activities, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.\",\n \"4. Paragraphs 1 and 3 above shall apply only to the extent that the Property Regulation Act of 13 December 1996, the Federal Act on War Materiel of 13 December 1996 and their respective implementing ordinances are not applicable.\",\n \"...”\",\n \"Article 3 – Freezing of assets and economic resources\",\n \"“1. Assets and economic resources owned or controlled by the individuals, undertakings, groups or entities referred to in Annex 2 hereto shall be frozen.\",\n \"2. It shall be prohibited to supply funds to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, or to make assets or economic resources available to them, directly or indirectly.\",\n \"3. The State Secretariat for Economic Affairs (SECO) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs 1 and 2 above.\",\n \"4. The SECO may authorise, after consulting the competent services of the Federal Department of Foreign Affairs and the Federal Department of Finance, payments from blocked accounts, transfers of frozen capital assets and the release of frozen economic resources, in order to protect Swiss interests or to prevent hardship cases.”\",\n \"Article 4 – Mandatory declaration\",\n \"“1. Anyone holding or managing assets acknowledged to be covered by the freezing of assets under Article 3 § 1 hereof must immediately declare them to the SECO.\",\n \"2. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 3 § 1 hereof must immediately declare them to the SECO.\",\n \"3. The declaration must give the name of the beneficiary, the purpose and the amount of the assets or economic resources frozen.”\",\n \"Article 4a – Entry into and transit through Switzerland\",\n \"“1. Entry into and transit through Switzerland shall be prohibited for the individuals listed in Annex 2 hereto.\",\n \"2. The Federal Office for Migration may, in conformity with the decisions of the United Nations Security Council or for the protection of Swiss interests, grant exemptions.”\",\n \"B. International law\",\n \"1. United Nations Charter\",\n \"67. The United Nations Charter was signed in San Francisco on 26 June 1945. The relevant provisions for the present case read as follows.\",\n \"Preamble\",\n \"“ We the peoples of the United Nations, determined\",\n \"to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and\",\n \"to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and\",\n \"to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and\",\n \"to promote social progress and better standards of life in larger freedom,\",\n \"and for these ends\",\n \"to practice tolerance and live together in peace with one another as good neighbors, and\",\n \"to unite our strength to maintain international peace and security, and\",\n \"to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and\",\n \"to employ international machinery for the promotion of the economic and social advancement of all peoples,\",\n \"have resolved to combine our efforts to accomplish these aims.\",\n \"Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.”\",\n \"Article 1\",\n \"“The Purposes of the United Nations are:\",\n \"1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;\",\n \"...\",\n \"3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and\",\n \"...”\",\n \"Article 24\",\n \"“1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.\",\n \"2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.\",\n \"...”\",\n \"Article 25\",\n \"“The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”\",\n \"68. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. Article 39 reads as follows:\",\n \"“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”\",\n \"69. Chapter XVI is entitled “Miscellaneous Provisions”. Article 103 reads as follows:\",\n \"“In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”\",\n \"2. Resolutions adopted by the Security Council in connection with its measures against al ‑ Qaeda and the Taliban and that are relevant to the present case\",\n \"70. Resolution 1267 (1999) was adopted on 15 October 1999. It created the Sanctions Committee, consisting of all Security Council members. This Committee was in particular entrusted with the task of requesting all States to keep it informed of the steps taken to ensure the effective implementation of the measures required under the Resolution, namely the denial of permission for aircraft associated with the Taliban to use their territory for take-off or landing, unless the Sanctions Committee had approved the flight in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s funds and other financial resources. The relevant parts of this Resolution read as follows.\",\n \"Resolution 1267 (1999)\",\n \"“...\",\n \"The Security Council,\",\n \"Reaffirming its previous resolutions, in particular Resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998 and 1214 (1998) of 8 December 1998, and the statements of its President on the situation in Afghanistan,\",\n \"Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,\",\n \"Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law,\",\n \"Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists,\",\n \"Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security,\",\n \"Deploring the fact that the Taliban continues to provide safe haven to [Osama bin Laden] and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations,\",\n \"Noting the indictment of [Osama bin Laden] and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S/1999/1021),\",\n \"Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security,\",\n \"Stressing its determination to ensure respect for its resolutions,\",\n \"Acting under Chapter VII of the Charter of the United Nations,\",\n \"...\",\n \"3. Decides that on 14 November 1999 all States shall impose the measures set out in paragraph 4 below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph 2 above;\",\n \"4. Decides further that, in order to enforce paragraph 2 above, all States shall:\",\n \"(a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph 6 below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj;\",\n \"(b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need;\",\n \"5. Urges all States to cooperate with efforts to fulfil the demand in paragraph 2 above, and to consider further measures against [Osama bin Laden] and his associates;\",\n \"6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations:\",\n \"...\",\n \"7. Calls upon all States to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph 4 above;\",\n \"8. Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph 4 above and to impose appropriate penalties;\",\n \"9. Calls upon all States to cooperate fully with the Committee established by paragraph 6 above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this Resolution;\",\n \"10. Requests all States to report to the Committee established by paragraph 6 above within 30 days of the coming into force of the measures imposed by paragraph 4 above on the steps they have taken with a view to effectively implementing paragraph 4 above;\",\n \"...”\",\n \"71. By Resolution 1333 (2000), adopted on 19 December 2000, the Security Council extended the application of the sanctions provided for under Resolution 1267 (1999) to any individuals or entities identified by the Sanctions Committee as being associated with al-Qaeda or Osama bin Laden. The Resolution further required a list to be maintained for the implementation of the United Nations sanctions. The passages that are relevant to the present case read as follows.\",\n \"Resolution 1333 (2000)\",\n \"“...\",\n \"The Security Council,\",\n \"Reaffirming its previous resolutions, in particular Resolution 1267 (1999) of 15 October 1999 and the statements of its President on the situation in Afghanistan,\",\n \"Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,\",\n \"Recognizing the critical humanitarian needs of the Afghan people,\",\n \"...\",\n \"8. Decides that all States shall take further measures:\",\n \"(a) To close immediately and completely all Taliban offices in their territories;\",\n \"(b) To close immediately all offices of Ariana Afghan Airlines in their territories;\",\n \"(c) To freeze without delay funds and other financial assets of [Osama bin Laden] and individuals and entities associated with him as designated by the Committee, including those in the [al-Qaeda] organization, and including funds derived or generated from property owned or controlled directly or indirectly by [Osama bin Laden] and individuals and entities associated with him, and to ensure that neither they nor any other funds or financial resources are made available, by their nationals or by any persons within their territory, directly or indirectly for the benefit of [Osama bin Laden], his associates or any entities owned or controlled, directly or indirectly, by [Osama bin Laden] or individuals and entities associated with him including the [al-Qaeda] organization and requests the Committee to maintain an updated list, based on information provided by States and regional organizations, of the individuals and entities designated as being associated with [Osama bin Laden], including those in the [al-Qaeda] organization;\",\n \"...\",\n \"12. Decides further that the Committee shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate, that the prohibition imposed by paragraph 11 above shall not apply to humanitarian flights operated by, or on behalf of, organizations and governmental relief agencies on the list approved by the Committee, that the Committee shall keep the list under regular review, adding new organizations and governmental relief agencies as appropriate and that the Committee shall remove organizations and governmental agencies from the list if it decides that they are operating, or are likely to operate, flights for other than humanitarian purposes, and shall notify such organizations and governmental agencies immediately that any flights operated by them, or on their behalf, are thereby subject to the provisions of paragraph 11 above;\",\n \"...\",\n \"16. Requests the Committee to fulfil its mandate by undertaking the following tasks in addition to those set out in Resolution 1267 (1999):\",\n \"(a) To establish and maintain updated lists based on information provided by States, regional, and international organizations of all points of entry and landing areas for aircraft within the territory of Afghanistan under control by the Taliban and to notify member States of the contents of such lists;\",\n \"(b) To establish and maintain updated lists, based on information provided by States and regional organizations, of individuals and entities designated as being associated with [Osama bin Laden], in accordance with paragraph 8 (c) above;\",\n \"(c) To give consideration to, and decide upon, requests for the exceptions set out in paragraphs 6 and 11 above;\",\n \"(d) To establish no later than one month after the adoption of this Resolution and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above;\",\n \"...\",\n \"17. Calls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraphs 5, 8, 10 and 11 above;\",\n \"...”\",\n \"72. In Resolution 1363 (2001), adopted on 30 July 2001, the Security Council decided to set up a mechanism to monitor the measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring Group”), consisting of up to five experts selected on the basis of equitable geographical distribution.\",\n \"73. In Resolution 1373 (2001), adopted on 28 September 2001 – following the events of 11 September 2001 – the Security Council decided that States should take a series of measures to combat international terrorism and ensure effective border controls in this connection. The passages that are relevant to the present case read as follows.\",\n \"Resolution 1373 (2001)\",\n \"“...\",\n \"The Security Council,\",\n \"...\",\n \"1. Decides that all States shall:\",\n \"(a) Prevent and suppress the financing of terrorist acts;\",\n \"(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;\",\n \"(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;\",\n \"(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;\",\n \"2. Decides also that all States shall:\",\n \"(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;\",\n \"(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;\",\n \"(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;\",\n \"(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;\",\n \"(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;\",\n \"...\",\n \"3. Calls upon all States to:\",\n \"...\",\n \"(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts;\",\n \"...”\",\n \"74. In Resolution 1390 (2002), adopted on 16 January 2002, the Security Council decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions. This Resolution also made the sanctions regime more precise and transparent, because the Sanctions Committee was requested to update regularly the list of persons concerned by the sanctions, to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions, and to make any information it considered relevant, including the list of persons concerned, publicly available. The passages that are relevant to the present case read as follows:\",\n \"Resolution 1390 (2002)\",\n \"“...\",\n \"The Security Council,\",\n \"...\",\n \"2. Decides that all States shall take the following measures with respect to [Osama bin Laden], members of the [al-Qaeda] organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the Committee established pursuant to Resolution 1267 (1999) hereinafter referred to as ‘the Committee’;\",\n \"(a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory;\",\n \"(b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified;\",\n \"(c) Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities;\",\n \"...\",\n \"8. Urges all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee unless to do so would compromise the investigation or enforcement actions; ...”\",\n \"75. In Resolution 1526 (2004), adopted on 30 January 2004, the Security Council requested States, on the submission of new names to be added to the Committee’s list, to supply information facilitating the identification of the persons or entities concerned. It also expressly encouraged States to inform, as far as possible, the persons and entities on the Committee’s list of the measures taken against them, of the Committee’s guidelines and of Resolution 1452 (2002) concerning the possibility of exemption from certain sanctions.\",\n \"76. In response to a surge in criticism of the sanctions regime, the Security Council adopted increasingly detailed resolutions to strengthen the procedural safeguards. In this connection, Resolution 1730 (2006) established the current procedure by creating a “focal point” to receive delisting requests in respect of persons or entities on the lists kept by the Sanctions Committee. Under that Resolution the focal point was responsible for forwarding such requests, for their information and possible comments, to the designating government(s) and to the government(s) of citizenship and residence. That was to be followed by a consultation between the governments concerned, with or without the focal point acting as an intermediary. If recommended by one of those governments, the delisting request was to be placed on the agenda of the Sanctions Committee, which would take decisions by consensus among its fifteen members.\",\n \"77. Resolution 1735 (2006) established a procedure for notifying the individuals or entities whose names were on the list. It further clarified the criteria for delisting as follows:\",\n \"“14. ... the Committee, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria set out in relevant resolutions, in particular Resolution 1617 (2005); in making the evaluation in (ii) above, the Committee may consider, among other things, whether the individual is deceased, or whether it has been affirmatively shown that the individual or entity has severed all association, as defined in Resolution 1617 (2005), with [al-Qaeda], [Osama bin Laden], the Taliban, and their supporters, including all individuals and entities on the Consolidated List;”\",\n \"78. The procedure was subsequently reinforced with the adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the present case. In the latter, adopted on 17 December 2009, the Security Council decided to create an Office of the Ombudsperson, whose task is to receive requests from individuals concerned by the sanctions imposed by the Security Council in the fight against terrorism. Under that Resolution, persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the Ombudsperson, who examines each case impartially and independently and then submits a report to the Sanctions Committee explaining the reasons for or against delisting.\",\n \"3. Vienna Convention on the Law of Treaties (1969)\",\n \"79. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows:\",\n \"“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”\",\n \"80. Article 30 (“Application of successive treaties relating to the same subject matter”) reads as follows:\",\n \"“1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.\",\n \"2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.\",\n \"3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.\",\n \"4. When the parties to the later treaty do not include all the parties to the earlier one:\",\n \"(a) as between States Parties to both treaties the same rule applies as in paragraph 3;\",\n \"(b) as between a State Party to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations.\",\n \"5. Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.”\",\n \"4. Work of the United Nations International Law Commission\",\n \"81. The report of the study group of the International Law Commission entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, contains the following observations concerning Article 103 of the Charter:\",\n \"4. Harmonization – systemic integration\",\n \"“37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict:\",\n \"... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153]. [1]\",\n \"38. This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways. It may appear as the thumb-rule that when creating new obligations, States are assumed not to derogate from their obligations. Jennings and Watts, for example, note the presence of a:\",\n \"presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ..., pp. 240-44].\",\n \"39. As the International Court of Justice stated in the Right of Passage case:\",\n \"it is a rule of interpretation that a text emanating from a government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [ Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) ICJ Reports 1957 p. 142].\",\n \"...\",\n \"331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine ...”\",\n \"5. Relevant international case-law\",\n \"82. The measures taken under the Security Council resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined, at international level, by the Court of Justice of the European Communities (“CJEC”) and by the United Nations Human Rights Committee.\",\n \"(a) The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission (Court of Justice of the European Communities)\",\n \"83. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P – hereinafter “ Kadi ”) concerned the freezing of the applicants’ assets pursuant to European Community Regulations adopted in connection with the implementation of Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all United Nations member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council’s Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (“the EC Treaty”). They contended that the EC Regulations had been adopted ultra vires.\",\n \"84. On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the “General Court”) rejected those complaints and confirmed the lawfulness of the Regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens ), including those arising from the EC Treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights.\",\n \"85. Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the “Court of Justice of the European Union”). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008, the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the “Community judicature” to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this “would not entail any challenge to the primacy of that resolution in international law”.\",\n \"86. The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages:\",\n \"“...\",\n \"281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23).\",\n \"...\",\n \"290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community.\",\n \"...\",\n \"293. Observance of the undertakings given in the context of the United Nations is required just as much in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.\",\n \"294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them.\",\n \"...\",\n \"296. Although, because of the adoption of such an act, the Community is bound to take, under the EC Treaty, the measures necessitated by that act, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation.\",\n \"297. Furthermore, the Court has previously held that, for the purposes of the interpretation of the contested Regulation, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that Regulation, according to the fourth recital in the preamble thereto, is designed to implement ( Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law cited).\",\n \"298. It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of the United Nations. The Charter of the United Nations leaves the members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order.\",\n \"299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations.\",\n \"300. What is more, such immunity from jurisdiction for a Community measure like the contested Regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.”\",\n \"87. The CJEC concluded that the contested Regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled.\",\n \"(b) The case of Sayadi and Vinck v. Belgium (United Nations Human Rights Committee)\",\n \"88. In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning Communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that Resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to initiate urgently a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so.\",\n \"89. The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants’ right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State Party’s delisting requests showed that the restrictions were not necessary to protect national security or public order.\",\n \"90. The Committee also found an unlawful attack on the complainants’ honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State Party’s requests for removal, their personal contact details were still accessible to the public.\",\n \"91. In the Committee’s opinion, although the State Party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future.\",\n \"92. On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee.\",\n \"6. Relevant case-law of other States\",\n \"93. The measures in question have also been examined at national level, by the United Kingdom Supreme Court and the Canadian Federal Court.\",\n \"(a) The case of Ahmed and others v. HM Treasury (United Kingdom Supreme Court)\",\n \"94. The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions.\",\n \"95. In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations:\",\n \"“6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”\",\n \"96. He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows:\",\n \"“81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee [the Sanctions Committee]. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that Article 3 § 1 (b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that Article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny.\",\n \"82. I would treat HAY’s case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committee’s list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasury’s Sanctions Team informed his solicitors that the delisting request was submitted on 26 June 2009 but that at the Committee’s first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain delisting are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy.”\",\n \"97. The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counterterrorism context (“the Terrorism Order”) and the order implementing the al-Qaeda and Taliban Resolutions (“the al-Qaeda Order”). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown’s dissenting opinion on this point).\",\n \"(b) The case of Abdelrazik v. Canada (Minister of Foreign Affairs) (Federal Court, Canada)\",\n \"98. In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), Canada’s Federal Court took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council Resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary.\",\n \"99. Zinn J, who pronounced the lead judgment in the case, stated in particular:\",\n \"“51. I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.”\",\n \"100. He further observed:\",\n \"“54. ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.”\",\n \"101. After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban Resolutions, the judge concluded that the applicant’s right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment).\",\n \"THE LAW\",\n \"I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS\",\n \"A. Compatibility of the complaints with the Convention and Protocols thereto\",\n \"1. The parties’ submissions\",\n \"(a) The Government\",\n \"102. The Government requested the Court to declare the application inadmissible as being incompatible ratione personae with the Convention. They argued that the impugned measures had been based on Security Council Resolutions 1267 (1999) et seq., which, under Articles 25 and 103 of the United Nations Charter, were binding and prevailed over any other international agreement. In this connection they referred in particular to the provisional measures order of the International Court of Justice in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 15, § 39:\",\n \"“Whereas both Libya and the United Kingdom, as members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in Resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;”\",\n \"The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the measures in issue.\",\n \"103. The Government added that those measures, emanating as they did from the United Nations Security Council, fell outside the scope of the Court’s review. The application in the present case was therefore also inadmissible ratione materiae.\",\n \"(b) The applicant\",\n \"104. The applicant argued that his application was compatible ratione personae with the Convention. He took the view that the direct effect of the obligations under the Security Council Resolutions was irrelevant to the issue of whether or not the restrictions imposed on him were attributable to the respondent State, since those restrictions had been authorised by the Government at national level in accordance with Article 190 of the Federal Constitution. Relying on Article 27 of the Vienna Convention on the Law of Treaties, he added that Switzerland could not hide behind its domestic legal arrangements when it came to fulfilling its international obligations (see paragraph 79 above).\",\n \"105. The applicant also took the view that the Swiss authorities had applied the possibilities of derogation envisaged in the Security Council Resolutions in a much more restrictive manner than was required by the sanctions regime. The Federal Court itself had noted this in its judgment of 14 November 2007. Rather than automatically having to implement the Security Council Resolutions, the national authorities had therefore enjoyed a certain margin of appreciation in taking the measures in issue. The applicant added in this connection that his delisting, as decided by the Sanctions Committee on 23 September 2009, had not taken effect in Switzerland until a week later. He saw this as further proof that the application of the Security Council Resolutions was not automatic.\",\n \"106. Lastly, the applicant argued that it was not a matter, in the present case, of calling into question the primacy of the United Nations Charter under Article 103 thereof – a finding of a violation of the Convention not being, in his opinion, capable of affecting the validity of States’ international obligations – but simply of ensuring that the Charter was not used as a pretext to avoid compliance with the provisions of the Convention.\",\n \"2. Submissions of third-party interveners\",\n \"(a) The French Government\",\n \"107. The French Government took the view that the reservation of Convention observance, in the sense of ensuring “equivalent protection”, could not be applied appropriately in the present case because the measures laid down by Switzerland arose necessarily from the United Nations Security Council Resolutions, which all States were required to apply and which also had to be given precedence over any other international rule. In those circumstances France was of the view that the measures in question could not be regarded as falling within Switzerland’s “jurisdiction” for the purposes of Article 1 of the Convention; otherwise that notion would be rendered meaningless.\",\n \"108. The French Government pointed out that, although in its judgment of 30 June 2005 in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) the Court had regarded as compatible with Article 1 of the Convention an application disputing the validity of a national measure simply implementing a regulation of the European Communities that itself stemmed from a Security Council resolution, the Court had noted in that judgment that it was the EC Regulation and not the Security Council Resolution that constituted the legal basis of the national measure in issue (ibid., § 145).\",\n \"109. The French Government were also convinced that, even though the measures in issue did not concern missions conducted outside the territory of the member States, like those in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”), but rather measures implemented in domestic law, the arguments emerging from that case-law, which stemmed from the nature of the Security Council’s missions and States’ obligations arising therefrom, should lead the Court likewise to declare the disputed measures attributable to the United Nations and thus to find the applicant’s complaints incompatible ratione personae with the Convention. Thus they argued that the present case provided the Court with an opportunity to transpose onto the member States’ actual territory the principles established in Behrami and Saramati, taking into account the hierarchy of international law norms and the various legal spheres arising therefrom.\",\n \"110. The French Government also pointed out that, in its Kadi judgment (see paragraph 83 above), the CJEC had relied on the constitutional nature of the EC Treaty for its review of a regulation implementing Security Council resolutions. Such considerations being absent in the present case, the French Government had difficulty conceiving what could justify a finding by the Court, in disregard of Article 103 of the United Nations Charter, that Switzerland was responsible for the implementation of resolutions that it was required to apply and to which it also had to give precedence over any other undertaking.\",\n \"(b) The United Kingdom Government\",\n \"111. The United Kingdom Government observed that the entry-and-transit ban had been imposed on the applicant in the context of the Taliban Ordinance, which they regarded as having merely implemented Security Council resolutions that were binding on all States, having been adopted under Chapter VII of the United Nations Charter (Article 25 thereof): the obligations arising from those resolutions thus took precedence, under Article 103 of the Charter, over all other international agreements. In this connection the United Kingdom Government were of the opinion that the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Article 5 or 8 of the Convention. They took the view that, particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council had used “clear and explicit language” to impose on States specific measures that might conflict with their other international obligations, in particular those arising from human rights instruments. Referring to the judgment recently delivered in Al ‑ Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011), they thus argued that the respondent State had been obliged to apply the measures in issue.\",\n \"(c) JUSTICE\",\n \"112. The organisation JUSTICE considered that the sanctions regime established by Security Council Resolution 1267 (1999) was the source of the draconian restrictions on the Convention rights of the listed persons and their families, in particular the right to respect for their private and family life, the right to the enjoyment of property and freedom of movement.\",\n \"113. The severity of that interference with Convention rights was exacerbated by the inability of the listed persons to challenge effectively the decision to list them, including the evidential basis for the decision. Consequently, the sanctions regime also failed to afford those persons and their families the right of access to a court and the right to an effective remedy. JUSTICE took the view that the procedures of the Sanctions Committee did not therefore provide equivalent protection for those Convention rights.\",\n \"114. Those conclusions, it observed, were reflected in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the United Nations Special Rapporteur on Terrorism and Human Rights and in the decisions of the Canadian Federal Court ( Abdelrazik ), the United Kingdom Supreme Court ( Ahmed ) and the CJEC ( Kadi ) (see “Relevant international case-law” and “Relevant case-law of other States”, paragraphs 82-92 and 93-101 above).\",\n \"115. JUSTICE was convinced that the Court was not obliged to interpret Article 103 of the Charter in such a manner that it would result in Convention rights being displaced. In particular, the “maintenance of international peace and security”, though the primary function of the Security Council, was not the pre-eminent principle either of international law or of the Charter. At least equal importance was to be attached to the principle of respect for fundamental rights, as indeed was reflected in the Preamble to the Charter.\",\n \"3. The Court’s assessment\",\n \"116. In the light of the arguments set out by the parties and third-party interveners, the Court must determine whether it has jurisdiction to entertain the complaints raised by the applicant. For that purpose it will have to examine whether the application falls within the scope of Article 1 of the Convention and thus engages the responsibility of the respondent State.\",\n \"(a) Compatibility ratione personae\",\n \"117. Article 1 of the Convention reads as follows:\",\n \"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”\",\n \"118. As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; Al-Jedda, cited above, § 74; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII; and Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). “Jurisdiction” under Article 1 is a threshold criterion for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others, cited above, § 130; Al-Jedda, cited above, § 74; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).\",\n \"119. The notion of jurisdiction reflects the meaning given to that term in public international law (see Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; and Banković and Others, cited above, §§ 59-61), such that a State’s jurisdiction is primarily territorial (see Al-Skeini and Others, cited above, § 131, and Banković and Others, cited above, § 59) and is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312).\",\n \"120. Relying on the Court’s decision in Behrami and Saramati (cited above), the intervening French Government, in particular, argued that the measures taken by the member States of the United Nations to implement Security Council resolutions under Chapter VII of the Charter were attributable to the United Nations and were thus incompatible ratione personae with the Convention. The Court cannot endorse that argument. It would point out that it found in Behrami and Saramati that the impugned acts and omissions of the Kosovo Force (KFOR), whose powers had been validly delegated to it by the Security Council under Chapter VII of the Charter, and those of the United Nations Interim Administration Mission in Kosovo (UNMIK), a subsidiary organ of the United Nations set up under the same Chapter, were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective-security objective (ibid., § 151). In the present case, by contrast, the relevant Security Council resolutions, especially Resolutions 1267 (1999), 1333 (2000), 1373 (2001) and 1390 (2002), required States to act in their own names and to implement them at national level.\",\n \"121. In the present case the measures imposed by the Security Council Resolutions were implemented at national level by an Ordinance of the Federal Council, and the applicant’s requests for exemption from the ban on entry into Swiss territory were rejected by the Swiss authorities (the Federal Office of Immigration, Integration and Emigration – IMES, then the Federal Office for Migration – FOM). The acts in question therefore relate to the national implementation of United Nations Security Council resolutions (see, mutatis mutandis, Bosphorus, cited above, § 137, and contrast Behrami and Saramati, cited above, § 151). The alleged violations of the Convention are thus attributable to Switzerland.\",\n \"122. The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.\",\n \"123. Accordingly, the Court dismisses the objection that the application is incompatible ratione personae with the Convention.\",\n \"(b) Compatibility ratione materiae\",\n \"124. The Government argued that the present application was also incompatible ratione materiae with the Convention. In this connection they emphasised the binding nature of the resolutions adopted by the Security Council under Chapter VII of the United Nations Charter and its primacy over any other international agreement, in accordance with Article 103 thereof.\",\n \"125. The Court finds that these arguments concern more the merits of the complaints than their compatibility with the Convention. Consequently, the Government’s objection as to the incompatibility ratione materiae of the application with the Convention should be joined to the merits.\",\n \"B. Whether the applicant is a “victim”\",\n \"1. The parties’ submissions\",\n \"126. The Government pointed out that on 23 September 2009 the applicant’s name had been deleted from the list annexed to the Security Council Resolutions providing for the impugned sanctions and on 29 September 2009 the Taliban Ordinance had been amended accordingly, with effect from 2 October 2009. Thus, they argued, the impugned measures against the applicant had been completely discontinued. In the Government’s opinion, the dispute had therefore been resolved within the meaning of Article 37 § 1 (b) of the Convention and, as a result, they asked the Court to strike the application out of its list, in accordance with that provision.\",\n \"127. The applicant disagreed with that argument. He took the view that the mere fact that the situation had evolved in such a way that his name had been deleted from the Sanctions Committee’s list, that the Taliban Ordinance had been amended accordingly and that the sanctions against him had been lifted, since the beginning of October 2009, had not deprived him of his victim status as regards the breaches of his rights prior to that date.\",\n \"2. The Court’s assessment\",\n \"128. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; and Eckle v. Germany, 15 July 1982, § 66, Series A no. 51).\",\n \"129. In the present case, the Court observes that the sanctions imposed on the applicant have been lifted and that he is now authorised to cross the border of Campione d’Italia to enter or pass through Switzerland freely. However, the lifting of sanctions, which was not decided until September-October 2009, has not deprived the applicant of his status as victim of the restrictions from which he suffered from the time his name was added, in November 2001, to the Sanctions Committee’s list and to the list annexed to the Taliban Ordinance, or at least from 27 November 2003, when he was informed that he was no longer authorised to cross the border (see paragraph 26 above). The lifting of the sanctions cannot be regarded as an acknowledgment by the Government, even implicitly, of a violation of the Convention, for the purposes of the above-cited case-law. Moreover, it was not followed by any redress within the meaning of that case-law.\",\n \"130. Accordingly, the applicant may claim to have been the victim of the alleged violations of the Convention for a period of at least six years. As a result, the Government’s objection as to an alleged lack of victim status should be dismissed.\",\n \"C. Whether domestic remedies have been exhausted\",\n \"1. The parties’ submissions\",\n \"(a) The Government\",\n \"131. The Government observed that, according to the Security Council’s sanctions regime, exemptions from the entry-and-transit ban could be granted when they were necessary for the fulfilment of a judicial process, or for other reasons, in particular of a medical, humanitarian or religious nature, subject to the approval of the Sanctions Committee (see Resolution 1390 (2002), paragraph 2(b)). To take account of such situations, Article 4a § 2 of the Taliban Ordinance provided that the FOM could, in accordance with the decisions of the Security Council or for the protection of Swiss interests, grant exemptions.\",\n \"132. The Government contended that the various decisions given by the FOM had not been appealed against, and the action taken before it concerned only the question of the delisting of the applicant and the organisations associated with him from Annex 2 to the Taliban Ordinance.\",\n \"133. The Government pointed out that, both before and after the Federal Court’s judgment, the applicant had not appealed against any decision of the former IMES or of the FOM (the IMES having been incorporated into the FOM on its creation in 2005) concerning exemptions from the sanctions regime. In addition, the authorities had granted exemptions (in decisions of 20 September 2006 and 11 September 2008) that had not been used by the applicant. The applicant had explained in this connection that the duration of the exemptions had not been sufficient, in view of his age and the distance to be travelled, for him to make the intended journeys. On this subject the Government pointed out that the first exemption, for one day, had been granted for a journey to Milan in connection with judicial proceedings, and that it took only one hour to drive from Campione d’Italia to the centre of Milan. The second exemption, for two days, had been granted to the applicant for a journey to Berne and Sion, both cities being less than three and a half hours away from Campione by car.\",\n \"134. Lastly, the Government argued that the applicant could at any time have requested to move house, even temporarily, to another part of Italy, the country of which he was a national. Such a request would have been submitted by the competent Swiss authority (the IMES, then the FOM) to the Sanctions Committee. As the sanctions had been formulated in general terms, the Government were of the opinion that the Committee would most probably have authorised the applicant’s move.\",\n \"135. For these reasons the Government submitted that the applicant had failed to exhaust domestic remedies.\",\n \"(b) The applicant\",\n \"136. Concerning the first three refusals by the FOM (26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended that there was no clear domestic case-law as to whether the Swiss authorities had any margin of appreciation in the granting of exemptions from the restrictions imposed on him and that no clarification had been provided by the Federal Court in this connection. Furthermore, no action appeared to have been taken by the FOM or any other authority to clarify the position regarding the grant of exemptions. In his submission it could not therefore be said that an effective remedy, within the meaning of the Court’s case-law, was available.\",\n \"137. As regards the Government’s argument that he had failed to make use of the exemptions granted to him by the FOM (on 20 September 2006 and 11 September 2008), he alleged that they concerned only a partial lifting of the measures imposed on him, in respect of very specific situations. Given his age and the length of the journeys involved, he argued that the exemptions for one or two days were far from sufficient.\",\n \"138. As to the general sanctions regime, the applicant submitted that he had exhausted domestic remedies, because he had challenged before the Federal Court the restrictions imposed by the Taliban Ordinance, of which he complained before the Court.\",\n \"139. The applicant further observed that the Government’s argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting was purely speculative. He also pointed out that such an option – which he did not consider possible in his case, particularly because of the freezing of his assets by the sanctions regime and the fact that it had not been envisaged by the Federal Court – would in any event have provided redress only for part of the impugned restrictions.\",\n \"2. The Court’s assessment\",\n \"140. The Court reiterates that the only remedies Article 35 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see Tsomtsos and Others v. Greece, 15 November 1996, § 32, Reports 1996 ‑ V).\",\n \"141. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX).\",\n \"142. Moreover, an applicant who has availed himself of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, for example, Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III, and Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV).\",\n \"143. In the present case the Court notes that the applicant did not challenge the refusals by the IMES and the FOM to grant his requests for exemption from the sanctions regime and that on two occasions he was granted exemptions that he did not use (see paragraphs 34 and 57 above).\",\n \"144. However, even supposing that those exemptions had alleviated certain effects of the sanctions regime, by allowing him to leave the enclave of Campione d’Italia for medical or legal reasons, the Court is of the view that the issue of exemptions was part of a broader situation whose origin lay in the addition by the Swiss authorities of the applicant’s name to the list annexed to the Taliban Ordinance, which was based on the Sanctions Committee’s list. In this connection, it should be observed that the applicant submitted many requests to the national authorities for the deletion of his name from the list annexed to the Taliban Ordinance – requests that were denied by the State Secretariat for Economic Affairs (SECO) and the Federal Department of Economic Affairs (see paragraphs 30-32 above). The Federal Council, to which he appealed against the Department’s decision, referred the case to the Federal Court. By a judgment of 14 November 2007, that court dismissed his appeal without examining the merits of the complaints under the Convention. Consequently, the Court takes the view that the applicant has exhausted domestic remedies relating to the sanctions regime as a whole, the application of which in his case stemmed from the addition of his name to the list annexed to the Taliban Ordinance.\",\n \"145. In these circumstances, the Court does not find it necessary to address, at this stage, the argument raised by the Government to the effect that the applicant could have been reasonably expected to move from Campione d’Italia, where he had been living since 1970, to another region of Italy. That question will, by contrast, play a certain role when it comes to examining the proportionality of the impugned measures (see paragraph 190 below).\",\n \"146. As to the complaint under Article 8 that the addition of the applicant’s name to the list annexed to the Taliban Ordinance had impugned his honour and reputation, the Court acknowledges that it was raised, at least in substance, before the domestic authorities. The applicant indeed claimed that the addition of his name to the Sanctions Committee’s list was tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case (see paragraphs 33 and 38 above).\",\n \"147. Consequently, the Court dismisses the Government’s objection as to the inadmissibility of the application for failure to exhaust domestic remedies in respect of the applicant’s complaints under Articles 5 and 8.\",\n \"148. As regards the complaint under Article 13, the Court finds that the objection of non-exhaustion of remedies is closely linked to the merits of the complaint. Accordingly, the Court joins it to the merits.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"149. The applicant complained that the measure by which he was prohibited from entering or passing through Switzerland had breached his right to respect for his private life, including his professional life, and his family life. He contended that this ban had prevented him from seeing his doctors in Italy or in Switzerland and from visiting his friends and family. He further claimed that the addition of his name to the list annexed to the Taliban Ordinance had impugned his honour and reputation. In support of these complaints he relied on Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"A. Admissibility\",\n \"150. The Court finds that it should first examine the applicability of Article 8 in the present case.\",\n \"151. It reiterates that “private life” is a broad term not susceptible to exhaustive definition (see, for example, Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Tysiąc v. Poland, no. 5410/03, § 107, ECHR 2007 ‑ I; Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008; Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). The Court has found that health, together with physical and moral integrity, falls within the realm of private life (see Glor, cited above, § 54, and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; see also Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). The right to private life also encompasses the right to personal development and to establish and develop relationships with other human beings and the outside world in general (see, for example, S. and Marper, cited above, § 66).\",\n \"152. It should moreover be observed that Article 8 also protects the right to respect for “family life”. Under that provision the State must in particular act in a manner calculated to allow those concerned to lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The Court determines the existence of family life on a case-by-case basis, looking at the circumstances of each case. The relevant criterion in such matters is the existence of effective ties between the individuals concerned (ibid.; see also K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII, and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 93, 2 November 2010).\",\n \"153. The Court would further reiterate that Article 8 also protects the right to respect for one’s home (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109).\",\n \"154. In the light of that case-law, the Court finds that the complaints submitted by the applicant under Article 8 are indeed to be examined under that Article. It cannot be excluded that the measure prohibiting him from entering Switzerland prevented him – or at least made it more difficult for him – to consult his doctors in Italy or Switzerland or to visit his friends and family. Article 8 therefore applies in the present case in both its “private life” aspect and its “family life” aspect.\",\n \"155. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"(a) The applicant\",\n \"156. The applicant alleged that the restrictions on his freedom of movement had prevented him from taking part in family events (such as funerals or weddings), which had taken place during the period when he was unable to travel freely on account of the sanctions regime. He thus claimed to be a victim of a violation of his right to respect for his private and family life. In this connection, he contended that his status as an Italian national, not resident in the territory of the respondent State, did not prevent him from complaining of a violation of his rights by Switzerland, especially given the very special situation of the Campione d’Italia enclave, being surrounded by Swiss territory. He even took the view that, given the integration of Campione d’Italia into the Canton of Ticino, in particular its economic integration, it would have been appropriate for the Swiss authorities to treat him as a Swiss national for the purposes of the sanctions regime. Moreover, he asserted that, contrary to the Government’s allegation, he did not have the option of living elsewhere in Italy.\",\n \"157. The applicant further observed that the addition of his name to the list annexed to the Taliban Ordinance had caused damage to his honour and reputation, since that list enumerated persons suspected of helping to finance terrorism. In support of that view he referred to the case of Sayadi and Vinck v. Belgium (see paragraphs 88-92 above) in which the Human Rights Committee found that the addition of the complainants’ names to the Sanctions Committee’s list had constituted an unlawful attack on their honour.\",\n \"158. In the applicant’s submission, those circumstances were aggravated by the fact that he had never been given an opportunity to challenge the merits of the allegations against him.\",\n \"159. There had thus been a violation of Article 8 on various counts.\",\n \"(b) The Government\",\n \"160. The Government observed that the applicant had been free to receive all the visits he wished in Campione d’Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d’Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the exhaustion of domestic remedies, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8.\",\n \"161. In response to the applicant’s allegation that he had never been able to find out the factors which had led to the impugned measures, or to challenge them before a court, the Government stated that, as shown in their earlier observations, the impugned measures had not breached the applicant’s rights under Article 8. Consequently, the procedural aspect of that provision was not applicable.\",\n \"162. For those reasons the Government were of the opinion that the restrictions imposed did not constitute an interference with the applicant’s rights under Article 8. If the Court were to find otherwise, the Government argued that the measure was in any event necessary in a democratic society under Article 8 § 2.\",\n \"2. The Court’s assessment\",\n \"(a) Whether there has been an interference\",\n \"163. The Court finds it appropriate to begin by examining the applicant’s allegation that he sustained interference with his right to respect for his private and family life on account of the fact that he was prohibited from entering or passing through Switzerland.\",\n \"164. The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory. In other words, the Convention does not as such guarantee the right of an alien to enter a particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII; Boujlifa v. France, 21 October 1997, § 42, Reports 1997 ‑ VI; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94).\",\n \"165. In the present case, the Court observes that the Federal Court found that the impugned measure constituted a significant restriction on the applicant’s freedom (see paragraph 52 above), as he was in a very specific situation on account of the location of Campione d’Italia, an enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that opinion. It takes the view that the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others – in particular his friends and family – living outside the enclave (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v. Switzerland, no. 24404/05, §§ 69-72, both judgments of 29 July 2010).\",\n \"166. In view of the foregoing, the Court finds that there has been an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1.\",\n \"(b) Whether the interference was justified\",\n \"167. The interference with the applicant’s right to respect for his private and family life, as found above, will breach Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether it was “in accordance with the law”, pursued one or more of the legitimate aims enumerated in that paragraph and was “necessary in a democratic society” to achieve such aims. The Court finds it appropriate first to reiterate certain principles that will guide it in its subsequent examination.\",\n \"(i) General principles\",\n \"168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (see Bosphorus, cited above, § 153, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein).\",\n \"169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18).\",\n \"170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited above, § 55; and the Banković decision, cited above, §§ 55 ‑ 57; see also the references cited in the International Law Commission study group’s report entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, paragraph 81 above).\",\n \"171. As regards, more specifically, the question of the relationship between the Convention and Security Council resolutions, the Court found as follows in its Al-Jedda judgment (cited above):\",\n \"“101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment.\",\n \"102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to ‘achieve international cooperation in ... promoting and encouraging respect for human rights and fundamental freedoms’. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.”\",\n \"172. The Grand Chamber confirms those principles. However, in the present case it observes that, contrary to the situation in Al-Jedda, where the wording of the resolution in issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the above-mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that Resolution (see also paragraph 7 of Resolution 1267 (1999), paragraph 70 above, in which the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the Resolution).\",\n \"(ii) Legal basis\",\n \"173. The Court notes that the question of the existence of a legal basis is not a matter of dispute between the parties. It observes that the impugned measures were taken pursuant to the Taliban Ordinance, adopted to implement the relevant Security Council resolutions. To be precise, the ban on entry into and transit through Switzerland was based on Article 4a of that Ordinance (see paragraph 66 above). The measures therefore had a sufficient legal basis.\",\n \"(iii) Legitimate aim\",\n \"174. The applicant did not appear to deny that the impugned restrictions were imposed in pursuit of legitimate aims. The Court finds it established that those restrictions pursued one or more of the legitimate aims enumerated in Article 8 § 2: firstly, they sought to prevent crime, and, secondly, as the relevant Security Council resolutions had been adopted to combat international terrorism under Chapter VII of the United Nations Charter (“Action with respect to threats to the peace, breaches of the peace, and acts of aggression”), they were also capable of contributing to Switzerland’s national security and public safety.\",\n \"(iv) “Necessary in a democratic society”\",\n \"(α) Implementation of Security Council resolutions\",\n \"175. The respondent Government, together with the French and United Kingdom Governments, intervening as third parties, argued that the Swiss authorities had no latitude in implementing the relevant Security Council resolutions in the present case. The Court must therefore firstly examine those resolutions in order to determine whether they left States any freedom in their implementation and, in particular, whether they allowed the authorities to take into account the very specific nature of the applicant’s situation and therefore to meet the requirements of Article 8 of the Convention. In order to do so, it will particularly take account of the wording of those resolutions and the context in which they were adopted (see Al-Jedda, cited above, § 76, with the reference cited therein to the relevant case-law of the International Court of Justice). It will moreover have regard to the objectives pursued by those resolutions (see, to that effect, the Kadi judgment of the CJEC, § 296, paragraph 86 above), as stated mainly in the preambles thereto, read in the light of the purposes and principles of the United Nations.\",\n \"176. The Court observes that Switzerland did not become a member of the United Nations until 10 September 2002: it had thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a member of that organisation, whereas it was already bound by the Convention. Similarly, it had implemented at domestic level the entry-and-transit ban concerning the applicant, as required by Resolution 1390 (2002) of 16 January 2002 (see paragraph 74 above), on 1 May of that year by the amendment of Article 4a of the Taliban Ordinance. The Court acknowledges that this Resolution, particularly in the light of paragraph 2, was addressed to “all States” and not only the members of the United Nations. However, the Court observes that the United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to United Nations member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions (see to the same effect, mutatis mutandis, the Kadi judgment of the CJEC, § 298, paragraph 86 above).\",\n \"177. In the present case, the applicant mainly challenged the Swiss entry-and-transit ban imposed on him in particular through the implementation of Resolution 1390 (2002). Whilst paragraph 2(b) of that Resolution required States to take such measures, it stated that the ban did “not apply where entry or transit [was] necessary for the fulfilment of a judicial process ...” (see paragraph 74 above). In the Court’s view, the term “necessary” was to be construed on a case-by-case basis.\",\n \"178. In addition, in paragraph 8 of Resolution 1390 (2002), the Security Council “[urged] all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory ...” (see paragraph 74 above). The wording “where appropriate” also had the effect of affording the national authorities a certain flexibility in the mode of implementation of the Resolution.\",\n \"179. Lastly, the Court would refer to the motion by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counterterrorism resolutions (see paragraph 63 above). Even though that motion was drafted in rather general terms, it can nevertheless be said that the applicant’s case was one of the main reasons for its adoption. In any event, in the Court’s view, the Swiss Parliament, in adopting that motion, was expressing its intention to allow a certain discretion in the application of the Security Council’s counterterrorism resolutions.\",\n \"180. In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council.\",\n \"(β) Whether the interference was proportionate in the present case\",\n \"181. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, S. and Marper, cited above, § 101, and Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with the cases cited therein).\",\n \"182. The object and purpose of the Convention, being a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145), call for its provisions to be interpreted and applied in a manner that renders its guarantees practical and effective (see, among other authorities, Artico v. Italy, 13 May 1980, § 33, Series A no. 37). Thus, in order to ensure “respect” for private and family life within the meaning of Article 8, the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 86, 13 December 2007).\",\n \"183. The Court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right in issue whilst fulfilling the same aim must be ruled out (see Glor, cited above, § 94).\",\n \"184. In any event, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, S. and Marper, cited above, § 101, and Coster, cited above, § 104). A margin of appreciation must be left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference (see S. and Marper, cited above, § 102).\",\n \"185. In order to address the question whether the measures taken against the applicant were proportionate to the legitimate aim that they were supposed to pursue, and whether the reasons given by the national authorities were “relevant and sufficient”, the Court must examine whether the Swiss authorities took sufficient account of the particular nature of his case and whether they adopted, in the context of their margin of appreciation, the measures that were called for in order to adapt the sanctions regime to the applicant’s individual situation.\",\n \"186. In doing so, the Court is prepared to take account of the fact that the threat of terrorism was particularly serious at the time of the adoption, between 1999 and 2002, of the resolutions prescribing those sanctions. That is unequivocally shown by both the wording of the resolutions and the context in which they were adopted. However, the maintaining or even reinforcement of those measures over the years must be explained and justified convincingly.\",\n \"187. The Court observes in this connection that the investigations conducted by the Swiss and Italian authorities concluded that the suspicions about the applicant’s participation in activities related to international terrorism were clearly unfounded. On 31 May 2005 the Swiss Federal Prosecutor closed the investigation opened in October 2001 in respect of the applicant, and on 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the proceedings against him in Italy had been discontinued (see paragraph 56 above). The Federal Court, for its part, observed that the State which had conducted the investigations and criminal proceedings could not itself proceed with the deletion, but it could at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting (see paragraph 51 above).\",\n \"188. In this connection the Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005 (see paragraph 61 above). Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (see, in this connection, Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above).\",\n \"189. As regards the scope of the prohibition in question, the Court emphasises that it prevented the applicant not only from entering Switzerland but also from leaving Campione d’Italia at all, in view of its situation as an enclave, even to travel to any other part of Italy, the country of which he was a national, without breaching the sanctions regime.\",\n \"190. Moreover, the Court considers that the applicant could not reasonably have been required to move from Campione d’Italia, where he had been living since 1970, to settle in another region of Italy, especially as it cannot be ruled out that, as a result of the freeze imposed by paragraph 1(c) of Resolution 1373 (2001) (see paragraph 73 above), he could no longer dispose freely of all his property and assets. Regardless of whether a request for authorisation to move house would have had any chance of success, it should be pointed out that the right to respect for one’s home is protected by Article 8 of the Convention (see, for example, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004 ‑ XI, and Gillow, cited above, § 46).\",\n \"191. The Court would further observe that the present case has a medical aspect that should not be underestimated. The applicant was born in 1931 and has health problems (see paragraph 14 above). The Federal Court itself found that, although Article 4a § 2 of the Taliban Ordinance was formulated more as an enabling provision, it did oblige the authorities to grant an exemption in all cases where the United Nations sanctions regime so permitted, as a more far-reaching restriction on individual freedom of movement would not have been justified either by the Security Council resolutions or by the public interest and would have been disproportionate in the light of the applicant’s particular situation (see paragraph 52 above).\",\n \"192. In reality, the IMES and the FOM denied a number of requests for exemption from the entry-and-transit ban that had been submitted by the applicant for medical reasons or in connection with judicial proceedings. He did not appeal against those refusals. Moreover, in the two cases where his requests were accepted, he waived the use of those exemptions (for one and two days respectively), finding that their length was not sufficient for him to make the intended journeys in view of his age and the considerable distance to be covered. The Court can understand that he may have found those exemptions to be insufficient in duration, in view of the above-mentioned factors (see, in particular, paragraph 191 above).\",\n \"193. It should be pointed out in this connection that, under paragraph 2(b) of Resolution 1390 (2002), the Sanctions Committee was entitled to grant exemptions in specific cases, especially for medical, humanitarian or religious reasons. During the meeting of 22 February 2008 (see paragraph 54 above), a representative of the Federal Department of Foreign Affairs indicated that the applicant could request the Sanctions Committee to grant a broader exemption in view of his particular situation. The applicant did not make any such request, but it does not appear, in particular from the record of that meeting, that the Swiss authorities offered him any assistance to that end.\",\n \"194. It has been established that the applicant’s name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least until the adoption of Resolution 1730 (2006), it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure. Indeed, in the applicant’s case Switzerland was neither his State of citizenship nor his State of residence, and the Swiss authorities were not therefore competent to undertake such action. However, it does not appear that Switzerland ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose (see, mutatis mutandis, the case of Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above). It can be seen from the record of the meeting of 22 February 2008 (see paragraph 54 above) that the authorities merely suggested that the applicant contact the Italian Permanent Mission to the United Nations, adding that Italy at that time had a seat on the Security Council.\",\n \"195. The Court acknowledges that Switzerland, along with other States, made considerable efforts that resulted, after a few years, in improvement to the sanctions regime (see paragraphs 64 and 78 above). It is of the opinion, however, in view of the principle that the Convention protects rights that are not theoretical or illusory but practical and effective (see Artico, cited above, § 33), that it is important in the present case to consider the measures that the national authorities actually took, or sought to take, in response to the applicant’s very specific situation. In this connection, the Court considers in particular that the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health. It further finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order should have allowed some alleviation of the sanctions regime applicable to the applicant, having regard to those realities, in order to avoid interference with his private and family life, without however circumventing the binding nature of the relevant resolutions or compliance with the sanctions provided for therein.\",\n \"196. In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see, for example, Soering, cited above, § 87, and Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25), the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation.\",\n \"197. That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent (see, in this connection, paragraphs 81 and 170 above).\",\n \"198. Having regard to all the circumstances of the present case, the Court finds that the restrictions imposed on the applicant’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other. Consequently, the interference with his right to respect for private and family life was not proportionate and therefore not necessary in a democratic society.\",\n \"(γ) Conclusion\",\n \"199. In view of the foregoing, the Court dismisses the Government’s preliminary objection that the application was incompatible ratione materiae with the Convention and, ruling on the merits, finds that there has been a violation of Article 8 of the Convention. Having regard to that conclusion, and notwithstanding that the applicant’s allegation that the addition of his name to the list annexed to the Taliban Ordinance also impugned his honour and reputation constitutes a separate complaint, the Court finds that it does not need to examine that complaint separately.\",\n \"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\",\n \"200. The applicant complained that he had not had an effective remedy by which to have his Convention complaints examined. He thus alleged that there had been a violation of Article 13, which reads as follows:\",\n \"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\",\n \"A. Admissibility\",\n \"201. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It finds, moreover, that no other ground for declaring it inadmissible has been established. The complaint should thus be declared admissible.\",\n \"B. Merits\",\n \"1. The parties’ submissions\",\n \"(a) The applicant\",\n \"202. The applicant argued, relying on the Al-Nashif v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests of the protection of sources and information critical to national security, on the one hand, and the right to an effective remedy, on the other, could be reconciled through a specially adapted procedure. In the present case, however, no such procedure had been available, either before United Nations bodies or before the domestic authorities.\",\n \"203. He further pointed out that the above-mentioned Sayadi and Vinck case (see paragraphs 88-92 above), where the Human Rights Committee had concluded that an effective remedy was constituted by the court order requiring the Belgian government, which had forwarded the complainants’ names to the Sanctions Committee in the first place, to submit a delisting request to that Committee, was not relevant to the present case for two reasons. Firstly, because he was not complaining that Switzerland had failed to have his name removed from the United Nations list; the Human Rights Committee had clearly confirmed that the relevant authority lay entirely with the Sanctions Committee and not with the State itself. Secondly, in his case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi and Vinck, although observing that the respondent Government were obliged to support the applicant in any endeavour to secure delisting, had not actually ordered it to do so.\",\n \"204. The applicant thus argued that the conformity of the impugned measures with Articles 3, 8 and 9 of the Convention was not subject to the scrutiny of any domestic court and that, accordingly, there had been a violation of Article 13.\",\n \"(b) The Government\",\n \"205. In the Government’s submission, Article 13 required that where an individual had an arguable complaint that there had been a violation of the Convention, he or she should have a remedy before a “national authority”. The Government submitted that, having regard to their previous arguments, the applicant’s complaints were not made out. They argued that, should the Court decide not to follow that assessment, there had not in any event been a violation of Article 13 taken in conjunction with Article 8 in the present case.\",\n \"206. The Government pointed out that the applicant had requested the deletion of his name and those of the organisations with which he was associated from the list annexed to the Taliban Ordinance. That request had apparently been examined by the Federal Court, which had found that the applicant did not have an effective remedy in respect of that issue since, being bound by the Security Council resolutions, it was not able to annul the sanctions imposed on the applicant. The Federal Court had nevertheless emphasised that, in that situation, it was for Switzerland to request the applicant’s delisting or to support such a procedure initiated by him. In this connection, the Government observed that Switzerland was not itself entitled to lodge a delisting request – as the applicant did not have Swiss nationality and did not live in Switzerland – as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant himself, and it had apparently done so by sending his lawyer a formal attestation of the discontinuance of criminal proceedings against him.\",\n \"2. The Court’s assessment\",\n \"(a) Applicable principles\",\n \"207. The Court observes that Article 13 guarantees the availability at national level of a remedy by which to complain about a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21 December 2000, with the cases cited therein, especially Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996 ‑ VI). Under certain conditions, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, in particular, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116).\",\n \"208. However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts, cited above, § 40), but seeks only to ensure that anyone who makes an arguable complaint about a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39).\",\n \"(b) Application of those principles to the present case\",\n \"209. The Court is of the opinion that, in view of its finding of a violation of Article 8 above, the complaint is arguable. It therefore remains to be ascertained whether the applicant had, under Swiss law, an effective remedy by which to complain of the breaches of his Convention rights.\",\n \"210. The Court observes that the applicant was able to apply to the national authorities to have his name deleted from the list annexed to the Taliban Ordinance and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine on the merits his complaints concerning the alleged violations of the Convention. In particular, the Federal Court took the view that whilst it could verify whether Switzerland was bound by the Security Council resolutions, it could not lift the sanctions imposed on the applicant on the ground that they did not respect human rights (see paragraph 50 above).\",\n \"211. The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level, even after its improvement by the most recent resolutions, could not be regarded as an effective remedy within the meaning of Article 13 of the Convention (ibid.).\",\n \"212. The Court would further refer to the finding of the CJEC that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” (see the Kadi judgment of the CJEC, § 299, paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council Resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those Resolutions.\",\n \"213. Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above).\",\n \"214. Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8.\",\n \"IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION\",\n \"215. Relying on Article 5 § 1 of the Convention, the applicant argued that by preventing him from entering or transiting through Switzerland, because his name was on the Sanctions Committee’s list, the Swiss authorities had deprived him of his liberty. Under Article 5 § 4, he complained that the authorities had not undertaken any review of the lawfulness of the restrictions to his freedom of movement. Those provisions read as follows:\",\n \"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\",\n \"(a) the lawful detention of a person after conviction by a competent court;\",\n \"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;\",\n \"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\",\n \"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;\",\n \"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;\",\n \"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.\",\n \"...\",\n \"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\",\n \"...”\",\n \"1. Submissions of the parties and third-party interveners\",\n \"(a) The Government\",\n \"216. The Government, referring to the Guzzardi v. Italy (6 November 1980, Series A no. 39) and S.F. v. Switzerland (no. 16360/90, Commission decision of 2 March 1994, Decisions and Reports 76-B, pp. 13 et seq.) cases, argued that there had been no “deprivation of liberty” in the present case. They stated that the purpose of the measure in question had never been to confine the applicant to the territory of Campione d’Italia. Only a ban on entering and transiting through Switzerland had been imposed on him. The fact that the applicant found that his movements were restricted by the impugned measure was attributable only to himself, because he had chosen to live in an Italian enclave surrounded by Swiss territory. Neither the sanctions as decided by the United Nations, nor their implementation by the Swiss authorities, had obliged him to remain a resident of Campione d’Italia. At any time he could thus have requested authorisation to transfer his home to another part of Italy.\",\n \"217. As regards the effects and conditions of the measure, the Government observed that the applicant was not subject to any restriction apart from the ban – albeit theoretical in their view – on his entry into or transit through Switzerland. In particular, he was not under surveillance by the Swiss authorities, had no specific obligations and could have received as many visits as he wished. He was also able, at all times, to meet his lawyers freely. The Government further pointed out that the border between Campione d’Italia and Switzerland was not patrolled, so the ban on entry into Switzerland could not have been perceived by him as a physical obstacle.\",\n \"218. For those reasons the Government contended that the impugned measure could not be regarded as a deprivation of liberty within the meaning of Article 5 § 1.\",\n \"(b) The applicant\",\n \"219. The applicant argued that the present case could not be compared to S.F. v. Switzerland (cited above), in which the Commission had declared inadmissible the complaint of an applicant under Article 5 that he had not been authorised to leave Campione d’Italia for several years. Firstly, in the applicant’s case the inability to leave the area was not the result of a criminal conviction and, secondly, he had been unable to challenge the impugned restrictions in the context of a fair hearing, unlike the applicant in S.F. v. Switzerland.\",\n \"220. The applicant did not dispute the fact that no physical obstacle prevented him from leaving Campione d’Italia, but he pointed out that the border with Switzerland was nevertheless occasionally subject to spot-checks and that, if it had been discovered in the context of such a check that he was attempting to enter a territory from which he was banned, he would have faced proceedings entailing heavy penalties.\",\n \"221. The applicant stated that Campione d’Italia had a surface area of 1.6 sq. km and that, therefore, the space in which he could move freely was even smaller than that of the applicant in Guzzardi (cited above), who was on an island of 2.5 sq. km.\",\n \"222. Moreover, the applicant pointed out that even the Federal Court itself had recognised that the restrictions amounted in effect to house arrest. For all those reasons, he contended that Article 5 § 1 should be applicable in his case.\",\n \"(c) The French Government\",\n \"223. The French Government, intervening as a third party, were of the opinion that Article 5 of the Convention could not be applicable to the situation of a person who was refused entry into or transit through a given territory, and that the particular circumstances of the case, stemming from the applicant’s residence in an Italian enclave within the Canton of Ticino, could not change that assessment, unless the substance of that provision were to be substantially distorted.\",\n \"2. The Court’s assessment\",\n \"224. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or is provided for by a lawful derogation under Article 15 of the Convention, which allows for a Contracting State “[i]n time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, among other authorities, Al-Jedda, cited above, § 99; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-63, ECHR 2009; and Ireland v. the United Kingdom, cited above, § 194).\",\n \"225. Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, a Protocol not ratified by Switzerland. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; Guzzardi, cited above, §§ 92 ‑ 93; Storck v. Germany, no. 61603/00, § 71, ECHR 2005 ‑ V; and Engel and Others v. the Netherlands, 8 June 1976, § 59, Series A no. 22).\",\n \"226. The Court is further of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question (see Engel and Others, § 59, and Guzzardi, § 92, both cited above) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel and Others, § 59, and Amuur, § 43, both cited above). Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, mutatis mutandis, Austin and Others, cited above, § 59).\",\n \"227. The Court observes that, in support of his argument that Article 5 must apply in the present case, the applicant relied particularly on the above-cited Guzzardi case. In that case, the application had been lodged by an individual who, being suspected of belonging to a “band of mafiosi”, had been forced to live on an island within an (unfenced) area of 2.5 sq. km, together with other residents in a similar situation and supervisory staff. The Court found that the applicant had been “deprived of his liberty” within the meaning of Article 5 and that he could therefore rely on the guarantees under that provision (see also Giulia Manzoni v. Italy, 1 July 1997, §§ 18 ‑ 25, Reports 1997 ‑ IV).\",\n \"228. By contrast, in the S.F. v. Switzerland case (cited above), where the applicant complained about not being authorised to leave Campione d’Italia for several years, the Commission declared the complaint inadmissible, finding that Article 5 was not applicable in that case. The Grand Chamber finds it appropriate in the present case to opt for the latter approach, for the following reasons.\",\n \"229. In the applicant’s concrete situation, the Court acknowledges that the restrictions were maintained for a considerable length of time. However, it observes that the area in which the applicant was not allowed to travel was the territory of a third country, Switzerland, and that, under international law, that country had the right to prevent the entry of an alien (see paragraph 164 above). The restrictions in question did not prevent the applicant from freely living and moving within the territory of his permanent residence, where he had chosen, of his own free will, to live and carry on his activities. The Court considers that, in these circumstances, his case differs radically from the factual situation in Guzzardi (cited above) and that the prohibition imposed upon the applicant does not raise an issue under Article 5 of the Convention.\",\n \"230. The Court further recognises that Campione d’Italia represents a small area of territory. However, it observes that the applicant was not, strictly speaking, in a situation of detention, nor was he actually under house arrest: he was merely prohibited from entering or transiting through a given territory, and as a result of that measure he was unable to leave the enclave.\",\n \"231. In addition, the Court notes that the applicant did not dispute before it the Swiss Government’s assertion that he had not been subjected to any surveillance by the Swiss authorities and had not been obliged to report regularly to the police (contrast Guzzardi, cited above, § 95). Nor does it appear, moreover, that he was restricted in his freedom to receive visitors, whether his family, his doctors or his lawyers (ibid.).\",\n \"232. Lastly, the Court would point out that the sanctions regime permitted the applicant to seek exemptions from the entry or transit ban and that such exemptions were indeed granted to him on two occasions but he did not make use of them.\",\n \"233. Having regard to all the circumstances of the present case, and in accordance with its case-law, the Court, like the Federal Court (see paragraph 48 above), finds that the applicant was not “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland.\",\n \"234. It follows that the complaints under Article 5 of the Convention are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.\",\n \"V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION\",\n \"235. Relying essentially on the same arguments as those examined by the Court under Articles 5 and 8, the applicant complained of treatment in breach of Article 3. He further alleged that his inability to leave the enclave of Campione d’Italia to go to a mosque had breached his freedom to manifest his religion or belief as guaranteed by Article 9.\",\n \"236. In view of all the material in its possession, and even supposing that those complaints had been duly raised before the domestic courts, the Court does not find any appearance of a violation of Articles 3 and 9 of the Convention.\",\n \"237. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.\",\n \"VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"238. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"239. The applicant did not submit any claim in respect of pecuniary or non-pecuniary damage.\",\n \"240. Accordingly, there is no call to award him any sum on that account.\",\n \"B. Costs and expenses\",\n \"241. As regards costs and expenses, the applicant sought the reimbursement of 75,000 pounds sterling plus value-added tax, for his lawyers’ fees in connection with the proceedings before the Court, together with 688.22 euros (EUR) for expenses incurred by his lawyer in travelling to Campione d’Italia, for telephone calls and for office expenses.\",\n \"242. The Government pointed out that the applicant had chosen to be represented by a lawyer practising in London who charged an hourly rate that was much higher than the average rates in Switzerland, and that this choice had entailed considerable travel expenses. In their submission, even if it were to be accepted that the present case was indeed as complex as the applicant claimed, the number of hours invoiced was excessive. Consequently, they submitted that in the event of the application being upheld, an amount of no more than 10,000 Swiss francs would be a fair award.\",\n \"243. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, ECHR 2010). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (ibid.).\",\n \"244. The Court does not share the Government’s opinion that the applicant should assume the consequences of his choice to be represented by a British lawyer. It would point out in this connection that, under Rule 36 § 4 (a) of the Rules of Court, the applicant’s representative must be “an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them ...”. However, it notes that only the complaints submitted under Articles 8 and 13 resulted, in the present case, in a finding of a violation of the Convention. The remainder of the application is inadmissible. The sum claimed by the applicant is therefore excessive.\",\n \"245. Consequently, having regard to the material in its possession and the criteria set out above, the Court finds it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses he has incurred in the proceedings before it.\",\n \"C. Default interest\",\n \"246. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":298,"cells":{"id":{"kind":"number","value":303,"string":"303"},"case_name":{"kind":"string","value":"Szabó and Vissy v. Hungary"},"judgement_date":{"kind":"string","value":"12 January 2016"},"facts_summary":{"kind":"string","value":"This case concerned Hungarian legislation on secret anti-terrorist surveillance introduced in 2011. The applicants complained in particular that they could potentially be subjected to unjustified and disproportionately intrusive measures within the Hungarian legal framework on secret surveillance for national security purposes (namely, “section 7/E (3) surveillance”). They notably alleged that this legal framework was prone to abuse, notably for want of judicial control."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It accepted that it was a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies, including massive monitoring of communications, in pre-empting impending incidents. However, the Court was not convinced that the legislation in question provided sufficient safeguards to avoid abuse. Notably, the scope of the measures could include virtually anyone in Hungary, with new technologies enabling the Government to intercept masses of data easily concerning even persons outside the original range of operation. Furthermore, the ordering of such measures was taking place entirely within the realm of the executive and without an assessment of whether interception of communications was strictly necessary and without any effective remedial measures, let alone judicial ones, being in place. The Court further held that there had been no violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 8, reiterating that Article 13 could not be interpreted as requiring a remedy against the state of domestic law."},"title":{"kind":"string","value":"Terrorism and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Prevention of terrorism"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","6. The applicants were born in 1976 and 1986 respectively and live in Budapest.","7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation.","8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“ TEK ”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”).","9. Under this legislation, TEK ’ s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.","10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)).","11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary ’ s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts.","12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained.","13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister ’ s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”.","14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants ’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament ’ s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence.","15. This decision was published in the Official Gazette on 22 November 2013.","VII. Internal and Governmental Controls as part of overall accountability systems","130. Internal control of security services is the primary guarantee against abuses of power, when the staff working in the agencies are committed to the democratic values of the State and to respecting human rights. External controls are essentially to buttress the internal controls and periodically ensure these are working properly.","131. Internal controls mean in the first place that the senior management of the agency must exercise efficient control in practice over the lower ranks of the agency.","134. Just as strong internal controls are a precondition for effective executive control over the security agency, a strong executive control over the security agency is a precondition for adequate parliamentary accountability, given that access by parliament to intelligence usually depends on the executive. The same is less true for expert review/authorization systems, to the extent that these have their own access to officials and intelligence material ...","137. In order to provide for impartial verification and assurance for the government that secret agencies are acting according to its policies, effectively and with propriety, a number of countries have devised offices such as Inspectors-General, judicial commissioners or auditors to check on the activities of the security sector and with statutory powers of access to information and staff.","VIII. Parliamentary accountability","150. There are several reasons why parliamentarians should be involved in the oversight of security agencies. Firstly, the ultimate authority and legitimacy of security agencies is derived from legislative approval of their powers, operations and expenditure. Secondly, there is a risk that the agencies may serve narrow political or sectional interests, rather than the State as a whole and protecting the constitutional order, if democratic scrutiny does not extend to them. A stable, politically bi-partisan approach to security may be ensured therefore by proper control, to the benefit of the State and the agencies themselves.","153. From a comparative international perspective, the most frequent arrangement is for parliament to establish a single oversight body for all the major security and intelligence agencies, rather than having multiple oversight bodies for specific agencies.","IX. Judicial Review and Authorization","195. Judicial control over internal security services can take different forms. First, there is prior authorization in a pre-trial phase, and/or post hoc review, of special investigative measures, such as telephone tapping, bugging and video surveillance. This is the normal practice in European States.","204. Nonetheless, there is an obvious advantage of requiring prior judicial authorization for special investigative techniques, namely that the security agency has to go “outside of itself” and convince an independent person of the need for a particular measure. It subordinates security concerns to the law, and as such it serves to institutionalize respect for the law. If it works properly, judicial authorization will have a preventive effect, deterring unmeritorious applications and/or cutting down the duration of a special investigative measure. The Parliamentary Assembly has earlier expressed a clear preference for prior judicial authorization of special investigative measures (depending on the type of measures).","X. Accountability to expert bodies","218. Expert bodies can serve as either a supplement or a replacement for parliamentary bodies or judicial accountability...","219. An expert body allows for greater expertise and time in the oversight of security and intelligence services and avoids the risks of political division and grand ‑ standing to which parliamentary committees can be prone. The body may be full or part time, but even if it is part time, the supervision exerted is likely to be more continuous than that exercised by a parliamentary body, the members of which have many other political interests and responsibilities. The members ’ tenure can be made longer than the standard electoral period, something which is particularly important as intelligence has, as already mentioned ..., a relatively long “learning curve”.","220. Like parliamentary oversight, the mandate of an expert body can be institutional, meaning that it can be established to exercise supervision only over a specific internal security body (this is in contrast to functional review discussed below) ...","222. It is, however, important that the scope of the review is drawn carefully, to avoid disputes as to whether a particular activity falls within the body ’ s mandate and to avoid overlaps with other accountability mechanisms, in particular judicial controls over police powers and Ministerial accountability to parliament.","XI. Complaints mechanisms","241. Clearly it is necessary for individuals who claim to have been adversely affected by the exceptional powers of security and intelligence agencies, such as surveillance or security clearance, to have some avenue for redress. Quite apart from strengthening accountability, complaints may also help to lead to improved performance by the agencies through highlighting administrative failings. The requirements of human rights treaties, and especially the European Convention on Human Rights, with its protections of fair trial, respect for private life and the requirement of an effective remedy must obviously also be borne in mind.","242. Plainly, though, legitimate targets of a security or intelligence agency should not be able to use a complaints system to find out about the agency ’ s work. A complaints system should balance, on the one hand, independence, robustness and fairness, and, on the other hand, sensitivity to security needs. Designing such a system is difficult but not impossible.","243. Individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts. As already mentioned, for a variety of reasons, the capacity of the ordinary courts to serve as an adequate remedy in security fields is limited. The case law of the European Court of Human Rights ... makes it very clear that a remedy must not simply be on paper.","244. An alternative is to allow an investigation and report into a complaint against an agency by an independent official, such as an ombudsman....","245. In these ombudsman-type systems, the emphasis is on an independent official investigating on behalf of the complainant. These independent offices usually exist to deal with an administrative failure by public bodies, rather than a legal error. Their investigations may give less emphasis to the complainant ’ s own participation in the process and to transparency than would be the case with legal proceedings. Typically an investigation of this type will conclude not with a judgment and formal remedies, but with a report, and (if the complaint is upheld) a recommendation for putting matters right and future action...","246. A less common variation is for a State to use a parliamentary or expert oversight body to deal with complaints and grievances of individuals.... There may be a benefit for a parliamentary oversight body in handling complaints brought against security and intelligence agencies since this will give an insight into potential failures – of policy, legality and efficiency. On the other hand, if the oversight body is too closely identified with the agencies it oversees or operates within the ring of secrecy, the complainant may feel that the complaints process is insufficiently independent. In cases where a single body handles complaints and oversight it is best if there are quite distinct legal procedures for these different roles.","247. On the whole it is preferable that the two functions be given to different bodies but that processes are in place so that the oversight body is made aware of the broader implications of individual complaints. This approach is also supported by the ECHR. The requirement in ECHR Article 13 of a mechanism for remedies for alleging violations of Convention rights which is independent from the authorization process means that a State ’ s control system, e.g. for data processing, may pass the test of “accordance with the law” and “necessity in a democratic society” but that the absence of a remedy means that there is nonetheless a violation of the Convention. As already mentioned, the ECtHR has stated that a remedy must be effective in law and fact. It should be noted in particular that the ECtHR has ruled that a data inspection authority which is independent, and which has formal competence in law to award a remedy for the holding of inaccurate, inappropriate etc. security data, but which in fact lacks the expertise to evaluate this data, is not an effective remedy within the meaning of Article 13.","249. In some countries, not only individuals but also members of the services are permitted to bring service-related issues to the attention of an ombudsman or parliamentary oversight body...","250. Another method of handling complaints is through a specialist tribunal.”"],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"6. The applicants were born in 1976 and 1986 respectively and live in Budapest.\",\n \"7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation.\",\n \"8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“ TEK ”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”).\",\n \"9. Under this legislation, TEK ’ s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.\",\n \"10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)).\",\n \"11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary ’ s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts.\",\n \"12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained.\",\n \"13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister ’ s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”.\",\n \"14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants ’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament ’ s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence.\",\n \"15. This decision was published in the Official Gazette on 22 November 2013.\",\n \"VII. Internal and Governmental Controls as part of overall accountability systems\",\n \"130. Internal control of security services is the primary guarantee against abuses of power, when the staff working in the agencies are committed to the democratic values of the State and to respecting human rights. External controls are essentially to buttress the internal controls and periodically ensure these are working properly.\",\n \"131. Internal controls mean in the first place that the senior management of the agency must exercise efficient control in practice over the lower ranks of the agency.\",\n \"134. Just as strong internal controls are a precondition for effective executive control over the security agency, a strong executive control over the security agency is a precondition for adequate parliamentary accountability, given that access by parliament to intelligence usually depends on the executive. The same is less true for expert review/authorization systems, to the extent that these have their own access to officials and intelligence material ...\",\n \"137. In order to provide for impartial verification and assurance for the government that secret agencies are acting according to its policies, effectively and with propriety, a number of countries have devised offices such as Inspectors-General, judicial commissioners or auditors to check on the activities of the security sector and with statutory powers of access to information and staff.\",\n \"VIII. Parliamentary accountability\",\n \"150. There are several reasons why parliamentarians should be involved in the oversight of security agencies. Firstly, the ultimate authority and legitimacy of security agencies is derived from legislative approval of their powers, operations and expenditure. Secondly, there is a risk that the agencies may serve narrow political or sectional interests, rather than the State as a whole and protecting the constitutional order, if democratic scrutiny does not extend to them. A stable, politically bi-partisan approach to security may be ensured therefore by proper control, to the benefit of the State and the agencies themselves.\",\n \"153. From a comparative international perspective, the most frequent arrangement is for parliament to establish a single oversight body for all the major security and intelligence agencies, rather than having multiple oversight bodies for specific agencies.\",\n \"IX. Judicial Review and Authorization\",\n \"195. Judicial control over internal security services can take different forms. First, there is prior authorization in a pre-trial phase, and/or post hoc review, of special investigative measures, such as telephone tapping, bugging and video surveillance. This is the normal practice in European States.\",\n \"204. Nonetheless, there is an obvious advantage of requiring prior judicial authorization for special investigative techniques, namely that the security agency has to go “outside of itself” and convince an independent person of the need for a particular measure. It subordinates security concerns to the law, and as such it serves to institutionalize respect for the law. If it works properly, judicial authorization will have a preventive effect, deterring unmeritorious applications and/or cutting down the duration of a special investigative measure. The Parliamentary Assembly has earlier expressed a clear preference for prior judicial authorization of special investigative measures (depending on the type of measures).\",\n \"X. Accountability to expert bodies\",\n \"218. Expert bodies can serve as either a supplement or a replacement for parliamentary bodies or judicial accountability...\",\n \"219. An expert body allows for greater expertise and time in the oversight of security and intelligence services and avoids the risks of political division and grand ‑ standing to which parliamentary committees can be prone. The body may be full or part time, but even if it is part time, the supervision exerted is likely to be more continuous than that exercised by a parliamentary body, the members of which have many other political interests and responsibilities. The members ’ tenure can be made longer than the standard electoral period, something which is particularly important as intelligence has, as already mentioned ..., a relatively long “learning curve”.\",\n \"220. Like parliamentary oversight, the mandate of an expert body can be institutional, meaning that it can be established to exercise supervision only over a specific internal security body (this is in contrast to functional review discussed below) ...\",\n \"222. It is, however, important that the scope of the review is drawn carefully, to avoid disputes as to whether a particular activity falls within the body ’ s mandate and to avoid overlaps with other accountability mechanisms, in particular judicial controls over police powers and Ministerial accountability to parliament.\",\n \"XI. Complaints mechanisms\",\n \"241. Clearly it is necessary for individuals who claim to have been adversely affected by the exceptional powers of security and intelligence agencies, such as surveillance or security clearance, to have some avenue for redress. Quite apart from strengthening accountability, complaints may also help to lead to improved performance by the agencies through highlighting administrative failings. The requirements of human rights treaties, and especially the European Convention on Human Rights, with its protections of fair trial, respect for private life and the requirement of an effective remedy must obviously also be borne in mind.\",\n \"242. Plainly, though, legitimate targets of a security or intelligence agency should not be able to use a complaints system to find out about the agency ’ s work. A complaints system should balance, on the one hand, independence, robustness and fairness, and, on the other hand, sensitivity to security needs. Designing such a system is difficult but not impossible.\",\n \"243. Individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts. As already mentioned, for a variety of reasons, the capacity of the ordinary courts to serve as an adequate remedy in security fields is limited. The case law of the European Court of Human Rights ... makes it very clear that a remedy must not simply be on paper.\",\n \"244. An alternative is to allow an investigation and report into a complaint against an agency by an independent official, such as an ombudsman....\",\n \"245. In these ombudsman-type systems, the emphasis is on an independent official investigating on behalf of the complainant. These independent offices usually exist to deal with an administrative failure by public bodies, rather than a legal error. Their investigations may give less emphasis to the complainant ’ s own participation in the process and to transparency than would be the case with legal proceedings. Typically an investigation of this type will conclude not with a judgment and formal remedies, but with a report, and (if the complaint is upheld) a recommendation for putting matters right and future action...\",\n \"246. A less common variation is for a State to use a parliamentary or expert oversight body to deal with complaints and grievances of individuals.... There may be a benefit for a parliamentary oversight body in handling complaints brought against security and intelligence agencies since this will give an insight into potential failures – of policy, legality and efficiency. On the other hand, if the oversight body is too closely identified with the agencies it oversees or operates within the ring of secrecy, the complainant may feel that the complaints process is insufficiently independent. In cases where a single body handles complaints and oversight it is best if there are quite distinct legal procedures for these different roles.\",\n \"247. On the whole it is preferable that the two functions be given to different bodies but that processes are in place so that the oversight body is made aware of the broader implications of individual complaints. This approach is also supported by the ECHR. The requirement in ECHR Article 13 of a mechanism for remedies for alleging violations of Convention rights which is independent from the authorization process means that a State ’ s control system, e.g. for data processing, may pass the test of “accordance with the law” and “necessity in a democratic society” but that the absence of a remedy means that there is nonetheless a violation of the Convention. As already mentioned, the ECtHR has stated that a remedy must be effective in law and fact. It should be noted in particular that the ECtHR has ruled that a data inspection authority which is independent, and which has formal competence in law to award a remedy for the holding of inaccurate, inappropriate etc. security data, but which in fact lacks the expertise to evaluate this data, is not an effective remedy within the meaning of Article 13.\",\n \"249. In some countries, not only individuals but also members of the services are permitted to bring service-related issues to the attention of an ombudsman or parliamentary oversight body...\",\n \"250. Another method of handling complaints is through a specialist tribunal.”\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW","16. Act no. XXXIV of 1994 on the Police (“the Police Act”) provides as relevant:","Section 1","“(2) The police – within the scope of its duties as prescribed by the Fundamental Law of Hungary, by this Act and by other laws for preventing and combating crimes, administrating and policing – ...","15. ... within the territory of Hungary ...","a) tracks terrorist organisations,","b) prevents, tracks and repels any attempts of individuals, groups or organisations to carry out terrorist acts and impedes the commission of any crimes by them,","c) impedes the promotion of the operation of terrorist organisations by individuals, groups or organisations through providing financial or other support.”","Section 7/E","“(1) The anti-terrorist organ does not exercise any investigatory competence. It:","a) fulfils the tasks prescribed in section 1 subsection (2) point 15, and within these tasks ...","ad) – within the framework of the fight against terrorism and in order to safeguard the national security interests of Hungary – prevents, tracks and repels any attempts to carry out terrorist acts ( terrorcselekmény ) in Hungary. ...","d) on the basis of the decision of the Minister responsible for policing as endorsed by the Minister responsible for foreign affairs – in line with the rules of international law – contributes to rescuing Hungarian citizens who are – outside the territory of Hungary – in distress due to an imminent and life-threatening danger of act of war, armed conflict, hostage-taking or terrorist action; to ensuring their safe return to Hungary and to carrying out their evacuation; to this end it cooperates with the Member States and the organs of the European Union, with the organs of the North Atlantic Treaty Organization, with the related international organisations and with the authorities of the concerned foreign country.","e) acquires, analyses, assesses and forwards information relating to foreign countries or being of foreign origin which is required for fulfilling the task prescribed in section d) above.","(2) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-points aa) to ac) and in point c) – perform secret intelligence gathering in line with the provisions of Chapter VII of the Act on Police.","(3) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-point ad) and in point e) – perform secret intelligence gathering in line with the provisions of sections 53-60 of Act no. CXXV of 1995 on the National Security Services (the “Nbtv.”), in the course of which it may request and handle data according to the provisions of sections 38-52 of Nbtv. The secret intelligence gathering provided in section 56 points a)-e) of Nbtv. is subject to authorisation of the Minister responsible for justice.”","The crime of “terrorist act” ( terrorcselekmény ) is defined in section 261 of the Old Criminal Code and sections 314 to 316 of the New Criminal Code.","17. Act no. CXXV of 1995 on the National Security Services (the “National Security Act”, “Nbtv.”) contains the passages below.","Under section 11(5), complaints about the activities of the anti-terrorist organ shall be investigated by the Minister of Home Affairs who shall inform the complainants of the outcome of the investigations and of the relevant measures within 30 days (this deadline may, on one occasion, be extended by another 30 days).","Section 14(4) contains provisions concerning the relevant competences of the National Security Committee. In exercising parliamentary supervision, the Committee is entitled to request information from the Minister and the directors of the national security services about the country ’ s national security situation and the functioning and activities of the services (sub-section (a)).","In individual complaint procedures, where a complainant does not accept the results of the investigation under section 11(5), the Committee may investigate complaints alleging unlawful activities on the part of the National Security Services if, under the affirmative vote of at least one third of the Committee members, the gravity of the complaint justifies an investigation. In investigating a complaint the Committee shall examine the complaint at issue and may request the Minister to submit his opinion on the case. If the Committee is of the view that the operation of the Services has been unlawful or abusive, it may request the Minister to conduct investigations and to inform the Committee of the results of the investigations or may itself carry out fact-finding investigations if it has the impression that the operation of the Services is contrary to the relevant laws. In carrying out the fact-finding investigations, the Committee may inspect the relevant documents in the records of the National Security Services and may hear staff members of the National Security Services. Relying on the findings the Committee may invite the Minister to take the necessary actions.","Section 43","“The National Security Services may use data having come to their knowledge exclusively for the purpose that corresponds to the legal basis for ordering their acquisition, except","a) if the data are indicative of the commission of a criminal act and forwarding the data is legally allowed, or","b) if they substantiate an obligation to inform another National Security Service and the party receiving the data is itself authorised to obtain them.”","Section 44","“(1) For the purpose of fulfilling their tasks the National Security Services may request data from each other and are obliged to provide data to each other in line with the provisions of this Act.","(4) The bodies requesting data disclosure shall be responsible for the management of data disclosed to them according to the provisions of this Act and the data management legislation; they shall register the data they receive and their utilisation and, upon request, they shall inform the National Security Service thereof.”","Section 45","“(1) The National Security Services may, under an international obligation, transfer personal data to foreign data processing authorities within the framework of laws on protection of personal data.”","Section 50","“(2) Personal data processed by the National Security Services shall be deleted immediately if","a) the deadline specified in subsection (1) has expired;","b) deletion was ordered by a court in data protection proceedings;","c) processing of the data is unlawful;","d) the conditions specified in section 60 (2) are met;","e) processing of the data became manifestly unnecessary.”","Section 53","“(2) The National Security Services may apply the special means and methods of secret intelligence gathering only if the intelligence needed for the performance of the tasks laid down in the present Act cannot be obtained in any other way.”","Section 56","“The National Security Services may, under an external permission","a) search a dwelling secretly and record by means of technical equipment what they perceive;","b) keep a dwelling under surveillance by means of technical equipment and record what they perceive;","c) open and check postal mail and any closed parcel belonging to an identifiable person and record their contents by means of technical equipment;","d) detect the content of communications transmitted by electronic communications network and record it by means of technical equipment;","e) detect the data transmitted by or contained on a computer or network, record it by means of technical equipment and use it.”","Section 57","“(1) The motion to obtain permission for secret intelligence gathering as specified in section 56 may be submitted by director generals of the Information Authority, the Constitution Protection Authority, the Military National Security Service and – in order to carry out its task specified in section 8 (1) f) above – the Special Service for National Security.","(2) The motion shall contain:","a) the premises of the secret intelligence gathering, the person(s) concerned identified by name or as a range of persons, and/or any other information capable of identifying such person or persons;","b) specification of the secret intelligence gathering and reasoning substantiating its necessity;","c) the date of the beginning and the end of the activity;","d) in the case of a motion to obtain permission specified in section 59 below, reasoning why the requested intelligence is absolutely necessary in the specific case for the successful functioning of the National Security Service.”","Section 58","“(3) The ... Minister in charge of justice ... decides [on the motion] within 72 hours to be counted from the motion ’ s submission ... [he] grants permission or, in case of an ill-founded request, rejects it. No appeal lies against the decision.","(4) Unless this law stipulates otherwise, the authoriser allows the secret intelligence gathering for a period of a maximum of 90 days upon each request. In justified cases and upon a motion from the director generals, this time limit may be extended by 90 days, unless this law stipulates otherwise.","(6) The authoriser does not inform the person concerned about the proceedings or about the occurrence of secret intelligence gathering.”","Section 59","“(1) The directors of the National Security Services themselves may [exceptionally] authorise the secret gathering of information within the meaning of section 56 at the latest until the decision given [by the Minister] if the external authorisation procedure entails such delay as obviously countering, in the given circumstances, the interests of the successful functioning of the National Security Service.”","Section 60","“(1) Secret intelligence gathering based on external permission shall be discontinued immediately if","a) it achieved its aim defined in the permission;","b) its continuation does not promise any results;","c) its time-limit has been expired without extension;","d) the secret intelligence gathering is unlawful for any reasons whatsoever.","(2) In the framework of the special procedure defined in section 59 (1), secret intelligence gathering shall also be discontinued immediately if the authoriser does not permit its continuation. In that case, the data obtained by secret intelligence gathering shall be destroyed immediately, according to the laws regulating the deletion of qualified data.”","Section 74(a) defines the notion of national security interests in the following terms:","“Securing the sovereignty and protecting the constitutional order of Hungary and, within that framework,","aa) obtaining intelligence on aggressive efforts targeted against the independence and territorial integrity of the country,","ab) obtaining intelligence on and combating covert efforts violating or threatening the political, economic or defence interests of the country,","ac) obtaining information of foreign relevance or origin required for government decisions,","ad) obtaining intelligence on and combating covert efforts aimed at altering or disturbing by unlawful means the country ’ s constitutional order guaranteeing respect for fundamental human rights, pluralist representational democracy, the constitutional institutions and","ae) obtaining intelligence on and combating acts of terrorism, illegal arms and drugs trafficking, and illegal trafficking in internationally controlled products and technologies;”","18. Act no. CXI of 2011 on the Commissioner for Fundamental Rights (“Ajbt.”) provides as follows:","Under section 18 (1) f), law enforcement organs – including the anti ‑ terrorist organ – are authorities subject to investigation by the Ombudsman. There is only one limitation on the investigations conducted by the Ombudsman: the report drafted on the secret intelligence activities of organs authorised for using secret intelligence devices shall not contain data from which the conclusion can be drawn that in the given case secret intelligence activities were or have been carried out by the organ [cf. section 28(3)]. The Commissioner for Fundamental Rights shall annually submit a report to Parliament about the investigated cases and may – except for proposals for amendments – request Parliament to investigate any given case. Where the finding of an abuse or maladministration affects classified data, the Commissioner for Fundamental Rights shall – simultaneously with the annual report or, if the abuse or maladministration is very grave or affects a great number of natural persons, before the submission of the annual report – submit the case to the competent parliamentary committee in a report classified according to the Act on the Protection of Classified Data.","The applicants submitted a statement obtained from the Commissioner ’ s Office on 9 July 2014, according to which the Commissioner had never enquired into the field of secret surveillance measures.","19. Act no. CLI of 2011 on the Constitutional Court provides as follows:","Section 26 (1)","“Persons or organisations affected by a particular case may, under Article 24 (2) c) of the Fundamental Law, submit a constitutional complaint to the Constitutional Court where due to the application in the related court proceedings of a piece of legislation contravening the Fundamental Law,","a) their rights enshrined in the Fundamental Law have been violated, and","b) legal remedies have been exhausted or no remedy exists.","(2) By way of derogation from subsection (1), such Constitutional Court proceedings may, exceptionally, also be initiated where","a) the injury originated directly from the application or becoming effective of a provision contravening the Fundamental Law, without a court decision, and","b) no procedure to redress the injury is available or the available remedies have already been exhausted by the complainant. ...”","Section 27","“Against a judicial decision contravening the Fundamental Law within the meaning of Article 24 (2) d.) of the Fundamental Law, a person or organisation affected by the particular case may file a constitutional complaint with the Constitutional Court where the decision on the merits of the case or another decision terminating the judicial proceedings","a) has violated the complainant ’ s rights enshrined in the Fundamental Law, and","b) the complainant has already exhausted the legal remedies or no legal remedy exists.”","20. Decision no. 32/2013. (XI.22.) AB of the Constitutional Court establishing the constitutional requirement to be met in respect of section 58 (3) of Nbtv. and rejecting the related constitutional complaint contains the following passages:","“... 1. The Constitutional Court finds that ... in order to make the external control effective, the decision of the Minister responsible for justice ... authorising secret intelligence gathering must be supplied with reasons. ...","[42] 1.1. The regulations in force specify two types of secret intelligence gathering: secret surveillance linked to the investigation of particular crimes and secret surveillance not linked to the investigation of particular crimes. ...","[47] 1.2. Secret surveillance not linked to the investigation of particular crimes is either not subject to external authorisation [sections 54-55 of Nbtv.] or is subject to external authorisation [sections 54-55 of Nbtv.] In cases specified in the Act authorisation means authorisation by a judge or by the Minister of Justice.","[48] According to the reasoning of Nbtv., from international practice several examples can be mentioned for States making a distinction between intelligence gathering linked to the investigation of particular crimes (including the closely related fields of crime prevention and crime detection) and intelligence gathering carried out for national security purposes.","[49] On the basis of this principle, a system of divided authorisation has been adopted in the Act. For the purpose of detecting actual criminal offences, secret intelligence gathering is authorised – similarly to the solution applied in the Act on the Police – by a judge designated for the task by the President of the Budapest High Court, whereas section 56 activities carried out in the course of general intelligence gathering shall be authorised by the Minister of Justice. ...","[51] Section 53 (2) of Nbtv., according to which secret intelligence gathering may only be carried out if the data required to perform the statutory tasks cannot be obtained in any other manner, shall apply to both cases. ...","[62] Under section 14 (4) of Nbtv. Parliament ’ s National Security Committee shall exercise control over the authorisation process of the Minister of Justice. ...","[69] 2. Secret intelligence gathering governed by Nbtv and not linked to the investigation of particular crimes ... has not been examined by the Constitutional Court yet. However, in its decision no. 2/2007. (I. 24.) AB (henceforth: Abh.1.) the Constitutional Court specified the general aspects under which secret intelligence gathering and secret surveillance are acceptable in a democratic, rule-of-law State.","[70] Since the content of Article B) (1) of the Fundamental Law is identical to the content of Article 2 (1) of the former Constitution, and since from the rules of interpretation applicable to the Fundamental Law no conclusion contrary to the above opinion of the Constitutional Court can be inferred, the statements of principle made on the necessity and proportionality of secret intelligence gathering can be maintained.","[71] The Constitutional Court has also taken into consideration the Strasbourg Court ’ s jurisprudence, as recalled in its former decisions. Cases related to “covert investigations” were examined by the Court in light of the Convention provisions set forth in Article 8 which protects the right to respect for private life. In its judgments the Court held that in a democratic society the rights enshrined under Article 8 § 1 can only be restricted within the limits specified in paragraph 2, that is only for the purposes specified in that provision and only in case the necessity of the restriction is justified.","[72] Lawfulness under the Court ’ s case law does not merely require that a given restriction be specified under the law. The phrase “in accordance with the law” requires that the regulation itself should meet the rule-of-law principles. Since secret intelligence gathering does, per definition, exclude the possibility of an effective remedy, it is imperative that the process authorising such information gathering should contain sufficient guarantees for the protection of the rights of the individuals. Therefore, the use of secret intelligence gathering must be subject to a three-stage control: when the interference is ordered, while the interference is carried out and when the interference is terminated. Control must be exercised by “bodies” independent of the executive power. First of all, only constant, continuous and mandatory control can guarantee that in a given case the requirement of proportionality is not violated ....","[73] In its judgments the Court laid down the minimum requirements to be met by a legal regulation on the use of secret intelligence devices. The Court emphasised that since the interference with the fundamental rights is secret and since the use of such devices provides “unpredictable” opportunities for the executive power, it is indispensable that the procedures themselves provide sufficient guarantees for the observance of the rights of the individuals. Therefore States must create precise and detailed rules that can be abided by and accessed by the citizens. From the legal regulation the competence of the authority applying such devices, the essence of the measures and the manner of their practice should be clear and apparent. As to the requirement of the clarity of rules the Court also pointed out that the laws should specify the cases and circumstances which warrant such interference and the conditions of the interference. As a minimum guarantee the laws should determine the criteria based on which the scope of persons potentially affected can be determined and should contain provisions regulating the documentation of the use of secret intelligence devices and specifying the rules applicable to the protection and destruction of the documentation. As to decision-making on the application of secret intelligence devices, an excessively wide margin of appreciation may not be granted for the authorities (e.g. Valenzuela Contreras v. Spain (58/1997/842/1048)). As to the application of secret intelligence devices, the requirement that access to the information by outside persons should be restricted serves as an additional guarantee (e.g. Kopp v. Switzerland (13/1997/797/1000) 25 March 1998).","[74] Use for a particular purpose means that secret intelligence devices may only be used for reasons specified in Article 8 § 2 .... Compliance with the necessity test is closely linked to this issue. It is a basic requirement that any interference should be justified by pressing public interest and should be proportionate both to the danger needed to be countered and to the injury caused.","[75] An examination of these issues should not be confined to scrutinising whether the statutory conditions laid down for the restriction meet the necessity-proportionality test but should also extend to examining the necessity of the use of secret intelligence devices in the particular case. As to the requirement of necessity it is of paramount importance that any use should only take place in case of “aggravated” (serious) threat and only in case the traditional investigative means and devices prove to be inefficient in the particular circumstances of a case; moreover, any use of the secret intelligence devices should take place according to a strict procedure that can be known in advance ...","[76] From the Convention and the relevant case law of the Court the Constitutional Court has concluded that national security, public security and the prosecution of crime are interests for which even covert investigations – which amount to serious law-restricting devices – can be used where the above specified criteria are met.","[77] 3. The Constitutional Court has examined the contested provision within the confines of the complainants ’ complaint. The complainants challenged the anti-terrorist organ ’ s secret intelligence gathering activities carried out for purposes other than prosecuting crime. They alleged non-compliance with the Fundamental Law of the contested provision by alleging that the provision at issue allowed for the anti-terrorist organ ’ s secret intelligence gathering under Nbtv. – while Nbtv. contained no guarantees for the observance of the fundamental rights at issue.","[78] The complainants did not make a distinction between the various stages of the secret intelligence gathering (ordering, carrying out and terminating the interference) but picked out some elements of the application [of this measure] and complained about those elements. As to the ordering of the interference they complained that the permission of the Minister responsible for justice did not constitute a sufficient guarantee, in particular in view of the fact that the grounds on which the request for authorisation can be made are not exhaustively enumerated. The complainants are of the view that following the termination of the interference the fate of the information irrelevant for the purposes of the surveillance and the fate of the data related to persons not concerned in the case is not settled. ...","[80] Therefore, within the confines of the complaint the Constitutional Court must examine whether the authorisation by the Minister responsible for justice of secret intelligence gathering for the anti-terrorist organ and the handling of data following the termination of the interference does or does not violate the fundamental rights invoked, namely the right to privacy and the right to informational autonomy....","[92] 3.2. The Constitutional Court has first examined the constitutionality of the authorisation by the Minister responsible for justice. The first phase of secret surveillance is the ordering of the interference. Since in applying section 7/E (3) of the Act on the Police (henceforth: Rtv.) the Minister responsible for justice gives – by authorising the use of the secret intelligence gathering devices and methods listed in section 56 a)-e) of Nbtv. – consent to a State interference which seriously violates fundamental rights, the process of interference must be regulated under the law, the prescribed norms must be clear, and the process must be subject to external control mechanisms. ...","[94] ... The contested provision of Rtv. authorises the anti-terrorist organ to carry out, in performing certain of its tasks, secret intelligence gathering under the Nbtv. The Rtv. clearly specifies the two tasks for the performance of which secret surveillance under the Nbtv. may be carried out: namely, the performance of the tasks specified in section 7/E (1) a) and ad) and in section 7/E (1) e).","[95] The task specified under section 7/E (1) a) (subsection (ad)) to be performed in the framework of combating terrorism is the prevention, detection and suppression of endeavours to commit an act of terrorism in the territory of Hungary with a view to promoting Hungary ’ s national security interests. Item e) refers back to item d) which allows for the obtaining, analysing, assessing and forwarding of information on a foreign State or originating in a foreign State in so far as the information is necessary for the performance of the task specified there. The tasks specified under item d) are participation in the rescue, return to Hungary and evacuation of Hungarian nationals who have got into trouble due to acts of war or armed conflicts outside the territory of Hungary imminently threatening the lives and limbs of Hungarian nationals or due to terrorist acts or hostage-taking acts, as well as cooperation for such purposes with the member States and institutions of the European Union, the organs of the North Atlantic Treaty Organization, the international organisations concerned by the case and the authorities of the foreign State at issue. These tasks shall be carried out upon a decision to that effect taken by the Minister responsible for law enforcement in agreement with the Minister responsible for foreign affairs.","[96] Section 7/E (3) of Rtv., contested by the complainants, refers to Nbtv. and repeats the Nbtv. rules on secret intelligence gathering (sections 53-60) and the handling of the acquired data [sections 38-52]. Section 7/E (3) of Rtv. provides for the application, mutatis mutandis, of the Nbtv. provisions both to the investigation of a complaint about an activity of the anti-terrorist organ, and to the parliamentary control of the anti-terrorist organ and to the investigation of a report alleging unlawful operation on the part of the anti-terrorist organ [section 11 (5), section 14 (1)-(2) and (4) a)-f) and (5), section 15 (3), section 16, section 18 and section 27 (4) of Nbtv.] Moreover, the contested provision clearly provides that the Minister responsible for justice shall be entitled to authorise the use, within the scope of the statutory tasks, of the secret intelligence devices enumerated in an exhaustive list. Therefore section 7/E (3) of Rtv. meets the requirement of being prescribed by law and the requirement of clarity of norms, as it sufficiently specifies the conditions of ordering and the circumstances of executing the measure regulated in the Act.","[97] Thereafter the Constitutional Court has proceeded to examine whether in the given case the authorisation of secret intelligence gathering by the Minister responsible for justice provided sufficient guarantees for the observance of the fundamental rights of the individuals. ...","[102] Secret intelligence gathering for the purposes of national security may only take place under Section 7/E (1) a) ad) or e) of Rtv., that is in order to combat endeavours to commit an act of terrorism in the territory of Hungary and in relation to the protection of Hungarian nationals have got into trouble in a foreign country. ...","[105] The scope of national security-related tasks is much broader than the scope of the tasks related to the investigation of particular crimes as for the purposes of national security the events of real life are examined not for their criminal law relevance, and those events do not necessarily entail legal consequences. Identifying and combating endeavours aimed at committing acts having relevance from the aspects of securing the sovereignty of the State and of protecting the lawful order of the State may fall outside the sphere of particular criminal offences. Therefore national security-related tasks are not comparable to secret intelligence gathering linked to investigating a crime, which is carried out under section 69 of Rtv. and is subject to authorisation by a court. The prevention and elimination of risks to national security require political decisions, therefore decisions of this type fall in the competence of the executive power. This consideration justifies that general character secret intelligence gathering should be authorised by the Minister responsible for justice.","[106] However, in granting the authorisation the Minister responsible for justice must weigh the interests of national security against the injury done to the fundamental rights. Therefore in addition to assessing the national security interests of the country from a political (home and foreign affairs) aspect, the person granting the authorisation should also strike a fair balance between the interests of national security and fundamental rights. In doing so, it must start from the principle that secret intelligence methods for national security purposes may only be used even by the anti-terrorist organ as a last resort means of detection. Section 53 (2) of Nbtv. clearly provides for the ultima ratio nature of secret intelligence methods: the special devices and methods of secret intelligence gathering can only be used where the data needed for the completion of a prescribed task cannot be obtained in any other way, namely by the traditional means of detection. This provision of Nbtv. is intended to serve as a legal guarantee similar to that which the specification in the law of the acts amounting to criminal offences constitutes in the context of secret intelligence gathering linked to the investigation of a particular crime and carried out upon the suspicion of an offence.","[107] ... The request for authorisation must be supported with reasons. The ... grantor of the authorisation shall base his decision on the content of the request: the request shall be granted or, in case of ill-foundedness, rejected. Hence, in case the requesting authority cannot sufficiently justify that the data required for performing its tasks cannot be acquired in any other manner no authorisation for the use of intelligence devices and methods shall be given. ...","[114] As to the ordering and carrying out of the secret intelligence gathering external control is a fundamental guarantee. Control over the activities performed by the anti-terrorist organ under the rules of Nbtv. is exercised by the National Security Committee (henceforth: Committee) of the Parliament ... Upon the Committee ’ s request the Minister of Justice shall provide information on the nature of the authorised information gathering and on the type of the case (section 14(4) b) Nbtv.).","[115] The Committee may acquire information about irregularities related to the operation of the Services (anti-terrorist organ) from, among others, its own inquiries, from citizen complaints or from information from the staff members of the Services. ...","[119] Nbtv. sets one single bar to the Committee ’ s control: the Committee may not learn of information which might endanger the prime importance national security interests in protecting the methods and sources (participating persons) relied on in the case at issue (section 16(1) of Nbtv.).","[120] The operation of the National Security Services and of the anti-terrorist organ and of the Minister of justice ’ s authorising activity can be controlled, in addition to the Parliament, by the Parliamentary Commissioner for Fundamental Rights as well.","[121] Under section 18 (1) f) of Act no. CXI of 2011 on the Parliamentary Commissioner for Fundamental Rights (henceforth: Ajbt.) law enforcement organs, including the anti-terrorist organ, are authorities that can be examined by the Ombudsman. ... Hence no obstacle exists to an examination by the Ombudsman, the only bar being that – similarly to the control by Parliament – the report made on the examination of the secret intelligence activities of the authorities authorised for using secret intelligence devices and methods may not contain data from which the secret intelligence gathering activities carried out by the organ in the case at issue can be inferred (section 28(3)). The Commissioner for Fundamental Rights may present, in case the conditions specified under section 38 of Ajbt. are met, the cases examined by him to Parliament in an annual report and may, with the exception of motions for amendments, request Parliament to examine a case. ...","[122] On the basis of the above information the Constitutional Court has concluded that Nbtv. allows for the control of the authorisation granting of the Minister of Justice by bodies independent of the executive power. ...","[124] 3.3 In examining the reference in section 7/E (3) of Rtv. the Constitutional Court has observed that section 58 (3) of Nbtv. does not expressly provide for a reasoned decision ...","[127] A necessary element of any judicial decision to be taken on secret intelligence gathering under the Rtv. is an examination of the compliance of the request for authorisation with the statutory requirements. ...","[128] [...] The reference in section 7/E (3) of Rtv. also requires authorisation from the Minister of Justice for national security-related secret intelligence gathering carried out by the anti-terrorist organ, which is part of the Police Service, in order to combat endeavours to commit an act of terrorism in the territory of Hungary or in relation to the protection of Hungarian nationals who have got into trouble in a foreign country. ...","[130] Since Nbtv. does not expressly require the Minister of Justice to issue a reasoned decision, the authoriser is under no obligation to provide reasoning. In the absence of reasoning, however, no posterior understanding, analysis or review of the aspects and reasons giving rise to the decision in a particular case is possible for those who exercise external control.","[131] Though section 58 (3) of Nbtv. prescribes that the authorisation grantor shall base his decision on the content of the request, this content is, per definition, one-sided since in arguing for the necessity of the secret information gathering the request will solely invoke national security interests. The authorisation grantor must strike a fair balance between the interests of national security and fundamental rights enshrined under Article VI (1)-(2) of the Fundamental Law for persons affected by secret intelligence gathering and must ensure, in addition to determining the necessity of the restriction, that the restriction is proportionate. ...","[132] Given that the special nature of secret surveillance excludes the possibility of a remedy, a restriction of the right to privacy and of the right to informational autonomy that is proportionate to the protection of national security will require effective external control already in granting the authorisation for the use of the secret intelligence devices.","[133] The National Security Committee and the Commissioner for Fundamental Rights may only constitute effective external control over the authorisation activity of the Minister of Justice if the Minister ’ s decision authorising the secret surveillance contains sufficiently detailed reasons. The reasons should be of a depth and detail that enable those who exercise the external control to review the balance struck between the interests of national security and the fundamental rights at issue.","[134] Upon the authorisation granted in section 46 (3) of Abtv., in order to ensure effective external control, the Constitutional Court has laid down as a constitutional requirement ensuring compliance with Article VI (1)-(2) of the Fundamental Law that in applying section 58 (3) of Nbtv. the decision of the Minister responsible for justice ordering secret intelligence gathering must be supported by reasons.","[135] 3.4. Thereafter the Constitutional Court has examined whether the data handling by the anti-terrorist organ following the termination of the secret intelligence gathering violates the right to informational autonomy. The complainants complained that Nbtv., contrary to Rtv., fails to provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case. ...","[138] Based on the above considerations the Constitutional Court has established that though Nbtv., contrary to section 73 (3) of Rtv., does not expressly provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case, from the joint interpretation of the phrase “obviously unnecessary” in section 50 (2) e) and of section 43 of Nbtv. it clearly follows that any data unnecessary for achieving the aim serving as a legal ground for the data acquisition, in particular the data related to persons not concerned by the case, must be deleted ex officio. Therefore the above regulation meets the principle of being purpose-bound and is suitable to prevent storing data acquisition. Moreover, Nbtv. allows for the concerned persons to file a request for the deletion of their personal data, which request can only be rejected by the Chief Director on specific grounds. External control exists over the data processing as well, since the reasons for the rejection of a request must also be sent to the National Data-Protection and Information Freedom Authority [section 48 of Nbtv.].","[139] Therefore the Constitutional Court dismisses, in this respect as well, the complaint alleging non-compliance of the contested provision with the Fundamental Law and seeking the annulment of the contested provision. ...”","III. European Commission for Democracy through Law (“The Venice Commission”)","21. The Report on the Democratic oversight of the Security Services adopted by the Venice Commission at its 71st Plenary Session (Venice, 1 ‑ 2 June 2007) (CDL-AD(2007)016-e) contains the following passages:","“81. In the light of the importance and nature of the interests at stake, security intelligence gathering is one of the main areas of national decision-making which a government is most unwilling to submit to national legislative scrutiny and judicial review and, a fortiori, to international supervision and control.","82. For a variety of reasons, there can be tension as regards national security policy, not only between the governing party and the political opposition in a State, but also constitutional tension between the executive and the legislative power, tension within a government (especially a coalition government), and tension between political masters and the staff of security intelligence agencies. A large degree of secrecy must accompany national security policy making and operations. However secrecy also has the effect of increasing the government ’ s control over policy at the expense of the legislative power, and of insulating the former from criticism. This is exacerbated by the fact that nowadays, there is a link between “external” and “internal” threats to the State. Accordingly, security and intelligence information tends to form an indivisible whole. ...","86. It is particularly important, as regards the limited scope of parliamentary and judicial control, to note the special nature of security intelligence. The heart of a security agency is its intelligence files. “Hard” data, purely factual information, is insufficient for a security agency, or for that matter, any police organization. It also needs to gather speculative intelligence in order to determine which people are, or are probably or possibly, threatening national security. This information can be obtained in different ways. A large proportion of non-open source internal security information comes from informants. Like factual information, such “soft intelligence” can, and must if the agency is to do its job properly, be collated to produce a personality profile of a suspect or an analysis of a suspected activity. ...","IV. OTHER RELEVANT INTERNATIONAL TEXTS","22. Several elements of international law, relevant in this context, are outlined in the judgment Dragojević v. Croatia (no. 68955/11, §§ 62 to 66, 15 January 2015).","23. In Digital Rights Ireland v Minister for Communications & Others, (cases C-293/12 and C-594/12, 8 April 2014), the Court of Justice of the European Union held as follows:","“26. In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users ’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.","27. Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.","...","52. So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court ’ s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C ‑ 473/12 IPI EU:C: 2013:715, paragraph 39 and the case-law cited).","...","62. In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits.”","24. The 2013 Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, contains the following conclusions and recommendations:","“78. Communications techniques and technologies have evolved significantly, changing the way in which communications surveillance is conducted by States. States must therefore update their understandings and regulation of communications surveillance and modify their practices in order to ensure that individuals ’ human rights are respected and protected.","79. States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other. Without adequate legislation and legal standards to ensure the privacy, security and anonymity of communications, journalists, human rights defenders and whistleblowers, for example, cannot be assured that their communications will not be subject to States ’ scrutiny.","80. In order to meet their human rights obligations, States must ensure that the rights to freedom of expression and privacy are at the heart of their communications surveillance frameworks. To this end, the Special Rapporteur recommends the following:","A. Updating and strengthening laws and legal standards","81. Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society. Legislation must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority. Safeguards must be articulated in law relating to the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorize, carry out and supervise them, and the kind of remedy provided by the national law.","82. Individuals should have a legal right to be notified that they have been subjected to communications surveillance or that their communications data has been accessed by the State. Recognizing that advance or concurrent notification might jeopardize the effectiveness of the surveillance, individuals should nevertheless be notified once surveillance has been completed and have the possibility to seek redress in respect of the use of communications surveillance measures in their aftermath.","83. Legal frameworks must ensure that communications surveillance measures:","(a) Are prescribed by law, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application;","(b) Are strictly and demonstrably necessary to achieve a legitimate aim; and","(c) Adhere to the principle of proportionality, and are not employed when less invasive techniques are available or have not yet been exhausted.","84. States should criminalize illegal surveillance by public or private actors. Such laws must not be used to target whistleblowers or other individuals seeking to expose human rights violations, nor should they hamper the legitimate oversight of government action by citizens.","85. The provision of communications data by the private sector to States should be sufficiently regulated to ensure that individuals ’ human rights are prioritized at all times. Access to communications data held by domestic corporate actors should only be sought in circumstances where other available less invasive techniques have been exhausted.","86. The provision of communications data to the State should be monitored by an independent authority, such as a court or oversight mechanism. At the international level, States should enact Mutual Legal Assistance Treaties to regulate access to communications data held by foreign corporate actors.","87. Surveillance techniques and practices that are employed outside of the rule of law must be brought under legislative control. Their extra-legal usage undermines basic principles of democracy and is likely to have harmful political and social effects.","B. Facilitating private, secure and anonymous communications","88. States should refrain from compelling the identification of users as a precondition for access to communications, including online services, cybercafés or mobile telephony.","89. Individuals should be free to use whatever technology they choose to secure their communications. States should not interfere with the use of encryption technologies, nor compel the provision of encryption keys.","90. States should not retain or require the retention of particular information purely for surveillance purposes.","C. Increasing public access to information, understanding and awareness of threats to privacy","91. States should be completely transparent about the use and scope of communications surveillance techniques and powers. They should publish, at minimum, aggregate information on the number of requests approved and rejected, a disaggregation of the requests by service provider and by investigation and purpose.","92. States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature and application of the laws permitting communications surveillance. States should enable service providers to publish the procedures they apply when dealing with State communications surveillance, adhere to those procedures, and publish records of State communications surveillance.","93. States should establish independent oversight mechanisms capable to ensure transparency and accountability of State surveillance of communications.","94. States should raise public awareness on the uses of new communication technologies in order to support individuals in properly assessing, managing, mitigating and making informed decisions on communications-related risks.","D. Regulating the commercialization of surveillance technology","95. States should ensure that communications data collected by corporate actors in the provision of communications services meets the highest standards of data protection.","96. States must refrain from forcing the private sector to implement measures compromising the privacy, security and anonymity of communications services, including requiring the construction of interception capabilities for State surveillance purposes or prohibiting the use of encryption.","97. States must take measures to prevent the commercialization of surveillance technologies, paying particular attention to research, development, trade, export and use of these technologies considering their ability to facilitate systematic human rights violations.","E. Furthering the assessment of relevant international human rights obligations","98. There is a significant need to advance international understanding on the protection of the right to privacy in light of technological advancements. The Human Rights Committee should consider issuing a new General Comment on the right to privacy, to replace General Comment No. 16 (1988).","99. Human rights mechanisms should further assess the obligations of private actors developing and supplying surveillance technologies.”","25. The European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens ’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs contains the following passages:","The impact of mass surveillance","“...","G. whereas the revelations since June 2013 have caused numerous concerns within the EU as to: ...","- the possibility of these mass surveillance operations being used for reasons other than national security and the fight against terrorism in the strict sense, for example economic and industrial espionage or profiling on political grounds;","- the undermining of press freedom and of communications of members of professions with a confidentiality privilege, including lawyers and doctors;","- the respective roles and degree of involvement of intelligence agencies and private IT and telecom companies;","- the increasingly blurred boundaries between law enforcement and intelligence activities, leading to every citizen being treated as a suspect and being subject to surveillance;","- the threats to privacy in a digital era and the impact of mass surveillance on citizens and societies;","...","T. whereas fundamental rights, notably freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination, as enshrined in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights, are cornerstones of democracy; whereas mass surveillance of human beings is incompatible with these cornerstones;","...","Democratic oversight of intelligence services","BW. whereas intelligence services in democratic societies are given special powers and capabilities to protect fundamental rights, democracy and the rule of law, citizens ’ rights and the State against internal and external threats, and are subject to democratic accountability and judicial oversight; whereas they are given special powers and capabilities only to this end; whereas these powers should be used within the legal limits imposed by fundamental rights, democracy and the rule of law and their application should be strictly scrutinised, as otherwise they lose legitimacy and risk undermining democracy;","BX. whereas the fact that a certain level of secrecy is conceded to intelligence services in order to avoid endangering ongoing operations, revealing modi operandi or putting at risk the lives of agents, such secrecy cannot override or exclude rules on democratic and judicial scrutiny and examination of their activities, as well as on transparency, notably in relation to the respect of fundamental rights and the rule of law, all of which are cornerstones in a democratic society;","BY. whereas most of the existing national oversight mechanisms and bodies were set up or revamped in the 1990s and have not necessarily been adapted to the rapid political and technological developments over the last decade that have led to increased international intelligence cooperation, also through the large scale exchange of personal data, and often blurring the line between intelligence and law enforcement activities;","BZ. whereas democratic oversight of intelligence activities is still only conducted at national level, despite the increase in exchange of information between EU Member States and between Member States and third countries; whereas there is an increasing gap between the level of international cooperation on the one hand and oversight capacities limited to the national level on the other, which results in insufficient and ineffective democratic scrutiny;","CA. whereas national oversight bodies often do not have full access to intelligence received from a foreign intelligence agency, which can lead to gaps in which international information exchanges can take place without adequate review; whereas this problem is further aggravated by the so-called ‘ third party rule ’ or the principle of ‘ originator control ’, which has been designed to enable originators to maintain control over the further dissemination of their sensitive information, but is unfortunately often interpreted as applying also to the recipient services ’ oversight;","CB. whereas private and public transparency reform initiatives are key to ensuring public trust in the activities of intelligence agencies; whereas legal systems should not prevent companies from disclosing to the public information about how they handle all types of government requests and court orders for access to user data, including the possibility of disclosing aggregate information on the number of requests and orders approved and rejected;","Main findings","...","6. Recalls the EU ’ s firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection;","7. Considers that data collection of such magnitude leaves considerable doubts as to whether these actions are guided only by the fight against terrorism, since it involves the collection of all possible data of all citizens; points, therefore, to the possible existence of other purposes including political and economic espionage, which need to be comprehensively dispelled;","8. Questions the compatibility of some Member States ’ massive economic espionage activities with the EU internal market and competition law as enshrined in Titles I and VII of the Treaty on the Functioning of the European Union; reaffirms the principle of sincere cooperation as enshrined in Article 4(3) of the Treaty on European Union, as well as the principle that Member States shall ‘ refrain from any measures which could jeopardise the attainment of the Union ’ s objectives ’;","10. Condemns the vast and systemic blanket collection of the personal data of innocent people, often including intimate personal information; emphasises that the systems of indiscriminate mass surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens; stresses that privacy is not a luxury right, but is the foundation stone of a free and democratic society; points out, furthermore, that mass surveillance has potentially severe effects on freedom of the press, thought and speech and on freedom of assembly and of association, as well as entailing a significant potential for abusive use of the information gathered against political adversaries; emphasises that these mass surveillance activities also entail illegal actions by intelligence services and raise questions regarding the extraterritoriality of national laws;","12. Sees the surveillance programmes as yet another step towards the establishment of a fully-fledged preventive state, changing the established paradigm of criminal law in democratic societies whereby any interference with suspects ’ fundamental rights has to be authorised by a judge or prosecutor on the basis of a reasonable suspicion and must be regulated by law, promoting instead a mix of law enforcement and intelligence activities with blurred and weakened legal safeguards, often not in line with democratic checks and balances and fundamental rights, especially the presumption of innocence; recalls in this regard the decision of the German Federal Constitutional Court on the prohibition of the use of preventive dragnets ( ‘ präventive Rasterfahndung ’ ) unless there is proof of a concrete danger to other high-ranking legally protected rights, whereby a general threat situation or international tensions do not suffice to justify such measures;","...","14. Points out that the abovementioned concerns are exacerbated by rapid technological and societal developments, since internet and mobile devices are everywhere in modern daily life ( ‘ ubiquitous computing ’ ) and the business model of most internet companies is based on the processing of personal data; considers that the scale of this problem is unprecedented; notes that this may create a situation where infrastructure for the mass collection and processing of data could be misused in cases of change of political regime; ...”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","26. The applicants complained under Article 8 of the Convention that they could potentially be subjected to measures within the framework of “section 7/E (3) surveillance”. They submitted that the legal framework was prone to abuse, notably for want of judicial control.","Article 8 provides as follows:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","27. The Government contested these allegations.","A. Admissibility","1. The parties ’ submissions","28. The Government did not formally contest the applicants ’ potential victim status within the meaning of the Court ’ s jurisprudence, under which the mere existence of a piece of legislation allowing for the use of secret intelligence devices served as a ground for victim status, even if no such device had ever been used against an applicant. However, the Government disputed the applicants ’ allegations that – as staff members of a watchdog organisation – they were affected more directly by the possibility of being subjected to secret surveillance than others.","29. Moreover, the Government submitted that in their constitutional complaint the applicants had not complained about the presence or absence of guarantees in the entire process of secret intelligence gathering. They had only complained about the authorisation by the Minister of Justice of the interference and the data handling following the termination of the interference. The Government emphasised that in respect of any further complaints that the applicants might have in relation to other phases of the process, they had failed to exhaust the available domestic remedies.","30. Regarding victim status, the applicants emphasised that the lack of meaningful external control over the use of covert surveillance had put individuals ’ privacy in danger as nothing prevented the political power from using this prerogative arbitrarily. Their watchdog activity might not serve as a ground for secret intelligence gathering. Nevertheless, their statement ‑ according to which they, as staff members of watchdog organisations voicing criticism against the Government, felt more frustrated and worried about being subjected to secret surveillance than average citizens probably did – could not be regarded as fear based on completely unfounded assumptions, especially if considering some of the Government ’ s recent measures as being directed against civil organisations.","31. Concerning exhaustion of domestic remedies, the applicants did not dispute that their constitutional complaint had been focused on the system of authorisation, since only the safeguards built into this phase were able to provide adequate protection to right to privacy. This meant that guarantees related to later procedural phases were unable to counterbalance the detriment caused to the right to privacy if there was no control mechanism built into the process of authorisation of secret surveillance that was able to impede legally unjustifiable interventions into the private sphere. However, the question as to whether this assertion was correct might only be assessed considering the procedure as a whole. The Government ’ s suggestion that the Court should refrain from the assessment of procedural phases beyond the authorisation phase was pointless and practically not feasible. Moreover, the applicants emphasised that the complaint lodged with the Constitutional Court and the complaint submitted to the Court did not completely correspond to each other in terms of the arguments forwarded, and that therefore the Court should not refrain, purely relying on the principle of subsidiarity, from examining the question as to whether the other guarantees provided in the procedure ensured adequate protection.","2. The Court ’ s assessment","32. As to the applicants ’ victim status, the Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006).","33. However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has accepted that, under certain circumstances, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him. The Court ’ s approach to assessing whether there has been an interference in cases raising a complaint about the legislation allowing secret surveillance measures was set out in its Klass and Others judgment (cited above, §§ 34 and 36) as follows:","“34. ... the effectiveness ( l ’ effet utile ) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.","The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.","...","36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. ...","The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25, since otherwise Article 8 runs the risk of being nullified.”","34. Following Klass and Others (cited above) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82 ), the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a “reasonable likelihood” that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996); subsequently, the Court applied a similar approach (see Halford v. the United Kingdom, 25 June 1997, §§ 56 to 57, Reports of Judgments and Decisions 1997 ‑ III ).","35. More pertinently with regard to the present application, in other cases which concerned complaints about the legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia (dec.), no. 54934/00, § 78, ECHR 2006 XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58 to 60, 28 June 2007; Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30 to 35, 10 February 2009 ).","36. In the case of Kennedy v. the United Kingdom (no. 26839/05, § 124, 18 May 2010 ) the Court held that in order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by the Court.","Most recently, the Court adopted, in Roman Zakharov v. Russia ( [GC], no. 47143/06, §§ 170-172, 4 December 2015), a harmonised approach based on Kennedy, according to which firstly the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affect all users of communication services by instituting a system where any person can have his or her communications intercepted; and secondly the Court will take into account the availability or remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies.","37. The Court observes that the present applicants complained of an interference with their homes, communications and privacy on the basis of the very existence of the law permitting secret surveillance and the lack of adequate safeguards, admitting that their personal or professional situations were not of the kind that might normally attract the application of surveillance measures. They nevertheless thought they were at particular risk of having their communications intercepted as a result of their employment with civil-society organisations criticising the Government.","38. The Court observes that affiliation with a civil-society organisation does not fall within the grounds listed in section 7/E (1) point (a) sub-point ( ad ) and point (e) of the Police Act, which concern in essence terrorist threats and rescue operations to the benefit of Hungarian citizens in dangerous situations abroad. Nevertheless, it appears that under these provisions any person within Hungary may have his communications intercepted if interception is deemed necessary on one of the grounds enumerated in the law (see paragraph 16 above). The Court considers that it cannot be excluded that the applicants are at risk of being subjected to such measures should the authorities perceive that to do so might be of use to pre-empt or avert a threat foreseen by the legislation – especially since the law contains the notion of “persons concerned identified ... as a range of persons” which might include indeed any person.","The Court also notes that, by examining their constitutional complaint on the merits, the Constitutional Court implicitly acknowledged the applicants ’ being personally affected by the legislation in question for the purposes of section 26(1) of the Act on the Constitutional Court (see paragraph 19 above).","It is of importance at this juncture to note that they are staff members of a watchdog organisation, whose activities have previously been found similar, in some ways, to those of journalists (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, 14 April 2009). The Court accepts the applicants ’ suggestion that any fear of being subjected to secret surveillance might have an impact on such activities (see, mutatis mutandis, Nagla v. Latvia, no. 73469/10, § 82, 16 July 2013). In any case, whether or not the applicants belong to a targeted group, the Court considers that the legislation directly affects all users of communication systems and all homes.","39. Considering in addition that the domestic law does not appear to provide any possibility for an individual who alleges interception of his or her communications to lodge a complaint with an independent body, the Court is of the view that the applicants can claim to be victims of a violation of their rights under the Convention, within the meaning of Article 34 of the Convention.","40. Concerning the exhaustion of domestic remedies, the Court is satisfied that the applicants brought to the attention of the national authorities, in the instant case the Constitutional Court, the essence of their grievance, that is, the alleged insufficiency of guarantees in the rules governing “section 7/E (3) surveillance”. While noting the Government ’ s objection according to which this constitutional complaint was focused on but a few central issues, the Court considers that, because of the nature of the problem, the system of guarantees preceding the measures, prevailing during their application and following it is a complex set of arrangements which must be assessed in its entirety (see Klass and Others, cited above, §§ 39 to 60). Consequently – and assuming that the procedure before the Constitutional Court was at all an effective remedy to exhaust in the circumstances – the fact that the applicants ’ constitutional complaint did not encompass all possible issues but highlighted a few cannot be held against them so as to enable the rejection of their complaints on account of non ‑ exhaustion of domestic remedies, in so far as their representations made to the Court on these issues can be seen as supplementing the ones submitted to the Constitutional Court (see, mutatis mutandis, Gustafsson v. Sweden, 25 April 1996, § 51, Reports 1996 ‑ II).","41. Moreover, the Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.","B. Merits","1. Arguments of the parties","( a ) The Government","42. With regard to the necessity of judicial authorisation in the context of Article 8, the Government referred to the Venice Commission ’ s Report on the Democratic Oversight of the Security Services (CDL-AD(2007)016, adopted at the Venice Commission ’ s 71 st Plenary Session, Venice, 1-2 June 2007). Relying on several observations made in this report, the Government submitted that the domestic courts were not suitable to determine the necessity of secret intelligence gathering for national security purposes due to the nature of the data to be assessed, to the inherent subjectivity of the risk assessment, to the political nature of the notion of national security and to the wide margin of appreciation afforded in this field to the Government.","43. In the Government ’ s view, it was an inherent feature of a judicial decision that the judge examines the compliance of the proposed decision with the rules of positive law or with rules that could be inferred from positive law. In the field of authorising national security-purposed secret intelligence gathering no positive law specifying any exact criteria providing grounds for judicial decisions existed or could be created. The reason for that was that, in authorising national security secret intelligence gathering, the decision, for which the decision-maker bore political responsibility, was to be taken by assessing the country ’ s security interests and by taking into account home and foreign political aspects. Consequently, the Minister of Justice – bearing political responsibility ‑ was a person more qualified than judges to make such decisions. In any case, experience showed that judicial review in this field was not more apt than governmental supervision.","44. Moreover, the Government reiterated that the national security related authorisation activity of the Minister of Justice had always been controlled by the Parliamentary Committee for National Security and by the Data Protection Ombudsman and there were no signs indicating that the authorisation mechanism was formal or arbitrary.","45. Finally, the Government argued – relying on the observations made by the Court in Klass and Others (cited above), in Goranova-Karaeneva v. Bulgaria (no. 12739/05, 8 March 2011) and in Golder v. the United Kingdom (21 February 1975, Series A no. 18) – that the complaint related to the lack of an effective legal remedy under Article 13 was manifestly ill ‑ founded.","( b ) The applicants","46. Replying to the arguments based on the Venice Commission ’ s Report, the applicants stressed that because ordinary courts were, in practice, frequently confronted with difficulties in dealing with the large discretion afforded to the Government in this area, as observed by the Venice Commission, it could not be concluded that judicial control resulted in a less adequate control of secret surveillance for national security purposes. The actual conclusion of the Report was that only a complex arrangement of guarantees designed to involve judges in the control of security services could ensure the adequate protection of individuals. As pointed out in the Venice Convention ’ s Report, “[i]n order for judicial control to be effective, the judges must be independent and possess the necessary expertise”.","47. The applicants also emphasised that the preconditions for the use of special secret surveillance instruments and methods of intelligence information gathering were not precisely defined in the law and this might also lead to arbitrary decision-making in the absence of judicial control. In this connection the applicants referred to the Court ’ s case-law, arguing that restrictions on the right to privacy by means of secret surveillance might only be in line with the Convention if the restriction was properly defined by the law (cf. Malone, cited above).","48. The applicants further argued that the Data Protection Ombudsman and the Parliamentary Committee for National Security were not a substitute for the judicial control in the authorisation phase since they constituted oversight, rather than remedial, mechanisms and these had only general consequences not affecting the concrete case. Upon queries addressed to these two organs, the applicants found that none of them had ever dealt with a case on surveillance of citizens. These potential control mechanisms were thus not effective.","( c ) The third parties","( i ) Center for Democracy & Technology (CDT)","49. The CDT drew the Court ’ s attention to the States ’ advanced present ‑ day capabilities for sophisticated and invasive surveillance, as well as to their ability to build a detailed profile of any individual ’ s activities and relationships using intercepted data. It mentioned the vast amount of information that could be retrieved from a physically seized computer or other personal electronic device. It further emphasised the development of the possibilities to intercept communication and metadata, such as contacts and location information, remotely, by tapping Internet or telephone networks. In addition to mass surveillance and the sophisticated analysis of the intercepted data, States were also able to conduct targeted surveillance of specific individuals by installing remotely malicious software on their devices, even enabling secret surveillance agencies to record keystrokes, sounds, photos or videos, unbeknown to the owner.","50. According to the CDT, in the light of such surveillance capabilities, Article 8 required judicial oversight over all secret surveillance programmes conducted for the purpose of national security. Regarding those exceptional cases where judicial oversight was impossible, the CDT invited the Court to provide clear guidance to Contracting Parties and applicants by adopting a set of specific criteria for determining whether a non-judicial oversight process was sufficient to prevent the abuse of Article 8 rights – although the CDT maintained that Article 8 nevertheless required judicial control as the last resort. Finally, the CDT concluded that anyone within the jurisdiction of a Contracting Party who had a credible claim to have been the victim of an Article 8 violation arising from a secret national security surveillance programme must have access to a remedy that was effective in the sense that the remedial body was obliged to conduct an investigation into the complaint, and was both empowered and obligated to provide effective redress for the violation.","( ii ) Privacy International","51. Privacy International reviewed the relevant jurisprudence, both of the Court and national courts in Europe, Canada and the United Sates, highlighting recent decisions affirming that surveillance measures, including mere access to data retained by communications service providers, must be subject to judicial control or dependent upon the issuance of a judicial warrant. Moreover, Privacy International overviewed the international human rights standards relevant to the question of judicial control of surveillance, referring ‑ among other things ‑ to United Nations announcements and to the International Principles on the Application of Human Rights to Communications Surveillance which all include the need for judicial control of surveillance and for the right to an effective remedy.","2. The Court ’ s assessment","52. It is not in dispute between the parties that the measures which the TEK is entitled to apply under section 56 of the National Security Act (see paragraph 17 above), that is, to search and keep under surveillance the applicants ’ homes secretly, to check their postal mail and parcels, to monitor their electronic communications and computer data transmissions and to make recordings of any data acquired through these methods can be examined from the perspective of the notions of “private life”, “home” and “correspondence”, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Klass and Others, cited above, § 41).","53. In the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an “interference by a public authority” with the exercise of the applicants ’ right to respect for private and family life and for correspondence (see Klass and Others, cited above, § 41). Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007 ‑ I).","54. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim. This provision, “since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42).","55. The Court finds that the aim of the interference in question is to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 § 2. This has not been in dispute between the parties. On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society (see Klass and Others, cited above, § 46).","56. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig v. France, 24 April 1990, § 34, Series A no. 176 ‑ B; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000 ‑ 11; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998 ‑ V; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; Association for European Integration, cited above, § 76; and Roman Zakharov, cited above, § 231 ).","57. When balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant ’ s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, §106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; Kennedy, cited above, §§ 153 and 154; and Roman Zakharov, cited above, § 232).","58. The Court has found an interference under Article 8 § 1 in respect of the applicants ’ general complaint about the rules of “section 7/E (3) surveillance” and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine this legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicants. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the “section 7/E (3) surveillance” regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kvasnica, cited above, § 84).","59. The expression “in accordance with the law” in Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26; Lambert v. France, 24 August 1998, § 23, Reports 1998-V; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX (extracts); Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 61, 26 April 2007; Association for European Integration, cited above, § 71; and Liberty, cited above, § 59). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236).","60. It is not in dispute that the interference in question had a legal basis. The relevant rules are contained in statute law, that is, in the Police Act and the National Security Act. Their accessibility has not been called into question.","61. The applicants, however, contended that this law was not sufficiently detailed and precise to meet the “foreseeability” requirement of Article 8 § 2, as it did not provide for sufficient guarantees against abuse and arbitrariness.","62. The reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures ( see Roman Zakharov, cited above, § 229).","63. In the present case, two situations may entail secret surveillance, namely, the prevention, tracking and repelling of terrorist acts in Hungary (section 7/E (1) a) ( ad ) of the Police Act) and the gathering of intelligence necessary for rescuing Hungarian citizens in distress abroad (section 7/E (1) e), see in paragraph 16 above).","The applicants criticised these rules as being insufficiently clear.","64. The Court is not wholly persuaded by this argument, recalling that the wording of many statutes is not absolutely precise, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A). It is satisfied that even in the field of secret surveillance, where foreseeability is of particular concern, the danger of terrorist acts and the needs of rescue operations are both notions sufficiently clear so as to meet the requirements of lawfulness. For the Court, the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all situations that may prompt a decision to launch secret surveillance operations. The reference to terrorist threats or rescue operations can be seen in principle as giving citizens the requisite indication (compare and contrast Iordachi and Others, cited above, § 46). For the Court, nothing indicates in the text of the relevant legislation that the notion of “terrorist acts”, as used in section 7/E (1) a) ( ad ) of the Police Act, does not correspond to the crime of the same denomination contained in the Criminal Code (see paragraph 16 above).","65. However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 247).","66. The Court notes that under “section 7/E (3) surveillance”, it is possible for virtually any person in Hungary to be subjected to secret surveillance. The legislation does not describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the underlying situations be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraphs, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Under the relevant Hungarian law, the proposal submitted to the responsible government minister must specify, either by name or as a range of persons, the person or persons as the interception subjects and/or any other relevant information capable of identifying them as well as the premises in respect of which the permission is sought (section 57 (2) of the National Security Act, see paragraph 17 above).","67. It is of serious concern, however, that the notion of “persons concerned identified ... as a range of persons” might include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens. The Court notes the absence of any clarification in domestic legislation as to how this notion is to be applied in practice (see, mutatis mutandis, Roman Zakharov, cited above, § 245). For the Court, the category is overly broad, because there is no requirement of any kind for the authorities to demonstrate the actual or presumed relation between the persons or range of persons “concerned” and the prevention of any terrorist threat – let alone in a manner enabling an analysis by the authoriser which would go to the question of strict necessity (see in paragraphs 72 and 73 below) with regard to the aims pursued and the means employed – although such an analysis appears to be warranted by section 53 (2) of the National Security Act, according to which “secret intelligence gathering [may only be applied] if the intelligence needed ... cannot be obtained in any other way”.","68. For the Court, it is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. The techniques applied in such monitoring operations have demonstrated a remarkable progress in recent years and reached a level of sophistication which is hardly conceivable for the average citizen (see the CDT ’ s submissions on this point in paragraphs 49-50 above), especially when automated and systemic data collection is technically possible and becomes widespread. In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens ’ Convention rights. These data often compile further information about the conditions in which the primary elements intercepted by the authorities were created, such as the time and place of, as well as the equipment used for, the creation of computer files, digital photographs, electronic and text messages and the like. Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens ’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens ’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities ’ enhanced technical possibilities to intercept private information (see paragraphs 23 and 24 above).","69. The Court recalls that in Kennedy, the impugned legislation did not allow for “indiscriminate capturing of vast amounts of communications” (see Kennedy, cited above, § 160) which was one of the elements enabling it not to find a violation of Article 8. However, in the present case, the Court considers that, in the absence of specific rules to that effect or any submissions to the contrary, it cannot be ruled out that the broad-based provisions of the National Security Act can be taken to enable so-called strategic, large-scale interception, which is a matter of serious concern.","70. The Court would add that the possibility occurring on the side of Governments to acquire a detailed profile (see the CDT ’ s submissions on this in paragraph 49 above) of the most intimate aspects of citizens ’ lives may result in particularly invasive interferences with private life. Reference is made in this context to the views expressed by the Court of Justice of the European Union and the European Parliament (see paragraphs 23 and 25 above). This threat to privacy must be subjected to very close scrutiny both on the domestic level and under the Convention. The guarantees required by the extant Convention case-law on interceptions need to be enhanced so as to address the issue of such surveillance practices. However, it is not warranted to embark on this matter in the present case, since the Hungarian system of safeguards appears to fall short even of the previously existing principles.","71. Moreover, under section 57 (2) b), in the motion requesting permission from the Minister, the director must substantiate the necessity for the secret intelligence gathering (see paragraph 17 above). However, reading the relevant provisions jointly, the Court is not reassured that an adequate analysis of the aims pursued and the means applied in performing the national security tasks is possible or guaranteed. Indeed, the mere requirement for the authorities to give reasons for the request, arguing for the necessity of secret surveillance, falls short of an assessment of strict necessity (see in paragraphs 72 and 73 below). There is no legal safeguard requiring TEK to produce supportive materials or, in particular, a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measure ‑ and this on the basis of an individual suspicion regarding the target person (see Roman Zakharov, cited above, §§ 259 and 261). For the Court, only such information would allow the authorising authority to perform an appropriate proportionality test.","72. Quite apart from what transpires from section 53(2) of the National Security Act, the Court recalls at this point that in Klass and Others it held that “powers of secret surveillance of citizens ... are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42, quoted in paragraph 54 above). Admittedly, the expression “strictly necessary” represents at first glance a test different from the one prescribed by the wording of paragraph 2 of Article 8, that is, “necessary in a democratic society”.","73. However, given the particular character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens ’ privacy, the Court considers that the requirement “necessary in a democratic society” must be interpreted in this context as requiring “strict necessity” in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court ’ s view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal. The Court notes that both the Court of Justice of the European Union and the United Nations Special Rapporteur require secret surveillance measures to answer to strict necessity (see paragraphs 23 and 24 above) – an approach it considers convenient to endorse. Moreover, particularly in this context the Court notes the absence of prior judicial authorisation for interceptions, the importance of which will be examined below in paragraphs 75 et seq. This safeguard would serve to limit the law-enforcement authorities ’ discretion in interpreting the broad terms of “persons concerned identified ... as a range of persons” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual ’ s communications exist in each case (see, mutatis mutandis, Roman Zakharov, cited above, § 249). It is only in this way that the need for safeguards to ensure that emergency measures are used sparingly and only in duly justified cases can be satisfied (see Roman Zakharov, cited above, § 266).","74. Furthermore, in respect of the duration of any surveillance, the National Security Act stipulates, first, the period after which a surveillance permission will expire (that is, after a maximum of 90 days, as per section 58 (4) of the National Security Act) and, second, the conditions under which a renewal is possible. Permissions can be renewed for another 90 days; and the government minister in charge must authorise any such renewal upon a reasoned proposal from the service involved (see paragraph 17 above). Section 60 stipulates that the permission must be cancelled if it is no longer necessary, if the continued surveillance has no prospect of producing results, if its time-limit has expired or if it turns out to be in breach of the law for any reason. The Court cannot overlook, however, that it is not clear from the wording of the law – especially in the absence of judicial interpretation – if such a renewal of the surveillance warrant is possible only once or repeatedly, which is another element prone to abuse.","75. A central issue common to both the stage of authorisation of surveillance measures and the one of their application is the absence of judicial supervision. The measures are authorised by the Minister in charge of justice upon a proposal from the executives of the relevant security services, that is, of the TEK which, for its part, is a dedicated tactical department within the police force, subordinated to the Ministry of Home Affairs, with extensive prerogatives to apply force in combating terrorism (see section 1(2) subsection 15 of the Police Act quoted in paragraph 16 above). For the Court, this supervision, eminently political (as observed by the Constitutional Court, see point 105 of the decision quoted in paragraph 20 above) but carried out by the Minister of Justice who appears to be formally independent of both the TEK and of the Minister of Home Affairs – is inherently incapable of ensuring the requisite assessment of strict necessity with regard to the aims and the means at stake. In particular, although the security services are required, in their applications to the Minister for warrants, to outline the necessity as such of secret information gathering, this procedure does not guarantee that an assessment of strict necessity is carried out, notably in terms of the range of persons and the premises concerned (see section 57 (2) of the National Security Act quoted in paragraph 17 above).","76. The Court notes the Government ’ s argument according to which a government minister is better positioned than a judge to authorise or supervise measures of secret surveillance. Although this consideration might be arguable from an operational standpoint, the Court is not convinced of the same when it comes to an analysis of the aims and means in terms of strict necessity. In any case, it transpires from the parties ’ submissions that anti-terrorism surveillance measures in Hungary have never been subjected to judicial control, for which reason it is not possible to pass judgement on its advantages or drawbacks. The Court finds therefore the Government ’ s argument on this point unpersuasive (see, a contrario, Roman Zakharov, cited above, § 259).","77. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Roman Zakharov, cited above, § 258 ). However, the political nature of the authorisation and supervision increases the risk of abusive measures. The Court recalls that the rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, §§ 55 and 56). The Court recalls that in Dumitru Popescu (cited above, §§ 70-73 ) it expressed the view that either the body issuing authorisations for interception should be independent or there should be control by a judge or an independent body over the issuing body ’ s activity. Accordingly, in this field, control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny (see Klass and Others, cited above, §§ 42 and 55). The ex ante authorisation of such a measure is not an absolute requirement per se, because where there is extensive post factum judicial oversight, this may counterbalance the shortcomings of the authorisation (see Kennedy, cited above, § 167). Indeed, in certain respects and for certain circumstances, the Court has found already that ex ante (quasi-)judicial authorisation is necessary, for example in regard to secret surveillance measures targeting the media. In that connection the Court held that a post factum review cannot restore the confidentiality of journalistic sources once it is destroyed (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 101, 22 November 2012; for other circumstances necessitating ex ante authorisation see Kopp v. Switzerland, 25 March 1998, Reports 1998 II).","For the Court, supervision by a politically responsible member of the executive, such as the Minister of Justice, does not provide the necessary guarantees.","78. The governments ’ more and more widespread practice of transferring and sharing amongst themselves intelligence retrieved by virtue of secret surveillance – a practice, whose usefulness in combating international terrorism is, once again, not open to question and which concerns both exchanges between Member States of the Council of Europe and with other jurisdictions – is yet another factor in requiring particular attention when it comes to external supervision and remedial measures.","79. It is in this context that the external, preferably judicial, a posteriori control of secret surveillance activities, both in individual cases and as general supervision, gains its true importance (see also Klass and Others, cited above, §§ 56, 70 and 71; Dumitru Popescu, cited above, § 77; and Kennedy, cited above, §§ 184-191), by reinforcing citizens ’ trust that guarantees of the rule of law are at work even in this sensitive field and by providing redress for any abuse sustained. The significance of this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks. The Court notes the lack of such a control mechanism in Hungary.","80. The Court concedes that by the nature of contemporary terrorist threats there can be situations of emergency in which the mandatory application of judicial authorisation is not feasible, would be counterproductive for lack of special knowledge or would simply amount to wasting precious time. This is especially true in the present-day upheaval caused by terrorist attacks experienced throughout the world and in Europe, all too often involving important losses of life, producing numerous casualties and significant material damage, which inevitably disseminate a feeling of insecurity amongst citizens. The observations made on this point by the Court in Klass and Others are equally valid in the circumstances of the present case: “[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime” (cited above, § 48).","81. Furthermore, where situations of extreme urgency are concerned, the law contains a provision under which the director of the service may himself authorise secret surveillance measures for a maximum of 72 hours (see sections 58 and 59 of the National Security Act quoted in paragraph 17 above). For the Court, this exceptional power should be sufficient to address any situations in which external, judicial control would run the risk of losing precious time. Such measures must however be subject to a post factum review, which is required, as a rule, in cases where the surveillance was authorised ex ante by a non-judicial authority.","82. The Court notes at this juncture the liability of the executive to give account, in general terms rather than concerning any individual cases, of such operations to a parliamentary committee. However, it cannot identify any provisions in Hungarian legislation permitting a remedy granted by this procedure during the application of measures of secret surveillance to those who are subjected to secret surveillance but, by necessity, are kept unaware thereof. The Minister is under an obligation to present a general report, at least twice a year, to the responsible parliamentary committee about the functioning of national security services, which report, however, does not seem to be available to the public and by this appears to fall short of securing adequate safeguards in terms of public scrutiny (see Roman Zakharov, cited above, § 283). The committee is entitled, of its own motion, to request information from the Minister and the directors of the services about the activities of the national security services. However, the Court is not persuaded that this scrutiny is able to provide redress to any individual grievances caused by secret surveillance or to control effectively, that is, in a manner with a bearing on the operations themselves, the daily functioning of the surveillance organs, especially since it does not appear that the committee has access in detail to relevant documents. The scope of their supervision is therefore limited (see, mutatis mutandis, Roman Zakharov, cited above, § 281).","83. Moreover, the complaint procedure outlined in section 11(5) of the National Security Act seems to be of little relevance, since citizens subjected to secret surveillance will not take cognisance of the measures applied. In regard to the latter point, the Court shares the view of the Venice Commission according to which “individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts.” (see point 243 of the Report, quoted in paragraph 21 above). A complaint under section 11(5) of the National Security Act will be investigated by the Minister of Home Affairs, who does not appear to be sufficiently independent (see Association for European Integration, cited above, § 87; and Roman Zakharov, cited above, § 278).","84. The Court further notes the evidence furnished by the applicants according to which the Commissioner for Fundamental Rights has never so far enquired into the question of secret surveillance (see paragraph 18 above).","85. In any event, the Court recalls that in Klass and Others a combination of oversight mechanisms, short of formal judicial control, was found acceptable in particular because of “an initial control effected by an official qualified for judicial office” (cited above, § 56). However, the Hungarian scheme of authorisation does not involve any such official. The Hungarian Commissioner for Fundamental Rights has not been demonstrated to be a person who necessarily holds or has held a judicial office (see, a contrario, Kennedy, cited above, § 57).","86. Moreover, the Court has held that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for any recourse by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their justification retrospectively. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should be provided to the persons concerned (see Weber and Saravia, cited above, §135; Roman Zakharov, cited above, § 287 ). In Hungarian law, however, no notification, of any kind, of the measures is foreseen. This fact, coupled with the absence of any formal remedies in case of abuse, indicates that the legislation falls short of securing adequate safeguards.","87. It should be added that although the Constitutional Court held that various provisions in the domestic law read in conjunction secured sufficient safeguards for data storage, processing and deletion, special reference was made to the importance of individual complaints made in this context (see point 138 of the decision, quoted in paragraph 20 above). For the Court, the latter procedure is hardly conceivable, since once more it transpires from the legislation that the persons concerned will not be notified of the application of secret surveillance to them.","88. Lastly, the Court notes that is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see Roman Zakharov, cited above, § 284). However, the Government were not able to do so in the instant case.","89. In total sum, the Court is not convinced that the Hungarian legislation on “section 7/E (3) surveillance” provides safeguards sufficiently precise, effective and comprehensive on the ordering, execution and potential redressing of such measures.","Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.","II. ALLEGED VIOLATIONS OF ARTICLE 6 AND ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION","90. The applicants further complained that their exposure to secret surveillance measures without judicial control or remedy amounted to a violation of their rights under Article 6 as well as Article 13 read in conjunction with Article 8 of the Convention.","91. The Government contested that argument.","92. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.","93. The Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law (see Ostrovar v. Moldova, no. 35207/03, § 113, 13 September 2005; Iordachi, cited above, § 56). In these circumstances, the Court finds no breach of Article 13 of the Convention taken together with Article 8.","94. Moreover, having regard to the finding relating to Article 8 (see paragraph 89 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 of the Convention.","III. APPLICATION OF ARTICLE 41 OF THE CONVENTION","95. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","96. Each applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.","97. The Government found the claim excessive.","98. The Court considers that in the circumstances of the present case the finding of a violation of Article 8 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained.","B. Costs and expenses","99. The applicants also claimed, jointly, EUR 7,500 for the costs and expenses incurred before the Constitutional Court and the Court in Strasbourg. This corresponds to altogether 50 hours of legal work billable by their lawyer at an hourly rate of EUR.","100. The Government contested this claim.","101. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads.","C. Default interest","102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC LAW\",\n \"16. Act no. XXXIV of 1994 on the Police (“the Police Act”) provides as relevant:\",\n \"Section 1\",\n \"“(2) The police – within the scope of its duties as prescribed by the Fundamental Law of Hungary, by this Act and by other laws for preventing and combating crimes, administrating and policing – ...\",\n \"15. ... within the territory of Hungary ...\",\n \"a) tracks terrorist organisations,\",\n \"b) prevents, tracks and repels any attempts of individuals, groups or organisations to carry out terrorist acts and impedes the commission of any crimes by them,\",\n \"c) impedes the promotion of the operation of terrorist organisations by individuals, groups or organisations through providing financial or other support.”\",\n \"Section 7/E\",\n \"“(1) The anti-terrorist organ does not exercise any investigatory competence. It:\",\n \"a) fulfils the tasks prescribed in section 1 subsection (2) point 15, and within these tasks ...\",\n \"ad) – within the framework of the fight against terrorism and in order to safeguard the national security interests of Hungary – prevents, tracks and repels any attempts to carry out terrorist acts ( terrorcselekmény ) in Hungary. ...\",\n \"d) on the basis of the decision of the Minister responsible for policing as endorsed by the Minister responsible for foreign affairs – in line with the rules of international law – contributes to rescuing Hungarian citizens who are – outside the territory of Hungary – in distress due to an imminent and life-threatening danger of act of war, armed conflict, hostage-taking or terrorist action; to ensuring their safe return to Hungary and to carrying out their evacuation; to this end it cooperates with the Member States and the organs of the European Union, with the organs of the North Atlantic Treaty Organization, with the related international organisations and with the authorities of the concerned foreign country.\",\n \"e) acquires, analyses, assesses and forwards information relating to foreign countries or being of foreign origin which is required for fulfilling the task prescribed in section d) above.\",\n \"(2) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-points aa) to ac) and in point c) – perform secret intelligence gathering in line with the provisions of Chapter VII of the Act on Police.\",\n \"(3) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-point ad) and in point e) – perform secret intelligence gathering in line with the provisions of sections 53-60 of Act no. CXXV of 1995 on the National Security Services (the “Nbtv.”), in the course of which it may request and handle data according to the provisions of sections 38-52 of Nbtv. The secret intelligence gathering provided in section 56 points a)-e) of Nbtv. is subject to authorisation of the Minister responsible for justice.”\",\n \"The crime of “terrorist act” ( terrorcselekmény ) is defined in section 261 of the Old Criminal Code and sections 314 to 316 of the New Criminal Code.\",\n \"17. Act no. CXXV of 1995 on the National Security Services (the “National Security Act”, “Nbtv.”) contains the passages below.\",\n \"Under section 11(5), complaints about the activities of the anti-terrorist organ shall be investigated by the Minister of Home Affairs who shall inform the complainants of the outcome of the investigations and of the relevant measures within 30 days (this deadline may, on one occasion, be extended by another 30 days).\",\n \"Section 14(4) contains provisions concerning the relevant competences of the National Security Committee. In exercising parliamentary supervision, the Committee is entitled to request information from the Minister and the directors of the national security services about the country ’ s national security situation and the functioning and activities of the services (sub-section (a)).\",\n \"In individual complaint procedures, where a complainant does not accept the results of the investigation under section 11(5), the Committee may investigate complaints alleging unlawful activities on the part of the National Security Services if, under the affirmative vote of at least one third of the Committee members, the gravity of the complaint justifies an investigation. In investigating a complaint the Committee shall examine the complaint at issue and may request the Minister to submit his opinion on the case. If the Committee is of the view that the operation of the Services has been unlawful or abusive, it may request the Minister to conduct investigations and to inform the Committee of the results of the investigations or may itself carry out fact-finding investigations if it has the impression that the operation of the Services is contrary to the relevant laws. In carrying out the fact-finding investigations, the Committee may inspect the relevant documents in the records of the National Security Services and may hear staff members of the National Security Services. Relying on the findings the Committee may invite the Minister to take the necessary actions.\",\n \"Section 43\",\n \"“The National Security Services may use data having come to their knowledge exclusively for the purpose that corresponds to the legal basis for ordering their acquisition, except\",\n \"a) if the data are indicative of the commission of a criminal act and forwarding the data is legally allowed, or\",\n \"b) if they substantiate an obligation to inform another National Security Service and the party receiving the data is itself authorised to obtain them.”\",\n \"Section 44\",\n \"“(1) For the purpose of fulfilling their tasks the National Security Services may request data from each other and are obliged to provide data to each other in line with the provisions of this Act.\",\n \"(4) The bodies requesting data disclosure shall be responsible for the management of data disclosed to them according to the provisions of this Act and the data management legislation; they shall register the data they receive and their utilisation and, upon request, they shall inform the National Security Service thereof.”\",\n \"Section 45\",\n \"“(1) The National Security Services may, under an international obligation, transfer personal data to foreign data processing authorities within the framework of laws on protection of personal data.”\",\n \"Section 50\",\n \"“(2) Personal data processed by the National Security Services shall be deleted immediately if\",\n \"a) the deadline specified in subsection (1) has expired;\",\n \"b) deletion was ordered by a court in data protection proceedings;\",\n \"c) processing of the data is unlawful;\",\n \"d) the conditions specified in section 60 (2) are met;\",\n \"e) processing of the data became manifestly unnecessary.”\",\n \"Section 53\",\n \"“(2) The National Security Services may apply the special means and methods of secret intelligence gathering only if the intelligence needed for the performance of the tasks laid down in the present Act cannot be obtained in any other way.”\",\n \"Section 56\",\n \"“The National Security Services may, under an external permission\",\n \"a) search a dwelling secretly and record by means of technical equipment what they perceive;\",\n \"b) keep a dwelling under surveillance by means of technical equipment and record what they perceive;\",\n \"c) open and check postal mail and any closed parcel belonging to an identifiable person and record their contents by means of technical equipment;\",\n \"d) detect the content of communications transmitted by electronic communications network and record it by means of technical equipment;\",\n \"e) detect the data transmitted by or contained on a computer or network, record it by means of technical equipment and use it.”\",\n \"Section 57\",\n \"“(1) The motion to obtain permission for secret intelligence gathering as specified in section 56 may be submitted by director generals of the Information Authority, the Constitution Protection Authority, the Military National Security Service and – in order to carry out its task specified in section 8 (1) f) above – the Special Service for National Security.\",\n \"(2) The motion shall contain:\",\n \"a) the premises of the secret intelligence gathering, the person(s) concerned identified by name or as a range of persons, and/or any other information capable of identifying such person or persons;\",\n \"b) specification of the secret intelligence gathering and reasoning substantiating its necessity;\",\n \"c) the date of the beginning and the end of the activity;\",\n \"d) in the case of a motion to obtain permission specified in section 59 below, reasoning why the requested intelligence is absolutely necessary in the specific case for the successful functioning of the National Security Service.”\",\n \"Section 58\",\n \"“(3) The ... Minister in charge of justice ... decides [on the motion] within 72 hours to be counted from the motion ’ s submission ... [he] grants permission or, in case of an ill-founded request, rejects it. No appeal lies against the decision.\",\n \"(4) Unless this law stipulates otherwise, the authoriser allows the secret intelligence gathering for a period of a maximum of 90 days upon each request. In justified cases and upon a motion from the director generals, this time limit may be extended by 90 days, unless this law stipulates otherwise.\",\n \"(6) The authoriser does not inform the person concerned about the proceedings or about the occurrence of secret intelligence gathering.”\",\n \"Section 59\",\n \"“(1) The directors of the National Security Services themselves may [exceptionally] authorise the secret gathering of information within the meaning of section 56 at the latest until the decision given [by the Minister] if the external authorisation procedure entails such delay as obviously countering, in the given circumstances, the interests of the successful functioning of the National Security Service.”\",\n \"Section 60\",\n \"“(1) Secret intelligence gathering based on external permission shall be discontinued immediately if\",\n \"a) it achieved its aim defined in the permission;\",\n \"b) its continuation does not promise any results;\",\n \"c) its time-limit has been expired without extension;\",\n \"d) the secret intelligence gathering is unlawful for any reasons whatsoever.\",\n \"(2) In the framework of the special procedure defined in section 59 (1), secret intelligence gathering shall also be discontinued immediately if the authoriser does not permit its continuation. In that case, the data obtained by secret intelligence gathering shall be destroyed immediately, according to the laws regulating the deletion of qualified data.”\",\n \"Section 74(a) defines the notion of national security interests in the following terms:\",\n \"“Securing the sovereignty and protecting the constitutional order of Hungary and, within that framework,\",\n \"aa) obtaining intelligence on aggressive efforts targeted against the independence and territorial integrity of the country,\",\n \"ab) obtaining intelligence on and combating covert efforts violating or threatening the political, economic or defence interests of the country,\",\n \"ac) obtaining information of foreign relevance or origin required for government decisions,\",\n \"ad) obtaining intelligence on and combating covert efforts aimed at altering or disturbing by unlawful means the country ’ s constitutional order guaranteeing respect for fundamental human rights, pluralist representational democracy, the constitutional institutions and\",\n \"ae) obtaining intelligence on and combating acts of terrorism, illegal arms and drugs trafficking, and illegal trafficking in internationally controlled products and technologies;”\",\n \"18. Act no. CXI of 2011 on the Commissioner for Fundamental Rights (“Ajbt.”) provides as follows:\",\n \"Under section 18 (1) f), law enforcement organs – including the anti ‑ terrorist organ – are authorities subject to investigation by the Ombudsman. There is only one limitation on the investigations conducted by the Ombudsman: the report drafted on the secret intelligence activities of organs authorised for using secret intelligence devices shall not contain data from which the conclusion can be drawn that in the given case secret intelligence activities were or have been carried out by the organ [cf. section 28(3)]. The Commissioner for Fundamental Rights shall annually submit a report to Parliament about the investigated cases and may – except for proposals for amendments – request Parliament to investigate any given case. Where the finding of an abuse or maladministration affects classified data, the Commissioner for Fundamental Rights shall – simultaneously with the annual report or, if the abuse or maladministration is very grave or affects a great number of natural persons, before the submission of the annual report – submit the case to the competent parliamentary committee in a report classified according to the Act on the Protection of Classified Data.\",\n \"The applicants submitted a statement obtained from the Commissioner ’ s Office on 9 July 2014, according to which the Commissioner had never enquired into the field of secret surveillance measures.\",\n \"19. Act no. CLI of 2011 on the Constitutional Court provides as follows:\",\n \"Section 26 (1)\",\n \"“Persons or organisations affected by a particular case may, under Article 24 (2) c) of the Fundamental Law, submit a constitutional complaint to the Constitutional Court where due to the application in the related court proceedings of a piece of legislation contravening the Fundamental Law,\",\n \"a) their rights enshrined in the Fundamental Law have been violated, and\",\n \"b) legal remedies have been exhausted or no remedy exists.\",\n \"(2) By way of derogation from subsection (1), such Constitutional Court proceedings may, exceptionally, also be initiated where\",\n \"a) the injury originated directly from the application or becoming effective of a provision contravening the Fundamental Law, without a court decision, and\",\n \"b) no procedure to redress the injury is available or the available remedies have already been exhausted by the complainant. ...”\",\n \"Section 27\",\n \"“Against a judicial decision contravening the Fundamental Law within the meaning of Article 24 (2) d.) of the Fundamental Law, a person or organisation affected by the particular case may file a constitutional complaint with the Constitutional Court where the decision on the merits of the case or another decision terminating the judicial proceedings\",\n \"a) has violated the complainant ’ s rights enshrined in the Fundamental Law, and\",\n \"b) the complainant has already exhausted the legal remedies or no legal remedy exists.”\",\n \"20. Decision no. 32/2013. (XI.22.) AB of the Constitutional Court establishing the constitutional requirement to be met in respect of section 58 (3) of Nbtv. and rejecting the related constitutional complaint contains the following passages:\",\n \"“... 1. The Constitutional Court finds that ... in order to make the external control effective, the decision of the Minister responsible for justice ... authorising secret intelligence gathering must be supplied with reasons. ...\",\n \"[42] 1.1. The regulations in force specify two types of secret intelligence gathering: secret surveillance linked to the investigation of particular crimes and secret surveillance not linked to the investigation of particular crimes. ...\",\n \"[47] 1.2. Secret surveillance not linked to the investigation of particular crimes is either not subject to external authorisation [sections 54-55 of Nbtv.] or is subject to external authorisation [sections 54-55 of Nbtv.] In cases specified in the Act authorisation means authorisation by a judge or by the Minister of Justice.\",\n \"[48] According to the reasoning of Nbtv., from international practice several examples can be mentioned for States making a distinction between intelligence gathering linked to the investigation of particular crimes (including the closely related fields of crime prevention and crime detection) and intelligence gathering carried out for national security purposes.\",\n \"[49] On the basis of this principle, a system of divided authorisation has been adopted in the Act. For the purpose of detecting actual criminal offences, secret intelligence gathering is authorised – similarly to the solution applied in the Act on the Police – by a judge designated for the task by the President of the Budapest High Court, whereas section 56 activities carried out in the course of general intelligence gathering shall be authorised by the Minister of Justice. ...\",\n \"[51] Section 53 (2) of Nbtv., according to which secret intelligence gathering may only be carried out if the data required to perform the statutory tasks cannot be obtained in any other manner, shall apply to both cases. ...\",\n \"[62] Under section 14 (4) of Nbtv. Parliament ’ s National Security Committee shall exercise control over the authorisation process of the Minister of Justice. ...\",\n \"[69] 2. Secret intelligence gathering governed by Nbtv and not linked to the investigation of particular crimes ... has not been examined by the Constitutional Court yet. However, in its decision no. 2/2007. (I. 24.) AB (henceforth: Abh.1.) the Constitutional Court specified the general aspects under which secret intelligence gathering and secret surveillance are acceptable in a democratic, rule-of-law State.\",\n \"[70] Since the content of Article B) (1) of the Fundamental Law is identical to the content of Article 2 (1) of the former Constitution, and since from the rules of interpretation applicable to the Fundamental Law no conclusion contrary to the above opinion of the Constitutional Court can be inferred, the statements of principle made on the necessity and proportionality of secret intelligence gathering can be maintained.\",\n \"[71] The Constitutional Court has also taken into consideration the Strasbourg Court ’ s jurisprudence, as recalled in its former decisions. Cases related to “covert investigations” were examined by the Court in light of the Convention provisions set forth in Article 8 which protects the right to respect for private life. In its judgments the Court held that in a democratic society the rights enshrined under Article 8 § 1 can only be restricted within the limits specified in paragraph 2, that is only for the purposes specified in that provision and only in case the necessity of the restriction is justified.\",\n \"[72] Lawfulness under the Court ’ s case law does not merely require that a given restriction be specified under the law. The phrase “in accordance with the law” requires that the regulation itself should meet the rule-of-law principles. Since secret intelligence gathering does, per definition, exclude the possibility of an effective remedy, it is imperative that the process authorising such information gathering should contain sufficient guarantees for the protection of the rights of the individuals. Therefore, the use of secret intelligence gathering must be subject to a three-stage control: when the interference is ordered, while the interference is carried out and when the interference is terminated. Control must be exercised by “bodies” independent of the executive power. First of all, only constant, continuous and mandatory control can guarantee that in a given case the requirement of proportionality is not violated ....\",\n \"[73] In its judgments the Court laid down the minimum requirements to be met by a legal regulation on the use of secret intelligence devices. The Court emphasised that since the interference with the fundamental rights is secret and since the use of such devices provides “unpredictable” opportunities for the executive power, it is indispensable that the procedures themselves provide sufficient guarantees for the observance of the rights of the individuals. Therefore States must create precise and detailed rules that can be abided by and accessed by the citizens. From the legal regulation the competence of the authority applying such devices, the essence of the measures and the manner of their practice should be clear and apparent. As to the requirement of the clarity of rules the Court also pointed out that the laws should specify the cases and circumstances which warrant such interference and the conditions of the interference. As a minimum guarantee the laws should determine the criteria based on which the scope of persons potentially affected can be determined and should contain provisions regulating the documentation of the use of secret intelligence devices and specifying the rules applicable to the protection and destruction of the documentation. As to decision-making on the application of secret intelligence devices, an excessively wide margin of appreciation may not be granted for the authorities (e.g. Valenzuela Contreras v. Spain (58/1997/842/1048)). As to the application of secret intelligence devices, the requirement that access to the information by outside persons should be restricted serves as an additional guarantee (e.g. Kopp v. Switzerland (13/1997/797/1000) 25 March 1998).\",\n \"[74] Use for a particular purpose means that secret intelligence devices may only be used for reasons specified in Article 8 § 2 .... Compliance with the necessity test is closely linked to this issue. It is a basic requirement that any interference should be justified by pressing public interest and should be proportionate both to the danger needed to be countered and to the injury caused.\",\n \"[75] An examination of these issues should not be confined to scrutinising whether the statutory conditions laid down for the restriction meet the necessity-proportionality test but should also extend to examining the necessity of the use of secret intelligence devices in the particular case. As to the requirement of necessity it is of paramount importance that any use should only take place in case of “aggravated” (serious) threat and only in case the traditional investigative means and devices prove to be inefficient in the particular circumstances of a case; moreover, any use of the secret intelligence devices should take place according to a strict procedure that can be known in advance ...\",\n \"[76] From the Convention and the relevant case law of the Court the Constitutional Court has concluded that national security, public security and the prosecution of crime are interests for which even covert investigations – which amount to serious law-restricting devices – can be used where the above specified criteria are met.\",\n \"[77] 3. The Constitutional Court has examined the contested provision within the confines of the complainants ’ complaint. The complainants challenged the anti-terrorist organ ’ s secret intelligence gathering activities carried out for purposes other than prosecuting crime. They alleged non-compliance with the Fundamental Law of the contested provision by alleging that the provision at issue allowed for the anti-terrorist organ ’ s secret intelligence gathering under Nbtv. – while Nbtv. contained no guarantees for the observance of the fundamental rights at issue.\",\n \"[78] The complainants did not make a distinction between the various stages of the secret intelligence gathering (ordering, carrying out and terminating the interference) but picked out some elements of the application [of this measure] and complained about those elements. As to the ordering of the interference they complained that the permission of the Minister responsible for justice did not constitute a sufficient guarantee, in particular in view of the fact that the grounds on which the request for authorisation can be made are not exhaustively enumerated. The complainants are of the view that following the termination of the interference the fate of the information irrelevant for the purposes of the surveillance and the fate of the data related to persons not concerned in the case is not settled. ...\",\n \"[80] Therefore, within the confines of the complaint the Constitutional Court must examine whether the authorisation by the Minister responsible for justice of secret intelligence gathering for the anti-terrorist organ and the handling of data following the termination of the interference does or does not violate the fundamental rights invoked, namely the right to privacy and the right to informational autonomy....\",\n \"[92] 3.2. The Constitutional Court has first examined the constitutionality of the authorisation by the Minister responsible for justice. The first phase of secret surveillance is the ordering of the interference. Since in applying section 7/E (3) of the Act on the Police (henceforth: Rtv.) the Minister responsible for justice gives – by authorising the use of the secret intelligence gathering devices and methods listed in section 56 a)-e) of Nbtv. – consent to a State interference which seriously violates fundamental rights, the process of interference must be regulated under the law, the prescribed norms must be clear, and the process must be subject to external control mechanisms. ...\",\n \"[94] ... The contested provision of Rtv. authorises the anti-terrorist organ to carry out, in performing certain of its tasks, secret intelligence gathering under the Nbtv. The Rtv. clearly specifies the two tasks for the performance of which secret surveillance under the Nbtv. may be carried out: namely, the performance of the tasks specified in section 7/E (1) a) and ad) and in section 7/E (1) e).\",\n \"[95] The task specified under section 7/E (1) a) (subsection (ad)) to be performed in the framework of combating terrorism is the prevention, detection and suppression of endeavours to commit an act of terrorism in the territory of Hungary with a view to promoting Hungary ’ s national security interests. Item e) refers back to item d) which allows for the obtaining, analysing, assessing and forwarding of information on a foreign State or originating in a foreign State in so far as the information is necessary for the performance of the task specified there. The tasks specified under item d) are participation in the rescue, return to Hungary and evacuation of Hungarian nationals who have got into trouble due to acts of war or armed conflicts outside the territory of Hungary imminently threatening the lives and limbs of Hungarian nationals or due to terrorist acts or hostage-taking acts, as well as cooperation for such purposes with the member States and institutions of the European Union, the organs of the North Atlantic Treaty Organization, the international organisations concerned by the case and the authorities of the foreign State at issue. These tasks shall be carried out upon a decision to that effect taken by the Minister responsible for law enforcement in agreement with the Minister responsible for foreign affairs.\",\n \"[96] Section 7/E (3) of Rtv., contested by the complainants, refers to Nbtv. and repeats the Nbtv. rules on secret intelligence gathering (sections 53-60) and the handling of the acquired data [sections 38-52]. Section 7/E (3) of Rtv. provides for the application, mutatis mutandis, of the Nbtv. provisions both to the investigation of a complaint about an activity of the anti-terrorist organ, and to the parliamentary control of the anti-terrorist organ and to the investigation of a report alleging unlawful operation on the part of the anti-terrorist organ [section 11 (5), section 14 (1)-(2) and (4) a)-f) and (5), section 15 (3), section 16, section 18 and section 27 (4) of Nbtv.] Moreover, the contested provision clearly provides that the Minister responsible for justice shall be entitled to authorise the use, within the scope of the statutory tasks, of the secret intelligence devices enumerated in an exhaustive list. Therefore section 7/E (3) of Rtv. meets the requirement of being prescribed by law and the requirement of clarity of norms, as it sufficiently specifies the conditions of ordering and the circumstances of executing the measure regulated in the Act.\",\n \"[97] Thereafter the Constitutional Court has proceeded to examine whether in the given case the authorisation of secret intelligence gathering by the Minister responsible for justice provided sufficient guarantees for the observance of the fundamental rights of the individuals. ...\",\n \"[102] Secret intelligence gathering for the purposes of national security may only take place under Section 7/E (1) a) ad) or e) of Rtv., that is in order to combat endeavours to commit an act of terrorism in the territory of Hungary and in relation to the protection of Hungarian nationals have got into trouble in a foreign country. ...\",\n \"[105] The scope of national security-related tasks is much broader than the scope of the tasks related to the investigation of particular crimes as for the purposes of national security the events of real life are examined not for their criminal law relevance, and those events do not necessarily entail legal consequences. Identifying and combating endeavours aimed at committing acts having relevance from the aspects of securing the sovereignty of the State and of protecting the lawful order of the State may fall outside the sphere of particular criminal offences. Therefore national security-related tasks are not comparable to secret intelligence gathering linked to investigating a crime, which is carried out under section 69 of Rtv. and is subject to authorisation by a court. The prevention and elimination of risks to national security require political decisions, therefore decisions of this type fall in the competence of the executive power. This consideration justifies that general character secret intelligence gathering should be authorised by the Minister responsible for justice.\",\n \"[106] However, in granting the authorisation the Minister responsible for justice must weigh the interests of national security against the injury done to the fundamental rights. Therefore in addition to assessing the national security interests of the country from a political (home and foreign affairs) aspect, the person granting the authorisation should also strike a fair balance between the interests of national security and fundamental rights. In doing so, it must start from the principle that secret intelligence methods for national security purposes may only be used even by the anti-terrorist organ as a last resort means of detection. Section 53 (2) of Nbtv. clearly provides for the ultima ratio nature of secret intelligence methods: the special devices and methods of secret intelligence gathering can only be used where the data needed for the completion of a prescribed task cannot be obtained in any other way, namely by the traditional means of detection. This provision of Nbtv. is intended to serve as a legal guarantee similar to that which the specification in the law of the acts amounting to criminal offences constitutes in the context of secret intelligence gathering linked to the investigation of a particular crime and carried out upon the suspicion of an offence.\",\n \"[107] ... The request for authorisation must be supported with reasons. The ... grantor of the authorisation shall base his decision on the content of the request: the request shall be granted or, in case of ill-foundedness, rejected. Hence, in case the requesting authority cannot sufficiently justify that the data required for performing its tasks cannot be acquired in any other manner no authorisation for the use of intelligence devices and methods shall be given. ...\",\n \"[114] As to the ordering and carrying out of the secret intelligence gathering external control is a fundamental guarantee. Control over the activities performed by the anti-terrorist organ under the rules of Nbtv. is exercised by the National Security Committee (henceforth: Committee) of the Parliament ... Upon the Committee ’ s request the Minister of Justice shall provide information on the nature of the authorised information gathering and on the type of the case (section 14(4) b) Nbtv.).\",\n \"[115] The Committee may acquire information about irregularities related to the operation of the Services (anti-terrorist organ) from, among others, its own inquiries, from citizen complaints or from information from the staff members of the Services. ...\",\n \"[119] Nbtv. sets one single bar to the Committee ’ s control: the Committee may not learn of information which might endanger the prime importance national security interests in protecting the methods and sources (participating persons) relied on in the case at issue (section 16(1) of Nbtv.).\",\n \"[120] The operation of the National Security Services and of the anti-terrorist organ and of the Minister of justice ’ s authorising activity can be controlled, in addition to the Parliament, by the Parliamentary Commissioner for Fundamental Rights as well.\",\n \"[121] Under section 18 (1) f) of Act no. CXI of 2011 on the Parliamentary Commissioner for Fundamental Rights (henceforth: Ajbt.) law enforcement organs, including the anti-terrorist organ, are authorities that can be examined by the Ombudsman. ... Hence no obstacle exists to an examination by the Ombudsman, the only bar being that – similarly to the control by Parliament – the report made on the examination of the secret intelligence activities of the authorities authorised for using secret intelligence devices and methods may not contain data from which the secret intelligence gathering activities carried out by the organ in the case at issue can be inferred (section 28(3)). The Commissioner for Fundamental Rights may present, in case the conditions specified under section 38 of Ajbt. are met, the cases examined by him to Parliament in an annual report and may, with the exception of motions for amendments, request Parliament to examine a case. ...\",\n \"[122] On the basis of the above information the Constitutional Court has concluded that Nbtv. allows for the control of the authorisation granting of the Minister of Justice by bodies independent of the executive power. ...\",\n \"[124] 3.3 In examining the reference in section 7/E (3) of Rtv. the Constitutional Court has observed that section 58 (3) of Nbtv. does not expressly provide for a reasoned decision ...\",\n \"[127] A necessary element of any judicial decision to be taken on secret intelligence gathering under the Rtv. is an examination of the compliance of the request for authorisation with the statutory requirements. ...\",\n \"[128] [...] The reference in section 7/E (3) of Rtv. also requires authorisation from the Minister of Justice for national security-related secret intelligence gathering carried out by the anti-terrorist organ, which is part of the Police Service, in order to combat endeavours to commit an act of terrorism in the territory of Hungary or in relation to the protection of Hungarian nationals who have got into trouble in a foreign country. ...\",\n \"[130] Since Nbtv. does not expressly require the Minister of Justice to issue a reasoned decision, the authoriser is under no obligation to provide reasoning. In the absence of reasoning, however, no posterior understanding, analysis or review of the aspects and reasons giving rise to the decision in a particular case is possible for those who exercise external control.\",\n \"[131] Though section 58 (3) of Nbtv. prescribes that the authorisation grantor shall base his decision on the content of the request, this content is, per definition, one-sided since in arguing for the necessity of the secret information gathering the request will solely invoke national security interests. The authorisation grantor must strike a fair balance between the interests of national security and fundamental rights enshrined under Article VI (1)-(2) of the Fundamental Law for persons affected by secret intelligence gathering and must ensure, in addition to determining the necessity of the restriction, that the restriction is proportionate. ...\",\n \"[132] Given that the special nature of secret surveillance excludes the possibility of a remedy, a restriction of the right to privacy and of the right to informational autonomy that is proportionate to the protection of national security will require effective external control already in granting the authorisation for the use of the secret intelligence devices.\",\n \"[133] The National Security Committee and the Commissioner for Fundamental Rights may only constitute effective external control over the authorisation activity of the Minister of Justice if the Minister ’ s decision authorising the secret surveillance contains sufficiently detailed reasons. The reasons should be of a depth and detail that enable those who exercise the external control to review the balance struck between the interests of national security and the fundamental rights at issue.\",\n \"[134] Upon the authorisation granted in section 46 (3) of Abtv., in order to ensure effective external control, the Constitutional Court has laid down as a constitutional requirement ensuring compliance with Article VI (1)-(2) of the Fundamental Law that in applying section 58 (3) of Nbtv. the decision of the Minister responsible for justice ordering secret intelligence gathering must be supported by reasons.\",\n \"[135] 3.4. Thereafter the Constitutional Court has examined whether the data handling by the anti-terrorist organ following the termination of the secret intelligence gathering violates the right to informational autonomy. The complainants complained that Nbtv., contrary to Rtv., fails to provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case. ...\",\n \"[138] Based on the above considerations the Constitutional Court has established that though Nbtv., contrary to section 73 (3) of Rtv., does not expressly provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case, from the joint interpretation of the phrase “obviously unnecessary” in section 50 (2) e) and of section 43 of Nbtv. it clearly follows that any data unnecessary for achieving the aim serving as a legal ground for the data acquisition, in particular the data related to persons not concerned by the case, must be deleted ex officio. Therefore the above regulation meets the principle of being purpose-bound and is suitable to prevent storing data acquisition. Moreover, Nbtv. allows for the concerned persons to file a request for the deletion of their personal data, which request can only be rejected by the Chief Director on specific grounds. External control exists over the data processing as well, since the reasons for the rejection of a request must also be sent to the National Data-Protection and Information Freedom Authority [section 48 of Nbtv.].\",\n \"[139] Therefore the Constitutional Court dismisses, in this respect as well, the complaint alleging non-compliance of the contested provision with the Fundamental Law and seeking the annulment of the contested provision. ...”\",\n \"III. European Commission for Democracy through Law (“The Venice Commission”)\",\n \"21. The Report on the Democratic oversight of the Security Services adopted by the Venice Commission at its 71st Plenary Session (Venice, 1 ‑ 2 June 2007) (CDL-AD(2007)016-e) contains the following passages:\",\n \"“81. In the light of the importance and nature of the interests at stake, security intelligence gathering is one of the main areas of national decision-making which a government is most unwilling to submit to national legislative scrutiny and judicial review and, a fortiori, to international supervision and control.\",\n \"82. For a variety of reasons, there can be tension as regards national security policy, not only between the governing party and the political opposition in a State, but also constitutional tension between the executive and the legislative power, tension within a government (especially a coalition government), and tension between political masters and the staff of security intelligence agencies. A large degree of secrecy must accompany national security policy making and operations. However secrecy also has the effect of increasing the government ’ s control over policy at the expense of the legislative power, and of insulating the former from criticism. This is exacerbated by the fact that nowadays, there is a link between “external” and “internal” threats to the State. Accordingly, security and intelligence information tends to form an indivisible whole. ...\",\n \"86. It is particularly important, as regards the limited scope of parliamentary and judicial control, to note the special nature of security intelligence. The heart of a security agency is its intelligence files. “Hard” data, purely factual information, is insufficient for a security agency, or for that matter, any police organization. It also needs to gather speculative intelligence in order to determine which people are, or are probably or possibly, threatening national security. This information can be obtained in different ways. A large proportion of non-open source internal security information comes from informants. Like factual information, such “soft intelligence” can, and must if the agency is to do its job properly, be collated to produce a personality profile of a suspect or an analysis of a suspected activity. ...\",\n \"IV. OTHER RELEVANT INTERNATIONAL TEXTS\",\n \"22. Several elements of international law, relevant in this context, are outlined in the judgment Dragojević v. Croatia (no. 68955/11, §§ 62 to 66, 15 January 2015).\",\n \"23. In Digital Rights Ireland v Minister for Communications & Others, (cases C-293/12 and C-594/12, 8 April 2014), the Court of Justice of the European Union held as follows:\",\n \"“26. In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users ’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.\",\n \"27. Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.\",\n \"...\",\n \"52. So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court ’ s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C ‑ 473/12 IPI EU:C: 2013:715, paragraph 39 and the case-law cited).\",\n \"...\",\n \"62. In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits.”\",\n \"24. The 2013 Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, contains the following conclusions and recommendations:\",\n \"“78. Communications techniques and technologies have evolved significantly, changing the way in which communications surveillance is conducted by States. States must therefore update their understandings and regulation of communications surveillance and modify their practices in order to ensure that individuals ’ human rights are respected and protected.\",\n \"79. States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other. Without adequate legislation and legal standards to ensure the privacy, security and anonymity of communications, journalists, human rights defenders and whistleblowers, for example, cannot be assured that their communications will not be subject to States ’ scrutiny.\",\n \"80. In order to meet their human rights obligations, States must ensure that the rights to freedom of expression and privacy are at the heart of their communications surveillance frameworks. To this end, the Special Rapporteur recommends the following:\",\n \"A. Updating and strengthening laws and legal standards\",\n \"81. Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society. Legislation must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority. Safeguards must be articulated in law relating to the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorize, carry out and supervise them, and the kind of remedy provided by the national law.\",\n \"82. Individuals should have a legal right to be notified that they have been subjected to communications surveillance or that their communications data has been accessed by the State. Recognizing that advance or concurrent notification might jeopardize the effectiveness of the surveillance, individuals should nevertheless be notified once surveillance has been completed and have the possibility to seek redress in respect of the use of communications surveillance measures in their aftermath.\",\n \"83. Legal frameworks must ensure that communications surveillance measures:\",\n \"(a) Are prescribed by law, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application;\",\n \"(b) Are strictly and demonstrably necessary to achieve a legitimate aim; and\",\n \"(c) Adhere to the principle of proportionality, and are not employed when less invasive techniques are available or have not yet been exhausted.\",\n \"84. States should criminalize illegal surveillance by public or private actors. Such laws must not be used to target whistleblowers or other individuals seeking to expose human rights violations, nor should they hamper the legitimate oversight of government action by citizens.\",\n \"85. The provision of communications data by the private sector to States should be sufficiently regulated to ensure that individuals ’ human rights are prioritized at all times. Access to communications data held by domestic corporate actors should only be sought in circumstances where other available less invasive techniques have been exhausted.\",\n \"86. The provision of communications data to the State should be monitored by an independent authority, such as a court or oversight mechanism. At the international level, States should enact Mutual Legal Assistance Treaties to regulate access to communications data held by foreign corporate actors.\",\n \"87. Surveillance techniques and practices that are employed outside of the rule of law must be brought under legislative control. Their extra-legal usage undermines basic principles of democracy and is likely to have harmful political and social effects.\",\n \"B. Facilitating private, secure and anonymous communications\",\n \"88. States should refrain from compelling the identification of users as a precondition for access to communications, including online services, cybercafés or mobile telephony.\",\n \"89. Individuals should be free to use whatever technology they choose to secure their communications. States should not interfere with the use of encryption technologies, nor compel the provision of encryption keys.\",\n \"90. States should not retain or require the retention of particular information purely for surveillance purposes.\",\n \"C. Increasing public access to information, understanding and awareness of threats to privacy\",\n \"91. States should be completely transparent about the use and scope of communications surveillance techniques and powers. They should publish, at minimum, aggregate information on the number of requests approved and rejected, a disaggregation of the requests by service provider and by investigation and purpose.\",\n \"92. States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature and application of the laws permitting communications surveillance. States should enable service providers to publish the procedures they apply when dealing with State communications surveillance, adhere to those procedures, and publish records of State communications surveillance.\",\n \"93. States should establish independent oversight mechanisms capable to ensure transparency and accountability of State surveillance of communications.\",\n \"94. States should raise public awareness on the uses of new communication technologies in order to support individuals in properly assessing, managing, mitigating and making informed decisions on communications-related risks.\",\n \"D. Regulating the commercialization of surveillance technology\",\n \"95. States should ensure that communications data collected by corporate actors in the provision of communications services meets the highest standards of data protection.\",\n \"96. States must refrain from forcing the private sector to implement measures compromising the privacy, security and anonymity of communications services, including requiring the construction of interception capabilities for State surveillance purposes or prohibiting the use of encryption.\",\n \"97. States must take measures to prevent the commercialization of surveillance technologies, paying particular attention to research, development, trade, export and use of these technologies considering their ability to facilitate systematic human rights violations.\",\n \"E. Furthering the assessment of relevant international human rights obligations\",\n \"98. There is a significant need to advance international understanding on the protection of the right to privacy in light of technological advancements. The Human Rights Committee should consider issuing a new General Comment on the right to privacy, to replace General Comment No. 16 (1988).\",\n \"99. Human rights mechanisms should further assess the obligations of private actors developing and supplying surveillance technologies.”\",\n \"25. The European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens ’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs contains the following passages:\",\n \"The impact of mass surveillance\",\n \"“...\",\n \"G. whereas the revelations since June 2013 have caused numerous concerns within the EU as to: ...\",\n \"- the possibility of these mass surveillance operations being used for reasons other than national security and the fight against terrorism in the strict sense, for example economic and industrial espionage or profiling on political grounds;\",\n \"- the undermining of press freedom and of communications of members of professions with a confidentiality privilege, including lawyers and doctors;\",\n \"- the respective roles and degree of involvement of intelligence agencies and private IT and telecom companies;\",\n \"- the increasingly blurred boundaries between law enforcement and intelligence activities, leading to every citizen being treated as a suspect and being subject to surveillance;\",\n \"- the threats to privacy in a digital era and the impact of mass surveillance on citizens and societies;\",\n \"...\",\n \"T. whereas fundamental rights, notably freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination, as enshrined in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights, are cornerstones of democracy; whereas mass surveillance of human beings is incompatible with these cornerstones;\",\n \"...\",\n \"Democratic oversight of intelligence services\",\n \"BW. whereas intelligence services in democratic societies are given special powers and capabilities to protect fundamental rights, democracy and the rule of law, citizens ’ rights and the State against internal and external threats, and are subject to democratic accountability and judicial oversight; whereas they are given special powers and capabilities only to this end; whereas these powers should be used within the legal limits imposed by fundamental rights, democracy and the rule of law and their application should be strictly scrutinised, as otherwise they lose legitimacy and risk undermining democracy;\",\n \"BX. whereas the fact that a certain level of secrecy is conceded to intelligence services in order to avoid endangering ongoing operations, revealing modi operandi or putting at risk the lives of agents, such secrecy cannot override or exclude rules on democratic and judicial scrutiny and examination of their activities, as well as on transparency, notably in relation to the respect of fundamental rights and the rule of law, all of which are cornerstones in a democratic society;\",\n \"BY. whereas most of the existing national oversight mechanisms and bodies were set up or revamped in the 1990s and have not necessarily been adapted to the rapid political and technological developments over the last decade that have led to increased international intelligence cooperation, also through the large scale exchange of personal data, and often blurring the line between intelligence and law enforcement activities;\",\n \"BZ. whereas democratic oversight of intelligence activities is still only conducted at national level, despite the increase in exchange of information between EU Member States and between Member States and third countries; whereas there is an increasing gap between the level of international cooperation on the one hand and oversight capacities limited to the national level on the other, which results in insufficient and ineffective democratic scrutiny;\",\n \"CA. whereas national oversight bodies often do not have full access to intelligence received from a foreign intelligence agency, which can lead to gaps in which international information exchanges can take place without adequate review; whereas this problem is further aggravated by the so-called ‘ third party rule ’ or the principle of ‘ originator control ’, which has been designed to enable originators to maintain control over the further dissemination of their sensitive information, but is unfortunately often interpreted as applying also to the recipient services ’ oversight;\",\n \"CB. whereas private and public transparency reform initiatives are key to ensuring public trust in the activities of intelligence agencies; whereas legal systems should not prevent companies from disclosing to the public information about how they handle all types of government requests and court orders for access to user data, including the possibility of disclosing aggregate information on the number of requests and orders approved and rejected;\",\n \"Main findings\",\n \"...\",\n \"6. Recalls the EU ’ s firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection;\",\n \"7. Considers that data collection of such magnitude leaves considerable doubts as to whether these actions are guided only by the fight against terrorism, since it involves the collection of all possible data of all citizens; points, therefore, to the possible existence of other purposes including political and economic espionage, which need to be comprehensively dispelled;\",\n \"8. Questions the compatibility of some Member States ’ massive economic espionage activities with the EU internal market and competition law as enshrined in Titles I and VII of the Treaty on the Functioning of the European Union; reaffirms the principle of sincere cooperation as enshrined in Article 4(3) of the Treaty on European Union, as well as the principle that Member States shall ‘ refrain from any measures which could jeopardise the attainment of the Union ’ s objectives ’;\",\n \"10. Condemns the vast and systemic blanket collection of the personal data of innocent people, often including intimate personal information; emphasises that the systems of indiscriminate mass surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens; stresses that privacy is not a luxury right, but is the foundation stone of a free and democratic society; points out, furthermore, that mass surveillance has potentially severe effects on freedom of the press, thought and speech and on freedom of assembly and of association, as well as entailing a significant potential for abusive use of the information gathered against political adversaries; emphasises that these mass surveillance activities also entail illegal actions by intelligence services and raise questions regarding the extraterritoriality of national laws;\",\n \"12. Sees the surveillance programmes as yet another step towards the establishment of a fully-fledged preventive state, changing the established paradigm of criminal law in democratic societies whereby any interference with suspects ’ fundamental rights has to be authorised by a judge or prosecutor on the basis of a reasonable suspicion and must be regulated by law, promoting instead a mix of law enforcement and intelligence activities with blurred and weakened legal safeguards, often not in line with democratic checks and balances and fundamental rights, especially the presumption of innocence; recalls in this regard the decision of the German Federal Constitutional Court on the prohibition of the use of preventive dragnets ( ‘ präventive Rasterfahndung ’ ) unless there is proof of a concrete danger to other high-ranking legally protected rights, whereby a general threat situation or international tensions do not suffice to justify such measures;\",\n \"...\",\n \"14. Points out that the abovementioned concerns are exacerbated by rapid technological and societal developments, since internet and mobile devices are everywhere in modern daily life ( ‘ ubiquitous computing ’ ) and the business model of most internet companies is based on the processing of personal data; considers that the scale of this problem is unprecedented; notes that this may create a situation where infrastructure for the mass collection and processing of data could be misused in cases of change of political regime; ...”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"26. The applicants complained under Article 8 of the Convention that they could potentially be subjected to measures within the framework of “section 7/E (3) surveillance”. They submitted that the legal framework was prone to abuse, notably for want of judicial control.\",\n \"Article 8 provides as follows:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"27. The Government contested these allegations.\",\n \"A. Admissibility\",\n \"1. The parties ’ submissions\",\n \"28. The Government did not formally contest the applicants ’ potential victim status within the meaning of the Court ’ s jurisprudence, under which the mere existence of a piece of legislation allowing for the use of secret intelligence devices served as a ground for victim status, even if no such device had ever been used against an applicant. However, the Government disputed the applicants ’ allegations that – as staff members of a watchdog organisation – they were affected more directly by the possibility of being subjected to secret surveillance than others.\",\n \"29. Moreover, the Government submitted that in their constitutional complaint the applicants had not complained about the presence or absence of guarantees in the entire process of secret intelligence gathering. They had only complained about the authorisation by the Minister of Justice of the interference and the data handling following the termination of the interference. The Government emphasised that in respect of any further complaints that the applicants might have in relation to other phases of the process, they had failed to exhaust the available domestic remedies.\",\n \"30. Regarding victim status, the applicants emphasised that the lack of meaningful external control over the use of covert surveillance had put individuals ’ privacy in danger as nothing prevented the political power from using this prerogative arbitrarily. Their watchdog activity might not serve as a ground for secret intelligence gathering. Nevertheless, their statement ‑ according to which they, as staff members of watchdog organisations voicing criticism against the Government, felt more frustrated and worried about being subjected to secret surveillance than average citizens probably did – could not be regarded as fear based on completely unfounded assumptions, especially if considering some of the Government ’ s recent measures as being directed against civil organisations.\",\n \"31. Concerning exhaustion of domestic remedies, the applicants did not dispute that their constitutional complaint had been focused on the system of authorisation, since only the safeguards built into this phase were able to provide adequate protection to right to privacy. This meant that guarantees related to later procedural phases were unable to counterbalance the detriment caused to the right to privacy if there was no control mechanism built into the process of authorisation of secret surveillance that was able to impede legally unjustifiable interventions into the private sphere. However, the question as to whether this assertion was correct might only be assessed considering the procedure as a whole. The Government ’ s suggestion that the Court should refrain from the assessment of procedural phases beyond the authorisation phase was pointless and practically not feasible. Moreover, the applicants emphasised that the complaint lodged with the Constitutional Court and the complaint submitted to the Court did not completely correspond to each other in terms of the arguments forwarded, and that therefore the Court should not refrain, purely relying on the principle of subsidiarity, from examining the question as to whether the other guarantees provided in the procedure ensured adequate protection.\",\n \"2. The Court ’ s assessment\",\n \"32. As to the applicants ’ victim status, the Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006).\",\n \"33. However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has accepted that, under certain circumstances, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him. The Court ’ s approach to assessing whether there has been an interference in cases raising a complaint about the legislation allowing secret surveillance measures was set out in its Klass and Others judgment (cited above, §§ 34 and 36) as follows:\",\n \"“34. ... the effectiveness ( l ’ effet utile ) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.\",\n \"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.\",\n \"...\",\n \"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. ...\",\n \"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25, since otherwise Article 8 runs the risk of being nullified.”\",\n \"34. Following Klass and Others (cited above) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82 ), the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a “reasonable likelihood” that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996); subsequently, the Court applied a similar approach (see Halford v. the United Kingdom, 25 June 1997, §§ 56 to 57, Reports of Judgments and Decisions 1997 ‑ III ).\",\n \"35. More pertinently with regard to the present application, in other cases which concerned complaints about the legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia (dec.), no. 54934/00, § 78, ECHR 2006 XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58 to 60, 28 June 2007; Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30 to 35, 10 February 2009 ).\",\n \"36. In the case of Kennedy v. the United Kingdom (no. 26839/05, § 124, 18 May 2010 ) the Court held that in order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by the Court.\",\n \"Most recently, the Court adopted, in Roman Zakharov v. Russia ( [GC], no. 47143/06, §§ 170-172, 4 December 2015), a harmonised approach based on Kennedy, according to which firstly the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affect all users of communication services by instituting a system where any person can have his or her communications intercepted; and secondly the Court will take into account the availability or remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies.\",\n \"37. The Court observes that the present applicants complained of an interference with their homes, communications and privacy on the basis of the very existence of the law permitting secret surveillance and the lack of adequate safeguards, admitting that their personal or professional situations were not of the kind that might normally attract the application of surveillance measures. They nevertheless thought they were at particular risk of having their communications intercepted as a result of their employment with civil-society organisations criticising the Government.\",\n \"38. The Court observes that affiliation with a civil-society organisation does not fall within the grounds listed in section 7/E (1) point (a) sub-point ( ad ) and point (e) of the Police Act, which concern in essence terrorist threats and rescue operations to the benefit of Hungarian citizens in dangerous situations abroad. Nevertheless, it appears that under these provisions any person within Hungary may have his communications intercepted if interception is deemed necessary on one of the grounds enumerated in the law (see paragraph 16 above). The Court considers that it cannot be excluded that the applicants are at risk of being subjected to such measures should the authorities perceive that to do so might be of use to pre-empt or avert a threat foreseen by the legislation – especially since the law contains the notion of “persons concerned identified ... as a range of persons” which might include indeed any person.\",\n \"The Court also notes that, by examining their constitutional complaint on the merits, the Constitutional Court implicitly acknowledged the applicants ’ being personally affected by the legislation in question for the purposes of section 26(1) of the Act on the Constitutional Court (see paragraph 19 above).\",\n \"It is of importance at this juncture to note that they are staff members of a watchdog organisation, whose activities have previously been found similar, in some ways, to those of journalists (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, 14 April 2009). The Court accepts the applicants ’ suggestion that any fear of being subjected to secret surveillance might have an impact on such activities (see, mutatis mutandis, Nagla v. Latvia, no. 73469/10, § 82, 16 July 2013). In any case, whether or not the applicants belong to a targeted group, the Court considers that the legislation directly affects all users of communication systems and all homes.\",\n \"39. Considering in addition that the domestic law does not appear to provide any possibility for an individual who alleges interception of his or her communications to lodge a complaint with an independent body, the Court is of the view that the applicants can claim to be victims of a violation of their rights under the Convention, within the meaning of Article 34 of the Convention.\",\n \"40. Concerning the exhaustion of domestic remedies, the Court is satisfied that the applicants brought to the attention of the national authorities, in the instant case the Constitutional Court, the essence of their grievance, that is, the alleged insufficiency of guarantees in the rules governing “section 7/E (3) surveillance”. While noting the Government ’ s objection according to which this constitutional complaint was focused on but a few central issues, the Court considers that, because of the nature of the problem, the system of guarantees preceding the measures, prevailing during their application and following it is a complex set of arrangements which must be assessed in its entirety (see Klass and Others, cited above, §§ 39 to 60). Consequently – and assuming that the procedure before the Constitutional Court was at all an effective remedy to exhaust in the circumstances – the fact that the applicants ’ constitutional complaint did not encompass all possible issues but highlighted a few cannot be held against them so as to enable the rejection of their complaints on account of non ‑ exhaustion of domestic remedies, in so far as their representations made to the Court on these issues can be seen as supplementing the ones submitted to the Constitutional Court (see, mutatis mutandis, Gustafsson v. Sweden, 25 April 1996, § 51, Reports 1996 ‑ II).\",\n \"41. Moreover, the Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. Arguments of the parties\",\n \"( a ) The Government\",\n \"42. With regard to the necessity of judicial authorisation in the context of Article 8, the Government referred to the Venice Commission ’ s Report on the Democratic Oversight of the Security Services (CDL-AD(2007)016, adopted at the Venice Commission ’ s 71 st Plenary Session, Venice, 1-2 June 2007). Relying on several observations made in this report, the Government submitted that the domestic courts were not suitable to determine the necessity of secret intelligence gathering for national security purposes due to the nature of the data to be assessed, to the inherent subjectivity of the risk assessment, to the political nature of the notion of national security and to the wide margin of appreciation afforded in this field to the Government.\",\n \"43. In the Government ’ s view, it was an inherent feature of a judicial decision that the judge examines the compliance of the proposed decision with the rules of positive law or with rules that could be inferred from positive law. In the field of authorising national security-purposed secret intelligence gathering no positive law specifying any exact criteria providing grounds for judicial decisions existed or could be created. The reason for that was that, in authorising national security secret intelligence gathering, the decision, for which the decision-maker bore political responsibility, was to be taken by assessing the country ’ s security interests and by taking into account home and foreign political aspects. Consequently, the Minister of Justice – bearing political responsibility ‑ was a person more qualified than judges to make such decisions. In any case, experience showed that judicial review in this field was not more apt than governmental supervision.\",\n \"44. Moreover, the Government reiterated that the national security related authorisation activity of the Minister of Justice had always been controlled by the Parliamentary Committee for National Security and by the Data Protection Ombudsman and there were no signs indicating that the authorisation mechanism was formal or arbitrary.\",\n \"45. Finally, the Government argued – relying on the observations made by the Court in Klass and Others (cited above), in Goranova-Karaeneva v. Bulgaria (no. 12739/05, 8 March 2011) and in Golder v. the United Kingdom (21 February 1975, Series A no. 18) – that the complaint related to the lack of an effective legal remedy under Article 13 was manifestly ill ‑ founded.\",\n \"( b ) The applicants\",\n \"46. Replying to the arguments based on the Venice Commission ’ s Report, the applicants stressed that because ordinary courts were, in practice, frequently confronted with difficulties in dealing with the large discretion afforded to the Government in this area, as observed by the Venice Commission, it could not be concluded that judicial control resulted in a less adequate control of secret surveillance for national security purposes. The actual conclusion of the Report was that only a complex arrangement of guarantees designed to involve judges in the control of security services could ensure the adequate protection of individuals. As pointed out in the Venice Convention ’ s Report, “[i]n order for judicial control to be effective, the judges must be independent and possess the necessary expertise”.\",\n \"47. The applicants also emphasised that the preconditions for the use of special secret surveillance instruments and methods of intelligence information gathering were not precisely defined in the law and this might also lead to arbitrary decision-making in the absence of judicial control. In this connection the applicants referred to the Court ’ s case-law, arguing that restrictions on the right to privacy by means of secret surveillance might only be in line with the Convention if the restriction was properly defined by the law (cf. Malone, cited above).\",\n \"48. The applicants further argued that the Data Protection Ombudsman and the Parliamentary Committee for National Security were not a substitute for the judicial control in the authorisation phase since they constituted oversight, rather than remedial, mechanisms and these had only general consequences not affecting the concrete case. Upon queries addressed to these two organs, the applicants found that none of them had ever dealt with a case on surveillance of citizens. These potential control mechanisms were thus not effective.\",\n \"( c ) The third parties\",\n \"( i ) Center for Democracy & Technology (CDT)\",\n \"49. The CDT drew the Court ’ s attention to the States ’ advanced present ‑ day capabilities for sophisticated and invasive surveillance, as well as to their ability to build a detailed profile of any individual ’ s activities and relationships using intercepted data. It mentioned the vast amount of information that could be retrieved from a physically seized computer or other personal electronic device. It further emphasised the development of the possibilities to intercept communication and metadata, such as contacts and location information, remotely, by tapping Internet or telephone networks. In addition to mass surveillance and the sophisticated analysis of the intercepted data, States were also able to conduct targeted surveillance of specific individuals by installing remotely malicious software on their devices, even enabling secret surveillance agencies to record keystrokes, sounds, photos or videos, unbeknown to the owner.\",\n \"50. According to the CDT, in the light of such surveillance capabilities, Article 8 required judicial oversight over all secret surveillance programmes conducted for the purpose of national security. Regarding those exceptional cases where judicial oversight was impossible, the CDT invited the Court to provide clear guidance to Contracting Parties and applicants by adopting a set of specific criteria for determining whether a non-judicial oversight process was sufficient to prevent the abuse of Article 8 rights – although the CDT maintained that Article 8 nevertheless required judicial control as the last resort. Finally, the CDT concluded that anyone within the jurisdiction of a Contracting Party who had a credible claim to have been the victim of an Article 8 violation arising from a secret national security surveillance programme must have access to a remedy that was effective in the sense that the remedial body was obliged to conduct an investigation into the complaint, and was both empowered and obligated to provide effective redress for the violation.\",\n \"( ii ) Privacy International\",\n \"51. Privacy International reviewed the relevant jurisprudence, both of the Court and national courts in Europe, Canada and the United Sates, highlighting recent decisions affirming that surveillance measures, including mere access to data retained by communications service providers, must be subject to judicial control or dependent upon the issuance of a judicial warrant. Moreover, Privacy International overviewed the international human rights standards relevant to the question of judicial control of surveillance, referring ‑ among other things ‑ to United Nations announcements and to the International Principles on the Application of Human Rights to Communications Surveillance which all include the need for judicial control of surveillance and for the right to an effective remedy.\",\n \"2. The Court ’ s assessment\",\n \"52. It is not in dispute between the parties that the measures which the TEK is entitled to apply under section 56 of the National Security Act (see paragraph 17 above), that is, to search and keep under surveillance the applicants ’ homes secretly, to check their postal mail and parcels, to monitor their electronic communications and computer data transmissions and to make recordings of any data acquired through these methods can be examined from the perspective of the notions of “private life”, “home” and “correspondence”, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Klass and Others, cited above, § 41).\",\n \"53. In the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an “interference by a public authority” with the exercise of the applicants ’ right to respect for private and family life and for correspondence (see Klass and Others, cited above, § 41). Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007 ‑ I).\",\n \"54. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim. This provision, “since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42).\",\n \"55. The Court finds that the aim of the interference in question is to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 § 2. This has not been in dispute between the parties. On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society (see Klass and Others, cited above, § 46).\",\n \"56. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig v. France, 24 April 1990, § 34, Series A no. 176 ‑ B; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000 ‑ 11; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998 ‑ V; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; Association for European Integration, cited above, § 76; and Roman Zakharov, cited above, § 231 ).\",\n \"57. When balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant ’ s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, §106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; Kennedy, cited above, §§ 153 and 154; and Roman Zakharov, cited above, § 232).\",\n \"58. The Court has found an interference under Article 8 § 1 in respect of the applicants ’ general complaint about the rules of “section 7/E (3) surveillance” and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine this legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicants. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the “section 7/E (3) surveillance” regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kvasnica, cited above, § 84).\",\n \"59. The expression “in accordance with the law” in Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26; Lambert v. France, 24 August 1998, § 23, Reports 1998-V; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX (extracts); Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 61, 26 April 2007; Association for European Integration, cited above, § 71; and Liberty, cited above, § 59). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236).\",\n \"60. It is not in dispute that the interference in question had a legal basis. The relevant rules are contained in statute law, that is, in the Police Act and the National Security Act. Their accessibility has not been called into question.\",\n \"61. The applicants, however, contended that this law was not sufficiently detailed and precise to meet the “foreseeability” requirement of Article 8 § 2, as it did not provide for sufficient guarantees against abuse and arbitrariness.\",\n \"62. The reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures ( see Roman Zakharov, cited above, § 229).\",\n \"63. In the present case, two situations may entail secret surveillance, namely, the prevention, tracking and repelling of terrorist acts in Hungary (section 7/E (1) a) ( ad ) of the Police Act) and the gathering of intelligence necessary for rescuing Hungarian citizens in distress abroad (section 7/E (1) e), see in paragraph 16 above).\",\n \"The applicants criticised these rules as being insufficiently clear.\",\n \"64. The Court is not wholly persuaded by this argument, recalling that the wording of many statutes is not absolutely precise, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A). It is satisfied that even in the field of secret surveillance, where foreseeability is of particular concern, the danger of terrorist acts and the needs of rescue operations are both notions sufficiently clear so as to meet the requirements of lawfulness. For the Court, the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all situations that may prompt a decision to launch secret surveillance operations. The reference to terrorist threats or rescue operations can be seen in principle as giving citizens the requisite indication (compare and contrast Iordachi and Others, cited above, § 46). For the Court, nothing indicates in the text of the relevant legislation that the notion of “terrorist acts”, as used in section 7/E (1) a) ( ad ) of the Police Act, does not correspond to the crime of the same denomination contained in the Criminal Code (see paragraph 16 above).\",\n \"65. However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 247).\",\n \"66. The Court notes that under “section 7/E (3) surveillance”, it is possible for virtually any person in Hungary to be subjected to secret surveillance. The legislation does not describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the underlying situations be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraphs, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Under the relevant Hungarian law, the proposal submitted to the responsible government minister must specify, either by name or as a range of persons, the person or persons as the interception subjects and/or any other relevant information capable of identifying them as well as the premises in respect of which the permission is sought (section 57 (2) of the National Security Act, see paragraph 17 above).\",\n \"67. It is of serious concern, however, that the notion of “persons concerned identified ... as a range of persons” might include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens. The Court notes the absence of any clarification in domestic legislation as to how this notion is to be applied in practice (see, mutatis mutandis, Roman Zakharov, cited above, § 245). For the Court, the category is overly broad, because there is no requirement of any kind for the authorities to demonstrate the actual or presumed relation between the persons or range of persons “concerned” and the prevention of any terrorist threat – let alone in a manner enabling an analysis by the authoriser which would go to the question of strict necessity (see in paragraphs 72 and 73 below) with regard to the aims pursued and the means employed – although such an analysis appears to be warranted by section 53 (2) of the National Security Act, according to which “secret intelligence gathering [may only be applied] if the intelligence needed ... cannot be obtained in any other way”.\",\n \"68. For the Court, it is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. The techniques applied in such monitoring operations have demonstrated a remarkable progress in recent years and reached a level of sophistication which is hardly conceivable for the average citizen (see the CDT ’ s submissions on this point in paragraphs 49-50 above), especially when automated and systemic data collection is technically possible and becomes widespread. In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens ’ Convention rights. These data often compile further information about the conditions in which the primary elements intercepted by the authorities were created, such as the time and place of, as well as the equipment used for, the creation of computer files, digital photographs, electronic and text messages and the like. Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens ’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens ’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities ’ enhanced technical possibilities to intercept private information (see paragraphs 23 and 24 above).\",\n \"69. The Court recalls that in Kennedy, the impugned legislation did not allow for “indiscriminate capturing of vast amounts of communications” (see Kennedy, cited above, § 160) which was one of the elements enabling it not to find a violation of Article 8. However, in the present case, the Court considers that, in the absence of specific rules to that effect or any submissions to the contrary, it cannot be ruled out that the broad-based provisions of the National Security Act can be taken to enable so-called strategic, large-scale interception, which is a matter of serious concern.\",\n \"70. The Court would add that the possibility occurring on the side of Governments to acquire a detailed profile (see the CDT ’ s submissions on this in paragraph 49 above) of the most intimate aspects of citizens ’ lives may result in particularly invasive interferences with private life. Reference is made in this context to the views expressed by the Court of Justice of the European Union and the European Parliament (see paragraphs 23 and 25 above). This threat to privacy must be subjected to very close scrutiny both on the domestic level and under the Convention. The guarantees required by the extant Convention case-law on interceptions need to be enhanced so as to address the issue of such surveillance practices. However, it is not warranted to embark on this matter in the present case, since the Hungarian system of safeguards appears to fall short even of the previously existing principles.\",\n \"71. Moreover, under section 57 (2) b), in the motion requesting permission from the Minister, the director must substantiate the necessity for the secret intelligence gathering (see paragraph 17 above). However, reading the relevant provisions jointly, the Court is not reassured that an adequate analysis of the aims pursued and the means applied in performing the national security tasks is possible or guaranteed. Indeed, the mere requirement for the authorities to give reasons for the request, arguing for the necessity of secret surveillance, falls short of an assessment of strict necessity (see in paragraphs 72 and 73 below). There is no legal safeguard requiring TEK to produce supportive materials or, in particular, a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measure ‑ and this on the basis of an individual suspicion regarding the target person (see Roman Zakharov, cited above, §§ 259 and 261). For the Court, only such information would allow the authorising authority to perform an appropriate proportionality test.\",\n \"72. Quite apart from what transpires from section 53(2) of the National Security Act, the Court recalls at this point that in Klass and Others it held that “powers of secret surveillance of citizens ... are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42, quoted in paragraph 54 above). Admittedly, the expression “strictly necessary” represents at first glance a test different from the one prescribed by the wording of paragraph 2 of Article 8, that is, “necessary in a democratic society”.\",\n \"73. However, given the particular character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens ’ privacy, the Court considers that the requirement “necessary in a democratic society” must be interpreted in this context as requiring “strict necessity” in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court ’ s view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal. The Court notes that both the Court of Justice of the European Union and the United Nations Special Rapporteur require secret surveillance measures to answer to strict necessity (see paragraphs 23 and 24 above) – an approach it considers convenient to endorse. Moreover, particularly in this context the Court notes the absence of prior judicial authorisation for interceptions, the importance of which will be examined below in paragraphs 75 et seq. This safeguard would serve to limit the law-enforcement authorities ’ discretion in interpreting the broad terms of “persons concerned identified ... as a range of persons” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual ’ s communications exist in each case (see, mutatis mutandis, Roman Zakharov, cited above, § 249). It is only in this way that the need for safeguards to ensure that emergency measures are used sparingly and only in duly justified cases can be satisfied (see Roman Zakharov, cited above, § 266).\",\n \"74. Furthermore, in respect of the duration of any surveillance, the National Security Act stipulates, first, the period after which a surveillance permission will expire (that is, after a maximum of 90 days, as per section 58 (4) of the National Security Act) and, second, the conditions under which a renewal is possible. Permissions can be renewed for another 90 days; and the government minister in charge must authorise any such renewal upon a reasoned proposal from the service involved (see paragraph 17 above). Section 60 stipulates that the permission must be cancelled if it is no longer necessary, if the continued surveillance has no prospect of producing results, if its time-limit has expired or if it turns out to be in breach of the law for any reason. The Court cannot overlook, however, that it is not clear from the wording of the law – especially in the absence of judicial interpretation – if such a renewal of the surveillance warrant is possible only once or repeatedly, which is another element prone to abuse.\",\n \"75. A central issue common to both the stage of authorisation of surveillance measures and the one of their application is the absence of judicial supervision. The measures are authorised by the Minister in charge of justice upon a proposal from the executives of the relevant security services, that is, of the TEK which, for its part, is a dedicated tactical department within the police force, subordinated to the Ministry of Home Affairs, with extensive prerogatives to apply force in combating terrorism (see section 1(2) subsection 15 of the Police Act quoted in paragraph 16 above). For the Court, this supervision, eminently political (as observed by the Constitutional Court, see point 105 of the decision quoted in paragraph 20 above) but carried out by the Minister of Justice who appears to be formally independent of both the TEK and of the Minister of Home Affairs – is inherently incapable of ensuring the requisite assessment of strict necessity with regard to the aims and the means at stake. In particular, although the security services are required, in their applications to the Minister for warrants, to outline the necessity as such of secret information gathering, this procedure does not guarantee that an assessment of strict necessity is carried out, notably in terms of the range of persons and the premises concerned (see section 57 (2) of the National Security Act quoted in paragraph 17 above).\",\n \"76. The Court notes the Government ’ s argument according to which a government minister is better positioned than a judge to authorise or supervise measures of secret surveillance. Although this consideration might be arguable from an operational standpoint, the Court is not convinced of the same when it comes to an analysis of the aims and means in terms of strict necessity. In any case, it transpires from the parties ’ submissions that anti-terrorism surveillance measures in Hungary have never been subjected to judicial control, for which reason it is not possible to pass judgement on its advantages or drawbacks. The Court finds therefore the Government ’ s argument on this point unpersuasive (see, a contrario, Roman Zakharov, cited above, § 259).\",\n \"77. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Roman Zakharov, cited above, § 258 ). However, the political nature of the authorisation and supervision increases the risk of abusive measures. The Court recalls that the rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, §§ 55 and 56). The Court recalls that in Dumitru Popescu (cited above, §§ 70-73 ) it expressed the view that either the body issuing authorisations for interception should be independent or there should be control by a judge or an independent body over the issuing body ’ s activity. Accordingly, in this field, control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny (see Klass and Others, cited above, §§ 42 and 55). The ex ante authorisation of such a measure is not an absolute requirement per se, because where there is extensive post factum judicial oversight, this may counterbalance the shortcomings of the authorisation (see Kennedy, cited above, § 167). Indeed, in certain respects and for certain circumstances, the Court has found already that ex ante (quasi-)judicial authorisation is necessary, for example in regard to secret surveillance measures targeting the media. In that connection the Court held that a post factum review cannot restore the confidentiality of journalistic sources once it is destroyed (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 101, 22 November 2012; for other circumstances necessitating ex ante authorisation see Kopp v. Switzerland, 25 March 1998, Reports 1998 II).\",\n \"For the Court, supervision by a politically responsible member of the executive, such as the Minister of Justice, does not provide the necessary guarantees.\",\n \"78. The governments ’ more and more widespread practice of transferring and sharing amongst themselves intelligence retrieved by virtue of secret surveillance – a practice, whose usefulness in combating international terrorism is, once again, not open to question and which concerns both exchanges between Member States of the Council of Europe and with other jurisdictions – is yet another factor in requiring particular attention when it comes to external supervision and remedial measures.\",\n \"79. It is in this context that the external, preferably judicial, a posteriori control of secret surveillance activities, both in individual cases and as general supervision, gains its true importance (see also Klass and Others, cited above, §§ 56, 70 and 71; Dumitru Popescu, cited above, § 77; and Kennedy, cited above, §§ 184-191), by reinforcing citizens ’ trust that guarantees of the rule of law are at work even in this sensitive field and by providing redress for any abuse sustained. The significance of this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks. The Court notes the lack of such a control mechanism in Hungary.\",\n \"80. The Court concedes that by the nature of contemporary terrorist threats there can be situations of emergency in which the mandatory application of judicial authorisation is not feasible, would be counterproductive for lack of special knowledge or would simply amount to wasting precious time. This is especially true in the present-day upheaval caused by terrorist attacks experienced throughout the world and in Europe, all too often involving important losses of life, producing numerous casualties and significant material damage, which inevitably disseminate a feeling of insecurity amongst citizens. The observations made on this point by the Court in Klass and Others are equally valid in the circumstances of the present case: “[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime” (cited above, § 48).\",\n \"81. Furthermore, where situations of extreme urgency are concerned, the law contains a provision under which the director of the service may himself authorise secret surveillance measures for a maximum of 72 hours (see sections 58 and 59 of the National Security Act quoted in paragraph 17 above). For the Court, this exceptional power should be sufficient to address any situations in which external, judicial control would run the risk of losing precious time. Such measures must however be subject to a post factum review, which is required, as a rule, in cases where the surveillance was authorised ex ante by a non-judicial authority.\",\n \"82. The Court notes at this juncture the liability of the executive to give account, in general terms rather than concerning any individual cases, of such operations to a parliamentary committee. However, it cannot identify any provisions in Hungarian legislation permitting a remedy granted by this procedure during the application of measures of secret surveillance to those who are subjected to secret surveillance but, by necessity, are kept unaware thereof. The Minister is under an obligation to present a general report, at least twice a year, to the responsible parliamentary committee about the functioning of national security services, which report, however, does not seem to be available to the public and by this appears to fall short of securing adequate safeguards in terms of public scrutiny (see Roman Zakharov, cited above, § 283). The committee is entitled, of its own motion, to request information from the Minister and the directors of the services about the activities of the national security services. However, the Court is not persuaded that this scrutiny is able to provide redress to any individual grievances caused by secret surveillance or to control effectively, that is, in a manner with a bearing on the operations themselves, the daily functioning of the surveillance organs, especially since it does not appear that the committee has access in detail to relevant documents. The scope of their supervision is therefore limited (see, mutatis mutandis, Roman Zakharov, cited above, § 281).\",\n \"83. Moreover, the complaint procedure outlined in section 11(5) of the National Security Act seems to be of little relevance, since citizens subjected to secret surveillance will not take cognisance of the measures applied. In regard to the latter point, the Court shares the view of the Venice Commission according to which “individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts.” (see point 243 of the Report, quoted in paragraph 21 above). A complaint under section 11(5) of the National Security Act will be investigated by the Minister of Home Affairs, who does not appear to be sufficiently independent (see Association for European Integration, cited above, § 87; and Roman Zakharov, cited above, § 278).\",\n \"84. The Court further notes the evidence furnished by the applicants according to which the Commissioner for Fundamental Rights has never so far enquired into the question of secret surveillance (see paragraph 18 above).\",\n \"85. In any event, the Court recalls that in Klass and Others a combination of oversight mechanisms, short of formal judicial control, was found acceptable in particular because of “an initial control effected by an official qualified for judicial office” (cited above, § 56). However, the Hungarian scheme of authorisation does not involve any such official. The Hungarian Commissioner for Fundamental Rights has not been demonstrated to be a person who necessarily holds or has held a judicial office (see, a contrario, Kennedy, cited above, § 57).\",\n \"86. Moreover, the Court has held that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for any recourse by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their justification retrospectively. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should be provided to the persons concerned (see Weber and Saravia, cited above, §135; Roman Zakharov, cited above, § 287 ). In Hungarian law, however, no notification, of any kind, of the measures is foreseen. This fact, coupled with the absence of any formal remedies in case of abuse, indicates that the legislation falls short of securing adequate safeguards.\",\n \"87. It should be added that although the Constitutional Court held that various provisions in the domestic law read in conjunction secured sufficient safeguards for data storage, processing and deletion, special reference was made to the importance of individual complaints made in this context (see point 138 of the decision, quoted in paragraph 20 above). For the Court, the latter procedure is hardly conceivable, since once more it transpires from the legislation that the persons concerned will not be notified of the application of secret surveillance to them.\",\n \"88. Lastly, the Court notes that is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see Roman Zakharov, cited above, § 284). However, the Government were not able to do so in the instant case.\",\n \"89. In total sum, the Court is not convinced that the Hungarian legislation on “section 7/E (3) surveillance” provides safeguards sufficiently precise, effective and comprehensive on the ordering, execution and potential redressing of such measures.\",\n \"Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.\",\n \"II. ALLEGED VIOLATIONS OF ARTICLE 6 AND ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION\",\n \"90. The applicants further complained that their exposure to secret surveillance measures without judicial control or remedy amounted to a violation of their rights under Article 6 as well as Article 13 read in conjunction with Article 8 of the Convention.\",\n \"91. The Government contested that argument.\",\n \"92. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.\",\n \"93. The Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law (see Ostrovar v. Moldova, no. 35207/03, § 113, 13 September 2005; Iordachi, cited above, § 56). In these circumstances, the Court finds no breach of Article 13 of the Convention taken together with Article 8.\",\n \"94. Moreover, having regard to the finding relating to Article 8 (see paragraph 89 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 of the Convention.\",\n \"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"95. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"96. Each applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.\",\n \"97. The Government found the claim excessive.\",\n \"98. The Court considers that in the circumstances of the present case the finding of a violation of Article 8 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained.\",\n \"B. Costs and expenses\",\n \"99. The applicants also claimed, jointly, EUR 7,500 for the costs and expenses incurred before the Constitutional Court and the Court in Strasbourg. This corresponds to altogether 50 hours of legal work billable by their lawyer at an hourly rate of EUR.\",\n \"100. The Government contested this claim.\",\n \"101. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads.\",\n \"C. Default interest\",\n \"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}},{"rowIdx":299,"cells":{"id":{"kind":"number","value":304,"string":"304"},"case_name":{"kind":"string","value":"Beghal v. the United Kingdom"},"judgement_date":{"kind":"string","value":"28 February 2019"},"facts_summary":{"kind":"string","value":"This case concerned the use of counter-terrorism legislation, namely Schedule 7 of the Terrorism Act 2000, giving police and immigration officers the power to stop, search and question passengers at ports, airports and international rail terminals. The applicant had been stopped and questioned when she arrived at East Midlands Airport in January 2011 following a visit to her husband, who was in prison in France for terrorism offences. She complained about the police powers under Schedule 7 of the counter-terrorism legislation."},"law_summary":{"kind":"string","value":"The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the legislation in force at that time had not been sufficiently circumscribed nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions, without being formally detained or having access to a lawyer. In reaching that conclusion the Court did not consider amendments since made to the legislation. In particular, as of 2014, border officials have been required to take a person into detention if they wish to examine him or her for longer than an hour, to only commence questioning after the arrival of a solicitor, and to release those being questioned after six hours."},"title":{"kind":"string","value":"Terrorism and the European Convention on Human Rights"},"subtitle":{"kind":"string","value":"Prevention of terrorism"},"facts_source":{"kind":"list like","value":["I. THE CIRCUMSTANCES OF THE CASE","A. Schedule 7","5. Schedule 7 to the Terrorism Act 2000 (“TACT”) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.","B. The facts of the present case","6. The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences.","7. On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m.","8. At the United Kingdom Borders ’ Agency (“UKBA”) desk the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be “a person concerned in the commission, preparation or instigation of acts of terrorism”. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant ’ s luggage was taken to another room and searched.","9. The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9 .00 p.m., while she was praying, one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched.","10. At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival.","11. In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1 (see paragraph 42 below). The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions.","12. At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was “free to go”.","13. The applicant ’ s lawyer arrived at approximately 10.40 p.m.","14. The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed.","15. On 12 December 2011 the applicant appeared before Leicester Magistrates ’ Court, where she pleaded guilty to the third charge and was sentenced to be conditionally discharged. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles 5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union.","16. The applicant appealed to the High Court against the District Judge ’ s ruling.","C. The judgment of the High Court","17. On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed.","18. With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be “in accordance with the law”; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self ‑ incrimination without her lawyer in attendance.","19. The High Court delivered its judgment on 28 August 2013. In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 of TACT (the provisions under consideration in Gillan and Quinton ), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see paragraphs 42 and 43 below ) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an “island nation”, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls.","20. Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore “in accordance with the law”. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see paragraphs 48 - 49 and 56 - 61 below ) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of “reasonable suspicion” for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism.","21. In this regard, the court observed:","“The manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘ ...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred ’ – Lord Bingham ’ s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] – [77], also set out above; for our part, the ‘ level of precision ’ of these powers ( ibid ) falls and falls comfortably on the right side of the line. ”","22. The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant ’ s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate.","23. In view of the court ’ s conclusions in respect of Article 8, it found that the applicant ’ s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant ’ s rights, and the applicant accepted that the interference was “in order to secure the fulfilment of any obligation prescribed by law”, the only issue to be determined was whether the interference was “lawful”, and the conclusions in respect of Article 8 had determined that it was.","24. Finally, the court considered the applicant ’ s argument under Article 6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant ’ s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant ’ s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence.","D. The judgment of the Supreme Court","25. The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015.","26. Prior to the judgment, Schedule 7 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; reduced the maximum period of detention from nine hours to six hours; required the periodic review of detention by a review officer; provided that the questioning of an examinee should not commence until after the arrival of a requested solicitor; and stipulated that examining officers should be designated and trained for this purpose (see paragraphs 52 - 53 below). The Code of Practice was amended to reflect these changes (see paragraphs 54 - 55 below). In considering the applicant ’ s complaints, the Supreme Court had regard to the amended Schedule 7 power.","1. The opinion of the majority","(a ) Article 8","27. With regard to the Article 8 complaint, Lord Hughes (with whom Lord Hodge agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section 44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.","28. Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton.","29. Lords Hughes and Hodge further accepted that the interference with the applicant ’ s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom ’ s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming.","30. Lords Neuberger and Dyson added that:","“Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.”","(b ) Article 5","31. Although Lords Hughes, Hodge, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5.","(c ) Article 6 § 1","32. In respect of the applicant ’ s complaint under Article 6, Lords Hughes, Hodge, Neuberger and Dyson accepted that the privilege against self ‑ incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty).","2. Lord Kerr ’ s dissenting opinion","(a ) Legality","33. Lord Kerr disagreed with the majority that the Schedule 7 powers were “in accordance with the law”. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, Lord Kerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?).","34. In response to the majority ’ s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one ’ s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of “in accordance with the law”. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use.","35. Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power – and not its actual use – which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour.","36. Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally.","(b ) Proportionality","37. Lord Kerr was not persuaded that the interference with the applicant ’ s rights under Articles 5 and 8 was “necessary”. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism.","(c ) Privilege against self-incrimination","38. Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person ’ s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr ’ s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self ‑ incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self ‑ incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence."],"string":"[\n \"I. THE CIRCUMSTANCES OF THE CASE\",\n \"A. Schedule 7\",\n \"5. Schedule 7 to the Terrorism Act 2000 (“TACT”) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.\",\n \"B. The facts of the present case\",\n \"6. The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences.\",\n \"7. On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m.\",\n \"8. At the United Kingdom Borders ’ Agency (“UKBA”) desk the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be “a person concerned in the commission, preparation or instigation of acts of terrorism”. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant ’ s luggage was taken to another room and searched.\",\n \"9. The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9 .00 p.m., while she was praying, one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched.\",\n \"10. At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival.\",\n \"11. In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1 (see paragraph 42 below). The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions.\",\n \"12. At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was “free to go”.\",\n \"13. The applicant ’ s lawyer arrived at approximately 10.40 p.m.\",\n \"14. The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed.\",\n \"15. On 12 December 2011 the applicant appeared before Leicester Magistrates ’ Court, where she pleaded guilty to the third charge and was sentenced to be conditionally discharged. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles 5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union.\",\n \"16. The applicant appealed to the High Court against the District Judge ’ s ruling.\",\n \"C. The judgment of the High Court\",\n \"17. On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed.\",\n \"18. With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be “in accordance with the law”; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self ‑ incrimination without her lawyer in attendance.\",\n \"19. The High Court delivered its judgment on 28 August 2013. In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 of TACT (the provisions under consideration in Gillan and Quinton ), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see paragraphs 42 and 43 below ) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an “island nation”, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls.\",\n \"20. Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore “in accordance with the law”. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see paragraphs 48 - 49 and 56 - 61 below ) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of “reasonable suspicion” for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism.\",\n \"21. In this regard, the court observed:\",\n \"“The manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘ ...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred ’ – Lord Bingham ’ s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] – [77], also set out above; for our part, the ‘ level of precision ’ of these powers ( ibid ) falls and falls comfortably on the right side of the line. ”\",\n \"22. The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant ’ s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate.\",\n \"23. In view of the court ’ s conclusions in respect of Article 8, it found that the applicant ’ s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant ’ s rights, and the applicant accepted that the interference was “in order to secure the fulfilment of any obligation prescribed by law”, the only issue to be determined was whether the interference was “lawful”, and the conclusions in respect of Article 8 had determined that it was.\",\n \"24. Finally, the court considered the applicant ’ s argument under Article 6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant ’ s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant ’ s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence.\",\n \"D. The judgment of the Supreme Court\",\n \"25. The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015.\",\n \"26. Prior to the judgment, Schedule 7 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; reduced the maximum period of detention from nine hours to six hours; required the periodic review of detention by a review officer; provided that the questioning of an examinee should not commence until after the arrival of a requested solicitor; and stipulated that examining officers should be designated and trained for this purpose (see paragraphs 52 - 53 below). The Code of Practice was amended to reflect these changes (see paragraphs 54 - 55 below). In considering the applicant ’ s complaints, the Supreme Court had regard to the amended Schedule 7 power.\",\n \"1. The opinion of the majority\",\n \"(a ) Article 8\",\n \"27. With regard to the Article 8 complaint, Lord Hughes (with whom Lord Hodge agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section 44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.\",\n \"28. Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton.\",\n \"29. Lords Hughes and Hodge further accepted that the interference with the applicant ’ s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom ’ s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming.\",\n \"30. Lords Neuberger and Dyson added that:\",\n \"“Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.”\",\n \"(b ) Article 5\",\n \"31. Although Lords Hughes, Hodge, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5.\",\n \"(c ) Article 6 § 1\",\n \"32. In respect of the applicant ’ s complaint under Article 6, Lords Hughes, Hodge, Neuberger and Dyson accepted that the privilege against self ‑ incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty).\",\n \"2. Lord Kerr ’ s dissenting opinion\",\n \"(a ) Legality\",\n \"33. Lord Kerr disagreed with the majority that the Schedule 7 powers were “in accordance with the law”. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, Lord Kerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?).\",\n \"34. In response to the majority ’ s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one ’ s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of “in accordance with the law”. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use.\",\n \"35. Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power – and not its actual use – which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour.\",\n \"36. Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally.\",\n \"(b ) Proportionality\",\n \"37. Lord Kerr was not persuaded that the interference with the applicant ’ s rights under Articles 5 and 8 was “necessary”. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism.\",\n \"(c ) Privilege against self-incrimination\",\n \"38. Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person ’ s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr ’ s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self ‑ incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self ‑ incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence.\"\n]"},"law_source":{"kind":"list like","value":["II. RELEVANT DOMESTIC LAW AND PRACTICE","A. Terrorism Act 2000 (“TACT”) (as in force at the relevant time)","39. Section 40(1)(b) of TACT defines a “terrorist” so as to include a person who has been concerned in the commission, preparation or instigation of acts of terrorism. Section 1 of TACT defines “terrorism” as follows:","“(1) In this Act “terrorism” means the use or threat of action where—","(a) the action falls within subsection (2),","(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and","(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.","(2) Action falls within this subsection if it—","(a) involves serious violence against a person,","(b) involves serious damage to property,","(c) endangers a person ’ s life, other than that of the person committing the action,","(d) creates a serious risk to the health or safety of the public or a section of the public, or","(e) is designed seriously to interfere with or seriously to disrupt an electronic system.","(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.","(4) In this section—","(a) “action” includes action outside the United Kingdom,","(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,","(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and","(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.","(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”","40. Schedule 7 of TACT, which is headed “Port and Border Controls”, provided as relevant:","“Power to stop, question and detain","2.—(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).","(2) This paragraph applies to a person if—","(a) he is at a port or in the border area, and","(b) the examining officer believes that the person ’ s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland.","(3) This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland.","(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).","... ... ...","6.—(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—","(a) stop a person or vehicle;","(b) detain a person.","... ... ...","(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.","(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.","... ... ...","8(1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—","(a) search the person;","(b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;","(c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;","(d) search a ship or aircraft for anything falling within paragraph (b).","... ... ...","(3) A search of a person under this paragraph must be carried out by someone of the same sex.","... ... ...","Offences","18.—(1) A person commits an offence if he—","(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule,","(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or","(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.","(2) A person guilty of an offence under this paragraph shall be liable on summary conviction to—","(a) imprisonment for a term not exceeding three months,","(b) a fine not exceeding level 4 on the standard scale, or","(c) both .”","41. Pursuant to Schedule 8 a person detained under Schedule 7 acquires rights which he or she did not have prior to detention (for example, to have a named person informed, and to consult a solicitor) but also obligations (for example, to give fingerprints, non-intimate and intimate DNA samples).","B. Home Office (2009) Examining Officers under the Terrorism Act 2000 Code of Practice (“the Code”)","42. The Code, which is issued by the Secretary of State for the Home Department pursuant to paragraph 6(1) of Schedule 14 of TACT and is a public document admissible in evidence in criminal and civil proceedings, contains detailed provisions as to the exercise by examining officers of their functions under that legislation. It provides, as relevant:","“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.","10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the powers in such a way as to minimise causing embarrassment or offence to a person who is being questioned.","Notes for guidance on paragraphs 9 and 10 [in bold in the original]","The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity. The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.","Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them.","Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be exercised arbitrarily. An examining officer ’ s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as:","Selections for examinations should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person ’ s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination.","Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other purpose. An examination must cease and the examinee must be informed that it has ended once it has been ascertained that the person examined does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism.","Unless the examining officer arrests the person using powers under the Act, a person being examined under Schedule 7 need not be cautioned.","11. The examining officer should explain to the person concerned either verbally or in writing that they are being examined under Schedule 7 of the Terrorism Act 2000 and that the officer has the power to detain that person should they refuse to co-operate and insist on leaving. The examining officer should keep the length of the examination to the minimum that is practicable. An examination begins after a person has been stopped and screening questions have been asked. Once an examination lasts for one hour, an explanatory notice of examination, a TACT 1 form ( ... ), must be served by the examining officer on the person. The contents of the TACT 1 form should be explained to the person by the examining officer. Where a person ’ s examination is protracted or where it is thought likely to be protracted, the examining officer should make arrangements to ensure that the person has the opportunity to have refreshments at regular intervals.","... ... ...","Records","14. Records of all examinations should be kept locally at a port, border area or police station in the event of a complaint or query but in addition a record of all exams over an hour should be held centrally for statistical purposes. The record should include the name of the person examined; the total duration the examination from the start until completion; whether the person was detained and if so when detention began and ended.","15. Records of examination that last under an hour or in the case of a child of any duration should be kept at the port, border area or at a police station for reference purposes in the event of a complaint or query. Records of examination that last over an hour, however, should be kept centrally for statistical purposes.","... ... ...","Searches","28. An examining officer may search a person who is being questioned for the purpose set out in paragraph 9 above, and their belongings, including baggage. He may also under paragraph 10 authorise another person to carry out a search on his behalf. As under paragraph 10 above every reasonable effort should be made to reduce to a minimum the potential embarrassment or offence that may be caused to a person being searched. ...","29. A personal search should only be carried out by someone of the same sex. ”","C. 2009 National Policing Improvement (“NPIA”) Practice Advice (“the Practice Advice”)","43. The Foreword to the Practice Advice provides:","“Special Branch ports officers carry a significant responsibility as part of the police contribution to ensuring National Security. It is vital that they are equipped with powers that enable them to carry out their role effectively and efficiently.","Schedule 7 ... provides these officers with unique powers to examine people who pass through the United Kingdom ’ s borders. It is essential that they are applied professionally so that the police maintain the confidence of all sections of the public. Any misuse of these powers could have a far-reaching negative impact on police community relations and hinder progress made in support of the Government ’ s counter-terrorism strategy.”","D. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2011","44. The report provided the following figures concerning the frequency of the exercise of Schedule 7 powers:","“In the year to 31 March 2011, over the UK as a whole:","(a) There was a total of 85,423 Schedule 7 examinations, 20% down on 2009/10.","(b) 73,909 of those examinations were on people, and 11,514 on unaccompanied freight.","(c) 2,291 people (3% of those examined - a similar percentage to 2009/10) were kept for over an hour.","(d) 915 people were detained after examination (1% of those examined, up from 486 in 2009/10).","(e) 769 people had biometric samples taken.","(f) There were 31 counter-terrorism or national security-related arrests. However 25 of those were in a single force area, reflecting that force ’ s policy (since amended) as regards the action they take for those withholding or giving of false information during an examination.","(g) 101 cash seizures by the police thought to relate to counter-terrorism were made, amounting in total to £844,709, mostly at airports.","These figures have to be set against the numbers of passengers travelling through UK airports (213 million), UK seaports (22 million) and UK international rail ports (9.5 million) during the year. In total, only 0.03% of passengers were examined under Schedule 7 in 2010/11.”","45. With regard to the ethnic origin of the persons stopped, the report summarised the data in tabular form:","2010/11","White","Black","Asian","Other","Mixed or not stated","Examined < 1 hour","46%","8%","26%","16%","4%","Examined > 1 hour","14%","15%","45%","20%","6%","Detained","8%","21%","45%","21%","5%","Biometrics","7%","21%","46%","20%","6%","46. The report continued:","“No ethnicity data are collected for port travellers generally. It may well be that the proportion of ethnic minorities among those using UK ports and airports for travel is higher than the proportion in the UK population as a whole. It is most unlikely however that white people are in a minority among travellers. Detentions (plainly) and examinations (almost certainly) are thus imposed on members of minority ethnic communities – particularly those of Asian and other (including North African) ethnicity – to a greater extent than their presence in the travelling population would seem to warrant.","That fact alone does not mean that examinations and detentions are misdirected. As I argued in my last annual report (paras 9.14-9.21), Schedule 7 should not be used (as section 44 stop and search was from time to time used) in order to produce a racial balance in the statistics: that would be the antithesis of intelligence-led policing. The proportionate application of Schedule 7 is achieved by matching its application to the terrorist threat, rather than to the population as a whole.","There is however no room for complacency. The ethnic breakdown of the terrorist threat is hard to pin down: but ... [e]ven in Great Britain ... white people constitute approximately a quarter of those arrested and charged with terrorist offences – a proportion that would no doubt rise considerably if Northern Ireland data were included. ...","The ethnicity figures provide, in themselves, no basis for criticism of the police. They do however underline the need for vigilance, particularly when some minority communities are understandably sensitive about the application of Schedule 7. It is important for all involved with the application of Schedule 7 to remember that:","(a) perceived ethnic background or religion should not be used, alone or in combination with each other, as the sole reason for selecting a person for examination;","(b) UK terrorists are of all colours: a substantial proportion of them (even outside Northern Ireland) are white; and that","(c) apparently innocuous decisions (for example, to check the plane from Pakistan rather than the plane from Canada) may reflect unconscious racial bias.”","47. Although the report indicated that certain groups (most notably Muslims) felt that they were being singled out, between 1 July 2011 and 23 May 2012 only twenty complaints had been received.","48. In concluding that the utility of Schedule 7 powers was not in doubt, the report noted:","“Schedule 7 examinations have certainly been instrumental, first of all, in securing evidence which assists in the conviction of terrorists. That evidence does not take the form of answers given in interview (which because of the compulsion to answer would almost certainly be inadmissible in any criminal trial) but rather consists of physical possessions or the contents of mobile phones, laptops and pen drives.","It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the copper ’ s nose. Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.","...","Secondly, Schedule 7 examinations have been useful in yielding intelligence about the terrorist threat. Sometimes words spoken in interview, though not themselves admissible as evidence, may start a train of enquiry that leads to a prosecution. Of great importance, however, is intelligence of a more indirect kind – which may come from intelligence-led stops or from stops on the basis of risk factors. Schedule 7 examinations are perhaps most prized by the police and security services for their ability to contribute to a rich picture of the terrorist threat to the United Kingdom and UK interests abroad.","...","Thirdly, Schedule 7 examinations may assist disruption or deterrence. Young, nervous or peripheral members of terrorist networks can sometimes be dissuaded from plans e.g. to travel abroad for training by the realisation – communicated by a port stop – that the police have an idea of who they are and what they are about.","...","Finally, a Schedule 7 examination – once it has been completed, and this has been made clear to the person examined – may serve as an opportunity for the identification of those who may agree to be recruited as informants.”","E. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2012","49. In this report the Independent Reviewer specifically addressed whether Schedule 7 should include a requirement of “reasonable suspicion”. In particular, he sought to explore with police and intelligence services the extent to which stops which were not intelligence-led or otherwise based on suspicion were useful. He observed that general arguments for a no ‑ suspicion power included the following:","“Were reasonable suspicion (or even just subjective suspicion) to be required for all stops:","(a) The substantial deterrent threat of Schedule 7 in its current form could be avoided altogether by using “clean skins” to transport the tools of the terrorist ’ s trade.","(b) Anybody who was stopped would know that the police had evidence on which to suspect them: the mere fact of a stop could thus alert the traveller to the existence of surveillance, whether human or technical, with consequences that could include the ending of effective surveillance and the endangering of a human source.","(c) The authorities would be unable to stop and question the travelling companion(s) of a person whom they suspect of involvement in terrorism: the mere fact of travelling with a suspected person will not be enough to constitute a reasonable suspicion of involvement in terrorism.”","50. The Independent Reviewer was briefed by MI5 and by the police on a number of no-suspicion stops in recent months which had brought significant benefits in terms of disrupting potential terrorists. These included both untargeted and targeted examinations, since there could be intelligence on somebody sufficient to merit a stop without the threshold of reasonable suspicion being reached. While he accepted that a number of such stops had been “of real value in protecting national security”, he recognised that that did not automatically make them proportionate. He considered this was ultimately a matter for Parliament, but noted that any requirement of suspicion would","“reduce the potential efficacy of Schedule 7. Equally, however, they would give a measure of protection to persons who may currently be selected for these attentions without even being suspected of any crime.”","51. The Independent Reviewer also addressed the compulsion to answer questions under Schedule 7. In this regard, he indicated that:","“Compulsion to answer questions under Schedule 7 is of the essence of the power, its utility beyond question when it comes not only to identifying people as terrorists but to gathering intelligence – an important by-product of the Schedule 7 examination, albeit one that can never serve as the prime motive for a stop.","Such a strong power requires strong safeguards on the use to which answers can be put. At the least, it is essential that answers are not used in proceedings where they could incriminate the person who gave them. I believe it to be generally accepted that answers given under compulsion in Schedule 7 interviews could never be used in a criminal trial ... ”","F. The Anti-Social Behaviour, Crime and Policing Act 2014","52. The Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) made several changes to the Schedule 7 powers. Most notably, it required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; it reduced the maximum period of detention from nine hours to six hours; it introduced a requirement for the periodic review of detention by a review officer; and it required that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters.","53. The 2014 Act further required that examining officers should be designated for this purpose by the Secretary of State and a Code of Practice should be issued which provided for the training to be undertaken by them.","54. A new version of the Code of Practice was promulgated in July 2014 to reflect those amendments and also the judgment of the Supreme Court in the applicant ’ s case. In particular, it provided that the Schedule 7 powers could only be used by police officers who had been accredited by their chief officer as having met a national standard in the use of the powers; and it confirmed that the exercise of the powers should not be arbitrary.","55. It further provided that detained persons were entitled to consult a solicitor in private at any time, and that the examining officer had to postpone questioning until the person had consulted a solicitor in private, unless the examining officer reasonably believed that postponing questioning would be likely to prejudice the purpose of the examination.","G. Subsequent annual reports of the Independent Reviewer of Terrorism Legislation","1. 2013","56. In his review of the operation of the terrorism legislation in 2013, the Independent Reviewer made some remarks about the apparent “considerable ‘ disproportionality ’ ” between the ethnic classification of those examined and detained under Schedule 7 and the ethnic classification of the port-using (or airport-using) public. In particular, he noted that the Schedule 7 power was not intended to be exercised randomly but rather to gain information about persons concerned in the commission, preparation or instigation of acts of terrorism. As terrorists were not, at any one moment in time, evenly distributed across the various ethnic groups, if the power was being skilfully used, one would expect its exercise to be ethnically “proportionate” not to the United Kingdom population, nor even to the airport-using population, but rather to the terrorist population that travels through United Kingdom ports. In conclusion he stated that he had no reason to believe that Schedule 7 powers were being exercised in a racially discriminatory manner.","57. Although the Independent Reviewer welcomed the amendments being introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, he identified three issues he had previously addressed which remained outstanding:","“ a) the fact that no suspicion is required for the exercise of most Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop;","b) the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and","c) the need for clear and proportionate rules governing the data taken from electronic devices. ”","58. He recommended, inter alia, that detention should be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40(1)(b) and that detention is necessary in order to assist in determining whether he is such a person; that on periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40(1)(b), and that detention continues to be necessary in order to assist in determining whether he is such a person; and that a statutory bar should be introduced to the introduction of Schedule 7 admissions in a subsequent criminal trial.","59. Finally, he expressed his belief that his recommendations would improve fairness and accountability without reducing the efficacy of the Schedule 7 powers or exposing the public to additional risk from terrorism. He observed that his recommendations had been endorsed by the Joint Committee on Human rights, which fully agreed with them, save as to the thresholds for detention and for copying data, which it continued to advise should require reasonable suspicion; and the Home Affairs Select Committee, which expressed the view that the introduction of a suspicion test for the ancillary powers, the use of answers given under compulsion in a criminal court and the treatment of legally privileged material, excluded material and special procedure material should be subject to further review.","2. 2015","60. In his review of the operation of the terrorism legislation in 2015, the Independent Reviewer repeated the following recommendations:","“(a) that a suspicion threshold should be applied to detention and to the copying of data from personal electronic devices;","(b) that safeguards should be provided in respect of legally privileged material, excluded material and special procedure material;","(c) that safeguards should be applied to private electronic data gathered under Schedule 7; and","(d) that there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial.”","3. 2016 and 201 7","61. Finally, in his review of the operation of the terrorism legislation in 201 7, the Independent Reviewer indicated that while there had been a significant decline in the total number of examinations in recent years, there had been an increase in the number of “resultant detentions”. According to the Independent Reviewer, this was not a particularly worrying pattern, and was likely due to better capture of passenger manifest data across the United Kingdom, and better use of targeting techniques.","H. The Counter-Terrorism and Border Security Bill","62. The purpose of the Bill, which was introduced on 5 June 2018, is to “make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes”.","63. The Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT.","64. Schedule 3 of the Bill further contains a power – modelled on Schedule 7 of TACT – for “examining officers” to question any person who is in a port in the United Kingdom or in the Northern Ireland border area for the purpose of determining whether the person appears to be, or has been, engaged in “hostile activity”. As with Schedule 7, the power to examine a person can be exercised whether or not there are grounds for suspecting that a person is engaged in hostile activity.","I. Relevant case-law","1. R (David Miranda) v. Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2016] EWCA Civ 6","65. Mr Miranda is the spouse of a journalist who had received encrypted material from Edward Snowden. The data, which contained United Kingdom intelligence material, had been stolen from the National Security Agency. Mr Miranda was detained for nine hours by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 of TACT. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. The Security Service had asked the police to make the stop, with the principal objective of mitigating the risk to national security that the material in Mr Miranda ’ s possession might pose.","66. In judicial review proceedings Mr Miranda claimed that the use of the Schedule 7 power against him was unlawful because (i) the power was exercised for a purpose not permitted by the statute; and (ii) its use constituted a disproportionate interference with his rights under Articles 5, 8 and 10 of the Convention. He also claimed that the use of the power was incompatible with the rights guaranteed by Article 10 of the Convention in relation to journalistic material.","67. The Court of Appeal accepted that the police exercised the power for its own purpose of determining whether Mr Miranda appeared to be a person falling within section 40(1)(b) of TACT. The fact that the exercise of the Schedule 7 power also promoted the Security Service ’ s different (but overlapping) purpose did not mean that the power was not exercised for the Schedule 7 purpose. In this regard, the police had clearly recognised that they could not act as a conduit for the furtherance of the Security Service ’ s purposes, and had had to be persuaded that the conditions for a lawful Schedule 7 stop had been met before they agreed to proceed. Moreover, as Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility, the court accepted that the power was exercised for a lawful purpose. In assessing proportionality, the court accepted that the Schedule 7 stop was an interference with press freedom, but held that the compelling national security interests clearly outweighed Mr Miranda ’ s Article 10 rights on the facts of the case.","68. However, with regard to the compatibility of the Schedule 7 powers with Article 10 of the Convention, the court found that the constraints on the exercise of the powers did not afford effective protection of journalists ’ Article 10 rights. The court ’ s central concern was that disclosure of journalistic material (whether or not it involved the identification of a journalist ’ s source) undermined the confidentiality that was inherent in such material and which was necessary to avoid the chilling effect of disclosure and to protect Article 10 rights. If journalists and their sources could have no expectation of confidentiality, they might decide against providing information on sensitive matters of public interest. Consequently, it was of little or no relevance that the Schedule 7 powers could only be exercised in a confined geographical area or that a person could not be detained for longer than nine hours. Similarly, while the fact that the powers had to be exercised rationally, proportionately and in good faith provided a degree of protection, the only safeguard against the powers not being so exercised was the possibility of judicial review proceedings. However, while judicial review might be an adequate safeguard in the context of Articles 5 and 8, it would provide little protection against the damage done if journalistic material was disclosed and used in circumstances where this should not happen.","2. R (CC) v. Commissioner of Police of the Metropolis and another [2012] 1 WLR 1913 and R (on the application of Elostra) v. Commissioner of Police of the Metropolis [2014] 1 WLR 239","69. In R(CC) the High Court upheld a challenge by an individual against the use of the Schedule 7 power on the basis that the examining officers were not in fact exercising it for the purpose of determining whether he appeared to be a terrorist. The claimant was a British national who had been arrested in Somaliland and deported to the United Kingdom. In anticipation of his return, a control order was made against him. The High Court found that the Schedule 7 powers were exercised on his arrival for the purpose of getting information – untainted by any torture allegations – which might confirm the propriety of the making of the control order. According to the court, this had nothing to do with determining whether he appeared to be a terrorist in any particular way and as a consequence the power had not been used lawfully. However, in reaching this conclusion the judge remarked:","“I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.”","70. In R(Elostra) the High Court held that an examination under Schedule 7 which was conducted without adherence to the proper safeguards was unlawful. More particularly, it held that a person who was detained under Schedule 7 – at a police station or elsewhere – was, by virtue of the Code of Practice, entitled to insist on legal advice before answering any questions.","3. R. v. Gul [2013] UKSC 64","71. The principal issue in this appeal was the definition of “terrorism” in section 1 of TACT; more precisely, whether it included military attacks by non-State armed groups against national or international armed forces in a non-international armed conflict. The Supreme Court held that there was no basis for reading the natural, very wide, meaning of section 1 of TACT restrictively. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres. Moreover, the United Kingdom ’ s international obligations could not require it to define “terrorism” more narrowly, since there was no accepted definition of “terrorism” in international law.","72. The court noted, however, that the very wide definition of “terrorism” gave rise to certain concerns. While the case did not concern the use of Schedule 7 powers, it observed that:","“63. The second general point is that the wide definition of “terrorism” does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of ‘ terrorism ’ is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.","64. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in ports and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e. that he has ‘ committed an offence ’, or he ‘ is or has been concerned in the commission, preparation or instigation of acts of terrorism ’ ), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection. On this appeal, we are not, of course, directly concerned with that issue in this case. But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty.”","THE LAW","I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION","73. The applicant complained that the exercise of Schedule 7 powers breached her rights under Article 8 of the Convention, which reads as follows:","“1. Everyone has the right to respect for his private and family life, his home and his correspondence.","2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”","74. The Government contested that argument.","A. Admissibility","75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.","B. Merits","1. Whether there was an interference with the applicant ’ s rights under Article 8 of the Convention","76. The Government accepted that, taken as a whole, the applicant ’ s examination pursuant to Schedule 7 of TACT gave rise to an interference with the right guaranteed to her under Article 8 of the Convention. In the present case, in addition to being stopped and questioned, the applicant and her luggage were searched. In Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010 (extracts) the Court held that the use of “coercive powers” to require an individual to submit to a “detailed search of his person, his clothing and his personal belongings” amounted to a clear interference with the right to respect for private life. While the Court expressly recognised the potential distinction between the “stop and search powers” under section 44 of TACT and “the search to which passengers uncomplainingly submit at airports or at the entrance of a public building” (see Gillan and Quinton, cited above, § 64), Schedule 7 powers were clearly wider that the immigration powers to which travellers might reasonably expect to be subjected. In view both of this fact, and of the Government ’ s concession, the Court would accept that there was an interference with the applicant ’ s rights under Article 8 of the Convention.","2. Whether that interference was “in accordance with the law”","(a) The parties ’ submissions","( i ) The applicant","77. The applicant submitted that the Schedule 7 powers were insufficiently circumscribed and contained inadequate safeguards to be “in accordance with the law ”. In the year of her examination, more than 68,000 people were stopped pursuant to Schedule 7. The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.","78. More particularly, the applicant contended that the powers under the Schedule 7 regime were more intrusive than the stop and search powers under sections 44-45 of TACT, which the Court had held not to be “in accordance with the law” in Gillan and Quinton. First of all, section 44 required a senior officer to give authorisations if he thought it “expedient for the prevention of acts of terrorism”. In contrast, Schedule 7 powers applied at all times at all ports. Secondly, while powers under sections 44 and 45 were directed at the narrow purpose of “searching for articles of a kind that could be used in connection with terrorism”, Schedule 7 powers had a much broader purpose and permitted a far wider investigation into an individual ’ s activities, beliefs and movements. Thirdly, section 45 only permitted an officer to search a person ’ s outer clothing and possessions, and detention was only permitted to the extent necessary to carry out that limited search. In contrast, a Schedule 7 suspicion-less examination could take place at a police station, could permit detailed and intrusive searches, and at the time the applicant was stopped, detention could last for up to nine hours. Fourthly, section 45 contained no power to interrogate, whereas Schedule 7 permitted a lengthy interrogation that a person was required by law to answer. Finally, section 45 permitted an officer to retain items found during the search of a person only if the officer reasonably suspected that the item was intended to be used in connection with terrorism. Schedule 7, on the other hand, permitted any item to be retained for seven days for examination, regardless of whether or not such suspicion existed.","79. According to the applicant, there were also important similarities between the section 44 and Schedule 7 powers: they both fell within the same framework of counter-terrorism legislation under TACT; they both involve intrusive measures which might be used without subjective grounds for suspicion; the use of both sets of powers had a significantly disproportionate impact on persons of non-white ethnic origin; and the safeguards relied on by the Government were similar.","80. In this regard, the applicant acknowledged that some safeguards existed, notably those identified by Lord Hughes in the Supreme Court. However, she argued that they were insufficient to meet the requirement of legality. To begin with, given the large number of people passing through United Kingdom ports every day, the fact that the Schedule 7 powers were restricted to travellers at ports did not significantly reduce their impact. Moreover, Schedule 7 powers could not be equated with immigration powers, to which travellers might reasonably expect to be subjected. They were based at ports because they were “choke points” and not because they had any specific connection to a person ’ s travel.","81. Furthermore, restriction to the statutory purpose, restriction to specially trained and accredited officers, and restrictions on the type of search and duration of questioning provided negligible safeguards which did not cure the risk of arbitrariness in the exercise of a broadly defined, suspicion-less power. This was especially so given that the Code in force at the time of the applicant ’ s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights. Although individuals were entitled to consult a solicitor, this offered no protection against the risk of arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of a solicitor (as happened in this case).","82. In addition, the explanatory notice given to those questioned was generic; examining officers were not required to explain the reasons why a particular individual was selected for examination under Schedule 7. There was also no requirement for officers to record the reason why a particular individual was selected for examination, and since the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise) the scope for using judicial review proceedings to challenge a particular Schedule 7 examination was extremely limited. Finally, the Independent Reviewer only carried out a post-hoc review of a small number of Schedule 7 stops, since his capacities did not stretch to a thorough port ‑ by ‑ port monitoring, and the Government was not obliged to give effect to any changes he proposed.","( ii ) The Government","83. The Government contended that the exercise of a power on a “no suspicion” basis could be “in accordance with the law”. In such a case, the relevant factors to be considered were the field covered by the measure in issue (being relevant to the level of precision required); and the relevant law together with how the system worked in practice.","84. As to the field covered by the measure, the Government stated that it was focussed on entry and exit points to the United Kingdom. As these points were the first line of defence against the entry and exit of terrorists, they provided a unique opportunity to target checks where they were likely to be the most effective.","85. Regarding the relevant law, the Government argued that there were sufficient effective safeguards in the manner of its operation to meet the requirements of legality. In particular, they drew attention to the factors identified by Lord Hughes and Lord Hodges, which were adopted by Lord Neuberger and Lord Dyson, namely: the restriction to those passing into and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including the procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.","86. Moreover, there was no evidence that the powers had been used in a racially discriminatory fashion, and in fact such a use was expressly prohibited by the Code of Practice.","(b ) The Court ’ s assessment","( i ) General principles","87. The words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008).","88. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts)). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96; Gillan and Quinton, cited above, § 77; and Ivashchenko v. Russia, no. 61064/10, § 73, 13 February 2018 ).","( ii ) Application of those principles to the case at hand","89. The Court notes that the power in question has a legal basis in domestic law, namely Schedule 7 of TACT and the accompanying Code of Practice. In view of the applicant ’ s complaint, the principal question for the Court to address in the present case is whether, at the time the applicant was stopped at East Midlands airport, the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life. In making this assessment, it will consider the following factors: the geographic and temporal scope of the powers; the discretion afforded to the authorities in deciding if and when to exercise the powers; any curtailment on the interference occasioned by the exercise of the powers; the possibility of judicially reviewing the exercise of the powers; and any independent oversight of the use of the powers.","( α ) The geographic and temporal scope of the powers","90. The Schedule 7 powers can only be exercised by police officers at ports and border controls. The majority of the Supreme Court considered that this restriction distinguished the case from Gillan and Quinton, cited above, since the “stop and search powers” under section 44 of TACT could be exercised throughout the whole of the United Kingdom (see paragraph 27 above). However, Lord Kerr, in his dissenting opinion, considered that the Schedule 7 powers were much broader than the “stop and search” powers, since they were not subject to any express authorisation and they were not temporally or geographically limited. As a consequence, they had the potential to affect the 245 million people who pass through the United Kingdom ’ s ports and borders every year (see paragraphs 33 - 36 above).","91. Although the Court sees the logic behind the comparison to Gillan and Quinton, the important question is not whether the Schedule 7 powers are wider or narrower than the “stop and search” powers, or how the safeguards which curtail the exercise of both powers measure up, but rather whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference.","92. In this regard, while the Court would accept that in view of their permanent application at all ports and border controls, the Schedule 7 powers are wide in scope, this does not, in itself, run contrary to the principle of legality. The Court has expressly acknowledged both the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012). ) and the importance of controlling the international movement of terrorists (see, for example, McVeigh, O ’ Neill and Evans v United Kingdom (1981) 5 EHRR 71, § 192). Ports and border controls will inevitably provide a crucial focal point for detecting and preventing the movement of terrorists and/or foiling terrorist attacks. Indeed, all States operate systems of immigration and customs control at their ports and borders, and while these controls are different in nature to the Schedule 7 powers, it is nevertheless the case that all persons crossing international borders can expect to be subject to a certain level of scrutiny.","( β ) The discretion afforded to the authorities in deciding if and when to exercise the powers","93. The Schedule 7 powers may be exercised by examining officers for the purpose of determining whether a person is concerned in the commission, preparation or instigation of acts of terrorism. Examining officers therefore enjoy a very broad discretion, since “terrorism” is widely defined (see R. v. Gul, at paragraphs 71 - 72 above ) and the Schedule 7 powers may be exercised whether or not he or she has objective or subjective grounds for suspecting that a person is concerned in the commission, preparation or instigation of acts of terrorism.","94. In Gillan and Quinton the Court criticised the fact that officers could exercise the stop and search powers without having to demonstrate the existence of any reasonable suspicion (see Gillan and Quinton, cited above, § 83 ). Similarly, in Ivashchenko the Court was concerned by the fact that the customs authorities had been able to examine and copy data contained on the applicant ’ s laptop and storage devices without at least “some notion of a reasonable suspicion” that he had committed an offence ( Ivashchenko, cited above, §§ 84-85). A requirement of reasonable suspicion is therefore an important consideration in assessing the lawfulness of a power to stop and question or search a person; however, there is nothing in either case to suggest that the existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, this is an assessment for the Court to make having regard to the operation of the scheme as a whole and, for the reasons set out below, it does not consider that the absence of a requirement of reasonable suspicion by itself rendered the exercise of the power in the applicant ’ s case unlawful within the meaning of Article 8 § 2 of the Convention.","95. First of all, the Court has repeatedly held that the national authorities enjoy a wide margin of appreciation in matters relating to national security (see, among many examples, Konstantin Markin v. Russia [GC], no. 30078/06, § 134, ECHR 2012 (extracts)) and there is clear evidence that the Schedule 7 powers have been of real value in protecting national security. According to the Independent Reviewer, they were “instrumental” in “securing evidence which assists in the conviction of terrorists” (see paragraph 48 above). While the majority of examinations which led to convictions were intelligence-led, examinations could be useful even if they did not lead to a conviction. Intelligence gathered during the examinations contributed to a rich picture of the terrorist threat to the United Kingdom and its interests abroad, and could assist in the disruption or deterrence of terrorists ’ plans (see paragraph 48 above). Were “reasonable suspicion” to be required, terrorists could avoid the deterrent threat of Schedule 7 by using people who had not previously attracted the attention of the police (“clean skins”); and the mere fact of a stop could alert a person to the existence of surveillance (see paragraph 49 above).","96. Secondly, it is important to distinguish between the two distinct Schedule 7 powers, being the power to question and search a person; and the power to detain a person. As the power to detain would, under normal circumstances, entail a greater interference with a person ’ s rights, and therefore has greater potential for abuse, it may well have to be accompanied by more stringent safeguards. However, as the applicant in the present case was not formally detained, the Court must limit its examination to the lawfulness of the power to question and search.","97. Thirdly, the Court considers it relevant that the Schedule 7 power – and in particular the power to question and search – is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country. While there was no requirement of “reasonable suspicion”, guidance was nevertheless provided to examining officers which attempted to clarify when the discretion could be exercised. According to the Guidance Notes accompanying the Code of Practice in force at the time of the applicant ’ s examination, the power had to be used proportionately and officers had to take particular care to ensure that the selection of persons for examination was not solely based on their ethnic background or religion. Instead, the decision to exercise Schedule 7 powers had to be based on the threat posed by the various active terrorist groups and be based on a number of considerations, including the following factors: known or suspected sources of terrorism; individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected, and supporters or sponsors of such activity who are known or suspected; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; the means of travel (and documentation) that a group or individuals involved in terrorist activity could use; and emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity (see paragraph 42 above). While not relevant to the Court ’ s assessment of the case at hand, it nevertheless notes that pursuant to the Anti-Social Behaviour, Crime and Policing Act 2014 and the new Code of Practice, examining officers now have to be accredited by their chief officer as having met a national standard in the use of the powers (see paragraphs 54 ‑ 55 above).","98. Fourthly, the reports of the Independent Reviewer would suggest that the powers are not, in fact, being abused (see paragraphs 44 - 51 and 56 ‑ 61 above). In 2011, only 0.03% of passengers travelling through ports were examined under Schedule 7. In the following years, the Independent Reviewer noted a significant decline in the total number of examinations. Furthermore, although persons of minority ethnic communities, and especially those of Asian and North African ethnicity, were stopped more often than their percentage in the travelling population would objectively warrant, as noted by the Independent Reviewer, this did not mean that examinations were misdirected. Therefore, although the Independent Reviewer recommended vigilance, he considered that the figures in themselves provided no basis for criticism of the police.","99. In light of the foregoing, the Court considers it necessary to assess whether the other safeguards in respect of the exercise of the Schedule 7 powers are sufficient to protect individuals from its arbitrary exercise.","( γ ) Any curtailment on the interference occasioned by the exercise of the powers","100. At the time the applicant was examined, Schedule 7 provided that a person detained under that power had to be released not later than the end of a period of nine hours from the beginning of the examination (see paragraph 40 above). The Code of Practice further required that the examining officer keep the length of the examination “to the minimum that is practicable”. At the beginning of the examination, the examining officer had to explain to the person concerned either verbally or in writing that she was being examined under Schedule 7 of TACT and that the officer had the power to detain her should she refuse to co-operate and insist on leaving. A record had to be kept of the examination; at the port, if the examination lasted less than one hour, or centrally, if it lasted longer (see paragraph 42 above). However, despite the fact that persons being examined were compelled to answer the questions asked, neither TACT nor the Code of Practice in force at the relevant time made any provision for a person being examined (who was not detained) to have a solicitor in attendance. Consequently, persons could be subjected to examination for up to nine hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer.","101. The legislation has since been amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (see paragraphs 52 - 53 above), which requires examining officers to take a person into detention if they wish to examine him or her for longer than an hour. It further provides that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters, and gives the person being examined the right (insofar as practical) to have a named person informed of his or her whereabouts. The 2014 Act also reduced the maximum period of detention from nine hours to six hours and required the periodic review of detention by a review officer.","102. Nevertheless, the Court must have regard to the legislation in force at the time the applicant was examined pursuant to the Schedule 7 powers, when the only safeguard capable of curtailing the interference occasioned by the exercise of those powers was the requirement that she be released not later than the end of a period of nine hours from the beginning of the examination.","( δ ) The possibility of judicial review of the exercise of the powers","103. While it is possible to seek judicial review the exercise of the Schedule 7 powers, the applicant argues that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” would make it difficult, if not impossible, to prove that the power was improperly exercised. The Court accepted a similar argument in Gillan and Quinton, finding that the right of an individual to challenge a stop and search by way of judicial review or an action in damages had clear limitations ( Gillan and Quinton, cited above, § 86).","104. Those limitations would appear to be equally relevant to challenges to the Schedule 7 power by way of judicial review. In R (Elostra) the claimant successfully challenged his detention under Schedule 7 on the basis that the police officers had not waited for his solicitor to arrive at the airport before beginning to question him, as required by the Code of Practice. The judge therefore found that the officer ’ s actions had been unlawful (see paragraph 70 above). However, challenges to the lawfulness of the decision to exercise the Schedule 7 power would appear to have been less successful. In R ( David Miranda), the Court of Appeal accepted that the detention of a journalist ’ s spouse at the request of the security service, which was principally concerned with determining whether the material he carried posed a threat to national security, was nevertheless lawful since before agreeing to the stop the police confirmed that the statutory grounds had been made out. In reaching this conclusion, the court observed that “Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility” (see paragraph 65 - 68 above). While in R(CC) the court found that the examining officers had not exercised the power for the purpose of determining whether the individual appeared to be a terrorist or not, the judge remarked that it was “a very rare case” since the powers were “properly given a wide construction” (see paragraph 69 above).","105. It would therefore appear that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” has made it difficult for persons to have the lawfulness of the decision to exercise the power judicially reviewed.","( ε ) Any independent oversight of the use of the powers.","106. The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. The Independent Reviewer, a role that has existed since the late 1970s, is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the United Kingdom. These reports are laid before Parliament, to inform the public and political debate on anti-terrorism law in the United Kingdom. The significance of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information and personnel.","107. The oversight provided by the Independent Reviewer should not, therefore, be underestimated. Nevertheless, his reviews are invariably ad ‑ hoc and insofar as he is able to review a selection of examination records, he would not be in a position to assess the lawfulness of the purpose for the stop. Moreover, while his reports are scrutinised at the highest level (the Government in fact publishes its formal response to his annual reports), a number of important recommendations have not been implemented, despite having received support from the Joint Committee on Human Rights and the Home Affairs Select Committee. In particular, the Independent Reviewer has repeatedly called for the introduction of a suspicion requirement for the exercise of certain Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; and criticised the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings (see paragraphs 57 ‑ 60 above). Although the Counter-Terrorism and Border Security Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT (see paragraph 63 above), the Government have not introduced any suspicion threshold for the exercise of the power to detain.","108. Therefore, while of considerable value, the Court does not consider that the oversight of the Independent Reviewer is capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime.","( iii ) Conclusion","109. In conclusion, the Court considers that when the applicant was stopped at East Midlands airport in January 2011, the power to examine persons under Schedule 7 of TACT was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. While it does not consider the absence of any requirement of “reasonable suspicion” alone to have been fatal to the lawfulness of the regime, when considered together with the fact that the examination could continue for up to nine hours, during which time the person would be compelled to answer questions without any right to have a lawyer present, and the possibility of judicially reviewing the exercise of the power would be limited, the Court finds that the Schedule 7 powers were not “in accordance with the law”. It follows that there has been a violation of Article 8 of the Convention.","110. In reaching this conclusion the Court has only had regard to the Schedule 7 power to examine as it was at the time the applicant was stopped. It has not considered the amendments which flowed from the Anti ‑ Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person ’ s rights under the Convention.","II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION","111. The applicant further complained that she had been deprived of her liberty within the meaning of Article 5 § 1 of the Convention, and that the deprivation gave rise to a violation of Article 5 of the Convention as it was not “in accordance with the law”.","112. The Government contested that argument.","113. As this complaint is based on the same facts as the applicant ’ s Article 8 complaint, it must also be declared admissible. However, having regard to the finding relating to the Article 8 complaint (see paragraphs 109 ‑ 110 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 (see, for example, Gillan and Quinton, cited above, § 57).","III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION","114. The applicant further complained that the exercise of coercive police powers to compel her to provide answers that might have been incriminating, without any prior and effective assurance that her answers would not be used against her in a criminal trial, violated her rights under Article 6 of the Convention.","115. Article 6 of the Convention provides, insofar as relevant:","“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”","116. The Government argued that the process of examining the applicant was entirely removed from any criminal investigation. A Schedule 7 investigation was not an investigation into an offence that had been committed; the applicant was not notified that she was subject to any criminal allegation; and no criminal proceedings were brought. Consequently, no issue arose under Article 6.","117. The applicant contended that compulsory questioning by police officers engaged the right to a fair trial under Article 6 of the Convention, since the purpose of the investigation was to enable the police to determine whether the person being questioned appeared to be a “terrorist”. Although the definition of “terrorist” was extremely broad, in most cases such an inquiry would include an investigation into whether someone had personal involvement in criminal offences. Moreover, the Schedule 7 powers had the substantive characteristics of a police power to investigate criminal activity.","118. The applicant further submitted that there had been a violation of Article 6 on account of the degree of coercion and the absence of any statutory safeguards relating to the subsequent use of the material obtained from her, which extinguished the very essence of the privilege against self ‑ incrimination. She did not complain about her subsequent prosecution for failing to comply with a duty under Schedule 7; rather, her complaint concerned the absence of safeguards preventing material obtained during a Schedule 7 examination from being used in any possible subsequent prosecution for a terrorism-related offence.","119. The Court has repeatedly held that the protections afforded by Article 6 § 1 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 and Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017.","120. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “ charged with a criminal offence ” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect ( Simeonovi, cited above, § 111).","121. None of those events occurred in the present case. The applicant was neither arrested nor charged with any (terrorism-related) criminal offence. Although she was questioned for the purpose of determining whether she appeared to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism, this cannot, of itself, engage Article 6 of the Convention. First of all, the Schedule 7 power did not require police officers to have “reasonable suspicion” that she was concerned in the commission, preparation or instigation of acts of terrorism. As such, the mere fact of her selection for examination could not be understood as an indication that she herself was suspected of involvement in any criminal offence. On the contrary, the applicant was explicitly told by police officers that she was not under arrest and that the police did not suspect her of being a terrorist (see paragraph 8 above). Moreover, the questions put to her were general in nature and did not relate to her involvement in any criminal offence (see paragraph 11 above). The Court has already noted that the Schedule 7 power is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country (see paragraph 97 above). While it would not exclude the possibility that it could be exercised in such a way as to engage Article 6 of the Convention, there is no evidence to suggest that it was so exercised in the present case.","122. In light of the forgoing, the Court does not consider that Article 6 of the Convention was engaged by the applicant ’ s examination under Schedule 7 of TACT. It does not consider it necessary to examine the second aspect of the applicant ’ s complaint, which concerned the absence of any safeguards relating to the subsequent use of material obtained in interview. Although it would not exclude the possibility that Article 6 could be engaged by the use of any statements made during a Schedule 7 examination in subsequent criminal proceedings (see Saunders v. the United Kingdom, 17 December 1996, § 67, Reports of Judgments and Decisions 1996 ‑ VI ), that was not the case here.","123. Accordingly, the applicant ’ s Article 6 complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the failing to comply with a duty under Schedule 7 meaning of Article 35 § 3 (a) of the Convention.","IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION","124. Article 41 of the Convention provides:","“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”","A. Damage","125. The applicant seeks “just satisfaction commensurate to any finding of a violation of [her Article 8, 5 and 6 rights] by the Court”. She has not, therefore, expressly claimed any pecuniary or non-pecuniary damage (see, by way of comparison, Mihu v. Romania, no. 36903/13, §§ 82-84, 1 March 2016). Nevertheless, the Court may exercise a degree of flexibility in respect of non-pecuniary damage, by, for instance, agreeing to examine claims for which applicants did not quantify the amount, instead “leaving it to the Court ’ s discretion” (see, among many other examples, Guzzardi v. Italy, 6 November 1980, §§ 112-14, Series A no. 39; Frumkin v. Russia, no. 74568/12, §§ 180 ‑ 82, 5 January 2016; Svetlana Vasilyeva v. Russia, no. 10775/09, §§ 43-45, 5 April 2016; Sürer v. Turkey, no. 20184/06, §§ 49 ‑ 51, 31 May 2016).","126. That being said, the Court does not consider it appropriate to make an award in respect of non-pecuniary damage in the present case. First of all, it has found a violation of Article 8 only. Secondly, as the breach of Article 8 was linked to the quality of the law in force at the relevant time, it has not been called upon to assess the proportionality of the applicant ’ s examination. Thirdly, it notes that the applicant does not contend that in her case the Schedule 7 power was exercised in an arbitrary or discriminatory fashion.","B. Costs and expenses","127. The applicant also claimed GBP 37,196.46 for the costs and expenses incurred before the Court. This figure is comprised of GBP 15,624 for Senior Counsel; GBP 14,545 for two junior counsel; GBP 6,985.51 for the solicitor; and GBP 38.95 for postage.","128. The Government argued that it had not been shown that these costs had been actually and necessarily incurred. The relevant legal issues had already been argued in the Supreme Court; there was no sufficient basis for three counsel to be instructed, together with a solicitor; and the applicant ’ s observations were not of such length of complexity to justify the amounts claimed.","129. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 covering costs under all heads.","C. Default interest","130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."],"string":"[\n \"II. RELEVANT DOMESTIC LAW AND PRACTICE\",\n \"A. Terrorism Act 2000 (“TACT”) (as in force at the relevant time)\",\n \"39. Section 40(1)(b) of TACT defines a “terrorist” so as to include a person who has been concerned in the commission, preparation or instigation of acts of terrorism. Section 1 of TACT defines “terrorism” as follows:\",\n \"“(1) In this Act “terrorism” means the use or threat of action where—\",\n \"(a) the action falls within subsection (2),\",\n \"(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and\",\n \"(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.\",\n \"(2) Action falls within this subsection if it—\",\n \"(a) involves serious violence against a person,\",\n \"(b) involves serious damage to property,\",\n \"(c) endangers a person ’ s life, other than that of the person committing the action,\",\n \"(d) creates a serious risk to the health or safety of the public or a section of the public, or\",\n \"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.\",\n \"(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.\",\n \"(4) In this section—\",\n \"(a) “action” includes action outside the United Kingdom,\",\n \"(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,\",\n \"(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and\",\n \"(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.\",\n \"(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”\",\n \"40. Schedule 7 of TACT, which is headed “Port and Border Controls”, provided as relevant:\",\n \"“Power to stop, question and detain\",\n \"2.—(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).\",\n \"(2) This paragraph applies to a person if—\",\n \"(a) he is at a port or in the border area, and\",\n \"(b) the examining officer believes that the person ’ s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland.\",\n \"(3) This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland.\",\n \"(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).\",\n \"... ... ...\",\n \"6.—(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—\",\n \"(a) stop a person or vehicle;\",\n \"(b) detain a person.\",\n \"... ... ...\",\n \"(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.\",\n \"(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.\",\n \"... ... ...\",\n \"8(1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—\",\n \"(a) search the person;\",\n \"(b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;\",\n \"(c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;\",\n \"(d) search a ship or aircraft for anything falling within paragraph (b).\",\n \"... ... ...\",\n \"(3) A search of a person under this paragraph must be carried out by someone of the same sex.\",\n \"... ... ...\",\n \"Offences\",\n \"18.—(1) A person commits an offence if he—\",\n \"(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule,\",\n \"(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or\",\n \"(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.\",\n \"(2) A person guilty of an offence under this paragraph shall be liable on summary conviction to—\",\n \"(a) imprisonment for a term not exceeding three months,\",\n \"(b) a fine not exceeding level 4 on the standard scale, or\",\n \"(c) both .”\",\n \"41. Pursuant to Schedule 8 a person detained under Schedule 7 acquires rights which he or she did not have prior to detention (for example, to have a named person informed, and to consult a solicitor) but also obligations (for example, to give fingerprints, non-intimate and intimate DNA samples).\",\n \"B. Home Office (2009) Examining Officers under the Terrorism Act 2000 Code of Practice (“the Code”)\",\n \"42. The Code, which is issued by the Secretary of State for the Home Department pursuant to paragraph 6(1) of Schedule 14 of TACT and is a public document admissible in evidence in criminal and civil proceedings, contains detailed provisions as to the exercise by examining officers of their functions under that legislation. It provides, as relevant:\",\n \"“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.\",\n \"10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the powers in such a way as to minimise causing embarrassment or offence to a person who is being questioned.\",\n \"Notes for guidance on paragraphs 9 and 10 [in bold in the original]\",\n \"The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity. The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.\",\n \"Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them.\",\n \"Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be exercised arbitrarily. An examining officer ’ s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as:\",\n \"Selections for examinations should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person ’ s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination.\",\n \"Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other purpose. An examination must cease and the examinee must be informed that it has ended once it has been ascertained that the person examined does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism.\",\n \"Unless the examining officer arrests the person using powers under the Act, a person being examined under Schedule 7 need not be cautioned.\",\n \"11. The examining officer should explain to the person concerned either verbally or in writing that they are being examined under Schedule 7 of the Terrorism Act 2000 and that the officer has the power to detain that person should they refuse to co-operate and insist on leaving. The examining officer should keep the length of the examination to the minimum that is practicable. An examination begins after a person has been stopped and screening questions have been asked. Once an examination lasts for one hour, an explanatory notice of examination, a TACT 1 form ( ... ), must be served by the examining officer on the person. The contents of the TACT 1 form should be explained to the person by the examining officer. Where a person ’ s examination is protracted or where it is thought likely to be protracted, the examining officer should make arrangements to ensure that the person has the opportunity to have refreshments at regular intervals.\",\n \"... ... ...\",\n \"Records\",\n \"14. Records of all examinations should be kept locally at a port, border area or police station in the event of a complaint or query but in addition a record of all exams over an hour should be held centrally for statistical purposes. The record should include the name of the person examined; the total duration the examination from the start until completion; whether the person was detained and if so when detention began and ended.\",\n \"15. Records of examination that last under an hour or in the case of a child of any duration should be kept at the port, border area or at a police station for reference purposes in the event of a complaint or query. Records of examination that last over an hour, however, should be kept centrally for statistical purposes.\",\n \"... ... ...\",\n \"Searches\",\n \"28. An examining officer may search a person who is being questioned for the purpose set out in paragraph 9 above, and their belongings, including baggage. He may also under paragraph 10 authorise another person to carry out a search on his behalf. As under paragraph 10 above every reasonable effort should be made to reduce to a minimum the potential embarrassment or offence that may be caused to a person being searched. ...\",\n \"29. A personal search should only be carried out by someone of the same sex. ”\",\n \"C. 2009 National Policing Improvement (“NPIA”) Practice Advice (“the Practice Advice”)\",\n \"43. The Foreword to the Practice Advice provides:\",\n \"“Special Branch ports officers carry a significant responsibility as part of the police contribution to ensuring National Security. It is vital that they are equipped with powers that enable them to carry out their role effectively and efficiently.\",\n \"Schedule 7 ... provides these officers with unique powers to examine people who pass through the United Kingdom ’ s borders. It is essential that they are applied professionally so that the police maintain the confidence of all sections of the public. Any misuse of these powers could have a far-reaching negative impact on police community relations and hinder progress made in support of the Government ’ s counter-terrorism strategy.”\",\n \"D. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2011\",\n \"44. The report provided the following figures concerning the frequency of the exercise of Schedule 7 powers:\",\n \"“In the year to 31 March 2011, over the UK as a whole:\",\n \"(a) There was a total of 85,423 Schedule 7 examinations, 20% down on 2009/10.\",\n \"(b) 73,909 of those examinations were on people, and 11,514 on unaccompanied freight.\",\n \"(c) 2,291 people (3% of those examined - a similar percentage to 2009/10) were kept for over an hour.\",\n \"(d) 915 people were detained after examination (1% of those examined, up from 486 in 2009/10).\",\n \"(e) 769 people had biometric samples taken.\",\n \"(f) There were 31 counter-terrorism or national security-related arrests. However 25 of those were in a single force area, reflecting that force ’ s policy (since amended) as regards the action they take for those withholding or giving of false information during an examination.\",\n \"(g) 101 cash seizures by the police thought to relate to counter-terrorism were made, amounting in total to £844,709, mostly at airports.\",\n \"These figures have to be set against the numbers of passengers travelling through UK airports (213 million), UK seaports (22 million) and UK international rail ports (9.5 million) during the year. In total, only 0.03% of passengers were examined under Schedule 7 in 2010/11.”\",\n \"45. With regard to the ethnic origin of the persons stopped, the report summarised the data in tabular form:\",\n \"2010/11\",\n \"White\",\n \"Black\",\n \"Asian\",\n \"Other\",\n \"Mixed or not stated\",\n \"Examined < 1 hour\",\n \"46%\",\n \"8%\",\n \"26%\",\n \"16%\",\n \"4%\",\n \"Examined > 1 hour\",\n \"14%\",\n \"15%\",\n \"45%\",\n \"20%\",\n \"6%\",\n \"Detained\",\n \"8%\",\n \"21%\",\n \"45%\",\n \"21%\",\n \"5%\",\n \"Biometrics\",\n \"7%\",\n \"21%\",\n \"46%\",\n \"20%\",\n \"6%\",\n \"46. The report continued:\",\n \"“No ethnicity data are collected for port travellers generally. It may well be that the proportion of ethnic minorities among those using UK ports and airports for travel is higher than the proportion in the UK population as a whole. It is most unlikely however that white people are in a minority among travellers. Detentions (plainly) and examinations (almost certainly) are thus imposed on members of minority ethnic communities – particularly those of Asian and other (including North African) ethnicity – to a greater extent than their presence in the travelling population would seem to warrant.\",\n \"That fact alone does not mean that examinations and detentions are misdirected. As I argued in my last annual report (paras 9.14-9.21), Schedule 7 should not be used (as section 44 stop and search was from time to time used) in order to produce a racial balance in the statistics: that would be the antithesis of intelligence-led policing. The proportionate application of Schedule 7 is achieved by matching its application to the terrorist threat, rather than to the population as a whole.\",\n \"There is however no room for complacency. The ethnic breakdown of the terrorist threat is hard to pin down: but ... [e]ven in Great Britain ... white people constitute approximately a quarter of those arrested and charged with terrorist offences – a proportion that would no doubt rise considerably if Northern Ireland data were included. ...\",\n \"The ethnicity figures provide, in themselves, no basis for criticism of the police. They do however underline the need for vigilance, particularly when some minority communities are understandably sensitive about the application of Schedule 7. It is important for all involved with the application of Schedule 7 to remember that:\",\n \"(a) perceived ethnic background or religion should not be used, alone or in combination with each other, as the sole reason for selecting a person for examination;\",\n \"(b) UK terrorists are of all colours: a substantial proportion of them (even outside Northern Ireland) are white; and that\",\n \"(c) apparently innocuous decisions (for example, to check the plane from Pakistan rather than the plane from Canada) may reflect unconscious racial bias.”\",\n \"47. Although the report indicated that certain groups (most notably Muslims) felt that they were being singled out, between 1 July 2011 and 23 May 2012 only twenty complaints had been received.\",\n \"48. In concluding that the utility of Schedule 7 powers was not in doubt, the report noted:\",\n \"“Schedule 7 examinations have certainly been instrumental, first of all, in securing evidence which assists in the conviction of terrorists. That evidence does not take the form of answers given in interview (which because of the compulsion to answer would almost certainly be inadmissible in any criminal trial) but rather consists of physical possessions or the contents of mobile phones, laptops and pen drives.\",\n \"It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the copper ’ s nose. Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.\",\n \"...\",\n \"Secondly, Schedule 7 examinations have been useful in yielding intelligence about the terrorist threat. Sometimes words spoken in interview, though not themselves admissible as evidence, may start a train of enquiry that leads to a prosecution. Of great importance, however, is intelligence of a more indirect kind – which may come from intelligence-led stops or from stops on the basis of risk factors. Schedule 7 examinations are perhaps most prized by the police and security services for their ability to contribute to a rich picture of the terrorist threat to the United Kingdom and UK interests abroad.\",\n \"...\",\n \"Thirdly, Schedule 7 examinations may assist disruption or deterrence. Young, nervous or peripheral members of terrorist networks can sometimes be dissuaded from plans e.g. to travel abroad for training by the realisation – communicated by a port stop – that the police have an idea of who they are and what they are about.\",\n \"...\",\n \"Finally, a Schedule 7 examination – once it has been completed, and this has been made clear to the person examined – may serve as an opportunity for the identification of those who may agree to be recruited as informants.”\",\n \"E. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2012\",\n \"49. In this report the Independent Reviewer specifically addressed whether Schedule 7 should include a requirement of “reasonable suspicion”. In particular, he sought to explore with police and intelligence services the extent to which stops which were not intelligence-led or otherwise based on suspicion were useful. He observed that general arguments for a no ‑ suspicion power included the following:\",\n \"“Were reasonable suspicion (or even just subjective suspicion) to be required for all stops:\",\n \"(a) The substantial deterrent threat of Schedule 7 in its current form could be avoided altogether by using “clean skins” to transport the tools of the terrorist ’ s trade.\",\n \"(b) Anybody who was stopped would know that the police had evidence on which to suspect them: the mere fact of a stop could thus alert the traveller to the existence of surveillance, whether human or technical, with consequences that could include the ending of effective surveillance and the endangering of a human source.\",\n \"(c) The authorities would be unable to stop and question the travelling companion(s) of a person whom they suspect of involvement in terrorism: the mere fact of travelling with a suspected person will not be enough to constitute a reasonable suspicion of involvement in terrorism.”\",\n \"50. The Independent Reviewer was briefed by MI5 and by the police on a number of no-suspicion stops in recent months which had brought significant benefits in terms of disrupting potential terrorists. These included both untargeted and targeted examinations, since there could be intelligence on somebody sufficient to merit a stop without the threshold of reasonable suspicion being reached. While he accepted that a number of such stops had been “of real value in protecting national security”, he recognised that that did not automatically make them proportionate. He considered this was ultimately a matter for Parliament, but noted that any requirement of suspicion would\",\n \"“reduce the potential efficacy of Schedule 7. Equally, however, they would give a measure of protection to persons who may currently be selected for these attentions without even being suspected of any crime.”\",\n \"51. The Independent Reviewer also addressed the compulsion to answer questions under Schedule 7. In this regard, he indicated that:\",\n \"“Compulsion to answer questions under Schedule 7 is of the essence of the power, its utility beyond question when it comes not only to identifying people as terrorists but to gathering intelligence – an important by-product of the Schedule 7 examination, albeit one that can never serve as the prime motive for a stop.\",\n \"Such a strong power requires strong safeguards on the use to which answers can be put. At the least, it is essential that answers are not used in proceedings where they could incriminate the person who gave them. I believe it to be generally accepted that answers given under compulsion in Schedule 7 interviews could never be used in a criminal trial ... ”\",\n \"F. The Anti-Social Behaviour, Crime and Policing Act 2014\",\n \"52. The Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) made several changes to the Schedule 7 powers. Most notably, it required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; it reduced the maximum period of detention from nine hours to six hours; it introduced a requirement for the periodic review of detention by a review officer; and it required that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters.\",\n \"53. The 2014 Act further required that examining officers should be designated for this purpose by the Secretary of State and a Code of Practice should be issued which provided for the training to be undertaken by them.\",\n \"54. A new version of the Code of Practice was promulgated in July 2014 to reflect those amendments and also the judgment of the Supreme Court in the applicant ’ s case. In particular, it provided that the Schedule 7 powers could only be used by police officers who had been accredited by their chief officer as having met a national standard in the use of the powers; and it confirmed that the exercise of the powers should not be arbitrary.\",\n \"55. It further provided that detained persons were entitled to consult a solicitor in private at any time, and that the examining officer had to postpone questioning until the person had consulted a solicitor in private, unless the examining officer reasonably believed that postponing questioning would be likely to prejudice the purpose of the examination.\",\n \"G. Subsequent annual reports of the Independent Reviewer of Terrorism Legislation\",\n \"1. 2013\",\n \"56. In his review of the operation of the terrorism legislation in 2013, the Independent Reviewer made some remarks about the apparent “considerable ‘ disproportionality ’ ” between the ethnic classification of those examined and detained under Schedule 7 and the ethnic classification of the port-using (or airport-using) public. In particular, he noted that the Schedule 7 power was not intended to be exercised randomly but rather to gain information about persons concerned in the commission, preparation or instigation of acts of terrorism. As terrorists were not, at any one moment in time, evenly distributed across the various ethnic groups, if the power was being skilfully used, one would expect its exercise to be ethnically “proportionate” not to the United Kingdom population, nor even to the airport-using population, but rather to the terrorist population that travels through United Kingdom ports. In conclusion he stated that he had no reason to believe that Schedule 7 powers were being exercised in a racially discriminatory manner.\",\n \"57. Although the Independent Reviewer welcomed the amendments being introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, he identified three issues he had previously addressed which remained outstanding:\",\n \"“ a) the fact that no suspicion is required for the exercise of most Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop;\",\n \"b) the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and\",\n \"c) the need for clear and proportionate rules governing the data taken from electronic devices. ”\",\n \"58. He recommended, inter alia, that detention should be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40(1)(b) and that detention is necessary in order to assist in determining whether he is such a person; that on periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40(1)(b), and that detention continues to be necessary in order to assist in determining whether he is such a person; and that a statutory bar should be introduced to the introduction of Schedule 7 admissions in a subsequent criminal trial.\",\n \"59. Finally, he expressed his belief that his recommendations would improve fairness and accountability without reducing the efficacy of the Schedule 7 powers or exposing the public to additional risk from terrorism. He observed that his recommendations had been endorsed by the Joint Committee on Human rights, which fully agreed with them, save as to the thresholds for detention and for copying data, which it continued to advise should require reasonable suspicion; and the Home Affairs Select Committee, which expressed the view that the introduction of a suspicion test for the ancillary powers, the use of answers given under compulsion in a criminal court and the treatment of legally privileged material, excluded material and special procedure material should be subject to further review.\",\n \"2. 2015\",\n \"60. In his review of the operation of the terrorism legislation in 2015, the Independent Reviewer repeated the following recommendations:\",\n \"“(a) that a suspicion threshold should be applied to detention and to the copying of data from personal electronic devices;\",\n \"(b) that safeguards should be provided in respect of legally privileged material, excluded material and special procedure material;\",\n \"(c) that safeguards should be applied to private electronic data gathered under Schedule 7; and\",\n \"(d) that there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial.”\",\n \"3. 2016 and 201 7\",\n \"61. Finally, in his review of the operation of the terrorism legislation in 201 7, the Independent Reviewer indicated that while there had been a significant decline in the total number of examinations in recent years, there had been an increase in the number of “resultant detentions”. According to the Independent Reviewer, this was not a particularly worrying pattern, and was likely due to better capture of passenger manifest data across the United Kingdom, and better use of targeting techniques.\",\n \"H. The Counter-Terrorism and Border Security Bill\",\n \"62. The purpose of the Bill, which was introduced on 5 June 2018, is to “make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes”.\",\n \"63. The Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT.\",\n \"64. Schedule 3 of the Bill further contains a power – modelled on Schedule 7 of TACT – for “examining officers” to question any person who is in a port in the United Kingdom or in the Northern Ireland border area for the purpose of determining whether the person appears to be, or has been, engaged in “hostile activity”. As with Schedule 7, the power to examine a person can be exercised whether or not there are grounds for suspecting that a person is engaged in hostile activity.\",\n \"I. Relevant case-law\",\n \"1. R (David Miranda) v. Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2016] EWCA Civ 6\",\n \"65. Mr Miranda is the spouse of a journalist who had received encrypted material from Edward Snowden. The data, which contained United Kingdom intelligence material, had been stolen from the National Security Agency. Mr Miranda was detained for nine hours by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 of TACT. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. The Security Service had asked the police to make the stop, with the principal objective of mitigating the risk to national security that the material in Mr Miranda ’ s possession might pose.\",\n \"66. In judicial review proceedings Mr Miranda claimed that the use of the Schedule 7 power against him was unlawful because (i) the power was exercised for a purpose not permitted by the statute; and (ii) its use constituted a disproportionate interference with his rights under Articles 5, 8 and 10 of the Convention. He also claimed that the use of the power was incompatible with the rights guaranteed by Article 10 of the Convention in relation to journalistic material.\",\n \"67. The Court of Appeal accepted that the police exercised the power for its own purpose of determining whether Mr Miranda appeared to be a person falling within section 40(1)(b) of TACT. The fact that the exercise of the Schedule 7 power also promoted the Security Service ’ s different (but overlapping) purpose did not mean that the power was not exercised for the Schedule 7 purpose. In this regard, the police had clearly recognised that they could not act as a conduit for the furtherance of the Security Service ’ s purposes, and had had to be persuaded that the conditions for a lawful Schedule 7 stop had been met before they agreed to proceed. Moreover, as Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility, the court accepted that the power was exercised for a lawful purpose. In assessing proportionality, the court accepted that the Schedule 7 stop was an interference with press freedom, but held that the compelling national security interests clearly outweighed Mr Miranda ’ s Article 10 rights on the facts of the case.\",\n \"68. However, with regard to the compatibility of the Schedule 7 powers with Article 10 of the Convention, the court found that the constraints on the exercise of the powers did not afford effective protection of journalists ’ Article 10 rights. The court ’ s central concern was that disclosure of journalistic material (whether or not it involved the identification of a journalist ’ s source) undermined the confidentiality that was inherent in such material and which was necessary to avoid the chilling effect of disclosure and to protect Article 10 rights. If journalists and their sources could have no expectation of confidentiality, they might decide against providing information on sensitive matters of public interest. Consequently, it was of little or no relevance that the Schedule 7 powers could only be exercised in a confined geographical area or that a person could not be detained for longer than nine hours. Similarly, while the fact that the powers had to be exercised rationally, proportionately and in good faith provided a degree of protection, the only safeguard against the powers not being so exercised was the possibility of judicial review proceedings. However, while judicial review might be an adequate safeguard in the context of Articles 5 and 8, it would provide little protection against the damage done if journalistic material was disclosed and used in circumstances where this should not happen.\",\n \"2. R (CC) v. Commissioner of Police of the Metropolis and another [2012] 1 WLR 1913 and R (on the application of Elostra) v. Commissioner of Police of the Metropolis [2014] 1 WLR 239\",\n \"69. In R(CC) the High Court upheld a challenge by an individual against the use of the Schedule 7 power on the basis that the examining officers were not in fact exercising it for the purpose of determining whether he appeared to be a terrorist. The claimant was a British national who had been arrested in Somaliland and deported to the United Kingdom. In anticipation of his return, a control order was made against him. The High Court found that the Schedule 7 powers were exercised on his arrival for the purpose of getting information – untainted by any torture allegations – which might confirm the propriety of the making of the control order. According to the court, this had nothing to do with determining whether he appeared to be a terrorist in any particular way and as a consequence the power had not been used lawfully. However, in reaching this conclusion the judge remarked:\",\n \"“I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.”\",\n \"70. In R(Elostra) the High Court held that an examination under Schedule 7 which was conducted without adherence to the proper safeguards was unlawful. More particularly, it held that a person who was detained under Schedule 7 – at a police station or elsewhere – was, by virtue of the Code of Practice, entitled to insist on legal advice before answering any questions.\",\n \"3. R. v. Gul [2013] UKSC 64\",\n \"71. The principal issue in this appeal was the definition of “terrorism” in section 1 of TACT; more precisely, whether it included military attacks by non-State armed groups against national or international armed forces in a non-international armed conflict. The Supreme Court held that there was no basis for reading the natural, very wide, meaning of section 1 of TACT restrictively. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres. Moreover, the United Kingdom ’ s international obligations could not require it to define “terrorism” more narrowly, since there was no accepted definition of “terrorism” in international law.\",\n \"72. The court noted, however, that the very wide definition of “terrorism” gave rise to certain concerns. While the case did not concern the use of Schedule 7 powers, it observed that:\",\n \"“63. The second general point is that the wide definition of “terrorism” does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of ‘ terrorism ’ is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.\",\n \"64. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in ports and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e. that he has ‘ committed an offence ’, or he ‘ is or has been concerned in the commission, preparation or instigation of acts of terrorism ’ ), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection. On this appeal, we are not, of course, directly concerned with that issue in this case. But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty.”\",\n \"THE LAW\",\n \"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\",\n \"73. The applicant complained that the exercise of Schedule 7 powers breached her rights under Article 8 of the Convention, which reads as follows:\",\n \"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\",\n \"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\",\n \"74. The Government contested that argument.\",\n \"A. Admissibility\",\n \"75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\",\n \"B. Merits\",\n \"1. Whether there was an interference with the applicant ’ s rights under Article 8 of the Convention\",\n \"76. The Government accepted that, taken as a whole, the applicant ’ s examination pursuant to Schedule 7 of TACT gave rise to an interference with the right guaranteed to her under Article 8 of the Convention. In the present case, in addition to being stopped and questioned, the applicant and her luggage were searched. In Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010 (extracts) the Court held that the use of “coercive powers” to require an individual to submit to a “detailed search of his person, his clothing and his personal belongings” amounted to a clear interference with the right to respect for private life. While the Court expressly recognised the potential distinction between the “stop and search powers” under section 44 of TACT and “the search to which passengers uncomplainingly submit at airports or at the entrance of a public building” (see Gillan and Quinton, cited above, § 64), Schedule 7 powers were clearly wider that the immigration powers to which travellers might reasonably expect to be subjected. In view both of this fact, and of the Government ’ s concession, the Court would accept that there was an interference with the applicant ’ s rights under Article 8 of the Convention.\",\n \"2. Whether that interference was “in accordance with the law”\",\n \"(a) The parties ’ submissions\",\n \"( i ) The applicant\",\n \"77. The applicant submitted that the Schedule 7 powers were insufficiently circumscribed and contained inadequate safeguards to be “in accordance with the law ”. In the year of her examination, more than 68,000 people were stopped pursuant to Schedule 7. The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.\",\n \"78. More particularly, the applicant contended that the powers under the Schedule 7 regime were more intrusive than the stop and search powers under sections 44-45 of TACT, which the Court had held not to be “in accordance with the law” in Gillan and Quinton. First of all, section 44 required a senior officer to give authorisations if he thought it “expedient for the prevention of acts of terrorism”. In contrast, Schedule 7 powers applied at all times at all ports. Secondly, while powers under sections 44 and 45 were directed at the narrow purpose of “searching for articles of a kind that could be used in connection with terrorism”, Schedule 7 powers had a much broader purpose and permitted a far wider investigation into an individual ’ s activities, beliefs and movements. Thirdly, section 45 only permitted an officer to search a person ’ s outer clothing and possessions, and detention was only permitted to the extent necessary to carry out that limited search. In contrast, a Schedule 7 suspicion-less examination could take place at a police station, could permit detailed and intrusive searches, and at the time the applicant was stopped, detention could last for up to nine hours. Fourthly, section 45 contained no power to interrogate, whereas Schedule 7 permitted a lengthy interrogation that a person was required by law to answer. Finally, section 45 permitted an officer to retain items found during the search of a person only if the officer reasonably suspected that the item was intended to be used in connection with terrorism. Schedule 7, on the other hand, permitted any item to be retained for seven days for examination, regardless of whether or not such suspicion existed.\",\n \"79. According to the applicant, there were also important similarities between the section 44 and Schedule 7 powers: they both fell within the same framework of counter-terrorism legislation under TACT; they both involve intrusive measures which might be used without subjective grounds for suspicion; the use of both sets of powers had a significantly disproportionate impact on persons of non-white ethnic origin; and the safeguards relied on by the Government were similar.\",\n \"80. In this regard, the applicant acknowledged that some safeguards existed, notably those identified by Lord Hughes in the Supreme Court. However, she argued that they were insufficient to meet the requirement of legality. To begin with, given the large number of people passing through United Kingdom ports every day, the fact that the Schedule 7 powers were restricted to travellers at ports did not significantly reduce their impact. Moreover, Schedule 7 powers could not be equated with immigration powers, to which travellers might reasonably expect to be subjected. They were based at ports because they were “choke points” and not because they had any specific connection to a person ’ s travel.\",\n \"81. Furthermore, restriction to the statutory purpose, restriction to specially trained and accredited officers, and restrictions on the type of search and duration of questioning provided negligible safeguards which did not cure the risk of arbitrariness in the exercise of a broadly defined, suspicion-less power. This was especially so given that the Code in force at the time of the applicant ’ s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights. Although individuals were entitled to consult a solicitor, this offered no protection against the risk of arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of a solicitor (as happened in this case).\",\n \"82. In addition, the explanatory notice given to those questioned was generic; examining officers were not required to explain the reasons why a particular individual was selected for examination under Schedule 7. There was also no requirement for officers to record the reason why a particular individual was selected for examination, and since the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise) the scope for using judicial review proceedings to challenge a particular Schedule 7 examination was extremely limited. Finally, the Independent Reviewer only carried out a post-hoc review of a small number of Schedule 7 stops, since his capacities did not stretch to a thorough port ‑ by ‑ port monitoring, and the Government was not obliged to give effect to any changes he proposed.\",\n \"( ii ) The Government\",\n \"83. The Government contended that the exercise of a power on a “no suspicion” basis could be “in accordance with the law”. In such a case, the relevant factors to be considered were the field covered by the measure in issue (being relevant to the level of precision required); and the relevant law together with how the system worked in practice.\",\n \"84. As to the field covered by the measure, the Government stated that it was focussed on entry and exit points to the United Kingdom. As these points were the first line of defence against the entry and exit of terrorists, they provided a unique opportunity to target checks where they were likely to be the most effective.\",\n \"85. Regarding the relevant law, the Government argued that there were sufficient effective safeguards in the manner of its operation to meet the requirements of legality. In particular, they drew attention to the factors identified by Lord Hughes and Lord Hodges, which were adopted by Lord Neuberger and Lord Dyson, namely: the restriction to those passing into and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including the procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.\",\n \"86. Moreover, there was no evidence that the powers had been used in a racially discriminatory fashion, and in fact such a use was expressly prohibited by the Code of Practice.\",\n \"(b ) The Court ’ s assessment\",\n \"( i ) General principles\",\n \"87. The words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008).\",\n \"88. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts)). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96; Gillan and Quinton, cited above, § 77; and Ivashchenko v. Russia, no. 61064/10, § 73, 13 February 2018 ).\",\n \"( ii ) Application of those principles to the case at hand\",\n \"89. The Court notes that the power in question has a legal basis in domestic law, namely Schedule 7 of TACT and the accompanying Code of Practice. In view of the applicant ’ s complaint, the principal question for the Court to address in the present case is whether, at the time the applicant was stopped at East Midlands airport, the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life. In making this assessment, it will consider the following factors: the geographic and temporal scope of the powers; the discretion afforded to the authorities in deciding if and when to exercise the powers; any curtailment on the interference occasioned by the exercise of the powers; the possibility of judicially reviewing the exercise of the powers; and any independent oversight of the use of the powers.\",\n \"( α ) The geographic and temporal scope of the powers\",\n \"90. The Schedule 7 powers can only be exercised by police officers at ports and border controls. The majority of the Supreme Court considered that this restriction distinguished the case from Gillan and Quinton, cited above, since the “stop and search powers” under section 44 of TACT could be exercised throughout the whole of the United Kingdom (see paragraph 27 above). However, Lord Kerr, in his dissenting opinion, considered that the Schedule 7 powers were much broader than the “stop and search” powers, since they were not subject to any express authorisation and they were not temporally or geographically limited. As a consequence, they had the potential to affect the 245 million people who pass through the United Kingdom ’ s ports and borders every year (see paragraphs 33 - 36 above).\",\n \"91. Although the Court sees the logic behind the comparison to Gillan and Quinton, the important question is not whether the Schedule 7 powers are wider or narrower than the “stop and search” powers, or how the safeguards which curtail the exercise of both powers measure up, but rather whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference.\",\n \"92. In this regard, while the Court would accept that in view of their permanent application at all ports and border controls, the Schedule 7 powers are wide in scope, this does not, in itself, run contrary to the principle of legality. The Court has expressly acknowledged both the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012). ) and the importance of controlling the international movement of terrorists (see, for example, McVeigh, O ’ Neill and Evans v United Kingdom (1981) 5 EHRR 71, § 192). Ports and border controls will inevitably provide a crucial focal point for detecting and preventing the movement of terrorists and/or foiling terrorist attacks. Indeed, all States operate systems of immigration and customs control at their ports and borders, and while these controls are different in nature to the Schedule 7 powers, it is nevertheless the case that all persons crossing international borders can expect to be subject to a certain level of scrutiny.\",\n \"( β ) The discretion afforded to the authorities in deciding if and when to exercise the powers\",\n \"93. The Schedule 7 powers may be exercised by examining officers for the purpose of determining whether a person is concerned in the commission, preparation or instigation of acts of terrorism. Examining officers therefore enjoy a very broad discretion, since “terrorism” is widely defined (see R. v. Gul, at paragraphs 71 - 72 above ) and the Schedule 7 powers may be exercised whether or not he or she has objective or subjective grounds for suspecting that a person is concerned in the commission, preparation or instigation of acts of terrorism.\",\n \"94. In Gillan and Quinton the Court criticised the fact that officers could exercise the stop and search powers without having to demonstrate the existence of any reasonable suspicion (see Gillan and Quinton, cited above, § 83 ). Similarly, in Ivashchenko the Court was concerned by the fact that the customs authorities had been able to examine and copy data contained on the applicant ’ s laptop and storage devices without at least “some notion of a reasonable suspicion” that he had committed an offence ( Ivashchenko, cited above, §§ 84-85). A requirement of reasonable suspicion is therefore an important consideration in assessing the lawfulness of a power to stop and question or search a person; however, there is nothing in either case to suggest that the existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, this is an assessment for the Court to make having regard to the operation of the scheme as a whole and, for the reasons set out below, it does not consider that the absence of a requirement of reasonable suspicion by itself rendered the exercise of the power in the applicant ’ s case unlawful within the meaning of Article 8 § 2 of the Convention.\",\n \"95. First of all, the Court has repeatedly held that the national authorities enjoy a wide margin of appreciation in matters relating to national security (see, among many examples, Konstantin Markin v. Russia [GC], no. 30078/06, § 134, ECHR 2012 (extracts)) and there is clear evidence that the Schedule 7 powers have been of real value in protecting national security. According to the Independent Reviewer, they were “instrumental” in “securing evidence which assists in the conviction of terrorists” (see paragraph 48 above). While the majority of examinations which led to convictions were intelligence-led, examinations could be useful even if they did not lead to a conviction. Intelligence gathered during the examinations contributed to a rich picture of the terrorist threat to the United Kingdom and its interests abroad, and could assist in the disruption or deterrence of terrorists ’ plans (see paragraph 48 above). Were “reasonable suspicion” to be required, terrorists could avoid the deterrent threat of Schedule 7 by using people who had not previously attracted the attention of the police (“clean skins”); and the mere fact of a stop could alert a person to the existence of surveillance (see paragraph 49 above).\",\n \"96. Secondly, it is important to distinguish between the two distinct Schedule 7 powers, being the power to question and search a person; and the power to detain a person. As the power to detain would, under normal circumstances, entail a greater interference with a person ’ s rights, and therefore has greater potential for abuse, it may well have to be accompanied by more stringent safeguards. However, as the applicant in the present case was not formally detained, the Court must limit its examination to the lawfulness of the power to question and search.\",\n \"97. Thirdly, the Court considers it relevant that the Schedule 7 power – and in particular the power to question and search – is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country. While there was no requirement of “reasonable suspicion”, guidance was nevertheless provided to examining officers which attempted to clarify when the discretion could be exercised. According to the Guidance Notes accompanying the Code of Practice in force at the time of the applicant ’ s examination, the power had to be used proportionately and officers had to take particular care to ensure that the selection of persons for examination was not solely based on their ethnic background or religion. Instead, the decision to exercise Schedule 7 powers had to be based on the threat posed by the various active terrorist groups and be based on a number of considerations, including the following factors: known or suspected sources of terrorism; individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected, and supporters or sponsors of such activity who are known or suspected; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; the means of travel (and documentation) that a group or individuals involved in terrorist activity could use; and emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity (see paragraph 42 above). While not relevant to the Court ’ s assessment of the case at hand, it nevertheless notes that pursuant to the Anti-Social Behaviour, Crime and Policing Act 2014 and the new Code of Practice, examining officers now have to be accredited by their chief officer as having met a national standard in the use of the powers (see paragraphs 54 ‑ 55 above).\",\n \"98. Fourthly, the reports of the Independent Reviewer would suggest that the powers are not, in fact, being abused (see paragraphs 44 - 51 and 56 ‑ 61 above). In 2011, only 0.03% of passengers travelling through ports were examined under Schedule 7. In the following years, the Independent Reviewer noted a significant decline in the total number of examinations. Furthermore, although persons of minority ethnic communities, and especially those of Asian and North African ethnicity, were stopped more often than their percentage in the travelling population would objectively warrant, as noted by the Independent Reviewer, this did not mean that examinations were misdirected. Therefore, although the Independent Reviewer recommended vigilance, he considered that the figures in themselves provided no basis for criticism of the police.\",\n \"99. In light of the foregoing, the Court considers it necessary to assess whether the other safeguards in respect of the exercise of the Schedule 7 powers are sufficient to protect individuals from its arbitrary exercise.\",\n \"( γ ) Any curtailment on the interference occasioned by the exercise of the powers\",\n \"100. At the time the applicant was examined, Schedule 7 provided that a person detained under that power had to be released not later than the end of a period of nine hours from the beginning of the examination (see paragraph 40 above). The Code of Practice further required that the examining officer keep the length of the examination “to the minimum that is practicable”. At the beginning of the examination, the examining officer had to explain to the person concerned either verbally or in writing that she was being examined under Schedule 7 of TACT and that the officer had the power to detain her should she refuse to co-operate and insist on leaving. A record had to be kept of the examination; at the port, if the examination lasted less than one hour, or centrally, if it lasted longer (see paragraph 42 above). However, despite the fact that persons being examined were compelled to answer the questions asked, neither TACT nor the Code of Practice in force at the relevant time made any provision for a person being examined (who was not detained) to have a solicitor in attendance. Consequently, persons could be subjected to examination for up to nine hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer.\",\n \"101. The legislation has since been amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (see paragraphs 52 - 53 above), which requires examining officers to take a person into detention if they wish to examine him or her for longer than an hour. It further provides that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters, and gives the person being examined the right (insofar as practical) to have a named person informed of his or her whereabouts. The 2014 Act also reduced the maximum period of detention from nine hours to six hours and required the periodic review of detention by a review officer.\",\n \"102. Nevertheless, the Court must have regard to the legislation in force at the time the applicant was examined pursuant to the Schedule 7 powers, when the only safeguard capable of curtailing the interference occasioned by the exercise of those powers was the requirement that she be released not later than the end of a period of nine hours from the beginning of the examination.\",\n \"( δ ) The possibility of judicial review of the exercise of the powers\",\n \"103. While it is possible to seek judicial review the exercise of the Schedule 7 powers, the applicant argues that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” would make it difficult, if not impossible, to prove that the power was improperly exercised. The Court accepted a similar argument in Gillan and Quinton, finding that the right of an individual to challenge a stop and search by way of judicial review or an action in damages had clear limitations ( Gillan and Quinton, cited above, § 86).\",\n \"104. Those limitations would appear to be equally relevant to challenges to the Schedule 7 power by way of judicial review. In R (Elostra) the claimant successfully challenged his detention under Schedule 7 on the basis that the police officers had not waited for his solicitor to arrive at the airport before beginning to question him, as required by the Code of Practice. The judge therefore found that the officer ’ s actions had been unlawful (see paragraph 70 above). However, challenges to the lawfulness of the decision to exercise the Schedule 7 power would appear to have been less successful. In R ( David Miranda), the Court of Appeal accepted that the detention of a journalist ’ s spouse at the request of the security service, which was principally concerned with determining whether the material he carried posed a threat to national security, was nevertheless lawful since before agreeing to the stop the police confirmed that the statutory grounds had been made out. In reaching this conclusion, the court observed that “Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility” (see paragraph 65 - 68 above). While in R(CC) the court found that the examining officers had not exercised the power for the purpose of determining whether the individual appeared to be a terrorist or not, the judge remarked that it was “a very rare case” since the powers were “properly given a wide construction” (see paragraph 69 above).\",\n \"105. It would therefore appear that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” has made it difficult for persons to have the lawfulness of the decision to exercise the power judicially reviewed.\",\n \"( ε ) Any independent oversight of the use of the powers.\",\n \"106. The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. The Independent Reviewer, a role that has existed since the late 1970s, is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the United Kingdom. These reports are laid before Parliament, to inform the public and political debate on anti-terrorism law in the United Kingdom. The significance of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information and personnel.\",\n \"107. The oversight provided by the Independent Reviewer should not, therefore, be underestimated. Nevertheless, his reviews are invariably ad ‑ hoc and insofar as he is able to review a selection of examination records, he would not be in a position to assess the lawfulness of the purpose for the stop. Moreover, while his reports are scrutinised at the highest level (the Government in fact publishes its formal response to his annual reports), a number of important recommendations have not been implemented, despite having received support from the Joint Committee on Human Rights and the Home Affairs Select Committee. In particular, the Independent Reviewer has repeatedly called for the introduction of a suspicion requirement for the exercise of certain Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; and criticised the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings (see paragraphs 57 ‑ 60 above). Although the Counter-Terrorism and Border Security Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT (see paragraph 63 above), the Government have not introduced any suspicion threshold for the exercise of the power to detain.\",\n \"108. Therefore, while of considerable value, the Court does not consider that the oversight of the Independent Reviewer is capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime.\",\n \"( iii ) Conclusion\",\n \"109. In conclusion, the Court considers that when the applicant was stopped at East Midlands airport in January 2011, the power to examine persons under Schedule 7 of TACT was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. While it does not consider the absence of any requirement of “reasonable suspicion” alone to have been fatal to the lawfulness of the regime, when considered together with the fact that the examination could continue for up to nine hours, during which time the person would be compelled to answer questions without any right to have a lawyer present, and the possibility of judicially reviewing the exercise of the power would be limited, the Court finds that the Schedule 7 powers were not “in accordance with the law”. It follows that there has been a violation of Article 8 of the Convention.\",\n \"110. In reaching this conclusion the Court has only had regard to the Schedule 7 power to examine as it was at the time the applicant was stopped. It has not considered the amendments which flowed from the Anti ‑ Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person ’ s rights under the Convention.\",\n \"II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\",\n \"111. The applicant further complained that she had been deprived of her liberty within the meaning of Article 5 § 1 of the Convention, and that the deprivation gave rise to a violation of Article 5 of the Convention as it was not “in accordance with the law”.\",\n \"112. The Government contested that argument.\",\n \"113. As this complaint is based on the same facts as the applicant ’ s Article 8 complaint, it must also be declared admissible. However, having regard to the finding relating to the Article 8 complaint (see paragraphs 109 ‑ 110 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 (see, for example, Gillan and Quinton, cited above, § 57).\",\n \"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\",\n \"114. The applicant further complained that the exercise of coercive police powers to compel her to provide answers that might have been incriminating, without any prior and effective assurance that her answers would not be used against her in a criminal trial, violated her rights under Article 6 of the Convention.\",\n \"115. Article 6 of the Convention provides, insofar as relevant:\",\n \"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”\",\n \"116. The Government argued that the process of examining the applicant was entirely removed from any criminal investigation. A Schedule 7 investigation was not an investigation into an offence that had been committed; the applicant was not notified that she was subject to any criminal allegation; and no criminal proceedings were brought. Consequently, no issue arose under Article 6.\",\n \"117. The applicant contended that compulsory questioning by police officers engaged the right to a fair trial under Article 6 of the Convention, since the purpose of the investigation was to enable the police to determine whether the person being questioned appeared to be a “terrorist”. Although the definition of “terrorist” was extremely broad, in most cases such an inquiry would include an investigation into whether someone had personal involvement in criminal offences. Moreover, the Schedule 7 powers had the substantive characteristics of a police power to investigate criminal activity.\",\n \"118. The applicant further submitted that there had been a violation of Article 6 on account of the degree of coercion and the absence of any statutory safeguards relating to the subsequent use of the material obtained from her, which extinguished the very essence of the privilege against self ‑ incrimination. She did not complain about her subsequent prosecution for failing to comply with a duty under Schedule 7; rather, her complaint concerned the absence of safeguards preventing material obtained during a Schedule 7 examination from being used in any possible subsequent prosecution for a terrorism-related offence.\",\n \"119. The Court has repeatedly held that the protections afforded by Article 6 § 1 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 and Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017.\",\n \"120. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “ charged with a criminal offence ” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect ( Simeonovi, cited above, § 111).\",\n \"121. None of those events occurred in the present case. The applicant was neither arrested nor charged with any (terrorism-related) criminal offence. Although she was questioned for the purpose of determining whether she appeared to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism, this cannot, of itself, engage Article 6 of the Convention. First of all, the Schedule 7 power did not require police officers to have “reasonable suspicion” that she was concerned in the commission, preparation or instigation of acts of terrorism. As such, the mere fact of her selection for examination could not be understood as an indication that she herself was suspected of involvement in any criminal offence. On the contrary, the applicant was explicitly told by police officers that she was not under arrest and that the police did not suspect her of being a terrorist (see paragraph 8 above). Moreover, the questions put to her were general in nature and did not relate to her involvement in any criminal offence (see paragraph 11 above). The Court has already noted that the Schedule 7 power is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country (see paragraph 97 above). While it would not exclude the possibility that it could be exercised in such a way as to engage Article 6 of the Convention, there is no evidence to suggest that it was so exercised in the present case.\",\n \"122. In light of the forgoing, the Court does not consider that Article 6 of the Convention was engaged by the applicant ’ s examination under Schedule 7 of TACT. It does not consider it necessary to examine the second aspect of the applicant ’ s complaint, which concerned the absence of any safeguards relating to the subsequent use of material obtained in interview. Although it would not exclude the possibility that Article 6 could be engaged by the use of any statements made during a Schedule 7 examination in subsequent criminal proceedings (see Saunders v. the United Kingdom, 17 December 1996, § 67, Reports of Judgments and Decisions 1996 ‑ VI ), that was not the case here.\",\n \"123. Accordingly, the applicant ’ s Article 6 complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the failing to comply with a duty under Schedule 7 meaning of Article 35 § 3 (a) of the Convention.\",\n \"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION\",\n \"124. Article 41 of the Convention provides:\",\n \"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\",\n \"A. Damage\",\n \"125. The applicant seeks “just satisfaction commensurate to any finding of a violation of [her Article 8, 5 and 6 rights] by the Court”. She has not, therefore, expressly claimed any pecuniary or non-pecuniary damage (see, by way of comparison, Mihu v. Romania, no. 36903/13, §§ 82-84, 1 March 2016). Nevertheless, the Court may exercise a degree of flexibility in respect of non-pecuniary damage, by, for instance, agreeing to examine claims for which applicants did not quantify the amount, instead “leaving it to the Court ’ s discretion” (see, among many other examples, Guzzardi v. Italy, 6 November 1980, §§ 112-14, Series A no. 39; Frumkin v. Russia, no. 74568/12, §§ 180 ‑ 82, 5 January 2016; Svetlana Vasilyeva v. Russia, no. 10775/09, §§ 43-45, 5 April 2016; Sürer v. Turkey, no. 20184/06, §§ 49 ‑ 51, 31 May 2016).\",\n \"126. That being said, the Court does not consider it appropriate to make an award in respect of non-pecuniary damage in the present case. First of all, it has found a violation of Article 8 only. Secondly, as the breach of Article 8 was linked to the quality of the law in force at the relevant time, it has not been called upon to assess the proportionality of the applicant ’ s examination. Thirdly, it notes that the applicant does not contend that in her case the Schedule 7 power was exercised in an arbitrary or discriminatory fashion.\",\n \"B. Costs and expenses\",\n \"127. The applicant also claimed GBP 37,196.46 for the costs and expenses incurred before the Court. This figure is comprised of GBP 15,624 for Senior Counsel; GBP 14,545 for two junior counsel; GBP 6,985.51 for the solicitor; and GBP 38.95 for postage.\",\n \"128. The Government argued that it had not been shown that these costs had been actually and necessarily incurred. The relevant legal issues had already been argued in the Supreme Court; there was no sufficient basis for three counsel to be instructed, together with a solicitor; and the applicant ’ s observations were not of such length of complexity to justify the amounts claimed.\",\n \"129. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 covering costs under all heads.\",\n \"C. Default interest\",\n \"130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\"\n]"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":2,"numItemsPerPage":100,"numTotalItems":1053,"offset":200,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc0MzIzMDIzOSwic3ViIjoiL2RhdGFzZXRzL01haG1vdWRBbHkvTGV4QWJTdW1tIiwiZXhwIjoxNzQzMjMzODM5LCJpc3MiOiJodHRwczovL2h1Z2dpbmdmYWNlLmNvIn0.YM3WleKXLFzvnRH0ACqwQ5BMpddJTPqwIur9l3UUBO-Cd7EnjN1S_wBb5PscoZjrMQeXF-liNS_Nde8op-fNAA","displayUrls":true},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false}">
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201 | Dayanan v. Turkey | 13 October 2009 | The applicant, who was charged with, and subsequently convicted of, being a Hezbollah member, did not have the assistance of a lawyer while he was in police custody. | The Court held that there had been a violation of Article 6 § 3 (c) taken together with 6 § 1 of the Convention. It found that that restriction (which was systematic, as it was prescribed by the relevant provisions of Turkish law) of the right of an individual deprived of his liberty to have access to a lawyer was sufficient for it to be able to conclude that there had been a violation of Article 6 of the Convention, even though the applicant had remained silent while in police custody. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1975.",
"5. On 30 January 2001, in the context of an operation carried out against the illegal armed organisation Hizbullah (“Party of God”), the applicant was arrested and taken into police custody.",
"6. The applicant signed a “form explaining the rights of arrested persons” and was notified of the charges against him. He was informed of his right to remain silent and to see a lawyer at the end of the police custody period. The police questioned him. The applicant exercised his right to remain silent.",
"7. A search was carried out at the applicant ’ s home. The police seized an audio-cassette. The transcript of the tape was worded as follows: “The tape is, for the most part, inaudible. There are incomprehensible speeches in Kurdish. It also contains songs, in which the word ‘ sharia ’ can be heard, but the sentences are also incomprehensible.”",
"8. Throughout this period, the applicant continued to remain silent.",
"9. On 3 February 2001 the applicant was placed in pre-trial detention by a judge of the Siirt Police Court.",
"10. In an indictment dated 9 February 2001, the applicant and three other persons were charged with being members of Hizbullah by the public prosecutor at the Diyarbakır State Security Court. The latter called for the applicant ’ s conviction on the basis of Article 168 § 2 of the Criminal Code.",
"11. The first hearing took place on 10 April 2001 before the Diyarbakir State Security Court (“the State Security Court ”). The applicant, assisted by his lawyer, denied all the charges against him. He claimed that the audio-cassette seized from his home belonged to his mother and that he did not know what was on it.",
"12. At the hearing on 29 May 2001 the judges read out statements by five other persons charged in separate criminal proceedings concerning the same organisation, which named the applicant as one of the leading members of the organisation. The accused were also shown seized documents pertaining to the organisation. Counsel for the applicant addressed the court and argued that the elements constituting the offence had not been made out. He claimed that the applicant should be tried for aiding and abetting an illegal organisation on the basis of Article 169 of the Criminal Code, and not for belonging to such an organisation. He did not ask to call any witnesses.",
"13. During the hearings of 17 July, 11 September and 6 November 2001 the applicant ’ s lawyer repeated his previous submissions and requested that his client benefit from the provisions of the Amnesty Act (Law no. 4616).",
"14. The applicant argued his case at the hearing of 4 December 2001. He claimed to have no ties with the organisation in question and asked to be acquitted. His lawyer also addressed the court and referred once again to the defence pleadings that he had filed during the trial, requesting, under Law no. 4616, a stay of the proceedings brought against his client.",
"15. At the end of the hearing, the State Security Court sentenced the applicant to twelve years and six months ’ imprisonment on the basis of Article 168 § 2 of the Criminal Code.",
"16. In support of its decision, the court took into account all the reports and documents in the case file. In particular, it gave consideration to the statements naming the applicant as one of the leading members of the organisation. It also based its decision on a document which showed the applicant ’ s position within the organisation. The court found it established, among other things, that the applicant was an active member of the organisation.",
"17. The applicant ’ s lawyer lodged an appeal on points of law against the judgment of 4 December 2001 on behalf of his client.",
"18. On 18 March 2002 the Principal Public Prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. This opinion was not sent to either the applicant or his lawyer.",
"19. Following a hearing on 27 May 2002, the Court of Cassation upheld all the provisions of the impugned judgment. Its judgment was delivered on 29 May 2002 with neither the applicant nor his lawyer present.",
"20. On 19 August 2002 the full text of the Court of Cassation ’ s judgment was added to the case file kept at the registry of the Diyarbakır State Security Court and was thus made available to the parties."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"21. The relevant provisions of Turkish law can be found in, among other judgments, Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008) and Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002-V ).",
"THE LAW",
"22. Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that he had had no legal assistance while he was in police custody and that he had not been sent a copy of the opinion of the Principal Public Prosecutor at the Court of Cassation.",
"23. The Government pleaded failure to comply with the six-month time -limit, referring to the date on which the final domestic decision had been taken (29 May 2002), and the date on which the application had been lodged (8 January 2003). Furthermore, they contended that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as he had failed to raise, even in substance, his complaints under Article 6 §§ 1 and 3 (c) in the national courts.",
"24. With regard to the six-month rule, the Court refers to its case-law according to which, where an applicant is entitled to be served automatically with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment ( see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V). Where the domestic law does not provide for service, however, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to find out its content (see, mutatis mutandis, Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II, and Seher Karataş v. Turkey ( dec. ), no. 33179/96, 9 July 2002).",
"25. In the present case the Court notes that, at the material time, Court of Cassation judgments in criminal proceedings were not served on the parties. The latter could be informed only after the decision had been deposited with the registry of the first-instance court and/or an order to enforce the sentence had been served.",
"26. In the applicant ’ s case, the judgment of 29 May 2002 by the Court of Cassation, which was the final domestic decision, was not served on him or his counsel. On 19 August 2002 the text of the judgment was added to the case file kept at the registry of the Diyarbakır State Security Court and was made available to the parties. The six-month period thus started to run on 19 August 2002. Since the application was lodged less than six months after that date, the Government ’ s objection must be dismissed.",
"27. With regard to the alleged failure to exhaust domestic remedies the Court observes that, when he was in police custody, the applicant ’ s right to be assisted by a lawyer had been restricted under section 31 of Law no. 3842 on the ground that he was accused of an offence that fell within the jurisdiction of the State Security Courts. Furthermore, the Court notes that the practice of not communicating the opinion of the Principal Public Prosecutor was also in accordance with the legislation in force. Consequently, the Government ’ s objection cannot be upheld.",
"28. The Court notes that the applicant ’ s complaints under Article 6 §§ 1 and 3 (c) of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"29. With regard to the merits of the case, the Government pointed out that the applicant had exercised his right to remain silent while in police custody and that the absence of a lawyer had therefore in no way affected the observance of his defence rights. As to the complaint that the opinion of the Principal Public Prosecutor at the Court of Cassation had not been sent to the applicant, the Government referred to their observations in Göç ( cited above, § 54 ).",
"30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Salduz, cited above, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).",
"31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.",
"32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person ’ s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.",
"33. In the present case it is not disputed that the applicant did not have legal assistance while in police custody because it was not possible under the law then in force ( see Salduz, cited above, §§ 27 and 28). A systematic restriction of this kind, on the basis of the relevant statutory provisions, is sufficient in itself for a violation of Article 6 to be found, notwithstanding the fact that the applicant remained silent when questioned in police custody.",
"34. Accordingly, the Court finds that there has been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1.",
"35. As to the failure to send the applicant a copy of the opinion of the Principal Public Prosecutor at the Court of Cassation, the Court observes that it previously examined a complaint identical to that of the applicant and concluded that, in view of the nature of the prosecutor ’ s observations and the inability of the party in question to respond to them in writing, the non-communication of the opinion of the Principal Public Prosecutor at the Court of Cassation violated Article 6 § 1 ( see Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V). Having examined the present case and the submissions of both parties, the Court finds that the Government have failed to provide any convincing facts or arguments capable of justifying a different conclusion on this occasion.",
"36. Accordingly, the Court considers that the applicant ’ s right to an adversarial procedure was breached. There has therefore been a violation of Article 6 § 1 of the Convention.",
"37. The applicant further complained of not having been informed of the reasons for his arrest and of the charge against him. He claimed that he had not had adequate facilities for the preparation of his defence (6 § 3 ( b ) ) and that he had not been able to examine the prosecution witnesses (6 § 3 ( d ) ). He further complained of the fact that the prosecution had used the police transcript from the audio-cassette found at his home as evidence, without having an independent expert examine its authenticity.",
"38. The Court has examined the applicant ’ s complaints as they were submitted (paragraph 37). Having regard to all the elements in its possession, it does not find any appearance of a breach of the rights and freedoms guaranteed by the Convention. The complaints are therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.",
"39. The matter of the application of Article 41 of the Convention remains. The applicant claimed 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.",
"40. The Government contested these claims.",
"41. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.",
"42. On the other hand, ruling on an equitable basis, it awards the applicant EUR 1,000 in respect of non-pecuniary damage.",
"43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
202 | Nechiporuk and Yonkalo v. Ukraine | 21 April 2011 | The first applicant complained in particular about the unfairness of the proceedings against him, notably that his conviction for a number of offences, including premeditated murder for profit committed following a conspiracy with a group of persons, had been based on statements made without the assistance of a lawyer. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. It was undisputed by the parties that the applicant had not become legally represented until having spent three days in detention. The applicant had confessed several times to murder at the early stage of his interrogation when he was not assisted by counsel, and had undoubtedly been affected by the restrictions on his access to a lawyer in that his confessions to the police were used for his conviction. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants were born in 1982 and 1981 respectively. The first applicant is serving a prison sentence in Kolomyya Prison no. 41. The second applicant lives in Khmelnytskyy [1].",
"A. Background events",
"6. On 13 March 2004 two persons wearing masks, one of whom was armed with a gun, attacked a certain Ms I. and her son at the door of their flat in Khmelnytskyy. In the course of the fight the armed intruder shot at Ms I., after which they both retreated without any further action and without their faces being seen. Some minutes later Ms I. died.",
"B. Facts concerning the first applicant",
"1. The first applicant's detention from 20 to 23 May 2004 and administrative offence proceedings against him",
"7. On 20 May 2004, at about 1 p.m., the police apprehended the first applicant in the street and took him to the Pivdenno-Zakhidna Police Station. According to a written explanation addressed by one of the arresting officers to the Chief of the Pivdenno-Zakhidna Police Department, the apprehension was occasioned by the suspicious behaviour of the applicant, whom the police had seen “walking fast and looking around”, entering a building (according to the case-file materials, that was the building in which the applicant lived), leaving it when approached and trying to re-enter it later. In the applicant's submission, he was asked by two officers to go to the police station “to clarify some issues”, to which he agreed.",
"8. The applicant was body-searched in the police station. As a result, a packet containing a “green substance of plant origin” was discovered in his pocket. According to the applicant, it had been planted on him by the police.",
"9. On the same day, at 10. 45 p.m., on the premises of the police station, the applicant was placed in “administrative detention” on suspicion of illegal drug possession. As noted in the respective police report, the offence on suspicion of which the applicant was detained was “a breach of Article 44 of the Code on Administrative Offences”.",
"10. The applicant's relatives, while learning about his detention from a witness, were not informed of his whereabouts and enquired unsuccessfully at various police stations and detention facilities in the town, including the Pivdenno-Zakhidna Police Station.",
"11. On 22 May 2004 an expert report was issued, according to which the substance discovered in the applicant's pocket was not a drug.",
"12. On 23 May 2004 the applicant was released in the administrative offence proceedings “given the fact that all the circumstances of the case [had] been established and that [his release would] not impede further investigation”. He was however immediately re-arrested in the framework of the criminal proceedings (see below).",
"13. On 29 May 2004 the police terminated the administrative offence proceedings, finding that there was no case to answer.",
"2. Alleged ill-treatment of the first applicant and corresponding investigation",
"14. The applicant's account of the events of 21 May 2004 is as follows. During the night of 20 to 21 May 2004 he was taken from the cell to an office in the Pivdenno-Zakhidna Police Station, where the police officers R.O. and M.D. urged him, under threat of violence, to confess that he had murdered Ms I. As the applicant refused to confess, at about 4 a.m. those officers brought in a manual electricity generator. The applicant was handcuffed and suspended from a metal bar between two tables, with naked wires from the generator attached to his ankles and coccyx. One of the officers, R.O., administered electric shocks to the applicant, while the other officer, M.D., gagged his mouth with a sofa cushion. At about 6. 30 a.m. the applicant lost consciousness. After he had recovered consciousness, several officers took it in turns to beat him until 8 p.m., having previously put a bullet-proof jacket on him and covered his head with a pillow. In the meantime, at about 4 p.m., the applicant heard his wife (the second applicant) being questioned in the neighbouring office. One of the officers entered the office where the applicant was, and asked his colleague: “Do you think she would be able to survive what he has gone through?” The applicant then wrote his first confession, allegedly under dictation from a police officer. He stated that he had committed the murder of Ms I. together with a certain Mr M. At 10. 05 p.m. the applicant was placed in the Khmelnytskyy Temporary Detention Facility (the “ Khmelnytskyy ITT”).",
"15. The Government did not submit their version of the events of 21 May 2004, apart from mentioning the first applicant's placement in the Khmelnytskyy ITT.",
"16. At some point on 21 May 2004 the applicant was taken to the investigator in the Khmelnytskyy City Prosecutor's Office (“the KCPO ”), to whom he complained about his alleged torture by electric shocks.",
"17. On 24 May 2004 the applicant repeated his complaint to the investigator during questioning. On the same day he was examined by a doctor of the Khmelnytskyy Regional Forensic Medical Bureau, who noted that his both ankles had sores of 2.5 cm x 1.5 cm and 2.3 cm x 0.9 cm respectively. The doctor concluded that those injuries were minor and could have been inflicted on the applicant with blunt objects some three days earlier. Given their nature, which the doctor described as “unspecific”, he expressed doubt as to the plausibility of the applicant's allegation that electric current had been applied to him.",
"18. On 26 May 2004 the applicant's lawyer and relatives complained to the KCPO that he had been tortured during the first hours of 21 May 2004 by two police officers, R.O. and D. They noted that the doctor who had examined the applicant on 23 May 2003 had ignored a number of pinpoint sores on his ankles and that the medical report had been inaccurate. The complainants sought an investigation into the matter and a new medical examination of the first applicant.",
"19. On the same day the first applicant raised the ill-treatment complaint before the Khmelnytskyy City Court during the examination of the prosecutor's request for him to be remanded in custody (see paragraph 41 below). The court allegedly ignored his complaint.",
"20. Later on the same day the first applicant was allegedly beaten again by police officers, who had previously put a bullet-proof jacket on him. He confessed to the crimes again.",
"21. On 7 June 2004 the Pivdenno-Zakhidna Police Department examined the office in which the first applicant's questioning had been conducted on 21 May 2004 and issued a report according to which “there were no foreign objects discovered there which could have been used for inflicting bodily injuries”.",
"22. On 10 June 2004 the first applicant underwent another forensic medical examination ordered by the investigator. According to its report, twenty pinpoint sores had been discovered on the applicant's feet and ankles, each about 0.3 cm wide and 0.2 cm long. A purple bruise, 3 cm x 2 cm, was discovered on the back of his right thigh. The doctor concluded that the injuries were minor and could have been inflicted with blunt objects, possibly on 24 May 2004. The report mentioned: “There is no medical indication that the injuries were caused by an electric current”.",
"23. On 15 June 2004 the Khmelnytskyy Regional Police Department issued a report of its internal investigation in which it found the first applicant's allegation of his ill-treatment in police custody to be unsubstantiated. The report was based on the questioning of the police officers involved, who denied any coercion, as well as the medical findings of 24 May and the office examination report of 7 June 2004.",
"24. On 18 June 2004 the KCPO issued a decision refusing criminal prosecution of the police officers for lack of corpus delicti in their actions. It was mainly based on the questioning of the police officers involved and the findings of the medical reports of 24 May and 10 June 2004.",
"25. The first applicant challenged that refusal both separately and in the course of his own trial. In September 2005 the KCPO informed him that his complaints about his alleged ill-treatment by the police had been added to his own case file and would be considered in the course of his trial.",
"26. Overall, the prosecutor's refusal on 18 June 2004 to bring proceedings against the police officers involved to establish their criminal liability was quashed and subsequently upheld three times. Having quashed it for the last time on 28 March 2007, the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) also referred to the fact that the first applicant's ill-treatment complaint had been included in the case file concerning his own criminal case and was to be examined in the context of his trial (see also paragraph 95 below).",
"27. On 22 June 2004 the first applicant was transferred from the Khmelnytskyy ITT to the Pre-Trial Detention Centre (“the SIZO”). According to the Government, he did not raise any allegation about ill ‑ treatment before the ITT or the SIZO medical personnel or administration.",
"28. On 20 July 2004 the first applicant was allegedly beaten up again by the police officers who had escorted him to the court for a decision regarding his detention. On the same date his father raised a complaint in that regard before the General Prosecutor's Office (“the GPO”).",
"29. The applicant's father also complained about the alleged ill ‑ treatment of the applicant to the hotline of the Organised Crime Combating Unit of the Khmelnytskyy Regional Police Department.",
"30. On 19 August 2004 the aforementioned authority decided to forward the case to the Khmelnytskyy Regional Prosecutor's Office (“the KRPO”) given the inability of its own investigation to establish the truth.",
"31. In June 2005 the first applicant's lawyer asked a licensed private forensic-medical centre for an expert's conclusion regarding the following: (a) whether the findings of the medical reports of 24 May and 10 June 2004 provided grounds to state that the injuries to the applicant's ankles might have been caused by blunt objects; (b) what marks typically appeared on the skin in cases of direct contact with electric current and whether the marks on the applicant's body were of that nature; (c) what injuries could be caused if a bullet-proof jacket was put on the person before beating.",
"32. On 29 June 2005 two experts of the aforementioned centre, with twenty-three and four years of experience respectively, issued a report with the following conclusions: the first applicant's injuries could not have been caused by blunt objects; their number and features indicated that they might have been inflicted on 21 May 2004 by contacts, possibly multiple ones, with naked electric wires. As to the question about injuries from beatings inflicted through a bullet-proof jacket, the doctors referred to statements from their colleagues at the Khmelnytskyy Regional Forensic Medical Bureau given in the course of the trial, according to which in such cases internal injuries could be inflicted. They could be identified by X-ray, whereas the first applicant had not been X-rayed.",
"33. As is apparent from the ruling of the Shepetivka Court of 10 July 2006 (see paragraph 82 below ), the above medical report had been included in the first applicant's case file.",
"34. The facts concerning the investigation into the applicant's ill ‑ treatment allegation in the course of his trial are summarised below in the sections pertaining to the trial.",
"3. Criminal proceedings against the first applicant",
"(a) Events before the official commencement of the proceedings",
"35. On 21 May 2004 the first applicant confessed to the armed assault and murder of Ms I. (see also paragraph 14 above).",
"36. On the same date the investigator applied to the Khmelnytskyy City Court for authorisation to search two flats where the first applicant's domicile was registered and where he actually lived. As noted in the application, the investigation had revealed that the applicant might have been involved in the murder and that significant evidence might be found at the place of his residence and/or official domicile.",
"37. On the same day the Khmelnytskyy City Court authorised the requested searches.",
"38. At about 9 p.m. the police searched the flat where the first applicant lived with his wife (the second applicant). Later that same evening they searched his parents'flat where his domicile was registered. Apparently the searches did not reveal anything of relevance to the investigation.",
"(b) Pre-trial investigation and the first applicant's detention",
"39. On 23 May 2004 a criminal case was opened against the first applicant on suspicion of assault with intent to commit robbery and murder for profit, and he was arrested by the investigator in the context of the criminal proceedings. The investigator documented the arrest at 12 a.m. by filling in a document template entitled “ Record of a suspect's arrest”. The reasons for the arrest were included in the pre-printed part of the template and read as follows:",
"“Having regard to the circumstances of the case, it cannot be ruled out that the suspect [name] may evade the investigation and impede the establishment of the truth, which, together with the seriousness of the crime committed, provides grounds for his detention”.",
"In the line “Explanations of the detainee” it was noted that the first applicant “had not given any explanations”. The applicant had been body-searched, with “nothing having been discovered”. On the same day he withdrew his earlier confessions, alleging they had been extracted by force.",
"40. On 26 May 2004 the KCPO requested the Khmelnytskyy City Court to remand the applicant in custody, referring to strong evidence against him and to the fact that he was suspected of having committed serious crimes. According to the request, on 21 May 2004 the first applicant had walked into the Pivdenno-Zakhidna Police Station and had given himself up to the police, confessing to assault and murder. It then stated that he had been detained on suspicion of the aforementioned crimes on 23 May 2004.",
"41. On the same day, 26 May 2004, the Khmelnytskyy City Court, following a hearing with the participation of the first applicant and the lawyer contracted by his parents, Mr Ma. (see § 53 below), allowed the prosecutor's request and remanded the applicant in custody. It referred to the gravity of the charges against him and the inherent risk of his absconding or obstructing justice. It was noted in the aforementioned ruling that it could be appealed against within three days.",
"42. The case file contains a copy of the first applicant's written statement dated 28 May 2004, according to which he refused to make any statement in the course of the pre-trial investigation, relying on Article 63 of the Constitution. At the same time it transpires from some other documents that on the aforementioned date the applicant made another confession. According to the first applicant, he confessed again after his alleged beating by police officers in the Khmelnytskyy KCPO and the confession was dictated by the investigator.",
"43. On 1 June 2004 the first applicant again confessed to those crimes in the presence of his lawyer (Mr Ma.). According to him, those confessions were made in the presence of the police officers involved in his alleged ill ‑ treatment. The record of his questioning of 1 June 2004 contained both his confession and his note “I do not admit my guilt”.",
"44. On 2 June 2004 a certain Mr M. was arrested on the same charges as those laid against the applicant and confessed to the crimes after his alleged beating by police officers (as he would later complain during his trial).",
"45. On 5 June 2004 a confrontation was held between the applicant and Mr M., during which the first applicant repeated his confession in the presence of the appointed lawyer Mr Ko. (see paragraph 52 below).",
"46. On 15 July 2004 the first applicant, in the presence of the lawyer Mr Ma., retracted his earlier confessions as having been given under duress and pleaded not guilty.",
"47. On 20 July 2004 the Khmelnytskyy City Court, acting at the prosecutor's request, extended the term of the first applicant's detention to 23 September 2004, referring to the seriousness of the charges against him and to the inherent risk of his absconding, as well as the possibility of his impeding the investigation which had not yet been completed.",
"48. On 31 August 2004 the charges against the first applicant were changed from premeditated murder to grievous bodily harm causing death. Both co-accused were also charged with violent robbery and unlawful possession of weapons.",
"49. On 3 September 2004 the investigation was declared complete, and the first applicant and Mr M. received access to the case file.",
"50. On 22 September 2004 the case was sent to the Khmelnytskyy City Court.",
"(c ) Legal representation of the first applicant during the pre-trial investigation",
"51. According to the first applicant, he was not legally represented during the period from 20 to 24 May 2004.",
"52. The Government maintained that on 23 May 2004 a lawyer (Mr Ko.) was appointed for the applicant.",
"53. On 24 May 2004 the first applicant's parents entered into an agreement with a private lawyer, Mr Ma., for legal representation of the applicant in the criminal proceedings against him.",
"54. On 25 May 2004 Mr Ma. received from the investigator dealing with the case a written permit for his meetings with the first applicant in the Khmelnytskyy ITT, where his client was detained.",
"55. On 27 May 2004 the first applicant refused the services of the appointed lawyer Mr Ko. and expressed his wish to be represented by Mr Ma. During some investigative activities thereafter he however agreed to be represented by Mr Ko.",
"56. On 2 June 2004 Mr Ma. was not admitted to see the applicant on the ground that the permit allegedly contained flaws. On the following day he complained about that to the Chief of the Khmelnytskyy Police Department.",
"57. On 18 June 2004 Mr Ma. also complained to the KCPO that the investigator was obstructing his participation in the investigative measures. He submitted in particular that he had not been duly notified of the investigative activities, which were conducted in his absence. Furthermore, he complained that the lawyer appointed for the applicant was incompetent.",
"58. On 24 June 2004 the Chief of the Khmelnytskyy Police Department wrote to Mr Ma. that indeed the ITT official had wrongly impeded his meetings with the applicant for which he had been disciplined.",
"( d ) The first applicant's acquittal and release by the Khmelnytskyy City Court",
"59. On 14 October 2004 the Khmelnytskyy City Court held a preparatory hearing at which it maintained the first applicant's detention. The materials submitted by the parties to the Court did not contain a copy of that ruling.",
"60. On 5 May 2005 the Khmelnytskyy City Court, under the presidency of Judge P., acquitted the applicant on all the charges, while the other co-defendant, Mr M., was found guilty of an unrelated instance of illegal possession of weapons ( a hunting gun and a box of bullets – of no relation to the murder of Ms I. – had been discovered in his garage ). The court found that there was no evidence of the defendants'guilt and that their confessions had been extracted by force.",
"61. The judgment noted as follows :",
"“As it had been stated by the defendants in the course of the pre-trial investigation and later confirmed during the trial, ... the police had applied physical and psychological violence to them with the intention of coercing them into confessing to the murder which they had not committed and the circumstances of which they had found out from the police.",
"There are no doubts about that, as it clearly transpires from the case file that the defendants were under arrest when they wrote their confessions. They name specific officers of the Pivdenno-Zakhidna Police Station as behaving violently towards them, and give a detailed account of their actions. The medical examinations held at the defendants'requests [ ... ] revealed injuries to their bodies. During the pre-trial investigation [the applicant and Mr M.] retracted their confessions to the crime against the family of [Ms I]. and complained to various authorities that they had been ill ‑ treated in police custody.”",
"62. The court noted that both the circumstances and motives of the crime were presented inconsistently in the confessions of the co-defendants. It observed that they had attracted the suspicion of the police only because the son of Ms I., who had happened to see them together in the street, believed that their statures and size were similar to those of the offenders. The court found that that investigation had wrongly taken over that wholly unsubstantiated argument. Moreover, it recognised all the findings of the investigation as mere presumptions not corroborated by any evidence.",
"63. The court further observed that the pre-trial investigation relied “as one of the key pieces of evidence proving the defendants'guilt” on the statements of a taxi driver, Mr K., who stated that he had taken two passengers somewhere close to the building where the murder took place. The court noted, however, that his description of those passengers changed on 22 March 2004 in comparison with that given earlier on 13 March 2004. While Mr K. had not been able to indicate any specific features of their appearance, he later recognised the first applicant from a choice of two persons “by his size”.",
"64. As to the other evidence, three witnesses had seen two persons running down the stairs close to the murder site, but they were not able to identify them as the defendants. The investigation had also found a box containing bullets at Mr M.'s home, but they were of a different type from the one with which the victim had been shot.",
"65. The court lifted the preventive measure concerning the applicant.",
"66. On the same day, 5 May 2005, the Khmelnytskyy City Court issued a separate ruling, by which it brought to the attention of the KRPO, the Khmelnytskyy Regional Police Department and the Khmelnytskyy Bureau of Forensic Medical Expertise the following violations:",
"“[the defendants] had been detained for fictitious reasons; they had not been examined in the presence of attested witnesses; neither the reasons for the detention nor their right to defence had been explained to them; and their relatives had not been informed that they were detained”.",
"67. It was also noted in the separate ruling that the defendants had consistently complained that they had been ill-treated in police custody, naming the police officers involved, and that injuries had been discovered on their bodies. The court considered that the doctor who had examined the applicant on 24 May 2004 had come to a superficial and unfounded conclusion that there were no injuries caused by electric current.",
"68. On 5 May 2005 the Khmelnytskyy City Court also issued another ruling, by which it quashed the prosecutor's decision of 18 June 2004 not to open a criminal case into the applicant's allegation that he had been ill-treated in police custody.",
"( e ) Transfer of the case to the Ternopil Regional Court of Appeal and overturning of the first applicant's acquittal",
"69. Messrs I. (the son and husband of the deceased Ms I. having victim status in the proceedings) appealed against the judgment of 5 May 2005. In June 2005 they challenged before the Supreme Court the composition of the Khmelnytskyy Regional Court of Appeal, which was to examine their appeal, on the ground that some of its judges allegedly had friendly relations with Judge P. under whose presidency the impugned judgment had been delivered at first instance. They further contended that certain judges there were members of the regional lawyers'qualification and disciplinary board to which the defendants'lawyers also belonged. Messrs I. therefore sought the transfer of the case to any other regional appellate court.",
"70. On 23 June 2005 the Deputy President of the Supreme Court instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Regional Court of Appeal (“the Ternopil Court”) “with a view to ensuring the most comprehensive and objective examination of the case”.",
"71. On 11 August 2005 the Ternopil Court found that the first-instance court had failed to assess all the evidence in the case thoroughly and conclusively and that it had accepted the defendants'allegations that they had been ill-treated in police custody, without having taken into consideration the related findings of the prosecution authorities. It also remarked that no assessment had been made of the confessions by the defendants in the presence of their lawyers. The Ternopil Court noted that some hearings had been held without the prosecutor's participation, and that the Khmelnytskyy City Court had not responded to the victims'request for remittal of the case for additional investigation, by which they had sought application of a stricter provision of the Criminal Code. On those grounds, the Ternopil Court quashed both the acquittal and the two rulings of the Khmelnytskyy City Court of 5 May 2005, and remitted the case to it for fresh examination by a different panel.",
"72. The Ternopil Court rejected the victims'request for transfer of the case to any other trial court in the Ternopil region, as such a transfer would be contrary to the Code of Criminal Procedure (“the CCP”).",
"( f ) Transfer of the case to the Shepetivka City Court and the first applicant's retrial",
"73. In August and September 2005 the lawyer representing the victims requested the Supreme Court to transfer the case from the Khmelnytskyy City Court to a court in a different region. He noted that Judge P. under whose presidency the case had earlier been examined (see paragraph 60 above), was the Deputy President of the Khmelnytskyy City Court and that he would therefore influence the proceedings regardless of the panel's composition.",
"74. On 20 September 2005 the First Deputy President of the Supreme Court, while finding no grounds to transfer the case to a different region, instructed the Khmelnytskyy Regional Court to consider transferring it to another court within the Khmelnytskyy region.",
"75. On 29 September 2005 the Khmelnytskyy Regional Court transferred the case to the Shepetivka City Court (“the Shepetivka Court ”), within the Khmelnytskyy region.",
"76. On 21 November 2005 the Shepetivka Court held a preparatory hearing, during which the victims unsuccessfully sought a change of preventive measure in respect of the defendants.",
"77. On 4 January 2006 the Shepetivka Court again rejected the victims'request for pre-trial detention of the co-defendants instead of an undertaking not to abscond. The court noted that the co-defendants had not been evading or impeding the investigation.",
"78. On 10 July 2006 the Shepetivka Court remitted the case to the KCPO for additional investigation, indicating thirty-seven shortcomings in the investigation previously undertaken, which could not be remedied in the course of the trial.",
"79. The court noted, inter alia, that the defendants'confessions lacked consistency, as did the statements by the witnesses and the victim ( Mr I., the son of Ms I.). It observed in particular that Mr I. had initially stated on several occasions that he and his mother had been attacked by their business competitors. Later in the trial, he changed both his description of the perpetrators'appearance (which then contradicted that given by some other witnesses) and his version as to who they might have been. Furthermore, the case file contained a report from the police, according to which one of the taxi drivers had heard from a neighbour of Ms I. that the latter had been receiving threatening telephone calls because she had reduced the prices of her products. There was no further investigation into the matter.",
"80. The court also noted that the investigator had given no reasoning for having changed the charges against the applicant from murder to inflicting grievous bodily harm causing death, with a new charge of illegal possession of weapons added.",
"81. The Shepetivka Court next expressed its concern over the way the investigation had received the statements by the taxi driver Mr K. ( according to the court's ruling – a key witness in the case), who had recognised the applicant as one of his two passengers whom he had driven to the building where the crime was committed, around the time of the murder, had waited for there for about half an hour and had then driven to a café. The court noted that on 22 March 2004 the investigator had questioned Mr K. as a witness in the case concerning the murder of Ms I., while at the same time Mr K. was detained in the Khmelnytskyy ITT on suspicion of illegal drug possession. While both Mr K. and the investigator denied the above in the course of the applicant's trial, the ITT administration confirmed that on the aforementioned date, which was also the documented date of Mr K.'s questioning as a witness, he had been in detention in the ITT. Moreover, according to the register of detainees'movements, on the above- mentioned date Mr K. was in the ITT.",
"82. Furthermore, the court noted that the defendants'allegations that they had been ill-treated in police custody had not been duly investigated. Its critical remarks included the following:",
"“The [KCPO] refused to open a criminal case relying on the absolutely identical explanations of the [police officers], who are interested persons and whom the defendants accuse of torture, as well as the conclusions of the internal investigation undertaken by senior [police officers] in respect of their own subordinates, which the court considers unacceptable.",
"At the same time, the [KCPO] failed to clarify why, for what reasons, under what circumstances and in what manner [the applicant] sustained the injuries while being held in the ITT, but not in the SIZO, for over a month.",
"... The case file contains a forensic medical report, according to which [the applicant's] injuries might have originated from electric shocks.",
"... Given the discrepancies in the medical findings ..., an additional forensic medical examination should be undertaken ... ”",
"83. On the same day, 10 July 2006, the Shepetivka Court issued a separate ruling indicating a number of gross violations of the criminal procedural legislation in the course of the pre-trial investigation, similar to those mentioned in the separate ruling of the Khmelnytskyy City Court of 5 May 2005. The court again criticised the investigation undertaken into the allegations of both defendants about their ill-treatment in police custody. It made, in particular, the following observation:",
"“ The prosecutor entrusted the official investigation into the use of force on the defendants directly to the supervisors of the officers whom the defendants accuse of torture, and that investigation yielded a decision that there had been nothing criminal in the actions of those officers. The court considers this unacceptable .”",
"84. Furthermore, the court noted that the investigators had imposed on the applicant an appointed lawyer, although the applicant had already been represented by a lawyer of his own choosing, who remained uninformed about the investigative measures undertaken.",
"( g ) Repeated transfer of the case to the Ternopil Court",
"85. The victims appealed against the aforementioned rulings of the Shepetivka Court. At the same time, they opposed the examination of the case by the Khmelnytskyy Regional Court.",
"86. On 28 July 2006 the First Deputy President of the Supreme Court again instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Court, referring to the reasoning given in support of such transfer in his letter of 23 June 2005.",
"87. On 4 August 2006 the Khmelnytskyy Regional Court sent the case file to the Ternopil Court.",
"88. On 4 October 2006 the Ternopil Court quashed, on formal grounds, the separate ruling of the Shepetivka Court of 10 July 2006 and upheld the decision of the KCPO of 18 June 2004 refusing to institute criminal proceedings against police officers on the first applicant's complaint that he had been ill-treated. The Ternopil Court concluded that the requirements of Article 236-1 of the CCP had not been complied with: there had been no written application for quashing the refusal of 18 June 2004, and, in any event, such an application would have had to be lodged with the Khmelnytskyy City Court.",
"89. The Ternopil Court also excluded from the Shepetivka Court's ruling of 10 July 2006 remitting the case for additional investigation all issues other than those concerning the classification of the defendants'actions under the Criminal Code and assessment of the testimony of the son of Ms I. Thus, the Ternopil Court noted in its ruling as follows :",
"“In the light of all the materials of the case, namely, the collected evidence, the nature of the criminal actions, the instrument of the crime being a firearm, the conclusions of the forensic medical expert on the location and nature of the wounds, the bench considers that the victim's ... life was taken deliberately and thus there is every ground to classify the defendants'actions under a different criminal provision envisaging liability for a more grievous crime”.",
"( h ) The first applicant's remand in custody from 22 to 23 November 2006",
"90. On 22 November 2006, at 10. 50 a.m., the first applicant was arrested by the investigator on suspicion of premeditated murder. The investigator substantiated this decision with the standard wording of the arrest report template, which read as follows:",
"“the eyewitnesses, including the victims, directly indicate this person as the one who committed the crime”.",
"91. On 23 November 2006 the KCPO ordered the applicant's release with a reference to the criminal procedure provisions concerning a replacement of one preventive measure by another.",
"92. On the same date the first applicant complained to the KRPO about the alleged unlawfulness of his detention during the aforementioned period.",
"(i) Joinder of the first applicant's complaint about his alleged ill-treatment to his own criminal case",
"93. In line with the aforementioned ruling of the Ternopil Court of 4 October 2006 (see paragraph 88 above), the first applicant challenged the KCPO's ruling of 18 July 2004 before the Khmelnytskyy City Court.",
"94. On 26 February 2007 the Khmelnytskyy City Court quashed the ruling of 18 June 2004 and remitted the case to the KCPO, allowing the complaint.",
"95. On 28 March 2007 the Khmelnytskyy Regional Court quashed the aforementioned ruling of 26 February 2007 on the KCPO's appeal and ruled that the investigation into the alleged ill-treatment was to take place within the first applicant's own criminal case, which was being examined by the Ternopil Court.",
"(j ) The first applicant's detention from 18 December 2006 to 31 August 2007",
"96. On 30 November 2006 the investigator brought formal charges against the first applicant on two counts of premeditated murder for profit (considering that he had also attempted to kill the son of Ms I. and failed for reasons beyond his control), violent robbery and illegal possession of weapons.",
"97. On the same day the investigator applied to the Khmelnytskyy City Court for replacement of the preventive measure in respect of the first applicant from the undertaking not to abscond to pre-trial detention. Referring to the seriousness of the charges as advanced on the same date and the inherent risk of absconding, the investigator submitted that detention was a more appropriate preventive measure.",
"98. On 18 December 2006 the Khmelnytskyy City Court – at the hearing with the participation of the first applicant and his lawyer – examined the aforementioned application of the investigator as well as the first applicant's complaint about the alleged unlawfulness of his detention from 22 to 2 3 November 2006. The court lifted the applicant's undertaking not to abscond and remanded him in custody at the prosecutor's request. It dismissed as unsubstantiated the applicant's complaint about his arrest of 22 November 2006. The court gave as the reasons for the new preventive measure the fact that the applicant was suspected of serious crimes and that he could abscond or hinder the establishment of the truth. The court referred to unspecified statements made by the victims. As regards the applicant's complaint about his detention from 22 to 23 November 2006, it noted that there were no reasons to consider it unlawful.",
"99. The first applicant's father and lawyer appealed, submitting that the applicant had always complied with the investigator's summons while under the undertaking not to abscond and that the allegations of the victim's family about his attempts to influence their testimony had been confined to their suspicion that “somebody had been following them”. Furthermore, they noted that the first applicant had health problems, referring to the fact that at the time of the arrest order he was undergoing in - patient treatment in a neurological hospital, of which he provided documentary evidence. They also submitted that he had a permanent place of residence, no criminal record in the past, had a small baby to support, and was studying at a university. They therefore insisted that there were no reasons to believe that he would abscond. The first applicant's representatives also challenged the finding of the Khmelnytskyy City Court concerning his detention from 22 to 23 November 2006. They did not make any comments or complaints regarding their or the applicant's access to the case-file materials prior to the examination of the prosecutor's appeal by the court on 18 December 2006.",
"100. On 21 December 2006 the Khmelnytskyy Regional Court of Appeal, following a hearing with the participation of the first applicant's lawyer and father, rejected the applicant's appeal and upheld his detention with a reference to the gravity of the charges against him and “the witnesses'fears for their safety”. It also dismissed the applicant's complaint concerning his detention from 22 to 23 November 2006 having found “ no significant grounds for recognising [it] unlawful”.",
"101. On the same date the Khmelnytskyy Regional Court extended the first applicant's pre-trial detention, on the investigator's application, to five months ( to 23 January 2007 – with his detention from 23 May to 22 September 2004 included therein ). The court referred to the gravity of the charges against the applicant and his unspecified attempts to impede establishment of the truth, as well as to the significant volume of the case file.",
"102. On 23 January 2007 the investigator applied to the Khmelnytskyy Regional Court for another extension of the first applicant's pre-trial detention, referring to the scope of the remaining investigative work.",
"103. In January 2007 (the date is illegible) the Khmelnytskyy Regional Court extended the applicant's pre-trial detention to six months (to 23 February 2007). It founded its decision on the time required for the applicant to study the case file, the seriousness of the charges, and his “ negative behaviour when at large ”.",
"104. On 19 February 2007 the first applicant was indicted, and the case was sent to the Khmelnytskyy Regional Court of Appeal.",
"(k ) The first applicant's retrial and conviction by the Ternopil Court as the court of first instance",
"105. On an unspecified date in 2007 it was decided that the Ternopil Court would try the case as a court of first instance.",
"106. On 21 March 2007 the Ternopil Court held a preparatory hearing. The court upheld the first applicant's detention, having found that “there [were] no grounds for changing the preventive measure”. It did not set any time-limits for the detention.",
"107. On 31 August 2007 the Ternopil Court found the first applicant guilty of premeditated murder for profit committed following a conspiracy with a group of persons, assault with intent to rob, and illegal possession of weapons, and sentenced him to fifteen years'imprisonment.",
"108. The court relied, inter alia, on the statements by the taxi driver Mr K., according to which he had taken two passengers to the building where the crime was committed, waited for them there for about half an hour and then driven them away. He recognised the applicant “by the features of his face, shape of the nose and his hair” as being one of those passengers. Mr K. denied that any pressure had been put on him by the police. He mentioned that he had been questioned in the prosecutor's office, but did not remember any details about that questioning. The investigator who had questioned Mr K. stated that the questioning had taken place in the prosecutor's office and on a different date than that mentioned in the questioning report, with the discrepancy in the dates being a typing error. Mr K. denied as inaccurate the first applicant's allegation that he had admitted to the latter having slandered him under pressure from the police. The court noted as follows:",
"“There is no information from which it could be discerned that unlawful investigation methods were applied to witness [Mr K.] entailing his incriminating statements against the defendants as they allege.",
"The allegation of [the first applicant] that [Mr K.] was arrested on 19 March 2004, remained in police custody until 22 March 2004 and that is why he recognised [the first applicant as the offender] is unfounded. It is not corroborated by the materials of the case and cannot be interpreted as an indication of any pressure on [Mr K.] with a view to incriminating the defendants. The witness [Mr K.] denied this fact during the court hearing in a categorical manner, as well as denying the allegation that he had admitted to [the first applicant] having incriminated him under pressure from the police, as [the first applicant] has submitted many times.",
"The panel considers the statements of [Mr K.] given during the pre-trial investigation and the trial to be truthful, as both during the pre-trial investigation and during the judicial proceedings they were identical, consistent in detail and without any considerable discrepancies as alleged by the defendants and their defence. The court therefore takes them into consideration in the basis of the conviction as proof of the defendants'... guilt, being concordant with the other evidence.”",
"109. The court also took into account the testimony of the son of Ms I., who thought he had recognised the first applicant and the other co-defendant by their postures and gestures, having seen them together in the street. It further took note of statements from several witnesses who had seen two persons wearing masks close to the crime scene. The Ternopil Court relied on the defendants'confessions given at the initial stages of the pre-trial investigation. It attributed some discrepancies between the defendants'versions to the voluntary nature of their confessions. The police officers allegedly involved in the defendants'ill-treatment were questioned in the trial and denied those allegations. The court also noted that the first applicant had not complained about his ill-treatment to the ITT or to the SIZO authorities. It questioned the doctors who had examined the first applicant in May and June 2004, and they again concluded that his injuries were not typical of the effects of electric current. Furthermore, the court relied on the ruling of the KCPO of 18 June 2004 refusing to open a criminal case in respect of the first applicant's complaint. In the light of those considerations, the trial court found the first applicant's allegation that he had been ill-treated unsubstantiated.",
"110. The term of the first applicant's imprisonment was to be calculated from 18 December 2006 and included his detention from 23 May 2004 to 5 May 2005 and from 22 to 23 November 2006.",
"111. The first applicant lodged a cassation appeal, alleging, inter alia, that his guilt had never been proven and that his conviction was primarily based on his confessions extracted by torture and in the absence of legal assistance. He noted that the forensic medical report corroborating his allegation of having been tortured by electric shocks had remained ignored.",
"112. Furthermore, the first applicant stressed that the statements of Mr K., on which the trial court had relied as proof of his guilt, had drastically changed over time to his disadvantage and in suspicious circumstances. He submitted in particular that Mr K. had initially stated that he did not remember any features of his passengers of 13 March 2004. The first applicant further noted that on 19 March 2004 the police had apprehended Mr K. for being drunk. During his subsequent body-search a package of substance of “plant origin” had been discovered on him, and Mr K. had been arrested. It was during his administrative detention that he had “remembered” some general features of one of his passengers. The first applicant referred to specific pages in the case file quoting Mr K. as having stated during the trial that “there [was] a significant difference between those to whom [he] had given a lift [on 13 March 2004] and the defendants” and that the investigator had included some untruthful information in the records of his questioning during the pre-trial investigation. The applicant also submitted that the case file contained a transcript (by a technical expert) of his conversation with Mr K. made in 2006 ( apparently during the period when the first applicant had been at large ), in which Mr K. had stated that the police had forced him to incriminate the defendants under threat of being accused himself of the murder of Ms I., that drugs had been planted on him and that he had made the incriminatory statements while being detained in the ITT. The first applicant stressed that Mr K. had admitted in court that he had indeed met him in 2006 and that their conversation could have been recorded. He further complained that although the defence had sought the examination of the aforementioned audiotape in the hearing and putting questions in that respect to Mr K., the trial court had dismissed that motion without any explanations. It was also mentioned in the cassation appeal that the case file contained a copy of the investigator's ruling of 31 August 2004 about refusal to open a criminal case against Mr K. without reference to any provision of the Criminal Code – a fact, which, according to the first applicant, had remained without assessment.",
"113. On 20 March 2008 the Supreme Court upheld the first applicant's conviction. It referred mainly to his confessions during the pre-trial investigation, including those given in the presence of his lawyer, which it found to be corroborated by other evidence in the case. As to the first applicant's allegation that he had been ill-treated in police custody, the court noted that it had studied the videotape of the investigative activities and found that the applicant had given his confessional account of the events in a free and detailed manner and that there were no injuries on his body. Furthermore, according to the above ruling of the Supreme Court, the first applicant “had never referred to any specific persons who had allegedly ill ‑ treated him” and that he “had always replied that he was well when asked about his health”. The court considered that all the persons involved in the investigation of the applicant's allegation of ill-treatment had been questioned in the course of the trial and all the respective medical reports had been studied. In the light of all the aforementioned, it found the complaint of ill-treatment to be wholly unsubstantiated.",
"114. As regards the statements of witness Mr K., the Supreme Court noted that he “had been examined many times both during the pre-trial investigation and the trial” and that he had recognised the first applicant “without any hesitation”. It further noted as follows:",
"“There is no information from which it could be discerned that the law-enforcement authorities applied unlawful methods to this witness, and therefore his statements were rightly taken into consideration in the basis of the conviction ”.",
"C. Facts concerning the second applicant",
"115. The second applicant worked at a factory run by the victim's family. At the end of May 2004 she was in her eighth month of pregnancy.",
"116. On 21 May 2004, at about 4. 00 p.m., the second applicant was at her workplace. The manager asked her to come in for a work-related conversation, when two plain-clothes police officers, allegedly without any explanation and not allowing her to change out of her uniform into her own clothes, took her to the Pivdenno-Zakhidna Police Station. The second applicant was placed there in a room she described as very cold. The police officers, as well as the widower of Ms I., who was also present at the police station, allegedly shouted at her, threatened her with imprisonment and pushed her in the back, pressurising her to testify against her husband.",
"117. The second applicant wrote that her husband (the first applicant) had been with her at home at the time of the murder.",
"118. After the questioning, which lasted for about four hours, the second applicant was taken back to the factory. She had to wait there for some time until the door was opened so that she could change into her own clothes.",
"119. On 22 May 2004 the second applicant complained to the prosecution authorities about the alleged unlawfulness of her detention on 21 May 2004.",
"120. On 11 June 2004 the prosecution office wrote to her that the police had not violated any criminal procedure legislation."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE AT THE MATERIAL TIME",
"A. Constitution of Ukraine 1996",
"121. Articles 28 and 29 of the Constitution, which are relevant to the case, read as follows:",
"“ Article 28",
"Everyone has the right to respect for his or her dignity.",
"No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...",
"Article 29",
"Every person has the right to freedom and personal inviolability.",
"No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law.",
"In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of their holding in custody.",
"Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.",
"Everyone who has been detained has the right to challenge his or her detention in court at any time.",
"Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”",
"122. Articles 59 and 63 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25 ).",
"B. Criminal Code 2001",
"123. Article 115 envisages seven to fifteen years'imprisonment as the penalty for premeditated murder and imprisonment of ten to fifteen years or for life as the penalty for premeditated murder for profit and/or committed following conspiracy by a group of persons.",
"124. Article 121 penalises premeditated infliction of grievous bodily harm causing the victim's death by imprisonment for seven to ten years.",
"125. Under paragraph 4 of Article 187, assault with intent to rob committed by an organised group or coupled with infliction of grievous bodily harm is punishable by imprisonment for a term of eight to fifteen years, with confiscation of property.",
"126. Paragraph 1 of Article 263 provides for two to five years'imprisonment for illegal possession and use of weapons.",
"127. Under Article 371, deliberately unlawful arrest is a crime punishable by a maximum of five years'imprisonment.",
"C. Administrative Offences Code 1984",
"128. Article 44 prohibits production, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose being trafficking.",
"129. Article 263 provides for administrative detention on account of an administrative offence for a maximum of three hours. In exceptional cases envisaged in the legislation the duration of the administrative detention may be longer. Persons suspected of a drug offence may be detained for up to three hours for compilation of the offence report. If the identity of the suspect is not known, or if there is a need for a medical examination or clarification of the circumstances in which the drug had been procured, or if the drug needs to be analysed, the administrative detention may last up to three days subject to the prosecutor's notification, or up to ten days – subject to the prosecutor's approval and if the offender's identity is unknown.",
"D. Code of Criminal Procedure (CCP) 1960",
"130. The provisions concerning the application of preventive measures and their types, time-limits for pre-trial detention and also the grounds for and procedure of detention by an enquiry body (the investigator in the instant case), can be found in the Molodorych v. Ukraine judgment, no. 2161 /0 2, §§ 5 6 -5 8, 28 October 2010.",
"131. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33 ).",
"132. Under Article 23 -2, if the court discovers a violation of law and/or of citizens'rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation. Failure to take the requisite measures is considered an administrative offence.",
"133. Article 45 provides that legal representation during the enquiry, the pre-trial investigation and the trial before the first-instance court is obligatory if, inter alia, the possible penalty is a life sentence. It further specifies that in this case the legal representation must be provided from the moment of the arrest or the laying of charges against the person.",
"134. Article 97 obliges prosecutors, investigators, bodies of enquiry and judges to accept applications or communications as to the crimes committed or prepared, including in cases that fall outside their competence, and to adopt one of the following decisions within the three-day time limit: ( 1) to institute criminal proceedings; ( 2) to refuse to institute criminal proceedings; or ( 3) to remit the application or communication for further examination according to jurisdiction.",
"135. Pursuant to paragraphs 2 and 4 of Article 155, persons remanded in custody are held in Pre-Trial Detention Centres (SIZOs, part of the penal system). Exceptionally, they may also be held in Temporary Detention Facilities (ITTs, part of the police infrastructure), but for no longer than three days. If it is impossible to ensure a transfer to a SIZO within the aforementioned time-limit, because of its remote location or lack of infrastructure, a detainee may stay in an ITT for up to ten days.",
"136. Under Article 236-1, complaints against decisions of an investigator or prosecutor refusing to initiate criminal proceedings may be filed by a person whose interests it concerns with the local court at the place of the respective authority or official.",
"137. Before the amendments of 21 June 2001, Article 244 had specified that a court ruling following the preparatory hearing prior to a trial had to give reasons in the event of changing the preventive measure. By the aforementioned amendments, that provision was repealed. Article 237, as worded at the material time, obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia, whether there were grounds for changing, lifting or applying a preventive measure.",
"138. Under paragraph 1 of Article 370, essential violations of the criminal procedure legislation are those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just judgment. Paragraph 2 of this Article includes a violation of the right of an accused to defence, as well as a breach of the territorial jurisdiction rules, among such essential violations which warrant the quashing of a judgment in any event (that is, regardless of whether the requirements of paragraph 1 have been met).",
"E. Code of Civil Procedure 1963",
"139. Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials. In particular, Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court.",
"F. Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”) ”",
"140. Articles 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005).",
"141. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by the following point:",
"“ ( 1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”.",
"G. Extracts from the Report of the Commissioner for Human Rights of the Parliament of Ukraine (Ombudsman) for 2004 and 2005",
"142. The relevant extracts from Chapter 4.4 provide as follows:",
"“While being held in police stations detainees are particularly exposed to the risk of being beaten or humiliated. ...",
"The Commissioner has been underlining in each annual report that law-enforcement officials systematically subject detainees to torture. ...",
"The Commissioner has emphasised on numerous occasions that one of the main reasons for violence by the police is the actual preservation of the rate of resolved crimes as a benchmark for performance reporting. The police achieve the required statistics of resolved crimes by torturing innocent persons. And the figures in support of this statement are dramatic. ...",
"The following phenomenon was noted in the past and still remains in place. In order to verify whether a person is involved in a crime, he/she is placed under administrative arrest on falsified grounds and subjected to intensive torture with a view of breaking his/her will and extracting a confession to the crime. It is this period when the detainee is particularly exposed to serious risk of loss of life or becoming disabled or being subjected to unbearable humiliation and loss of dignity. ... ”",
"III. RELEVANT INTERNATIONAL MATERIAL",
"143. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2005 [CPT/Inf (2007) 22] read as follows:",
"“ ...",
"15. Since the CPT's first visit to Ukraine, the treatment of persons deprived of their liberty by Internal Affairs staff has been a cause of very serious concern. The 2005 visit revealed a slight reduction as regards the scale of the phenomenon of ill-treatment, although not sufficient to dispel the Committee's misgivings. Indeed, in the course of the 2005 visit, the Committee's delegation received a significant number of allegations of deliberate physical ill-treatment of detainees [ ... ] inflicted by operational officers, in particular during initial questioning in district police stations with a view to securing confessions in respect of the criminal offence for which the persons in question were detained or additional confessions relating to unsolved crimes. [ ... ] In some cases, the severity of the ill-treatment alleged – which could also consist of a combination of several forms of ill-treatment – was such that it could be considered as amounting to torture.",
"...",
"18. In the light of the delegation's findings, the Committee has no alternative but to revert back to the conclusion it reached in paragraph 20 of its 2002 visit report. Three years later, it has to be said that persons deprived of their liberty by Internal Affairs staff still run a significant risk of being subject to ill-treatment – on occasion, severe ill-treatment/torture – by operational officers, in particular during interrogation. ”",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT",
"144. The first applicant complained that he had been tortured while in police custody and that the domestic authorities had failed to perform a due investigation into the matter. He relied on Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Admissibility",
"145. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. Alleged ill-treatment",
"(a) The parties'submissions",
"146. The first applicant alleged that he had been subjected to torture by electric shocks while in police custody. Referring to the medical reports of 24 May and 10 June 2004 and the findings of the Shepetivka Court in its ruling of 10 July 2006, he emphasised that it was an established fact that he had sustained injuries while being held in the hands of the police. The first applicant further submitted that although the authorities had denied that electric shocks had been administered to him, they had failed to advance any plausible explanation regarding the origin of his injuries. Moreover, the medical report of 29 June 2005 corroborating his allegation had never been challenged or even commented on by the authorities.",
"147. The Government contended that the first applicant had not proven the veracity of the allegation of his ill-treatment beyond reasonable doubt. They noted that he had never raised that complaint before the medical personnel or administration of either the Khmelnytskyy ITT or the SIZO. Although the medical reports of 24 May and 10 June 2004 found that the first applicant had sustained some bodily injuries, they refuted his allegation as to their origin. Furthermore, the injuries in question were classified as minor. Overall, the Government considered that the first applicant's complaint had been duly verified by the domestic courts in the context of his trial and had rightly been dismissed as unfounded.",
"( b ) The Court's assessment",
"148. The Court reiterates that Article 3 of the Convention enshrines core values of the democratic societies making up the Council of Europe and ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted (see, among many other references, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V ). Where allegations are made under this provision, the Court must conduct a particularly thorough scrutiny and will do so on the basis of all the material submitted by the parties (see Matyar v. Turkey, no. 23423/94, § 109, 21 February 2002, and Ülkü Ekinci v. Turkey, no. 27602/95, § 136, 16 July 2002 ).",
"149. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25 ). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see Selmouni, cited above, § 97; and Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 115, ECHR 2000 ‑ X). In the Selmouni judgment, cited above, the Court took the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies (§ 101).",
"150. As the Court has held on many occasions, allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, as a classic authority, Ireland v. the United Kingdom, cited above, § 161 ). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII).",
"151. Turning to the facts of the present case, the Court notes that two forensic medical examinations, of 24 May and 10 June 2004, undertaken on the investigator's orders discovered injuries on the applicant's body –consisting of some twenty pinpoint sores on both ankles and a purple bruise on the thigh – and found that they had been inflicted at the time when he was in police custody (see paragraphs 17 and 22 above). This was not disputed by the parties.",
"152. At the same time the Court observes that the parties advanced different explanations as to the origin of those injuries. On the one hand, the first applicant gave a detailed and consistent account supported by a private institution's forensic medical report of 29 June 2005 (see paragraph 32 above), according to which electric shocks had been administered to him in the police station. On the other hand, the authorities'version supported by official medical reports of 24 May and 10 June 2004 was that the injuries at issue “might have been caused by blunt objects”, with no further details available and without any comments concerning the 29 June 2005 report although it had been included in the case file in the criminal proceedings against the first applicant (see paragraphs 17, 22 and 82 above).",
"153. The Court does not find convincing the Government's explanation as to how the first applicant's injuries were caused. Nor does it accept their view that the first applicant's failure to raise the ill-treatment allegation before the ITT or SIZO administration undermines its plausibility. He might have been discouraged from complaining to the ITT administration by its structural link with the police whom he accused of torture (see paragraph 135 above). At the same time, the Court does not lose sight of his prompt attempts to bring the matter to the attention of the prosecution authorities, as is confirmed by the fact that the KCPO ordered his forensic medical examination as early as 24 May 2004. As regards the first applicant's silence on the matter before the SIZO administration, the Court finds it to be of no relevance, as by the time of his transfer there (on 22 June 2004), the prosecution authorities had arranged for his two medical examinations and had delivered a ruling refusing to bring proceedings against the police officers to establish their criminal liability.",
"154. Bearing that in mind, and given the authorities'failure to challenge, or even to explain, the medical evidence in support of the applicant's allegation of ill- treatment by electric current, the Court finds it established to the standard of proof required in Convention proceedings that the injuries recorded in the medical reports were the result of the treatment of which the applicant complained and for which the Government bore responsibility (see Polonskiy v. Russia, no. 30033/05, § 123, 19 March 2009, and cited therein Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 30, 20 July 2004).",
"155. Having regard to the fact that the applicant confessed to the murder of Ms I. for the first time on 21 May 2004 while being formally under arrest for an unrelated administrative offence and noting the allegations of his beatings by the police prior to his repeated confessions on 26 and 28 May 2004 (see paragraphs 14, 20 and 42 above), the Court considers it probable that the police had intentionally ill-treated him with the aim of extracting confessions from him (see and compare with Durmuş Kurt and Others v. Turkey, no. 12101/03, § 30, 31 May 2007).",
"156. Furthermore, given that both the first applicant and his wife (the second applicant), who was in her eight month of pregnancy at the time, were questioned at about the same time during the day on 21 May 2004 in the same police station, the Court considers plausible the first applicant's allegation about having been implicitly threatened with his wife's torture (see paragraphs 14 and 116 above, as well as paragraph 18 9 below ). The Court reiterates that a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010- ... ). The Court recalls that in the Akkoç v. Turkey case, cited above, it took into consideration the psychological impact of threats made against the victim's children in qualifying the acts in question as amounting to torture (§§ 116 and 117). Similarly, it considers that in the present case the threats concerning the torture of the first applicant's wife – who was particularly vulnerable given her advanced stage of pregnancy and who, as the first applicant knew, was also in police custody – must have exacerbated considerably his mental suffering.",
"157. The Court has already held that subjecting a person to electric shocks is a particularly serious form of ill-treatment capable of provoking severe pain and cruel suffering and therefore falling to be treated as torture, even if it does not result in any long-term health damage (see Polonskiy, cited above, § 124; and Buzilov v. Moldova, no. 28653/05, § 32, 23 June 2009). It sees no reason to apply a different approach to the present case. Moreover, the Court considers that, as suggested by all the circumstances of this case, the ill-treatment sustained by the first applicant was aimed at intimidating and debasing him, driving him into submission and making him confess to a criminal offence.",
"158. Lastly, but no less importantly, the Court does not lose sight of the disturbing findings – concordant with the first applicant's allegations in the present case – made at the material time, by both the Ukrainian Ombudsman and the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, that there was a significant risk of torture for those in police custody, especially during questionings aimed at resolving crimes (see paragraphs 142-143 above).",
"159. Having regard to the severity of the ill-treatment suffered by the first applicant and the surrounding circumstances, the Court finds that he was a victim of very serious and cruel suffering that may be characterised as torture. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.",
"2. Effectiveness of the investigation",
"160. The first applicant contended that there had been no effective domestic investigation into his allegation of torture by the police.",
"161. The Government contested that view. They maintained that the effectiveness of the investigation had been verified and confirmed by the courts at two levels of jurisdiction in the course of the first applicant's trial.",
"162. The Court emphasises that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). Thus the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103 et seq., Reports of Judgments and Decisions 1998 ‑ VIII).",
"163. The Court considers that in the present case the authorities did not make adequate efforts to establish what had happened to the first applicant in Pivdenno-Zakhidna Police Station. It was never disputed that he had sustained injuries in police custody. The authorities, however, consistently confined their reasoning that the applicant's complaint was unsubstantiated to finding implausible the allegation that he had been tortured with electric shocks. At the same time, they did not even attempt to clarify the circumstances in which he had in fact been injured.",
"164. Although the aforementioned omission was admitted and criticised by the domestic authorities on several occasions (see paragraphs 61, 67, 82 and 83 above), it was never remedied. Thus, the Court notes that the first applicant's attempts to reverse the KCPO ruling of 18 June 2004 on its refusal to prosecute the police officers were dismissed under the pretext that the matter would be examined in the context of his own trial (see paragraph 95 above). The Court questions the adequacy of such approach in principle given that the purpose of the criminal proceedings against the applicant was to find him innocent or guilty of the criminal charges levelled against him rather than to attribute responsibility for alleged beatings or afford redress for an alleged breach of Article 3 of the Convention (see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April 2003). The Court observes that the examination by the Ternopil Court of the applicant's allegations of his ill-treatment in police custody was confined to the repeated questioning of the police officers concerned and of the medical experts, who denied that electric shocks had been given to the applicant and submitted that his injuries might have been inflicted by “blunt objects” without giving further explanations. The Court finds it striking that the trial court ignored altogether – as is apparent from its judgment of 31 August 2007 – the alternative medical findings in the case file supporting the first applicant's allegation (see paragraphs 32 and 109 above). As to the subsequent examination of the case by the Supreme Court, the Court cannot but conclude that it was superficial and in apparent disregard of essential documents and facts. In particular, the Supreme Court confined its efforts to analysing the video -recording of the investigative activities in which no injuries were visible on the applicant's body, and this was sufficient for it to find his complaint unsubstantiated. Furthermore, it found that the first applicant “had never referred to any specific persons who had allegedly ill ‑ treated him” and that he “had always replied that he was well when enquiries were made about his health”, although it had been established by that time that he had raised quite specific complaints on numerous occasions naming specific officers (see paragraphs 61, 82 and 113 above), and his injuries sustained in police custody had been officially documented.",
"165. Overall, the Court concludes that the first applicant was denied an effective investigation of his allegation of ill-treatment by the police. There has therefore been a violation of Article 3 of the Convention under its procedural limb as well.",
"II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1, 2, 3 AND 5 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT",
"166. The first applicant complained that his detention from 20 to 26 May 2004 had been unlawful and arbitrary. He further complained that he had not been informed promptly about the reasons for his arrest on 20 May 2004 and that he had not been brought before a judge until the sixth day of his detention. He also complained that his repeated arrests from 22 to 23 November and from 18 to 21 December 2006 respectively had been unlawful, as were the following periods of his detention: from 23 February to 21 March 2007 – as not being covered by any decision; as well as from 14 October 2004 to 5 May 2005 and from 21 March to 31 August 2007 – as being based on unreasoned judicial decisions without any time-limits. Furthermore, the first applicant considered that the overall length of his pre ‑ trial detention could not be regarded as reasonable. Lastly, he complained that the Ukrainian legislation did not envisage the possibility for him to seek compensation for his allegedly unlawful detention. The first applicant relied on Article 5 §§ 1, 2, 3 and 5 of the Convention, which reads as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...",
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”",
"A. Admissibility",
"167. The Government submitted that the first applicant's complaint under Article 5 § 5 of the Convention was to be rejected as being incompatible ratione personae with the Convention provisions, in so far as it concerned the lack of compensation to him for the alleged violations of his rights under paragraphs 2, 3 and 4 of Article 5 of the Convention. They noted in this connection that the first applicant had claimed in substance to be a victim of a violation of paragraph 5 of Article 5 only in conjunction with its paragraph 1 (c), but not in respect of its other provisions.",
"168. The applicant disagreed, noting that in his application he had relied on paragraph 5 of Article 5 in conjunction with its paragraphs 1-4.",
"169. The Court reiterates that it views complaints before it as characterised by the facts alleged in them and not merely by the legal grounds or arguments relied on. Being master of the characterisation to be given in law to the facts of the case and having regard to the substance of the first applicant's complaint under Article 5 § 5 of the Convention, the Court decides to examine it only in conjunction with Article 5 § 1 (c) (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998 ‑ I).",
"170. In the light of such classification, the Government's objection needs be neither upheld nor rejected.",
"171. The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. Article 5 § 1 of the Convention",
"172. The Court notes that the first applicant's complaints under this heading concern several distinct instances or periods of his deprivation of liberty and it will examine them separately.",
"(a) From 2 0 to 26 May 2004",
"173. The first applicant maintained that his apprehension on 20 May 2004 had not been based on a reasonable suspicion that he had committed an offence. He further noted that his detention from 1 p.m. until 10. 45 p.m on 20 May 2004 had not been documented at all, whereas his subsequent detention classified as administrative had been a mere pretext for keeping him available for questioning in respect of the investigated murder. The first applicant emphasised that even that allegedly artificial pretext ceased to exist on 22 May 2004, when an expert concluded that the substance found on him was not a drug. He further submitted that his administrative detention had been converted into criminal and that he had remained detained as a criminal suspect without a judicial warrant from 23 to 26 May 2004, which he considered to be contrary to the safeguards of Article 29 of the Constitution permitting such detention only in specific urgent cases allegedly not applicable to his situation.",
"174. The Government submitted that the first applicant had been arrested on 20 May 2004 on suspicion of a drug offence and that his arrest had been in compliance with Article 263 of the Code of Administrative Offences. They noted that he had been held under administrative detention without a prosecutorial or judicial warrant for the three-day period permissible under the aforementioned legal provision, after which he had been released (on 23 May 2004). As regards the subsequent three days of the first applicant's detention (from 23 to 26 May 2004), the Government maintained that they had been based on a reasonable suspicion of his involvement in a murder and had been in compliance with the criminal procedure legislation.",
"175. The Court reiterates that a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which were the grounds for detention (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300 ‑ A). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. Moreover, in the absence of a reasonable suspicion, the arrest or detention of an individual must never be imposed for the purpose of making him confess, testify against others or elicit facts or information which may serve to ground a reasonable suspicion (see Cebotari v. Moldova, no. 3561 5/06, § 48, 13 November 2007).",
"176. The Court also emphasises that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, 25 May 1998, § 125, Reports 1998 ‑ III).",
"177. Turning to the present case, the Court notes that the only document providing explanations as to the grounds for the first applicant's arrest on 20 May 2004 (prior to his administrative detention) and formulating suspicions on the basis of which the police decided to arrest him, was an internal explanatory note of the arresting officers addressed to their superior, according to which the arrest had been caused by the observation that the applicant had been “walking fast and looking around” and that he had appeared hesitant as to whether to go home or elsewhere (see paragraph 7 above). The Court considers that, firstly, that was not a valid document recording the arrest and, secondly, there was no reasonable suspicion of any crime committed by the first applicant at that stage.",
"178. As regards the subsequent three - day detention of the first applicant ( from 20 to 23 May 2004), documented by the police as based on an administrative offence suspicion, the Court notes that during that period the first applicant was treated as a suspect in the criminal case concerning the murder of Ms I. He was thus interviewed by the investigator in respect of that murder and confessed to it, and the police conducted searches at his registered and actual places of residence (see paragraphs 35-38 above). Looking beyond the appearances and the language used, and concentrating on the realities of the situation, the Court considers that the applicant's administrative detention was in reality part of his detention on remand under Article 5 § 1 (c) as a criminal suspect in the murder case without, however, safeguarding his procedural rights as a suspect, notably the right to defence (see Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008 ‑ ..., and Doronin v. Ukraine, no. 16505/02, § 55-56, 19 February 2009). In the Doronin case cited above (§ 56), the Court condemned such conduct by the authorities as being incompatible with the principle of legal certainty and arbitrary, and as running counter to the principle of the rule of law. That finding holds true even more in the present case, where, unlike in the case of Doronin, there was no judicial decision regarding the applicant's administrative detention, and the suspicion of the drug offence ceased to exist even formally on 22 May 2004, whilst the applicant spent another day in administrative detention (see paragraphs 11-12 and 129 above).",
"179. The Court further observes that from 23 to 26 May 2004 the first applicant was detained upon the investigator's order, on suspicion of murder and assault (see paragraphs 39-40 above). The major point of disagreement between the parties on this point concerned the compliance of that period of detention with the domestic legislation.",
"180. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other references, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996 ‑ III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 ‑ II).",
"181. The Court notes that, under Ukrainian legislation, deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime (see paragraph 121 above). According to further indications in Articles 106 and 115 of the CCP ( see the reference in paragraph 130 above), an investigator could arrest a person if the latter was caught in flagrante delicto, was pointed out as the offender by eyewitnesses /victims, or had clear traces of the crime on his body or clothing. Having regard to the pre ‑ prepared and standard wording of the first applicant's arrest report in the present case, which did not even mention any of those legally envisaged preconditions for arrest (see paragraph 39 above), as well as noting that by the time the applicant was formally detained as a criminal suspect he had already been in detention without judicial supervision for three days, the Court considers that his deprivation of liberty by the investigator from 23 to 26 May 2004 was in breach of the national legal safeguards and therefore unlawful within the meaning of the Convention.",
"182. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the first applicant's detention from 20 to 26 May 2004.",
"(b) From 14 October 2004 to 5 May 2005 and from 21 March to 31 August 2007",
"183. The first applicant submitted that he had been detained during those periods on the basis of the rulings of the Khmelnytskyy City Court and the Ternopil Court of 14 October 2004 and 21 March 2007, respectively, delivered following the preparatory hearings for the trial, and that, in both cases, the rulings had neither given any reasons nor set any time-limits for his detention.",
"184. The Government maintained that the trial courts had been obliged under the domestic law to examine the appropriateness of the preventive measure at the preparatory hearing stage and that there was no indication in the present case that they had not fulfilled that obligation.",
"185. The Court observes that the Ukrainian legislation at the material time did not contain any requirement for a domestic court, when committing a person for trial, to give reasons for changing the preventive measure or for continuing the detention of an accused, or to fix any time-limit when maintaining the detention (see paragraph 137 above).",
"186. The Court notes that the two periods of the first applicant's detention were based on the preliminary hearing rulings of the Khmelnytskyy City Court and the Ternopil Court of 14 October 2004 and 21 March 2007 respectively. The case-file materials before it contain only the second of the aforementioned rulings (see paragraphs 59 and 106 above). The Court observes that the available ruling failed both to give any reasons for the first applicant's detention and to set any time-limits for it. Having regard to the applicable domestic legislation (see paragraphs 130 and 137 above) and in the absence of any evidence to the contrary, the Court infers that the other ruling in question had addressed the issue of the first applicant's detention in the same manner.",
"187. The Court considers that the absence of any precise provisions laying down whether – and if so, under what conditions – detention ordered for a limited period at the investigation stage could properly be prolonged at the stage of the court proceedings does not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 (see Baranowski v. Poland, no. 28358/95, § 55, ECHR 2000-III).",
"188. It has already found a violation of Article 5 § 1 of the Convention in many cases where Ukrainian courts extended detention for an indefinite period of time and without giving reasons (see, for example, Yeloyev v. Ukraine, no. 17283/02, §§ 52-55, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, § 59, 27 November 2008; and Doronin, cited above, § 59, 19 February 2009). Moreover, the Court concluded that this has been a recurrent issue in the case-law against Ukraine stemming from legislative lacunae (see Kharchenko v. Ukraine, no. 40107/02, § 98, 10 February 2011, not yet final).",
"189. The Court therefore concludes that these two periods of the first applicant's detention were in breach of Article 5 § 1 of the Convention.",
"( c ) From 22 to 23 November 2006",
"190. The applicant reiterated his argument in respect of his detention without a reasoned court decision from 23 to 26 May 2004 as equally applicable to his detention from 22 to 23 November 2006 (see paragraph 17 3 above).",
"191. The Government disagreed, stressing that the prosecutorial supervision of the applicant's arrest by the investigator had been in the applicant's favour and had resulted in his release.",
"192. Referring to its findings in paragraph 18 1 above, the Court considers that the applicant's detention from 22 to 23 November 2006 was contrary to domestic law and thus in breach of the lawfulness principle enshrined in Article 5 § 1 of the Convention.",
"193. Accordingly, the Court finds a violation of Article 5 § 1 of the Convention also in respect of this instance of the applicant's deprivation of liberty.",
"( d ) From 18 to 21 December 2006",
"194. The applicant maintained that his arrest from 18 to 21 December 2006 (see paragraph 98 above) had been arbitrary.",
"195. The Government submitted that the first applicant had been remanded in custody under a judicial decision in compliance with the legislation on preventive measures in criminal proceedings.",
"196. The Court emphasises that in order for deprivation of liberty to be considered free from arbitrariness within the meaning of Article 5 § 1 of the Convention, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see Nešťák v. Slovakia, no. 65559/01, § 74, 27 February 2007; and Khayredinov v. Ukraine, no. 38717/04, §§ 27-28, 14 October 2010).",
"197. Regarding the present case, the Court notes that the Khmelnytskyy City Court decided on 18 December 2006 to change the preventive measure imposed on the applicant from an undertaking not to abscond to remand in custody, for the following three reasons: gravity of the charges, risk of absconding and risk of influencing witnesses (see paragraph 98 above). None of those reasons appears valid. The gravity of the charges had not changed significantly, being limited to reclassification on 30 November 2006 of the actions of which the applicant was suspected, without any new facts or circumstances being revealed. As to the stated risk of absconding, neither the prosecutor nor the courts referred to any examples of the applicant's behaviour, while under the undertaking not to abscond, which could indicate such a risk. Finally, the witnesses'alleged fears for their safety were apparently confined to their impression about being followed by some unspecified persons and were not based on any evidence of the first applicant's involvement (see paragraph 99 above). On the other hand, the courts made no assessment of the arguments advanced by the applicant in favour of his release pending trial, such as his frail health, or family and personal situation, all of which were supported by documentary evidence.",
"198. In the light of the foregoing, the Court considers that in the circumstances of the present case the domestic authorities failed to advance comprehensive reasoning to justify the first applicant's deprivation of liberty from 18 to 21 December 2006, which therefore cannot be regarded as being free from arbitrariness.",
"199. Accordingly, the Court finds that there has been a violation of Article 5 § 1 of the Convention on that account as well.",
"( e ) From 23 February to 2 1 March 2007",
"200. The first applicant submitted that his detention during this period had not been covered by any decision and was therefore unlawful.",
"201. The Government disagreed, noting that the impugned detention had been in compliance with the domestic legislation.",
"202. The Court observes that during the said period, which indeed does not appear to have been covered by any decision, the pre-trial investigation in the applicant's case was declared complete and the case was sent by the prosecution authorities to a court and later transferred to another court (see paragraphs 103-106 above).",
"203. The Court notes that while the relevant domestic law regulated the procedural steps in committal proceedings, it did not set clear rules as to by what authority, on what grounds and for what term the detention of the accused could be extended (see Solovey and Zozulya, cited above, § 72).",
"204. The Court has already examined and found a violation of Article 5 § 1 of the Convention in many cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court. It has held that the practice of keeping defendants in detention without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, for example, Yeloyev, cited above, §§ 50-51, with further references). This problem, which has been found to be of the structural nature in Ukraine (see Kharchenko, cited above, §§ 98 and 101), has also manifested itself in the present case.",
"205. The Court therefore concludes that the applicant's detention during this period was not in accordance with Article 5 § 1 of the Convention and finds a violation of that provision.",
"2. Article 5 § 2 of the Convention",
"206. The applicant submitted that he had not received any information about the grounds for his arrest on 20 May 2004 for several hours, whereas the administrative detention report subsequently produced confined those grounds to a mere reference to a legal provision which did not mean anything to him. Lastly, the applicant insisted that his administrative detention had been based on fictitious grounds and had in fact been a pretext for questioning him as a suspect in the criminal investigation into a murder.",
"207. The Government disagreed. They noted that the applicant had been arrested on suspicion of illegal drug possession and that the police report in that regard had been sufficiently clear.",
"208. The Court reiterates that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. By virtue of this provision any person arrested must be told, in simple, non- technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness (see Fox, Campbell and Hartley, cited above, § 40).",
"209. As regards the present case, the Court has already found in the context of its examination of the first applicant's complaints under Article 5 § 1 of the Convention that there was no clearly announced suspicion against him at the time of his arrest on 20 May 2004 and that he was treated as a criminal suspect in a murder case while being formally detained on suspicion of an administrative offence (see paragraphs 17 7 -17 8 above). Furthermore, the Court observes that the police report on the first applicant's administrative detention merely referred to a legal provision as a ground for the detention, and there is no indication that more comprehensive information was provided to the applicant verbally ( for the facts see paragraph 9 above; and for case-law where the Court has considered the bare indication of a legal provision as a basis for the arrest to be insufficient for the purposes of Article 5 § 2 of the Convention, see Fox, Campbell and Hartley, cited above, § 41).",
"210. It is not discernible from these circumstances how the first applicant could have been aware of the factual and legal grounds for his detention. On the contrary, he must consequently have been left in a state of uncertainty and confusion as to why he had been deprived of his liberty on 20 May 2004.",
"211. It follows that there has been a violation of Article 5 § 2 of the Convention in the present case.",
"3. Article 5 § 3 of the Convention",
"(a) The right to “be brought promptly before a judge”",
"212. The first applicant contended that the six-day delay in bringing him before a judge following his arrest on 20 May 2004 was not compatible with the aforementioned right.",
"213. The Government stressed that on 20 May 2004 the applicant had been arrested on suspicion of an administrative offence, and that the legal procedure for that type of arrest did not require that he be brought before a judge.",
"214. The Court reiterates that prompt judicial control is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, one of the fundamental principles of a democratic society (see Brogan and Others v. the United Kingdom, 29 November 1988, § 58, Series A no. 145 ‑ B). While promptness has to be assessed in each case according to its special features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999 ‑ III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006 ‑ X).",
"215. In the present case, the Court considers, in the light of its findings in paragraphs 17 7-179 and 182 above, that the first applicant's detention within the meaning of Article 5 § 1 (c) of the Convention commenced on 20 May 2004 and was not subjected to any judicial scrutiny until 26 May 2004. There is no objective justification for that delay. Moreover, the Court has established that during the aforementioned period the first applicant was detained in an unlawful and arbitrary manner and suffered serious ill ‑ treatment at the hands of the police (see paragraphs 15 4, 15 9 and 18 2 above). Prompt judicial control might have prevented all that from happening, but there was none for six days, which the Court considers an unacceptably long time.",
"216. The Court therefore finds a violation of Article 5 § 3 of the Convention in respect of the first applicant's right to “be brought promptly before a judge”.",
"(b) The right to “trial within a reasonable time or to release pending trial”",
"217. The first applicant maintained that the overall length of the periods of his pre-trial detention from 20 May 2004 to 5 May 2005 and from 18 December 2006 to 31 August 2007 was unreasonable.",
"218. The Government considered that the first applicant's administrative detention from 20 to 23 May 2004 had to be excluded from the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention (from 23 May 2004 to 5 May 2005). In the Government's view, the length of that period was not unreasonable given the seriousness of the charges against the applicant, the complexity of the case, the amount of the inherent investigation work, and the diligence demonstrated by the investigation authorities and the trial court. They also noted that during the aforementioned period the first applicant had never requested a change in the preventive measure. As regards the applicant's detention from 18 December 2006 to 31 August 2007, the Government submitted that, on the one hand, it had been based on adequate and sufficient grounds, and, on the other hand, the competent authorities had been dealing with the case with due diligence.",
"219. The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty (see Ječius v. Lithuania, no. 34578/97, § 93, ECHR 2000 ‑ IX). The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention. However, after a certain lapse of time it does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention (see Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000). Those grounds, moreover, should be expressly mentioned by the domestic courts, and the arguments brought for and against release must not be “general and abstract” (see Iłowiecki v. Poland, no. 27 504/95, § 61, 4 October 2001, and Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX).",
"220. Having regard to the Court's considerations and findings in paragraphs 17 2 -20 5 above, it considers that the periods to be taken into consideration were from 20 May 2004 to 5 May 2005 and from 18 December 2006 to 31 August 2007 and lasted in total for one year and eight months (see, for the calculation approach, Isayev v. Russia, no. 20756/04, § 144, 22 October 2009).",
"221. The Court notes that Article 5 § 3 of the Convention forms a whole with Article 5 § 1 (c) and that these two provisions must be read in conjunction with each other (see Smirnova, cited above, § 56, and Ciulla v. Italy, 22 February 1989, § 38, Series A no. 148). Thus, in the present case, the Court has already examined certain periods of the first applicant's detention from the angle of Article 5 § 1 (c) of the Convention, namely: the period from 14 October 2004 to 5 May 2 005 and from 21 March to 31 August 2007, being based on judicial decisions without giving reasons or setting time-limits for the detention, which, in its turn, was not contrary to the domestic law; the applicant's repeated remand in custody on 1 8 December 2006 without due justification; and from 23 February to 21 March 2007, being a period not covered by any decision (see paragraphs 18 9, 19 9 and 20 5, respectively, above).",
"222. To supplement its aforementioned findings under Article 5 § 1 (c), the Court will assess whether the first applicant's continued detention can be considered reasonable within the meaning of Article 5 § 3 of the Convention.",
"223. It notes that, as regards the first term complained of (from 20 May 2004 to 5 May 2005), the Khmelnytskyy City Court, in its rulings of 26 May and 20 July 2004, justified the first applicant's continued detention by relying, in a general and abstract manner, on the seriousness of the charges against him and the inherent risk of his absconding or hindering the investigation if at large. It did not consider the applicant's personality or any other specific facts regarding his situation which could have corroborated or, by contrast, dispelled those fears.",
"224. As regards the second term in question (from 18 December 2006 to 31 August 2007), it appears from the documents on the domestic proceedings at the Court's disposal that during that period the Ukrainian courts extended the applicant's pre-trial detention twice in December 2006 and January 2007 (with the exact dates being illegible in the available copies). The Court notes that it has found flawed the reasoning advanced by the domestic courts for the first applicant's re-arrest on 18 December 2006 (see paragraphs 19 8-199 above). It further observes that their reasoning for continuing his detention thereafter did not evolve to meet the standards of Article 5 § 3 of the Convention.",
"225. The Court therefore concludes that there has been a violation of Article 5 § 3 of the Convention on account of the insufficiency of the grounds for the first applicant's continued pre-trial detention during the above- mentioned periods.",
"4. Article 5 § 5 of the Convention",
"226. The first applicant contended that he had no enforceable right to compensation in respect of the alleged breaches of Article 5.",
"227. The Government submitted that, in the absence of recognition by the domestic courts of the unlawfulness of the applicant's detention as alleged, his compensation claim had been without basis.",
"228. The Court reiterates that Article 5 § 5 guarantees an enforceable right to compensation to those who have been the victims of arrest or detention in contravention of the other provisions of Article 5 (see Steel and Others v. the United Kingdom, 23 September 1998, § 81, Reports 1998 ‑ VII).",
"229. In the present case the Court has found several violations of Article 5 § 1 in conjunction with which the present complaint is to be examined (see paragraphs 18 2, 18 9, 19 3, 19 9 and 20 5, as well as paragraph 16 9, above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether Ukrainian law afforded or now affords the first applicant an enforceable right to compensation for the breaches of Article 5 § 1 of the Convention in his case.",
"230. The Court observes that it has found violations of Article 5 § 1 on account of the first applicant's detention: from 20 to 26 May 2004; from 14 October 2004 to 5 May 2005; from 22 to 23 November 2006; upon his re-arrest from 18 to 21 December 2006; as well as his detention from 23 February to 31 August 2007 ( follow the references given in paragraph 22 9 above).",
"231. The Court notes that the issue of compensation for unlawful detention is regulated in Ukraine by the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act” – see paragraphs 140-141 above). Before its amendments of 1 December 2005, it provided for compensation for unlawful detention only in case of the ultimate acquittal of the detainee or termination of the criminal proceedings against him/her on exonerative grounds. Following those amendments, the right to such compensation also arose where the unlawfulness of the detention was established by a judicial decision.",
"232. The Court observes that at the time of the first period of the applicant's detention found to be unlawful (from 20 to 26 May 2004) the Compensation Act was not applicable to his situation unless the charges against him were dropped. As regards his detention from 14 October 2004 to 5 May 2005, from 23 February to 31 August 2007 and his re-arrest on 18 December 2006, they were not contrary to the domestic law, and the first applicant would therefore have had no prospect of their recognition as unlawful by the Ukrainian courts. Lastly, as to the applicant's detention from 22 to 23 November 2006, the courts found it to be lawful, thus depriving the applicant of any basis for a compensation claim in that regard.",
"233. It follows that in the first applicant's case the Compensation Act did not provide for an enforceable right to compensation. It does not appear that such a right was or is secured under any other provision of the Ukrainian legislation, given the absence of any legally envisaged procedure for bringing proceedings to seek compensation for the deprivation of liberty found to be in breach of one of the other paragraphs by the Strasbourg Court.",
"234. The Court concludes that the first applicant did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.",
"III. ALLEGED VIOLATIONS OF ARTICLE 5 § 4 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT",
"235. The first applicant also raised a number of complaints under Article 5 § 4 of the Convention which reads as follows:",
"“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"A. The parties'submissions",
"236. The first applicant denied that any effective procedure had been available to him for judicial review of the lawfulness of his detention. He contended that there had been violations of Article 5 § 4 of the Convention on the following grounds: (a) the alleged procedural unfairness of the court hearing of 18 December 2006 following which he had been remanded in custody instead of the earlier measure, an undertaking not to abscond (namely, no timely access to the prosecutor's application or other materials in the case file essential for his defence); (b) the same issues alleged in respect of the hearing of 21 December 2006, further exacerbated by the fact that it had taken place in the first applicant's absence; (c) the lack of any possibility for the first applicant to obtain judicial review of the lawfulness of his detention during the pre-trial investigation; and (d) the lack of any legally-enshrined guarantees of speedy judicial review of the lawfulness of his pre-trial detention during the judicial proceedings.",
"237. The Government disagreed. They noted that it had been open to the applicant to challenge on appeal the court rulings ordering his detention delivered before the trial, but that neither he nor his lawyer had done so. Furthermore, the first applicant had not been limited in his right to introduce requests for release during the judicial proceedings, but had refrained from doing so for unknown reasons. The Government also maintained that the courts had provided adequate judicial review of the lawfulness of the first applicant's detention where they had had that duty under the criminal procedure legislation (namely, during the preparatory hearings and when examining the prosecutor's applications for the detention extension).",
"238. In his observations in reply to those of the Government, the first applicant further submitted that in those cases where the domestic courts had examined the lawfulness of his detention following the prosecutor's applications, they had failed to make any assessment of the arguments in favour of his release.",
"B. The Court's assessment",
"1. General principles",
"239. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002 ‑ I).",
"240. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 ‑ ..., with further references). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318 ‑ B). Furthermore, although the Convention does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, “a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance” (see, for example, Navarra v. France, 23 November 1993, § 28, Series A no. 273 ‑ B).",
"241. Lastly, the Court stresses that the question whether a person's right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case ( see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000 ‑ XII).",
"2. Application in the present case",
"242. The Court will examine the first applicant's complaints in the order presented in his application.",
"(a) Alleged unfairness of the hearing of 18 December 2006",
"243. The Court observes that this complaint concerns the following two aspects: firstly, the judicial review of the first applicant's detention from 22 to 23 November 2006, which took place at the hearing in question, and, secondly, his repeated remand in custody. The Court notes in respect of the first-mentioned aspect that, since the purpose of the remedy required by Article 5 § 4 is to facilitate a detained person's release (see paragraph 23 9 above), it was no longer applicable to the applicant's situation following his release on 23 November 2006 prior to any judicial control (see Fox, Campbell and Hartley, cited above, § 45). As to the second-mentioned aspect, the Court notes that the judicial review complained of was incorporated in the applicant's initial placement in pre-trial detention on 18 December 2006, which the Court has already examined from the angle of Article 5 § 1 of the Convention (see paragraph 19 4 -19 9 above). In any event, the Court notes that the applicant failed to raise the allegation about his lack of timely access to the case file, which is his major argument in support of the procedural unfairness allegation, before the appellate court (see also paragraph 24 4 below). Accordingly, he cannot be considered to have exhausted the domestic remedies, and this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.",
"(b) Alleged unfairness of the hearing of 21 December 2006",
"244. In so far as the first applicant complained about the alleged procedural unfairness of the hearing of the Khmelnytskyy Regional Court of 21 December 2006, the Court observes that the proceedings in question were those at appellate level in respect of the ruling of the Khmelnytskyy City Court of 18 December 2006. As to the applicant's allegation about the limited possibility of the defence to study the case file, the Court observes that although the applicant lodged before this Court the same complaint in respect of the first-instance proceedings, neither he nor any of his representatives had mentioned that grievance in their appeals against the ruling of 18 December 2006 (see paragraphs 99 and 24 3 above). The Court therefore finds them unsubstantiated. Regarding the examination of the case by the Khmelnytskyy Regional Court in the first applicant's absence, the Court notes that, in principle, it is permissible for the court of appeal reviewing a detention order issued by a lower court to examine only the detainee's lawyer, subject to sufficient procedural guarantees at the hearing before the first-instance court (see Lebedev v. Russia, no. 4493/04, § 114, 25 October 2007). Given that the first applicant had personally participated in the first-instance proceedings on 18 December 2006 (see paragraph 98 above) and noting that he did not allege any concrete matters which would have made his personal presence in the appellate-level hearing indispensable, the Court finds that his absence from that hearing was not incompatible with the Article 5 § 4 safeguards.",
"245. The Court therefore rejects this complaint as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.",
"(c) Alleged inability of the first applicant to obtain judicial review of the lawfulness of his detention during the pre-trial investigation",
"246. The Court notes that the first applicant has not provided any information or documents showing that he challenged on appeal the court rulings on his remand in custody and on the extension of his detention, of 26 May and 20 July 2004 respectively, although such a possibility was envisaged by the national legislation ( see the case referred to in paragraph 130 above ). The Court cannot examine in abstracto the quality and speediness of a judicial review which was not sought by the applicant and did not therefore take place (see Shalimov v. Ukraine, no. 20808/02, § 57, 4 March 2010).",
"247. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"(d) Alleged inability of the first applicant to obtain speedy judicial review of the lawfulness of his detention during the judicial proceedings",
"248. The Court notes that indeed at that stage of the proceedings the judicial review of the first applicant's detention (still considered pre-trial, before the delivery of a judgment on the merits ) was dependent on the schedule of hearings in the case, as the Code of Criminal Procedure did not differentiate between requests for release and any other applications examined in the course of the trial hearings. The Court has examined this issue in a number of other cases against Ukraine and found it to be a recurring problem due to lack of clear and foreseeable provisions that would provide for the procedure during the trial stage which is compatible with requirements of Article 5 § 4 of the Convention (see Molodorych v. Ukraine, cited above, § 108; and Kharchenko v. Ukraine, cited above, § 86).",
"249. It follows that there has been a violation of Article 5 § 4 of the Convention in the present case.",
"IV. ALLEGED VIOLATIONS OF ARTICLE 6 § § 1 AND 3 (C) OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO DEFENCE",
"250. The first applicant complained that he had been convicted on the basis of statements given under torture and without the assistance of a lawyer while being held in police custody. He relied on Article 6 § § 1 and 3 (c) of the Convention, which in so far as relevant provides:",
"“In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights: ...",
"(c) to defend himself in person or through legal assistance of his own choosing ...”",
"A. Admissibility",
"251. The Government submitted that the above complaints concerned the first applicant's confession statements before the commencement of the criminal proceedings against him and were therefore incompatible ratione materiae with Article 6 § 1 of the Convention.",
"252. The first applicant maintained that at the time he had made the confessions complained of he had been treated de facto as a criminal suspect and had therefore been subject to the protection guaranteed by Article 6 § 1.",
"253. The Court notes that the time from which Article 6 applies in “criminal” matters depends on the circumstances of the case. The prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a “substantive”, rather than a “formal”, conception of the “charge” contemplated by Article 6 § 1 (see Šubinski v. Slovenia, no. 19611/04, § 62, 18 January 2007).",
"254. As regards the present case, the Court has already upheld the above assertion of the first applicant in the context of the examination of his complaint under Article 5 § 1 (see paragraph 17 8 above). It therefore concludes that Article 6 § 1 of the Convention was applicable to him from the time of his arrest by the police on 20 May 2004.",
"255. Accordingly, the Court rejects the Government's objection. It further notes that theses complaints are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties'submissions",
"256. The first applicant maintained that he had been coerced into confessing to the murder and attempted robbery of Ms I. in the absence of any legal assistance. He stressed the serious nature and degree of the coercion applied to him, considering it to amount to torture and noted that the confessions in question had had a considerable probative value in securing his conviction. The first applicant stressed that his legal representation had been mandatory under the domestic legislation from the time of his arrest, given the possibility of a life sentence. He further submitted that the contracted lawyer had not had regular access to him, and that he had continued to fear ill-treatment by the police even after being legally represented.",
"257. The Government disagreed. They submitted that the first applicant had been questioned in a lawyer's presence on 23 May 2004 – from his very first interrogation as a suspect in the criminal proceedings – and thereafter, whereas his earlier confessions had not been decisive for his trial. The Government emphasised that the admissibility of evidence was primarily a matter for regulation under national law, and that the applicant had been given an opportunity to challenge the evidence against him in adversarial proceedings with the benefit of legal advice. They noted that his grievances in that regard had been duly verified and dismissed as unsubstantiated by the domestic courts in the course of his trial.",
"2. The Court's assessment",
"(a) The right not to incriminate oneself",
"258. As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court emphasises that these are generally recognised international standards which lie at the heart of the notion of fair procedures under Article 6 of the Convention. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996 ‑ VI).",
"259. Although the admissibility of evidence is, as a matter of principle, a prerogative of domestic courts, with the role of this Court being limited to assessing the overall fairness of the proceedings, particular considerations apply to evidence recovered by a measure found to violate Article 3 of the Convention. Thus, according to the Court's case-law, admission of statements obtained as a result of torture as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair irrespective of their probative value and of whether their use was decisive in securing the defendant's conviction (see Gäfgen v. Germany, cited above, § 166, with further references).",
"260. The Court has found in the present case that the first applicant's initial confessions had been extracted from him by ill-treatment amounting to torture within the meaning of Article 3 of the Convention (see paragraphs 154 -15 9 above). It also notes that the domestic courts admitted those confessions as evidence in his trial (see paragraph 109 above). In the light of the principles of its case-law as outlined above, the Court considers that this extinguished the very essence of the first applicant's privilege against self-incrimination irrespective of the weight of the impugned confessions in the evidential basis for his conviction and regardless of the fact that he had confessed again several times during the investigation.",
"261. Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect.",
"(b) The right to defence",
"262. The Court emphasises that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Krombach v. France, no. 29731/96, § 89, ECHR 2001 ‑ II). As a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid).",
"263. The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused at the early stages of the proceedings when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54).",
"264. Although it is not known in the present case when exactly the applicant became legally represented, it transpires from the facts of the case and is not disputed by the parties that it was not before 23 May 2004. The Court emphasises that by having formally placed the applicant in administrative detention but in fact treating him as a criminal suspect, the police deprived him of access to a lawyer, which would have been obligatory under the Ukrainian legislation had he been charged with the offence of murder committed by a group of persons and/or for profit, an offence in respect of which he was in fact being questioned.",
"265. The Court notes that the first applicant confessed several times to assault and murder at the early stage of his interrogation when he was not assisted by counsel, and was undoubtedly affected by the restrictions on his access to a lawyer in that his confessions to the police were used for his conviction (see Salduz, cited above, § 58). Although the first applicant repeated his confessions in the lawyer's presence, the Court considers that the early restrictions of his defence rights were not remedied in the course of the trial, as the courts failed to give an adequate response to the first applicant's complaint of ill-treatment.",
"266. Furthermore, as admitted by the domestic authorities, once legally represented the first applicant did not enjoy unimpeded access to his contracted lawyer (see paragraphs 58 and 84 above).",
"267. The Court therefore concludes that there has been a violation of Article 6 § 3 (c) of the Convention.",
"V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT ON ACCOUNT OF THE REASONING OF THE DOMESTIC COURTS'JUDGMENTS, BY WHICH HE WAS CONVICTED",
"268. The first applicant complained that his conviction by the Ternopil Court and the Supreme Court's ruling upholding that judgment had been manifestly ill-reasoned.",
"A. Admissibility",
"269. The Court notes that this complaint is neither manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"270. The first applicant submitted that the domestic courts had failed to make any assessment of the circumstances in which the statements of Mr K. as the key witness for the prosecution had been obtained, even though the defence had consistently referred to specific facts and documents suggesting that the investigation had resorted to coercion of that witness.",
"271. The Government contended that the judicial decisions convicting the first applicant had been well- reasoned. They noted in particular that the statements of the witness Mr K. had been duly assessed and admitted in evidence. The Government stressed that the first applicant, having been legally represented and having participated personally in the hearings of the courts at two levels of jurisdiction, had an adequate opportunity to contest that evidence.",
"272. The Court notes that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I, with further references).",
"273. The Court also reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45-46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998 ‑ IV). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX).",
"274. In that context, regard must also be had, in particular, to whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. The quality of the evidence is also taken into account, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006 ‑ IX).",
"275. The Court observes that, in the present case, in their finding of the first applicant's guilt the domestic courts relied on the statements of Mr K., whom they considered to be a key witness in the case (see paragraphs 63 and 81 above). The first applicant alleged during his trial that Mr K. had incriminated him under pressure from the police, which Mr K. himself denied in the hearing. On the surface, the procedural safeguards appear to have been respected. Having regard to the particular circumstances of this case, the Court considers, however, that the first applicant was not allowed an adequate opportunity to challenge the probative value of those statements.",
"276. The Court thus observes that the first applicant referred to specific facts and documents showing that at the time of his questioning by the investigator Mr K. (a taxi - driver without any criminal record or history of other offences mentioned in the case-file materials) had been in administrative detention on account of a drug -related offence. As contended by the first applicant (and confirmed by the Khmelnytskyy City Court in its judgment of 5 May 2005), the statements of Mr K. changed during that particular period of time to the first applicant's disadvantage. The applicant also submitted to the trial court an audiotape of a conversation he had had with Mr K., in which the latter had allegedly admitted to having slandered the first applicant under police pressure (see paragraph 112 above).",
"277. The Court finds the responses of both the first-instance court and the Supreme Court to those arguments to be strikingly scant and inadequate. While dismissing as unfounded the first applicant's allegations about pressure on the witness and noting that “there [was] no information from which it could be discerned [otherwise] ” (see paragraphs 108 and 114 above), the courts failed to comment on the undisputed fact of the administrative detention of Mr K. and ignored the existence of the audiotape referred to by the applicant even though it had been included in the case-file materials ( see paragraph 112 above).",
"278. By way of contrast, the Court refers to its decision of 16 March 2000 in the case of Camilleri v. Malta ( no. 51760/99 ), in which it rejected as manifestly ill-founded the applicant's complaint that his conviction had been based on an incriminating statement by his cellmate because: firstly, the domestic courts had given detailed reasons for its decision to attach weight to the accusatory statement of that key witness; secondly, it was established that the statement in question had been given of the witness'own volition; and, lastly, it had remained consistent throughout the investigation.",
"279. Turning to the present case, the Court notes that : firstly, the courts decided to attach weight to the accusatory statements of Mr K. in disregard of specific and pertinent facts with a potential to undermine their reliability and accuracy; secondly, it was never established in a convincing manner that Mr K. had made those statements of his own free will – the fact that he had pursued that approach in the court might merely have resulted from continuing intimidation; and, lastly, the statements of Mr K. became consistently unfavourable for the first applicant from the time of his questioning, coinciding with his own detention.",
"280. The Court has held, in the context of its examination of the fairness of civil proceedings, that by ignoring a specific, pertinent and important point of the applicant, the domestic courts fall short of their obligations under Article 6 § 1 of the Convention (see Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006). It observes a similar issue in the present case, where that requirement, although being even more stringent in the context of criminal proceedings, was not met.",
"281. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in this regard.",
"VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT",
"282. The first applicant raised a general complaint about the allegedly inadequate conditions of his detention in the Khmelnytskyy ITT from 21 May to 22 June 2004. Referring to the allegedly unlawful and unjustified transfer of his case for trial to the Ternopil Court, he further complained that he had not been tried and convicted by “an independent and impartial tribunal established by law” as required by Article 6 § 1 of the Convention. The first applicant also complained under the same provision that the length of the criminal proceedings against him had not been reasonable. He next complained under Article 6 § 2 that the Shepetivka Court and the Ternopil Court violated the principle of the presumption of innocence by their rulings of 10 July and 4 October 2006, having allegedly, de facto, found him guilty while remitting the case for additional investigation. The first applicant further alleged a violation of Article 18 of the Convention in respect of his arrests on 22 November and 18 December 2006, contending that their actual purpose had been retaliation on the part of the authorities for his attempts to have criminal proceedings brought against the police officers. Lastly, he invoked Articles 8 and 13 of the Convention, without being more specific.",
"283. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions on which the applicant relied.",
"284. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"VII. ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT",
"A. Article 3 of the Convention",
"285. The second applicant complained that on 21 May 2004 she had been subjected to threats and humiliations by the police, which had amounted to degrading treatment contrary to Article 3 of the Convention given her condition at that time (being in the eighth month of pregnancy).",
"286. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Ireland v. the United Kingdom, cited above, § 162). The assessment of this minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.",
"287. Having regard to all those factors in the present case, the Court observes that, while the second applicant's questioning in the police station might have been a source of stress and anxiety for her, it cannot be said to have reached the threshold proscribed by Article 3 of the Convention.",
"288. Consequently, this part of the application must be rejected under Article 35 §§ 3 (a) and 4 of the Convention as being manifestly ill-founded.",
"B. Article 5 § 1 of the Convention",
"289. The second applicant also complained that on 21 May 2004 the police had deprived her of liberty for about four hours in the absence of any grounds or the safeguards envisaged by Article 5 § 1 of the Convention.",
"290. The Court notes that the second applicant failed to challenge the refusal of the prosecution authorities to initiate a criminal investigation into the matter – if a formal decision had been taken in that regard, which is not clear from the facts of the case; or to contest the inaction of the prosecution authorities – if no decision had been issued following her complaint (for the applicable legislation, see paragraphs 131 and 134 above).",
"291. Accordingly, the Court considers that she cannot be regarded as having exhausted domestic remedies as required by Article 35 § 1 and rejects this complaint under Article 35 § 4 of the Convention.",
"VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"292. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"293. Having found no violations of the Convention or the Protocols thereto in respect of the second applicant, the Court notes that Article 41 of the Convention is not applicable to her. It will therefore not examine her just satisfaction claims.",
"A. Damage in respect of the first applicant",
"294. The first applicant claimed EUR 80,000 in respect of non-pecuniary damage.",
"295. The Government contested that claim.",
"296. The Court notes that it has found a combination of violations in the present case and accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. The Court therefore finds it appropriate to award him EUR 35,000 under that head.",
"297. Furthermore, given the Court's findings regarding the unfairness of the domestic proceedings resulting in the first applicant's conviction and having regard to the extremely grave and disconcerting circumstances of this case, including the fact that confessions obtained in violation of the absolute prohibition on torture were admitted into evidence, the Court considers it indispensable for the proper protection of human rights that a retrial (a possibility of which is envisaged in the Ukrainian legislation) be provided forthwith should the first applicant so request. Any such trial must observe, strictly, the substantive and procedural safeguards enshrined in Article 6 of the Convention.",
"B. Costs and expenses in respect of the first applicant",
"1. Legal representation in the proceedings before the Court",
"298. The first applicant claimed EUR 14,444 in respect of his legal representation by Mr Bushchenko in the proceedings before the Court, which included: EUR 12,950 for legal work at EUR 100 per hour; EUR 1,036 for administrative costs (including translation services, photocopying, etc.); and EUR 458 for postal expenses. To substantiate that claim, he submitted a legal assistance contract of 8 August 2004, which stipulated that it would remain valid until the completion of the proceedings in Strasbourg and that payment would be made thereafter and within the limits of the sum awarded by the Court in costs and expenses. The first applicant also submitted seven time-sheets and expense reports completed by Mr Bushchenko in respect of the work done over the period 2004-2010.",
"299. The Government emphasised that the first applicant had been granted legal aid by the Council of Europe, without disputing the details of the calculations submitted by him.",
"300. The Court must establish, firstly, whether the costs and expenses indicated by the first applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324 ).",
"301. As is apparent from the case-file materials, Mr Bushchenko has been representing the first applicant throughout the proceedings before the Court and is therefore entitled to seek payment of his fees under the contract. Accordingly, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no 37083/03, § 106, ECHR 2009 ‑ ... ).",
"302. Taking into account the complexity of the present case as well as the quality and volume of the legal work carried out, the Court does not consider that the claim is excessive and awards it to the first applicant in full, namely EUR 13,594 (which is equal to the requested amount of EUR 14,444 less EUR 850 as the sum received by way of legal aid), plus any value-added tax that may be chargeable to the first applicant.",
"2. Legal representation in the domestic proceedings",
"303. The first applicant also claimed EUR 15,000 in respect of his legal representation in the domestic proceedings, without submitting any documents.",
"304. The Government contested the claim as being exorbitant and not supported by documents.",
"305. In the absence of any evidence before it as to whether the costs claimed were actually and necessarily incurred, the Court makes no award under this head.",
"3. Other expenses",
"306. The first applicant claimed USD 374 in respect of the travel expenses of his father, who was his representative in the domestic proceedings, and USD 227 in respect of the travel expenses of his other family members.",
"307. The Government contested those claims.",
"308. Regard being had to the information and documents in its possession and the criteria regarding the reimbursement of costs and expenses set out in its case-law (see paragraph 300 above), the Court rejects these claims.",
"C. Default interest",
"309. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
203 | Mader v. Croatia | 21 June 2011 | Serving a prison sentence for murder, the applicant complained in particular of having been beaten by the police during his questioning at the Zagreb Police Department, of having been forced to sit on a chair and having been deprived of sleep and food during the three days that he was questioned. He also complained that the criminal proceedings against him had been unfair, in particular as he had lacked legal assistance during the police questioning. | The Court held that there had been a violation of Article 6 § 3 in conjunction with Article 6 § 1 of the Convention, on account of the lack of legal assistance afforded to the applicant during his questioning by the police. While it was not for the Court to speculate on the impact which access to a lawyer during police custody would have had on the ensuing proceedings, it was clear that neither the assistance provided subsequently by a lawyer nor the adversarial nature of the proceedings could counteract the defects which had occurred during his initial questioning. The applicant had further not waived his right to legal assistance during his police questioning, as he had complained about the lack of that assistance from the initial stages of the proceedings. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention both in respect of the applicant’s treatment at the Zagreb Police Department and in respect of the failure to investigate his complaint. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1950 and is currently serving a prison term in Lepoglava State Prison.",
"5. The documents in the case-file reveal the following facts.",
"1. The applicant ’ s arrest and police questioning",
"6. On 1 June 2004 at 6 a.m. six police officers from the Zagreb Police Department came to the applicant ’ s house in Križ and asked the applicant and his wife to accompany them. The applicant and his wife complied and were taken by police car to the Zagreb Police Department ( Policijska uprava zagrebačka ).",
"7. Shortly after 6 a.m. they arrived at the Zagreb Police Department in Heinzlova Street and the applicant was placed in the interview room.",
"8. A polygraph test of the applicant was carried out on 1 June 2004 between 11 a.m. and 6.15 p.m. The file does not contain documents which could clarify the applicant ’ s whereabouts or treatment at the police station during the initial twenty - five hours. It is undisputed, however, that the applicant remained at the police station.",
"9. A report on the applicant ’ s arrest drawn up by police officers states that the applicant was formally arrested at 7 a.m. on 2 June 2004 on suspicion of murdering one V.M., and was taken into police custody for twenty-four hours under Article 97 of the Code of Criminal Procedure (see “Relevant domestic law” below). The applicant was informed of his right to a defence lawyer and lawyer E.Z. was contacted on 2 June 2004 at 10 a.m., but did not come to the police station. The applicant signed the report without making any comments.",
"10. In the afternoon of 3 June 2004 the dead body of V.M. was found in a vineyard near the town of Kutina, which came under the jurisdiction of the Sisak County Court. An investigating judge of the Sisak County Court carried out the on-site inspection between 12.30 p.m. and 3.30. p.m.",
"11. According to the official record of the applicant ’ s police questioning in the Zagreb Police Department by police officer S.I., lawyer P.B. was called by the police at 11 p.m. on 3 June 2004 and arrived at the Zagreb Police Department at ten past midnight on 4 June 2004. The record of the questioning states that the questioning commenced at 25 minutes past midnight on 4 June 2004 and was completed at 2.30 a.m. the same day, with lawyer P.B. being present throughout. According to this record the applicant confessed that on 3 May 2004 during a fight with V.M. he had shot and killed the latter and then buried his dead body in a vineyard. The written record was signed by both the applicant and lawyer P.B. and also by S.I. and a typist.",
"2. Investigation and trial",
"12. On 4 June 2004 the Zagreb Police Department filed a criminal complaint against the applicant with the Zagreb County State Attorney ’ s Office and the investigating department of the Zagreb County Court, on charges of murdering V.M. The same day at 6.30 p.m. the applicant was brought before an investigating judge of the Zagreb County Court, in the presence of a defence lawyer chosen by the applicant who submitted a power of attorney to the investigating judge. The applicant decided to remain silent and merely stated that he had not called counsel P.B. to the Police Department.",
"13. After being heard by the investigating judge, the applicant was transferred to Zagreb County Prison. The medical record from the prison does not indicate any injuries on the applicant ’ s arrival.",
"14. On 7 June 2004 the applicant was again brought before the investigating judge, in the presence of his chosen counsel, and decided to remain silent. The investigating judge then ordered that the applicant be placed under investigation for murder. The applicant was placed in detention on remand.",
"15. On 13 July 2004 the investigating judge ordered a psychiatric examination of the applicant in order to ascertain his ability to understand his actions at the time when the criminal offence at issue was committed and his mental state during the police questioning. The report drawn up on 21 July 2004 found that the applicant was not suffering from any disorder capable of adversely affecting his capacity to answer the questions and that during the police questioning he had been fully conscious and mentally competent. The psychiatrist who drew up the report interviewed the applicant from 15 to 20 July 2004 and also based her conclusions on the police record of the applicant ’ s questioning. The psychiatric report was communicated to the applicant ’ s defence counsel.",
"16. On 14 July 2004 an officially appointed lawyer, M.K., was assigned to the applicant, since meanwhile his chosen lawyer ceased to represent him.",
"17. On 29 July 2004 the applicant was committed for trial on a charge of murder in the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ).",
"18. On 4 August 2004 the applicant asked the Velika Gorica County Court to serve the decision of 30 July 2004, ordering his continued detention, on his officially appointed counsel, M.K. He also complained that he had not yet seen his officially appointed counsel. He further alleged that as early as 1 July 2004 he had asked to consult the case file and that his request had not been answered.",
"19. On 13 August 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to the Velika Gorica County Court on 19 August 2004 so that he could consult the case file.",
"20. On 22 August 2004 the applicant asked the Velika Gorica County Court to allow him to consult the case file because on 19 August, when he had been brought to the Velika Gorica County Court, he had been given only thirty minutes to consult the file. This had not been sufficient to enable him to read even one third of the documents in the file. On 1 September 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to its premises on 6 September 2004.",
"21. On 27 August 2004 the applicant complained to the judge responsible for the execution of sentences who was visiting the prison that he could not properly consult the case file. On 9 September 2004 the Velika Gorica County Court again ordered Zagreb County Prison to bring the applicant on 16 September 2004 to the premises of that court so that he could consult the case file.",
"22. On 19 October the applicant again asked the County Court for permission to consult the case file. On 27 October 2004 the presiding judge informed the applicant that his request had been refused since he had already consulted the case file twice.",
"23. The first hearing before the trial court was held on 8 December 2004 in the presence of the applicant and his counsel M.K. The applicant pleaded not guilty and made no other comments.",
"24. On 9 December 2004 the applicant asked the Velika Gorica County Court to order another psychiatric examination which would establish whether on the morning of 4 June 2004 he had known what he was signing at the police station (see § 11 above). He asserted that he had learned about the content of the statement he had supposedly made to the police only when he had consulted the case file on 16 September 2004. He alleged that at that time he had been suffering from diabetes and high blood pressure and had not been given his medication, had not been given any food for twenty hours and had not slept from 6 a.m. on 1 June 2004 until 11 p.m. on 4 June 2004. During the entire police questioning he had been forced to sit on a chair and the record of his alleged statement which he had signed had not been read out loud to him. He could not read it himself because he had not had his glasses. Furthermore, he alleged that he had been ill-treated and still had traces of injuries and asked to be seen by a medical doctor.",
"25. The applicant ’ s wife decided to avail herself of the right not to testify in the criminal proceedings against the applicant.",
"26. A hearing was again held on 28 December 2004 in the presence of both the applicant and his counsel. The psychiatrist who had written the report of 21 July 2004 (see § 1 6 above) on the applicant during the investigation gave her oral evidence. She stated, inter alia, that:",
"“.. . the changes in blood pressure and blood sugar levels had no effect on the defendant ’ s ability to understand his actions. Likewise, these changes, if they happened at all, had no effect on his questioning by the police. If such changes were present, they were of a mild nature. Had there been any drastic changes, they would have caused altered levels of consciousness and possibly unconsciousness; no such occurrence was recorded in the case file.",
"My opinion is that the statement given to the police is sound and that there are no indications that the defendant suffered from any mental disturbances during questioning.”",
"27. At the end of the hearing the applicant ’ s oral request for a further psychiatric examination aimed at establishing his mental state during the police questioning was rejected as being aimed at delaying the proceedings, since these issues had already been addressed by the psychiatrist at the hearing.",
"28. Further hearings were held on 3 February and 19 May 2005 in the presence of both the applicant and his counsel.",
"29. At the subsequent hearing held on 20 June 2005 the applicant, in the presence of his counsel, presented his defence. He denied the charges against him. As regards his questioning by the police he submitted that he remembered having been at the Zagreb Police Department but that he could not remember presenting his defence. He stated further that a lawyer had not been present although he had repeatedly asked the police officers for the questioning to be conducted in the presence of a defence lawyer. He had the telephone numbers of several lawyers listed on his mobile phone but had not been allowed to call any of them. At that time he had problems with his heart, high blood pressure and high levels of sugar and cholesterol in his blood. He remembered that he had signed something but had not known what it was. He had learned about it only on 16 September 2004 when he had consulted the case file.",
"30. When a power of attorney given to the lawyer P.B. was shown to the applicant he confirmed that it contained his signature.",
"31. He then proceeded to state that he remembered answering questions by the police officers, but could not remember what he had said. The police officers had insisted that he confess. He confirmed that the written record of the police questioning contained his signature. However, he also stated that he could not have read the documents he had signed at the police station because of his poor eyesight since during the police questioning he had had no glasses. They had been brought to him in prison on 14 June 2004.",
"32. With regard to the lawyer P.B., none of the police officers present had told him who that person was and P.B. had not addressed him at all. The only persons present at the police questioning had been the police officers and a young woman who typed the record of the questioning.",
"33. At the hearing held on 5 July 2005 the County Court heard evidence from lawyer P.B. The relevant part of his deposition reads as follows:",
"“I agreed to be on the list of lawyers kept by the police who are willing to be called when suspects are being questioned by the police and such questioning might be used as evidence in the criminal proceedings. I don ’ t recall the exact date, but I remember that it was in 2004, the weather was warm and I was called sometime after midnight to go to the Zagreb Police Department in Heinzlova Street. I was told that a person suspected of murder was to be questioned and that I was needed as his defence lawyer. When I arrived I saw the accused immediately sign a power of attorney for me to represent him before the police. However, the police officers told me that the defendant had already been questioned and had confessed. I saw a handwritten record of the defendant ’ s deposition and it was then dictated to the typist. That was the defendant ’ s entire statement. He did not say anything in my presence. I only asked him whether he was sorry and whether the police had treated him correctly, that is to say whether any force had been used. The defendant denied that there had been any use of force. I did not read myself the handwritten record but, since I was sitting next to the police officer, as was the defendant, I saw that the officer was dictating from that handwritten record to the typist, who was typing on a computer. I was not served with a copy of the typed record of the defendant ’ s questioning because it is not the custom. Although the defendant had been questioned before my arrival I raised no objections in that respect. I would like to clarify that when the handwritten record was dictated to the typist, the police officer would sometimes repeat a question and ask the defendant whether it had truly been as he was dictating; neither the defendant nor I raised any objections. I did not ask the defendant any questions as regards the circumstances of the critical event because I was told that he had confessed, and he repeated his confession during further questioning when the written record was made.",
"As regards the defence lawyer ’ s question, I may say that I did not speak with the defendant in private because there was no need for that since we all talked together, that is to say in the presence of the police officers.",
"As to the defence lawyer ’ s further question, I did not inform the defendant of his rights, such as his right not to present a defence or answer any questions, because it was too late for that since he had already been questioned. The police officers gave him no information either.",
"I would add that the defendant looked very tired and after the questioning in my presence, which lasted for an hour, he fell asleep at the table where he was sitting during the questioning, after he had eaten a sandwich and drunk a juice. I do not remember whether he had glasses.",
"In reply to the question put by a member of the panel, I can say that the defendant raised no objections either as regards the record dictated by the police officer in his presence or as regards the police treatment when I asked him about it.",
"As regards the question put by the defendant, I do not know what time he was taken to the police station and what time his questioning started.”",
"34. The applicant added that during the entire police questioning he had been half asleep and that the questioning had lasted the whole afternoon and evening before the arrival of lawyer P.B.",
"35. The trial court then issued a decision ordering that the record of the applicant ’ s police questioning be removed from the case file on the ground that the applicant had been questioned by the police without the presence of a defence lawyer, although the written record of the questioning “had been drawn up in such a way as to suggest that the defence lawyer was present.” This decision was quashed by the Supreme Court, on an appeal by the State Attorney, on 28 July 2005. The Supreme Court found that all relevant circumstances surrounding the applicant ’ s police questioning had not been established.",
"36. On 1 September 2005 the applicant asked the Velika Gorica County Court for permission to consult the case file before the hearing scheduled for 26 September 200 5 because some fresh witnesses were supposed to give evidence. The applicant also stated that he had had no contact with his appointed defence lawyer. This request was not answered.",
"37. At the hearing held on 26 September 2005 a police officer, S.I., who had questioned the applicant, gave his evidence. The relevant part of the record reads:",
"“ ... his questioning as a suspect started on 4 June 2004. I conducted it and M.B. recorded it in writing. The questioning started some time after midnight because we were waiting for a defence lawyer. Therefore, it is wrongly stated in the written record of the questioning that it started at 12.25 p.m., because it started 25 minutes after midnight. Before the defence lawyer arrived I had talked to the accused and had made handwritten notes. The accused agreed to repeat what he had told me in the presence of his counsel. Therefore, I asked him to call a lawyer of his own choosing but the lawyer he chose was not available because he was away. He was then asked to choose a lawyer from our list of lawyers and he chose P.B., who came shortly after midnight and certainly before the questioning of the accused started. When the lawyer arrived he was able to talk in private with the accused and after that the questioning started. I emphatically confirm that the accused chose lawyer P.B. from the list of lawyers and that that lawyer was not called by the police. I remember that when the lawyer came into the room I told the accused that this was the lawyer he had chosen and I let them talk in private and after that the questioning started.",
"When I talked informally to the accused and made my handwritten notes the typist was not present. She came in at the same time as the lawyer and when the formal questioning started. When the formal questioning started I did not dictate to the typist from my handwritten notes, but the accused repeated his statement and answered the questions. The accused gave his own account and I also asked him questions and he gave answers. I think that the defence lawyer also asked a few questions. As far as I remember there were no objections on the part of the accused or the lawyer, either during or after the questioning. I do not recall talking to the lawyer when he arrived at the police station, but I do not exclude that possibility. It is also possible that one of my colleagues may have talked to him. During questioning the accused appeared completely composed and I had the feeling that after giving his statement he felt relieved.",
"In reply to the question by defence counsel I can say that after the defence lawyer arrived and before the accused started to present his defence, he had been informed of his right to remain silent and his right to a defence lawyer. The questioning was conducted in the presence of the typist M.B. and myself, but it is possible that some of my colleagues may have entered and exited the room. As far as I can recall the questioning lasted for about two hours, but I am not sure about that because a lot of time has elapsed since. I think that a copy of the written record was given to lawyer B., but I am not sure.",
"In answer to the question by the presiding judge I can say that during the questioning in the presence of the defence lawyer I did use my handwritten notes but I did not dictate on the basis of those notes without questioning the accused again. The accused again gave an account of the entire incident and I asked questions on the basis of my handwritten notes. I am sure that during the questioning the accused was composed and did not appear sleepy and did not fall asleep. It is possible that he was yawning because it was quite late.",
"In answer to the question by the accused I can say that neither I nor anyone else ill-treated him. At no time did the accused stay alone in the room; there were always some of the police officers present. After the questioning the written record was shown to the accused so that he could read it. I think that he only glanced at it and signed it. The defence lawyer also signed the record after the questioning. I do not remember whether there were any objections to the written record, although none was mentioned in the record.”",
"38. After that the typist M.B. gave her evidence. The relevant part of the record reads as follows:",
"“ ... on the material occasion I was asked to go to the General Crimes Division to type the written record of the questioning of the suspect Josip Mađer. When I arrived I found the accused, my colleague S.I. and one lawyer ... Everything had been made ready for dictating and questioning. I remember that [police officer S.] I. informed the accused of his right to have defence counsel present during the questioning. It is possible that he also informed him of his other rights, but I do not remember that. I remember that during questioning the accused gave his statement and [police officer S.] I. dictated that statement to me. I saw that S.I. had his handwritten notes. I remember that [S.] I. asked the accused questions and the accused gave answers which [S.] I. dictated to me. I do not remember now how long the questioning lasted, possibly for about three hours. It is the usual practice that the written record is signed. I remember that I signed it, but I do not remember if anyone else also signed it. Because of the length of time which has elapsed I do not remember whether I or someone else signed the record.",
"In answer to the question by the defence lawyer I can say that I do not remember whether a copy of the written record was given to the defence lawyer. I do remember that the lawyer was given a power of attorney but I cannot say anything more precise about it.”",
"39. The same day the trial court refused a request by the defence for the record of the applicant ’ s questioning by the police to be excluded from the case file. The relevant part of the decision reads as follows:",
"“After hearing evidence from the witnesses P.B., S.I. and M.B. this panel has concluded that the written record of the questioning of the accused by the police on 4 June 2004 was drawn up after the accused had been questioned in the presence of his defence lawyer P.B., a lawyer practising in Zagreb, and after the accused had been informed [about his rights] under Article 225 §§ 2 and 3 of the Code of Criminal Procedure, and that as such [the statement given to the police] can be used as evidence in the criminal proceedings, as provided for by Article 177 § 5 of the Code of Criminal Procedure. Therefore, there is no statutory ground for the exclusion of that record from the case file.",
"This court assessed the evidence given by witness S.I. who, as a police officer, conducted the questioning of the suspect Josip Mađer, as entirely reliable because his statement was convincing and realistic. He remembered the details of the questioning such as the fact that the suspect was asked to call a lawyer of his own choice, which the defendant attempted to do, only to find that the lawyer was not available. This is supported by the statement of the accused that he had the telephone numbers of several lawyers listed on his mobile phone, a statement which contributes to the credibility of the witness evidence.",
"The evidence of that witness shows that the accused repeated his statement in the presence of a lawyer, after he had been informed of his right to present his defence or to remain silent and of his right to a lawyer, after he had previously been questioned without a lawyer, when handwritten notes were made. [The accused] answered questions by S.I. and [S.] I. used his handwritten notes.",
"The evidence [given by witness S.I.] is corroborated by the evidence given by M.B. when she said that the accused had given his statement in the presence of a defence lawyer, which was then dictated to her by [S.] I., as well as answers to his questions. This court has no reason not to trust the evidence given by this witness because she, as an official who simply typed the written record, has no interest in the outcome of these criminal proceedings and no motive for giving evidence against the accused.",
"The above witness evidence clearly shows that neither the accused nor the defence lawyer raised any objections, either during or after the questioning, as regards the manner of the questioning of the accused or the written record. This is also confirmed by the evidence given by P.B.",
"The court has not put trust in the evidence given by witness P.B. because it is illogical, unrealistic and obviously aimed at attempting to exculpate the accused. It is not logical that P.B., as a lawyer and defence counsel of a defendant accused of a serious criminal offence, would not raise any objections as to the manner of questioning and recording before the police if such questioning had been conducted in contravention of the law, because his main duty as a defence lawyer was to ensure the lawfulness of the police procedure and the protection of the rights of the accused.",
"In his evidence at the trial, when he was no longer the accused ’ s defence lawyer, he tried to call into question the lawfulness of the written record of the accused ’ s confession because, as a professional, he is aware of the significance of that record for the decision on the accused ’ s guilt.",
"The above undoubtedly shows that the accused was questioned by the police in the presence of a defence lawyer. His statutory rights were ensured and a written record was drawn up which the accused and the defence lawyer both signed without raising any objections. The said record can therefore be used as evidence in the criminal proceedings under Article 177 § 5 of the Code of Criminal Procedure.”",
"40. On 11 October the defence lawyer, and on 13 October 2005 the applicant himself, lodged appeals against the decision of 26 September 2005. They argued that the applicant had been questioned by the police between 1 June 2004 at 6 a.m. and 4 June 2004 without the presence of his defence lawyer. They now argued that during that time he had not been allowed to sleep and had not been given any food or his medication. When finally the police officer dictated his alleged statement to the typist he had been asleep at the table. As to the presence of P.B., they argued that he had not been the applicant ’ s chosen lawyer but had been called by the police from the list of lawyers who had agreed to answer urgent calls by the police, as P.B. himself had stated. Furthermore, they pointed out that P.B. had said that he had been called by the police after midnight, whereas the written record of the questioning noted that he had been called at 11 p.m. and had arrived at ten minutes past midnight and that the questioning had started at twenty-five minutes past midnight. The questioning of the applicant by the police had ended at 2.30 a.m. Therefore, the lawyer had been present for about an hour, which would certainly not have been sufficient for the applicant to give his full statement and have it typed, since the written statement contained seven and a half pages.",
"They further pointed to the part of P.B. ’ s statement according to which it was the usual practice of the Zagreb police to call defence lawyers after the questioning of suspects had already been completed. They also stressed that no copy of the written record of the applicant ’ s statement to the police had been given either to the applicant or to the defence lawyer.",
"41. On 3 November 2005 the Supreme Court dismissed the appeals. The relevant part of the decision reads as follows:",
"“ ... the evidence from the case file, and in particular the written record of the questioning of the accused on 4 June 2004, show that the first-instance court correctly found that the accused had been questioned by the police in the presence of a defence lawyer to whom he had previously issued a power of attorney, and that his statutory defence rights were respected. A written record was drawn up to this effect, which was signed by the accused and the defence lawyer without any objections. The fact that the questioning of the accused was in accordance with the law was confirmed by the witnesses S.I., the police officer who questioned the accused and M.B., who typed the written record of the questioning. The first-instance court rightly accepted these witnesses ’ statements as truthful because they were logical and detailed, whereas it rightly did not believe the statement given by witness P.B. because it contradicted his own actions as a defence lawyer who was present during the questioning and signed the written record of it without raising any objections, and whose statement is obviously intended to favour the accused.",
"The allegations in the appeal that the defendant was not allowed to choose his defence lawyer but that the latter was chosen by the police is unfounded in view of the evidence given by witness S.I. that he offered the accused the possibility of choosing a defence lawyer, which the latter attempted to do. The chosen lawyer had not been available, so he then chose P.B. as his defence lawyer from the list of lawyers and issued a power of attorney to him. This procedure is in accordance with Article 177 § 5 of the Code of Criminal Procedure, which provides that where the circumstances show that a chosen defence lawyer will be unable to arrive within three hours, the police should enable the suspect to choose another lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association to the police departments and county courts.",
"...",
"The allegation by the accused that the defence lawyer was not present during his questioning and that the questioning took place before the arrival of the defence lawyer and was recorded by the police and dictated for the written record in the lawyer ’ s presence, is also unfounded. The notes made by the police are handwritten notes made by witness S.I. in his capacity as a police officer. He collected information from the suspect in accordance with Article 177 § 5 of the Code of Criminal Procedure, after which he waited until the arrival of the defence lawyer. The witness said that he used his handwritten notes during the questioning of the accused in the presence of the defence lawyer, which is not against the law, and that the suspect repeated his defence and answered the questions.",
"... ”",
"42. After the final hearing was held on 16 January 2006 the trial court, relying mainly on the applicant ’ s confession to the police, found him guilty of aggravated murder and sentenced him to twenty-eight years ’ imprisonment. At the same time his detention was extended.",
"43. On the same day the applicant asked that a new defence lawyer be assigned to him. He alleged that his officially assigned counsel had visited him only once, on 2 May 2005, the 333 rd day of his detention, and then only to ask for money.",
"44. On 18 January 2006 the applicant asked the Velika Gorica County Court for permission to consult the case file. On 22 January 2006 he asked that lawyer M.U. be allowed to consult the case file and visit him in prison so that he could lodge an appeal. On 13 February 2006 he informed the court that he had received the first-instance judgment and needed the assistance of a lawyer to file an appeal.",
"45. On 15 February 2006 the presiding judge informed the applicant that his requests of 18 and 22 January 2006 to consult the case file had been granted and fixed for 21 February 2006 with permission to consult the case file for two hours. The presiding judge refused the applicant ’ s request of 13 February 2006 for another defence counsel to be officially assigned to him, on the ground that the conditions for relieving the appointed counsel of his duties had not been met. The applicant was advised that he was free to appoint counsel of his own choosing.",
"46. On 19 February 2006 the applicant reiterated that he did not wish to be represented by lawyer M.K. On 20 February he again complained that lawyer M.K. had not visited him in prison and that he had had no contact with him.",
"47. On 21 February 2006 M.K. lodged an appeal against the first ‑ instance judgment on the applicant ’ s behalf. He argued that the judgment was based on the applicant ’ s confession given to the police without a defence lawyer being present. He reiterated all the previously stated arguments in that respect.",
"48. On the same day the presiding judge allowed the lawyers M.U., LJ.P. and S.E. to visit the applicant in prison. On 23 February 2006 M.U. submitted a power of attorney to represent the applicant.",
"49. On 27 February 2006 the applicant lodged an appeal against the first-instance judgment. He analysed in detail the outcome of the proceedings and also reiterated his previous allegations regarding his questioning at the police station, repeating his arguments from appeals of 11 and 13 October 2005 (see § 4 2 above).",
"50. On 15 March 2006 M.U. also lodged an appeal reiterating the same arguments regarding the applicant ’ s police questioning.",
"51. On 5 April 2006 the presiding judge relieved lawyer M.K. of his duties.",
"52. On 14 September 2006 the Supreme Court upheld the first-instance judgment. The relevant part of the appeal judgment reads as follows:",
"“The accused ’ s defence rights were not violated because an infringement of Article 367 § 3 of the Code of Criminal Procedure can occur only during the trial and preparations for the trial, while what is complained of here are measures taken at the pre-trial stage of the criminal proceedings.",
"Irrespective of the above, the right of the accused to a defence lawyer has not been violated. The case file shows that immediately after the accused had been arrested, the police officers, at his request, called lawyer E.Z., who could not come because he was abroad, and then lawyer V.M., who also did not come. The police then asked the accused to choose a lawyer from the list of duty lawyers submitted by the Croatian Bar Association for each county. The accused agreed and issued a power of attorney to lawyer P.B. Thus the requirements of Article 177 § 5 of the Code of Criminal Procedure were satisfied and it cannot be said that the applicant ’ s right to a lawyer of his own choice was denied. Whether that lawyer, who was present at the questioning and signed the written record without any objections, truly provided the accused with adequate legal assistance in accordance with the rules of the Bar Association and its code of ethics, is a question of the lawyer ’ s professional beliefs and ethics and not a matter for discussion by this court as regards the issue of the lawfulness of the evidence consisting of the defence presented by the accused before the police in the presence of his chosen defence lawyer.",
"Further allegations in the appeal lodged by the lawyer M.U. concerning the supposed ill-treatment of the accused by the police and refusal to provide him with food and drink, which the accused interpreted as mental and physical pressure, have no basis either in the statements of the officials S.I. and M.B. or in the statement of the lawyer P.B., who said that the accused had eaten a sandwich and drunk a juice in front of him. Furthermore, the accused ’ s mental and physical state at the time of the police questioning was assessed by a psychiatrist, D.K.K., who concluded that, on the basis of the written record and the manner in which the accused expressed himself, nothing indicated that he had any mental problems during the questioning ...",
"Hence, the allegations in the appeal that some kind of pressure or similar means were used during the accused ’ s police questioning in order to make him confess to the criminal offence are unfounded.”",
"53. On 3 July 2007 the applicant lodged a constitutional complaint, arguing that his right to a lawyer had been violated throughout the proceedings, and in particular during his questioning by the police, and that his alleged confession to the police had been obtained unlawfully. He also complained that from 1 to 4 June 2004 he had been kept at the police department, all the time sitting on a chair without sleep and food and that when he had arrived at Zagreb Prison he had had injuries on his body.",
"54. The applicant ’ s constitutional complaint was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2009. The court found that the applicant had benefited from all the guarantees of a fair trial throughout the criminal proceedings against him and that there was no evidence to support the allegation that the lengthy questioning by the police had reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. The relevant part of the decision reads as follows :",
"“The applicant complains of a lack of legal assistance during his questioning by the police between 2 and 4 June 2004 (the constitutional complaint wrongly gives the date as 1 June 2004 since the documents in the case file show that the applicant was arrested on 2 July 200 6 at 7 a.m.). The second-instance judgment established that the choice of lawyer P.B. was not imposed on the applicant. Immediately after his arrest, and at the applicant ’ s request, the police officers attempted to inform lawyer E.Z., but the latter was absent, travelling abroad. After that the applicant engaged lawyer V.M., who did not arrive either. The police then asked the applicant to choose a lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association, and he signed a power of attorney in respect of lawyer P.B. Thus ... the applicant was not denied the right to a lawyer of his own choosing. Whether the lawyer thus chosen truly offered a satisfactory professional service to the applicant in accordance with the Croatian Bar Association Statute is a question of the lawyer ’ s professional ethics and not a matter to be assessed in the appeal proceedings, as correctly stressed by the Supreme Court.",
"...",
"As regards the applicant ’ s allegations that he was ill-treated (mentally and physically by being deprived of food and drinks and otherwise) by the police officers at the time the statement of his confession was drawn up ... the second-instance court found that these allegations had no basis in the statements of the police officers or the statement of lawyer P.B., who had been present at the time. The mental and physical condition of the applicant at the time he was questioned by the police was assessed by the psychiatric expert, who concluded that nothing in the written record [of the applicant ’ s questioning by the police] and the manner of his expression, as recorded, indicated that the applicant was suffering from a mental disorder or altered state of consciousness. Furthermore, that court established that the in-depth six-page statement by the applicant contained numerous details, names, dates and locations which could be known only to a person who was speaking from his own experience. This detailed statement is corroborated by other facts established during the proceedings. Furthermore, it was established that there was no medical report showing that the applicant suffered from any health problems at the time the criminal offence was committed ( tempore criminis ). The day the applicant committed the criminal offence he had chopped down an oak tree, which is a demanding physical job.",
"The applicant is quite a heavy person (at the time the criminal offence was committed he weighed about a hundred kilos) and thus obviously physically strong.",
"The psychiatric expert ... also gave her written and oral opinion about the physical and mental state of the applicant during his questioning by the police, and the Supreme Court found that there was no need for a further psychiatric examination and that the questioning of the applicant before the police had not been unlawful.",
"In view of all the above facts concerning the applicant ’ s questioning by the police, the Constitutional Court finds that there is no evidence showing that the lengthy questioning by the police reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. Although the applicant spent the period between 2 June 2004 at 7 a.m. and 4 June 2004 with the police while the written record was drawn up, the analysis of all the documents in the case file concerning the pre-investigation stage does not disclose any ill-treatment which could lead to [ a finding of] a violation of his constitutional rights.",
"... ”",
"3. Decisions adopted during the trial concerning the applicant ’ s detention",
"55. On 3 June 2004 the investigating judge of the Zagreb County Court ordered the applicant to be held in police custody for a further twenty-four hours, until 7 a.m. on 4 June 2004, under Article 98 § 1 of the Code of Criminal Procedure. The decision expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. This decision was served on the applicant. He did not appeal against it.",
"56. On 4 June 2004 the investigating judge, relying on Article 98 § 2 of the Code of Criminal Procedure, ordered the applicant ’ s detention for a further forty-eight hours until 1 p.m. on 6 June 2004. The decision also expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. It was served on the applicant and his chosen counsel, V.M. No appeal was lodged.",
"57. In a letter of 5 June 2004 the investigating judge ordered Zagreb County Prison to continue to detain the applicant until midnight on 7 June 2004.",
"58. On 7 June 2004 the investigation judge ordered his further detention under Article 102 § 1(4) of the Code of Criminal Procedure. This decision was served on the applicant and his counsel V.M. They did not lodge an appeal.",
"59. On 30 July 2004 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant and the lawyer V.M. They did not lodge an appeal.",
"60. On 8 November 2004 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant and the lawyer M.K. They did not lodge an appeal.",
"61. On 12 January 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant. He did not lodge an appeal.",
"62. On 17 March 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel, although properly summoned, was present. This decision was served on the applicant. He did not lodge an appeal.",
"63. On 19 May 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. There is no indication in the case file that this decision was served on either of them.",
"64. On 20 July 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant and he lodged an appeal, arguing that there was no evidence against him and that the three-judge panel had extended his detention always using the same wording, without examining whether the circumstances had changed.",
"65. On 4 August 2005 the Supreme Court dismissed the applicant ’ s appeal.",
"66. On 27 September 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant. No appeal was lodged.",
"67. On 8 December 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant. No appeal was lodged."
] | [
"II. RELEVANT DOMESTIC LAW",
"68. The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:",
"Article 140",
"“International agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, shall be incorporated into Croatian law and shall rank, in terms of their legal effects, above statutes. ...”",
"The relevant part of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:",
"Section 62",
"“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she considers that an individual act by a State body, a body of local and regional self-government or a legal person with public authority which has determined his or her rights and obligations or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: ‘ constitutional right ’ ) ...",
"2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after that remedy has been exhausted.",
"...”",
"69. The relevant provisions of the Code of Criminal Procedure ( Kazneni zakon Republike Hrvatske, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) read as follows:",
"Article 2",
"“...",
"(3) Where not otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a publicly prosecutable criminal offence and where there are no statutory obstacles to prosecution of that person.”",
"Article 97",
"“(1) Police shall bring the arrestee immediately, and within twenty-four hours at the latest, before an investigating judge or release him or her. Specific reasons shall be given for any delays.",
"... ”",
"Article 102",
"“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:",
"...",
"4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years ’ imprisonment, when detention is justified by the modus operandi or other particularly serious circumstances of the offence;",
"... ”",
"Article 110",
"“(1) A defendant, defence lawyer or the State Attorney may lodge an appeal against a decision ordering, extending or lifting a custodial measure, within two days thereof...",
"...”",
"Article 171",
"“(1) All State bodies and all legal entities are obliged to report publicly prosecutable criminal offences, whether they have been informed thereof or have learned about such offences on their own.",
"...”",
"Article 173",
"“(1) A criminal complaint shall be lodged with a competent State Attorney in writing or orally.",
"...",
"(3) Where a criminal complaint has been lodged with a court, a police force or a State Attorney not competent to deal with it, the authority in question shall receive the complaint and immediately forward it to the competent State Attorney.”",
"70. Pursuant to Article 430 of the Code of Criminal Procedure, where the defendant requests an amendment of a final judgment following a finding of a violation of, inter alia, the right to a fair trial, by the European Court of Human Rights, the rules governing a retrial shall apply.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"71. The applicant complained that he had been beaten by the police both during his transport to the Zagreb Police Department and during the police questioning and that during that questioning from 6 a.m. on 1 June 2004 until about 1 a.m. on 4 June 2004 he had been deprived of sleep and food and forced to sit on a chair. He relied on Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Admissibility",
"1. The alleged beatings by the police during the applicant ’ s transport to the Zagreb Police Department",
"72. The applicant alleged that on 1 June 2004, as he was getting out of the police vehicle, he had been suddenly hit on the back of the neck by a police officer, causing him to fall to the ground and bruise the knuckles of his fingers, his left elbow and his forehead. He had received no medical assistance but had been able to wash the blood off in a toilet. The applicant alleged that he still had scars from these wounds.",
"73. The Court reiterates that where an individual is taken into police custody in good health but is found to be injured at the time of his release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Satık and Others v. Turkey, no. 31866/96, § 54, 10 October 2000). The allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof beyond reasonable doubt. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Dedovskiy and Others v. Russia, no. 7178/03, § 74, 15 May 2008).",
"74. Where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102; Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV; and Muradova v. Azerbaijan, no. 22684/05, § 100, 2 April 2009).",
"75. The Court notes firstly that the medical report on the applicant submitted by the Government, drawn up on his arrival at Zagreb County Prison on 4 June 2004, makes no mention of any injuries found. Furthermore, although at the hearing before the investigating judge held on 4 and 7 June 2000 the applicant was represented by a lawyer of his own choice, he did not make any complaints about the alleged police beatings during his transport. Although before the national authorities he did raise complaints of the alleged ill-treatment during the police questioning, he never referred to the beating during his transport to the Zagreb Police department.",
"76. As to the allegation by the applicant that he had been hit by a police officer on 1 June 2004 in the presence of his wife as he was entering the police car, the Court notes that the applicant ’ s wife made no mention of this incident, and the applicant did not suggest before the national authorities that his wife should give evidence about it. The fact that the applicant ’ s wife decided not to testify in the criminal proceedings against him is of no relevance for this issue, since possible testimony concerning the alleged beatings by the police is unconnected to the assessment of the applicant ’ s criminal responsibility for murder.",
"77. The Court finds that because of the lack of clear medical findings that the applicant had any injuries, coupled with the lack of any conclusive evidence that physical force was used against the applicant, his complaint as to the substantive aspect of Article 3 of the Convention is unsubstantiated. For the same reasons his assertion that he was beaten by the police during his transport lack credibility and therefore do not entail a procedural obligation under Article 3 of the Convention to investigate the applicant ’ s allegations.",
"78. It follows that the complaints concerning the applicant ’ s alleged beatings by the police during his transport to the Zagreb Police Department are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"2. The alleged ill-treatment during the police questioning",
"(a) The parties ’ submissions",
"79. The Government argued that the complaints under Article 3 of the Convention had been lodged outside the six-month time-limit, since the competent court had dismissed the allegations on 26 September 2005, whereas the applicant had lodged his application with the Court on 10 December 2007.",
"80. They argued further that the applicant had also failed to exhaust domestic remedies, since he had not complained about the alleged ill ‑ treatment to the investigating judge and had not lodged a criminal complaint with the relevant prosecuting authorities against the police officers allegedly implicated or any complaints about his treatment by the police officers with the Ministry of the Interior. He had also failed to seek damages from the State in that respect.",
"81. The applicant argued that he had exhausted all available remedies because he had complained about his ill-treatment during the criminal proceedings against him, including by lodging the constitutional complaint which had been dismissed by the Constitutional Court on 11 March 2009.",
"(b) The Court ’ s assessment",
"(i) Compliance with the six-month rule",
"82. The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continuously open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).",
"83. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).",
"84. The Court reiterates that where there has been an action allegedly in contravention of Articles 2 or 3 of the Convention, the victim is expected to take steps to keep track of the investigation ’ s progress or lack thereof, and to lodge his or her application with due expedition once he or she is or should have become aware of the lack of any effective criminal investigation (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009 ‑ ...).",
"85. As to the present case, the Court notes that the issue of the applicant ’ s treatment while in the hands of the police at the police station was repeatedly raised by the applicant throughout his criminal trial and that the applicant also made allegations in that regard in his constitutional complaint. Therefore, the six-month time-limit started to run when the Constitutional Court dismissed the applicant ’ s constitutional complaint, on 11 March 2009. The present application was lodged with the Court on 10 December 2007.",
"86. It follows that the Government ’ s objection as to the applicant ’ s failure to comply with the six-month time-limit must be rejected.",
"(ii) Exhaustion of domestic remedies",
"87. The Court reiterates that where an applicant has a choice of domestic remedies, it is sufficient for the purposes of the rule of exhaustion of domestic remedies that he or she make use of a remedy which is not unreasonable and which is capable of providing redress for the substance of his or her Convention complaints (see, inter alia, Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000, and Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5 July 2005 ). Indeed, where an applicant has a choice of remedies and their comparative effectiveness is not obvious, the Court interprets the requirement of exhaustion of domestic remedies in the applicant ’ s favour (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 200 58/02, 11673/02 and 15343/02, § 110, ECHR 2008-... (extracts), and the cases cited therein). Once the applicant has used such a remedy, he or she cannot also be required to have tried others that were available but probably no more likely to be successful (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 56, 12 April 2007, and the cases cited therein).",
"88. The Court notes that in his submission of 9 December 2004 to the trial court, the applicant complained about the manner of his police questioning and explicitly alleged that he had been beaten by the police, deprived of sleep and forced to sit on a chair continuously from 6 a.m. on 1 June 2004 until about 1 a.m. on 4 June 2004, as well as deprived of food for twenty hours. He repeated these allegations in his appeal against the first-instance judgment and in his constitutional complaint.",
"89. The Court considers that by informing the judicial authorities of his treatment during the police questioning the applicant complied with his duty to inform the relevant national authorities of ill-treatment against him. In this connection, the Court is also mindful of the relevant provisions of the Code of Criminal Procedure, which require a court receiving a criminal complaint involving allegations of a publicly prosecutable criminal offence to forward it immediately to the competent State Attorney. In the Court ’ s view, there is no doubt that the allegations of ill-treatment by the police amounted to such a criminal offence.",
"90. As regards the civil remedies suggested by the Government, the Court considers that effective deterrence against ill-treatment by State officials, where fundamental values are at stake, requires efficient criminal-law provisions. The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State ’ s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports of Judgments and Decisions 1998-VIII).",
"91. Against this background, the Court finds that the applicant made adequate use of the remedies provided for in domestic law. Accordingly, the applicant ’ s complaints concerning the manner of his questioning by the police cannot be dismissed for failure to exhaust domestic remedies.",
"(iii) Conclusion",
"92. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"93. The applicant submitted that on his arrival at the Zagreb Police Department shortly after 6 a.m. on 1 June 2004 he had been taken to an interview room and kept there until 4 June 2004. Throughout that time he had been forced to sit on a chair without sleep, food or treatment for his medical conditions such as diabetes, cardiac problems and high blood pressure. During questioning the police officers had continually slapped him in the face, hit him on the head with a heavy notebook and once, when he had fallen to the floor, kicked him all over his body, causing him injuries including a permanent injury to the coccyx.",
"94. The applicant argued that the manner of his questioning by the police amounted to ill-treatment contrary to Article 3 of the Convention.",
"95. The Government argued that the applicant had not been beaten by the police officer and that no injuries had been recorded on his arrival at Zagreb County Prison. As to the applicant ’ s allegations that he had been forced to sit on a chair during his whole stay at the Zagreb Police Department and had not been given any food or water, the Government submitted that the applicant had been given food and drinks throughout his stay at the Police Department. They maintained further that, after the polygraph test of the applicant had been carried out on 1 June 2004 between 11 a.m. and 6.15 p.m., he had been interviewed by two police officers, S.I. and R.H., and then allowed to rest on “ an auxiliary bolster” [a spare cushion ] at the Zagreb Police Department.",
"96. After he had been arrested at 7 a.m. on 2 June 2004 his questioning by the police had continued into the night of 2 June, after which he had been given “an opportunity to rest on an auxiliary bolster ” at the Zagreb Police Department.",
"97. On 3 June 2004 the applicant had been formally interviewed by the police in the presence of lawyer P.B. When the interview finished at about 2.30 a.m. on 4 June 2004 he had been taken to the detention unit of the Zagreb Police Department and placed in a cell furnished with a bed, where he had spent the rest of the night. Detainees in that unit were regularly given food and drinks.",
"98. The Government submitted that no record existed of any of the above.",
"99. As to the procedural aspect of Article 3, they maintained that the trial court had heard evidence from all relevant witnesses regarding the manner of the applicant ’ s police questioning and had found it to have been conducted in accordance with the law.",
"2. The Court ’ s assessment",
"(a) Substantive aspect of Article 3 of the Convention",
"100. The Court notes that in the part of their observations concerning the alleged substantive violation of Article 3 of the Convention the Government stated that the police officer had not hit the applicant and that no injuries had been recorded when the applicant had arrived at Zagreb Prison. They also stated that the applicant had been allowed to sleep on “an auxiliary bolster” and had been given food. However, no documents support these statements.",
"101. In assessing the applicant ’ s version of events – that he was deprived of sleep and food and forced to sit on a chair continuously for two days and nineteen hours – the Court finds that a number of facts add credibility to his submissions. It notes that the applicant ’ s questioning, which led to his criminal prosecution for murder, took place in the absence of basic procedural guarantees (see below, §§ 1 50 -15 8 ). In particular, the applicant was questioned without the presence of a lawyer. Furthermore, his initial detention by the police was not registered because it is undisputed that the applicant arrived at the Zagreb Police Department at about 6 a.m. on 1 June 2004 but his formal detention commenced twenty-three hours later, at 7 a.m. on 2 June 2004.",
"102. Furthermore, in his testimony before the trial court police officer S.I., who had questioned the applicant, in no way denied the applicant ’ s allegations, although he had been aware of them and of their relevance to the question whether the applicant ’ s confession had been made in accordance with the requisite procedural guarantees, the very issue the police officer had been called to testify about. Furthermore, lawyer P.B. testified that when he had arrived at the Police Department at 1 a.m. on 4 June 2004 the applicant had looked very tired and had actually fallen asleep at the table where he was sitting.",
"103. The Court also takes note of the fact that the police kept no record of the time when the applicant was being interviewed by the police officers, save for the polygraph test carried out between 11 a.m. and 6.15 p.m. on 1 June 2004 and his final interviews in the early morning of 4 June 2004. Likewise, the police kept no record of when the applicant was allowed to sleep and when he was given food or drinks. Furthermore, the Government submitted that only after his final interview in the early morning of 4 June 2004 had the applicant been placed in a proper cell furnished with a proper bed.",
"104. Against that background, and particularly in view of the absence of any official record the Court accepts the applicant ’ s allegations as being true.",
"105. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)). Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties.",
"106. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247-C, and A. v. the United Kingdom, 23 September 1998, § 20, Reports 1998-VI).",
"107. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280, and Wieser v. Austria, no. 2293/03, § 36, 22 February 2007).",
"108. As to the present case, the Court notes that the applicant arrived shortly after 6 a.m. on 1 June 2004 at Zagreb Police Department, where he was deprived of sleep and forced to sit on a chair continuously for two days and nineteen hours. When at about 1 a.m. on 4 June 2004 lawyer P.B. arrived, the applicant was given a sandwich and a fruit juice. The Court is persuaded that such treatment caused the applicant physical and mental suffering to a degree incompatible with the prohibition of ill-treatment under Article 3 of the Convention.",
"109. On the other hand, the Court does not find sufficient evidence to establish the veracity of the applicant ’ s allegations that he was also beaten by the police during his questioning.",
"110. The Court considers that the treatment described by the applicant constituted inhuman treatment and that there has therefore been a violation of the substantive aspect of Article 3 of the Convention.",
"(b) Procedural aspect of Article 3 of the Convention",
"(i) General principles",
"111. The Court reiterates its settled case-law to the effect that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible.",
"112. The investigation of arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard. The investigation into the alleged ill-treatment must be prompt. Lastly, there must be a sufficient element of public scrutiny of the investigation or its results; in particular, in all cases, the complainant must be afforded effective access to the investigatory procedure (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports 1998-VIII; Mikheyev v. Russia, no. 77617/01, §§ 107-108, 26 January 2006; and Petropoulou-Tsakiris v. Greece, no. 44803/04, § 50, 6 December 2007).",
"(ii) Application of the above principles to the present case",
"113. Turning to the circumstances of the present case, the Court notes that it is undisputed between the parties that the applicant arrived at Zagreb Police Department in Heinzlova Street in Zagreb at about 6 a.m. on 1 June 2004 and stayed there until he was transferred to Zagreb County Prison on 4 June 2004.",
"114. The applicant repeatedly complained during his trial and in his constitutional complaint about the ill-treatment at issue. By informing the judicial authorities assigned to his case the applicant complied with his duty to inform the relevant national authorities of his alleged ill-treatment.",
"115. The applicant ’ s allegations of ill-treatment by the police were serious, and in view of the fact that it was clear that he had been in the hands of the police from 6 a.m. on 1 June 2004 until an unspecified time on 4 June 2004, they called for an official and thorough examination by the relevant authorities.",
"116. The Court notes firstly that no official investigation has ever been opened into the applicant ’ s allegations of ill-treatment. It notes further that the trial court heard evidence concerning the circumstances of the applicant ’ s questioning by the police from police officer S.I. and typist M.B., and from lawyer P.B. They all concentrated their statements on the time when lawyer P.B. had arrived at the police department, that is to say at about 1 a.m. on 4 June 2004. The trial court established that the applicant had eaten a sandwich and drunk a fruit juice in the presence of the lawyer and had then fallen asleep at the table. However, no assessment was made as to the circumstances of the applicant ’ s stay at the police station from 1 June 2004 until the time when lawyer P.B. arrived.",
"117. The trial court also ordered a psychiatric examination of the applicant in order to establish, inter alia, his mental state during police questioning. However, this report made no contribution to verifying the applicant ’ s allegations of ill-treatment.",
"118. It follows that there was no effective official investigation into the applicant ’ s allegations of ill-treatment by the police. Accordingly, there has also been a violation of the procedural aspect of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"119. The applicant complained that his detention had not been lawful and had not followed the procedure prescribed by law and that he had not been promptly informed of the reasons for his arrest and of the charges against him. He also complained about the duration of and the reasons relied on for his pre-trial detention, and that he had not been brought promptly before a judge authorised to order his release. He relied on Article 5 §§ 1, 2 and 3 of the Convention, the relevant parts of which provide:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"...",
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"... ”",
"Admissibility",
"1. The parties ’ submissions",
"120. The Government argued that the applicant had not exhausted all relevant domestic remedies because he had failed to lodge appeals against the decisions concerning his detention.",
"121. The applicant opposed that view.",
"2. The Court ’ s assessment",
"(a) General principles",
"122. The Court reiterates that in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, § 33, Reports 1996-II). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. To hold otherwise would mean duplicating the domestic process with proceedings before the Court, which would hardly be compatible with the subsidiary nature of the Convention (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42, 6 November 2008). Nevertheless, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).",
"(b) Application of these principles to the present case",
"(i) The applicant ’ s detention by the police",
"123. The Court notes that the applicant arrived at the police station at around 6 a.m. on 1 June 2004. According to the applicant his detention should be counted from that time. The Government contended that he had been formally arrested on 2 June 2004 at 7 a.m. and that his initial detention under the direct police order had lasted for twenty-four hours, until 3 June 2004 at 7 a.m.",
"124. Leaving the issue of the actual time of the applicant ’ s arrest aside, the Court notes that the applicant signed the arrest report, in which it was expressly stated that he had been arrested on 2 June 2004 at 7 a.m. and that he had raised no objections to the order. After that, the extension of his police custody was ordered by a decision of the investigating judge of the Zagreb County Court on 3 June 2004. In that decision the judge expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. The decision was served on the applicant.",
"125. The Court notes that the applicant complained that in reality he had been detained from the moment he had arrived at the police station, that is to say from 1 June 2004 at 6 a.m. He further complained that he had not been brought before a judge promptly.",
"126. In this connection the Court notes that, although the applicant had the right to lodge an appeal against the decision of the investigating judge, in the context of which he could have put forward the above-mentioned complaints, he omitted to do so. Had his appeal been unsuccessful he could also have lodged a constitutional complaint.",
"127. Furthermore, a decision of the Zagreb County Court investigating judge of 4 June 2004, issued after a hearing in the applicant ’ s presence, again expressly mentioned that the applicant had been arrested on 2 June 2004 at 7 am. The applicant did not lodge an appeal against that decision.",
"128. The Court considers that the applicant, by omitting to lodge an appeal against the decisions of the Zagreb County Court investigating judge of 3 and 4 June 2004, failed to exhaust domestic remedies. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.",
"(ii) The applicant ’ s further detention",
"129. As regards the grounds for and duration of the applicant ’ s detention, the Court notes that his detention was ordered and then extended by numerous decisions of the national judicial authorities. Each of these decisions was served on the applicant and each was accompanied by instructions on how to lodge an appeal. However, with the exception of the decision of 20 July 2005, the applicant did not lodge an appeal against any of the decisions concerning his detention.",
"130. As regards the decision of 20 July 2005, when his appeal was dismissed by the Supreme Court on 4 August 2005 the applicant did not lodge a constitutional complaint against that decision.",
"131. In this connection the Court notes that the Croatian Constitution guarantees the right to liberty of person and that the Convention is directly applicable in Croatia. The Croatian system allows for a separate constitutional complaint against each appeal decision on detention (see Peša v. Croatia, no. 40523/08, § 54, 8 April 2010, and Getoš-Magdić v. Croatia, (dec.), no. 56305/08, 24 June 2010).",
"132. By failing to use these remedies the applicant did not give the national authorities an opportunity to prevent or put right the violations alleged against him before he submitted these allegations to the Court. It follows that this part of the application must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.",
"III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION",
"133. The applicant complained that his trial had been unfair because he had not been afforded adequate time and facilities to prepare his defence; that he had been questioned by the police without the presence of a defence lawyer; that the services of his officially assigned legal counsel had fallen short of the requirements of a fair trial and that his requests for witnesses to be called had been denied without good reason. He relied on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, the relevant parts of which provide:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"... ”",
"A. Admissibility",
"1. Complaints concerning the time and facilities for preparation of the applicant ’ s defence and calling of witnesses",
"134. The Government argued that the applicant had failed to exhaust domestic remedies because he had not included these complaints in his appeal or in his constitutional complaint.",
"135. The applicant replied that he had exhausted all available remedies.",
"136. As regards the exhaustion of domestic remedies the Court refers to the general principles stated in paragraph 11 3 above. It notes, in respect of applications lodged against Croatia that, according to the Court ’ s case-law, applicants are in principle required to exhaust remedies before the domestic courts and ultimately to lodge a constitutional complaint. The applicant ’ s right to be allowed adequate time and facilities for preparation of his defence, his right to be legally represented and his right to examine witnesses in criminal proceedings against him, which featured in his complaints under Article 6 before the Court, are all guaranteed by Article 2 9 of the Croatian Constitution. Furthermore, the Convention is directly applicable in Croatia.",
"137. The Court notes that on 3 July 2007 the applicant did lodge a constitutional complaint within the prescribed time-limit. In that complaint, however, he did not rely, even in substance, on the same grounds which he submitted before the Court.",
"138. Before the Court he complained, inter alia, that the requirements of a fair trial had not been satisfied in the criminal proceedings against him because he had had no opportunity to examine the witnesses called on behalf of the prosecution and had not been afforded time and facilities for the preparation of his defence. In his constitutional complaint he alleged that his right to a lawyer had been violated throughout the proceedings, and in particular during his questioning by the police, and that his alleged confession before the police had been unlawfully obtained. He also complained that from 1 to 4 June 2004 he had been kept at the police department, all the time sitting on a chair, without sleep and food, and that when he had arrived at Zagreb Prison, he had had injuries on his body.",
"139. Hence, contrary to the principle of subsidiarity, the applicant did not provide the Constitutional Court with an opportunity to afford him a remedy in respect of his complaints concerning the allegedly insufficient time and facilities afforded to him for preparation of his defence and the trial court ’ s refusal to hear witnesses he had called.",
"140. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.",
"2. Complaints concerning the applicant ’ s right to defence counsel during his police questioning and during the trial",
"141. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"142. The applicant argued that he had been questioned by the police without the assistance of a lawyer. The applicant further alleged that he had not been allowed to call a lawyer of his own choosing to assist him during the interview. The police officers made a record of the questioning, the content of which was untrue, according to the applicant, and was not read aloud to him. They stated that he had confessed to the murder of V.M. The applicant was forced to sign the written record of his alleged questioning. He was not able to read it owing to the fact that he had no glasses on him although he suffered from severe long-sightedness and could not read without glasses, a fact which was not known to the police. On 4 June 2004 at about 1 a.m. a lawyer, P.B., called by the police, arrived. He signed the record of the applicant ’ s questioning, which had already been prepared, without talking to the applicant and without reading it, and then left.",
"143. The applicant maintained that the lawyer P.B., when questioned at his trial, had confirmed the applicant ’ s allegations that he, P.B., had not been present during the applicant ’ s questioning, that he had not heard the police officers informing the applicant of his defence rights and that he himself had not been given a copy of the written record of the applicant ’ s questioning. P.B. had also said that this was standard police procedure and that he encountered about two hundred such cases each year.",
"144. The applicant further maintained that the officially appointed defence lawyer, M.K., had not provided him with adequate legal assistance during the trial since he had visited him in prison only once, on his 333 rd day in detention, and then only to ask for money; they had had no other contact. He had complained to the presiding judge about the lack of contact with the officially appointed lawyer but no steps had been taken to remedy that situation.",
"145. The Government argued that the applicant had been informed of his right to legal assistance at the time of his arrest. According to the Government, the applicant was not arrested on 1 June 2004, but was merely asked to come for interview to the Zagreb Police Department. He was told that he could leave whenever he wanted.",
"146. At the time of his arrest the applicant was informed of the reasons for his arrest, his rights and in particular his right to a lawyer. His wife and a lawyer, E.Z., were informed. However, E.Z. said that he could not come. When on 3 June 2004 the applicant was informed that the body had been found, he again asked that E.Z. be called. However, it turned out that E.Z. had left for Budapest and the applicant was asked to choose another lawyer.",
"147. Since the lawyer the applicant had attempted to contact had not been available he had chosen P.B. from the list of lawyers kept by the police. This lawyer had assisted the applicant during the police questioning.",
"148. During the trial before the court of first instance the applicant had been represented by an officially appointed lawyer. The lawyer had attended all the hearings, put relevant questions to witnesses, adduced evidence and lodged appeals.",
"2. The Court ’ s assessment",
"(a) Complaint about the lack of legal assistance during the applicant ’ s police questioning",
"(i) General principles",
"149. The relevant principles have been set forth in the Grand Chamber judgment in Salduz v. Turkey ( [GC], no. 36391/02, 27 November 2008), as follows:",
"“50. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a ‘ tribunal ’ competent to determine ‘ any criminal charge ’, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in paragraph 3 (c) of Article 6 of the Convention is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 ( Imbrioscia, cited above, § 37, and Brennan, cited above, § 45).",
"51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial ( Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to ‘ guarantee not rights that are theoretical or illusory but rights that are practical and effective ’ and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( Imbrioscia, cited above, § 38).",
"52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45, and Magee, cited above, § 44).",
"53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37-42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.",
"54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ( Can v. Austria, no. 9300/81, Commission ’ s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the CPT (paragraphs 39-40 above), in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill ‑ treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.",
"55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ (see paragraph 51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”",
"(ii) Application of the above principles in the present case",
"150. Turning to the present case, the Court notes that the applicant arrived at Zagreb Police Department on 1 June 2004 at about 6 a.m. in order to be interviewed by the police in connection with the murder of V.M. However, the national authorities considered that he had not been arrested until 2 June 2004 at 7 a.m.",
"151. The applicant was provided with the assistance of a lawyer from about 1 a.m. on 4 June 2004. Whether the Court accepts the applicant ’ s assertion that he had been arrested on 1 June, or the Government ’ s assertion that the arrest took place on 2 June, the fact remains that during the initial questioning by the police the applicant did not have the assistance of a lawyer.",
"152. The evidence given at the criminal trial by the applicant, the lawyer P.B. and even the police officer S.I., who questioned the applicant, clearly shows that the police questioned the applicant before P.B. arrived at the police department.",
"153. In view of the principle that an accused has to be provided with the assistance of a lawyer from the time of his arrest, the Court does not have to examine the parties ’ arguments as to the quality of the legal assistance afforded to the applicant by P.B. Irrespective of the quality of this assistance, the fact remains that the applicant was questioned by the police and made his confession without consulting with a lawyer or having one present.",
"154. The confession made by the applicant to the police was used as valid evidence in the criminal trial against the applicant and his conviction was to a significant degree based on it. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer, since his statement to the police was used in convicting him. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which occurred during the applicant ’ s police custody. However, it is not for the Court to speculate on the impact which the applicant ’ s access to a lawyer during police custody would have had on the ensuing proceedings (see Salduz, cited above, § 5 9 ).",
"155. The question now remains whether the applicant waived his right to legal counsel. In this connection the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-...; Kolu, cited above, § 53; and Colozza v. Italy, 12 February 1985, § 28, Series A no. 89).",
"156. The applicant in the present case complained from the initial stages of the proceedings about the lack of legal assistance during his initial police questioning and also about the quality of the legal assistance provided to him by lawyer P.B.",
"157. The police officer S.I., in his evidence before the trial court, also said that the applicant had asked that the lawyer E.Z. be called; the Government reaffirmed this in their version of the facts. The Court therefore concludes that the applicant did not waive his right to legal assistance during his police questioning.",
"158. Against this background, the Court finds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.",
"(b) Complaint about the lack of adequate legal assistance during the trial",
"(i) General principles",
"159. Further to the principles enunciated in paragraph 13 6 the Court considers that the following elements are also of relevance to the issue of the applicant ’ s representation by officially appointed counsel during his criminal trial before the Velika Gorica County Court.",
"160. The Court observes that the responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if officially appointed, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the defendant and his or her counsel, whether appointed under a legal-aid scheme or privately financed, and, as such, cannot, other than in special circumstances, incur the State ’ s liability under the Convention (see Artico v. Italy, 13 May 1980, § 36, Series A no. 37; Daud v. Portugal, 21 April 1998, § 38, Reports 1998-II; Tuziński v. Poland (dec), no. 40140/98, 30 March 1999; Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000-XI; and Cuscani v. the United Kingdom, no. 32771/96, § 39, 24 September 2002).",
"161. Nevertheless, assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275 ). There may be occasions when the State should act and not remain passive when problems of legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether, taking the proceedings as a whole, the legal representation may be regarded as practical and effective (see, mutatis mutandis, Artico, cited above, § 33; Goddi v. Italy, 9 April 1984, § 27, Series A no. 76; Rutkowski, cited above; Staroszczyk v. Poland, no. 59519/00, §§ 121-122; Siałkowska v. Poland, no. 8932/05, §§ 99-100, 22 March 2007; and Ebanks v. the United Kingdom, no. 36822/06, §§ 71-73, 26 January 2010 ).",
"(ii) Application of these principles to the present case",
"162. Turning to the circumstances of the present case the Court notes that the applicant alleged that his officially appointed counsel had visited him only once, on 2 May 2005, the 333 rd day of his detention, and then only to ask for money. The applicant complained several times about the quality of the services of his appointed counsel and asked for him to be replaced; this request was refused.",
"163. However, the Court has to ascertain whether, owing to the lack of contact with the officially appointed defence lawyer, the applicant suffered any actual prejudice in the criminal proceedings against him.",
"164. In this connection the Court notes that the lawyer, who represented the applicant during the trial stage of the proceedings, attended all the hearings before the trial court and actively participated by making relevant proposals and putting questions to the witnesses.",
"165. The defence lawyer also asked that the police report containing the applicant ’ s confession be excluded from the case file and lodged an appeal against the decision refusing that request. He further lodged an appeal against the first-instance judgement (see, conversely, Ananyev v. Russia, no. 20292/04, § 55, 30 July 2009, where the Court found that there had been a violation of the applicant ’ s right to a fair trial on the ground that the officially appointed lawyer, in addition to not having any contact with the applicant, had also not prepared any grounds of appeal of her own).",
"166. The Court further notes that the record containing the applicant ’ s alleged confession was part of the case file and that counsel had the opportunity, even without consulting the applicant in person, to study the case file and prepare his line of defence on that basis.",
"167. The Court also notes that at the appeal stage of the proceedings the applicant was represented by a lawyer of his own choice and that he therefore had an opportunity to advance all the relevant arguments he might have wished to. However, neither in his appeal to the Supreme Court nor in his constitutional complaint did the applicant advance any new arguments which had not been previously submitted by his officially appointed defence counsel.",
"168. Against this background, and viewing the proceedings as a whole, the Court considers that the lack of contact between the applicant and his officially appointed defence counsel did not prejudice the applicant ’ s defence rights to a degree incompatible with the requirements of a fair trial.",
"169. Therefore, there has been no violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case in respect of the applicant ’ s representation by officially appointed defence counsel during the trial before the Velika Gorica County Court.",
"IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"170. Lastly, the applicant invoked Articles 13 and 14 of the Convention.",
"171. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"172. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"173. The applicant claimed 50 euros (EUR) in respect of non-pecuniary damage for each day of his allegedly unlawful detention.",
"174. The Government considered the applicant ’ s claim to be unfounded and in any event excessive.",
"175. The Court notes that the applicant ’ s complaints under Article 5 of the Convention have been declared inadmissible and that he has not submitted any claim for pecuniary or non-pecuniary damage in connection with his other complaints. It therefore dismisses this claim.",
"176. The Court also notes that the applicant has the possibility to seek a fresh trial under Article 430 of the Croatian Code of Criminal Procedure.",
"B. Costs and expenses",
"177. The applicant did not claim any costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account."
] |
204 | Huseyn and Others v. Azerbaijan | 26 July 2011 | This case concerned the complaint by opposition activists about the unfairness of criminal proceedings brought against them for allegedly inciting demonstrators to violence. | As to the applicants’ legal assistance upon their arrest, the Court noted that three of them had been questioned without a lawyer, and without having expressly waived their right to legal assistance. Such a restriction had clearly infringed their defence rights at the initial stage of the proceedings, in violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicants were born in 1957, 1966, 1962 and 1957 respectively and live in Baku.",
"6. The first applicant, Mr Panah Huseyn (also sometimes referred to as Panah Huseynov), was a prominent member of the Popular Front Party of Azerbaijan. The second applicant, Mr Rauf Abbasov ( commonly known as Rauf Arifoglu), was a prominent member of the Müsavat Party and the editor-in-chief of the opposition-oriented newspaper Yeni Müsavat. The third applicant, Mr Arif Hajili, was a deputy chairman of the Müsavat Party. The fourth applicant, Mr Sardar Mammadov (commonly known as Sardar Jalaloglu), was a deputy chairman of the Democratic Party of Azerbaijan.",
"7. The respective political forces with which the applicants were affiliated were founders of the election coalition Bizim Azerbaijan, formed with the aim of supporting the main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, in the presidential elections of 15 October 2003.",
"A. Events of 15 and 16 October 2003",
"8. Mr Gambar lost the elections of 15 October 2003.",
"9. On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party ’ s headquarters in the centre of Baku, claiming victory for their candidate in the election. At that time there were some violent altercations between opposition supporters and the security forces.",
"10. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that, on the way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence.",
"11. It has been claimed that some police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question.",
"12. The applicants, among other persons, were considered by the State authorities to be the organisers of the demonstration. At around 2. 30 p.m. all of the applicants, except Mr Mammadov, had appeared on a tribune in Azadliq Square. Mr Hajili gave a speech to the people gathered in the square, while the two other applicants did not. Mr Mammadov was in the headquarters of his political party at that time and, according to his own statements, was unable to go to Azadliq Square (although he wished to do so), because the exits from the headquarters were reportedly blocked by State security forces.",
"13. At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath.",
"B. Institution of criminal proceedings and pre-trial investigation",
"1. The applicants ’ arrests",
"14. On 16 October 2003 the Prosecutor General ’ s Office instituted criminal proceedings (case no. 80308 ) concerning the events of 15 and 16 October 2003. More than a hundred persons arrested in connection with those events were eventually prosecuted in the context of those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan, no. 22684/05, § § 23 and 114, 2 April 2009 ).",
"15. In the context of the above- mentioned criminal proceedings, on the dates specified below all of the applicants were arrested and charged with criminal offences.",
"16. The first applicant, Mr Panah Huseyn, was arrested at his home on 18 October 2003 by a number of police officers of the Organised Crime Department of the Ministry of Internal Affairs (“ the OCD ”). He was taken to the OCD ’ s detention facility.",
"17. According to the second applicant, Mr Rauf Abbasov, on 17 October 2003 several police officers in plain clothes unsuccessfully attempted to arrest him. Thereafter, in order to avoid being arrested, the applicant sought refuge in the Norwegian Embassy until 21 October 2003. He left the Embassy after he received assurances from the police that he would not be arrested. However, on 27 October 2003 he was arrested and taken to Detention Facility no. 1.",
"18. As for the third applicant, Mr Arif Hajili, on 21 October 2003 the Nasimi District Court remanded him in custody, on the basis of a request by the Prosecutor General ’ s Office. The applicant was not present personally and was not represented at that hearing. On 24 October 2003 he was arrested pursuant to the detention order.",
"19. The fourth applicant, Mr Sardar Mammadov, was arrested at his home on 18 October 2003 and taken to the OCD (see Mammadov v. Azerbaijan, no. 34445/04, § § 6-14, 11 January 2007, for a more detailed description of the circumstances of the fourth applicant ’ s arrest and detention ).",
"20. Following their arrests, the first, third and fourth applicants were not given immediate access to a lawyer (see section B.4 below).",
"21. All of the applicants were formally charged with offences of “organising public disorder” and “use of violence against State officials” under Articles 32.2, 220.1 and 315.2 of the Criminal Code. On the basis of relevant requests by the Prosecutor General ’ s Office, all of them were remanded in custody pursuant to a court order, with their detention subsequently being extended until the trial.",
"2. Alleged ill-treatment of the first, second and fourth applicants",
"22. The first applicant was kept in the OCD ’ s detention facility until 22 October 2003. Thereafter, he was transferred to another detention facility. According to him, during the five days of his detention in the OCD he was repeatedly ill-treated. He was also informed that several of his relatives, including his brother, had been detained. He was not allowed access to a lawyer until 23 October 2003 (see below). After his transfer to another detention facility, for an unspecified period of time he was kept in solitary confinement and was not allowed to possess writing accessories, books, a radio or newspapers.",
"23. In February 2004 the first applicant, together with several other detained persons (none of whom are applicants in the present case), lodged a complaint with the Prosecutor General ’ s Office, alleging that they had been ill-treated during the first few days of their detention and seeking to have criminal proceedings opened against the perpetrators. On 14 February 2004 their complaint was rejected as unsubstantiated. In particular, in respect of the first applicant, it was noted that he had not made any allegations of ill-treatment in the immediate aftermath of his initial questioning, that the various allegations he had made at different times had been inconsistent, and that, when given the opportunity to undergo an examination by a forensic expert, he had refused to do so, stating that there were no injuries on his person. It was concluded that no evidence of ill ‑ treatment had been produced.",
"24. During the trial proceedings (described in section C. below), the first applicant complained before the trial court that he had been tortured in the OCD. Responding to a number of specific questions put to him in connection with his allegations, he mentioned that he had been handcuffed and punched in his chest and kidneys and that it had been hinted to him that his son would be ill-treated, but he expressly refused to provide any further details of the alleged torture, stating generally that he had “never seen such cruelty”. He also refused to mention any names of the alleged perpetrators because “they were not important people”, and instead accused the President, the Minister of Internal Affairs and the Head of the Presidential Administration of “making orders” to ill-treat him. He also mentioned that, from what he had heard, many other people had also been ill-treated. It appears that the trial court dismissed his complaints of ill-treatment as unsubstantiated.",
"25. According to the second applicant, during the first thirty-six days of his detention in Detention Facility no. 1, he was held in a single cell and was not given access to writing materials, books, newspapers or a radio.",
"26. The fourth applicant ’ s ill-treatment was the subject of an earlier case examined by the Court (see Mammadov, cited above ).",
"3. Pre-trial investigation, severing the applicants ’ case from criminal case no. 80308, and completion of the pre-trial investigation",
"27. Throughout the period from the beginning of the criminal proceedings until 1 March 2004, the investigation into the accusations against the applicants, as well as other accused persons, was carried out within the framework of criminal case no. 80308.",
"28. On 1 March 2004 the head of the investigation team issued a decision severing a new criminal case (no. 80365) from criminal case no. 80308. The new case concerned seven accused persons in total, including the four applicants and Mr I. Agazade, Mr I. Ibrahimov and Mr E. Asadov. The following reasons were given for the decision:",
"“The investigation has gathered sufficient evidence to prove the named persons guilty of having committed the offences with which they are charged. The criminal prosecution in respect of the other accused persons is continuing ...",
"The especially large volume of material in the case file and the large number of incidents comprising the case would make it necessary to prolong the pre-trial investigation and pre-trial detention. This would create difficulties in ensuring the rights and lawful interests of the accused persons in respect of whom sufficient evidence has been obtained and, at the same time, would result in an unacceptable delay in referring the case to the trial court.",
"Accordingly ... it is appropriate to sever a new criminal case from criminal case no. 80308 ..., to complete the pre-trial investigation in respect of the severed case and to refer it to the trial court.”",
"29. It appears that the pre-trial investigation in respect of criminal case no. 80365 was formally declared completed on the same day, 1 March 2004.",
"4. Legal representation of the applicants throughout the proceedings, and their lawyers ’ access to the investigation file upon completion of the pre-trial investigation",
"30. Below is the information on the legal assistance received by the applicants, the lawyers who represented them, and the circumstances in which they were given access to the investigation file after completion of the pre-trial investigation and before the trial proceedings, inasmuch as this can be discerned from the material available in the case file.",
"(a) The first applicant",
"31. Following his arrest on 18 October 2003, the first applicant, Mr Huseyn, was not allowed access to a lawyer until 23 October 2003. From that date on, he was represented by Mr M. Hadi.",
"32. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and his lawyer, Mr Hadi, were given access to the prosecution ’ s case file and on 6 April and 15 April 2004, respectively, they signed a record on familiarisation with the material in the case file. According to the applicant, his lawyer was granted access to the entire case file for only one working day.",
"33. Subsequently, starting from an unspecified date during the trial, Mr Huseyn was also represented by another lawyer, Mr S. Panahov.",
"(b) The second applicant",
"34. After his arrest, the second applicant, Mr Abbasov, was represented by a State-appointed lawyer. The lawyer was subsequently replaced by three lawyers whom the applicant retained in October and November 2003. One of these lawyers was Mr T. Karim.",
"35. It appears that, following the termination of the pre-trial investigation, Mr Karim was given access to the case file and signed a record on familiarisation with the material in the file, dated 15 April 2004. Mr Abbasov himself was also given access to the case file. According to him, he was given less than 100 hours to study the file, which was insufficient to become fully familiar with all the evidence, consisting of twenty-two volumes of documents ( amounting to more than 6,200 pages ) and twenty-two video cassettes (each containing about two and a half hours of video material ).",
"36. On 27 May 2004, at one of the preliminary hearings in the Assize Court, which had commenced on 7 May 2004 (see paragraph 44 below), Mr Abbasov lodged an application refusing the services of all three lawyers representing him on the ground that these lawyers had not been able to defend him adequately. He requested leave to defend himself in person but, according to the Government, subsequently asked for a new lawyer. On 4 June 2004 the Assize Court accepted the application and decided that the applicant should be provided with a new State-appointed lawyer. The lawyer, Mr S. Panahov, was appointed at some date around 8 June 2004. During the trial, another lawyer, Mr E. Guliyev, was retained by the applicant.",
"(c) The third applicant",
"37. Following his arrest on 24 October 2003, the third applicant, Mr Hajili, was not allowed access to a lawyer until 27 October 2003. From this date on, it appears that he was represented by a number of lawyers throughout the proceedings.",
"38. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and several of his lawyers ( Mr M. Shahmarov, Mr N. Safarov, Mr M. Hadi and Mr O. Kazimov) were given access to the prosecution ’ s case file. On 6 April the applicant, and on 15, 16 and 17 April 2004 each of the lawyers, signed a separate record on familiarisation with the material in the case file.",
"(d) The fourth applicant",
"39. Mr V. Khasayev was appointed as Mr Mammadov ’ s lawyer on 18 October 2003.",
"40. On 21 October 2003 Mr Khasayev complained to the Prosecutor General ’ s Office, by telegram, that he had not been allowed to meet the applicant. Eventually, he was able to meet the applicant for the first time on 22 October 2003.",
"41. There is no information in the case file as to whether Mr Khasayev or the applicant were given access to the prosecution ’ s case file following the completion of the pre-trial investigation.",
"C. Trial",
"42. As noted above, more than one hundred persons were prosecuted, in the framework of criminal case no. 80308, for their involvement in the events of 15 and 16 October 2003. Subsequently, this case was split, dividing the accused persons into fifteen separate groups (one of which groups comprised the newly severed criminal case no. 80365 concerning the applicants), and each group was tried separately. The first fourteen trials concerned the cases of those who were accused of participating in mass disorder and use of violence against officials. All those trials were conducted by either the Assize Court or the Sabail District Court and were completed in March and April 2004. All the defendants in those trials were found guilty and were sentenced to either imprisonment, suspended periods of imprisonment or restriction of liberty.",
"43. The fifteenth and last trial in criminal case no. 80365 concerned the persons who were accused of organising the mass disorder, including the four applicants in the present case. This trial took place after the first fourteen trials.",
"44. The trial was conducted by the Assize Court. It commenced with several preliminary hearings, the first of which took place on 7 May 2004. The three-judge panel hearing the case was composed of Judges M. Ibayev (presiding), S. Aleskerov and J. Jumaliyev.",
"1. Applications by the defence during the preliminary hearings and trial hearings",
"45. During a preliminary hearing on 12 May 2004, the applicants ’ lawyers complained to the Assize Court about an alleged danger to their personal safety, notifying the court about an incident which had taken place after the preliminary hearing of 7 May 2004. According to the lawyers, six of them had been harassed and assaulted by a number of police officers outside the courthouse when they were giving an interview to a television journalist. To support this allegation, two of the lawyers produced some items of clothing damaged during the altercation and photographs depicting the incident. They characterised the alleged incident as a form of undue pressure put on them by the authorities and asked the court to take measures to ensure their personal safety. The presiding judge replied that the court could not be concerned with any incidents taking place outside its courtroom and that the lawyers should use the relevant avenues of redress if they wished to complain about any alleged harassment outside the court hearings. The court nevertheless decided to notify “the relevant authorities” about the lawyers ’ allegation. However, from the material available in the case file, it is unclear which specific steps were taken by the court in this regard.",
"46. Furthermore, the first applicant, Mr Huseyn, lodged an application objecting to the participation in the trial of one of the Assize Court ’ s judges, Judge Ibayev, noting that the judge ’ s son worked at the Prosecutor General ’ s Office and was subordinate to the head of the investigation team dealing with his case. The other defendants joined the application. On 24 June 2004 the Assize Court rejected the application, finding that, although Judge Ibayev ’ s son indeed worked at the Prosecutor General ’ s Office, he had never been personally involved in the applicants ’ case.",
"47. Subsequently, the first applicant, joined by other defendants, also objected to the participation in the trial of Judge Aleskerov. They pointed out that Judge Aleskerov was the brother of Mr N. Aleskerov, an investigator from the Prosecutor General ’ s Office who, during the period from 19 October 2003 to 26 January 2004, had been a member of the investigation team dealing with the applicants ’ case. The first applicant argued that, owing to Judge Aleskerov ’ s brother ’ s direct involvement in the case, he would not be able to hear the case as an impartial judge. On 28 June 2004 the Assize Court rejected that application, noting that Mr N. Aleskerov had indeed been one of the forty-three members of the investigation team working on criminal case no. 80308. However, he had been removed from the team on 26 January 2004. Subsequently, after the new case no. 80365 (concerning the applicants) had been severed from case no. 80308, Mr N. Aleskerov had not been included in the investigation team dealing with this new case. For these reasons, the Assize Court concluded that claims concerning the lack of impartiality of Judge Aleskerov could not be objectively justified.",
"48. Throughout the trial in the Assize Court, the applicants lodged a number of other applications. According to them, the court ’ s interim decisions rejecting those applications were either not given to them or were made available to them only after significant delays. Moreover, the applicants requested permission to verify the transcripts of court hearings after each hearing in order to be able to comment on alleged irregularities and “falsifications” contained in them. However, they were given access to the transcripts only at the very end of the trial.",
"2. Evidence examined during the trial",
"49. During the course of the trial, the Assize Court examined large volumes of testimonial evidence, as well as video recordings and other materials. Below is a brief summary of the evidence heard and the manner in which it was ultimately assessed in the Assize Court ’ s judgment.",
"(a) Witnesses for the prosecution",
"50. The majority of prosecution witnesses were police officers deployed at Azadliq Square on 16 October 2003. The investigation also produced records of pre-trial questioning of some of the persons who had been convicted at earlier trials in connection with the events of 15 and 16 October 2003, and a number of other civilian witnesses.",
"(i) Evidence concerning the events of 15 and 16 October 2003 in general, which did not directly implicate the applicants",
"51. It appears that the absolute majority of prosecution witnesses were called to merely provide a general description of the events of 15 and 16 October 2003 in order to establish the fact of public disorder. Their testimonies were aimed at showing that the demonstrators had collected clubs, stones and other objects from the headquarters of the Müsavat Party and other opposition parties, that they had used these objects as weapons against the police and military forces and that they had damaged a variety of public and private property. These witness testimonies did not directly mention the applicants as either organisers of or participants in those violent actions. In addition, the prosecution produced some expert evaluations of various forms of damage to private and public property.",
"(ii) Statements by police officers directly implicating the applicants",
"52. As to the applicants ’ specific role in the events of 16 October, in order to establish that they had directed and incited the demonstrators ’ violent actions, the prosecution produced pre-trial depositions of several police officers who had specifically described, inter alia, how they had seen the applicants arriving at Azadliq Square on 16 October 2003, publicly proclaiming the election victory of I. Gambar and inciting the demonstrators to violence from the tribune in the square.",
"53. Prior to the scheduled examination of these witnesses, on 5 August 2004 the first applicant, joined by all the other defendants, complained that the pre-trial depositions of some of those witnesses had been identical word for word and asked for this evidence to be excluded. He pointed out that, according to the relevant records, some of these depositions had been taken by the same investigator at the same time on the same day. He argued that this was either physically impossible or in breach of Article 230 of the Code of Criminal Procedure, which required that witnesses be questioned separately, and that, in either case, this evidence should not be admitted. It is not clear whether the Assize Court ever gave any decision concerning this objection, but it admitted the relevant depositions as evidence.",
"54. At the trial hearings, each of the police officers concerned testified separately and was cross-examined by the applicants and their lawyers. In particular, police officer V.N. stated, inter alia, that when the public disturbance had started at Azadliq Square, some of the defendants, including the second and third applicants, had been inciting the crowd to violence and making such declarations as “Isa [Gambar] has been elected President, we are now in power, do not be afraid of anyone, soon we will overtake the entire city, resist anyone who confronts you ... ”.",
"55. From the record of the court hearings, it appears that, during the cross-examination, the defence were able to reveal a number of alleged inconsistencies between the accounts given by V.N. during the hearing and in his pre-trial deposition (concerning such specific details of his testimony as, for example, whether he had actually seen any of the defendants appear on the tribune or not, or whether any of the defendants had actually used any phrases such as “ Beat the police!” ). The defence read out V.N. ’ s pre ‑ trial deposition at the hearing with the aim of pointing out these alleged inconsistencies. Likewise, according to the defence, cross-examination of most of the other witnesses of this type revealed alleged inconsistencies between their statements at the trial and in their pre-trial depositions. As appears from the transcript of the trial hearings, when confronted with these alleged inconsistencies, some of the witnesses stated that their pre-trial statements had not been properly recorded, while others reverted back to their pre-trial statements and retracted any inconsistent statements which they had made during the hearing prior to cross-examination.",
"56. It appears from the transcript of the court hearings that more than ten witnesses of this type were heard. In its judgment of 22 October 2004 the Assize Court separately summarised the testimonies of six of those witnesses and relied on them as proving the applicants ’ guilt. The judgment addressed neither the objections raised by the applicants as to the admissibility of these witness testimonies, nor any objections concerning the inconsistencies allegedly revealed in their testimonies during cross ‑ examination by the defence.",
"(iii) Statements by previously convicted participants in the demonstration directly implicating the applicants",
"57. The prosecution also relied on testimony obtained during pre-trial questioning from a number of other persons convicted in connection with the events of 15 and 16 October. These persons had already been convicted at first - instance trials conducted by the Assize Court in March 2005. Inasmuch as this can be discerned from the Assize Court ’ s judgment of 22 October 2004 in the applicants ’ case, the court relied on testimonies of five witnesses of this type.",
"58. According to the records produced by the prosecution, in the course of questioning as accused persons at the pre-trial investigation stage of criminal case no. 80308, these persons had described, in various degrees of detail, that they had witnessed the applicants at Azadliq Square inciting the demonstrators to violent resistance during the events of 16 October 2003.",
"59. During the trial hearings, these witnesses were called to be questioned about their pre-trial statements. According to the relevant trial transcripts and the Assize Court ’ s judgment of 22 October 2004, having taken to the witness stand at the oral hearings, four of these witnesses openly retracted their pre-trial statements against the applicants, noting that they had been forced to make those statements under torture, ill-treatment and other forms of duress applied to them during their pre-trial detention.",
"60. In reply to these allegations, the Assize Court noted that the witnesses ’ complaints of ill-treatment had been addressed at their own respective trials and had been found to be unsubstantiated. The court found that, since these witnesses ’ statements had already been relied on as sound evidence at those trials, the assessment of this evidence was a “ res judicata matter”. In such circumstances, the court decided to accept these witnesses ’ pre-trial statements as good evidence, and refused to attach weight to the fact that the witnesses had subsequently retracted them at their own trials and at the applicants ’ trial.",
"(iv) Statements by other witnesses directly implicating the applicants",
"61. The prosecution also submitted depositions of several other civilian witnesses who had not been convicted in connection with the events of 16 October 2003. According to the records produced by the prosecution, during the pre-trial investigation these witnesses had made statements similar to those made by the witnesses mentioned above. However, again, during the questioning at the public hearing, at least three of those witnesses retracted their earlier statements and claimed that they had been forced to make them under threat of ill-treatment or by means of actual ill-treatment.",
"62. According to the trial transcript, witness N.N. noted that he had been detained for a period of several days after the events of 16 October 2003 and, during that time, had been coerced into giving false testimony against the defendants ( mostly against the second applicant ). He noted that he had been threatened with prosecution and imprisonment for participating in the events of 16 October 2003, had been refused any water during his questioning and had otherwise been intimidated with the purpose of making him sign a pre-printed witness statement prepared by an investigator.",
"63. In order to assess the allegations of ill-treatment made by these witnesses, the Assize Court heard evidence from investigators and police officers who had questioned them. They stated that they had not ill-treated these witnesses during pre-trial questioning. Furthermore, the court noted that the witnesses ’ pre-trial statements were corroborated by other evidence. On that basis, the court found that the allegations of ill-treatment were unfounded and that, therefore, the statements contained in the pre-trial depositions of these witnesses should be accepted and relied on as evidence incriminating the applicants.",
"(b) Witnesses for the defence",
"64. The Assize Court partially granted the applicants ’ requests to obtain the attendance of witnesses prepared to testify on their behalf. From the judgment, it appears that more than twenty such witnesses testified. Most of these witnesses were the applicants ’ political companions or other persons affiliated with their political parties.",
"65. In its judgment, the Assize Court summarised all of these persons ’ testimonies noting that all of them denied that the applicants had carried out the specific acts attributed to them, such as planning any violent actions in advance, verbally inciting the crowd to violence or organising the distribution of clubs and stones to demonstrators. It further noted that the witnesses had insisted that, on the contrary, the police had used excessive violence against the demonstrators and that, in their speeches, the applicants had called the demonstrators to refrain from attacking the police and responding to any provocation.",
"66. The Assize Court then went on to dismiss these testimonies as unreliable, using the following reasoning:",
"“Having examined the testimonies of these witnesses heard at the request of [the defendants], the court established that, as indicated above, these persons were members or employees of the [political] parties headed by the defendants and, as they worked with [the defendants], they were persons subordinate to and associated with [the defendants]. Some of their statements were even contradictory. In particular, while replying to the questions, [N.H.] stated, on the one hand, that the people speaking from the tribune had not been inciting people to violence and, on the other hand, that he had not heard the speeches as he had been standing 70-100 metres away from the tribune and had not been able to even see who had been speaking. [N.Y.] stated that she had been at the square by herself, while [E.P.] stated that [N.Y.] had been there with him.",
"Moreover, the circumstances described by them have been refuted by the above-mentioned comprehensive, reliable and mutually corroborative evidence consisting of testimonies of victims and witnesses, video recordings, material evidence and court judgments in force. Therefore, the court considers that [the defence witnesses ’ ] testimonies are groundless .”",
"(c) Other evidence",
"67. In addition, a number of videos depicting the events of 16 October 2003 were viewed during the court hearings.",
"68. The videos submitted by the prosecution were intended to show the allegedly violent actions of the demonstrators. Some of the images seen on the videos contradicted the testimonies of certain prosecution witnesses. Some of the defendants ’ lawyers (for example, Mr Hadi ) claimed that they had seen the video evidence for the first time at the court hearings, as it had not been made available to them by the prosecution before the trial, and that they had therefore been unprepared for the examination of this evidence.",
"69. It appears that, following an application by the defence, the Assize Court also admitted additional video evidence submitted by the defence, which was intended to demonstrate the allegedly excessive use of force by the police and military while suppressing the demonstration.",
"70. Assessing the video evidence, the Assize Court noted that the video depicted the violent actions of the demonstrators as well as the distribution to them of bludgeons, stones and other “weapons” in an organised manner.",
"3. The parties ’ closing addresses",
"71. On 29 September 2004 the Assize Court announced that the presentation of evidence was complete and that it would proceed to hear the parties ’ oral submissions, inviting the prosecution to make their closing address first. The prosecution asked for an adjournment until 1 October 2004 to prepare their speech. On 1 October the prosecution asked for another adjournment until 11 October 2004. The prosecution delivered their closing address during two hearings on 11 and 12 October 2004.",
"72. Following the prosecution ’ s speech, on 12 October 2004 the court invited the defendants to deliver their respective closing addresses. However, in response to this invitation, almost all of the applicants ’ lawyers, taking the floor one after the other, refused to take part in the oral submissions and make a closing address for the defence, providing the court with the following explanations for their refusal.",
"73. The first applicant ’ s lawyer, Mr Hadi, speaking first, noted that, throughout the proceedings, he had not been given adequate time and facilities to prepare his client ’ s defence. He had not been allowed to fully study the investigation file before the trial and had not been given access to some of the prosecution evidence, such as video recordings, in order to be able to adequately plan his defence tactics. He further noted that, during the proceedings, the defence lawyers had come under various forms of pressure and had even been physically assaulted when arriving at one of the preliminary hearings. He claimed that the lawyers had regularly received various threats from unspecified persons aimed at preventing them from adequately defending the applicants. Although the lawyers had repeatedly brought this matter to the Assize Court ’ s attention, and had even specifically complained about the incident involving the physical assault on them, the court had failed to take any action and had ignored the difficulties faced by them. He further argued that, in reality, the outcome of the trial had been predetermined and politically motivated and that the trial itself was being held only as a show, since even before its conclusion the President had publicly declared that the applicants were criminals and would be punished. He stated that, in such circumstances, the lawyers themselves felt vulnerable and frightened. He stated that, for these reasons, he was unable to adequately defend his client and was therefore unable to submit an oral argument. He apologised to his clients, the first applicant and Mr Ibrahimov, and noted that it would be best if the defendants were allowed to prepare and deliver the oral arguments themselves.",
"74. Mr Panahov, counsel for the first and second applicants, gave a similar explanation. He also noted that he was not able to provide effective assistance to his clients because, inter alia, he had never been given access to the investigation file. He claimed that after the completion of the pre-trial investigation the lawyers had been pressured into signing records on familiarisation with the material in the case file so that the case could be sent for trial quickly. Although he had specifically complained about this during the preliminary hearings, the Assize Court had ignored this matter. Like Mr Hadi, Mr Panahov also noted that the lawyers were concerned for their personal safety, and that this affected their ability to provide adequate assistance to their clients.",
"75. Other lawyers concurred with everything stated by their colleagues and gave similar explanations for their refusal to give a closing address.",
"76. Following this, the first applicant spoke to the court, on behalf of himself and the other defendants, asking for permission to make their defence speeches in person. He noted that, following their lawyers ’ refusal to take part in the oral submissions, they were essentially left without any legal assistance. He requested the court to allow them sufficient time to prepare their closing addresses.",
"77. In response, Judge Ibayev stated that the defendants would be allowed to exercise a right of reply ( replika ). Judge Aleskerov noted that procedural law allowed a defendant to give a closing address in person only if he or she was unrepresented by counsel. Judge Jumaliyev commented that counsel could not shirk their duty to defend their clients.",
"78. At the next hearing, on 13 October 2004, the first applicant, on behalf of himself and the other defendants, lodged a formal application in writing, requesting the court to allow them to make their defence speeches themselves.",
"79. The court rejected the application as groundless. It noted that the defence lawyers had provided effective and adequate legal assistance to their clients. It further noted that the lawyers had been given ample opportunity to consult the investigation file but had themselves failed to do so, that it was the lawyers ’ duty to participate in oral arguments, that they could not refuse to assist their clients at this stage of the proceedings, and that they had no good reason for shirking their duties.",
"80. It appears that only the fourth applicant ’ s lawyers delivered a closing address on behalf of their client, despite the fact that the fourth applicant had joined the first applicant ’ s request for permission to give the closing address in person.",
"81. The Assize Court then proceeded to invite the parties to exercise their right of reply. The prosecution waived that right.",
"82. Prior to the defendants ’ speeches in reply, the third applicant asked the court not to place any time-limits on them, taking into account the fact that no closing addresses had been delivered on their behalf during the oral submissions. The presiding judge noted that this would be taken into account.",
"83. Exercising his right of reply, the first applicant spoke for about two hours. The presiding judge interrupted him three times, reminding him that a reply should be brief (no longer than three to fifteen minutes), and ultimately cut short his speech despite the applicant ’ s protests.",
"84. Likewise, all the other applicants attempted to deliver long speeches while exercising their right of reply, but were interrupted and ultimately stopped by the presiding judge after about an hour, on the ground that a reply should be brief.",
"85. Following this, the trial hearings ended after each of the defendants was allowed to speak one more time, in order to make their final plea.",
"4. Conviction and sentences",
"86. On 22 October 2004 the Assize Court convicted the applicants of organising public disorder (Articles 32.3 and 220.1 of the Criminal Code) and organising acts of violence against State officials (Articles 32.2 and 315.2 of the Criminal Code).",
"87. The first and fourth applicants were each sentenced to four years and six months ’ imprisonment. The second and third applicants were each sentenced to five years ’ imprisonment.",
"D. Appeals and pardons",
"88. In October and November 2004 the applicants appealed to the Court of Appeal against their conviction. In particular, in his appeal, the first applicant complained of, inter alia, breaches of his rights to an impartial tribunal, adequate time and facilities for preparation of his defence, effective representation, equality of arms and presumption of innocence. He also complained of errors by the trial court in the procedure for the admission and assessment of evidence. The second and fourth applicants made similar complaints in their appeals.",
"89. The third applicant ’ s appeal was shorter than those of the other applicants and was phrased in more general language. Among other things, he complained of the following :",
"“The conviction should be quashed as being illegal, unsubstantiated and unfair and I should be acquitted. In particular:",
"1. The judicial examination was carried out in breach of my rights as an accused person.",
"2. The judicial examination was carried out in breach of my lawyer ’ s rights.",
"3. The judicial examination was carried out in breach of my right to make a closing statement and in breach of my lawyer ’ s right to make a closing statement.",
"4. The court has not examined all the relevant factual circumstances necessary for the conclusions reached.",
"5. The factual findings in the judgment have not been proven. ...",
"The grounds for my claims concerning the illegality, lack of substantiation and unfairness of the conviction will be presented by me at the [appeal] hearings.”",
"90. All of the appeals were drafted by the applicants themselves in their own handwriting.",
"91. By a decision of 8 November 2004, delivered after a preliminary hearing, the Court of Appeal granted the applicants ’ request to hold a public hearing on the merits of their appeals, but rejected their requests to conduct a fresh “judicial examination” of the case by means of renewed cross ‑ examination of the witnesses and defendants and admission of new evidence. It also decided to provide the applicants with State-appointed lawyers for appeal proceedings, appointing the same lawyers who had represented the applicants at first instance. The extent of the actual assistance provided by these lawyers during the appellate proceedings is not clear.",
"92. By a judgment of 19 November 2004 the Court of Appeal upheld the Assize Court ’ s judgment. It reiterated the lower court ’ s findings and rejected, in one sentence, the complaints made by the applicants in their appeals as unsubstantiated.",
"93. The first applicant lodged a cassation appeal against that judgment. The cassation appeal consisted of 206 pages and was drafted by the applicant himself in his own handwriting. The appeal was very detailed in respect of all the alleged defects in the proceedings before the Assize Court and the Court of Appeal. The other applicants also lodged cassation appeals, drafted by themselves in their own handwriting.",
"94. On 29 March 2005 the Supreme Court upheld the lower courts ’ judgments.",
"95. In March 2005 all of the applicants were released from serving the remainder of their prison sentences pursuant to a presidential pardon decree.",
"E. Statements by public officials and authorities concerning the applicants made at various times during the proceedings",
"96. The applicants submitted a number of publications containing statements by high-ranking State officials and public authorities, which allegedly breached their presumption of innocence. Some of those statements are summarised below.",
"97. On 17 October 2003 the Milli Majlis (Parliament) adopted a resolution “ on Unconstitutional Actions of the Müsavat, Ümid and Azerbaijan Democratic Parties, and Certain Political Opposition Groups”, denouncing the above- mentioned parties and holding them responsible for “unlawful actions” and mass disturbances resulting in loss of life and injuries inflicted on civilians and members of law-enforcement authorities, as well as for damage to public and private property. Among others, the resolution identified Isa Gambar (the leader of Müsavat), Igbal Agazade (one of the defendants tried together with the applicants) and “a group of other members and supporters of the opposition” as organisers of the above disturbances. The resolution was published in official newspapers.",
"98. On 23 October 2003 the official newspaper Xalq Qəzeti published a report by the State-owned press agency AzerTAG concerning a press conference held by the Ministry of Internal Affairs on 22 October 2003. During this press conference, the Head of the Press Service of the Ministry of Internal Affairs conveyed the Ministry ’ s official position concerning the events of 15 and 16 October 2003 and informed the media that criminal proceedings had been instituted in this connection and that a number of persons had been arrested. Among other things, he stated as follows:",
"“...on 15 and 1 6 October 2003 the destructive opposition, at the direct instigation of the leaders of the Müsavat, Ümid and Azerbaijan Democratic Parties Isa Gambar, Rasul Guliyev, Sardar Jalaloglu [Mammadov], Igbal Agazade and others, began committing pre-planned unlawful actions which resulted in mass disorder.”",
"99. The same issue of the newspaper contained a declaration by the Head of the Sabail District Police Office, denouncing the opposition. The following was stated:",
"“On 15 and 16 October 2003 certain riotous anarchist and extreme reactionary groups, following direct orders by Isa Gambar, Igbal Agazade and Sardar Jalaloglu [Mammadov], committed terrible criminal acts in Baku. ...",
"... we are confident that ... the persons who committed crimes ... and oversaw these extreme reactionary acts will bear criminal responsibility and receive deserved punishment. Moreover, we are assured that the Müsavat, Ümid and Azerbaijan Democratic Parties, which organised these criminal actions, will be banned and that the leaders of those political entities (I. Gambar, R. Guliyev, S. Jalaloglu, I. Agazade) will be held criminally liable.”",
"100. On 25 October 2003 Xalq Qəzeti published a declaration by the Ombudsperson, in which she criticised the opposition and the actions of the demonstrators during the events of 15 and 16 October 2003 and called upon all compatriots to adhere to civil unity and peaceful behaviour. The declaration was silent about the alleged reports of excessive and repressive use of force by the law-enforcement authorities during or in the aftermath of the events of 15 and 16 October 2003.",
"101. On 27 October 2003 Xalq Qəzeti published an almost full ‑ page ‑ long “Press statement by the Ministry of Internal Affairs and the Prosecutor General ’ s Office of the Republic of Azerbaijan concerning the events that took place in Baku on 15 and 16 October”. The statement began with praise for the law-enforcement authorities ’ success in combating crime in recent years and the Government ’ s progress in building a democratic State governed by the rule of law. It continued with words of disapproval about the “radical opposition”, which did not “want to accept the positive developments and existing realities” and was attempting to “cast a shadow” on the Government ’ s successes and to disrupt stability in the country. It further continued:",
"“The extremist circles of the opposition, having realised in advance that they would lose in the free and fair elections and having become fully assured of this during the voting conducted in a democratic and transparent manner, once again resorted to destructive actions. Leaders of the Müsavat and Ümid Parties Isa Gambar and Igbal Agazade, their supporters, and leaders of the ADP, including Rasul Guliyev, who is under an international search warrant for the crimes committed by him, and Sardar Jalaloglu [Mammadov], as well as other members of that party, have particularly distinguished themselves in this undertaking.",
"It must be noted that, starting from 1 October, for the purpose of participating in the mass disturbances planned by the [above-mentioned] persons, active members of those parties as well as persons predisposed to crime were brought to [Baku], and money was distributed to some of them in exchange [for their participation ].",
"[The narration continues with a description of the opposition demonstration held on 15 October 2003, where claims of election irregularities and unfairness were first voiced.]",
"The false accusations and lies deliberately disseminated by the above-mentioned party leaders after the election, as well as their call to [demonstrators] to commit illegal actions, provided an impetus for further actions resulting in a grave breach of public order in the capital. ... ”",
"102. The statement continued with a detailed description of the events of 15 and 16 October and with a flat denial of any allegations of excessive and repressive use of force by the police during the dispersal of the demonstration, as well as any allegations of torture and ill-treatment of arrested persons. It also stated that only a small number of arrested persons, consisting of the main organisers and perpetrators of the illegal actions referred to, had eventually been prosecuted.",
"103. On 30 October 2003 Xalq Qəzeti published an article by the Deputy Minister of Internal Affairs, entitled “Stability and tranquility in Azerbaijan will be protected, the rule of law will be firmly respected”. Almost the entire article consisted of condemnation and harsh criticism of the political opposition ’ s actions during the events of 15 and 16 October. The author repeatedly used such descriptions as “criminal”, “reactionary”, “destructive”, “radical” and “violent” with reference to the opposition in general, and in particular to the Müsavat Party and its leader I. Gambar. The author expressly stated that the Müsavat Party, its leaders and other opposition forces supporting them had engaged in “actions of criminal character”, had openly declared their intention to capture State power by unlawful means, had distributed bludgeons to their supporters and had ordered them to engage in violent actions and vandalism and to disrupt the stability of the country. Within the above account, the article contained the following statements:",
"“ ... Panah Huseyn[ov] ... threatened bloodshed, and attempted to create a situation of mass psychosis. Not only Panah Huseyn[ov] engaged in such subversive action. While delirious ideas of ‘ ripening a revolutionary situation ’ came from Isa Gambar and Rasul Guliyev, they were conveyed to society by the likes of Sardar Jalaloglu [Mammadov], Igbal Agazade, Ibrahim Ibrahimli, Arif Haji[li], Rauf Arifoglu [Abbasov] and Flora Kerimova. ”",
"104. On 5 October 2004, before the Assize Court ’ s judgment in the applicants ’ case was delivered, the official newspaper Azərbaycan published a long interview given by the President to Reuters. Among a wide range of other issues discussed during the interview, the President also made the following statement:",
"“The attempt of the opposition to change the election results by means of violence was a criminal act. I stress again that the detained persons who are referred to as the opposition are being tried not for being members of the opposition, but for having committed unlawful acts.”",
"I. PROHIBITION OF THE USE OF EVIDENCE OBTAINED BY TORTURE OR OTHER ILL- TREATMENT",
"... Allegations of torture and ill-treatment were made in all the Trial Groups except Trial Group 11 and Trial Group 12. In every instance, the judgments state that the allegations were not proved. The only exception was Trial Group 5 in which the judgment does not even refer to the allegations of torture.",
"In addition, statements that were alleged to have been made under duress were expressly relied upon as evidence in Trial Groups 2, 3, 4, 7, 8, 10 and 13 and 15. In general, the response of the courts to the numerous motions by the defence that statements made in temporary detention facilities were obtained by torture or other ill ‑ treatment consisted of ordering medical examinations and calling law enforcement officials as witnesses.",
"...",
"Witnesses",
"... The approach of the court in Trial Group 15 to determining whether to admit the evidence of witnesses who alleged that they had been tortured was flawed. On the evidence given to the court by these witnesses, no reasonable tribunal should have come to the conclusion that it was sure, beyond reasonable doubt, that such torture did not take place. The court did not ... carry out any proper investigation into the allegations of torture and placed far too much reliance on the findings of other courts in previous trials. In effect, the court considered itself bound to come to the same conclusions as the other courts, without questioning the reasoning behind those other decisions or examining in detail all the evidence that was available to the other courts when determining the issues and comparing that evidence with the evidence which was available to it in the case of Trial Group 15.",
"J. RIGHT TO A PUBLIC HEARING",
"... All court hearings in the post-election related cases were, ostensibly, held in public. However, numerous restrictions and impediments interfered with this right.",
"In Trial Group 15, for example, access to the court room was strictly monitored and limited by the court security staff. On numerous occasions during the trial the defendants and their lawyers protested to the court that members of the public were being prevented from entering the court room, despite the obvious availability of seats in the court room.",
"...",
"Although the trials were held in public, a number of factors contributed detrimentally to public access to the trials:",
"• The public galleries were far too small to accommodate all those who wished to observe the hearings and, in a number of trials, relatives of the defendants could not gain access. Trying defendants together in groups of seven to ten aggravated this problem.",
"• People were generally admitted to the public gallery of the Court for Serious Crimes only after they had provided court officials with a copy of their identification cards and their personal details had been written down by court officials.",
"• The Court for Serious Crimes did not post information about scheduled hearings or otherwise make this information available to the public. As a result, the OSCE had to contact the court by phone in order to obtain information about the date and time of pending hearings. In two instances, court secretaries stated that they were not authorized to provide such information.",
"• In some instances, members of opposition newspapers, including Yeni Musavat and the Baku News were not admitted to the courtroom by court officials. In some cases, journalists were refused entry without grounds and in other cases lack of space in the public gallery was cited as the reason.",
"K. RIGHT TO TRIAL BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL",
"... In respect of Trial Group 15, two members of the court had not disclosed that they were related to people who were, or had been, involved in the preliminary investigation or prosecution of the offences. Whilst no evidence was adduced to show that the judges were biased as a result of this relationship, it was unsatisfactory that the judges concerned had not disclosed their relationships with others involved in the investigation and prosecution of the offences. The failure to make this disclosure, until it was brought to the attention of the court by the defendants and their lawyers, did not engender confidence as to the impartiality of the judges.",
"...",
"In respect of Trial Group 15, the judges rarely refused a motion by the prosecutor for an adjournment, when on occasion there seemed no justification for granting one. In particular, the court granted an application made by the prosecution to adjourn the case for ten days, so that he could prepare his closing speech, without calling upon the prosecutor to give reasons for such a long delay. The defendants objected strongly to such a long adjournment, but the court seemed to pay no attention to the concerns of the defendants or to any prejudice that such a long adjournment might cause them.",
"Again, in respect of Trial Group 15, on many occasions the court declined to give rulings in respect of motions made by the defendants or their advocates, ruling instead that it would postpone consideration of such motions until later in the case. Of particular concern was the decision of the judges to postpone consideration of crucial questions such as the number of witnesses that the court would allow to be called at the request of the defence. This left the defendants in a state of uncertainty as to which evidence they would be allowed to present in their defence. Plainly, this may have prejudiced the way in which the defendants were able to present their cases. Moreover, the court did limit the number of witnesses called at the request of the defence ...",
"L. RIGHT TO A FAIR HEARING",
"... In respect of Trial Group 15, the defendants frequently complained to the court that the fact that they were segregated when taken back to prison at the end of the court hearing, together with the limitation of having only one copy of the court materials among them, made it very difficult for them to prepare their cases, particularly cross-examinations of the witnesses. In the questionnaires completed by the defence lawyers, many complaints were made in relation to the refusal by the court to provide copies of documents and video tape recordings to the defendants and lawyers. The lawyers also complained that they were not given an opportunity of viewing the video tapes together with their clients.",
"Presumption of Innocence",
"... In the days following the post-election violence, statements were made to the press by the President-elect and by representatives of the Ministry of Interior, Baku Main Police Department, the Office of the General-Prosecutor and the Ministry of National Security, in which unlawful acts were attributed to the leaders and members of the Musavat, ADP and Umid parties. ...",
"Disclosure by prosecution of material information",
"... In respect of Trial Group 15, on numerous occasions the defence lawyers complained to the court that the prosecution had concealed from the court video tape recordings of the events on 16 October which would have assisted the defence. In particular, it was argued that the prosecution had failed to disclose recordings which would have shown that some of the defendants did not make speeches from the tribune and were not responsible for inciting or inflaming the demonstrators. No proper enquiry was made by the court into this issue. The prosecution was not called upon by the court to provide any evidence to rebut the defence suggestion. The matter should have been investigated thoroughly by the court, and the prosecution should have been required to satisfy the court that full disclosure of all material had been made.",
"...",
"The right to call and examine witnesses",
"... In most of the trials observed the judges examined only evidence submitted by the prosecution, including tens of witnesses (mainly soldiers and law enforcement officials) and videotape and photographs of groups of people breaking windows, damaging cars and beating law enforcement officials. At the same time, in breach of the principle of equality of arms and adversarial proceedings, defence lawyers were not given an equal possibility to rebut criminal charges, to bring attention to circumstances releasing the defendant from criminal responsibility or mitigating circumstances. The court dismissed almost all motions of the defence for consideration of additional evidence on behalf of the defendant. ...",
"In respect of Trial Group 15, the court did allow the defence to adduce tape recordings showing that violence had been used by the police and other government forces towards the demonstrators. However, the court severely restricted the number of witnesses called at the request of the defence. The defendants indicated to the court that they wished for as many as 600 witnesses to be called to give evidence to prove, amongst other things, that the defendants had not been responsible for providing articles to be used as weapons by the demonstrators, that the defendants had not addressed the crowd in the Square except to call upon them not to use violence and not to react to provocation by the police, and, more generally, that the defendants had not planned or orchestrated the civil disorder which broke out on the 16 October. In addition, the defendants requested the court to call a number of senior officials from the police and other government agencies, including the Baku Administration and the Ministry of Internal Affairs. The defendants submitted that these witnesses should be examined by the court with a view to showing that it was the police and government authorities who had initiated the violence and who had, in effect, incited the demonstrators to react in the way that they did. The court refused to call these senior officials ...",
"M. RIGHT TO A PUBLIC AND REASONED JUDGMENT",
"...",
"The right to a reasoned judgment",
"... In respect of Trial Group 15, OSCE observers assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses who purported to identify the various defendants as being involved in inciting the crowds to violence and other particular acts was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it. More particularly, the evidence of those prosecution witnesses who purportedly saw the defendants participating in the disturbance and carrying out particular acts to incite the crowd was so discredited in the course of cross-examination that it could not possibly be relied upon to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements that the majority of the prosecution witnesses had made in the course of the investigation. So many of the prosecution witnesses gave evidence which was wholly inconsistent with the accounts that they had previously given, that it became impossible to view the evidence of the witnesses implicating the defendants as credible. Conversely, the court failed to attach sufficient importance to the evidence that was called on behalf of the defendants, dismissing the evidence of many of the defence witnesses on spurious and inadequate grounds.",
"The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness. ... ”",
"108. Annex 4 of the OSCE Report concerned specific observations relating to Trial Group 15 only. At the beginning, the annex reproduced the allegations of torture and ill-treatment made by the defendants and witnesses during the trial, including the allegations made by the first applicant, Mr Huseyn, during the trial (see paragraph 24 above). The annex then continued with the observers ’ direct observations and remarks concerning the trial itself:",
"“ ... In respect of Trial Group 15, OSCE observers and the independent expert assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses for the prosecution was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements given by the majority of the prosecution witnesses, making it impossible to view their evidence against the defendants as credible.",
"For example, one of the key questions for the court to determine was whether the defendant Igbal Agazade made a speech from the tribune in Azadlig Square on 16 October. If the court could not be satisfied about the veracity and accuracy of the prosecution evidence on this question, then the case against this defendant was fundamentally flawed and no reasonable tribunal could have convicted him. One of the witnesses relied upon by the prosecution to prove that Igbal Agazade made a speech from the tribune gave evidence to the court that Agazade came to the Square from the port side of the Square in a white car. However, a video recording shown to the court made it clear that defendants Agazade and Panah Huseynov came to the Square in a black Mercedes car and that the car came from the side of the Square where the Intourist Hotel was and not from the port side. The court failed to give this matter any proper consideration and failed to take it into account when assessing the probative value, if any, that should be attached to the evidence of the witness. In all the evidence in the case, no reasonable tribunal could have been satisfied that the defendants Agazade or Huseynov acted in the way suggested by the prosecution.",
"...",
"Many of the witnesses relied upon by the prosecution made pre-trial statements to investigators which were identically worded, and had identical punctuation and typographical errors. This raises serious concern as a clear indication that the investigators were preparing the statements themselves, rather than recording faithfully the evidence of the witness. Another concern was that according to records of interrogations, investigators seemed to have interrogated more than one witness at the same time on the same date. Accordingly, this meant that either: (1) the records of interrogation were inaccurate or that they had been falsified; or (2) if the records were correct, that witnesses had been interrogated together, in breach of the Criminal Procedure Code. Although no satisfactory explanation was given for this, the court failed to carry out any adequate investigation of this matter and failed to give it any proper consideration when assessing the probative value of the evidence.",
"At the request of the defendants, the court summoned a great number of witnesses, all of whom gave evidence which, if accepted, materially assisted the defendants and cast a real doubt on the prosecution case. In its judgment, however, having summarised the evidence of the defence witnesses in a wholly inadequate manner, the court dismissed their evidence in its entirety by stating as follows: [ a quotation of the text quoted in paragraph 6 6 above follows.]",
"This brief judgment failed to attach sufficient importance to the evidence on behalf of the defendants, dismissing it on spurious and inadequate grounds. The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness. ”",
"109. Extracts from a number of reports by international bodies and human rights NGOs, describing the violent clashes between demonstrators and law-enforcement authorities during the events of 15 and 16 October 2003, have previously been quoted in the Muradova case ( cited above, § § 71-77).",
"110. Among other similar reports by international NGOs, the report by Human Rights Watch, entitled Crushing Dissent: Repression, Violence and Azerbaijan ’ s Elections (January 2004 Vol. 16, No. 1(D)), contains lengthy summaries of numerous first-hand accounts by persons arrested in connection with the events of 15 and 16 October 2003 concerning the alleged acts of torture and ill-treatment they had been subjected to while in detention. The relevant statements were made by the alleged victims in interviews personally conducted by Human Rights Watch researchers during the organisation ’ s two missions to Azerbaijan from September to November 2003."
] | [
"II. RELEVANT DOMESTIC LAW",
"105. The relevant provisions of the Code of Criminal Procedure of 2000 (“the CCrP”) provided as follows:",
"Article 107. General provisions on objections and self-disqualification",
"“ 107.2. In the circumstances provided for in Articles 109, 110 and 112-118 of this Code that preclude the participation in criminal proceedings of a judge, juror, prosecutor, investigator, preliminary investigator, defence counsel, victim (private prosecutor), civil claimant, civil defendant, representative of a witness or a witness, court clerk, interpreter, specialist or expert, they shall request to withdraw. ”",
"Article 109. Objection to a judge",
"“ 109.1. An objection to a judge (or judicial formation ) must state reasons. If an objection is not supported by specific reasons, it shall be left unexamined by the court. An objection to a judge may be considered justified and be granted unconditionally if there exists at least one of the following grounds precluding a person ’ s participation in the criminal proceedings as a judge:",
"...",
"109.1.7. if the judge has any relationship of kinship or other dependence with any participant in the criminal proceedings or with a representative or counsel of such participant;",
"...",
"109.2. In any of the cases covered by Article 109.1 of this Code, the judge shall disqualify himself or herself .”",
"Article 339. Beginning of oral arguments",
"“ 339.1. Upon completion of the judicial examination, the presiding judge shall announce the beginning of the oral arguments.",
"339.2. If any of the participants in the oral arguments requests time for preparation of the arguments, the presiding judge shall announce an adjournment and specify its duration. ”",
"Article 340. The parties ’ oral arguments",
"“ 340.1. The oral arguments shall consist of speeches made successively by the public prosecutor, the victim (or private prosecutor) or his or her representative, the civil claimant or his or her representative, the accused (only if there is no defence counsel participating in the proceedings) or his or her defence counsel, and the civil defendant or his or her representative.",
"...",
"340.3. In their oral arguments, the parties may not refer to evidence which has not been examined during the judicial examination of the case. If the party needs new evidence in order to justify a conclusion reached [in its closing address ], it shall submit an application to reopen the judicial examination, indicating which facts require additional investigation and on the basis of what evidence. ...",
"340.4. The court may not set a time - limit on the oral arguments, however the presiding judge may interrupt a party delivering an oral argument if that party ’ s submissions concern circumstances irrelevant to the criminal charge in question.”",
"Article 341. Replies ( Replikalar )",
"“ After the oral arguments of all participants in the proceedings have been submitted, the public prosecutor, the victim (or private prosecutor), the accused and his or her defence counsel shall have the right to speak one more time each in order to make brief objections or observations in response to the arguments put forward by the parties. ”",
"Article 342. The accused ’ s final plea",
"“ 342.1. Upon completion of the closing addresses and replies, the accused shall be allowed a final plea. No questions can be put to the accused during the final plea.",
"342.2. The court may not set a time - limit on the accused ’ s final plea. The presiding judge may interrupt the accused if he or she refers to circumstances clearly irrelevant to the criminal charge in question.",
"342.3. If the accused, in his or her final plea, discloses new circumstances which are significant for the comprehensive, thorough and objective determination of the criminal charge by the court, the court shall reopen the judicial examination.”",
"106. Under Article 455 of the CCrP, the finding of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights is a ground for reopening the proceedings. Pursuant to Article 456, in this case, the Plenum of the Supreme Court examines the case exclusively on points of law. After the examination of the case, the Plenum of the Supreme Court may decide to quash the lower courts ’ rulings and remit the case to the relevant lower court, or to vary the decision of the courts of cassation or other courts, or to quash the decision of the courts of cassation or other courts and deliver a new decision (Article 459 of the CCrP).",
"III. RELEVANT INTERNATIONAL DOCUMENTS",
"107. The following are the relevant extracts from the report by the Organization for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), on the Trial Monitoring Project in Azerbaijan 2003-2004 (“the OSCE Report”) :",
"“ 2. SUMMARY OF POST-ELECTION DEVELOPMENTS",
"Post-election violence",
"... In the immediate aftermath of the elections, demonstrations took place on 15 and 16 October, which resulted in violent clashes between security forces and demonstrators in Baku.",
"On the evening of 15 October in front of the Musavat Party Headquarters, members of the OSCE/ODIHR Election Observation Mission witnessed police attacking peaceful pro-opposition supporters. On 16 October, several thousand demonstrators and pro-opposition supporters gathered in Azadlig Square in the centre of Baku to protest what they considered to have been a stolen election. On their way to the square demonstrators were witnessed vandalizing buildings and vehicles, and attacking police forces with metal bars and stones. At the square, demonstrators were rapidly surrounded by police and security forces, which used overwhelming force to disperse the crowd. Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area. Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators.",
"The violence was followed by a wave of detentions. According to officials, the detainees were persons involved in the violent activities or responsible for organizing the violence. However, the detentions took place in all parts of the country and included many individuals with no clear connection to the violence. The Minister of Interior reported that over 600 persons were detained following the violent clashes. ...",
"Administrative and criminal charges",
"The majority of the people detained in connection with the elections were later released without charge. In total, 129 persons were charged with criminal offences in connection with the post-election clashes, of whom 125 had been brought to trial at the time this report was prepared.",
"...",
"Among the people charged with criminal offences were several prominent members of the opposition including [among others, Mr Huseyn, Mr Abbasov, Mr Hajili and Mr Mammadov] ...",
"At the time of the writing of this report, the OSCE/ODIHR was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators.",
"3. AIM AND METHOLOGY",
"The cases of all 125 persons tried in connection with the post-election violence were monitored under the OSCE Trial Monitoring Programme. ...",
"OSCE-trained trial monitors observed all first instance hearings and two appeals. The OSCE-trained trial monitors participated in two training sessions on national and international fair trial standards and trial monitoring techniques in December 2003 and May 2004. In addition, an international expert, Paul Garlick, Queen ’ s Counsel, Judge ( United Kingdom ), observed the final set of trials, which began on 7 May. The information contained in this report stems mainly from the direct observations of the trial monitors and the international expert. However, the information on arrest and the pre-trial period is based upon submissions made in court by the defendants and defence counsel and interviews with defendants and defence counsel. In the case of Trial Group 15, a detailed questionnaire was prepared by the international expert and completed by defence counsel.",
"...",
"4. BASIC INFORMATION ON THE POST-ELECTION CASES",
"... The cases of the 125 persons that were brought to trial were heard in 15 groups. For the purpose of this report they are referred to as Trial Groups 1-15. ...",
"Trials concerning the events of 16 October",
"The trials in the other Trial Groups all concerned the events that took place on Azadlig Square on 16 October and were all tried before the Court for Serious Crimes. The defendants in Trial Groups 1-6 and 8-14 were charged with participating in mass disturbances, organization of, or active participation in, actions causing a breach of public order and resistance to, or acts of violence against, a State Agent.",
"The defendants in the final Trial Group, Trial Group 15, included the most prominent members of the opposition parties who were tried in connection with the post-election violence. Whereas the defendants in all the other Trial Groups were charged with participating in mass disturbances, the defendants in Trial Group 15 were charged with organizing mass disturbances. In addition, they were also charged with resistance to, or acts of violence against, a State Agent. ...",
"5. FINDINGS AND ANALYSIS",
"...",
"C. RIGHT TO LEGAL COUNSEL BEFORE TRIAL",
"... [S] pecific examples exist where defendants claim that they were not provided with access to legal counsel until after having been charged or remanded in custody. ... In Trial Group 15, defendant Panah Huseynov [Huseyn] made a written statement to the effect that he did not have access to his lawyer from his arrest on 18 October 2003 until 23 October 2003. He complained that he had been forced to renounce his right to legal counsel. In this case the defendant stated in court that during his detention in Gazakh Police Division he was forced to sign a paper rejecting the services of a lawyer and a paper confessing that he had used force against police officers.",
"In respect of Trial Group 15, whilst it appears that some defendants did have access to legal representation within a short period of time after being taken into custody, in some cases access was denied after the initial meeting.",
"...",
"F. RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE A DEFENCE",
"...",
"In Trial Group 15, the evidence comprised 22 volumes of criminal case materials, testimonial evidence, data on the cause of damage, testimonies of the victims, and 22 video cassettes. The material was not made available to the defence lawyers until March 2004. Even then, only one copy of the case materials was made available to the defendants, thus restricting the preparation of their defences, particularly during the trial when the defendants were kept apart from each other in separate cells. On numerous occasions during the hearing of Trial Group 15, the defendants complained to the court about the difficulties that they were encountering in preparing cross ‑ examination of witnesses as a result of being in isolation and having to share the single copy of case materials.",
"In addition to difficulties created by only one copy of the case materials being made available to the defendants, the defence lawyers complained that they had been denied copies of the rulings which the court had made in the preliminary stages of the trial. The defence advocates reported that of 31 motions that had been lodged by the defence, copies of only 8 decisions were provided by the court.",
"G. FREEDOM FROM TORTURE AND ILL-TREATMENT, AND THE RIGHT NOT TO BE COMPELLED TO TESTIFY OR CONFESS GUILT",
"...",
"Allegations of Torture and Ill- Treatment of Defendants",
"Allegations of torture and ill-treatment were made in all but two of the 15 Trial Groups. In Trial Groups 1-14 the allegations were made primarily against law enforcement officials in temporary detention, although there were also allegations of mistreatment at the time of detention. The types of ill-treatment described either in court or directly to OSCE trial monitors included threatening to harm close relatives, denying food and water, tying to chairs, interrogating and video recording detainees whilst they were naked, threatening with firearms, hitting, punching, kicking, beating with truncheons, bottles and sticks, forcing detainees to stand outside in the rain for hours, burning with cigarettes, injecting with unknown substances, and threats of rape ...",
"Allegations of Torture and Ill- Treatment of Witnesses",
"In addition to reported torture and mistreatment of defendants, there were numerous allegations of torture and ill-treatment of witnesses : [summary of alleged first-hand accounts of ill-treatment follows]. ...",
"As a result of the alleged ill-treatment several witnesses claimed during the trials that their statements were to be considered falsified ...",
"THE LAW",
"I. JOINDER OF THE APPLICATIONS",
"111. Given that the applications concern issues relating to the same set of criminal proceedings, in which all of the applicants were co-defendants, the Court has decided to join the applications in accordance with Rule 42 § 1 of the Rules of Court.",
"II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION",
"112. The first applicant complained that he had been ill-treated while in custody in the OCD. Furthermore, both the first and second applicants complained about the conditions of their pre-trial detention. Article 3 of the Convention reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. The parties ’ submissions",
"113. As to the first applicant ’ s allegations concerning ill-treatment in custody, the Government maintained that he had not exhausted the available domestic remedies. In particular, they argued that, under the relevant provisions of the CCrP (Articles 122 and 449), he could have lodged an appeal to a superior prosecutor or a court against the decision of 14 February 2004 rejecting his complaint of ill-treatment. The Government accepted that the first applicant had mentioned his allegations of ill ‑ treatment before the first-instance court during his trial. However, they argued that he had subsequently failed to raise the same complaint in substance in his appeals to the higher courts.",
"114. As to the substance of the first applicant ’ s allegations, the Government noted that they were not precise, but instead were too vague and incomplete, and no evidence had been produced to support them. Even though, in the context of the separate investigation into allegations of ill ‑ treatment conducted at domestic level, he had been questioned about his allegations, he had refused to provide any details and had refused to undergo a medical examination. Similarly, the complaint of ill-treatment that he had made before the trial court had been poorly substantiated as he had failed to specify, with concrete details, what had specifically constituted the alleged ill-treatment. Lastly, the Government maintained that the manner in which the first applicant ’ s allegations had been addressed by the domestic authorities had been effective and adequate, and that the repeated failure by the applicant to identify the alleged perpetrators of the alleged ill ‑ treatment and to specify its nature and duration had impeded the domestic investigation into his allegations.",
"115. As to both the first and second applicants ’ complaints concerning the conditions of their pre-trial detention, the Government noted that they had never complained about this to any domestic authority. As to the substance of the second applicant ’ s allegations, the Government noted that the conditions of his detention, while possibly severe at the very beginning, had not amounted to ill-treatment and that the arrangements for his detention had been gradually relaxed and he had been given access to writing accessories, books, newspapers and a radio, and had even been able to publish a book while in pre-trial detention.",
"116. In connection with his allegations of ill-treatment in custody at the OCD, the first applicant argued that he had been tortured during the initial questioning and had been threatened with persecution and torture of his close relatives. He insisted that he had raised this complaint before the domestic authorities and all the domestic courts, but that no effective domestic investigation had been carried out. He argued that, once he had raised a complaint of ill-treatment, the burden was on the domestic authorities to prove that he had not been tortured. He referred to a large number of other detainees ’ accounts of ill-treatment following their arrests in connection with the events of 15 and 16 October 2003 and maintained that, in general, domestic investigations into allegations of ill-treatment were inadequate and ineffective.",
"117. In connection with the conditions of his detention, the first applicant noted briefly that, after his transfer from the OCD to another detention facility, he had been kept in solitary confinement and had not been allowed to possess writing accessories, books, a radio or newspapers, without specifying the duration for which he had been kept in these conditions.",
"118. The second applicant alleged that, for thirty-six days, he had been held alone in a cell in “isolation” from the outside world, with no access to writing accessories, books, a radio or newspapers. Although he had raised this complaint before the trial court and appeal courts, no effective examination of his allegations had been carried out.",
"B. The Court ’ s assessment",
"119. The Court finds that it is not necessary to examine whether the applicants have exhausted domestic remedies as, even assuming that they had done so, the complaints are in any event inadmissible for the following reasons.",
"120. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII). In particular, where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, § § 108-11, Series A no. 241 ‑ A, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V).",
"121. At the outset, the Court notes that it cannot disregard the reports of various NGOs and international organisations concerning the widespread allegations of ill-treatment in custody of persons arrested in connection with the events of 15 and 16 October 2003, which contained numerous first-hand accounts of ill-treatment given, in various degrees of detail, by the alleged victims. Similarly, the Court notes that, even at the applicants ’ own trial, not only the first applicant but also a number of witnesses had complained that they had been ill-treated in detention. Moreover, the Court refers to its earlier judgment concerning a similar complaint made in a separate application by the fourth applicant in the present case (see Mammadov, cited above ), in which it found that the applicant had been tortured in the OCD ’ s detention facility in circumstances similar to those alleged in the present case. All of the above information supports, albeit indirectly, the first applicant ’ s allegations made in the present case.",
"122. However, this background information, in itself, is not sufficient for finding a violation of Article 3 in the first applicant ’ s particular circumstances. In order for the Court to reach such a finding, the applicant ’ s allegations of ill-treatment must be proved beyond reasonable doubt by appropriate evidence or such evidence should flow from the coexistence of sufficiently strong, clear and concordant inferences or of unrebutted presumptions of fact. However, the Court notes that, unlike, for example, the Mammadov case, where similar allegations of ill ‑ treatment were raised (cited above, § § 18 et seq. ), the first applicant had not made a formal complaint of ill-treatment, had not requested a forensic examination as soon as possible after the alleged ill-treatment, and had not provided any explanation as to his failure to do so. It is true that his access to a lawyer was delayed for several days after his arrest, and that this could have prevented him from taking the above steps during that time; however, nothing was done in this connection after the applicant had been able to meet the lawyer. While he lodged a relevant complaint about four months after the alleged ill-treatment, he expressly refused to undergo the forensic examination offered to him. Nor has he submitted to the Court any other evidence confirming the presence of any injuries on his person. No plausible explanation has been offered for his failure to do so. Moreover, despite the first applicant ’ s arguments to the contrary, it does not appear from the documents in the case file that he ever gave the domestic authorities a detailed and consistent description concerning the method, duration or perpetrators of the alleged ill-treatment or the chronology of the events. On the contrary, it appears that, whenever specifically asked about these matters, each time he refused to provide an answer, confining himself to making general or incomplete statements. Nor has he provided a detailed account of these matters in his submissions to the Court. In the absence of such an account and of any evidence concerning any injuries that the applicant might have sustained, the Court considers that there is insufficient evidence either to prove the first applicant ’ s allegations beyond reasonable doubt or at least to establish a prima facie case of ill-treatment, in which event the burden of proof would be shifted to the Government to provide a satisfactory and convincing explanation.",
"123. Furthermore, having regard to the substance and the level of detail of the first and second applicants ’ submissions concerning the alleged conditions of their pre-trial detention, the Court considers that they do not disclose an appearance of ill-treatment reaching the minimum level of severity required under Article 3 of the Convention.",
"124. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION",
"125. Relying on Article 6 §§ 1 and 3 (b), (c) and (d) and Article 13 of the Convention, all of the applicants complained :",
"(i) that two of the judges of the Assize Court had lacked impartiality;",
"(ii) that they had not been given adequate time and facilities for the preparation of their defence, as neither they nor their lawyers had been given adequate access to the prosecution evidence;",
"(iii) that they had not been able to receive effective legal assistance throughout the criminal proceedings, including the initial stages of the proceedings and the trial hearings;",
"(iv) that the principle of equality of arms during the trial hearings had not been respected as they had been unable to make their oral arguments under the same conditions as the prosecution; and",
"(v) that the accusations against them had been based on false evidence, that they had been unable to properly examine witnesses against them and to obtain the attendance and examination of defence witnesses under the same conditions as witnesses against them, and that the domestic court had failed to reply to their objections concerning the witnesses and to provide adequate reasons for its decisions concerning the admissibility and assessment of evidence.",
"126. The Court considers that this complaint falls to be examined solely under Article 6 of the Convention, the relevant parts of which read as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ”",
"A. Admissibility",
"1. The parties ’ submissions",
"127. The Government submitted that the first and third applicants had failed to exhaust domestic remedies in respect of the part of the complaint relating to the alleged lack of impartiality of the Assize Court ’ s judges. They further submitted that the third applicant had failed to exhaust domestic remedies in respect of the parts of the complaint relating to the examination of witnesses, the provision of adequate time and facilities for the preparation of his defence, and the right to effective legal representation.",
"128. In particular, the Government acknowledged that the applicants had raised the issue of the judges ’ lack of impartiality during the Assize Court ’ s preliminary hearings. The Government noted, however, that later in the course of the proceedings, on 6 September 2004, the first applicant had expressed an intention to raise a new objection to the composition of the court, but had withdrawn his objection the next day. They further submitted that, although the first applicant had complained of a lack of impartiality on the part of the Assize Court ’ s judges in his appeal before the Court of Appeal, he had done so in general terms and had not substantiated his complaint with detailed reasoning. Instead, in his oral submissions before the Court of Appeal, he had complained of the Court of Appeal ’ s lack of impartiality. Lastly, the Government submitted that the third applicant had failed to raise this issue in his appeals before the Court of Appeal and the Supreme Court.",
"129. Furthermore, the Government argued that the third applicant had failed to raise before the Court of Appeal or the Supreme Court any of the issues relating to the parts of the present complaint falling under Article 6 § 3 (b), (c) and (d).",
"130. The first applicant submitted that he had duly lodged the requisite applications concerning the judges ’ alleged lack of impartiality at the preliminary hearings in the Assize Court. Subsequently, he had submitted properly substantiated complaints in this regard in his written appeals and oral submissions before the Court of Appeal and the Supreme Court. In particular, in the transcript of his speech before the Court of Appeal, six pages were devoted to this issue.",
"131. The third applicant noted that, while his appeals had not specifically touched upon the issue of the judges ’ lack of impartiality, he had complained about this matter in his oral submissions to the appellate courts. As to the alleged non-exhaustion of domestic remedies in respect of other complaints, the third applicant argued, firstly, that he had complained about these matters in his appeals, albeit briefly. Secondly, he noted that he had raised more detailed arguments in his oral submissions before the appeal courts. Thirdly, he noted that he and his co-defendants had always taken a joint and uniform position on all matters relating to their defence. Since his co-defendants had made very detailed complaints regarding every problematic aspect of the trial in their respective appeals, he was dispensed from the requirement to make the same submissions in the same degree of detail in his written appeal, especially in the light of the fact that the domestic courts consistently treated any applications or submissions by any of the defendants as common and applicable to all of the defendants.",
"2. The Court ’ s assessment",
"132. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The Court notes that the application of this rule must make due allowance for the context of the individual case including, among other things, the personal circumstances of the applicant. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § § 65-66 and 69, Reports of Judgments and Decisions 1996 ‑ IV).",
"133. As to the Government ’ s objection in respect of the first applicant, the Court observes that he lodged formal applications with the Assize Court objecting to the participation of Judges Ibayev and Aleskerov on the ground of their lack of impartiality. The applications were properly substantiated with relevant reasoning. Moreover, these applications were joined by all the other applicants, including the second and fourth applicants, in respect of whom the Government did not raise a similar objection, thus implicitly accepting that they had properly raised this issue before the relevant domestic authority. Accordingly, the Court sees no reason justifying the Government ’ s assertion that the first applicant had somehow failed to do so. The Court cannot accept the Government ’ s argument concerning the applicant ’ s alleged failure to lodge a repeated objection in respect of those judges at a later stage of the proceedings. Once the first applicant had raised this objection at the preliminary hearings in accordance with the formal requirements of the domestic law and obtained an unsuccessful outcome, neither the Convention nor the domestic law required him to keep raising the same objection repeatedly before the same court.",
"134. Furthermore, having regard to the content of the first applicant ’ s appeals and transcripts of his oral submissions before the appellate courts, the Court is satisfied that the applicant has raised before those courts, in sufficient detail and with sufficient substantiation, the essence of his complaint concerning the alleged impartiality of the Assize Court ’ s judges.",
"135. As to the Government ’ s objection in respect of the third applicant, the Court, having regard to the content of his appeal (see paragraph 89 above), finds that it was indeed very generally worded and did not address any of the specific allegations he made before the Court in his complaint under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. Nevertheless, the Court considers that, in the specific context of the present case, the situation of the third applicant calls for the rule of exhaustion of domestic remedies to be applied with a certain degree of flexibility, for the following reasons.",
"136. The Court notes that the third applicant was in a situation very similar to that of the other applicants. In particular, all of the applicants were defendants in the same criminal proceedings facing the same criminal charges based on the same incriminating evidence. All of the applicants were affected by the same or similar alleged breaches of their defence rights. All of the applicants consistently joined and supported each other ’ s objections, applications, arguments and complaints before the domestic courts. Moreover, as correctly pointed out by the third applicant, even the domestic courts often addressed any objections and complaints lodged by one of the applicants as if they were applicable to all of the defendants.",
"137. As noted above, the first applicant has, to a sufficient degree, brought all of the matters raised in the present complaint to the attention of the domestic courts in his applications and appeals. Moreover, by not raising a similar objection in respect of the second and fourth applicants, the Government can be considered to have implicitly accepted that they had likewise exhausted domestic remedies. Accordingly, in so far as the third applicant was in the same situation as the other applicants and raised the same complaints before the Court, the domestic appeals lodged by the other applicants sufficiently brought to the domestic authorities ’ attention all of the alleged defects in the trial that affected all of them, including the third applicant. In view of the above considerations, it cannot be argued that his written appeals would have had any more prospects of success had they been substantiated to the same degree as the other applicants ’ appeals. Moreover, the Court takes note of the third applicant ’ s assertion that, in any event, his oral submissions before the appellate courts were more specific and detailed than his written appeals.",
"138. For these reasons, the Court dismisses the Government ’ s objection in respect of the first and third applicants. It further notes that, in so far as all four applicants are concerned, their complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The Government",
"139. As to the alleged lack of impartiality of the tribunal, the Government maintained that the applicants ’ fears about the lack of impartiality of Judges Aleskerov and Ibayev had not been objectively justified. In respect of Judge Aleskerov, the Government submitted that the Assize Court had examined the applicants ’ complaint about his alleged lack of impartiality and found that the judge ’ s brother had indeed been a member of the investigation team in criminal case no. 80308. However, on 26 January 2004, he had been excluded from that team and, subsequently, had not been included in the investigation team for criminal case no. 80365, in which the applicants had been defendants. Accordingly, Judge Aleskerov ’ s brother had not personally carried out any investigative steps or otherwise been involved with the applicants ’ specific criminal case.",
"140. The Government further submitted that the mere fact that Judge Ibayev ’ s son worked at the Prosecutor General ’ s Office was insufficient to justify any fears that his father would not be impartial. Judge Ibayev ’ s son had never been involved with the applicants ’ case at any stage of the proceedings.",
"141. As to the applicant ’ s grievances concerning the ineffectiveness of the legal assistance provided to them, the Government submitted that the applicants ’ lawyers had been appointed in October 2003, had participated in the case from the very beginning and that therefore they had been able to represent their clients effectively. Moreover, during the trial some of the applicants had also been represented by additional lawyers hired by their relatives.",
"142. The Government maintained that the applicants and their lawyers had been given access to the investigation material for a sufficient period of time necessary for the preparation of their defence. All of them had signed relevant records on familiarisation with the material in the case file without making any remarks as to the alleged inadequacy of the time and facilities afforded to them in order to prepare their defence.",
"143. The Government further noted that the preliminary hearings of the Assize Court had been extended for a period of more than a month owing to the applicants ’ and their lawyers ’ failures to appear. In view of this, the Government concluded that the defence had been given sufficient time to prepare their defence before the trial hearings. Subsequently, the applicants ’ lawyers had conducted the defence during the entire trial. Although the lawyers had refused to deliver closing addresses for the defence, they had not refused to continue providing their legal services to the applicants. Under Article 360.1 of the CCrP, the accused could be allowed to make a closing address in person only if no defence lawyer participated in the proceedings. As the applicants had lawyers, the Assize Court had correctly dismissed their request to make oral submissions in person. On the other hand, they had been allowed to make what actually amounted to a defence speech during the exercise of their right of reply and in their final pleas.",
"144. As to the applicants ’ claim that the Assize Court had not provided them with copies of its interim decisions in a timely manner (see paragraph 15 7 below ), the Government noted that the applicants had been duly informed of those decisions at the time when they had been publicly announced during the hearings and that copies of the decisions had been given to the applicants afterwards. The time of delivery of the written text of the interim decisions rejecting the applicants ’ various applications was of no importance, as in any event those decisions could not be challenged at that stage of the proceedings and became open to challenge only at the appellate stage of proceedings in the Court of Appeal.",
"145. In respect of the examination of witnesses, the Government submitted that the rights of the defence had been adequately secured at the trial. The applicants had been able to cross-examine the prosecution witnesses. Almost all of the applicants ’ requests to obtain the attendance of defence witnesses had been granted. In particular, by its decisions of 8, 22, 27 and 28 September 2004 the Assize Court had granted the applicants ’ requests to that effect. In their request of 29 September 2004 to complete the judicial examination of the evidence, the applicants had admitted that the defence had been able to obtain the attendance of about forty witnesses who had testified on their behalf.",
"146. As to the assessment of evidence produced during the trial, the Government maintained that it was not the Court ’ s task to take the place of the domestic courts. The domestic court was better placed to assess the competing versions of information provided by witnesses and, in doing so, had the advantage of hearing the witnesses and observing their demeanour at the witness stand. The applicants had been convicted following adversarial proceedings on the basis of the evidence examined at the hearings.",
"147. The Government maintained that, when dismissing the applicants ’ objections on various points of contention, the domestic courts had provided detailed reasons for their decisions. The applicants had been given the opportunity to put forward their arguments. Their arguments, even if ultimately rejected by the domestic courts, had nevertheless been duly taken into account and rejected on the basis of reasoning which appeared consistent and devoid of arbitrariness.",
"148. Lastly, the Government submitted that, even if there had been any defects in the original trial, they had been subsequently corrected by the appeal proceedings before the Court of Appeal and the Supreme Court. Accordingly, if considered as a whole, the criminal proceedings had been conducted in a manner compatible with the requirements of a fair trial.",
"(b) The applicants",
"149. As to the alleged impartiality of the Assize Court ’ s judges, the applicants submitted that Article 109.1.7 of the CCrP unconditionally required that a judge should be disqualified from hearing a case if he or she was related to or personally dependent on any participants in the proceedings, including those from the prosecution side. The applicants noted that Judge Aleskerov ’ s brother, as a member of the investigation team in criminal case no. 80308, had been directly involved in the investigative steps taken from 16 October 2003 and had signed a number of procedural documents, and that the evidence relating to their case had been gathered with his active involvement. For a period of more than three months (until his removal from the investigation team), he had personally conducted numerous interviews and had actively worked on the case in other ways. Although on 26 January 2004 Judge Aleskerov ’ s brother had been removed from the criminal case, the majority of the evidence against the defendants had been gathered and the majority of the investigative steps had been carried out prior to that date. The evidence gathered during the time when he had participated in the investigation had eventually been produced during the trial.",
"150. The applicants disagreed with the Government ’ s contention that Judge Aleskerov ’ s brother had never been involved in the applicants ’ specific cases, which had been grouped together as criminal case no. 80365. The applicants noted that criminal case no. 80365 had merely been part of the original criminal case no. 80308, which had eventually been divided into fifteen different parts, and that it had not been a new independent case. The applicants noted that case no. 80365 had been severed from the original criminal case on 1 March 2004 and that, shortly thereafter, they had been informed that the investigation had been completed. Accordingly, very little investigative activity had been carried out in respect of this newly created case, since the vast majority of the evidence serving as the foundation for the applicants ’ indictment had already been gathered in the context of the original case no. 80308. The mere fact that the applicants had been separated from the other defendants and their criminal case had been assigned a new number did not mean that they had become the subject of a completely different criminal case.",
"151. Relying on the above considerations, the applicants maintained that Judge Aleskerov ’ s brother had been formally involved in and made a significant contribution to the prosecution ’ s work, that Judge Aleskerov by his own admission had been aware of his brother ’ s role in the proceedings and that, in view of such close family kinship with a member of the prosecution team, he could not have been impartial when hearing their case.",
"152. As to the alleged lack of impartiality on the part of Judge Ibayev, the applicants noted not only that his son had worked as an investigator at the Prosecutor General ’ s Office, but also that he was directly subordinate to Mr Kazimov, the head of the investigation team in the applicants ’ case. This fact raised serious doubts as to the impartiality of Judge Ibayev, even though his son had not been personally involved in their criminal case.",
"153. As to the effectiveness of the legal assistance received, the first, third and fourth applicants noted the delays in their access to a lawyer at the initial stages of the proceedings. Furthermore, all of the applicants maintained that their lawyers had been unable to familiarise themselves to a sufficient extent with the investigation material and had been put under unprecedented physical and moral pressure from outside the courtroom. In such conditions, they had been unable to defend the applicants effectively. In particular, the obstacles faced by the lawyers had prevented them from preparing an adequate closing address on behalf of the defence and they had therefore refused to give an address altogether. The applicants had had no other choice but to request leave to deliver their closing addresses themselves, but their request had been rejected, depriving them of the opportunity to exercise one of the most important defence rights. Although they had been allowed to exercise their right of reply to the prosecution ’ s submissions, this “right of reply ” was not tantamount to a comprehensive closing address, as it was defined as a right to make a brief objection to or observation on various specific submissions made by the opposing party during the oral arguments. Moreover, the restriction of the rights of the defence was exacerbated by the fact that the prosecution had been granted two separate extensions of the period to prepare their oral argument.",
"154. As to the examination of witnesses and other evidence, the applicants maintained that the Assize Court had made manifest errors in its legal reasoning and the assessment of evidence. They submitted that the Convention did not merely require verification of whether certain witnesses had been called and cross-examined by the defence, but that it required that any assessment of evidence be devoid of unfairness and arbitrariness.",
"155. The applicants pointed out that, although the Assize Court had allowed them to have a number of defence witnesses examined, it had nevertheless rejected their applications to call a number of other witnesses whom they had wished to question.",
"156. The applicants noted that, when dealing with the witnesses who had retracted their earlier pre-trial statements incriminating the applicants, the Assize Court had often relied on the judgments adopted in previous trials concerning the events of 15 and 16 October 2003 (in which the applicants had not participated), where various evidentiary issues had been assessed, citing those judgments ’ res judicata character, and had thus essentially deprived the applicants of a fair assessment of the evidence at their own trial. The Assize Court had not given due attention to numerous statements by various witnesses to the effect that their pre-trial statements had been extracted from them by means of ill-treatment.",
"157. The applicants submitted that there had been a number of other procedural shortcomings during the trial. In particular, they claimed that the Assize Court had not provided them with copies of its various interim decisions in a timely manner. They also claimed that the transcripts of court hearings had often been incorrect and incomplete and that they had been unable to request the court to correct them, as the transcripts had not been made available for their review within three days after the record of each hearing had been signed by the presiding judge and the court clerk, as required by law.",
"2. The Court ’ s assessment",
"158. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together (see, among many other authorities, F.C.B. v. Italy, 28 August 1991, § 29, Series A no. 208 ‑ B; Poitrimol v. France, 23 November 1993, § 29, Series A no. 277 ‑ A; Lala v. the Netherlands, 22 September 1994, § 26, Series A no. 297 ‑ A; and Krombach v. France, no. 29731/96, § 82, ECHR 2001 ‑ II). In doing so, the Court will examine, in turn, each of the various grounds giving rise to the present complaint, in order to determine whether the proceedings, considered as a whole, were fair (compare Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § § 68 et seq., Series A no. 146 ).",
"(a) Impartiality of the Assize Court ’ s judges",
"159. The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is, on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Fey v. Austria, 24 February 1993, § 28, Series A no. 255 ‑ A ).",
"160. As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154 ). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill-will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).",
"161. Under the objective test, it must be determined whether, quite apart from the judge ’ s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, in the accused. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Fey, cited above, § 30).",
"162. Moreover, the existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature ’ s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public (see Mežnarić v. Croatia, no. 71615/01, § 27, 15 July 2005). The Court may take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether the applicant ’ s fears can be held to be objectively justified (see, mutatis mutandis, Pescador Valero v. Spain, no. 62435/00, §§ 24-29, ECHR 2003 ‑ VII, and Pfeifer and Plankl v. Austria, 25 February 1992, § 36, Series A no. 227).",
"163. Turning to the present case, the Court considers that, under the subjective test, there is insufficient evidence that either of the two challenged judges of the Assize Court displayed personal bias. However, although in many cases it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, it must be remembered that the requirement of objective impartiality provides a further important guarantee. Accordingly, the Court will proceed to examine the complaint under the objective test.",
"164. As to the alleged lack of objective impartiality on the part of Judge Aleskerov, the Court considers that the applicants reasonably construed the situation as one requiring withdrawal within the meaning of Article 109.1.7 of the CCrP, on the ground that the judge had a family relationship with a representative of one of the parties to the criminal proceedings. Moreover, it notes that Article 109.2 of the CCrP obliges a judge falling within the scope of one of the grounds for withdrawal or challenge set out in Article 109.1 to withdraw from the case without waiting to be challenged.",
"165. The Court notes that both the prosecution and the judges of the Assize Court, including Judge Aleskerov himself, acknowledged the fact that Judge Aleskerov ’ s brother had been an active member of the investigation team working on the applicants ’ criminal case until 26 January 2004. However, in the Court ’ s view, the decision to reject the applicants ’ challenge on the ground that the judge ’ s brother was no longer involved in the investigation of case no. 80308 and had never been formally involved in case no. 80365 was overly formalistic and ignored a number of relevant factors.",
"166. The Court notes, firstly, that case no. 80365 was not a separate and unrelated criminal case, but merely an offshoot of the original criminal case no. 80308. The applicants had the status of accused persons in criminal case no. 80308 from the very beginning of the proceedings. As appears from the Prosecutor General ’ s decision of 1 March 2004, the only discernible reason offered by the prosecution for severing case no. 80365 from case no. 80308 was to ensure the conclusion of the investigation in respect of those accused whose individual cases were ready for trial and their speedy committal for trial, as it was considered too difficult in practice to hold a single trial for more than one hundred defendants. It was specifically stated in that decision that, by the time case no. 80365 was severed, the prosecution had essentially gathered, in the context of the investigation in criminal case no. 80308, all the evidence necessary to bring the applicants to trial. Accordingly, the Court considers that both Judge Aleskerov and his brother were de facto involved in the same criminal case concerning the same defendants and the same criminal charges, notwithstanding any regrouping of defendants into separate sets of proceedings and formal reassignments of case numbers that had taken place in the meantime.",
"167. Secondly, although the judge ’ s brother was removed from the investigation team on 26 January 2004, it appears from the case file that the majority, if not all, of the main incriminating evidence subsequently used against the applicants at the trial had been collected by the investigation team prior to that date. While it could be argued that, given that at some point the investigation team consisted of as many as forty-three investigators, the involvement of the judge ’ s brother in the case had not been substantial, the Court nevertheless notes that he had contributed a share of the work in collecting evidence that his brother, Judge Aleskerov, would subsequently be called upon to examine at the trial. Moreover, at the trial, the judge would be called upon not only to assess the prosecution ’ s submissions on their merits, but also to examine the defence ’ s numerous objections and arguments concerning the conduct of the investigation team and the allegedly faulty manner in which the evidence had been collected at the pre-trial stage of the proceedings. In such circumstances, the Court is of the view that the close family ties between a member of a prosecution team and Judge Aleskerov sufficed to objectively justify the applicants ’ fears that the judge lacked an appearance of objective impartiality (compare, mutatis mutandis, Micallef v. Malta [GC], no. 17056/06, § 102, ECHR 2009 ‑ ... ).",
"168. As to the alleged lack of impartiality on the part of Judge Ibayev, the Court observes that the applicants ’ fears were based on the fact that his son was an employee of the Prosecutor General ’ s Office who was directly subordinate to the prosecutor who had served as a head of the investigation team in the applicants ’ case. Given that Judge Ibayev ’ s son had never been assigned to work on the applicants ’ case, the Court considers that this part of the complaint, if viewed separately, concerns a situation where Judge Ibayev ’ s link with one of the parties to the proceedings might be seen as too remote to objectively justify any fears of lack of impartiality on his part. However, taking into account the fact that both Judges Aleskerov and Ibayev were members of the same three-judge panel of the Assize Court that heard the applicants ’ case, the Court considers it inappropriate to view the applicants ’ objections in respect of each of these judges independently of each other. The Court considers that, however insignificant and remote the link of Judge Ibayev with the prosecution might have been considered if viewed separately, in the specific context of the present case his situation at least compounded the justified fears mentioned above as to the Assize Court ’ s lack of impartiality arising from the situation of Judge Aleskerov.",
"169. The foregoing considerations are sufficient to enable the Court to conclude that the composition of the Assize Court was not such as to guarantee the appearance of its impartiality and that it failed to meet the Convention standard under the objective test.",
"(b) Legal assistance at the initial stage of the proceedings",
"170. The Court observes that the first, third and fourth applicants were not allowed contact with a lawyer during the first few days of the pre-trial investigation. Specifically, the first applicant was allowed to meet his lawyer for the first time five days after his arrest, the third applicant three days after his arrest, and the fourth applicant four days after his arrest.",
"171. The Court reiterates that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach, cited above, § 89). In this regard, Article 6 may also be relevant before a case is sent for trial and in so far as the fairness of the trial is likely to be prejudiced by an initial failure to comply with it (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275, and Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005- IV ). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation (see John Murray v. the United Kingdom, 8 February 1996, § 63, Reports 1996 ‑ I, and Öcalan, cited above, § 131). As the Court has further clarified, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008 -... ). Even in cases where an accused person remained silent and was not questioned in detention, a restriction of his or her right to legal assistance from the time of the arrest may fall short of the requirements of Article 6 §§ 1 and 3 (c) of the Convention (see Dayanan v. Turkey, no. 7377/03, § § 32-33, ECHR 2009 ‑ ... ).",
"172. In the present case, it appears that, in the first few days of their detention, the first, third and fourth applicants were questioned without the benefit of legal assistance and made certain statements that were included in the criminal case file. It does not appear that any of them had expressly waived their right to a lawyer after their arrest. Having regard to the information available on this matter, the Court cannot speculate on the exact impact which the applicants ’ access to a lawyer during that period would have had on the ensuing proceedings and whether the absence of a lawyer during that period irretrievably affected their defence rights. Nevertheless, the Court notes that such a restriction on initial access to legal assistance affected the applicants ’ defence rights.",
"173. Consequently, the Court considers that the restriction on the first, third and fourth applicants ’ right of access to a lawyer during the first few days of the pre-trial investigation infringed their defence rights.",
"(c) Access of the defence to the investigation file",
"174. The Court notes that all of the applicants complained that their lawyers had not been given sufficient time and facilities to study the investigation file. This eventually resulted in the lawyers ’ subsequent inability to effectively defend the applicants and to properly formulate defence arguments during the trial.",
"175. More specifically, all of the applicants consistently claimed that neither they nor their counsel had been given sufficient access to the prosecution evidence after the pre-trial investigation had been completed and before the trial commenced, nor had they enjoyed such access after the trial had commenced, despite their repeated complaints to that effect. The Court reiterates that the right to an adversarial trial under Article 6 § 1 of the Convention means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment on them (see Brandstetter v. Austria, 28 August 1991, §§ 66-67, Series A no. 211). Article 6 § 3 (b) guarantees the accused “ adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility of putting all relevant defence arguments before the trial court and thus of influencing the outcome of the proceedings (see Can v. Austria, no. 9300/81, Commission report of 12 July 1984, § 53, Series A no. 96; Connolly v. the United Kingdom, no. 27245/95, Commission decision of 26 June 1996; and Mayzit v. Russia, no. 63378/00, § 78, 20 January 2005). The facilities which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself for the purposes of preparing his defence with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, no. 29835/96, Commission decision of 15 January 1997, and Foucher v. France, 18 March 1997, §§ 31-38, Reports 1997-II). The issue of the adequacy of the time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case.",
"176. The Court observes that the prosecution ’ s case file was rather large, consisting, inter alia, of more than 6,200 pages of documents in twenty-two volumes and video evidence recorded on twenty-two video cassettes. Examination of such a large volume of evidence by the defence inevitably required a substantial amount of time (compare Öcalan, cited above, § § 142-47). The Government maintained that the defence had been given sufficient time to examine the case file, relying merely on the fact that each of the defence lawyers and applicants had signed a record on familiarisation with the material in the case file without making any remarks as to the inadequacy of the time and facilities afforded to them for doing so. The Court cannot accept this argument. It notes that signing a record on familiarisation with the material in the case file appears to be a procedural formality of minor legal significance, aimed at documenting the fact that the persons concerned have indeed been given access to the case file, but it does not necessarily follow from this that the signing of such a record may somehow attest in any way whether the time and facilities for such access were sufficient or may serve as an unequivocal waiver of any substantive or procedural grievances the defence may have had in connection with the process of consulting the investigation file. Moreover, the Court observes that the lawyers repeatedly complained during the criminal trial that they had not been given adequate time to examine the investigation file to a sufficient extent; some of them even complained that they had been pressured into signing records on familiarisation with material in the case file without having ever been given access to the material at all. Although the Court is not obliged to accept these allegations at face value, it nevertheless considers that the allegations should be given a considerable amount of credit because they were serious, repeatedly made and mutually concordant, and because of the apparent fact that the domestic courts avoided addressing them in any reasonable detail.",
"177. Moreover, apart from the above-mentioned argument, the Government have not submitted any relevant information as to the exact period of time or the manner in which the defence were allowed to consult the investigation file, that is, whether each lawyer or applicant was given a copy of the relevant material or whether they had to consult the file on the premises of the investigation authorities. As a notable exception, the Government submitted information as to the schedule of access to the prosecution evidence by one of the second applicant ’ s lawyers, Mr Karim; however, as the case stands, this information is irrelevant, as Mr Karim was dismissed as the second applicant ’ s lawyer and did not represent him during the trial. Otherwise, the Court notes that neither the exact period of time, nor the exact schedule and manner of the defence ’ s access to the case file is possible to discern from the documents submitted by the parties. The Court takes note of the observations made in the OSCE Report that “ only one copy of the case materials was made available to the defendants, thus restricting the preparation of their defense ... ”.",
"178. In view of this, and in view of the applicants ’ and their lawyers ’ consistent and repeated complaints made before the domestic courts on this matter, and the lack of any relevant or discernible factual information in the Government ’ s submissions, the Court finds that the circumstances of the case disclose serious problems as to the adequacy of the time and facilities afforded to the defense for acquainting themselves with the investigation file in preparation for the applicants ’ trial.",
"(d) Effective legal assistance during the trial",
"179. The Court observes that, starting from the Assize Court ’ s very first preliminary hearings and at various times throughout the trial proceedings, all of the applicants ’ lawyers repeatedly complained that they had not been able to provide their clients with adequate legal assistance owing to the limited time and facilities for the preparation of their defence and the alleged pressure applied on them outside the courtroom. These complaints eventually culminated in the refusal by the lawyers for the first three applicants to deliver closing addresses on their behalf. The lawyers did not formally terminate their services and remained as the applicants ’ formal representatives, but did not actively participate in the trial from that moment.",
"180. In this connection, the Court reiterates that, under Article 6 § 3 (c) of the Convention, an accused is entitled to legal assistance which is practical and effective and not theoretical or illusory. This Convention provision speaks of “assistance” and not of “nomination”: mere nomination does not ensure effective assistance since a lawyer may be prevented from providing such assistance owing to various practical reasons, or shirk his or her duties. A State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal - aid purposes. However, if a failure by legal - aid counsel to provide effective representation is manifest or is sufficiently brought to the authorities ’ attention in some other way, the authorities must take steps to ensure that the accused effectively enjoys the right to legal assistance (see Artico v. Italy, 13 May 1980, § § 33-37, Series A no. 37, and Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 16 8). Moreover, where it is clear that the lawyer representing the accused before the domestic court has not had the time and facilities to organise a proper defence, the court should take measures of a positive nature to ensure that the lawyer is given an opportunity to fulfil his obligations in the best possible conditions (see, mutatis mutandis, Goddi v. Italy, 9 April 1984, § 31, Series A no. 76 ).",
"181. In so far as some of the lawyers representing the applicants were State-appointed, the Court considers that, irrespective of whether any or all of the lawyers ’ claims about alleged obstacles to the adequate performance of their job had any merit, their eventual refusal to give closing addresses and to actively participate in the trial in other ways from that moment clearly resulted in a situation where the accused were left without any effective legal assistance during a considerable portion of the trial. The applicants ’ inability to receive effective representation was thus manifest and was brought to the Assize Court ’ s attention in a clear manner, namely by way of repeated complaints and applications in this regard made by both the applicants and their lawyers and by the very fact of the lawyers ’ refusal to take part in the oral submissions.",
"182. It could be argued that the Assize Court addressed the matter in its ruling of 13 October 2004, rejecting the applicants ’ application to make oral submissions in person owing to their lawyers ’ de facto withdrawal (see paragraphs 78 - 79 above). However, in the Court ’ s opinion, the Assize Court ’ s ruling of 13 October 2004 was superficial and contradictory. Thus, the Assize Court firstly stated, without any relevant explanation, that the lawyers had provided the applicants with adequate and effective assistance throughout the entire proceedings. However, it immediately followed up that statement with the contradictory remark that the lawyers had allegedly failed to perform their duty to avail themselves of the allegedly ample opportunities allowed to them for consulting the investigation file. This remark obviously contradicted the court ’ s own proclaimed view that the legal assistance provided by the lawyers had been effective. The Court considers that such a perfunctory approach to the matter reveals an apparent lack of concern by the domestic court about the effectiveness of legal representation available to the applicants. There is no indication in the case file that the domestic court attempted to independently and comprehensively assess the alleged problems repeatedly raised by the applicants and their lawyers.",
"183. In the Court ’ s view, the situation at hand called for at least a certain level of examination by the Assize Court of the specific allegations made by the lawyers; for example, the Assize Court should have requested and had regard to detailed information on the time and facilities afforded to them for consulting the prosecution evidence. Should the Assize Court have concluded that there had indeed been obstacles preventing the lawyers from doing their work properly, it should have attempted to remedy the situation by removing those obstacles. For example, it could have adjourned the hearings for a certain period in order to allow the lawyers to familiarise themselves with the case file to a sufficient extent. Alternatively, having regard to the fact that, at various points during the trial, some of the applicants expressed a wish to defend themselves in person because of the perceived ineffectiveness of the legal representation they were receiving, the domestic court could have at least taken this into account and afforded them time to prepare their defence in person. However, this was not done either ( see also section (e) below).",
"184. In so far as some of the lawyers were hired by the applicants themselves, the Court considers that in the present case the situation is no different from that of legal representation by State-appointed lawyers. While the State cannot be held responsible for the quality of representation by a lawyer of the applicant ’ s own choosing, it should nevertheless ensure that such a lawyer has an opportunity to fulfil his or her obligations in the best possible conditions. Where it is clear that the lawyer is unable to represent his client effectively owing to the lack of time and facilities to organise a proper defence, appropriate positive measures should be taken to remedy the situation.",
"185. The Court notes that the fourth applicant ’ s lawyers, unlike the other applicants ’ lawyers, gave closing addresses on behalf of their client. However, these lawyers joined their colleagues in their complaints concerning the alleged obstacles to organising the applicants ’ proper defence. The fourth applicant himself joined the other applicants ’ application for leave to defend themselves in person, arguing that the legal representation he was receiving was ineffective. Accordingly, the domestic court was likewise sufficiently informed of the problems regarding effective representation in the fourth applicant ’ s case and, as in the cases of the other applicants, did not take adequate steps to address the matter.",
"186. In view of the above considerations, the Court considers that, although the applicants ’ inability to benefit from effective legal representation was manifest and was sufficiently brought to the domestic courts ’ attention, no adequate steps were taken to ensure that they effectively enjoyed their right to legal assistance as guaranteed by the Convention.",
"(e) Deficiencies in ensuring the defendants ’ rights to give closing addresses at the concluding hearings of the trial",
"187. The Court notes that, as discussed above, the lawyers for the first, second and third applicants refused to participate in the oral arguments on their clients ’ behalf and the applicants applied to the court for leave to deliver their closing addresses in person. Their application was not granted, on the ground that the domestic law did not allow defendants to deliver a closing address for the defence if they were formally represented by counsel in the proceedings. As a result, the applicants found themselves in a situation where their lawyers did not give closing addresses on their behalf and they themselves were not allowed to do so in person. The Court is not concerned with the manner in which the domestic law regulated this matter or if it was correctly applied in the applicants ’ case. Rather, the Court ’ s task is to verify whether the actual situation at hand, namely the applicants ’ inability to give a closing address before the domestic court, was in breach of their rights under the Convention.",
"188. The Court reiterates that the principle of equality of arms, as one of the fundamental elements of the broader concept of a fair trial, requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis ‑ à ‑ vis his opponent (see Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports 1997-I). That right means, inter alia, the opportunity for the parties to a trial to present their own legal assessment of the case and to comment on the observations made by the other party, with a view to influencing the court ’ s decision (see, mutatis mutandis, Lobo Machado v. Portugal, 20 February 1996, § 31, Reports 1996 ‑ I, with further references ). The requirement of equality of arms, in the sense of a “fair balance” between the parties, applies in principle to both criminal and civil cases; in criminal cases a lesser degree of latitude is allowed for any deviations from that requirement (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § § 32-33, Series A no. 274 ).",
"189. The Court further reiterates that one of the most important aspects of hearings in criminal trials is the opportunity for the defence, as well as for the prosecution, to present their closing arguments, this being the only occasion when both parties can orally present their view of the entire case and of all the evidence produced at the trial and submit legal arguments concerning their assessment of its outcome (see, mutatis mutandis, Hanževački v. Croatia, no. 17182/07, § 25, 16 April 2009 ).",
"190. The Court notes that, in the present case, the hearings were adjourned twice in order to allow the prosecution to prepare their closing address, which they subsequently delivered in full during two hearings, without any interruption or objection by the court or the defence. On the other hand, the first, second and third applicants were not able to exercise their right to give a closing address, because their lawyers refused to do so on their behalf. As discussed above, the lawyers ’ refusal was indicative of their inability to provide effective legal assistance, a matter which was inadequately addressed by the domestic court. As such, the lawyers ’ de facto withdrawal cannot be considered to amount to a waiver by the applicants of the right to a closing address. On the contrary, the applicants insisted on exercising this right in person, but their request was denied. Accordingly, in the absence of any express or implicit waiver of the right to give a closing address, the applicants cannot be held responsible for this defect in the proceedings.",
"191. The Government argued that, in practice, the applicants were allowed to present all their arguments in person when exercising their right of reply and their right to a final plea. However, the Court cannot accept this argument, for the following reasons.",
"192. It notes, firstly, that a party ’ s right to give a closing address is clearly distinguishable from the right of reply, both in substance and procedurally. The domestic law clearly regulated these different forms of submissions as separate stages of oral arguments by the parties. Only in the closing address was a party supposed to deliver a full overview of its legal and factual assessment of the entire case, whereas the right of reply was merely an additional opportunity to make brief comments on the closing arguments of another party, thus being essentially a rebuttal rather than a full address. Secondly, in any event, while it is true that in the present case the applicants were actually able to speak for much longer and address a much broader range of issues than usual during the exercise of their right of reply (see paragraphs 8 2-8 4 above), the Court notes that they were repeatedly interrupted by the presiding judge, who reminded them that the reply should be brief, and that their speeches were eventually cut short after several such interruptions. This also shows, contrary to the Government ’ s point of view, that even the Assize Court itself did not regard the applicants ’ speeches in reply as fully equivalent to or a substitute for the closing address for the defence.",
"193. Furthermore, the Court considers that, likewise, the final plea, a right which the defendant is entitled to exercise in person at the very end of the trial in any event, independently of the closing address made earlier by his or her counsel, does not appear to be equivalent to and mutually interchangeable with the defence ’ s closing address and constitutes a substantially distinct stage of the criminal trial from the stage of the parties ’ oral submissions.",
"194. Lastly, the Court notes that, after the lawyers ’ withdrawal, the applicants requested not only to be allowed to present their closing address in person, but also noted that they needed time to prepare it in view of their lawyers ’ sudden withdrawal. Even assuming that they were allowed to use the opportunity presented by the right of reply and the right to a final plea in order to deliver a full de facto closing address, it appears that, contrary to Article 339.2 of the Code of Criminal Procedure, which requires an adjournment of hearings in such cases, they were not allowed adequate time for the preparation of their defence speeches.",
"195. In view of the above, the Court considers that the applicants, having been unable to exercise their right to a closing address for the defence, were put at a significant disadvantage vis-à-vis the prosecution, who were able to exercise this right to the fullest extent possible. Accordingly, the applicants ’ defence rights were restricted in that they were not given an opportunity to present their case under the same conditions as the prosecution.",
"(f) Admission and examination of evidence and the right to a reasoned judgment",
"196. At the outset, the Court notes that the prosecution ’ s case was based to a large degree on numerous witnesses whose pre-trial statements were produced in court. However, it appears that all of these witnesses were called to testify at the trial and that, in principle, the applicants were given an opportunity to question them. As to the defence witnesses, it is true that the Assize Court allowed the examination of only some of the witnesses requested by the defence, but refused to call all of the persons whom the defence sought to examine. While Article 6 § 3 (d) of the Convention is aimed at ensuring equality in criminal proceedings between the defence and the prosecution as regards the calling and examination of witnesses, it does not give an accused person an unlimited right to obtain the attendance of witnesses in court. The domestic law may thus lay down conditions for the admission and examination of witnesses provided that such conditions are identical for witnesses on both sides. Similarly, the domestic court is free, subject to compliance with the terms of the Convention, to refuse to call witnesses proposed by the defence, for instance on the ground that the court considers their evidence unlikely to assist in ascertaining the truth (see X v. Austria, no. 4428/70, Commission decision of 1 June 1972 ). Having regard to the available material, the Court finds that it has not been clearly shown how any of the witnesses whom the Assize Court refused to examine would have been able to assist the applicants ’ defence against the specific accusations put forward against them.",
"197. Accordingly, in view of the above and having regard to the parties ’ further submissions in connection with this grievance, the Court considers that the main issue raised by this part of the complaint is not whether the applicants were able to examine prosecution witnesses or to obtain the attendance of defence witnesses, but whether the manner in which the evidence used against the applicants was taken and the manner in which it was ultimately assessed by the Assize Court were compatible with the Convention requirements. In particular, the Court notes that the applicants complained that their conviction was based to a large extent on allegedly false evidence and witness testimonies obtained illegally or under duress, and that the Assize Court made manifest errors in the manner in which it dealt with this evidence.",
"198. In this connection, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140 ).",
"199. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicants were guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, if a violation of another Convention right is concerned, the nature of the violation found (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 95, ECHR 2006 ‑ IX ).",
"200. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicants were given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Khan, cited above, §§ 35 and 37, and Allan, cited above, § 43). Where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47, and Bykov v. Russia [GC], no. 4378/02, § 95, ECHR 2009 ‑ ... ).",
"201. All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. The use in evidence of statements obtained at the stage of the police inquiry and investigation is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. As a general rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see, among other authorities, Asch v. Austria, 26 April 1991, § 27, Series A no. 203; Lüdi v. Switzerland, 15 June 1992, § 47, Series A no. 238; and Saïdi v. France, 20 September 1993, § 43, Series A no. 261 ‑ C).",
"202. Furthermore, an issue arises under Article 6 § 1 of the Convention where any submissions obtained in violation of Article 3 of the Convention are used as evidence against a defendant in criminal proceedings, as any statement obtained in breach of Article 3 is inherently unreliable (see, mutatis mutandis, Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). This is so even if the admission of such evidence was not decisive in securing the conviction (see, for example, Özcan Çolak v. Turkey, no. 30235/03, § 43, 6 October 2009, and Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006 ). Moreover, even in the absence of an Article 3 complaint, the Court is not precluded from taking into consideration allegations of ill-treatment for the purposes of deciding on compliance with the guarantees of Article 6 (see, mutatis mutandis, Örs and Others, cited above, § 58, and Kolu v. Turkey, no. 35811/97, § 54, 2 August 2005). While the cases cited above, on the facts, primarily concerned situations involving self-incriminating statements by defendants, the same principles naturally apply in respect of any statements obtained in breach of Article 3, including those made not only by defendants themselves but also by witnesses whose testimony is used as incriminating evidence.",
"203. Lastly, the Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately addressed. Article 6 § 1 obliges courts to give reasons for their decisions, although this cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § § 59 and 61, Series A no. 288, and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I ). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A, and Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303 ‑ B).",
"204. The Court observes that in the present case, the majority of the prosecution witnesses were asked to give a general description of the events of 16 October 2003 with the aim of establishing the existence of mass disturbances and the violent intentions and actions of the demonstrators. These testimonies did not directly implicate the applicants. The evidence directly implicating the applicants, on which their conviction rested to a decisive degree, consisted of the testimonies of a minority of the prosecution witnesses, namely a number of police officers, several demonstrators who had also been convicted, and several other eyewitnesses (see paragraphs 52-6 3 above).",
"205. As to the police officers who testified against the applicants, the Court notes that their testimony was first obtained at the pre-trial stage in the form of depositions. The defence raised a fairly strong and substantiated objection as to the manner in which these depositions had been taken and their contents, noting that some of them appeared to have been taken by the same investigator at the same time (which was either impossible or illegal) and were identical, almost word for word. It appears, however, that the Assize Court did not address this objection and did not take it into account when relying on these witnesses ’ testimonies as a basis for the applicants ’ conviction. It thus failed to assess both the question of the admissibility of the depositions and the reliability, credibility and personal integrity of those witnesses who had allegedly signed identical statements. Both of these matters raised in the applicants ’ objection, had the latter been successful, would have been capable of influencing a fair tribunal ’ s overall assessment as to whether there had been sufficiently strong evidence to prove the applicants guilty.",
"206. When called to testify at the court hearings, most of the police and military officers allegedly made statements inconsistent with their own pre ‑ trial depositions, as well as with the video evidence produced by the prosecution (see paragraphs 54-56 and 68 above; see also the relevant extracts from the OSCE report quoted in paragraphs 107 - 108 above ). As appears from the trial transcript, the defence repeatedly pointed out these inconsistencies to the court and argued that the witnesses were lying. The Court notes that inconsistencies between a witness ’ s own statements given at various times, as well as serious inconsistencies between different types of evidence produced by the prosecution, give rise to a serious ground for challenging the credibility of the witness and the probative value of his or her testimony; as such, this type of challenge constitutes an objection capable of influencing the assessment of the factual circumstances of the case based on that evidence and, ultimately, the outcome of the trial. The Court notes, however, that in its judgment the Assize Court remained silent as to the defence ’ s objections in this regard and, as appears from the documents in the case file, never attempted to take into account any of the defence ’ s allegations concerning the inconsistencies in the testimonies of those prosecution witnesses. This omission was even more conspicuous in view of the fact that in its judgment the Assize Court actually analysed certain inconsistencies in the testimonies of defence witnesses (see paragraph 6 6 above), whereas it failed to provide any reasons as to why the defence ’ s objections concerning the prosecution witnesses were left unexamined and why it considered the alleged inconsistencies in the testimonies of prosecution witnesses to be immaterial.",
"207. In such circumstances, the Court cannot but conclude that, given the nature and substance of the defence ’ s objections raised against the above-mentioned group of witnesses, the domestic court was required to give answers to those objections and that, in the absence of any such answers, the applicants ’ rights to an adequate opportunity to challenge the witnesses against them and to receive a reasoned judgment were breached.",
"208. As to the statements of other witnesses directly implicating the applicants (see paragraphs 57-6 3 above), the Court notes that the majority of the witnesses who had made pre-trial statements to that effect made completely different statements when summoned to testify at the court hearings, retracted their previous incriminating statements as being false and alleged that they had been forced to make those statements by means of ill ‑ treatment or threats of ill-treatment. The Assize Court refused to attach weight to these persons ’ retraction of the statements made in their pre-trial depositions, relying on the “ res judicata character ” of the existing judgments where the same depositions had been admitted as good evidence and where those persons ’ complaints of ill-treatment had been found to be unsubstantiated. The Court, however, is not convinced by the approach taken by the domestic court on this matter, for the following reasons.",
"209. It refers, firstly, to its judgment in the Mammadov case (cited above), in which it found that the applicant had been tortured in custody with the aim of extracting information from him and that the domestic authorities had failed to carry out an adequate and effective investigation of his complaints of ill-treatment. The applicant in that case, who is also the fourth applicant in the present case, was in a similar situation to the witnesses in question in the present case, as he was also a person detained in connection with the events of 16 October 2003. While the Mammadov case cannot be of direct relevance to the issue examined in the present case, it nevertheless demonstrates that situations similar to those complained of by the witnesses in the present case arose in the context of the whole group of interconnected criminal proceedings concerning the events of 16 October 2003. It also demonstrates that the mere fact that some form of domestic examination of the witnesses ’ complaints of ill-treatment took place does not necessarily mean that it was effective in establishing the truth. Secondly, having regard to the available material, including the relevant and very detailed reports of highly reputable international organisations and NGOs such as, among others, the OSCE and Human Rights Watch, the Court notes the existence of numerous, consistent and credible allegations of systematic ill-treatment by the law-enforcement authorities of detainees and witnesses questioned in connection with the events of 15 and 16 October 2003. In particular, those reports contain quotations of first-hand accounts by a large number of detained persons concerning their own alleged ill-treatment and ill-treatment that they had witnessed being used against other detainees. The Court considers that the consistency and level of detail of the information in this regard is so overwhelming that it gives rise to serious concerns in respect of the interrogation methods used by the domestic authorities in the course of the investigations carried out in respect of the events of 15 and 16 October 2003. While the Court is not in a position to accept the information contained in those reports as established proof of ill-treatment of the relevant witnesses in the present case or other persons mentioned in those reports, it nevertheless considers that the credibility of their authors and their consistent and detailed nature give rise to a considerable degree of distrust towards the manner in which the domestic authorities dealt with those allegations of ill-treatment in various proceedings, including the Assize Court proceedings in the present case.",
"210. In the light of the above information revealing repeated reports of widespread ill-treatment of persons arrested and questioned in connection with criminal case no. 80308, the Court considers that, given the sheer number of witnesses who alleged that they had testified under duress in the present case, the Assize Court should have been especially alert in dealing with those allegations. The mere fact that so many witnesses claimed to have been forced to testify against the applicants under duress obliged the domestic court to deal with the issue of admissibility and credibility of their testimonial evidence in much more detail and with an especially high degree of scrutiny.",
"211. The Court considers that the notion of a fair and adversarial trial presupposes that, in principle, a tribunal should attach more weight to a witness ’ s testimony given at the trial hearing than to a record of his or her pre-trial questioning produced by the prosecution, unless there are good reasons to find otherwise. Among other reasons, this is because pre-trial questioning is primarily a process by which the prosecution gather information in preparation for the trial in order to support their case in court, whereas the tribunal conducting the trial is called upon to determine a defendant ’ s guilt following a fair assessment of all evidence actually produced at the trial, based on the direct examination of evidence in court. Although it is not the Court ’ s task to verify whether the domestic courts made any substantive errors in that assessment, it is nevertheless required to review whether the courts gave reasons for their decisions in respect of any objections concerning the evidence produced.",
"212. In the present case, the Court considers that, in accepting the witnesses ’ pre-trial statements as good evidence and disregarding the retraction of those statements at the trial, solely on the ground of the existence of previous judgments in which the witnesses ’ complaints of ill ‑ treatment had been rejected as unsubstantiated, the Assize Court deprived the applicants of the opportunity of a full and comprehensive assessment of the evidence used against them. Although the relevant judgments relied on by the Assize Court had acquired legal effect, the Court considers that the decisions reached by other courts in respect of the same or similar submissions by the witnesses could not be said to have a “ res judicata effect ” in respect of the applicants, or to prevent them from raising the same objections again at their own trial. The Court notes that, in the light of the principle of presumption of innocence and a defendant ’ s right to challenge any evidence against him or her, a criminal court must conduct a full, independent and comprehensive examination and assessment of the admissibility and reliability of evidence pertaining to the determination of the defendant ’ s guilt, irrespective of how the same evidence may have been assessed in any other proceedings concerning other defendants. In this connection, it is of particular importance that the applicants in the present case had not been parties to the earlier proceedings referred to by the Assize Court and, thus, had been unable to challenge any decisions reached in them concerning any claim or particular issue. Moreover, the witnesses ’ submissions in those proceedings were assessed in a context different from that of the applicants ’ case. Thus, in those proceedings, where the witnesses themselves were defendants, their allegations of having testified under duress appeared to have been examined for the purposes of establishing the existence of ill-treatment and assessing whether the defendants had made self-incriminating statements under duress. On the other hand, in the applicants ’ case the same or similar submissions by the witnesses were relevant for the purpose of assessing the admissibility and probative value of evidence incriminating a third party (the applicants).",
"213. In view of the above, the Court concludes that the domestic court failed to address the substantiated objections raised by the applicants in respect of the admissibility and probative value of the evidence against them and to provide adequate reasons for the manner in which it assessed evidence of a contradictory and highly questionable nature. It follows that the applicants ’ right to the examination of witnesses and their right to a reasoned judgment were infringed.",
"(g) Appeals",
"214. The Court notes that proceedings, viewed as a whole, can be considered fair if any defects of the original trial are subsequently remedied by the appeal courts (see, mutatis mutandis, Edwards v. the United Kingdom, 16 December 1992, § 39, Series A no. 247 ‑ B, and De Cubber, cited above, § 33, Series A no. 86, with further reference to Adolf v. Austria, 26 March 1982, § § 38-40, Series A no. 49). However, contrary to the Government ’ s argument in the present case, the Court considers that none of the defects of the original trial were remedied either by the Court of Appeal or the Supreme Court, since those courts either refused (the Court of Appeal) or had no competence (the Supreme Court) to conduct a new hearing on points of both fact and law entailing a fresh judicial examination of the evidence and the parties ’ legal and factual arguments. Moreover, both courts merely reiterated the trial court ’ s findings and did not address the numerous complaints made by the applicants concerning the various defects in the trial, summarily rejecting those complaints as unsubstantiated without giving any reasoning.",
"(h) Conclusion",
"215. The Court notes that although it could be argued that the breaches of defence rights found above did not affect all of the applicants to the same degree, it is nevertheless clear that each of the applicants was affected, if not by all, at least by several of those defects in the trial. In view of the above findings, the Court concludes that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair trial.",
"216. Accordingly, there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (b), (c) and (d) of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION",
"217. The applicants further complained that the various public statements made by the State authorities and high-ranking State officials prior to their conviction by the competent court had infringed their right to the presumption of innocence secured in Article 6 § 2 of the Convention, which provides as follows:",
"“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”",
"A. Admissibility",
"218. The Government submitted that the applicants had failed to exhaust available domestic remedies, as they had not taken any proper steps to bring this complaint to the attention of the relevant authorities. In particular, the Government argued that, under domestic law, the applicants could have lodged a criminal complaint alleging defamation under Article 147 of the Criminal Code and Chapter 27 of the CCrP, or a civil action for damages, against the public officials who had allegedly violated their presumption of innocence.",
"219. The applicants submitted that no effective remedies existed in practice in respect of their complaint alleging a breach of the presumption of innocence. Even if such remedies existed in theory, they did not offer any reasonable prospects of success in their particular case, as the domestic authorities had “clearly shown their tolerance towards the persistent and blatant violations” by the prosecution authorities of the applicants ’ Convention rights. They maintained that the provisions of the Criminal Code and the CCrP mentioned by the Government were irrelevant to this particular type of complaint and noted that there existed no court decisions in domestic judicial practice concerning a violation of the right to presumption of innocence.",
"220. The Court reiterates that the purpose of the domestic-remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those that relate to the breaches alleged and that, at the same time, are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198).",
"221. Although the Government argued that the domestic law provided for effective remedies in the form of a criminal complaint alleging defamation or a civil action for damages, which were in theory capable of providing redress in respect of the alleged breach of the presumption of innocence, the Court notes that the Government have not submitted any specific examples of previous successful use of the above- mentioned avenues of redress in connection with complaints alleging a breach of the presumption of innocence. Nor have the Government been able to demonstrate, by means of specific examples, that any complaints concerning this particular substantive subject matter have ever been even accepted for examination by the relevant criminal authorities or civil courts under the procedures they mentioned. As to the possibility of making a complaint concerning an alleged breach of the presumption of innocence directly before the court conducting the complainant ’ s criminal trial, the Court is aware of one example where such a complaint was summarily rejected without any reasoning (see Fatullayev v. Azerbaijan, no. 40984/07, § § 45 and 153, 22 April 2010 ), an outcome which cannot be considered to satisfy the requirement of practical effectiveness of remedies. In such circumstances, the Court cannot conclude that any of the remedies mentioned by the Government could be used specifically in relation to the breaches alleged or that the existence of such remedies, in practice, was sufficiently certain.",
"222. Accordingly, the Court dismisses the Government ’ s objection and notes further that this complaint is not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"223. The Government submitted that Article 6 § 2 of the Convention could not prevent the authorities from informing the public about any criminal investigations in progress. They maintained that the applicants ’ presumption of innocence had not been breached and that neither any preliminary court decisions nor any public statements pointed to by the applicants had depicted them as criminals or established their guilt prior to their criminal conviction.",
"224. The applicants reiterated their complaint and insisted that they had been declared as criminals in numerous public statements made by various public authorities and high-ranking officials prior to their conviction by the competent court.",
"2. The Court ’ s assessment",
"225. The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308 ). It not only prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, 25 March 1983, § 38, Series A no. 62), but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41, and Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X). The Court stresses that Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Allenet de Ribemont, cited above, § 38).",
"226. It has been the Court ’ s consistent approach that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Khuzhin and Others v. Russia, no. 13470/02, § 94, 23 October 2008, with further references). Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002-II).",
"227. In the present case, the applicants complained of various statements made by numerous authorities and State officials. The Court considers that, for the purposes of the analysis under Article 6 § 2 of the Convention, it will be sufficient to have regard only to the statements made by the law ‑ enforcement authorities, namely the press statements by the Ministry of Internal Affairs and the Prosecutor General ’ s Office (see paragraphs 98 and 10 1 - 1 0 2 above) and the declarations made by two high-ranking police officials (see paragraphs 99 and 10 3 above).",
"228. As to the statements made by the Head of the Press Service of the Ministry of Internal Affairs during the press conference of 22 October 2003 and the joint press release of 27 October 2003 issued by the Ministry of Internal Affairs and the Prosecutor General ’ s Office, the Court notes that they were made in a context independent of the criminal proceedings themselves. It acknowledges that the gravity of the events of 15 and 16 October 2003 may have required the authorities to keep the public informed of any criminal proceedings instituted in connection with those events. However, this circumstance cannot justify a lack of caution in the choice of words used in their statements in reference to the accused persons in those proceedings. The statements at issue were made at a time when the criminal investigation in respect of the applicants had just been started. It was particularly important at this initial stage not to make any public allegations which could have been interpreted as confirming the guilt of the applicants in the opinion of a State law-enforcement authority. The Court notes, in particular, that these statements specifically mentioned, among other things, the fourth applicant ’ s name and also referred to “other” persons unidentified by name, and declared, without any qualification or reservation, that the persons concerned had instigated, and ordered the demonstrators to commit, unlawful actions resulting in mass disorder.",
"229. As to the newspaper articles authored by the Head of the Sabail District Police Office (see paragraph 99 above) and the Deputy Minister of Internal Affairs (see paragraph 10 3 above ), it is clear from the content of those articles that neither of them was aimed at informing the public about the criminal investigations in progress. From the content and rhetoric of those statements, it is evident that their primary purpose was to express political criticism and condemnation of the political opposition and the violent actions attributed to it. Seeing that the authors of the statements were high-ranking functionaries of the law-enforcement authorities and not politicians, their statements, which were made in their official capacity, could not be considered part of a legitimate political debate, which might arguably allow a certain degree of exaggeration and liberal use of value judgments with reference to political rivals.",
"230. In his different statements, the Head of the Sabail District Police Office unequivocally asserted that the demonstrators had “committed terrible criminal acts” under direct orders from the fourth applicant and two other opposition leaders, all of whom were clearly identified by their name. For his part, the Deputy Minister of Internal Affairs clearly mentioned all of the applicants by name as persons who had overseen the “actions of criminal character” committed by the “radical”, “reactionary” and “destructive” opposition and aimed at usurping State power by unlawful means. The entire article authored by the Deputy Minister of Internal Affairs was notable for the repeated and persistent use of the words “crime” and “criminal” in referring to the opposition and its leaders and the specific actions attributed to them.",
"231. The Court notes that only the Deputy Minister of Internal Affairs clearly named all of the applicants in his statements, whereas the other above-mentioned statements specifically named only the fourth applicant and also referred to some unidentified “other” persons. However, in the context of all the circumstances in which these statements made, the word “others” used in those statements was merely a thinly veiled reference to, inter alios, the other three applicants, as it was commonly known to the public from news reports which specific opposition leaders had been arrested in connection with the events of 15 and 16 October 2003.",
"232. Given that the above statements were made by law-enforcement authorities and their high-ranking officials, particular caution should have been exercised by them in the choice of words to describe the pending criminal proceedings and the events that led to the applicants ’ prosecution. The Court considers that those statements, made without necessary qualifications or reservations, contained wording amounting to an express and unequivocal declaration that the applicants had committed criminal offences. As such, they prejudged the assessment of the facts by the competent judicial authority and could not but have encouraged the public to believe the applicants guilty before they had been proved guilty according to law.",
"233. In view of the above conclusion, the Court considers it unnecessary to examine the applicants ’ further arguments concerning other statements made by various State officials and authorities.",
"234. There has accordingly been a violation of Article 6 § 2 of the Convention.",
"V. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION",
"235. The first, second and third applicants complained that their unfair criminal conviction had been aimed at suppressing their freedom of peaceful assembly with others, guaranteed by Article 11 of the Convention, which reads as follows:",
"“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.",
"2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”",
"A. The parties ’ submissions",
"236. The Government argued that the applicants had not exhausted domestic remedies, as none of them had lodged any formal complaints with the domestic authorities alleging a violation of their rights under Article 11 of the Convention.",
"237. The Government further noted that there was sufficient eyewitness and video evidence proving the violent intentions and violent actions of the demonstrators, as a result of which a number of police officers and civilians had been injured and a significant amount of public and private property had been damaged. On the basis of the above, the Government argued that the demonstration could not be considered a “peaceful assembly” and, accordingly, could not be afforded the protection of Article 11 of the Convention.",
"238. Lastly, the Government submitted that, in any event, even if Article 11 applied and the Court were to consider that there had been an interference with the applicants ’ rights under that Article, the interference had been prescribed by law, had pursued the legitimate aim of protecting public safety and the rights and freedoms of others, and had been “necessary in a democratic society” because the applicants had received punishment proportionate to their misdeeds, namely organising a mass disorder resulting in injuries to numerous people and damage to property.",
"239. The applicants did not comment on the Government ’ s objections as to the admissibility of the complaint.",
"240. The applicants complained that, in addition to amounting to a violation of Article 6 of the Convention, their conviction for “organising mass disorder” following an unfair trial had also constituted an unjustified interference with their rights under Article 11 of the Convention. They submitted that the main motivation behind their conviction was the fact that they were leaders of the opposition who had called for a public protest against the results of the presidential election.",
"241. As to the events of 16 October 2003, the applicants noted that, despite the fact that Mr I. Gambar ’ s electoral representatives had requested prior authorisation to hold a demonstration in accordance with the law, they had been unlawfully refused permission. The applicants argued that they and other demonstrators had a right to assemble peacefully even without formal authorisation by the Government authorities. The applicants disagreed with the Government ’ s contention that the demonstration had been violent. They argued that only a handful of “saboteurs” had been deployed to create trouble, whereas the law-enforcement authorities had been unnecessarily and excessively violent during the unjustified dispersal of the demonstration by force.",
"242. In the applicants ’ opinion, the authorities ’ use of force against the demonstrators, and the arrests and unfair convictions of numerous demonstrators for various offences, including the applicants themselves, constituted an unjustified interference with their right to freedom of peaceful assembly.",
"B. The Court ’ s assessment",
"1. Scope of the complaint raised before the Court",
"243. The Court cannot overlook the fact that the proceedings instituted against the applicants and all other events related to the present case are directly linked to the mass protests of 15 and 16 October 2003. Thus, at their core, the events would concern the exercise of the freedom of assembly, one of the fundamental freedoms serving as the foundation of a democratic society. The Court reiterates that the freedom to take part in a peaceful assembly is of such importance that a person ought not to be subjected to a sanction for participation in a demonstration which has not been prohibited, so long as this person does not himself commit any reprehensible act on such an occasion (see Ezelin v. France, 26 April 1991, § 53, Series A no. 202). Furthermore, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Oya Ataman v. Turkey, no. 74552/01, §§ 38-42, ECHR 2006 ‑ XIII ). However, the Court notes that it is primarily called upon to decide on the issues which have been raised before it either expressly or in substance.",
"244. In this connection, having carefully examined the applicants ’ original complaints made in their respective applications, the Court considers that they did not complain that their rights under Article 11 of the Convention had been violated as such by the fact that the holding of the demonstration had not been formally permitted, or that the demonstration had been dispersed or the manner in which it had been dispersed. Accordingly, the Court finds that these issues are outside of the scope of the present applications. In any event, it does not appear that any one of the applicants, as participants in the demonstration, ever lodged any complaints with the domestic courts alleging that the authorities ’ refusal to grant permission for the demonstration had been unlawful, or that their decision to disperse it by force had violated their and other demonstrators ’ right to freedom of peaceful assembly. Thus, any complaints about the above ‑ mentioned issues, even assuming they had been intended to be raised before the Court, would in any event be inadmissible for non-exhaustion of domestic remedies.",
"245. However, in their original applications, in addition to their primary complaints under Article 6, the applicants complained that their unfair criminal conviction for “organising mass disorder” also amounted to a violation of their rights under Article 11, relying in this respect on the same arguments as those raised under Article 6. Accordingly, the scope of the present complaint is limited to the question whether the fact that, following the unauthorised demonstration, the applicants were convicted of “organising mass disorder” in breach of the requirements of a fair trial could in itself be regarded as an interference with their right under Article 11 and, if so, whether it was justified.",
"2. Admissibility",
"246. Bearing in mind the above scope of this particular complaint, the Court rejects the Government ’ s objection as to the inapplicability of Article 11. Furthermore, the Court considers that the Government ’ s objection as to the non-exhaustion of domestic remedies should also be dismissed. In so far as the applicants alleged that their criminal conviction had been unfair, they duly lodged all the ordinary appeals available to them under domestic law and their submissions were substantively similar to those raised before the Court. The Government have not explained, and the Court cannot see, how any separate domestic appeal by the applicants raising the same substantive complaints but made specifically under Article 11 of the Convention could have had any prospect of success, after the relevant criminal courts had already found them guilty of organising mass disorder.",
"247. No other ground for declaring the complaint inadmissible has been established. The Court therefore declares this complaint admissible within the scope defined in paragraph 24 5 above.",
"3. Merits",
"248. The Court notes that a careful distinction may be necessary in situations where applicants are not punished for participation in a demonstration as such, but for particular behaviour in the course of the demonstration, such as violence or incitement to violence (compare, mutatis mutandis, G. v. the Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989). Accordingly, the subject matter of this complaint hinges on the determination of whether the applicants indeed engaged in incitement to violence, a question which is normally to be decided by the relevant domestic courts in proceedings offering the guarantees of a fair trial. The Court has already found that the criminal proceedings in the present case did not comply with the required guarantees of fairness. Furthermore, the applicants ’ submissions in respect of the complaint under Article 11, as declared admissible, are essentially the same as under Article 6.",
"249. In such circumstances, as the applicants ’ arguments concerning the unfairness of the trial have already been covered by the finding of a violation of Article 6, the Court considers that there is no need for a separate examination of the same arguments under Article 11.",
"VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"250. Relying on Article 8 of the Convention, the first applicant complained that, during his arrest, the police officers had entered his flat without a search warrant and had violated his right to respect for his home. Relying on 14 of the Convention in conjunction with their other complaints, all of the applicants complained that, as members of the political opposition, they had been persecuted based on their political views and that the domestic courts had disregarded the statements of the witnesses for the defence solely on the ground that these witnesses had also been members of the opposition parties.",
"251. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 3 5 §§ 3 and 4 of the Convention.",
"VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"252. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. Pecuniary damage",
"253. The first applicant claimed a total amount of 670,000 euros (EUR) in respect of pecuniary damage, including expenses he had incurred for medical treatment and food packages brought to him by his family while he had been imprisoned, as well as the damage caused to him by corruption at “all levels of the State system”.",
"254. The second applicant claimed EUR 45,000, including expenses for food and medication brought to him by his family members while he had been imprisoned, as well as loss of income during his imprisonment.",
"255. The third applicant claimed EUR 17,000 in respect of pecuniary damage incurred as a result of expenses on food packages delivered to him by his family during his imprisonment.",
"256. The fourth applicant claimed a total amount of EUR 620,000 including expenses he had incurred for medical treatment and food packages brought to him by his family while he had been imprisoned, as well as the damage caused to him by corruption at “all levels of the State system”.",
"257. The Government argued that the applicants ’ claims were unjustified and unsupported by any documentary evidence.",
"258. The Court does not discern any causal link between the violations found and the pecuniary damage alleged by each of the applicants. In any event, none of the above claims was supported by any evidence. Therefore, the Court dismisses the applicants ’ claims in respect of pecuniary damage.",
"2. Non-pecuniary damage",
"259. All of the applicants made claims in respect of non-pecuniary damage suffered as a result of the violations of their rights under the Convention. The first applicant claimed EUR 70,000, the second applicant EUR 250,000, the third applicant EUR 50,000, and the fourth applicant EUR 400,000.",
"260. The Government submitted that the amounts claimed were unjustified and excessive and argued that findings of violations would constitute sufficient reparation in respect of any non-pecuniary damage suffered.",
"261. The Court considers that the applicants must have endured moral suffering which cannot be compensated solely by the finding of violations. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 10 ,000 under this head, plus any tax that may be chargeable on this amount.",
"262. The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). As has been found above, the criminal proceedings in the present case did not comply with the requirements of fairness. In such circumstances, the most appropriate form of redress would, in principle, be the reopening of the proceedings in order to guarantee the conduct of the trial in accordance with the requirements of Article 6 of the Convention (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004 ‑ IV; Shulepov v. Russia, no. 15435/03, § 46, 26 June 2008; Maksimov v. Azerbaijan, no. 38228/05, § 46, 8 October 2009; and Abbasov v. Azerbaijan, no. 24271/05, §§ 41-42, 17 January 2008 ). The Court notes in this connection that Articles 455 and 456 of the Code of Criminal Procedure of the Republic of Azerbaijan provide that criminal proceedings may be reopened by the Plenum of the Supreme Court if the Court finds a violation of the Convention.",
"B. Costs and expenses",
"263. The first applicant claimed EUR 1 2 ,500 for costs and expenses, including EUR 7,000 for legal fees and other expenses incurred before the domestic courts and EUR 5,500 for those incurred before the Court (consisting of EUR 4,500 for legal fees and EUR 1,000 for postal expenses). In support of his claim for legal fees in the proceedings before the Court, he submitted a contract for legal services concluded with Mr F. Agayev.",
"264. The second applicant claimed approximately EUR 6,500 for legal fees incurred before both the domestic courts and the Court, including the sum of “approximately” EUR 1,500 that he had paid to Mr R. Hajili for legal services rendered in the proceedings before the Court. In support of the latter part of the claim, he submitted an invoice for 2 ,000 new Azerbaijani manats paid to his lawyer.",
"265. The third applicant claimed EUR 7,500 for legal fees, including EUR 3,000 for legal fees incurred in the domestic proceedings and EUR 4,500 for legal fees incurred in the proceedings before the Court. He also claimed EUR 2,592 for translation expenses and EUR 1,000 for postal expenses. He submitted a contract for legal services to be rendered by Mr I. Aliyev in the proceedings before the Court, a contract for translation services and an invoice certifying payment of additional translation costs.",
"266. The fourth applicant claimed EUR 1 5 ,500 for costs and expenses, including EUR 10,000 for legal fees and other expenses incurred before the domestic courts and EUR 5,500 for those incurred before the Court (consisting of EUR 4,500 for legal fees and EUR 1,000 for postal expenses). In support of his claim for legal fees in the proceedings before the Court, he submitted a contract for legal services concluded with Mr F. Agayev.",
"267. The Government submitted that the amounts claimed were excessive and unreasonable and had not been actually incurred. They noted that the applicants had either failed to submit relevant evidence in support of their claims or had submitted insufficient evidence.",
"268. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.",
"269. As to the claims in respect of the legal fees incurred in the domestic proceedings and claims in respect of postal expenses, the Court notes that none of the applicants has submitted any documents in support of those claims or given convincing reasons for failing to do so. Therefore, the Court dismisses the applicants ’ claims in respect of postal expenses and the costs and expenses incurred before the domestic courts.",
"270. As to the remainder of the claims, having regard to the documents in its possession and the criteria mentioned in paragraph 2 6 8 above, the Court decides as follows:",
"(i) The Court notes that the first and the fourth applicants were represented by the same lawyer (Mr F. Agayev) in the proceedings before the Court and each claimed EUR 4,500 for his services. Having regard to the services stipulated in the relevant contracts between the applicants and Mr Agayev and the services actually rendered, the Court considers that the amounts claimed do not correspond to the legal assistance that was actually provided and was necessary in the present case. The Court further notes the similarity of the complaints and legal arguments submitted in both cases and observes that substantial parts of the lawyer ’ s submissions in both cases were either identical or very similar. In view of the above considerations, the Court awards the first and the fourth applicants, jointly, the total amount of EUR 3, 2 00 in respect of the legal services rendered by Mr F. Agayev.",
"(ii) The Court accepts the second applicant ’ s claim in respect of the legal fees incurred in the proceedings before the Court and awards him EUR 1,500.",
"(iii) Having regard to the services stipulated in the relevant contract concluded between the third applicant and his lawyer, Mr I. Aliyev, and the services actually rendered, the Court considers that the amounts claimed do not correspond to the legal assistance that was actually provided and was necessary in the present case. Moreover, taking into account the total volume of documents actually translated in the present case, the Court considers that the claim in respect of translation expenses is excessive and that therefore only a partial award can be made under this head. In view of the above considerations, the Court awards the third applicant the sum of EUR 3, 0 00 in respect of the costs and expenses in the proceedings before the Court.",
"C. Default interest",
"271. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
205 | Pakshayev v. Russia | 13 March 2014 | Convicted of murder and sentenced to ten years’ imprisonment in January 2001 – the conviction being eventually upheld in October 2006 – the applicant complained that he had been denied access to a lawyer during his questioning and first few days of police custody in May 1997. He submitted that during the questioning he had been threatened by the investigator that if he did not confess he would be raped by his cellmates. The applicant then confessed to the murder but retracted his confession during the trial when represented by a lawyer. Before the Court, he complained that he had not had any legal assistance during the initial stage of the criminal proceedings and that the confession he had made was then used to convict him. | The Court held that there had been a violation of Article 6 §§ 1 and 3 of the Convention, finding that the use of his confession statement made without the benefit of legal advice for the applicant’s conviction undermined the fairness of the proceedings as a whole. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1973 and lives in the Tyumen region.",
"6. On 2 May 1997 the applicant was arrested on suspicion of murder. He was given a written note explaining that he could not be obliged to give evidence against himself, his spouse or close relative and that he was entitled to legal assistance from the moment that the arrest record or the detention order was read out to him. He signed the explanatory note and asked for legal assistance.",
"7. At 6.30 p.m. on the same day the applicant was questioned. He was not assisted by a lawyer. According to the applicant, he was threatened that if he did not confess the investigator would order his cellmates to rape him. The applicant confessed to the murder.",
"8. At 8.20 p.m. on the same day the arrest record was read out to him.",
"9. On 3 May 1997 the applicant was brought to the scene of the crime where he repeated his confession and gave details of the murder. He was not assisted by a lawyer.",
"10. On 8 May 1997 the applicant was provided with a lawyer.",
"11. At the trial the applicant retracted his confession. He admitted that he had been at the victim ’ s house on the evening of the murder. However, he denied killing her.",
"12. On 15 January 2001 the Kondinskiy District Court of the Khanty-Mansiyskiy Region convicted the applicant of murder and sentenced him to ten years ’ imprisonment. It relied on the applicant ’ s confession statement of 2 May 1997, testimony by several police officers that the confession had been made by the applicant without any pressure and statements by witness Kh. that he had seen the applicant in the victim ’ s house several hours before the murder. The court also relied on the autopsy of the victim describing the injuries and establishing the cause of death.",
"13. On 18 October 2006 the Khanty-Mansiskiy Regional Court upheld the conviction on appeal. It found, in particular, that the District Court ’ s reliance on the applicant ’ s confession statement had been lawful. The applicant had been questioned and had confessed before the arrest record had been read out to him. He had not therefore been entitled to legal assistance during that questioning."
] | [
"II. RELEVANT DOMESTIC LAW",
"14. The Russian Constitution provides that an arrested or detained person or a person accused of a criminal offence has a right to legal assistance from the moment of his or her arrest, placement in custody or when charges are brought (Article 48 § 2).",
"15. The RSFSR Code of Criminal Procedure of 27 October 1960 ( in force up to 1 July 2002, hereafter “the old CCrP ” ) provided that a suspect or an accused was entitled to legal assistance from the moment that charges were brought or, if a suspect was arrested or detained before the bringing of charges, from the moment that the arrest record or the detention order was read out to him (Article 47 § 1 ). The investigator, the prosecutor or the court had to provide the suspect or the accused with legal assistance upon his request (Article 48).",
"16. In a ruling of 27 June 2000 the Constitutional Court declared Article 47 § 1 of the old CCrP unconstitutional. It found that by providing for the right to legal assistance from the moment that the arrest record or the detention order was read out to the suspect, rather than from the moment of arrest as guaranteed by Article 48 of the Constitution, Article 47 § 1 of the old CCrP made the exercise of the right to legal assistance dependent on the discretion of the prosecuting authorities.",
"17. Article 413 of the 2001 Code of Criminal Procedure (hereafter “the CCrP ” ) provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"18. The applicant complained that the criminal proceedings against him had been unfair. In particular, he complained that he had been denied access to legal assistance during the first few days of his police custody and that the confession he had made during that period had been used for his conviction. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”",
"A. Admissibility",
"19. The Government submitted that the Court did not have jurisdiction ratione temporis to examine the complaint about the absence of legal assistance during the first days of the police custody. The applicant ’ s complaint concerned the period from 2 to 8 May 1997, while the Russian Federation ratified the Convention on 5 May 1998.",
"20. The applicant submitted that both the first - instance and the appeal judgments that determined the merits of his criminal case had been taken after 5 May 1998. Therefore, the Court had competence ratione temporis in respect of his legal - assistance complaint.",
"21. The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (“the critical date”). While it is true that from the critical date onwards all of the State ’ s acts and omissions must conform to the Convention, the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date. Thus, in order to establish the Court ’ s temporal jurisdiction it is essential to identify, in each specific case, the exact time of the alleged interference. In doing so, the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § § 128-30, 21 October 2013, with further references).",
"22. Turning to the facts of the present case, the Court notes that the applicant was denied legal assistance from 2 to 8 May 1997. That period falls outside the Court ’ s temporal competence in respect of Russia. However, the thrust of the applicant ’ s complaint is that the confession statement given during that period was used for his conviction. Both the first - instance judgment of 15 January 2001 and the appeal judgment of 18 October 2006 which determined the merits of the applicant ’ s criminal case were taken after the entry into force of the Convention in respect of Russia on 5 May 1998. Both judgments relied on the applicant ’ s confession statement of 2 May 1997. The Court reiterates in that connection that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (see, among other authorities, Moiseyev v. Russia, no. 62936/00, § 201, 9 October 2008 ). It follows that the Court is competent to check whether the proceedings as a whole complied with the Convention (see, for similar reasoning, Klimentyev v. Russia ( dec. ), no. 46503/99, 21 June 2005).",
"23. In view of the above, the Court rejects the Government ’ s preliminary objection relating to the Court ’ s competence ratione temporis to deal with the merits of the applicants ’ complaint about the absence of legal assistance during the first days of the police custody.",
"24. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"25. The Government submitted that at the material time the national law had provided for legal assistance from the moment that the arrest record or the detention order was read out to the suspect. Given that the applicant had confessed before his arrest record had been read out to him, he had not been entitled to legal assistance. He had, however, been informed beforehand of his right not to incriminate himself but had not made use of that right. The domestic courts had found that the confession statement had been obtained in accordance with the procedure prescribed by law and that no pressure had been put on the applicant. Moreover, the domestic courts had also relied on witness statements, expert reports and other evidence. The confession statement had not therefore been the sole evidence against the applicant.",
"26. The applicant submitted that the legal provision guaranteeing legal assistance from the moment the arrest record has been read out had been declared unconstitutional by the Constitutional Court. Despite the fact that the confession statement had been obtained in accordance with an unconstitutional provision, the domestic courts had used it for his conviction. That confession statement obtained without the benefit of legal advice had moreover been the decisive evidence against him as the witnesses and the other pieces of evidence had not implicated him directly. The applicant also alleged that there had been many other procedural defects in the criminal proceedings against him. He submitted, in particular, that the trial judge had been biased, that one of the hearings had been held in his absence and that the evidence had been assessed incorrectly.",
"27. The Court reiterates that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 ‑ A ).",
"28. As regards legal assistance at the pre-trial stages of the proceedings, the Court has held that the particular vulnerability of the accused at the initial stages of police questioning can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect for the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Accordingly, in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, §§ 50-55, ECHR 2008, and Panovits v. Cyprus, no. 4268/04, §§ 64-66 and 83, 11 December 2008).",
"29. In the present case the applicant ’ s right of access to a lawyer was restricted during the first hours of the police custody under Article 47 § 1 of the old CCrP, in force at the material time, which provided that a suspect was entitled to legal assistance from the moment that the arrest record or the detention order was read out to him (see paragraph 15 above). Given that the applicant was questioned before his arrest record was read out to him, his request for legal assistance was denied. As a result, he did not have the benefit of legal advice when he made his confession statement to the police.",
"30. The Court notes that no compelling reasons to restrict the applicant ’ s right of access to a lawyer were cited by the Government. The restriction was therefore the direct result of the application of Article 47 § 1 of the old CCrP. The Court has previously found that a systematic restriction of the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself for a violation of Article 6 to be found (see Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009 ). Moreover, the Court does not lose sight of the fact that that provision was subsequently declared unconstitutional by the Russian Constitutional Court (see paragraph 16 above).",
"31. The Court further notes that the applicant was undoubtedly affected by the restrictions of his access to a lawyer in that his statement to the police was used for his conviction. Indeed, the confession statement made by the applicant without the benefit of legal advice served as the sole basis for the finding of guilt both in the first - instance and the appeal judgments (see paragraphs 12 and 13 above). The Court therefore finds that, irrespective of whether the applicant had the opportunity to challenge the evidence against him before the courts, the absence of a lawyer while he was in police custody irretrievably affected his defence rights (see Salduz, cited above, §§ 58 and 62; Panovits, cited above, §§ 75-77 and 84-86; and Pavlenko v. Russia, no. 42371/02, § 119, 1 April 2010 ).",
"32. The Court concludes from the above findings that the use of his confession statement made without the benefit of legal advice for the applicant ’ s conviction undermined the fairness of the proceedings as a whole.",
"33. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"34. In view of the above findings, there is no need to examine separately the remaining allegations made by the applicant in relation to the fairness of the trial.",
"II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"35. Lastly, the Court has examined the other complaints submitted by the applicant, and, having regard to all the material in its possession and in so far as they fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"36. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"37. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage.",
"38. The Government submitted that the applicant had claimed compensation for non-pecuniary damage incurred as a result of his criminal prosecution and conviction. However, they noted that it was not the Court ’ s task to assess the reasonableness of the charges against him and therefore considered that the applicant ’ s claim should be dismissed.",
"39. The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005 ‑ IV, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). The Court notes, in that connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 17 above).",
"40. As to the applicant ’ s claims in respect of non-pecuniary damage, the Court considers that the applicant ’ s sufferings and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 4 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"41. Relying on receipts and invoices, the applicant also claimed 13,620 Russian roubles (about EUR 373) for legal fees and travel expenses incurred in the domestic proceedings.",
"42. The Government submitted that the claim was unsubstantiated.",
"43. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 373 for costs and expenses, plus any tax that may be chargeable to the applicant.",
"C. Default interest",
"44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
206 | Blaj v. Romania | 8 April 2014 | The applicant, who was suspected of accepting a bribe, had been placed under police surveillance. A third party who had been cooperating with the police came to meet him and left an envelope containing money on his desk. The police officers intervened immediately and caught the applicant red handed. In accordance with domestic law, they drew up a report of the offence. Later that day the applicant was informed of the charges against him and of the fact that he had a right to remain silent and to see a lawyer. Subsequently he had the assistance of a lawyer during questioning. The applicant complained in particular that he had not been informed of his right to silence and legal representation at the time when he was “caught in the act”. | The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant’s questioning by the police under the flagrante delicto procedure. Observing that under Romanian law where a person is “caught in the act” of committing an offence, the investigating authorities must confine themselves to questions about the material evidence found at the scene of the flagrante delicto and must not question the person about his involvement in a criminal offence, it found that the investigating authorities had not overstepped the mark in the applicant’s case. It also noted that when the applicant had been questioned by the anti-corruption prosecutor about the offence he had had access to a lawyer. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the procès-verbal. The Court therefore found that the use of those statements at trial could not be said to have prejudiced the fairness of his trial. The Court also noted in conclusion that the applicant had never alleged that his very first statements recorded in the procès-verbal had been the result of duress or ill treatment. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1950 and lives in Bucharest.",
"6. At the relevant time he had the rank of Brigadier- General and was serving as a doctor at the emergency military hospital of Bucharest.",
"A. The applicant ’ s arrest after being caught in the act of committing an offence",
"7. On 19 December 2003 the directorate general of prisons launched a recruitment competition for the post of specialist military doctor at the prison of Bucharest-Jilava. Six individuals were candidates, including a certain T.G. Preliminary interviews were conducted by N.D., a doctor with the rank of Lieutenant - Colonel, who was put in charge of setting up the board of examiners. N.D. invited the applicant to chair the board.",
"8. N.D. prepared all the necessary documentation for the competition, including the envelope containing the examination papers. She was supposed to take the envelope to the examination venue on 3 May 2004, at 7. 15 a.m.",
"9. After the preliminary interviews with the candidates, N.D. contacted T.G. under a false identity to offer to help her succeed in the competition. When asked by T.G. how she could help her, N.D. told her that she could intervene in her favour at the level of the board of examiners. A number of meetings took place between T.G. and N.D., who handed her copies of the examination papers. At one of the meetings N.D. mentioned the applicant ’ s name, stating that he was the chairman of the board. On 23 April 2004, during a further meeting with N.D., T.G. recorded the conversation.",
"10. On 30 April 2004 T.G. reported N.D. to the national prosecution service for corruption ( the “ PNA ” ), indicating that the latter had asked her for a sum of money in return for favourable treatment in the competition. She added that she had an agreement with N.D. to give her 1, 300 US dollars (USD) on the day of the examination, before the written test, then USD 1, 200 once she had been accepted for the post.",
"11. On the same day the PNA authorised the recording of conversations between T.G. and N.D. The banknotes that T.G. was supposed to give to N.D. were marked with a fluorescent substance.",
"12. On 3 May 2004, at 7. 05 a.m., N.D. was arrested in the act of receiving money from T.G. After being taken to the offices of the prosecution service, she was questioned and a report was drawn up concerning the discovery of an offence while it was being committed. N.D. stated that, as a member of the board of examiners, she had asked T.G. for a sum of money in exchange for her help in obtaining the post in question. She added that, on 27 April 2004, the applicant had given her the examination papers so that she could pass them on to a candidate who would be declared successful in return for USD 2, 500, a sum that she was supposed to remit to him on 3 May 2004 after the examination. N.D. stated that she had asked for the money in order to give it to the applicant. After being informed of the possibility of a reduction in sentence if she cooperated with the prosecution, N.D. indicated that her statement constituted an act of self-incrimination. She agreed to cooperate with the PNA in the prosecuting of the offence in respect of the applicant, by going to meet him after equipping herself with audio and video devices.",
"13. According to the applicant, N.D. had denounced him to the PNA after being threatened by the investigators who, during her questioning, had drawn her attention to the potential consequences of her actions for her family.",
"14. On the same day, at 8 a.m., the prosecutor authorised the audio and video recording of discussions between N.D. and the applicant, together with the bugging of a number of telephones used by him, for a period of twenty-four hours, from 3 May 2004 at 8 a.m. to 4 May 2004 at 8 a.m. The intercept authorisations of 30 April ( see paragraph 11 above ) and 3 May 2004 were endorsed by a judgment of the High Court of Cassation and Justice ( the “High Court” ) on 3 May 2004.",
"15. At 8. 17 a.m. N.D. called the applicant to inform him that she would be late. At 9. 30 a.m. N.D. arrived at the hospital and met the applicant in the corridor. She asked him to go into his office, placed the envelope with the money on his desk and left.",
"16. At 9 .40 a.m. officials from the prosecution service entered the applicant ’ s office. The investigators examined the applicant ’ s hands and clothing, using a fluorescent lamp, and observed traces of fluorescent substance on the fingers of his left hand. The objects on the applicant ’ s desk were then examined and traces of the same substance were detected. An envelope was found on the desk and the investigators asked the applicant to open it and deposit the contents on the table. The envelope contained the sum of USD 1, 300.",
"17. A report was drawn up concerning the discovery of the offence while being committed. It recorded the sequence of events, the material items identified and the applicant ’ s replies to questions from the investigators. The applicant ’ s statements were recorded as follows :",
"“... When he [ the applicant ] was apprehended, the public prosecutor ... S.G. asked Dr Blaj Stefan, Brigadier- General, whether N.D. had left him anything.",
"He replied in the affirmative, saying ‘ yes ’ and pointing to his desk.",
"In the presence of the attesting witnesses ... and of Dr Blaj Stefan, Brigadier- General, formal note was taken of the offence that had just been committed.",
"Dr Blaj Stefan, Brigadier- General, was asked to state what he had received from N.D., at the time when ... Lieutenant - General S.M. entered his office ... and when Lieutenant - Colonel S.G., legal officer, showed him the object of the offence ( obiectul care formează constatarea infracțiunii flagrante ).",
"Subsequently Dr Blaj Stefan ... stated that N.D. had come to his office at the hospital, that she had said ‘ I have brought you the envelope ’ and that she had left it on the desk. He stated that, after N.D. had left, he had personally looked for some documents on his desk and had intended to leave his office to go to the toilet when he was stopped by Lieutenant - Colonel S.G., legal officer.",
"...",
"When questioned, Dr Blaj Stefan explained that he did not possess any document concerning the examination scheduled for 3 May 2004, because the documents were at the technical secretariat of the directorate general for prisons ... ”",
"18. The report was signed by the applicant and by the two attesting witnesses present, without any objections. In the report, the applicant was mentioned as the “ person caught in the act of committing an offence ” ( făptuitor ).",
"19. The applicant was not informed at the time of that procedure of his right to legal assistance and to remain silent, or of any of the accusations against him. The discovery of the offence while being committed was recorded by audio and visual means.",
"20. The applicant was then taken to the headquarters of the PNA where he was informed, in his capacity as a “ person caught in the act of committing an offence ”, that preliminary investigative acts had been carried out against him and that he was entitled to legal assistance. Subsequently the prosecutor ordered that criminal proceedings be opened against the applicant and informed him of his right to remain silent. The applicant was assisted from that point onwards by a lawyer of his choosing.",
"21. Later on that same day, 3 May 2004, at 5 p.m., the prosecutor ordered that the applicant be taken into police custody for twenty-four hours, a measure that was subsequently extended by a period of detention on remand. The applicant was assisted by a lawyer of his choosing. The applicant ’ s detention on remand was then extended several times until 6 September 2004, when he was released.",
"22. On 5 May 2004 the intelligence services of the Ministry of the Interior transmitted reports to the prosecutor ’ s office concerning the recording of telephone calls intercepted on the applicant ’ s telephone. That information showed that the secret services had intercepted conversations which had taken place on 3 May 2004, at 3. 35 p.m., and on 4 May 2004, at 8. 50 a.m. As regards calls intercepted on 4 May 2004, after 8 a.m., a note in the investigation file gave the times of the calls with the indication that the numbers called had not been identified.",
"23. The transcription of the video-recorded conversation of 3 May 2004 between N.D. and the applicant, B.S., read as follows :",
"“...",
"N.D. ... I wanted ... to tell you that the exam papers are still those ...",
"B.S. (interrupting N.D.) : Yes, I am going ... (unintelligible) ...? Have you got [ the exam papers]?",
"N.D. : ... Yes!",
"B.S. : OK. Put them on the table, they will take them from there ...",
"N.D. : Yes ...",
"B.S. : But we can ’ t do the practical part ... until Thursday morning! We are running very late, we won ’ t be able to do the marking!",
"N.D. : Yes ...",
"B.S. : At noon I have to be in Breaza. Yes? OK.",
"N.D. : Euh... ( at that moment ... at the fourth minute of the video recording, N.D. takes from a bag she is holding a white envelope that she holds out to B.S. At the same time, N.D. says :) This is from ... the candidate!",
"B.S. (covering N.D. ’ s words) : What? ( he then speaks softly) Put them there! ( on the video recording – at 04.01 and 04.03 – B.S. can be seen pointing to his office and the desk in question. B.S. then continues ) OK, come with me! ...",
"N.D. : It ’ s part. ... the rest will be ...",
"B.S. (interrupting N.D.) : But ... I have nothing ... It is up to you ( Deci, eu n ’ am comentat nimic ) ...",
"N.D. : Yes ...",
"B.S. : I have helped you, haven ’ t I?",
"N.D. : Yes ...",
"... ”",
"24. During the criminal proceedings, the applicant was questioned in the presence of a lawyer of his choosing and he denied the charges. A confrontation took place at an unknown date between N.D. and the applicant, each one maintaining the position taken in their respective initial statements. The applicant was assisted by lawyers of his choosing throughout the ensuing criminal proceedings.",
"B. The criminal proceedings against the applicant",
"25. On an indictment of 25 May 2004, the applicant was committed to stand trial in the Criminal Division of the High Court on a charge of soliciting bribes. He was charged with having, in his capacity as chairman of the board of examiners, asked T.G. through the intermediary of N.D. for the sum of USD 4, 000, subsequently reduced to USD 2, 500, in return for helping her in the examination, and with having, on 3 May 2004, received the sum of USD 1, 300 on that basis. In the same indictment, N.D. was committed to stand trial on a charge of complicity in soliciting bribes.",
"1. Proceedings at first instance before the High Court sitting in a three-judge formation",
"26. When questioned by the High Court, the applicant denied the charges against him. He stated that he had been convinced that the envelope left by N.D. on his desk contained the examination papers that N.D. was, according to him, supposed to give him that day.",
"27. On 27 May 2004 the applicant argued before the High Court that he had been the victim of entrapment by the investigative authorities. He indicated in that connection that, according to his first statement as recorded in the report on the discovery of the offence, N.D. had initially said that the money was intended for her. He took the view that it was only after been subjected for one hour to psychological pressure on the part of the investigators, who had repeatedly stressed that she would benefit from a reduction in sentence and had questioned her about her family, that N.D. had stated that the money was intended for him. He added that the report on the discovery of the offence could not constitute valid evidence, on the ground that it contained a statement that he had allegedly made immediately after being caught in the act of committing an offence, without having been informed by the prosecutor of his right to legal assistance.",
"28. When questioned by the High Court about the substance of the discussion he had had with N.D. just before being caught in the act of committing the offence, the applicant indicated that he had heard N.D. say something about a candidate but had not understood exactly what she had meant, as she had spoken softly and at a point when his attention had been distracted by a colleague going into the secretary ’ s office.",
"29. On 24 June 2004 the High Court questioned N.D. She stated that she had been caught in the act of committing an offence and that when the investigators had asked her whether the money was for her or for someone else, she had mentioned the applicant. She also indicated that she was not supposed to receive any money from the candidate and that all the money was intended for the applicant. She added that the investigators had asked her to follow up the procedure for the discovery of the offence while being committed and to take the money to the person for whom it was intended. The investigators had allegedly asked her to behave as if nothing had happened and to explain to the applicant that she had been delayed by a traffic accident. When she had hesitated, the investigators had allegedly told her that she could benefit from a reduction in sentence if she accepted.",
"30. On 8 July 2004 T.G. was questioned by the High Court.",
"31. On 21 March 2005 the High Court listened to and watched the audio and video recordings made by the prosecutor ’ s office during the commission of the offence, involving first T.G. and N.D., and second N.D. and the applicant, together with the filmed interview of N.D. after she was caught in the act of committing an offence.",
"32. On 18 April 2005 the hearings were resumed. The applicant repeated that he had been the victim of entrapment and that N.D. had made the statements in question, after being caught in the act of committing an offence, without legal assistance and under pressure from the investigators. He indicated that in the transcription of the recording of his discussions with N.D., the phrase “Put them on the table ... ” concerning the impugned envelope appeared in writing but was inaudible on the recording.",
"33. In a judgment of 25 May 2005, by a majority, the High Court, sitting in a three-judge formation, sentenced the applicant on the charge of soliciting bribes to a suspended term of one and a half years in prison. It based its decision on the report of the discovery of the offence while being committed by the applicant, on the statement of N.D. and on the audio and video recordings made when the applicant was caught in the act of committing the offence.",
"...",
"35. As to the applicant ’ s allegations that he should have had legal assistance from the time when he was first questioned by the public prosecutor in the procedure concerning the discovery of an offence while being committed, the High Court found as follows :",
"“Under Article 171, paragraph 1, of the Code of Criminal Procedure, suspects or accused persons have the right to be assisted by a lawyer throughout the criminal proceedings, and the judicial authorities are obliged to inform them of that right. At the time of the drawing-up of the report concerning the discovery of an offence while being committed, the criminal proceedings had not yet been started in respect of Blaj Stefan, who did not even have the status of suspect. Accordingly the [said] report and the audio and video recordings made during the discovery of the offence will be admitted in evidence”.",
"36. After noting that the applicant had always denied the charges, the High Court found that his allegations were contradicted by the video and audio recordings. Based on that evidence, it noted that N.D. had held out the envelope to the applicant telling him loudly and clearly “ this is from the candidate”; it was thus obvious to the High Court that the applicant was perfectly aware of what was in the envelope and he had no reason to believe that an envelope from a candidate contained examination papers. It further noted that the applicant had pointed to where N.D. should place the envelope and that when she had started to explain that the rest would be remitted afterwards, he had interrupted her saying that it was up to her.",
"37. The High Court also found that the applicant ’ s statement that the envelope had then been covered by certain documents on the desk because he had tidied things up was contradicted by the verifications made using an ultraviolet lamp, which had revealed specific fluorescent traces leading to the conclusion that the applicant had not lifted the envelope to tidy the desk but that he had slid it under other documents to hide it. The High Court concluded that this evidence, together with the report on the discovery of the offence, proved that there had been a prior agreement between the applicant and N.D.",
"2. The appeal proceedings before the High Court sitting in a nine-judge formation",
"38. The applicant appealed against the first-instance judgment, seeking his acquittal and, in the alternative, a retrial before the first-instance court, arguing that there was no evidence that he had been aware of the content of the envelope in question.",
"39. He further argued that he had been the victim of entrapment on the part of the investigators. He pointed out that the evidence had been obtained illegally as a result of the pressure exerted for about two hours on N.D. by the investigators after she had been taken into police custody, without being informed of her procedural rights.",
"40. The applicant also indicated that the words “Put them there!” appeared in the transcripts whereas they were not, in his view, audible in the recording and that his discussion with N.D. before entering the office had not been transcribed, even though it would have shown that he had received N.D. in his office only upon her insistence. He further argued that the authorisations for recording his discussions with N.D. were not legal, on the ground that they had been issued before he was formally charged and had not been confirmed within the statutory time-limit by the President of the High Court.",
"41. He lastly indicated that he had not been assisted by a lawyer when he gave the first statement recorded in the report of the discovery of the offence. In this connection, he relied on the first paragraph of Article 467 of the Code of Criminal Procedure governing the discovery of an offence while being committed. He added that, under this Article, the prosecuting authority was required to draw up a report of the discovery of the offence containing the statements of the “ suspect and other persons questioned ”. He inferred from this that at the time the offence was committed he must have had the status of “ suspect ”, which meant that he should have been assisted by a lawyer or at least informed of that right.",
"42. The hearing took place on 25 September 2006. In a final judgment delivered on the same day, issued on paper on 22 January 2007, the High Court, sitting as a nine-judge formation, dismissed the applicant ’ s appeal.",
"43. The High Court found that, while it was clear that Article 467, paragraph 1, of the Code of Criminal Procedure was applicable in the present case, that did not, however, entail an obligation to prosecute before or at the same time as the discovery of the offence while being committed. In the court ’ s view, such an interpretation would render futile the relevant procedure as a whole, whereas the fact of being caught in the act of committing an offence formed the basis on which the criminal proceedings were then initiated. In addition, since the measure in which the above-mentioned legal provision provided for keeping a record of the statements of the suspect and other persons questioned, the person concerned would be questioned as the suspect only if the prosecution had already decided to bring proceedings against that person. If not, his or her statement would be recorded as that of “another person questioned ”. The High Court concluded on that point that, in view of the fact that at the time he was first questioned the applicant had been neither a suspect nor an accused person, there had been no statutory obligation for him to be assisted by a lawyer. Moreover, it noted that the applicant had been informed subsequently, in the presence of a lawyer of his choosing, that preliminary investigative acts ( acte premergătoare ) had been carried out against him in his capacity as a person caught in the act of committing an offence.",
"44. The High Court further found that the charges against the applicant had been fully substantiated by the video and audio recording of his meeting with N.D. on 3 May 2004. It noted the importance of their conversation on that occasion and the indicative nature of the applicant ’ s gesture in showing N.D. where to place the envelope, thus ruling out the possibility that he could have been the victim of entrapment. The High Court held that, even supposing that the sentence “Put them on the table” had not been audible in the recording, the words spoken by the applicant, and not disputed by him, both before and after the envelope was placed on the table, formed a context that left no room for doubt.",
"45. The court lastly found the recordings to be valid. In this connection it noted that in case of urgency the prosecutor was empowered to authorise recordings and that the court was required to confirm the authorisations within twenty-four hours, as it had done in the present case.",
"46. On 9 December 2010 the Criminal Division of the High Court rehabilitated the applicant upon his application and cancelled his conviction of 25 September 2006.",
"..."
] | [
"II. RELEVANT DOMESTIC ... LAW AND PRACTICE",
"A. Relevant provisions concerning the right to legal assistance and the discovery of an offence while being committed",
"58. The articles of the Code of Criminal Procedure that are relevant for the present case read as follows :",
"Article 171 on the right of suspects or accused persons to legal assistance",
"“ (1) Suspects or accused persons have the right to legal assistance throughout the criminal proceedings, and the judicial authorities shall inform them of that right ... ”",
"59. The Constitutional Court has confirmed on a number of occasions that the prosecution is not obliged to ensure the provision of legal assistance in the context of measures taken at the preliminary investigation stage, on the ground that no evidence capable of being used during the subsequent criminal proceedings can be gathered at this stage ( judgments nos. 141/1999, 210/2000 and 582/2005).",
"Article 224 §§ 1 and 3 on the preliminary investigation",
"“ 1. The prosecuting authority may take any measure of preliminary investigation.",
"...",
"3. The report concerning the taking of any measure of preliminary investigation shall constitute valid evidence.”",
"Article 467 on the discovery of an offence while it is being committed",
"“ (1) The prosecuting authority dealing with the case shall draw up a report setting out the various aspects of the offence committed. The statements of the suspect and other persons questioned shall also be recorded in the report.”",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"66. The applicant ... also complained that he had not been notified of his right to remain silent and that he had not been assisted by a lawyer during his first questioning by the prosecutor immediately after the discovery of the offence while being committed, or at least that he had not been informed of that right. He further observed that he had not been informed of the accusations against him. ...",
"67. The applicant relied on [Article] 6 §§ 1 and 3 ... (c) ... of which the relevant parts read as follows:",
"“1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"... ”",
"...",
"B. Merits",
"1. The necessity of being assisted by a lawyer during questioning in the context of a procedure concerning the discovery of an offence while being committed and the failure to notify the right to remain silent",
"( a) The parties ’ submissions",
"86. The applicant took the view that he should have been assisted by a lawyer when he gave his first statement as recorded in the report concerning the discovery of an offence while being committed, pointing out that this document had constituted a very important item of evidence for the prosecution in securing his conviction. He also complained that he had not been informed beforehand of the accusation against him, of his right to remain silent or of his right to legal assistance.",
"87. The Government argued that the report concerning the discovery of an offence while being committed did not constitute the sole evidence on which the applicant ’ s conviction had been based, so the fact he had not had legal assistance at the relevant stage in the proceedings did not entail a violation of Article 6 of the Convention. They added that the applicant had been informed very promptly of his right to defend himself or to benefit from legal assistance. Thus, on the very day of the discovery of the offence, during his first questioning by the prosecuting authorities, and subsequently throughout the proceedings, the applicant had been assisted by a lawyer of his choosing.",
"( b) The Court ’ s assessment",
"( i) Applicable principles",
"88. The Court reiterates that national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, for which the Convention does not expressly provide, may be subject to restrictions for good cause ( see Salduz [ v. Turkey [GC], no. 36391/02,] § 52 [, ECHR 2008] ). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, because the individual concerned will be personally affected by the restrictions ( see Salduz, cited above, §§ 55, 58 and 62, and Pishchalnikov v. Russia, no. 7025/04, §§ 70 and 90, 24 September 2009 ).",
"89. The Court further finds that, in accordance with Article 467 of the Romanian Code of Criminal Procedure concerning the discovery of an offence while being committed, the prosecuting authority draws up a report in which the statements of the suspect and other persons questioned are recorded. It also notes that the applicant ’ s statement as recorded in that report was a different act from the first statement that he later gave after he was formally charged.",
"90. The Court reiterates that its task is not to ascertain in abstracto whether the Romanian legal system in respect of the procedure for the discovery of an offence while being committed is compliant with the Convention, but to examine whether there has been a violation in the precise case before it. Similarly, it will examine the proceedings as a whole before the domestic courts to ascertain whether the absence of a lawyer at the time of those statements personally affected the individual concerned and breached his right to a fair hearing ( see Tsaggarakis v. Greece (dec.), no. 45136/06, 10 September 2009).",
"( ii) Application of those principles to the present case",
"91. In the present case, the Court observes that, in the light of the domestic law, the applicant did not have the right to be assisted by a lawyer while the investigators were questioning him in the context of the procedure concerning the discovery of an offence while being committed, because he did not yet have the status of suspect or accused person.",
"92. The Court notes that the purpose of the said procedure is to catch a suspect in the act of committing an offence and that an official report is drawn up to record the suspect ’ s statement at the time of being caught. In this connection, it takes the view that the investigators must confine themselves to asking questions about the material aspects of the acts observed during the discovery of the offence and avoid transforming this statement-taking into a fully-fledged interview on the charges.",
"93. In the present case, the Court notes that in the said report the investigators recorded the material elements observed during the discovery of the offence, such as the objects found, their contents and the results of forensic examinations, and noted the applicant ’ s replies to their questions. In his replies the applicant admitted that he had received an envelope from N.D. He also described what he had been doing at the time of the investigators ’ arrival, explaining that he had been looking for documents on his desk and was about to leave the room when he was apprehended by the prosecutor ’ s representatives.",
"94. The applicant did not indicate that he was aware of the contents of the envelope. In addition, he was not questioned about the circumstances or reasons which had led N.D. to leave the envelope on his desk or about any agreements he may have had with her.",
"95. The Court further observes that, from the time he was formally charged, later on the same day, the applicant was assisted by a lawyer of his choosing, who then assisted him in all his statements before the prosecuting authority and the High Court. In all his statements the applicant denied the charges. The Court observes, however, that he never disputed the content of his remarks as noted in the report concerning the discovery of the offence.",
"96. The Court notes, lastly, that the report concerning the discovery of the offence while being committed constituted one of the items of evidence used by the High Court in finding the applicant criminally responsible. However, the High Court took the report into account as evidence that the applicant had been caught in the act of committing an offence, without regarding the applicant ’ s remarks as a separate statement on the charges. Moreover, the High Court noted that the applicant had always denied the charges. The Court thus concludes that the applicant ’ s remarks as noted in the report concerning the discovery of the offence did not adversely affect him ( see, mutatis mutandis, Stanca v. Romania, no. 34116/04, § 62, 24 July 2012, and Minculescu v. Romania (dec.), no. 7993/05, § 84, 13 November 2012).",
"97. The Court further notes that the applicant was informed of the substance of the accusations against him from the time of his first interviews and that after being remanded in custody he was represented by lawyers at all stages of the proceedings ( contrast Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009 ).",
"98. Lastly, the Court emphasises that the applicant did not allege, before either the domestic courts or this Court, that he had given his initial statements under duress ( contrast Salduz, cited above, § 17).",
"99. Having regard to the foregoing, the Court finds that in the present case there has been no violation of Article 6 §§ 1 and 3 ( c) of the Convention.",
"..."
] |
207 | A.T. v. Luxembourg | 9 April 2015 | This case concerned the failure to provide the applicant with effective legal assistance after he was arrested under a European Arrest Warrant, during both his police interview and his first appearance before the investigating judge the next day. | The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court held that there had been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention on account of the failure to provide legal assistance during the police interview. As further regards the applicant’s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6 § 3 (c) taken together with Article 6 § 1, as Article 6 of the Convention did not guarantee unlimited access to the file prior to such an appearance. However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as the applicant had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1973 and was detained in London at the time he lodged his application.",
"10. On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her.",
"11. On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition ” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time.",
"12. On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2. 45 p. m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3. 20 p. m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “ [ the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning ”. The applicant was informed of the victim ’ s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day ’ s interrogation before the investigating judge. At 7. 15 p. m. he was transferred to Luxembourg Prison.",
"13. On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows : at 9. 02 a. m. the investigating judge checked the identity of the applicant – who now held accused ( Beschuldigter ) status – and informed him that a criminal investigation ( Untersuchungsverfahren ) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10. 53 a.m.",
"14. It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim.",
"A. The first-instance judgment",
"15. By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “ version of events ”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim ’ s statements.",
"B. The appeal judgment",
"16. On 7 February 2012 the criminal division of the Court of Appeal upheld the first- instance judgment.",
"17. The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned.",
"18. They pointed out that the applicant ’ s lawyer had complained about the fact that after the applicant ’ s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows :",
"“ As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel. ”",
"19. In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings.",
"C. The judgment of the Court of Cassation",
"20. On 22 November 2012 the Court of Cassation dismissed the applicant ’ s appeal on points of law. In particular, it declared ill- founded a submission under Article 6 § 3 of the Convention, on the following grounds :",
"“ Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding;",
"Whereas, however, the Court of Appeal held that ... [ see quotation in paragraph 18];",
"That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel;",
"It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ... ”",
"D. Subsequent events",
"21. The applicant left Luxembourg for the United Kingdom ( at an unspecified date ), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment.",
"22. On 12 June 2013, in response to a request from the British authorities ( the Extradition Unit of the Crown Prosecution Service ) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant ’ s access to his lawyer before the interrogation of 18 December 2009 had not been restricted.",
"23. On 19 August 2013 the British court authorised the applicant ’ s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant ’ s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"24. A. Luxembourg law and practice",
"...",
"4. Instructions to police following the Salduz judgment",
"31. The relevant legislative provisions have been complemented by internal circulars.",
"32. In particular, the “ Luxembourg Police Memorandum No. 49/2011 ” of 20 June 2011 – which also applies to customs officers interrogating a person deprived of his liberty – provides that officers must comply with the Court ’ s case-law (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and Dayanan v. Turkey, no. 7377/03, 13 October 2009), on pain of cancellation of any procedures initiated, and specifies that the relevant chapters of the police regulations have been amended accordingly.",
"33. Prior to this memorandum, an exchange of correspondence took place between the public prosecutor ’ s office and the police department.",
"In a circular sent out on 13 May 2011 the Principal State Prosecutor asked the Director General of Police to instruct all police officers to ensure that any accused person deprived of his liberty had access to the effective assistance of a lawyer during the interrogations which he underwent during his detention.",
"On 15 June 2011, at the request of the Director General of Police, the State Prosecutor provided the following information :",
"“ ... The right of legal assistance - applicable procedures",
"Under our current domestic law, the right to the assistance of a lawyer is applicable to specific types of police interrogations of persons deprived of their liberty, that is to say :",
"- police interrogations of individuals detained in in flagrante proceedings ( Article 39(7 ) of the Code of Criminal Procedure ) and",
"- police interrogations of individuals remanded in custody concerning acts other than those with which they have been charged ( Article 52(3) of the Code of Criminal Procedure ).",
"Inasmuch as recent case -law of the European Court of Human Rights has particularly emphasised the need for such assistance in respect, in principle, of any police questioning of an ‘ accused ’ deprived of his liberty, the benefit of that right should be extended to:",
"- police interrogations in the framework of a preparatory investigation, by way of letters rogatory from the investigating judge, of the individual deprived of his liberty pursuant to a warrant to appear or a domestic or European arrest warrant.",
"...",
"The scope of the right to the assistance of a lawyer",
"In my letter of 13 May 2011 I pointed out that the right to the assistance of a lawyer during an interrogation was not confined to the lawyer ’ s physical presence; it should also enable the person under interrogation to receive help and protection from the lawyer and allow the lawyer to assist the person effectively.",
"This should be taken to mean:",
"... arrangements should be made to enable the detainee to talk to his lawyer before the interrogation and, in particular, after receiving a summary of the facts relevant to the interrogation ... That conversation should take place under such conditions as to guarantee its confidentiality. There may be compelling reasons for not allowing such an interview, though only in exceptional cases and subject to the authorisation of the judge or prosecutor in charge, who must be contacted on the matter...”",
"...",
"C. European Union texts",
"37. The relevant passages of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings provide :",
"“ Article 7 Right of access to the materials of the case",
"1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.",
"2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.",
"3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered.",
"... ”",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"39. The applicant complained of the lack of legal assistance during his questioning by the police on 17 December 2009 and of the lack of effective legal assistance before the investigating judge on 18 December 2009. He further complained that the Court of Appeal, and later the Court of Cassation, had failed to provide redress for the consequent infringement of his defence rights. He relied on Article 6 of the Convention, which provides :",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"... ”",
"...",
"B. Merits",
"1. The parties ’ submissions",
"a) The applicant",
"52. In his observations of 14 April 2014 the applicant submitted that the minutes of the police interrogation of 17 December 2009 mentioned neither the fact that the applicant had been explicitly informed of the right to assistance by counsel from the outset of the proceedings nor any exceptional circumstances justifying the restriction of his right of access to a lawyer. He considered that the legal requirements set out in Article 39(7) of the Code of Criminal Procedure had been disregarded in line with the systematic and widespread practice of the police at the material time. His insistence on seeing a lawyer in line with practice in the United Kingdom clearly demonstrated his initial determination not to waive his right to legal assistance; he could therefore not be deemed to have willingly agreed to take part in the police questioning without the assistance of a lawyer. In his in his further submissions of 6 January and 2 February 2015 the applicant noted the lack of relevant domestic legal provisions. The case before the Court showed that Articles 39 and 52 of the Code of Criminal Procedure did not apply where an individual was arrested under a European arrest warrant. To the Government ’ s submission that new legislation had been proposed recently on that subject, the applicant replied that even supposing that bill was enacted, it only provided for access to the case file after the first interrogation by the investigating judge, not during police questioning, so that legal assistance was still not real or effective at the police custody stage. At all events, neither the proposed legislation nor the circulars from the Principal State Prosecutor had had the desired effect in the past.",
"53. As regards his first appearance before the investigating judge on 18 December 2009, the applicant stated that both the spirit and the letter of Article 84 of the Code of Criminal Procedure implied that before and during the first interrogation no communication was possible between the accused and his lawyer. Furthermore, pursuant to Article 85 of that Code, the latter could not consult the case file before the first interrogation. The mere presence of a lawyer, who is only entitled to remain silent, could in no way constitute real and effective assistance. The applicant emphasised that the main act during the preliminary examination was the immediate pressing of charges against the applicant, even before he had been questioned about the facts, as transpired from the minutes of 18 December 2009. Moreover, with particular reference to Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), he emphasised that the preliminary interrogation could lead to the accused being remanded in custody. Domestic case-law confirmed that the right of access to the case file had still not been enshrined in legislation before the preliminary examination before the investigating judge ... With reference to the case of Sapan v. Turkey ( judgment delivered by a three-judge committee, no. 17252/09, § 21, 20 September 2011) and relying on Article 7 of European Directive 2012/13/ EU of 22 May 2012, the applicant concluded that denying him access to the case file prevented the lawyer from providing any effective assistance to his client during the preliminary examination.",
"54. The applicant added that the fairness of the proceedings had been undermined by the fact that the judgment of the Court of Appeal, as confirmed by the Court of Cassation, had not provided redress for the infringement of his defence rights. Instead of nullifying the police questioning and the first interrogation by the investigating judge, the Court of Appeal had referred to statements given by the applicant before the police without the assistance of a lawyer in assessing the credibility, or at least the consistency, of his statements. The Court of Appeal had, at least partly, based its argumentation on the statements given by the applicant in breach of his rights. By merely noting, therefore, that the applicant had recorded his agreement to giving oral evidence in the absence of a lawyer before the police, the judges and prosecutors had not assessed whether the alleged waiver of the services of a lawyer had been voluntary and fully informed.",
"b) The Government",
"55. In their observations of 27 February 2014 the Government acknowledged that the applicant had not been assisted by a lawyer during his questioning by the police. However, they pointed out that the lack of legal assistance did not automatically amount to a violation of Article 6 of the Convention ( see Zdravko Petrov v. Bulgaria, no. 20024/04, 2 3 June 2011, and Stanca v. Romania, no. 34116/04, 24 July 2012 ) and that an express or tacit waiver of that right was accepted by the Court ( see Yoldaş v. Turkey, no. 27503/04, 23 February 2010). According to the Government, the applicant had been served with the European Arrest Warrant on his arrest in the United Kingdom, so that at his questioning on 17 December 2009 he had known for thirteen days the charges against him, and he could have sought the assistance of a lawyer of his own choice with whom to discuss the approach to be adopted in his defence. If the applicant had initially requested the assistance of a lawyer during the police questioning, he had received the necessary explanations concerning the procedure and the applicable texts – which unambiguously granted the right to legal assistance as from the first interrogation – and had been advised, for reasons of the efficient running of the investigation, to begin discussions pending the arrival of the officially appointed lawyer. The applicant had approved that procedure voluntarily and without coercion, and had waived, with full knowledge of the facts, the benefit of the presence of counsel at that very early stage in proceedings, having been informed that a lawyer would be present during the exchange with the investigating judge, which had been the case. In that regard, the Government, while accepting that he had not been notified of his rights in writing against receipt, emphasised that the applicant had been informed of the details of the usual procedure in Luxembourg and had signed the official record, which had been translated in full by the accredited interpreter assisting him; therefore, the applicant ’ s waiver had been unequivocal and attended by the requisite minimum guarantees. Last but not least, the Government submitted that the statements given during the first interview had in no way influenced the final decision, because during both the police questioning and the interrogation by the investigating judge and in the trial courts the applicant had consistently and vehemently contested the charges. Therefore, the conviction had not been based in any way on the statements or any confession given without the assistance of a lawyer; the judges had been persuaded by the various witness statements and the medical reports. Accordingly, the oral evidence given at the first interview had been completely confirmed during the subsequent proceedings, the presence of a lawyer. In their observations of 14 January 2015 the Government explained that the exchange of letters between the public prosecutor ’ s office and the police and customs departments ( see paragraphs 31 to 33 above ) showed that the provisions of Articles 39 and 52 of the Code of Criminal Procedure concerning police questioning were automatically applicable to the right to legal assistance of an individual arrested under a European arrest warrant. That clarification as regards the applicable legislation had been made at the beginning of 2011, when the Salduz and Dayanan judgments had just begun to have a real international impact; the applicant ’ s proceedings had been ongoing at the time and had benefited from the State Prosecutor ’ s explanations. The service instructions had been backed up with a wide range of meetings in the police and customs services, in order to ensure that the instructions were followed to the letter. A bill had since been tabled reinforcing procedural safeguards in criminal matters in line with the Salduz precedent and transposing the relevant European directives.",
"56. The Government further submitted that the availability of legal assistance as from the first interrogation by the investigating judge was prescribed by law. They explained that the key element of the case before the investigating judge was the victim ’ s deposition as it emerged during the interrogation. The fact that the applicant ’ s lawyer had been unable to consult the case file in advance had had no effect on the applicant ’ s defence because it had never been a question of the judge simply reading out the indictment and presenting the applicant with the victim ’ s allegations. Nevertheless, the lawyer ’ s role had not been confined to his mere presence alongside the applicant, because he had been free to interrupt and ask questions throughout the interrogation. Thanks to his attendance at that meeting, the lawyer had subsequently had more than one year to prepare his client ’ s defence, with full knowledge of the contents of the case file. As regards the preliminary talks between the applicant and his lawyer before the interrogation, the Government explained that the lack of regulations allowed for full freedom in that sphere; the client could at any time, on request, engage in consultations with his lawyer, including before the questioning at the preliminary stage of the investigation. It was true that in practice the procedure was easier to implement if the defendant knew the lawyer and had contacted him in advance; on the other hand, the procedure for appointing a lawyer on his behalf meant that the latter had to be appointed at the time of the first interview. However, it was wrong to suggest that the Code of Criminal Procedure prevented the applicant from communicating with his lawyer and rendered the latter ’ s intervention wholly ineffective. The Government emphasised that communication was possible without restriction and that the lawyer could ask to speak at any time during the interrogation before the investigating judge; only full consultation of the case file was impossible before the end of the interrogation. To the applicant ’ s criticism that he had suddenly found a lawyer unknown to him setting beside him, the Government replied that that was inherent in the procedure for appointing a lawyer, as the applicant had been unable to appoint counsel known to him. The Government added that Mr W., who had been appointed at the applicant ’ s request, had not been prevented from intervening but had probably seen no need to do so at that stage in the proceedings; moreover, the applicant had never complained about his lawyer, who had continued to assist him throughout the proceedings.",
"57. The Government considered that the Court of Appeal and the Court of Cassation had properly analysed the applicant ’ s plea under Article 6 of the Convention, but had dismissed it on the ground that he had never been refused legal assistance. Given that neither the Court of Appeal nor the Court of Cassation had found any breach of his defence rights, it had not been incumbent on those courts to provide redress. According to the Government, even if the Court of Appeal had decided to nullify the first interview, such a decision would have had no effect on his conviction, as the trial court had based the conviction on other elements in the case file. The Court should pursue a flexible approach based on an overall reading of the situation in the light of the whole proceedings in order to satisfy itself that the aims of Article 6 had been secured ( see John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, and Rupa v. Romania (no. 2), no. 37971/02, 19 July 2011 ).",
"2. Third party submissions",
"58. The non - governmental organisation Fair Trials International submitted that the right to a lawyer was a fundamental guarantee which facilitated the exercise of other rights, and extended beyond preventing suspects from confessing to the offence. During police questioning lawyers acted as a “ gateway ” to other rights and generally helped prevent any prejudice to the suspect ’ s defence. The third party illustrated the role played by the lawyer by means of several examples, including ensuring that the suspect had understood the oral or written information provided concerning his rights, or again supervising compliance with procedural requirements such as the length of interrogations, the wording of the questions put, and so on.",
"59. Despite its fundamental importance, the right of access to a lawyer was not sufficiently protected across Europe. For instance, many suspects had major difficulties in exercising that right, particularly owing to legal or practical restrictions, the prevalence of dubious alleged “ waivers ”, and ineffective measures by the courts to remedy the violations in question.",
"60. Accordingly, the European Union had, in 2009, adopted a roadmap geared to reinforcing suspects ’ procedural rights, and on 22 October 2013 it issued a directive enshrining the right of access to a lawyer, attaching a series of safeguards to waivers of those rights and requiring the courts to take action in the event of a finding of violation. Article 3 of the directive provided that suspects or accused persons had the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; under Article 9, Member States should ensure that any waiver was given voluntarily and unequivocally. Although the Court of Justice of the European Union was responsible for interpreting the provisions of that directive, the third party considered that the Court could have regard to it as a pointer to the essential obligations on EU Member States ( which were therefore also binding on many Council of Europe member States ).",
"61. Having outlined the Court ’ s case-law since the Salduz judgment, the third party invited the Court to carefully assess the issue of restrictions on the right of access to a lawyer, “ waivers ” of that right and the failure of domestic courts to assess the negative effects of such restrictions, even where the suspect had not confessed to any offence.",
"3. The Court ’ s assessment",
"a) The applicable principles",
"62. The Court reiterates that although the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial before a “ tribunal ” competent to determine “ any criminal charge ”, it may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Salduz, cited above, § 50, and Panovits v. Cyprus, no. 4268/04, § 64, 11 December 2008). Furthermore, the right set out in paragraph 3 (c) of Article 6 is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 ( see Imbrioscia v. Switzerland, 24 November 1993, § 37, Series A no. 275, and Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 ‑ X).",
"63. The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial ( see Krombach v. France, no. 29731/96, § 89, ECHR 2001 ‑ II). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict that right. The Court specifies that even in such cases, denial of access to a lawyer must not unduly prejudice the rights of the accused under Article 6, and that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction ( see Salduz, cited above, § 55). The Court found a violation of Article 6 §§ 1 and 3 ( c) notwithstanding that the applicant had subsequently benefited from legal assistance and adversarial proceedings, having noted, in particular, that the restriction in question on the right to a lawyer had been based on the systematic application of legal provisions ( see Salduz, cited above, §§ 56 and 61).",
"64. The fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or otherwise remanded in custody, whether interrogations take place or not. The Court emphasises in that respect that the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, pointing out that discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention were fundamental aspects of the defence which the lawyer must be able to exercise freely ( see Dayanan, cited above, §§ 31-33). Moreover, an accused often finds himself in a particularly vulnerable position at the investigation stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself ( see Pavlenko v. Russia, no. 42371/02, § 101, 1 April 2010 ).",
"65. The Court has had occasion to reiterate that, first of all, a person “charged with a criminal offence” within the meaning of Article 6 of the Convention is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge; secondly, while a restriction of this right may in certain circumstances be justified and be compatible with the requirements of that Article, any such restriction that is imposed by a systemic rule of domestic law is inconsistent with the right to a fair trial ( see Simons v. Belgium ( dec. ), no. 71407/10, § 31, 28 August 2012, and Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, § 80, 24 October 2013 ).",
"66. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial ( see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000, and Ananyev v. Russia, no. 20292/04, § 38, 30 July 2009). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance ( see Salduz, cited above, § 59, and Yoldaş, cited above, § 51).",
"b) Application of the principles to the present case",
"i. Lack of assistance by a lawyer during the police questioning",
"67. The minutes of the police hearing of 17 December 2009 mentioned that the applicant had claimed his right to the assistance of a lawyer but that he had consented to an interrogation without such assistance, after having “ received the requisite explanations regarding the procedure to be followed in cases such as his ” ( see paragraph 12 above ).",
"68. Before the Court, the parties disagreed on the issue of the legal provisions applicable to the present case. The applicant contested the Government ’ s affirmation that Articles 39 and 52 of the Code of Criminal Procedure applied ipso facto where the individual had been arrested under a European arrest warrant.",
"69. The Court notes that at the time of the impugned interrogation on 17 December 2009, Luxembourg legislation provided for the right to legal assistance in cases of police interrogation of an individual detained under in flagrante proceedings ( Article 39 [ 7 ] of the Code of Criminal Procedure ) and in that of a person remanded in custody for facts other than those with which he had been charged ( Article 52 [ 3 ] of the Code of Criminal Procedure ) ... It transpires from the 15 June 2011 letter sent by the State Prosecutor that at the material time the right to the assistance of a lawyer had not applied to a police interrogation in the context of a preliminary investigation, on letters rogatory from a Luxembourg investigating judge, of a person detained pursuant to a European arrest warrant issued by a Luxembourg court ( see paragraph 33 above ). The Law of 17 March 2004 on the European Arrest Warrant and surrender procedures between Member States of the European Union provides for the assistance of a lawyer during police interrogations solely in the framework of the enforcement in Luxembourg of a European arrest warrant issued by a foreign authority ... However, it must be borne in mind that the applicant ’ s questioning by the police had taken place following his arrest in the United Kingdom on the basis of a European arrest warrant issued by a Luxembourg investigating judge. It is therefore incontrovertible that at the material time legal assistance during police questioning had been explicitly provided for in law under certain circumstances, but implicitly ruled out under circumstances such as those prevailing in the present case. That is why the assistance had been automatically ruled out in this way under the relevant legal provisions ( see, mutatis mutandis, Navone and Others v. Monaco, cited above, § 81).",
"70. The Court notes that the situation has since changed, under the 20 June 2011 “ Luxembourg Police Memorandum No. 49/2011 ” ( see paragraphs 32 and 33 above ); it also notes that a bill has been tabled geared to adding to the Code of Criminal Procedure a new right to legal assistance in any situation in which an individual deprived of his liberty is questioned. However, for his interrogation of 17 December 2009 the applicant was obviously ineligible for the facilities provided for in the memorandum in question.",
"71. Consequently, the Court is forced to note that under the legislation in force at the material time, the applicant was automatically deprived of the assistance of counsel, for the purposes of Article 6, during the police questioning of 17 December 2009. Under those conditions, the issue of any waiver of the right to the assistance of a lawyer becomes devoid of purpose ( see, mutatis mutandis, Navone and others v. Monaco, cited above, § 83).",
"72. The applicant made detailed statements during the impugned police hearing. Although he denied all the charges against him and made no incriminating statements, the Court nevertheless emphasises that the investigation stage of criminal proceedings is of crucial importance as the evidence obtained at this stage determines the framework in which the offence charged will be considered ( see Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011). In the instant case, having read the applicant ’ s oral evidence gathered by the police and the investigating judge and during the hearings, the court mentioned that the applicant had constantly changed his version of events. Moreover, the Court of Appeal had expressly referred to the statements made by the applicant during the police interrogation in its finding that he had not always been consistent in his statements. That being the case, the Court cannot accept the Government ’ s argument that the statements made by the applicant during the phase in issue had had no influence on the final decision.",
"73. To the applicant ’ s complaint before the Court of Appeal that he had been questioned by the police without the assistance of a lawyer, that court replied that he had agreed to give oral evidence in the absence of a lawyer. What is more, by confining itself to that finding the Court of Appeal had failed to analyse the need at least to exclude the statements recorded during the impugned phase of the proceedings; on the contrary, it even took account of those statements, albeit in conjunction with a substantial amount of other evidence, in the reasoning underpinning its conviction of the applicant. The Court of Cassation subsequently dismissed the applicant ’ s appeal on points of law on the ground that the Court of Appeal had found that there had been no violation of his defence rights since he had recorded his agreement to giving evidence in the absence of a lawyer. The Court takes the view that in so doing decision the judgment of the Court of Appeal, as subsequently upheld by the Court of Cassation, had failed to consider the situation complained of and had therefore failed to provide redress for the consequences of the failure to provide the applicant with legal assistance during the police hearing. In so far as the Government invited the Court to adopt a flexible approach based on an overall interpretation of the situation, the Court considers that they cannot use the judgments in the cases of John Murray ( cited above ) and Rupa v. Romania no. 2 ( cited above ) as authority. In John Murray, which preceded Salduz, the Court noted that the applicant had remained silent from the beginning of the police interrogation until the end of his trial, and found no violation of his right to remain silent; however, the Court did find a violation of Article 6 as regards the refusal to grant the applicant access to a solicitor for his first forty-eight hours in police custody. As regards Rupa, the complaints were of a different nature; the applicant in question had complained that the prosecutor had denied him the assistance of the lawyer of his choice and that the officially appointed lawyer had failed to provide adequate assistance.",
"74. The Court takes note of the fact that the situation in question had been clarified in the wake of the Principal State Prosecutor ’ s circular of 13 May 2011, given that a Police Memorandum of 20 June 2011 laid down that the case-law of the Court should be complied with, failing which any procedures initiated would be nullified ( see paragraphs 31 to 33 above ). However, that was not the case at the material time.",
"75. Accordingly, the Court finds a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicant did not benefit from the assistance of a defence lawyer during his police hearing and that the courts failed to provide redress for the consequences of such lack of assistance.",
"ii. Alleged lack of effective assistance by a lawyer during the first interrogation by the investigating judge",
"76. The day after his questioning by the police without the assistance of a lawyer, the applicant was interrogated by the investigating judge from 9. 02 a.m. to 10. 53 a.m., in the presence of a lawyer who had been officially appointed that morning. During the interrogation the applicant made detailed statements and repeated those which he had made to the police. The Court reiterates that in their formal conviction the trial judges mentioned the different statements and took them into account in their reasoning, stating that the applicant had constantly changed his “ version of events ” ( see paragraph 72 above ).",
"77. First and foremost, the Court must reiterate that the applicant ’ s complaint about the lack of effective assistance by his lawyer at the first interrogation concerns the protection of the rights of the defence under Article 6 of the Convention. The applicant therefore cannot usefully rely on the case of Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), which concerns a different type of issue, namely the lawfulness of detention under Article 5 § 4 of the Convention.",
"78. In order to analyse the applicant ’ s complaints concerning the first interrogation by the investigating judge, the Court considers that it must differentiate between the issue of the lawyer ’ s access to the case file and that of communication between the lawyer and his client.",
"α. Lack of access to the case file",
"79. Pursuant to Article 85 of the Code of Criminal Procedure, the Luxembourg authorities postpone access to the criminal case file until after the first interrogation ( see paragraph 30 above ). The Court reiterates that restrictions on access to the case file at the stages of instituting criminal proceedings, inquiry and investigation may be justified by, among other things, the necessity to preserve the secrecy of the data possessed by the authorities and to protect the rights of the other persons ( see, mutatis mutandis, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 72, 2 4 June 2010). In the instant case, given the justifications set out in domestic case -law, the Court considers it reasonable that the domestic authorities justify the lack of access to the case file with reasons of protecting the interests of justice. In addition, before charges are pressed, the person interrogated is at liberty to organise his defence ( including the right to remain silent, to consult the case file after the first interrogation by the investigating judge, and to choose his defence strategy throughout the criminal proceedings ). A proper balance is thus ensured by the guarantee on access to the case file, from the end of the first interrogation, before the investigating authorities and throughout the substantive proceedings.",
"80. The Court takes the view that it is not its task to decide whether the applicant can derive from the recently proposed legislation ( see paragraph 52 in fine ) or from Directive 2012/13/ EU ( see paragraph 37 above ) a right for the defence lawyer to have access to the case file before the first interrogation by the investigating judge. As regards the bill in question, it is not incumbent on the Court to express an opinion on a proposal which is still before the Luxembourg parliament. As regards the Directive, the Court merely notes that the first paragraph of Article 7 of the text concerns the lawfulness of arrest and detention, which is covered by Article 5 of the Convention. The issue at stake in the present case is respect for the defence rights of the person “ charged with a criminal offence ” within the meaning of Article 6 of the Convention. In that connection, paragraph 3 of Article 7 of the Directive provides that access to the materials referred to in paragraph 2 must be “granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation”.",
"81. The Court considers that Article 6 of the Convention cannot be interpreted as guaranteeing unlimited access to the criminal case file before the first interrogation by the investigating judge where the domestic authorities have sufficient reasons relating to the protection of the interests of justice not to impede the effectiveness of the investigations.",
"82. In the Court ’ s view, this finding cannot be rebutted by the judgment in the case of Sapan v. Turkey ( cited above ), as relied upon by the applicant. In that case the applicant ’ s complaint concerned the lack of any legal assistance for the applicant during his interrogations by the police and by the prosecutor with the Istanbul. Although the judgement does mention the fact that the applicant ’ s lawyer had been refused access to the investigation file by the Istanbul State Security Court, in finding a violation of Article 6 the three- judge committee had drawn exclusively on the criteria established in case-law considered as well- established, that is to say the failure to provide the applicant with any legal assistance, which had been the result of systematic application of the relevant legal provisions ( see Salduz, cited above ).",
"83. Having regard to the foregoing observations, the Court holds that the lawyer ’ s assistance during the interrogation on 18 December 2009 was not ineffective owing to the lack of access to the case file before that interrogation.",
"84. Therefore, there was no violation of Article 6 of the Convention under this head.",
"β. Alleged lack of communication between the applicant and his lawyer",
"85. The Court notes that the parties ’ submissions diverge on the matter of the applicant ’ s ability to communicate with his lawyer before the 18 December 2009 interrogation. The applicant submitted that under the very terms of Article 84 of the Code of Criminal Procedure no communication was possible between himself and his lawyer before the first interrogation by the investigating judge. The Government explained that the lack of regulations on this matter left unfettered scope for the parties, and that the practice was that clients could communicate with their lawyers at any time, upon request.",
"86. The Court notes the importance of consultations between the lawyer and his client upstream of the first interrogation by the investigating judge. This is an opportunity for holding crucial exchanges, if only for the lawyer to remind his client of his relevant rights. That is especially true where, as in the present case, the applicant was questioned by the police the day before without counsel and a lawyer has just been officially appointed on the morning of the interrogation by the investigating judge.",
"87. The lawyer must be able to provide effective and practical assistance, not just abstract backing via his presence, during the first interrogation by the investigating judge. Accordingly, the consultation between the lawyer and his client upstream of the interrogation must be unequivocally enshrined in legislation. However, that is not the case in Luxembourg. Article 84 of the Code of Criminal Procedure does not provide that accused persons can consult their lawyers before the first interrogation by the investigating judge, as in fact recommended by Article 3 of Directive 2013/48/ EU ... On the contrary, the actual wording of the provision in question gives the impression that no communication is possible before the first interrogation. Such a legislative position might suggest to accused persons that there is no point in demanding discussions with their lawyer before the first interrogation.",
"88. The Court is unconvinced by the Government ’ s argument that communication between the client and his lawyer is possible under current practice. It should be remembered that the Court must be able to satisfy itself that the right secured is practical and effective, and not theoretical and illusory. Where there are no clear regulations on the matter, it is impossible to ascertain whether a practice is well- established and has been respected.",
"89. It cannot be overlooked that in the present case the minutes of the interrogation on 18 December 2009 state that a lawyer was officially appointed on the morning of the interrogation by the investigating judge, but then fail to mention any lapse of time during which the applicant was able to talk to that lawyer. Consequently, the Court cannot satisfy itself, solely on the basis of the Government ’ s affirmations and the evidence available to it, that the applicant was able to speak to his lawyer before the impugned interrogation and that he therefore obtained effective assistance from him.",
"90. Nor can the Court disregard the fact that the CPT report of 28 October 2010 confirms the unreliability of the practice mentioned by the Government. That report, which was prepared in the wake of visits conducted the same year as the facts germane to the present case, states that virtually all the prisoners and detainees encountered by the CPT delegation had pointed out that their first contact with a lawyer had occurred when they had appeared before the investigating judge and that they had not been able to speak in private with the lawyer until after that appearance before the judge.",
"91. The foregoing considerations are sufficient to enable the Court to find that there was a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 under this head.",
"..."
] |
208 | Turbylev v. Russia | 6 October 2015 | This case concerned the applicant’s complaint of having been ill-treated in police custody and of the unfairness of the criminal trial against him, in which his statement of “surrender and confession”, made as a result of his ill-treatment and in the absence of a lawyer, was used as evidence. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, both on account of the applicant’s ill-treatment and on account of the ineffective investigation into the related complaints. It also held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention, finding that the admission of the statement of “surrender and confession” as evidence had rendered the applicant’s trial unfair. The Court observed in particular that the absence of a requirement, under Russian law, of access to a lawyer for such a statement had been used to circumvent the applicant’s right as a de facto suspect to legal assistance. This situation had resulted from the systematic application of legal provisions, as interpreted by the domestic courts. Moreover, in failing to conduct an independent careful assessment of the “quality” of the statement as evidence, and instead relying on the investigative authority’s findings, the domestic courts had legalised the police officers’ use of a statement of “surrender and confession” to document the applicant’s confession obtained as a result of his inhuman and degrading treatment after his apprehension on suspicion of having committed a crime. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1970 and lives in Ukhta, the Komi Republic.",
"A. The applicant ’ s arrest and ensuing events",
"6. In April 2005 a jewellery shop and other premises in a commercial centre in the Sosnogorsk district of the Komi Republic were robbed; in the course of those events, a woman guard was attacked and suffered injuries. Investigator A., from the investigation unit of the Sosnogorsk police department, opened a criminal case into the robbery. On 15 June 2005 the criminal proceedings were suspended for failure to establish the identity of a person to be charged.",
"7. On 25 August 2005 a certain R. reported to the police that her boyfriend B. had committed the robbery together with Zh. and the applicant. On the same day investigator A. reopened the criminal proceedings.",
"8. On 26 August 2005 the police arrested B., Zh. and the applicant. Investigator A. was present at the time of the arrest. The three men were taken to the Sosnogorsk police department of the Komi Republic ( отдел внутренних дел г. Сосногорска Республики Коми ).",
"9. Police officers, in particular Z., the head of the criminal police division of the Sosnogorsk police department, interviewed the applicant about his involvement in the robbery. According to the applicant, they demanded that he confess to the robbery and G., an operative officer in the criminal investigation unit of the police department, punched and kicked him on different parts of his body. Fearing new violence, the applicant confessed to having participated in the crime as requested, and signed a record of his “surrender and confession” ( явка с повинной ) that had been drawn up by operative officer G. at Z. ’ s request.",
"10. According to that record, on 26 August 2005 in office no. 12 of the Sosnogorsk police department police officer G. obtained from the applicant his confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation (“CCrP”). In particular, the record stated that the applicant had assisted B. and Zh. by loading the property stolen from the shops into his car and transporting it; that he had confessed without any physical or psychological pressure being exerted on him; and that he had been informed of Article 51 of the Constitution. The record did not indicate the exact time when the confession was obtained and did not explain the meaning of Article 51 of the Constitution (concerning self-incrimination, see paragraphs 28, 47 and 49 below).",
"11. At Z. ’ s request, the applicant wrote in the police station visitors ’ registration log that he had struck his own head against a wall, and that he had no complaints against the police officers.",
"12. At 2.57 p.m. on the same day investigator A. drew up a record of the applicant ’ s arrest as a suspect in the case.",
"13. On the same day the applicant was placed in a temporary detention facility (IVS) at the Ukhta police department. According to the IVS records, on arrival he had bruises under his eyes, his lips were burst, his lower jaw was swollen on the left side, and he had bruises on his back and abrasions on his knees.",
"14. On 27 August 2005 the applicant was questioned as a suspect in the presence of a lawyer. He retracted the confession statement that he had given on the previous day, and explained that he had made the statement as a result of ill ‑ treatment by the police officers.",
"15. On 30 August 2005 a judge of the Sosnogorsk Town Court ordered that the applicant be detained on remand. In reply to the judge ’ s question about the origin of his facial injuries, the applicant stated that he had been beaten up by operative officers from the police department. On the same day the applicant ’ s legal - aid counsel, who was representing the applicant at the court hearing, lodged an application with the Sosnogorsk prosecutor in which he requested that an inquiry be conducted into the applicant ’ s complaint and that those responsible for his ill ‑ treatment be prosecuted.",
"16. On 31 August 2005 the applicant was placed in pre ‑ trial detention facility SIZO 11/2, where he was examined by a doctor and found to have bruising beneath his eyes, a swollen nasal bridge, two - centimetre abrasions on the right side of his forehead, hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee (as recorded in a certificate of that detention facility dated 29 September 2005).",
"17. On 5 September 2005 the applicant ’ s counsel requested investigator A., who was in charge of the robbery case, to order a forensic medical examination ( судебно ‑ медицинская экспертиза ) of the applicant. The investigator rejected the request as irrelevant to the robbery case.",
"B. Criminal proceedings into the applicant ’ s alleged ill-treatment",
"1. Refusal to institute criminal proceedings",
"18. Following the application by the applicant ’ s counsel (see paragraph 15 above), investigator V. of the Sosnogorsk prosecutor ’ s office carried out a pre ‑ investigation inquiry into the alleged ill ‑ treatment of the applicant.",
"19. On 5 September 2005 the investigator ordered a forensic medical examination of the applicant; this was carried out by the Ukhta Forensic Medical Bureau on 7 September 2005. The expert ’ s report stated that the applicant had the following injuries: bruises measuring up to 1 to 3.5 centimetres on the lower eyelids of both eyes, two abrasions measuring 4 to 0.6 and 1.5 to 0.2 centimetres on his back; and an abrasion measuring 0.6 to 0.5 centimetres on his right knee. The injuries could have been caused by impacts from blunt hard objects with a limited contact surface, in the period 8-12 days before the examination. They could not have been caused by a single impact as a result of a fall against a flat surface.",
"20. The investigator received “ explanations ” ( объяснения ) from investigator A. (responsible for the robbery case ) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery. In particular, police officer G. stated that in the course of a “conversation” ( беседа ) which he had had with the applicant, the latter had suddenly jumped to his feet and hit his head against the wall, as a result of which his nose had started bleeding. Police officer K. also stated that he had seen the applicant hitting his own head against the wall. Police officer Z. explained that in the course of his “conversation” with the applicant the latter had recounted the details of the robbery committed by him; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers; and that the applicant had entered this explanation in the police station visitors ’ registration log.",
"21. On 9 September 2005 investigator V. held that the applicant ’ s allegations of ill-treatment, in particular the claims that he had been struck “ in his kidneys” and pushed so that his face had hit the wall and he had fainted, had not been based on real facts and that no criminal case was to be opened against police officers G., Z., Ku., B. and M., pursuant to Article 24 § 1 (2) of the CCrP ( lack of the elements of a crime in the impugned acts ).",
"2. Institution of criminal proceedings",
"22. On 5 December 2005 the Sosnogorsk prosecutor set aside the investigator ’ s decision of 9 September 2005 as unlawful and unfounded, on the ground that the circumstances in which the applicant had received his injuries had not been reliably established. He referred to the description of the applicant ’ s injuries on his arrival in the IVS (see paragraph 13 above) and the SIZO (see paragraph 1 6 above) and his examination by the forensic medical expert (see paragraph 1 9 above). He stated that the expert ’ s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a one-off impact by his face against a wall. The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station. However, it was not possible to carry out an identification parade and a confrontation in a pre ‑ investigation inquiry. The prosecutor considered that it could not be ruled out that, after his arrest, the applicant had been subjected to acts of violence in order to make him confess to the crime. The applicant ’ s version of his ill ‑ treatment by the police officers could only be verified by way of a full investigation. In order to do so it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (official misconduct with the use of violence). The prosecutor ordered that a criminal case be opened.",
"3. Termination of criminal proceedings",
"23. In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses. The applicant was questioned as a victim. An additional forensic medical expert ’ s report was obtained on 15 February 2006. It reiterated the conclusions in the previous report (see paragraph 19 above).",
"24. On 4 March 2006 an investigator from the Sosnogorsk prosecutor ’ s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers, pursuant to Article 24 § 1 (2) of the CCrP.",
"25. On 30 June 2006 a deputy prosecutor of the Komi Republic set aside the investigator ’ s decision and reopened the criminal proceedings. Three further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation. In one of the decisions, dated 24 November 2006, the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held, if necessary. When questioned again as a victim, the applicant stated, inter alia, that he remembered that police officer G. had hit his head against the wall and started punching him “ in the kidneys ” ( as stated in a decision to terminate the proceedings of 4 January 2007).",
"26. The most recent decision to terminate the proceedings for lack of the elements of a crime under Article 286 § 3 (a) of the Criminal Code in the acts of police officers G., Ku. and B. was taken on 1 April 2007. The investigator concluded that the applicant ’ s allegations had been refuted by police officers G. and K., who stated that the applicant had hit his own head against the wall; by the record of his surrender and confession and the forensic medical report of 15 February 2006, in that the applicant ’ s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface. It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant ’ s participation were carried out.",
"C. The applicant ’ s trial",
"1. First instance",
"27. At a preliminary hearing held by the Sosnogorsk Town Court on 13 April 2006 the applicant ’ s counsel requested that the record of the applicant ’ s surrender and confession of 26 August 2005, on which the prosecution relied, be excluded from evidence pursuant to Article 75 § 2 (1) of the CCrP, as it had been obtained in the absence of a lawyer. The Town Court dismissed the request.",
"28. At his trial, the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer Z. as a result of physical and psychological coercion by the police officers; in particular, police officer G. had beaten him “ in the kidneys and liver ” and his head had been struck against the wall so that he had fainted. He had not been informed of his right under Article 51 of the Constitution not to give self ‑ incriminating statements, as that part of the record had been added by police officers at a later stage. The applicant asserted, in particular, that on the night of the robbery he had arrived at the commercial centre, by car and at B. ’ s request, and had towed B. ’ s car until its engine started, without knowing anything about the robbery. Two months later B. had offered him gold jewellery, allegedly belonging to B. ’ s acquaintance, for sale. The applicant had returned some of the jewellery to B. and kept the rest for himself. He had understood from police officer Z. that the gold which he had received from B. had been stolen from the Sosnogorsk district commercial centre. He had therefore told Z. about the gold he had kept at his home.",
"29. The applicant ’ s co-defendant Zh. pleaded his innocence, asserting that he had given self-incriminating statements as a result of his ill ‑ treatment by police officers, in particular by G., who had allegedly beaten him up, kicked him and burned his fingers with a cigarette; he also stated that after his arrest on 26 August 2005 he had seen the applicant, on his knees and bleeding, at the police station.",
"30. The applicant ’ s co-defendant B. admitted before the trial court that he had committed the robbery together with a certain Ch., and stated that the applicant and Zh. were innocent. In particular, B. stated that on the night of the robbery he had called the applicant, asking him for help because his car had broken down; the applicant had arrived by car as requested, towed B. ’ s car (with the stolen property inside) until the engine started and then left without knowing anything about the robbery. Two or three months later, since he was experiencing difficulties with storing and selling the stolen property, B. had asked the applicant to look after the gold jewellery and to buy some of it if he wished. The applicant had agreed. B. also stated that he had not given any self ‑ incriminating statements during the preliminary investigation, in spite of the physical violence used against him by the police officers, in particular by G.",
"31. The applicant ’ s wife stated, among other things, that on the day of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched. He had had an abrasion on his head, his lip was burst and his nose was swollen.",
"32. Police officer Z., examined by the trial court as a witness, stated that he and other police officers had arrested the applicant and his two co ‑ defendants after B. ’ s girlfriend had reported their involvement in the robbery. At the police station he had talked to the applicant about the robbery several times. The applicant had confessed, named his accomplices and expressed his readiness to surrender the stolen gold. Z. had suggested that the applicant write a statement of his surrender and confession. The applicant had agreed and Z. had asked his subordinates to prepare the necessary document. No violence or threats had been used against the applicant.",
"33. Police officer G. stated that after the applicant ’ s arrest he had taken the applicant to the police station. The applicant had been taken to Z. ’ s office and later Z. had requested G. to obtain from the applicant a statement of his surrender and confession. The applicant had written down his statement and signed it. G. had not used any violence against the applicant. G. had come out of his office to register the statement with an officer on duty, while the applicant had stayed with police officer K. On returning to his office, G. had seen the applicant suddenly jump to his feet and strike his head against the wall. The applicant had fallen to his knees and started bleeding, “ probably from his nose ”. K. had given him a towel and asked whether he needed a doctor. The applicant had answered negatively. Z. had then taken the applicant to his office again.",
"34. Police officer K. stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees. K. had wanted to call a doctor but the applicant had refused. He had given the applicant a towel because the applicant was bleeding. K. denied any violent behaviour on the part of the police officers.",
"35. Investigator A. stated that she had investigated the robbery case and had given instructions ( отдельные поручения ) to the police officers in the criminal investigation unit of the Sosnogorsk police department. She had not instructed them to question the applicant or to collect a statement of his surrender and confession. Police officer G. had obtained the applicant ’ s statement of his surrender and confession as a result of the applicant ’ s free will. When questioning the applicant as a suspect (on 27 August 2005, see paragraph 14 above ) she had noticed his injuries and asked if he had needed medical assistance, but he had refused.",
"36. The applicant ’ s counsel maintained before the trial court that the applicant ’ s statement of his surrender and confession, which he had retracted on the following day when questioned for the first time in the presence of a lawyer, should be declared inadmissible evidence. She noted that investigator A. had drawn up the record of the applicant ’ s arrest as a suspect on 26 August 2005. However, for unknown reasons she had not questioned him as a suspect on the same day. Instead, the police officers had obtained the statement of his surrender and confession on their own initiative, without any such instruction from the investigator. They had done so using psychological and physical coercion, as confirmed, inter alia, by the statements of Zh. and the applicant ’ s wife (see paragraphs 2 9 and 3 1 above), the certificate from detention facility IZ-11/2 (see paragraph 16 above) and the forensic medical expert report of 7 September 2005 (see paragraph 19 above). Furthermore, his confession statement had been obtained in the absence of a lawyer. Under Article 142 § 1 of the CCrP, a statement of one ’ s surrender and confession was meant to be voluntary. Therefore, if obtained from a person arrested on suspicion of having committed a crime, any such statement should be subjected to particular scrutiny. Its voluntary nature was ensured through procedural guarantees under Articles 46 ( “The suspect ” ) and 51 ( “ Compulsory participation of counsel for the defence” ) of the CCrP. Otherwise, such a confession statement should be declared inadmissible evidence in accordance with Article 75 § 2 (1) of the CCrP.",
"37. In its judgment of 6 December 2007 the Town Court held that the applicant ’ s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated. It relied on the statements by the police officers, denying any wrongdoing on their part (see paragraphs 32-34 above), the investigative authority ’ s most recent decision to terminate the criminal proceedings against them which, as the Town Court noted, had been taken in accordance with the Code of Criminal Procedure and had not been revoked or quashed (see paragraph 26 above), and a report from an internal police inquiry which had dismissed the applicant ’ s allegations of ill ‑ treatment.",
"38. The Town Court held that it had critically assessed the applicant ’ s statements at the trial and concluded that they represented the position of the defence, in that they were aimed at evading criminal responsibility. Those submissions had been refuted by his and Zh. ’ s statements of surrender and confession, as well as by the statements by the following witnesses: B. ’ s girlfriend, who had provided hearsay evidence about the applicant ’ s involvement in the robbery; five police officers who had participated in the applicant ’ s and his co-defendants ’ arrest or the operative follow-up, in particular Z., G., and K.; investigator A., in charge of the robbery case; Z.A., who had denied seeing the applicant in the porch of his building on the night of the robbery (where, according to her former boyfriend who had been heard by the court as a witness for the defence, she had spent time that evening ), and her mother Z.E., who had stated that Z.A. had not gone out after 9 p.m.; and Kh., who had been an attesting witness during the search at the applicant ’ s home during which certain items were seized.",
"39. The Town Court held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh., along with statements by the victims, the prosecution witnesses and other evidence. It found that on 12 April 2005 B., Zh. and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre. According to the roles agreed on between them, the applicant had remained on guard in his car outside the commercial centre, while B. and Zh. had entered while the centre was still open and had hidden there. During the night they had attacked a woman guard and tied her up. Then they had forced locks and stolen property, in particular jewellery and mobile phones. The applicant had helped them to carry the stolen property out and load it into his car, in which they all had left.",
"40. The Town Court convicted the applicant of high-value theft with unlawful entry, committed in conspiracy by a group of persons, and sentenced him to six years ’ imprisonment. In sentencing the applicant the Town Court took into account information about his personality, in particular that he had received positive character references from his places of residence and employment, and that he had no criminal or administrative offences record. It considered his statement of surrender and confession, the fact that he had two minor children and that he had voluntarily surrendered the stolen gold jewellery, as well as his health condition, as mitigating circumstances. B. and Zh. were convicted of robbery with the use of violence and sentenced to nine years ’ and eight and a half years ’ imprisonment respectively. The Town Court granted the victims ’ civil actions and ordered the applicant and his co-defendants to pay 396,800 Russian roubles (RUB) jointly in respect of pecuniary damage. The victims ’ remaining claims were to be examined in separate civil proceedings.",
"2. Appeal",
"41. The applicant and his counsel appealed against the judgment. His counsel argued, inter alia, that the trial court had based its judgment on inadmissible evidence, in particular the statement of the applicant ’ s surrender and confession of 26 August 2005, which had been given by him as a result of ill-treatment by the police officers and in the absence of a lawyer. She reiterated the arguments put forward before the trial court (see paragraph 3 6 above).",
"42. On 6 June 2008 the Supreme Court of the Komi Republic examined the case on appeal. It endorsed in full the trial court ’ s decision concerning the admissibility of the statement of the applicant ’ s surrender and confession. It held, in particular, that the statement had been obtained in accordance with the Code of Criminal Procedure. Under Article 142 § 1 of that Code, a statement of surrender and confession was a voluntary statement by a person about a crime committed by him. It had not therefore been necessary to have an instruction from an investigator in order to obtain it. The law did not provide for any additional requirements to such a statement, save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information. Therefore, the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant ’ s right to defend himself. He had been informed of his right under Article 51 of the Constitution, as confirmed by his signature on the record of his surrender and confession.",
"43. The Supreme Court of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime. They had all denied any wrongdoing. It had been established that, having written his confession, the applicant had suddenly jumped to his feet and hit his head against a wall. The Supreme Court also referred to the most recent decision by the investigative authority, dated 1 April 2007, by which the criminal proceedings against the police officers had been terminated (see paragraph 26 above), and to the results of the internal police inquiry dismissing the applicant ’ s allegations of ill ‑ treatment (see paragraph 37 above). It upheld the judgment.",
"3. Supervisory review",
"44. The applicant ’ s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant ’ s surrender and confession in her requests for supervisory review of the case before the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation. The former court rejected it for the same reasons as before (decision of a judge of the Supreme Court of the Komi Republic of 5 September 2008 dismissing the request, as endorsed by the President of that court on 27 October 20 08 ).",
"45. The Supreme Court of the Russian Federation similarly stated that the applicant ’ s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law, and that the allegation of the applicant ’ s ill ‑ treatment at the hands of the police was unsubstantiated, as shown through its examination by the trial court which had heard the police officers, particularly Z., G. and B. (decision of a judge of the Supreme Court of the Russian Federation of 22 December 2008 dismissing the request for supervisory review, as endorsed by a Deputy President of the Supreme Court on 10 March 2009 )."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Rights of suspects in police custody",
"46. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “CCrP”) provides that suspects have the right of access to a lawyer from the moment of their de facto arrest and that statements given by them without a lawyer and not confirmed in court are inadmissible evidence. It states, in particular, as follows:",
"Article 46. The Suspect",
"“ 4. The suspect shall have the right:",
"...",
"( 3) to avail himself or herself of the advice of defence counsel from the moment stipulated by ... and Article 49 § 3 (3) of the present Code, and to have a private and confidential visit from him or her before the suspect ’ s first interrogation ... ”",
"Article 49. Counsel for the Defence",
"“ 3. Counsel for the defence shall take part in the criminal case:",
"...",
"( 3) as from the moment of the actual arrest of the person suspected of having committed a crime ...”",
"Article 51. Compulsory participation of counsel for the defence",
"“1. The participation of counsel for the defence in criminal proceedings shall be compulsory if:",
"(1) the suspect or accused has not waived his right to legal assistance pursuant to the procedure established by Article 52 of the present Code ... ”",
"Article 75.",
"“ 2. The following constitutes inadmissible evidence:",
"(1) Statements by the suspect or accused given in the absence of the counsel for the defence in the course of pre-trial proceedings in the criminal case, ... which have not been confirmed in court ... ”",
"47. Article 51 of the Constitution of the Russian Federation provides that no one may be required to incriminate himself or herself, his or her spouse or close relatives.",
"48. Article 48 § 2 of the Constitution states that everyone arrested, detained or accused of a crime shall enjoy the right to have the assistance of a defence counsel from the moment of arrest, detention or bringing charges, respectively.",
"49. In its ruling no. 11 ‑ P of 27 June 2000 the Constitutional Court of the Russian Federation held as follows:",
"“2. ...",
"Under the Constitution of the Russian Federation, the right in question [under Article 48 § 2 of the Constitution] is directly applicable and the assistance of (defence) counsel does not depend on the formal recognition of the individual as a suspect or an accused person. Nor does it depend on the moment when any procedural act by an investigation authority, inquiry authority or a prosecutor ’ s office is carried out; furthermore, the Constitution of the Russian Federation does not empower the federal legislature to impose restrictive conditions on the exercise of this right.",
"Article 48 § 2 of the Constitution of the Russian Federation clearly specifies the essential characteristics of an individual who actually needs legal assistance because his constitutional rights, primarily the right to liberty and security of the person, are restricted, including in the case of criminal prosecution seeking to establish his guilt. Thus, the constitutional right to have the assistance of (defence) counsel extends to the individual from the moment of actual restriction of his rights.",
"Within the literal meaning of the provisions enshrined in Articles 2, 45 and 48 of the Constitution of the Russian Federation, the right to qualified legal assistance is guaranteed to any person, irrespective of his or her formal status in the proceedings and whether or not he or she is officially declared to be detained or under suspicion, if duly authorised authorities have subjected the person to measures that actually restrict the individual ’ s liberty and security of person, including freedom of movement. These measures involve keeping a person in custody by officials, forcibly bringing or delivering him or her to the inquiry or investigation office, holding incommunicado, and any other actions that significantly restrict the liberty and security of the person.",
"...",
"3. ...",
"Insofar as the constitutional right to have the assistance of (defence) counsel may not be restricted by federal law, terms such as ‘ detained ’, ‘ accused ’ and ‘ bringing charges ’ are to be construed within their constitutional meaning rather than within the more narrow meaning ascribed to them in the Code of Criminal Procedure of the RSFSR. Ensuring the exercise of this constitutional right necessitates consideration of both the status in proceedings and the actual situation of the person facing public criminal prosecution. Moreover, the very fact of criminal prosecution and, accordingly, accusatory activity undertaken against a particular person may be proven by a decision to institute criminal proceedings against the person, investigative actions in his or her regard (search, identification, interrogation, etc.), and other measures aiming at his exposure or indicating the existence of suspicions against him or her ( inter alia, by informing the individual, under Article 51 § 1 of the Constitution of the Russian Federation, of the right not to incriminate himself or herself). In so far as these actions are intended to establish facts and circumstances proving the guilt of the prosecuted person, he or she should be given an immediate opportunity to seek assistance of (defence) counsel. This creates the conditions enabling him or her to properly understand his or her rights and responsibilities, any charges brought against him or her, and, consequently, to defend himself or herself effectively. These conditions also ensure that the evidence obtained during the investigation will not later be found inadmissible (Article 50 § 2 of the Constitution of the Russian Federation).",
"...",
"Pursuant to Article 14 of the International Covenant on Civil and Political Rights and Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, access to legal assistance is seen as an indispensable guarantee of the right to defence in case of criminal prosecution. These international instruments establish that everyone who is arrested or detained is to be informed promptly of the reasons for his arrest and any charge against him, is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and is entitled to a fair and public hearing and to defend himself in person or through legal assistance of his own choosing.”",
"By the above ruling the Constitutional Court declared Article 47 § 1 of the RSFSR Code of Criminal Procedure of 27 October 1960 (in force until 1 July 2002) unconstitutional. It found that by providing for the right to legal assistance from the moment that the arrest record or the detention order was read out to the suspect, rather than from the moment of arrest as guaranteed by Article 48 of the Constitution, Article 47 § 1 made the exercise of the right to legal assistance dependent on the discretion of the prosecuting authorities.",
"The Constitutional Court later referred to the above ruling and stressed the validity of its findings in that ruling for other situations where operative ‑ search measures, aimed at the establishment of facts and circumstances incriminating the relevant person, such as an interview, had been conducted (decisions no. 327-O of 9 June 2005, no. 473-O of 20 December 2005 and no. 924-O-O of 15 November 2007).",
"B. Surrender and confession in criminal proceedings",
"50. The CCrP provides as follows:",
"Article 74. Evidence",
"“2. The following shall be admitted as evidence:",
"(1) statements by the suspect and accused;",
"(2) statements by the victim and witness;",
"(3) findings and statements by the expert;",
"(4) real evidence;",
"(5) records of investigative and judicial acts;",
"(6) other documents.”",
"Article 140. Events giving rise to and grounds for opening a criminal case",
"“1. A criminal case may be opened in the event of:",
"( a) a complaint of a crime;",
"( b) surrender and confession;",
"...",
"2. Sufficient information disclosing the elements of a crime shall serve as a ground for opening a criminal case.”",
"Article 141. Complaint of a crime",
"“1. A complaint of a crime can be made in a verbal or written form.",
"...",
"3. A verbal complaint of a crime shall be entered into a record, which is to be signed by the complainant and by the person taking the complaint. The record must contain data about the complainant and his or her identification documents.",
"...",
"6. The complainant shall be warned about his or her criminal liability for perjure pursuant to Article 306 of the Criminal Code of the Russian Federation, which is noted in the record and signed by the applicant. ”",
"Article 142. Surrender and confession",
"“1. A statement of surrender and confession ( заявление о явке с повинной ) is a voluntary statement by a person about a crime which he or she has committed.",
"2. A statement of surrender and confession can be made in a written, as well as a verbal form. A verbal statement shall be taken and entered into a record under the procedure provided for by paragraph 3 of Article 141 of the present Code.”",
"51. The Supreme Court of the Russian Federation regards a statement of surrender and confession, provided for by Article 142 of the CCrP, as evidence, in the form of “other documents” provided for by Article 74 § 2 (6) of the CCrP (see, for example, the Supreme Court ’ s judgments on appeal no. 89-o04-29sp of 16 July 2004, no. 50-o05-15 of 23 June 2005, no. 46-O09-3 of 5 March 2009, no. 48-O09-39 of 25 May 2009 and no. 209 ‑ O10-3SP of 20 May 2010 ).",
"52. The Supreme Court has stated that the law does not require access to a lawyer for a statement of surrender and confession to be made and that, therefore, the objection on that ground to the admissibility of such a statement as evidence should fail (see the Supreme Court ’ s judgments on appeal no. 56-o04-77 of 23 March 2005, no. 67 ‑ O06 ‑ 5 of 29 June 2006, no. 29 ‑ O08 ‑ 18SP of 15 December 2008 and no. 201 ‑ FGE13 ‑ 2SP of 25 July 2013 ).",
"53. The Supreme Court has therefore ruled that the provisions of Article 75 § 2 (1) of the CCrP (see paragraph 46 above) did not apply to a statement of surrender and confession ( see the Supreme Court ’ s judgment on appeal no. 50-o04-82sp of 23 March 2005 ).",
"54. In respect of the allegation that Article 142 and/or other provisions of the CCrP provided a basis for the admission in evidence of statements of surrender and confession obtained at pre-trial proceedings in the absence of a lawyer, the Constitutional Court of the Russian Federation reiterated the findings in its ruling no. 11 ‑ P of 27 June 2000 (see paragraph 4 9 above) and stated that Article 49 § 3 of the CCrP defined the moment from which counsel for the defence took part in the criminal proceedings (see paragraph 46 above). The constitutional right to legal assistance arose from the moment when the relevant person ’ s rights were actually restricted, for example when measures which effectively restricted his or her rights to liberty and security, including his or her freedom of movement, were undertaken by competent authorities ( decisions on inadmissibility no. 1280 ‑ O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338-O of 24 June 2014, no. 2380 ‑ O of 23 October 2014 and no. 2787 ‑ O of 23 December 2014 with a reference to earlier decision no. 1522-O-O of 17 November 2009 ). Therefore, the provisions of Articles 91 and 92 of the CCrP, which regulated the grounds for and the procedure of the suspect ’ s arrest, did not deprive the arrested person of the right to legal assistance from the moment of his or her actual arrest or other restrictions of his or her rights (decisions on inadmissibility no. 234-O of 20 June 2006, no. 245 ‑ O ‑ O of 20 March 2008, no. 1579-O-O of 17 November 2011 and no. 1280 ‑ O of 17 July 2012 ).",
"55. The Constitutional Court noted that Article 142 of the CCrP did not contain provisions which would authorise the restriction of the rights to liberty and security, including the freedom of movement, of a person making a statement of surrender and confession. For this reason Article 142 of the CCrP did not provide for the presence of a lawyer. However, it did not exclude the right of a person to make such statement in the presence of a lawyer, either ( see decisions on inadmissibility no. 326-O of 14 October 2004, no. 1280-O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338 ‑ O of 24 June 2014, no. 2380-O of 23 October 2014 and no. 2787-O of 23 December 2014 ). Article 142 did not contain norms which would be inconsistent with the general provisions of the criminal procedural law concerning, in particular, the requirements for and the procedure to examine the admissibility of evidence. Those general provisions were to apply if a statement of surrender and confession was read out at the trial (decisions on inadmissibility no. 326-O of 14 October 2004, no. 391-O of 20 October 2005, no. 285-O-O of 22 March 2011, no. 1448 ‑ O ‑ O of 20 October 2011, no. 1901-O of 18 October 2012 and no. 2173-O of 25 September 2014).",
"56. Under the Criminal Code of the Russian Federation, the act of surrender and confession is considered a mitigating circumstance in sentencing (Article 61). The Plenary Supreme Court of the Russian Federation indicated in its Ruling no. 2 of 11 January 2007 that if a statement by an individual concerning a crime committed by him or her was used, together with other evidence, in securing his or her conviction, that statement might be considered as a statement of surrender and confession – a mitigating circumstance for the purpose of sentencing – even if the person altered his statements in the course of the investigation or trial. The fact that a person made a statement about a crime following his or her arrest on suspicion of having committed that crime did not exclude considering such a statement as a mitigating circumstance in sentencing.",
"C. Procedure for re-opening of criminal proceedings",
"57. Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows:",
"“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.",
"...",
"4. New circumstances are:",
"...",
"(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:",
"(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;",
"(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;",
"...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"58. The applicant complained that he had been subjected to inhuman and degrading treatment in police custody in order to make him confess to the crime. He relied on Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"59. The Government acknowledged that the applicant ’ s rights guaranteed by Article 3 of the Convention had been violated and that the domestic remedies had been ineffective in his case.",
"60. The Government further stressed that the domestic legal system did, in principle, provide for effective remedies for victims of police ill ‑ treatment. Firstly, there was an effective criminal-law remedy, notably a criminal investigation into the allegations of ill-treatment by police officers which could lead to the conviction of police officers. The Government referred to and submitted a series of judgments delivered by courts in 2008 ‑ 2010 in different regions (the Astrakhan, Kemerovo, Lipetsk, Moscow, Rostov and Ryazan regions and the Republics of Tatarstan and Khakasiya), in which police officers from criminal investigation units and other police staff had been convicted under Article 286 of the Criminal Code of crimes which could qualify as violations of Article 3. The Government submitted further that investigative authorities ’ acts and decisions, in particular refusals to open a criminal case, were open to judicial review under Article 125 of the Code of Criminal Procedure. Lastly, civil judicial remedies existed in order to complain about decisions and acts of State organs and their officials and to request compensation for the damage caused.",
"A. Admissibility",
"61. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The applicant ’ s ill-treatment in police custody",
"62. The Court notes that the Government have acknowledged a violation of Article 3 in the present case. It has no reason to hold otherwise.",
"63. After the time spent in police custody the applicant was found to be injured (see paragraphs 13, 16 and 19 above). No plausible explanation was provided for his injuries. The investigative authority ’ s finding that the applicant had committed an act of self-harm was based on the account of events put forward by the police officers, notably G., who, in the applicant ’ s submissions, was the officer who had used physical violence against him, and K., who had allegedly been in the room with G. when the applicant ’ s injuries were sustained. The investigative authority ’ s failure to verify the two versions of the origin of the applicant ’ s injuries by using such investigative means as confrontations and identification parades, as pointed out repeatedly by the supervising authorities (see paragraphs 22 and 25 ‑ 26 above), casts doubt on the unconditional preference it gave to the police officers ’ version. Furthermore, the finding of self ‑ harm does not accord with the forensic medical expert ’ s conclusion as to the origin of the injuries, which excluded the possibility that the injuries could have been caused as a result of a fall, that is by a single impact from a flat surface, as was also noted by the supervising authority (see paragraph 22 above), and suggested that they could have been caused by blows from blunt hard objects with a limited contact surface. Lastly, no explanation was provided by the investigative authority for the injuries to the applicant ’ s back.",
"64. Having regard to the detention facilities ’ medical records and the forensic medical expert ’ s conclusions, the injuries to the applicant ’ s face, back and knees are consistent with his allegations that he was punched and kicked and that his head was struck against the wall with such force that he lost consciousness. These injuries, unaccounted for within the domestic proceedings and acknowledged by the Government, must therefore be considered attributable to a form of ill ‑ treatment for which the authorities were responsible.",
"65. Strong inferences can be drawn from the evidence to the effect that the ill ‑ treatment occurred during the applicant ’ s questioning by the police officers about the circumstances of the crime of which he was suspected and that, as a result, the applicant signed the statement of his surrender and confession, which he retracted on the following day as soon as he was given access to a lawyer. The ill-treatment can be regarded as having caused the applicant, who was in a state of particular vulnerability, considerable fear, anguish and mental suffering and driven him to act against his will. Having regard to the nature and circumstances of the ill ‑ treatment, the Court finds that it amounted to inhuman and degrading treatment (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII; Gäfgen v. Germany [GC], no. 22978/05, § § 87-93, ECHR 2010; Nasakin v. Russia, no. 22735/05, § § 51-55, 18 July 2013; and Mostipan v. Russia, no. 12042/09, § § 58-61, 16 October 2014).",
"66. There has therefore been a violation of Article 3 under its substantive head.",
"2. The State ’ s obligation to conduct an effective investigation",
"67. The applicant, who was found to be injured after the time spent in police custody, stated during his first questioning as a suspect on the following day, in the presence of a lawyer, that he had been subjected to ill ‑ treatment by police officers in order to obtain his confession to the crime (see paragraph 14 above). Three days later he reiterated his complaint before the judge who was examining the investigator ’ s application for his detention on remand (see paragraph 15 above). On the same day his counsel lodged an application with the investigative authority requesting prosecution of those responsible for the applicant ’ s ill ‑ treatment (ibid.). On the following day the applicant ’ s injuries were again recorded on his arrival at the pre-trial detention facility (see paragraph 16 above).",
"68. The authorities were thus made promptly and sufficiently aware of the applicant ’ s allegation that he had been subjected to ill-treatment in police custody. The allegation was supported by the detention facilities ’ records of his injuries and confirmed by forensic medical evidence, obtained as a result of the very first steps undertaken by the investigative authority charged with the pre ‑ investigation inquiry into his alleged ill ‑ treatment (see paragraph 19 above). The allegation was therefore credible and gave rise to an obligation on the State to carry out an effective investigation.",
"69. The Government have acknowledged that no such investigation took place. The Court, as with regard to the violation of Article 3 in its substantive aspect (see paragraphs 62 and 66 above), has no reason to hold otherwise.",
"70. Indeed, the authorities did not open a criminal case until 5 December 2005, that is, more than three months after they had been made sufficiently aware of the applicant ’ s alleged ill-treatment. The prosecutor instituted criminal proceedings on the grounds that the applicant ’ s version of his ill ‑ treatment by the police officers, which was not excluded on the facts, could only be verified by way of a full investigation for which it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (see paragraph 22 above). According to the prosecutor, the pre ‑ investigation inquiry had not reliably established the circumstances in which the applicant had sustained his injuries. In particular, it was not possible in the course of the pre ‑ investigation inquiry to carry out an identification parade, which would have enabled the applicant to identify the police officer who had assaulted him – even though the applicant “would most likely [have been] able to identify [ him ] ” – or a confrontation between them (ibid.).",
"71. The Court has previously found in Lyapin v. Russia that in the context of the Russian legal system, if credible allegations of treatment proscribed under Article 3 of the Convention are made, then it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which – according to the Government (see paragraph 60 above) – constitutes an effective remedy for victims of police ill ‑ treatment under domestic law. It is not possible to establish within the framework of a “pre ‑ investigation inquiry” the facts of a case, particularly the identity of persons who could have been responsible for the ill-treatment. A “pre ‑ investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court. Confronted with numerous cases of this kind against Russia, the Court has held that it was bound to draw stronger inferences from the mere fact of the investigative authority ’ s refusal to open a criminal investigation into credible allegations of serious ill ‑ treatment in police custody. This was indicative of the State ’ s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, § § 129 and 132 ‑ 36, 2 4 July 2014 ).",
"72. The above findings are fully applicable to the present case. On the facts, the Court notes that the information which the prosecutor assessed as sufficient for bringing criminal proceedings on 5 December 2005 was in the investigative authority ’ s hands shortly after the applicant ’ s ill ‑ treatment. Hence, nothing can explain the three - month delay in commencing the criminal investigation into the applicant ’ s complaint. The Court considers that such a delay could not but have had an adverse impact on the investigation, undermining the investigative authority ’ s ability to secure the evidence concerning the alleged ill ‑ treatment (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001; Kopylov v. Russia, no. 3933/04, § 137, 29 July 2010; Eldar Imanov and Azhdar Imanov v. Russia, no. 6887/02, § 99, 16 December 2010; and Shishkin v. Russia, no. 18280/04, § 100, 7 July 2011).",
"73. The ensuing proceedings were marred by the investigative authority ’ s failure to carry out a complete investigation, as was repeatedly pointed out by its own hierarchy (see paragraph 25 above). They ended with the decision to terminate them on the same ground – lack of elements of a crime in the acts of the police officers – and for the same reason – the statements by police officers ’ G. and K. submitting that the applicant had hit his own face against the wall – as in its initial refusal to open a criminal case and the previous decisions to terminate the proceedings, each of which was set aside as unlawful and unfounded. There is no indication in the materials before the Court that even such obvious investigative measures as identification parades and confrontations, the importance of which was twice noted by the investigators ’ superiors, were conducted in the course of the investigation (see paragraphs 22 and 25 above). Equally, the forensic medical expert ’ s conclusion that the applicant ’ s injuries could not have been caused by a single impact from a flat surface, to which the investigative authority ’ s attention was drawn in the decision to open a criminal case (see paragraph 22 above), was ignored (see paragraph 26 above).",
"74. The Court finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the applicant ’ s credible assertion of ill ‑ treatment at the hands of the police, as well as the lack of any meaningful process during the flawed investigation conducted thereafter, show that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 - IV, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998-VIII). They thus failed in their obligation to conduct an effective investigation into the applicant ’ s ill ‑ treatment in police custody.",
"75. By failing in its duty to carry out an effective investigation, the State fostered the police officers ’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill ‑ treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013).",
"76. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural head also.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"77. The applicant complained that his right to a fair trial, guaranteed by Article 6 of the Convention, had been infringed by the use of the confession extracted from him as a result of ill-treatment in police custody, when he had no access to a lawyer. The Court will examine his complaint under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"... ”",
"78. The Government contested that argument. They pointed out that the statement of the applicant ’ s surrender and confession was not the sole evidence on which his conviction was based. His guilt had been sufficiently proved by other evidence in the case.",
"79. In reply to the Court ’ s questions concerning the relevant domestic law, the Government submitted that while police officers carrying out operative ‑ search activities had no right to question an arrested person ( проводить допрос задержанного ), they could obtain from a suspect a statement of his surrender and confession ( получить явку с повинной ). The surrender and confession was regulated by Articles 141 and 142 of the Code of Criminal Procedure, which did not provide for the relevant person ’ s access to counsel for the defence. According to the Code of Criminal Procedure, Article 75 § 2 (1) of the Code was not applicable to the statement of surrender and confession. However, self-incriminating statements given in the absence of a lawyer by a person who later became a suspect or accused were to be declared inadmissible evidence, if subsequently retracted, pursuant to that provision. The Government did not submit information in support of their observations about the domestic courts ’ practice in respect of Article 75 § 2 (1) of the Code, despite being invited to do so by the Court.",
"A. Admissibility",
"80. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. General principles",
"81. The Court reiterates that its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, this being primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140).",
"82. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX; and Gäfgen, cited above, § 163).",
"83. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected, in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Panovits v. Cyprus, no. 4268/04, § 82, 11 December 2008). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (ibid.). Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47 ).",
"84. The right to silence and the privilege against self ‑ incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 ‑ IX ).",
"85. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II).",
"2. Application of the above principles in the present case",
"86. The Court observes that the police reopened criminal proceedings into the unsolved robbery of commercial premises on the basis of information reported by Ms R. about, inter alia, the applicant ’ s alleged involvement in the robbery. The applicant was taken to the police station and interviewed by police officers about the circumstances of the crime. He was subjected to ill ‑ treatment (see paragraph 66 above) and confessed to having participated in the crime. His confession was documented by police officer G. in the statement recording his surrender and confession. That record states that the applicant had been informed of Article 51 of the Constitution of the Russian Federation (see paragraph 10 above). Once given access to a lawyer on the following day during his first questioning as a suspect by the investigator, the applicant retracted his confession statement, asserting that it had been given as a result of his ill ‑ treatment by the police officers. He consistently repudiated his confession throughout the ensuing proceedings, in which he was represented by a lawyer. He was able to challenge the admissibility of the statement as evidence at his trial on two grounds, which he has now raised before this Court. Firstly, he asserted that the confession statement had been extracted from him as a result of his ill ‑ treatment by the police officers, and, secondly, that it had been obtained without him having access to a lawyer. The trial court regarded his confession as admissible evidence, considering that the allegations of his ill ‑ treatment were unsubstantiated, that access to a lawyer had not been required by domestic law and that the applicant had been informed of the right not to incriminate himself. In convicting the applicant the trial court relied to a significant extent on his confession (see paragraphs 38-39 above). In the appeal and the supervisory review proceedings the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation endorsed the trial court ’ s findings in full.",
"87. The Court notes, firstly, that no assessment was made by the trial court of the medical and witness evidence submitted by the applicant to support his objection on the ground of duress (see paragraph 36 above). In relying on the police officers ’ statements denying any wrongdoing on their part and on the internal police inquiry dismissing the applicant ’ s allegations, the court attached no significance to the police officers ’ obvious interest in the applicant ’ s allegations of ill ‑ treatment being rejected. Overall, the trial court ’ s reasoning for its dismissal of the applicant ’ s objection displays a failure to conduct its own independent assessment of all the relevant factors with a view to ascertaining whether there were reasons to exclude from evidence the applicant ’ s confession statement, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial, and instead indicates its reliance on the decision of the investigative authority (see paragraphs 37 ‑ 38 above), which the Court has found to have been based on an investigation which did not meet the Article 3 requirements (see paragraph 74 above). This lack of a careful assessment of the quality of the impugned evidence ( the applicant ’ s confession statement ) and the circumstances in which it was obtained, which cast doubts on its reliability and accuracy, was not remedied by the higher courts. In consequence, the applicant ’ s confession obtained as a result of his inhuman and degrading treatment (see paragraph 65 above) was used by the domestic courts as evidence of the applicant ’ s guilt. In so doing, the domestic courts legalised the police officers ’ efforts to use a “statement of surrender and confession” to document the applicant ’ s confession, obtained under duress, after his apprehension on suspicion of having committed a crime, contrary to the meaning envisaged for such a statement in Article 142 of the Code of Criminal Procedure (voluntary statement by a person about a crime he or she has committed, see paragraph 50 above).",
"88. The Government, which acknowledged that the applicant had been subjected to ill-treatment in breach of Article 3, did not dispute that the applicant ’ s confession statement had been obtained as a result of such treatment. Rather, they argued that the confession was not the sole evidence on which the applicant ’ s conviction was based and that other evidence adduced by the prosecution would in any event have secured the applicant ’ s conviction.",
"89. The Court reiterates that within the Convention system it has long been recognised that the right under Article 3 not to be subjected to torture or to inhuman or degrading treatment or punishment enshrines one of the fundamental values of democratic society. It is an absolute right, permitting of no exception in any circumstances (see Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001 ‑ XI). Therefore, the use in criminal proceedings of evidence obtained in breach of Article 3 always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see Jalloh, cited above, § 99 ).",
"90. Confession statements obtained in violation of Article 3 are inherently unreliable. Furthermore, their use in criminal proceedings is often the reason for which the acts of ill ‑ treatment are committed in the first place. Taking such statements into consideration in finding a person guilty is incompatible with the guarantees of Article 6 (see Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). The admission of confession statements obtained in violation of Article 3 renders the proceedings as a whole automatically unfair, irrespective of the probative value of the confession statements and irrespective of whether their use was decisive in securing the defendant ’ s conviction (see Gäfgen, cited above, §§ 166 and 173, and El Haski v. Belgium, no. 649/08, § 85, 25 September 2012 ).",
"91. The Court has already found in paragraph 65 above that the applicant ’ s confession was obtained as a result of the inhuman and degrading treatment to which he was subjected in police custody. The Government ’ s objection that the applicant ’ s confession was not the sole or decisive evidence should therefore be dismissed.",
"92. The Court notes further that before giving the “ statement of surrender and confession” the applicant was not informed of the right to legal assistance. No justification – other than compliance with the domestic law – was offered by the domestic courts for the applicant ’ s initial lack of access to a lawyer in police custody. According to the domestic courts in the applicant ’ s case, no prior access to a lawyer was required in order to make a statement of surrender and confession. The subsequent use of such a statement in evidence at the trial could not therefore be contested on the ground of the lack of legal advice (see paragraphs 42 and 44-45 above). Such a position complied with the Supreme Court ’ s case ‑ law on the issue (see paragraphs 51-53 and 5 6 above).",
"93. The Court reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. Early access to a lawyer at the investigation stage of the proceedings serves as a procedural guarantee of the privilege against self ‑ incrimination and a fundamental safeguard against ill-treatment, given the particular vulnerability of the accused at that stage of the proceedings (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 263, 21 April 2011; and Martin v. Estonia, no. 35985/09, § 79, 30 May 2013). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz, cited above, § 55). A systematic restriction of the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself for a violation of Article 6 to be found (see Salduz, cited above, § 56; and Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009).",
"94. The Court observes that irrespective of whether the applicant confessed before or after his arrest was formally recorded (see paragraphs 10 and 12 above), it follows from the facts of the case, which are not disputed by the Government, and in particular from the police officers ’ statements, that at the time of his confession the applicant was being held in police custody for the sole reason that he was suspected of having participated in the robbery, that suspicion being based on information reported to the police by Ms R. (see paragraphs 6-8 and 32-33 above). The police officers were therefore obliged to provide him with the rights of a suspect, access to a lawyer being one such right (see, mutatis mutandis, Brusco v. France, no. 1466/07, §§ 46 ‑ 55, 14 October 2010 ). This would also correspond to the domestic criminal procedural - law requirement that the right of access to a lawyer arises from the moment of actual arrest (see paragraph 46 above), which accords with the Constitutional Court ’ s interpretation of the right to legal assistance as arising from the moment of actual restriction of one ’ s constitutional rights, in particular the right to liberty and security, and not from the moment of the formal recognition of one ’ s status as a suspect or one ’ s detention (see paragraphs 48-49 and 54- 55 above).",
"95. The absence of a domestic - law requirement of access to a lawyer for a statement of surrender and confession was used as leeway to circumvent the applicant ’ s right as a de facto suspect to legal assistance and to admit his statement of surrender and confession, obtained without legal assistance, in evidence to establish his guilt. This has irretrievably prejudiced the rights of the defence. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings and the possibility of challenging the admissibility of the evidence at issue at the trial and on appeal could remedy the defects which had occurred during police custody.",
"96. Even assuming that the applicant had been informed of the constitutional right not to incriminate himself before making his confession statement, as was found by the domestic courts, he cannot be said to have validly waived his privilege against self-incrimination in view of the Court ’ s finding that he had given his confession statement as a result of his inhuman and degrading treatment by the police. In any event, no reliance can be placed on the mere fact that the applicant had been reminded of his right to remain silent and signed the relevant record (see Salduz, cited above, § 59; and Płonka v. Poland, no. 20310/02, § 37, 31 March 2009), especially because the record cited Article 51 of the Constitution without explaining its meaning. Furthermore, since the lack of access to a lawyer in the present case resulted from the systemic application of legal provisions, as interpreted by the domestic courts, and the applicant was not informed of the right to legal assistance before signing the statement of his surrender and confession, the question of the waiver of the right to legal assistance is not pertinent.",
"97. The Court concludes that the domestic courts ’ use in evidence of the statement of the applicant ’ s surrender and confession obtained as a result of his ill-treatment in violation of Article 3 and in the absence of access to a lawyer has rendered the applicant ’ s trial unfair.",
"98. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"99. Lastly, the applicant complained, relying on Article 13 of the Convention, about other alleged violations of his rights in the criminal proceedings against him, such as delays in delivering the judgment and in scheduling the appeal hearing, changes in the composition of the bench and the dismissal of his applications for supervisory review of the case. Having regard to all the material in its possession and in so far as these complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"100. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"101. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage.",
"102. The Government considered the above sum excessive.",
"103. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 20,000, plus any tax that may be chargeable.",
"B. Costs and expenses",
"104. The applicant also claimed RUB 150,000 for the legal costs incurred at the preliminary investigation and before the domestic courts in the criminal proceedings against him and EUR 3,000 for those incurred before the Court.",
"105. The Government contested the claims on the ground that there was no proof that they had actually been incurred.",
"106. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court is satisfied that the legal-services contract concerning the domestic proceedings and the legal-services contract concerning the proceedings before the Court, concluded between the applicant and his lawyer, created legally enforceable obligations to pay the amounts indicated therein. It notes, however, that although remedying the violations of Article 6 found by the Court in the present case was the largest part of the legal work in the domestic proceedings, the amount indicated in the former contract also covered other legal work, not relevant to the violations of the Convention found. It also notes that not all of the complaints submitted by the applicant were declared admissible by the Court. Regard being had to the above considerations, the documents in its possession and the criteria in its case-law, the Court considers it reasonable to award the sum of EUR 2,500 for legal costs in the domestic proceedings and the sum of EUR 2,800 for the proceedings before the Court, plus any tax that may be chargeable on the total amount, to be paid directly into the bank account of the applicant ’ s representative.",
"C. Default interest",
"107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
209 | Dvorski v. Croatia | 20 October 2015 (Grand Chamber) | This case concerned the refusal by the police to allow a lawyer hired by the applicant’s parents to represent him while he was being questioned at a police station on suspicion of multiple murder, armed robbery and arson. The applicant confessed to the offences after signing a power of attorney authorising another lawyer to represent him. | The Court held that there had been a violation of Article 6 §§ 1 and 3 of the Convention. It found in particular that the police had not informed the applicant either of the availability of the lawyer hired by his family or of the lawyer’s presence at the police station. During questioning the applicant had confessed to the offences with which he was charged, and his confession had been admitted in evidence at his trial. The Court observed that the national courts had not properly addressed that issue, and in particular had failed to take the necessary measures to ensure a fair trial. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicant was born in 1986 and lives in Rijeka.",
"A. Background to the case",
"11. On 13 March 2007, between 2 and 3.30 a.m., three murders, an armed robbery and an arson attack were committed in Vežica, a residential neighbourhood of Rijeka.",
"12. Later that day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department ( Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka – “Rijeka Police Station”).",
"13. At about 1 p.m. the same day, the applicant was brought to Rijeka Police Station for questioning. Blood samples were taken from him for DNA analysis and the police searched his flat and through his mobile phone and seized a number of his personal items.",
"14. The applicant was kept at Rijeka Police Station until his formal arrest at 9.50 a.m. on 14 March 2007 in connection with the above offences.",
"B. The applicant’s questioning by the police on 14 March 2007",
"1. The applicant’s version of events",
"15. According to the applicant, at about 10.40 a.m. on 14 March 2007 his mother, who lived and worked in Italy, called a lawyer, G.M., and asked him to represent the applicant. G.M. came to Rijeka Police Station at 10.45 a.m. but the police officers refused to let him see the applicant. G.M. remained in Rijeka Police Station until midday. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney, and pushed him out of the police station. G.M. immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made a note in their case file. The Rijeka County Court was also immediately informed.",
"16. At around 1.30 p.m. the applicant’s father signed a power of attorney in favour of G.M. to defend his son. A legal trainee, B.P., then tried to submit the power of attorney to the police but was told to leave.",
"17. At some time between 3 and 3.30 p.m. G.M. again tried to contact the applicant in Rijeka Police Station but was denied access to him.",
"18. At about 3.30 p.m. G.M. reported the events described above to the Chief of the Primorsko-Goranska Police Department, V., who made a note regarding their conversation.",
"19. The applicant was never informed by the police that G.M. had been instructed to represent him and had come to Rijeka Police Station.",
"20. According to the applicant, he had repeatedly asked the police officers in Rijeka Police Station to contact G.M., but was told that they had tried but there had been no answer.",
"2. The Government’s version of events",
"21. According to the Government, at 6 p.m. on 14 March 2007 the applicant agreed to be represented by a lawyer, M.R., a former chief of the Primorsko-Goranska Police. He arrived at Rijeka Police Station at about 7.45 p.m. The Government state that the applicant chose M.R. from a list of lawyers of the Rijeka Bar Association presented to him by the police and that the questioning of the applicant began at 8.10 p.m. According to the record of the applicant’s questioning, the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was M.R.",
"3. Extract of the record of the applicant’s questioning",
"22. The relevant part of the record of the police questioning of the applicant by Officers T.K. and Z.N. on 14 March 2007, which commenced at 8.10 p.m. and concluded at 11 p.m., reads as follows:",
"“I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with [M.]R. I have decided to give my evidence.”",
"The record then gives the applicant’s description of the relevant events concerning the charges against him: he confessed that on the night of 13 March 2007, together with L.O. and R.Lj., he had gone to Đ.V.’s flat in Vežica, where he had taken a certain amount of money from Đ.V. and then shot and killed him, his girlfriend and his father. He had then set their flat on fire in order to destroy any trace of his having been there. He also stated that he had promised L.O. and R.Lj. that he would confess to the crimes and take the blame himself if they were arrested.",
"The final part of the report reads:",
"“I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and am signing it as truthful.”",
"Every page of the record of the applicant’s statement is signed by him.",
"C. Questioning by an investigating judge on 15 March 2007 at 1.15 p.m.",
"23. The relevant part of the written record of the applicant’s questioning by an investigating judge reads as follows.",
"“In response to a question by the court regarding the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel M.R., and also a power of attorney signed by his parents in favour of the lawyer G.M., the suspect answers:",
"‘I wish to sign the power of attorney for G.M., a lawyer from Rijeka, and I am hereby withdrawing the power of attorney for M.R.’",
"...",
"In response to a question by defence counsel as to whether he had instructed [M.]R. to represent him, the suspect answers:",
"‘No, I did not. I specifically told the police officers that I wanted G.M. to represent me.",
"I do not know anything about G.M. coming to the police premises.’",
"...",
"In response to a further question by defence counsel as to whether he was under the influence of drugs, the accused answers:",
"‘I was under the influence of alcohol and drugs.’",
"...”",
"24. On 16 March 2007 G.M. applied to the investigating judge for the Rijeka County State Attorney and all his deputies to be removed from the case. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads as follows.",
"“About thirty minutes ago, counsel for the defence learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., in the presence of the ‘defence lawyer’ M.R.",
"On the same date, at around 10.40 a.m., the mother of Ivan Dvorski, Lj.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. At around 10.45 a.m., [G.M.] went to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and also did not tell [Ivan Dvorski] that his mother had instructed a lawyer. [G.M.] remained in Rijeka Police Station until 12 noon. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney and pushed him out of the police station. [G.M.] immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made an official note in their case file.",
"Therefore, at around 12.30 p.m. the Rijeka County State Attorney already knew that [G.M.] had been retained by [Ivan Dvorski’s] mother and that he had not been able to contact his client.",
"The [Rijeka] County Court was also immediately informed.",
"At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit the power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted.",
"At around 3 to 3.30 p.m. [G.]M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been instructed and had come to Rijeka Police Station.",
"At around 3.30 p.m. [G.M.] informed the Chief of the Primorsko-Goranska Police Department ..., V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been retained and was also never asked whether he wanted to be represented by the lawyer instructed by his family.",
"Besides that, ever since he had been brought to Rijeka Police Station, [Ivan Dvorski] had asked on a number of occasions for [G.M.] to be contacted but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They showed that he had a high level of alcohol and drugs in his blood.",
"Between 1 p.m. on 13 March 2007 and around 7 p.m. on 14 March 2007 (these time periods are only known to [G.M.] from informal sources because he had no access to the Rijeka County State Attorney’s case file), the defendant was not given any food.",
"It is clear that, although all these facts were known to the Rijeka County State Attorney, D.H., he disregarded them and, although present in person, allowed the defendant to be questioned in the presence of a lawyer who had [neither been requested by him] nor ... instructed by his family. This amounts to unlawfully extracting a confession, in breach of Article 225 § 8 of the Code of Criminal Procedure, given that the Rijeka County State Attorney, since about 12.30 p.m. [on 14 March 2007], had known who the [applicant’s chosen] defence lawyer was.",
"On the same date [G.M.] sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...”",
"D. Investigation",
"25. On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.Lj. on suspicion of having committed the three aggravated murders and arson in Vežica on 13 March 2007.",
"26. On 23 March 2007 the State Attorney General of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) dismissed G.M.’s request for the removal of the Rijeka County State Attorney on the ground that there were no reasons for disqualifying him from dealing with the case. The relevant part of the decision reads as follows.",
"“... a statement from D.H., the Rijeka County State Attorney, has been obtained.",
"In his statement the Rijeka County State Attorney states that on 14 March 2007 at about 10 a.m. he was on the premises of the Rijeka Police Station together with his colleague, I.B.-L., where they were informed of the evidence thus far obtained, and all the evidence that remained to be taken in connection with the events in issue. He came back to the County State Attorney’s premises at about 1 p.m., when the deputies, D.K. and I.B., informed him that G.M. had come to the premises of the County State Attorney and made a complaint regarding the conduct of the police officers of the Rijeka Police Station in refusing him access to Ivan Dvorski, even though he had been given an oral authorisation by Ivan Dvorski’s mother, [who had called him from] Italy. The lawyer had not presented any proof of his authority to represent Ivan Dvorski or of his telephone conversation with Ivan Dvorski’s mother. He had not been able to make contact with the suspect’s father, having been unable to find him since he had no fixed address.",
"After [the Rijeka County State Attorney, D.H.], had left the premises of the County State Attorney, he had had no further information regarding the actions of the above-mentioned lawyer.",
"At 5 p.m. [D.H.] returned to the Rijeka Police Station in connection with the case in issue. There, an inspector of the Primorsko-Goranska Police Department told him that Ivan Dvorski was willing to submit his defence in the presence of his defence counsel, M.R., and it was agreed that the questioning would start at about 7 p.m. M.R. arrived at the Rijeka Police Station at 6.40 p.m. and together they went to the room where Ivan Dvorski was. There, the suspect signed the power of attorney in favour of M.R. and agreed that [M.R.] would be present during his questioning by the police. After that, at the request of M.R., the suspect was allowed to talk to the lawyer in private. After ten minutes they all moved to another room, where the suspect, in the presence of his lawyer, the County State Attorney, two police inspectors and a typist, put forward his defence, which was recorded in writing, and all this lasted for more than three hours. After that they all signed the written record [of questioning] and he left the room with M.R.”",
"27. On 26 March 2007 the Rijeka County State Attorney dismissed the request for the removal of his deputies on the same grounds. The relevant part of that decision reads as follows.",
"“A Rijeka County Deputy State Attorney, I.B.-L., stated that she had not participated at all in the questioning of Ivan Dvorski by the police, and that she had no knowledge of that stage of the proceedings and, in particular, that she had had no information regarding Ivan Dvorski’s representation by or choice of defence counsel during his questioning. She only knew that on 14 March 2007 G.M. had come to the premises of the Rijeka County State Attorney, where she had met him. He had made a complaint regarding the choice of defence counsel for Ivan Dvorski. He had said that he was Ivan Dvorski’s defence counsel, having been authorised by his mother in a telephone conversation. She [I.B.-L.] commented that that could not constitute a valid power of attorney ...",
"The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that the only information they had regarding the conduct of the police came from [G.]M., who wanted to made a complaint regarding the conduct of police officers in connection with the choice of lawyer to represent and defend Ivan Dvorski. ... D.K. drew up an official note about this matter and presented it to G.M. The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that [G.M.] had mentioned a power of attorney given to him by Ivan Dvorski’s mother, who lived in Italy and with whom G.M. had talked on the telephone. The Deputies told him that a power of attorney given by telephone could not be considered valid. They had no knowledge of any other acts, including the obtaining of a power of attorney from Ivan Dvorski’s father ...”",
"28. On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer be representing the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal-aid lawyer, Ms Maroševac- Čapko, to represent the applicant.",
"29. During the investigation, evidence was taken from a number of witnesses, and a report on the inspection of the crime scene and the search and seizure, as well as medical, fire and ballistics expert reports, were obtained by the investigating judge.",
"E. Proceedings on indictment",
"30. On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.Lj. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica.",
"31. The applicant, represented by Ms Maroševac- Čapko, lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the ground that it contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. He made no comments regarding his legal representation during the police questioning.",
"32. The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007.",
"33. On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses.",
"34. Another hearing was held on 11 October 2007, at which the trial court examined video-recordings of the crime-scene investigation and the autopsies of the victims.",
"35. Further hearings were held on 12 November 2007 and 11 January 2008, at which the trial court heard evidence from nine witnesses.",
"36. At a hearing on 14 January 2008, two experts in toxicology, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objections in respect of their evidence. At the same hearing four other witnesses gave evidence.",
"37. At a hearing on 15 January 2008, the trial court heard evidence from another expert in toxicology and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report in respect of the applicant.",
"38. At the same hearing the defence lawyer asked for a handwriting expert’s report to be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police.",
"39. The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant’s request to that effect. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police.",
"40. On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007.",
"41. Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant’s lawyer challenged the veracity of these findings and applied to have another report commissioned, but the application was rejected by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused.",
"42. On 2 April 2008 the applicant asked the Rijeka County Court to call the lawyer, G.M., as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers.",
"43. On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a certain degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions.",
"44. At a hearing on 26 June 2008, the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence. The trial court also dismissed the applicant’s request for G.M. to be heard as a witness, on the ground that all the relevant facts had already been established.",
"45. At the same hearing one of the accused, R.Lj., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.Lj. claimed, however, that he had not personally participated in the killings, because he had panicked and had left the flat when he had heard fighting.",
"46. After R.Lj. had given his statement, the Rijeka County Deputy State Attorney amended the indictment. The applicant was charged with three counts of aggravated murder, armed robbery and arson, and L.O. and R.Lj. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment.",
"47. On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.Lj. He stated that after the applicant had got into a fight with Đ.V. he had heard gunshots, after which he had panicked and left the flat.",
"48. At the same hearing the parties submitted their closing arguments. The applicant’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court took a different view, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.",
"49. On 30 June 2008 the Rijeka County Court found the applicant guilty of the three counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court first examined the applicant’s confession against those of the other co-accused, L.O. and R.Lj., and found that his confession was essentially consistent with the evidence provided by them. In finding the applicant guilty, the trial court also assessed his confession against the evidence from the case file.",
"50. The trial court relied in particular on the search and seizure records and photographs depicting L.O. holding the same type of handgun as had been used for the murders. On the basis of the witness statements and the recording of a nearby video surveillance camera, the trial court concluded that the applicant and the other co-accused had gone to Đ.V.’s flat on the date in question. Furthermore, the ballistics reports and the crime-scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained on the basis of the fire, ballistics, toxicology and DNA reports. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy reports, the evidence of the pathologist provided at the trial, the crime-scene report and the witness statements about the gunshots that had been heard in Đ.V.’s flat. Furthermore, as to the arson charge, the trial court examined the material from the crime-scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire had occurred.",
"51. As regards the applicant’s questioning by the police and the request made by the defence to hear evidence from G.M. (see paragraphs 42 and 44 above), the Rijeka County Court noted as follows.",
"“The first accused, Ivan Dvorski, confessed to the criminal offences of robbery, aggravated murder of Ɖ. V., M. Š. and B.V. ..., exactly as is stated in the operative part of this judgment, to the police and in the presence of a defence lawyer. He later tried to contest that statement, claiming that he had not instructed the defence lawyer, M.R., that he had told the police officers that he wanted G.M. as his lawyer, that at the time he had been taken to the police station he had been under the influence of alcohol and drugs, and so on. However, this defence is not acceptable. The written record of arrest shows that Ivan Dvorski was arrested on 14 March 2007 at 9.50 a.m. at the Rijeka Police Station, and [M.]R., in favour of whom Ivan Dvorski signed the power of attorney, came to the police station on 14 March 2007 at 7.45 p.m. The written record of the questioning of the then suspect Ivan Dvorski shows that M.R. was informed at 6.15 p.m. and that the questioning started at 8.10 p.m. Besides the officers of the Rijeka Police, a typist and the defence lawyer of the then suspect Ivan Dvorski, the County State Attorney was also present during the questioning. The introductory part of the written record [indicates] that the then suspect Ivan Dvorski clearly stated that he had chosen and authorised M.R. to act as his defence lawyer and had consulted with him, after which he decided to give his statement. The written record is properly signed by the persons present. The first accused Ivan Dvorski had read the written record before signing it. Thus, the above shows without doubt that the contentions of Ivan Dvorski that he had not retained M.R. as his lawyer are unfounded. During the trial, at the request of Ivan Dvorski’s defence, a handwriting expert gave her opinion regarding the signature of Ivan Dvorski on the written record of his questioning by the police. The expert opinion proved beyond any doubt that the contested signature was that of Ivan Dvorski. The panel accepts such findings in their entirety; the findings were further explained at a hearing by the expert Lj.Z. Her findings were given in an objective, impartial and professional manner. Therefore, the questioning of Ivan Dvorski by the police was carried out in compliance with the provisions of the Code of Criminal Procedure.",
"...",
"The request made by [Ivan Dvorski’s] defence to call G.M. as a witness ... was dismissed as irrelevant, since the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [record] the time at which [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – [M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by Ivan Dvorski, [who] at the time [was] only a suspect.”",
"52. The applicant lodged an appeal against the first-instance judgment with the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 6 November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in the presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for the removal of the Rijeka County State Attorney and all his deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his detention in police custody. The relevant part of the applicant’s appeal reads as follows.",
"“The statement given by the first accused to the police was unlawfully obtained, for the following reasons. When the first accused was brought to the Rijeka Police Station his defence rights were seriously infringed. However, during the trial this infringement was ignored. On 14 March 2007, the first accused’s mother and then also his now late father retained G.M. as his defence lawyer before the police, after he had been arrested. However, G.M. was not allowed access to the accused, and subsequently informed the relevant authorities thereof, but they ignored this. G.M. therefore lodged an action in the Rijeka Municipal Court in respect of an unlawful act, as well as a request for the removal of the Rijeka County State Attorney and all his deputies. In that request he alleged that the first accused had not been given any food by the police from 13 March 2007 at 1 p.m., when he had been brought to the Rijeka Police Station, until he had agreed to be represented by M.R. on 14 March at about 7 p.m. so as to give a self-incriminating statement, which was in violation of Article 225 § 8 of the Code of Criminal Procedure. Because of that, the defence asked for G.M. to be examined [at the trial] since he had knowledge about the questioning of the first accused by the police.”",
"53. On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement to the police, that court noted:",
"“... The lawfulness of [the statement given to the police] was not put in doubt by the appellant’s complaints that M.R. was not his lawyer and that his lawyer was G.M., who had been retained by his father and mother on the same day, or by the appellant’s complaints that he had been denied food in the period between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 until he had agreed to instruct M.R. to act as his lawyer, since according to the record of his arrest ..., the appellant was arrested at 9.50 a.m. on 14 March 2007 and the lawyer M.R. arrived [at the police station] at 6.45 p.m. on the same day.”",
"54. The applicant lodged a further appeal against the judgment of the Court of Appeal with the Supreme Court on 14 September 2009, reiterating his previous arguments. The relevant part of the appeal reads as follows.",
"“The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from 1 p.m. on 13 March 2007 until he agreed to be represented by M.R. at 7 p.m. on 14 March 2007 had no bearing on the lawfulness of the evidence [(the record of his questioning)] because the written record of his arrest showed that he had been arrested on 14 March 2007 at 9.50 a.m. and that M.R. had arrived on the same day at 6.45 p.m. The Record of Attendance F/949, which is in the case file, shows that the first accused was brought to the police station on 13 March 2007 at 2 p.m. and was kept there. He was arrested the next day, as found by the first-instance court. However, it is not true that M.R. came to the police station at 6.45 p.m.: he came at 7.45 p.m., which shows that the allegations of the first accused are true. That fact could have been verified by the evidence of G.M., who represented the first accused during the investigation ...”",
"55. On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court pointed out that the record of the applicant’s statement suggested that he had chosen M.R. to represent him during police questioning and that M.R. had provided him with adequate legal advice. The Supreme Court also noted that there was nothing in the case file to indicate that the applicant had been ill-treated or forced to confess. The relevant part of the judgment reads as follows.",
"“The appellant erroneously argues that the first-instance court committed a grave breach of criminal procedure, contrary to Article 367 § 2 of the Code of Criminal Procedure, in basing his conviction on the statement he gave to the police in the presence of a defence lawyer, which [in the appellant’s view] constitutes unlawfully obtained evidence for the purposes of Article 9 § 2 of the Code of Criminal Procedure, and that the record of his questioning as a suspect by the police (in the presence of a defence lawyer) should thus have been excluded from the case file. In so doing, the appellant challenges the reasoning of the second-instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by M.R. These arguments of the appellant were refuted by the second-instance court on the basis of all the formally established information contained in the record of [his] questioning in the presence of a lawyer on 14 March 2007.",
"This Court notes that [the complaint] regarding the question of the presence of a lawyer [during the questioning], as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation, relates to two objections. The first objection concerns the restriction of access to the lawyer of [the defendant’s] own choosing, and the second objection relates to the pressure exerted on the suspect through the denial of food (Article 225 § 8 of the Code of Criminal Procedure), which, according to the appeal, eventually made him accept legal representation by the lawyer imposed on him, M.R., although his parents had already engaged the services of G.M. on the morning of 14 March 2007.",
"It is to be noted that during the police criminal investigation a number of persons with a background of drug abuse, and with links to the victim Đ.V., were arrested, in particular from the neighbourhood of Gornja Vežica, and it was in the course of this action that the accused, Ivan Dvorski, was also apprehended. Only when a probable cause was established that the accused could have been the perpetrator of the offences in issue was he arrested on 14 March 2007 at 9.50 a.m.",
"At the same time the father of the accused, who was in Croatia, whereas the accused’s mother was in Italy, was informed [of the arrest] by the police at 2.10 p.m., which shows that from that moment the father of the accused (after a telephone conversation with his mother) could have engaged the services of a lawyer for the accused, for which he would most certainly have needed some time. In such circumstances, this Court finds that the parents of the accused could not have already signed a power of attorney for the lawyer of the accused’s choice by 1.30 p.m. on the day in question.",
"The other information from the record of the accused’s arrest and from the record of his questioning by the police shows that on 14 March 2007, as is indicated by the record of the arrest, the accused was brought to the Rijeka Police Station and, as is apparent from the record of Ivan Dvorski’s questioning by the police, the defence lawyer, M.R., was informed at 6.15 p.m. and came to the police station at 7.45 p.m. The questioning itself commenced at 8.10 p.m. and ended at 11 p.m., with a break between 10.35 p.m. and 10.38 p.m.",
"It should be emphasised that in the introductory part of the record [of his questioning] the suspect, Ivan Dvorski, expressly stated that he had chosen M.R. as his defence lawyer and had signed the power of attorney in favour of him, and the record of the questioning shows that the defence lawyer had almost half an hour for consultation with the suspect before the questioning, in which time he was able to advise him of his rights.",
"Thus, the relevant fact which follows from the formal procedural action described in the record of the suspect’s questioning is that the chosen lawyer came at least half an hour before the questioning commenced, and in the consultation with [the suspect] before the questioning he was able to give [the suspect] genuine legal advice as his chosen lawyer.",
"It should also be noted that the essence of the suspect’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights, which is why the beginning, conduct and end of this formal [procedural] action is fully registered in the record [of the questioning].",
"This is why all arguments to the contrary, as set out in the appeal against the second-instance judgment, and particularly those relating to the need to question G.M. as the second concurrent lawyer of [the suspect’s] choosing, have no support in the content of the formal record of the suspect’s questioning of 14 March 2007, because the record contains formally registered information regarding the contact with the chosen lawyer, the time the chosen lawyer came into the Rijeka Police Station, the time the questioning of the suspect commenced, the period in which a short break took place, and the time the procedural action finished, all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content.",
"However, irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of Article 177 § 5 of the Code of Criminal Procedure, the general thrust of the defence, as well as the substance of the defence as regards particular acts, and the confession, were provided voluntarily by the suspect, and his chosen lawyer was most certainly unable to have any influence on this, which at the same time rules out the possibility of any mental pressure being exerted on the suspect, as well as his subsequent arguments regarding the lawyer having been imposed on him during the police investigation. On the contrary, the suspect’s defence rights were fully secured, as required under the Constitution and the Code of Criminal Procedure.",
"There is therefore no breach of Article 367 § 2 in conjunction with Article 9 § 2 of the Code of Criminal Procedure. The refusal of the request to have the record of the suspect’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [during the questioning] was the lawyer of the suspect’s free choice, and this also follows from the signed power of attorney in favour of the lawyer in question, who protected the suspect’s rights during the questioning. Accordingly, the refusal of the defence’s request did not have any bearing on the lawfulness and correctness of the judgment. At the same time, it was not necessary to question the new chosen lawyer as a witness and, for the reasons set out above, the facts of the case were not insufficiently or erroneously established, as was argued in the defendant’s appeal against the second-instance judgment.”",
"56. The applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2010. He complained, inter alia, that he had been ill-treated while in police custody and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. He reiterated his arguments from his previous appeals and added:",
"“It is also important to stress that at the session of the Supreme Court as the court of third instance, held on 17 December 2009, the defence indicated that the applicant had been brought to the police station at 2 p.m. on 13 March 2007, and that that fact was shown in the Record of Attendance F/949, which was in the case file. The defence asked the panel [of the Supreme Court] to have a look at that record. However, after a brief examination of the case file it was established that the document in question could not be found, and that it would be looked at later. However, the judgment of the Supreme Court, acting as a third-instance court, shows that the document had [still] not been found ...”",
"57. On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated while in police custody."
] | [
"II. RELEVANT LAW",
"A. Domestic law",
"58. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) read as follows.",
"Article 23",
"“No one shall be subjected to any form of ill-treatment ...”",
"Article 29",
"“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.",
"In the event of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right:",
"...",
"– to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law,",
"...”",
"59. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005 and 71/2006) provide as follows.",
"Aggravated MurderArticle 91",
"“A sentence of imprisonment of not less than ten years or long-term imprisonment shall be imposed on anyone who:",
"...",
"(6) murders another in order to commit or to cover up another criminal offence,",
"...”",
"RobberyArticle 218",
"“1. Anyone who, by using force against a person or threatening a direct attack on a person’s life or limb, takes away movable property from another with intent to unlawfully appropriate it shall be punished by imprisonment of one to ten years.",
"2. If the perpetrator commits the robbery as a member of a group or a criminal organisation, or if, during the robbery, a weapon or dangerous instrument is used, the perpetrator shall be punished by imprisonment of three to fifteen years.”",
"Endangering Life and Property through Dangerous Acts or MeansArticle 263",
"“1. Anyone who endangers the life or limb of others or property of considerable value by [starting a] fire ... shall be punished by imprisonment of six months to five years.",
"...",
"3. If the criminal offences referred to in paragraphs 1 and 2 of this Article are committed at a place where a number of people are gathered ... the perpetrator shall be punished by imprisonment of one to eight years.",
"...”",
"Aggravated Criminal Offences against Public SafetyArticle 271 § 1",
"“If, as a result of the criminal offence referred to in Article 263 § 1 ... of this Code, serious bodily injury to another or extensive material damage has been caused, the perpetrator shall be punished by imprisonment of one to eight years.”",
"60. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows.",
"Article 62",
"“1. A defendant may be represented by a lawyer at any stage of the proceedings, as well as before their commencement when prescribed by this Act. ...",
"...",
"4. The defendant’s legal guardian, spouse or common-law spouse, linear blood relative, adoptive parent or adopted child, sibling or foster parent may instruct a lawyer for the defendant, unless the defendant expressly refuses this.",
"...",
"6. A defence lawyer must present his power of attorney to the authorities conducting the proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case this must be entered in the record.”",
"Article 177 § 5",
"“ In the course of the investigation, the police authorities shall inform the suspect pursuant to Article 225, paragraph 2, of this Code. At the request of the suspect, the police authorities shall allow him to instruct a lawyer and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. ... If the circumstances indicate that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association ... If the suspect does not instruct a lawyer or if the requested lawyer fails to appear within the time allowed, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings.”",
"Article 225 § 2",
"“The accused shall be informed of the charges and the grounds of suspicion against him, as well as of his right to remain silent.”",
"61. The Code of Criminal Procedure, as amended in 2011, provides as follows.",
"Article 502",
"“...",
"2. The provisions concerning the reopening of criminal proceedings shall be applicable in the case of a request for revision of any final court decision on account of a final judgment of the European Court of Human Rights by which a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found.",
"3. A request for the reopening of proceedings on account of a final judgment of the European Court of Human Rights may be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.”",
"Article 574",
"“...",
"2. If prior to the entry into force of this Code a decision was adopted in respect of which a legal remedy is available pursuant to the provisions of legislation relevant to the proceedings [in which the decision was adopted], ... the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code.",
"3. Articles 497 to 508 of this Code shall accordingly be applicable to requests for the reopening of criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003 and 115/2006).”",
"B. Relevant international law materials",
"Right of access to a lawyer of one’s own choosing during police custody",
"(a) Council of Europe",
"(i) Rules adopted by the Committee of Ministers",
"62. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:",
"“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”",
"63. Furthermore, Recommendation Rec(2006)2 of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules, adopted on 11 January 2006 at the 952 nd meeting of the Ministers’ Deputies, reads in so far as relevant as follows:",
"“ Legal advice",
"23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.",
"23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.",
"...",
"23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”",
"(ii) Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 4 to 14 May 2007",
"64. The relevant part of this report reads as follows.",
"“18. The majority of the persons interviewed by the delegation during the 2007 visit indicated that they had been informed of their right of access to a lawyer shortly after apprehension. However, as during previous visits, it appeared that many persons detained by the police had been allowed to exercise that right only some time after apprehension, in particular after a statement relating to a specific criminal offence had been obtained from them.",
"The fact that persons summoned to a police station for ‘ informative talks’ were still not allowed to have access to a lawyer is another matter of continuing concern to the Committee. Police officers interviewed by the delegation stated that, in the context of such ‘talks’, access to a lawyer could only be granted when a person was formally declared a suspect.",
"In the light of the above, the CPT again calls upon the Croatian authorities to take effective steps without any further delay to ensure that the right of access to a lawyer (including the right to have a lawyer present during police questioning) is enjoyed by all persons detained by the police, as from the very outset of their deprivation of liberty. This right should apply not only to criminal suspects but also to anyone who is under a legal obligation to attend – and stay at – a police establishment. If necessary, the law should be amended. Naturally, the fact that a detained person has stated that he wishes to have access to a lawyer should not prevent the police from beginning to question/interview him on urgent matters before the lawyer arrives. Provision could also be made for the replacement of a lawyer who impedes the proper conduct of an interrogation, on the understanding that such a possibility should be strictly circumscribed and subject to appropriate safeguards.",
"19. The CPT is concerned that, during the 2007 visit, the Croatian legal aid system appeared to display the same shortcomings as in 2003. In many instances, ex officio lawyers had had no contact with the detained persons until the first court hearing. In addition, in some cases, detained persons expressed scepticism about ex officio lawyers ’ independence from the police. The CPT reiterates its recommendation that the system of free legal aid to detained persons be reviewed, in order to ensure its effectiveness from the very outset of police custody. Particular attention should be paid to the issue of independence of ex officio lawyers from the police .”",
"(iii) Report to the Croatian Government on the visit to Croatia carried out by the CPT from 19 to 27 September 2012",
"65. The relevant part of this report reads as follows.",
"“19. The CPT’s delegation also received some allegations that detained persons had not been able to have access to a lawyer named by them, as the police officers considered that their only duty was to contact ex officio lawyers from the standard list rather than to contact a specific lawyer directly.",
"The CPT recommends that police officers be reminded that persons deprived of their liberty by the police have the right of access to a lawyer of their own choice; if a detained person requests access to a specific lawyer, then that contact should be facilitated; the ex officio lawyer from the standard list should be contacted only if the first-mentioned lawyer cannot be reached or does not appear .”",
"(b) United Nations",
"International Covenant on Civil and Political Rights",
"66. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"67. The applicant complained that he had not had a fair trial because he had not been allowed to be represented by G.M. during police questioning. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows.",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"...”",
"A. The Chamber’s conclusions",
"68. The Chamber concentrated its assessment on the issue of the applicant’s right to retain counsel of his own choosing and whether as a result of not having had that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice. It concluded, given that the applicant had never complained about the quality of the service provided by M.R., that the trial court had addressed the applicant’s complaint about his representation during police questioning; that the applicant’s confession was not central to the prosecution’s case; and that there was no evidence that any pressure had been exerted on the applicant to confess. Viewing the fairness of the proceedings as a whole, the Chamber found that the applicant’s defence rights had not been irretrievably prejudiced, nor had his right to a fair trial under Article 6 of the Convention been adversely affected. The Chamber held that there had been no violation of Article 6.",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"69. The applicant argued that when questioned by the police he had wanted G.M. to represent him since G.M. had been his lawyer in another case and the applicant trusted him. Furthermore, his parents had instructed G.M. to represent him. However, G.M. had been prevented by the police from seeing him.",
"70. The police had not presented him with a list of lawyers from which to choose his defence counsel. Another lawyer, M.R., had been called by the police and had been given only twenty-five minutes to confer with the applicant, which, given the complexity and seriousness of the charges against him, had clearly not been sufficient. M.R. had requested the police to commence questioning as soon as possible, given the late hour.",
"2. The Government",
"71. The Government argued that the applicant had already been aware at about 2 p.m. on 13 March 2007 that the police wished to question him in connection with three murders, armed robbery and arson, yet he had not attempted to contact G.M. before the questioning.",
"72. When arrested by the police at 9.50 a.m. on 14 March 2007, the applicant had at first waived his right to a lawyer. About eight hours later he had changed his mind and asked for a lawyer. The police had then presented him with a list of the Primorsko-Goranska County criminal defence lawyers, from which he had chosen M.R. of his own free will. Upon M.R.’s arrival, he had signed a power of attorney, without being coerced into doing so by the police. Therefore, M.R. had been the lawyer of the applicant’s own choosing. The Government stressed that these were the facts and that all the applicant’s other allegations, namely those concerning G.M., amounted to mere speculation.",
"73. The Government further submitted that there had been no evidence that G.M. had had a power of attorney on 14 March 2007, signed by either of the applicant’s parents. Even if G.M. had been the lawyer appointed by either of the applicant’s parents, he had not been the lawyer of the applicant’s own choosing since the applicant had chosen M.R. to represent him.",
"74. The applicant had been questioned by the police on numerous previous occasions (he had been arrested twenty-two times in the past), and had therefore been familiar with the situation in which he had found himself. On each of these occasions he had been represented by a different lawyer. Had he wished G.M. to represent him, he would have indicated that to the police. However, he had not done so.",
"75. The applicant had never complained to the domestic courts about the quality of the service provided by M.R. The Government argued that the domestic courts had provided adequate reasoning in response to the applicant’s complaint that he had not been represented by a lawyer of his own choosing during the questioning at the police station. The fact that the applicant had chosen to confess to the charges against him was not unusual, since the applicant had previously confessed to committing crimes with which he had been charged in different criminal proceedings, including on one occasion in the presence of G.M.",
"C. The Grand Chamber’s assessment",
"1. General principles",
"76. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is liable to be seriously prejudiced by an initial failure to comply with its provisions. As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia v. Switzerland, 24 November 1993, §§ 36-37, Series A no. 275, and Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008).",
"77. The Court has held that, in order to exercise his right of defence, the accused should normally be allowed to have the effective benefit of the assistance of a lawyer from the initial stages of the proceedings because national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings (see Salduz, cited above, § 52). The Court has also recognised that an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, and in most cases this can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure that the right of an accused not to incriminate himself is respected (ibid., § 54; see also Pavlenko v. Russia, no. 42371/02, § 101, 1 April 2010).",
"78. In such circumstances, the Court considers it important that from the initial stages of the proceedings a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (for more detailed reasoning, see Martin v. Estonia, no. 35985/09, § § 90 and 93, 30 May 2013 ). This follows from the very wording of Article 6 § 3 (c), which guarantees that “[e]veryone charged with a criminal offence has the following minimum rights: ... to defend himself ... through legal assistance of his own choosing ...”, and is generally recognised in international human rights standards as a mechanism for securing an effective defence to the accused. The Court emphasises that the fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance (see Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009, and paragraph 108 below).",
"79. Notwithstanding the importance of the relationship of confidence between a lawyer and his client, this right is not absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them ( see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237-B ). The Court has consistently held that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (ibid., § 29; see also Meftah and Others v. France [GC], nos. 32911/96 and 2 others, § 45, ECHR 2002 ‑ VII; Mayzit v. Russia, no. 63378/00, § 66, 20 January 2005; Klimentyev v. Russia, no. 46503/99, § 116, 16 November 2006; Vitan v. Romania, no. 42084/02, § 59, 25 March 2008; Pavlenko, cited above, § 98; Zagorodniy v. Ukraine, no. 27004/06, § 52, 24 November 2011; and Martin, cited above, § 90). Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant’s defence, regard being had to the proceedings as a whole (see Croissant, cited above, § 31; see also Meftah and Others, cited above, §§ 46-47; Vitan, cited above, §§ 58-64; Zagorodniy, cited above, §§ 53-55; and Martin, cited above, §§ 90-97).",
"80. Moreover, having regard to the considerations mentioned above, as the Court affirmed in its judgment in Salduz, in order for the right to a fair trial to remain “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz, cited above, § 55-57; see also Panovits v. Cyprus, no. 4268/04, § 66, 11 December 2008).",
"81. Unlike in Salduz, where the accused, who was being held in custody, had been denied access to a lawyer during police questioning, the present case concerns a situation where the applicant was afforded access to a lawyer from his first interrogation, but not – according to his complaint – a lawyer of his own choosing. In contrast to the cases involving denial of access, the more lenient requirement of “relevant and sufficient” reasons has been applied in situations raising the less serious issue of “denial of choice”. In such cases the Court’s task will be to assess whether, in the light of the proceedings as a whole, the rights of the defence have been “adversely affected” to such an extent as to undermine their overall fairness (see, for example, Croissant, cited above, § 31; Klimentyev, cited above, §§ 117-18; and Martin, cited above, §§ 96-97 ).",
"82. It is the latter test which is to be applied in the present case. Against the above background, the Court considers that the first step should be to assess whether it has been demonstrated in the light of the particular circumstances of each case that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings. In making its assessment, the Court may have regard to a variety of factors, including the nature of the proceedings and the application of certain professional requirements (see Meftah and Others, cited above, §§ 45-48, and Martin, cited above, § 90); the circumstances surrounding the designation of counsel and the existence of opportunities for challenging this (ibid., §§ 90-97); the effectiveness of counsel’s assistance (see Croissant, cited above § 31, and Vitan, cited above, §§ 58-64 ); whether the accused’s privilege against self-incrimination has been respected (see Martin, cited above, § 90); the accused’s age (ibid., § 92); and the trial court’s use of any statements given by the accused at the material time (see, for example, Croissant, cited above, § 31; Klimentyev, cited above, §§ 117-18; and Martin, cited above, §§ 94-95 ). It is further mindful that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Imbrioscia, cited above, § 38; Goddi v. Italy, 9 April 1984, § 30, Series A no. 76; and Salduz, cited above, § 55) and that in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation (see, inter alia, Delcourt v. Belgium, 17 January 1970, § 31, Series A no. 11; De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 48, Series A no. 77; Pavlenko, cited above, § 112; and Erkapić v. Croatia, no. 51198/08, §§ 80 ‑ 82, 25 April 2013 ). In cases where the accused had no legal representation, the Court also takes into consideration the opportunity given to the accused to challenge the authenticity of evidence and to oppose its use (see Panovits, cited above, § 82), whether the accused is in custody (see Salduz, cited above, § 60); whether such statements constituted a significant element on which the conviction was based and the strength of the other evidence in the case (see Salduz, cited above, § 57, and Panovits, cited above, §§ 76 and 82).",
"2. Application of these principles to the present case",
"(a) Was the applicant represented by a lawyer selected on the basis of his own informed choice?",
"83. On 14 March 2007, between 8.10 p.m. and 11 p.m., the applicant was questioned as a suspect by the police in the presence of a lawyer, M.R. (see paragraphs 21-22 above). The applicant’s statement to the police was used as evidence in the criminal proceedings against him (see, by contrast, Bandaletov v. Ukraine, no. 23180/06, §§ 60 and 68, 31 October 2013).",
"84. According to the Government, the only certain fact concerning the applicant’s representation during police questioning was that he had chosen of his own free will to be represented by M.R.; any allegations concerning the applicant’s wish to be represented by another lawyer, G.M., were pure speculation (see paragraphs 71-73 above).",
"85. The applicant’s allegations of coercion were declared inadmissible by the Chamber (see paragraph 73 of the Chamber judgment). The Court also notes the finding by the national courts, with the aid of a handwriting expert, that the applicant did indeed sign a power of attorney in favour of M.R. (see paragraph 40 above).",
"86. However, the Court observes that already on the morning of 14 March 2007 G.M. informed the Rijeka County Deputy State Attorneys, D.K. and I.B., of his unsuccessful attempt to contact the applicant, who was at Rijeka Police Station. An official note was made to that effect and the Rijeka County Court was also immediately informed (see paragraph 15 above). In his complaint, lodged on the afternoon of 14 March 2007 with the Chief of the Primorsko-Goranska Police Department, V., G.M. alleged that he had again tried to see the applicant between 3 p.m. and 3.30 p.m., but had again been told by the police to leave.",
"87. The day after the police questioning, when the applicant was brought before an investigating judge and asked who his lawyer was, he complained that he had not instructed M.R. to act as his lawyer and that he had expressly requested to be represented by G.M. during police questioning. He alleged that the police had never informed him that G.M. had tried to contact him. At that point, during his examination by the investigating judge, the applicant was no longer represented by M.R. but by G.M. (see paragraph 23 above).",
"88. In his further request of 16 March 2007 to the investigating judge, G.M. described the conduct of the police in detail and raised his objections in that respect (see paragraph 24 above).",
"89. Also, during the trial the applicant complained of the police’s refusal to allow G.M. to contact him on 14 March 2007 and asked the trial court to hear evidence from G.M., but his request was refused as irrelevant (see paragraph 44 above).",
"90. In all these submissions it was stated that G.M. had been instructed by the applicant’s parents to represent the applicant during police questioning and that the police had denied G.M. access to him even though he had actually come to the police station before the questioning of the applicant had started and before M.R. had been called to the police station. It was also alleged that, whereas on the morning of 14 March 2007 G.M. had only had oral authorisation from the applicant’s mother, that afternoon his legal trainee had presented a written power of attorney from the applicant’s father (see paragraph 16 above).",
"91. Thus, the applicant, through his own actions and those of his lawyer, clearly drew attention to the circumstances in which G.M. had attempted to contact him prior to his questioning by the police.",
"92. Against this background, the Court finds it sufficiently established that G.M. had been retained by one or both of the applicant’s parents, that he attempted on more than one occasion on 14 March 2007 to see the applicant in Rijeka Police Station and that the police officers there told him to leave, without informing the applicant that G.M. had come to see him. The Court is further satisfied that G.M.’s visits and requests to see the applicant at the police station occurred before the questioning of the applicant by the police had started.",
"93. Therefore, while the applicant had formally chosen M.R. to represent him during police questioning, that choice was not an informed one because the applicant had no knowledge that another lawyer, retained by his parents, had come to the police station to see him, presumably with a view to representing him.",
"(b) Were there relevant and sufficient reasons in the interests of justice to restrict the applicant’s access to G.M.?",
"94. The Court notes that the only reason cited by the Government for not allowing G.M. access to the applicant was the fact that G.M., in the Government’s view, did not have a proper power of attorney to represent him. At the same time, the Government did not dispute that the applicant was not informed at the relevant time that G.M. had been trying to see him at the police station.",
"95. The Court notes, however, that G.M. alleged before the national authorities that he had in fact been provided with a written power of attorney by the applicant’s parents on 14 March 2007. It would appear that these allegations have never been convincingly refuted in the domestic proceedings. Moreover, a written power of attorney was included in the case file compiled by the investigating judge on 15 March 2007, when the applicant was brought before him by the police.",
"96. The relevant domestic law is clear on the fact that a defence lawyer may be instructed by a suspect himself or by his relatives, including his parents (see Article 62 of the Code of Criminal Procedure, paragraph 60 above). In accordance with Article 62 § 6, a suspect may orally authorise a lawyer to act on his behalf during the proceedings. The purpose of Article 62 § 4, of the Code of Criminal Procedure, which provides that a defence lawyer may be instructed by the accused’s close relatives but that the accused may expressly refuse the lawyer chosen, cannot be achieved unless the accused is informed that his or her close relatives have instructed a lawyer to represent him or her. This, in any case, obliged the police to at least inform the applicant that G.M. had come to the police station and that he had been authorised by his parents to represent him. However, the police omitted to inform the applicant of this and also refused G.M. access to him.",
"97. That omission and refusal could hardly be explained by the fact that the applicant had later signed a power of attorney authorising M.R. to be present during his questioning by the police. As already mentioned, he had done so while being at all times unaware of G.M.’s attempts to assist him after being instructed by his parents.",
"98. Nor do the documents in the criminal case file reveal any justification for the omissions and actions of the police that resulted in the applicant being denied the opportunity to choose whether he wished to be assisted by G.M. during questioning. Moreover, according to a written record of the applicant’s oral evidence given to the investigating judge on 15 March 2007, the day after his arrest, the applicant stated that his chosen lawyer was G.M. and that the police officers had denied him access to G.M. He also said that he had not instructed M.R. as his lawyer (see paragraph 23 above).",
"99. In these circumstances, the Court is not convinced that the impugned restriction, resulting from the conduct of the police, of the applicant’s opportunity to designate G.M. to represent him from the initial phase of police questioning was supported by relevant and sufficient reasons (for instances of relevant and sufficient reasons, see Meftah and Others, cited above, § 45; Mayzit, cited above, § 68; Popov v. Russia, no. 26853/04, § 173, 13 July 2006; and also Zagorodniy, cited above, § 53, relating to the representative’s lack of qualifications; Vitan, cited above, §§ 59-63, where the lawyer of the defendant’s choosing did not appear at the trial, without a justified reason; Croissant, cited above, § 30, concerning the appointment of an additional lawyer for securing the proper conduct of the proceedings; Prehn v. Germany (dec.), no. 40451/06, 24 August 2010, concerning the replacement of a lawyer who was not practising in the same court and was located far away, thereby impeding the proper conduct of the proceedings; and Klimentyev, cited above, § 118, where the defendant was represented by a number of lawyers, not all of whom were able to take part in the proceedings).",
"(c) Whether the applicant waived his right to be represented by a lawyer of his own choosing",
"100. The Court has held that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A).",
"101. In this connection, it may be reiterated that the right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Pishchalnikov v. Russia, no. 7025/04, §§ 77-79, 24 September 2009 ). Such a standard ought in the Court’s view to apply to the applicant’s choice of lawyer in the instant case.",
"102. As the Court has already observed, the applicant had no knowledge that G.M., instructed by his parents to represent him, had come to the police station to see him. The Court also notes that the applicant challenged what he characterised as the “imposition” of M.R. on him during police questioning, first of all during his initial examination by an investigating judge and subsequently throughout the entire proceedings. In these circumstances, it cannot be maintained that, by signing the power of attorney and providing a statement to the police, the applicant unequivocally waived, either tacitly or explicitly, any right that he had under Article 6 of the Convention to be represented by a lawyer of his own informed choice.",
"(d) Whether the fairness of the proceedings as a whole was prejudiced",
"103. Turning next to the question whether the resulting restriction on the applicant’s exercise of his informed choice of lawyer adversely affected the fairness of the proceedings as a whole, the Court notes at the outset that the applicant’s statement to the police was used in convicting him, even though it was not the central platform of the prosecution’s case (see, by contrast, Magee v. the United Kingdom, no. 28135/95, § 45, ECHR 2000 ‑ VI). It is also true that the trial court viewed his statement in the light of the complex body of evidence before it (compare Bykov v. Russia [GC], no. 4378/02, § 103, 10 March 2009). Specifically, in convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence. In addition, the trial court had at its disposal the confessions made by the applicant’s co-accused at the trial, and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.",
"104. Nor did the applicant ever complain during the criminal proceedings that M.R. had failed to provide him with adequate legal advice. Furthermore, in her closing arguments at the trial, the applicant’s representative asked the court – in the event of its rejecting her client’s plea of not guilty – to take into consideration in sentencing the applicant his confession to the police and his sincere regret (see paragraph 48 above).",
"105. As to the manner in which M.R. was chosen to represent the applicant, the Court refers to Article 177 § 5 of the Code of Criminal Procedure, which requires that an accused should first be invited to instruct a lawyer of his or her own choosing (see paragraph 60 above). Only where the lawyer initially chosen by a suspect is unable to attend police questioning within a certain period of time should a replacement lawyer be chosen from the list of duty lawyers provided to the competent police authority by the county branches of the Croatian Bar Association. However, there is no conclusive evidence in the documents submitted to the Court as to whether these procedures were followed in the applicant’s case. The Court finds it unfortunate that the procedures used and decisions taken were not properly documented so as to avoid any doubts raised about undue pressure in respect of the choice of lawyer (see, mutatis mutandis, Martin, cited above, § 90, and Horvatić v. Croatia, no. 36044/09, §§ 80-82, 17 October 2013).",
"106. The Court notes that the record of the applicant’s questioning by the police indicates that M.R. arrived at the police station at around 7.45 p.m. on 14 March 2007 and that the questioning of the applicant commenced at 8.10 p.m. (see paragraphs 21-22 above). There is no indication of the exact time the applicant and M.R. actually commenced the consultation, nor is there any explanation of why that information was not provided in the record of the questioning. The Court notes also that the statement from D.H., the Rijeka County State Attorney, indicates that M.R. talked to the applicant in private for about ten minutes (see paragraph 26 above). The judgment of the Rijeka County Court indicates that M.R. came to the police station at 7.45 p.m. and that the questioning started at 8.10 p.m. (see paragraph 51 above). This was confirmed in the judgment of the Supreme Court (see paragraph 55 above). In the Court’s view, without speculating as to the effectiveness of the legal assistance provided by M.R., this period appears to have been relatively short, bearing in mind the scope and seriousness of the accusations, involving three counts of aggravated murder and further counts of armed robbery and arson. Regard should also be had in this context to the requirement in Article 6 § 3 (b) that an accused should be afforded adequate time and facilities for the preparation of his or her defence.",
"107. G.M. would already have been available to assist the applicant in the morning, long before the questioning started, and was a lawyer whom the applicant knew from a previous case. Had he been informed by the police of G.M.’s presence and had he actually chosen G.M. to represent him, the applicant would have had considerably more time to prepare himself for the questioning.",
"108. In this connection, the Court again emphasises the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54), and emphasises that a person charged with a criminal offence should already be given the opportunity at this stage to have recourse to legal assistance of his or her own choosing (see Martin, cited above, § 90 ). The fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support for an accused in distress and checking of the conditions of detention (see Dayanan, cited above, § 32 ).",
"109. Where, as in the present case, it is alleged that the appointment or the choice by a suspect of the lawyer to represent him has influenced or led to the making of an incriminating statement by the suspect at the very outset of the criminal investigation, careful scrutiny by the authorities, notably the national courts, is called for. However, the reasoning employed by the national courts in the present case in relation to the legal challenge mounted by the applicant concerning the manner in which his confession had been obtained by the police was far from substantial. Neither the trial court nor the investigating judge nor any other national authority took any steps to obtain evidence from G.M. or the police officers involved in order to establish the relevant circumstances surrounding G.M.’s visit to Rijeka Police Station on 14 March 2007 in connection with the applicant’s questioning by the police. In particular, the national courts made no real attempt to provide reasons supporting or justifying their decision in terms of the values of a fair criminal trial as embodied in Article 6 of the Convention.",
"110. In these circumstances, having regard to the purpose of the Convention, which is to protect rights that are practical and effective (see Lisica v. Croatia, no. 20100/06, § 60, 25 February 2010 ), the Court is not convinced that the applicant had an effective opportunity to challenge the circumstances in which M.R. had been chosen to represent him during police questioning.",
"111. In determining whether, taking the criminal proceedings as a whole, the applicant received the benefit of a “fair hearing” for the purposes of Article 6 § 1, the Court must have regard to the actions of the police in effectively preventing the applicant, at the very outset of the investigation, from having access to the lawyer chosen by his family and from freely choosing his own lawyer, and to the consequences of the conduct of the police for the subsequent proceedings. In the abstract, if a suspect receives the assistance of a qualified lawyer, who is bound by professional ethics, rather than another lawyer whom he or she might have preferred to appoint, this is not in itself sufficient to show that the whole trial was unfair – subject to the proviso that there is no evidence of manifest incompetence or bias (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In the instant case, it can be presumed that the consequence of the police’s conduct was that in his very first statement to the police, instead of remaining silent, as he could have done, the applicant made a confession, which was subsequently admitted in evidence against him. It is also significant that during the investigation and ensuing trial the applicant did not subsequently rely on his confession, save by way of mitigation in relation to the sentence, but took the first opportunity, before the investigating judge, to contest the manner in which the confession had been obtained from him by the police (see paragraphs 23-24, 31, 48, 52 and 54 above). Although there was other evidence against him, the significant likely impact of his initial confession on the further development of the criminal proceedings against him cannot be ignored by the Court. In sum, in the Court’s view, the objective consequence of the police’s conduct in preventing the lawyer chosen by the applicant’s family from having access to him was such as to undermine the fairness of the subsequent criminal proceedings in so far as the applicant’s incriminating initial statement was admitted in evidence.",
"(e) Conclusion",
"112. The Court has found that the police did not inform the applicant either of the availability of G.M. to advise him or of G.M.’s presence at Rijeka Police Station; that the applicant, during police questioning, confessed to the crimes with which he was charged and that this confession was admitted in evidence at his trial; and that the national courts did not properly address this issue and, in particular, failed to take adequate remedial measures to ensure fairness. These factors, taken cumulatively, irretrievably prejudiced the applicant’s defence rights and undermined the fairness of the proceedings as a whole.",
"113. The Court therefore finds that in the circumstances of the present case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"114. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"115. The applicant claimed 1,795,200 Croatian kunas (HRK) in respect of non-pecuniary damage and an additional amount of HRK 400 for each day starting from 26 December 2011 until his release from prison, to compensate for the distress caused to him by the criminal proceedings and his imprisonment.",
"116. The Government did not make any observations in this respect.",
"117. The Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 §§ 1 and 3 (c) in the present case does not imply that the applicant was wrongly convicted. The Court considers that the finding of a violation constitutes sufficient just satisfaction. It notes that Article 502 of the Code of Criminal Procedure allows for the possibility of the reopening of proceedings (see paragraph 61 above). It therefore rejects the applicant’s claim (see Moser v. Austria, no. 12643/02, § 108, 21 September 2006; Maresti v. Croatia, no. 55759/07, § 75, 25 June 2009; Baloga v. Ukraine, no. 620/05, § 38, 16 September 2010; Hanif and Khan v. the United Kingdom, nos. 52999/08 and 61779/08, § 155, 20 December 2011; Gürkan v. Turkey, no. 10987/10, § 26, 3 July 2012; Denk v. Austria, no. 23396/09, § 24, 5 December 2013; and Aras v. Turkey (no. 2), no. 15065/07, § 62, 1 8 November 2014 ).",
"B. Costs and expenses",
"118. Before the Chamber the applicant claimed HRK 5,000 in respect of the costs of lodging his constitutional complaint. He further claimed HRK 15,683 in respect of the costs incurred before the Court.",
"119. The Government objected to the claim in respect of the costs in the domestic proceedings.",
"120. On 31 July 2014 and 21 January 2015 the applicant submitted a further claim for costs and expenses in addition to that submitted before the Chamber. The additional claim concerned the cost of preparing for and being represented at the hearing of 21 January 2015. The additional costs totalled HRK 29,279.60.",
"121. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant’s constitutional complaint lodged in connection with the criminal proceedings in issue was aimed at remedying the violation the Court has found under Article 6 § § 1 and 3 (c) of the Convention. Regard being had to the documents in its possession and to its case-law, the Court considers the sum of 6,500 euros to be reasonable to cover costs under all heads, and awards it to the applicant, plus any tax that may be chargeable to him on that amount.",
"C. Default interest",
"122. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
210 | Borg v. Malta | 12 January 2016 | This case mainly concerned the complaint by a convicted offender of not having had any legal assistance during questioning in police custody, resulting from the absence of any provisions under Maltese law in force at the time allowing for legal assistance during pre-trial investigation and questioning by the police. Furthermore, the applicant complained that the Maltese Constitutional Court had changed its interpretation of the European Court’s case-law concerning the right to legal assistance in police custody, which he alleged ran counter to the principle of legal certainty and was in breach of Article 6 of the Convention. | The Court held that there had been a violation of Article 6 § 3 in conjunction with Article 6 § 1 of the Convention, finding in particular that the applicant had been denied the right to legal assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons. This fell short of the requirement under Article 6 that the right to assistance of a lawyer at the initial stages of police interrogation might only be subject to restrictions if there were compelling reasons. The Court further held that there had been no violation of Article 6 § 1 of the Convention in respect of an alleged lack of legal certainty concerning the constitutional proceedings. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1976 and is currently detained at the Corradino Correctional Facility in Paola.",
"A. Background to the case",
"8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during pre ‑ trial investigations and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage.",
"B. Criminal proceedings",
"9. The applicant, at the time twenty - seven years of age, was arrested on 15 April 2003 on suspicion of importation and trafficking of drugs (heroin) in relation to two episodes in March and April 2003. On 17 April 2003 while under arrest and precisely during questioning, after being duly cautioned about his right to remain silent, the applicant, in the absence of a lawyer, gave a statement to the police, which however he refused to sign.",
"10. In his statement he said that he regularly drove a white Ford Escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts on 3 March 2003 and that he did not know a certain N. and M. and three other Turkish nationals (K. , R ., and M. I. ). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville, or having received anything from M. or ever having made a phone call to two specific numbers shown to him by the police. He further denied having gone to Paceville with his wife in his car and making contact with M. on 5 March 2003; he also denied that on that day M. had given him heroin capsules in the presence of his wife. He claimed however to have gone to Paceville at 10 a. m. to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever used heroin, and when was the last time he had done so. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he was unaware of the purpose of the paper, which had been in his car for a very long time.",
"11. On the same day (17 April 2003) the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also produced another two statements implicating the applicant, given by two prosecution witnesses (N. and M. , two Turkish female drug couriers, mentioned above ) who had also been arrested and investigated in connection with the same crimes, and who had also not been legally assisted during the police investigation into their case.",
"12. In the meantime, on 15 April 2003 the duty magistrate (C. ) had been informed that the applicant had been arrested, that a search had been carried out at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry ( inkjesta ), she appointed the police investigating officer to hold an on - site inquiry, and at the same time appointed a number of experts to assist him (see Articles 546 - 548 of the Criminal Code, relevant domestic law, paragraph 31 below). In their document of appointment, however, the experts were required to report their findings to her within three days. The following day she acceded to the Commissioner of Police ’ s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In the procès-verbal of 23 April 2003 no findings were reported by her, given that on 21 April 2013 the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings ( kumpilazzjoni ) had already started in respect of the applicant (see paragraph 9 above). All the relevant documents were attached to the procès-verbal and the record of the in genere inquiry sent to the Attorney General.",
"13. The same magistrate (C. ) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The resulting bill of indictment was filed by the Attorney General on 14 June 2006.",
"14. In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported, or taking steps preparatory to the importation, of heroin between February and 15 April 2003; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use. The Criminal Court sentenced him to twenty-one years ’ imprisonment and a fine of 70,000 euros (EUR). During these proceedings the applicant had objected to the statements made by N. and M. on various grounds, however these objections were withdrawn on 30 October 2006, apart from one objection concerning the inadmissibility of the results of the identification parade.",
"15. The applicant appealed, claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of the facts, and a disproportionate punishment.",
"16. During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional courts on constitutional grounds (different from those raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request.",
"17. By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant ’ s appeal was dismissed and the first-instance judgment confirmed ( apart from a slight change in respect of the timing of the third charge).",
"18. In so far as is relevant, the Court noted that the jury had had the advantage of seeing and hearing all the witnesses, and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement. The first issue which the jury had to decide was whether the two couriers (N. and M. ) had made contact with the applicant in March 2003. In his statement to the police the applicant denied knowing the two women and other people mentioned by them, and also denied that he had made and received calls to and from Turkey. However, the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N. food, gloves, disinfectant and a laxative, and to whom M. had given the capsules they had carried in their stomachs. A number of factors gave credibility to the women ’ s identification of the applicant : ( i) the circumstances of the meetings they had with him at which time he was using a white four-door car and was in the company of an Asian woman; ( ii) the applicant ’ s statement that he habitually made use of a white four - door Ford Escort and that he was married to a Thai woman; ( iii) the fact that when arrested N. and M. had separately identified the applicant in photographs; ( iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage and before the jury. In the light of all those factors the jurors could reasonably conclude that the person N. and M. had met in March 2003 and to whom they had delivered the capsules was the applicant.",
"19. This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police. The experts had stated that the capsules contained heroin. The court rejected the applicant ’ s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered a key transit route to Europe for heroin.",
"20. It appeared from the evidence given by the two women that they had imported heroin in April 2003, which was the second time they had come to Malta. They had been forced to return in April since, in March, M. had lost most of the capsules she was carrying when vomiting on board the flight. The court considered that a recipient would expect to receive the full delivery, and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault. It followed that, from their testimony, it was reasonable for the jury to conclude that what N. and M. had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M. had indicated the applicant as the recipient. The court rejected the applicant ’ s argument that he could not be the recipient because the women had referred to someone whose father had passed away, which was not the case for the applicant. It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant.",
"21. The court further noted that on 15 April 2003, when the delivery was meant to take place, the police had seen the applicant drive around the area (at least three times) in his white Ford Escort, a short time before M. was arrested. Indeed the jurors had not believed the applicant ’ s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant had denied any connection with Turkey, despite the fact that he could not explain the Turkish names written on a piece of paper which was found in his car and which he admitted he had written himself, and that N. had testified that the applicant had spoken to a Turkish person on the telephone.",
"22. The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003.",
"C. Constitutional redress proceedings",
"23. The applicant instituted constitutional redress proceedings, claiming a breach of his right to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings. He requested a remedy including, but not limited to, a declaration that the criminal proceedings be cancelled and compensation paid.",
"24. By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant ’ s claim.",
"25. In respect of the statement made by the applicant on 17 April 2003 the court noted as follows : (i) the applicant had not raised the issue before his criminal proceedings came to an end, and the judgment was now res judicata; (ii) neither had he raised the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii) the applicant ’ s statement was not determinant to finding him guilty: in his statement he had not admitted to trafficking in drugs or that he knew N. and M. , and he had chosen to remain silent when questioned about drug use; (iv) while it was true that the Court of Criminal Appeal had referred to extracts from his statement, this was not the basis of his conviction, which was based on the evidence given in court by M. and N. and on the results of the previous identification parades – indeed he had said nothing relevant in his statement.",
"26. The court concluded that the proceedings having ended it had to look at the entirety of the proceedings, and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him, and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself.",
"27. The court rejected the second complaint in relation to legal assistance for the witnesses, in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged; the applicant could have challenged them during the trial but had opted not to do so.",
"28. Lastly, in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police, did not act as a prosecutor, and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant ’ s case was also tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in the committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30 October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passivity.",
"29. By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant ’ s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v. Turkey [GC] ( no. 36391/02, ECHR 2008 ) had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made his statement. The rationale of the right was precisely that, and not to allow guilty persons to be let off scot ‑ free because of a formality which had no real or serious consequences. In the present case the applicant did not claim that he was forced to make the statement, or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding abuses, which in fact did not happen in the applicant ’ s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage, namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant ’ s case, and thus there could be no violation of his rights. The Constitutional Court held that even if the statement had been determinant for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever, as the applicant had not admitted to anything and the Court of Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant ’ s version. It had been other evidence that had led to his finding of guilt. Lastly, the Constitutional Court noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article 6.",
"30. As to the complaint related to the witnesses, the court did not rule out the applicant ’ s locus standi, which could come into play if their statements had been made under duress. However, it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly it confirmed the reasoning of the first-instance court relating to the impartiality of the magistrate, finding the applicant ’ s argument opportunistic."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The “in genere” inquiry ( inkjesta ) and the inquest",
"31. The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows:",
"Article 546",
"“ (1) Saving the provisions of the next following subarticles, upon the receipt of any report, information or complaint in regard to any offence liable to the punishment of imprisonment exceeding three years, and if the subject-matter of the offence still exists, the state thereof, with each and every particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated. For the purpose of any such investigation, an inquest on the spot shall be held: ... ”",
"Article 547",
"“ (1) The inquest shall be held by a magistrate. ... ”",
"Article 548",
"“ The necessary experts shall be employed for the purposes of the inquest, and a procès-verbal thereof shall be drawn up: ... ”",
"Article 549",
"“ (1) The procès-verbal shall be signed by the magistrate or officer holding the inquest.",
"(2) If the experts employed shall express their opinion in a written report duly confirmed on oath, such report shall be annexed to the procès-verbal and shall be deemed to form part thereof.",
"(3) The depositions of witnesses examined at the inquest shall also be annexed to the procès-verbal.",
"(4) Such depositions shall be taken in the manner provided for the examination of witnesses by the court of criminal inquiry, and shall have the like effect.”",
"Article 550 (as amended in 2006)",
"“ (1) The procès-verbal, if regularly drawn up, shall be received as evidence in the trial of the cause, and the witnesses, experts or other persons who took part in the inquest shall not be produced to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry.",
"(2) Nevertheless it shall be lawful for the Police to produce any of the persons mentioned in subarticle (1) to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry on specific issues and for the Attorney General to produce any of the said persons in accordance with the provisions of article 405. It shall also be lawful for the person charged to produce any of the said persons for the purpose of cross-examination.",
"(3) The court shall also, for the like effect, have power to order the production of any expert or other witness who shall appear from the procès-verbal to have been examined at the inquest; and for such purpose any such expert or witness shall, in all cases within the jurisdiction of the Criminal Court, be included in the list of the witnesses of the Attorney General, to be, if necessary, examined.",
"(4) All documents, however, and any other material object, in respect of which a procès-verbal has been drawn up, and which can be preserved and conveniently exhibited, shall always be produced at the trial, together with the procès-verbal.",
"(5) The procès-verbal shall be deemed to have been regularly drawn up if it contains a short summary of the report, information or complaint, a list of the witnesses heard and evidence collected, and a final paragraph containing the findings of the inquiring magistrate.”",
"Article 554",
"“ (1) It shall be lawful for the magistrate to order the arrest of any person whom, at any inquest, he discovers to be guilty, or against whom there is sufficient circumstantial evidence, as well as to order the seizure of any papers, effects, and other objects generally, which he may think necessary for the discovery of the truth. It shall also be lawful for the magistrate to order any search into any house, building or enclosure, although belonging to any other person, if he shall have collected evidence leading him to believe that any of the above objects may be found therein.",
"(2) It shall also be lawful for the magistrate to order that any suspect be photographed or measured or that his fingerprints be taken or that any part of his body or clothing be examined by experts appointed by him for the purpose:",
"Provided that where the magistrate is of the opinion that such photographs (negatives and prints), fingerprint impressions, records of measurements and any other thing obtained from the body or clothing as aforesaid are no longer required for the purpose of the inquiry relating to the\" in genere \", he shall order their destruction or shall order that they be handed over to the person to whom they refer.",
"(3) In any proceedings under this Title the magistrate shall have the same powers and privileges of a magistrate presiding the Court of Magistrates as court of criminal inquiry.”",
"B. The inquiry - committal proceedings ( kumpilazzjoni )",
"32. The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows:",
"Article 389",
"“ In respect of offences liable to a punishment exceeding the jurisdiction of the Court of Magistrates as court of criminal judicature, the Court of Magistrates shall proceed to the necessary inquiry.”",
"Article 390",
"“(1) The court shall hear the report of the Police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report. Everything shall be reduced to writing.”",
"Article 401",
"“... (2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge. ... ”",
"C. Legal assistance during pre-trial investigation",
"33. Legal Notice 35 of 2010 provided for the commencement notice of the Criminal Code (Amendment) Act 2002 (Act III of 2002), which enshrined the right to legal assistance. It read as follows:",
"“BY VIRTUE of the powers granted by subarticle (2) of article 1 of the Criminal Code (Amendment) Act, 2002, the Minister of Justice and Home Affairs has established the 10th February, 2010 as the date when the provisions of articles 355AT, 355AU, paragraphs (b) and (c) of subarticle (2) and subarticles (3) and (4) of article 355AX, and article 355AZ which are found in article 74 of the Act above mentioned shall come into force.”",
"34. Pursuant to the above notice, Article 355AT of the Criminal Code, in so far as relevant, now reads as follows:",
"“ (1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle. ...”",
"D. Domestic case-law",
"1. Cases decided in 2011",
"35. In the wake of the new law, a number of accused persons instituted constitutional redress proceedings during the criminal proceedings against them, or requested the relevant criminal courts to make a referral to the constitutional jurisdictions. In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations of three judges), namely The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011, and The Police vs Mark Lombardi, also of 12 April 2011. In the three cases the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. The relevant details are as follows:",
"The Police vs Alvin Privitera, Constitutional Court judgment of 11 April 2011, upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.",
"36. The case concerned the fact that the accused, at the time eighteen years of age, had been questioned in the absence of a lawyer. During questioning he had denied selling heroin to X (who died of an overdose) but had admitted to selling cannabis to him. Subsequently the accused alleged that he had been forced by the investigating official to admit to the accusations. This was the sole evidence which the prosecution had in hand in order to institute proceedings against the applicant for possession and trafficking of drugs.",
"37. The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz v. Turkey and the subsequent line of case-law. In particular it noted that, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 required that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer were used for a conviction. Given that the absence of a lawyer at the investigation stage could irretrievably prejudice the accused ’ s right, the court considered that where there existed sufficient reasons indicating a violation, it should not wait for the end of the criminal proceedings in order to examine the merits of the case.",
"38. The Constitutional Court rejected the Government ’ s plea that the applicant had not raised the issue until the prosecution had finished submitting evidence, noting that in the domestic legal system there was no deadline for raising constitutional claims. It found the Government ’ s argument that the accused had not been forced to give a statement, and that he had been informed of his right to remain silent, to be irrelevant given the established case-law of the European Court of Human Rights and in particular the Salduz judgment.",
"39. The right to legal assistance was linked to the right not to incriminate oneself; it allowed a balance to be reached between the rights of the accused and those of the prosecution. The argument that it would otherwise be difficult for the prosecution to reach a conviction could not be taken into consideration for the purposes of this balance. The Constitutional Court further noted that Mr Salduz ’ s young age had not been the decisive factor for the finding in that case, but merely a further argument. Moreover, it was not necessary in the case at hand to examine whether there existed any compelling reasons to justify the absence of a lawyer during questioning or whether such restrictions prejudiced the case, in so far as at the relevant time Maltese law had not provided for the right to legal assistance at that stage of the investigation and therefore there had been no need for the accused to request it. There had therefore been a systemic restriction on access to a lawyer under the relevant legal provision in force at the time. It followed that there had been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.",
"40. The Constitutional Court further noted that in its view the right to be assisted by a lawyer must be granted from the very start of the investigation and before the person being investigated gave a statement, but it did not require that an accused be assisted during questioning.",
"41. The Constitutional Court did not order the statements to be expunged from the record of the proceedings, but it ordered that the Court of Criminal Judicature be informed of the said judgment so that it could decide accordingly on the validity and admissibility of the statement made.",
"The Police vs Esron Pullicino, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.",
"42. The circumstances of the case were similar to the case above in so far as the accused had given a statement while in police custody in the absence of a lawyer and this statement was the sole evidence for the prosecution. The accused was, moreover, a minor. The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera, cited above, stopping short, however, of reiterating the court ’ s opinion in relation to assistance during the actual questioning (see paragraph 40 above).",
"The Police v Mark Lombardi, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.",
"43. In this case the accused had made two statements in the absence of a lawyer, in the first denying any connection with possession or trafficking of drugs, and in the second admitting to having taken ecstasy pills (which amounts to possession according to the domestic case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking.",
"44. The Constitutional Court reiterated the same reasoning applied in the cases of Alvin Privitera and Esron Pullicino, cited above. It further noted case-law subsequent to Salduz in which the Court had found a violation despite the fact that the applicant had remained silent while in police custody ( Dayanan v. Turkey, no. 7377/03, 13 October 2009) and despite there being no admission of guilt in the statements given by the applicants ( Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009 ). In Boz v. Turkey (no. 2039/04, 9 February 2010) the Court had stressed that the systemic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. The Constitutional Court further referred to the finding in Cadder v. Her Majesty ’ s Advocate [2010] UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter.",
"45. The Constitutional Court added that Salduz should not apply retroactively to cases which had become res judicata.",
"2. Subsequent cases",
"46. Following the above-mentioned judgments of 2011, the Constitutional Court started to consider Salduz as an exceptional case and to interpret it to the effect that a number of factors had to be taken into consideration when assessing whether a breach of Article 6 had occurred (see, for example, Charles Stephen Muscat vs The Attorney General, 8 October 2012; Joseph Bugeja vs The Attorney General, 14 January 2013; The Police vs Tyron Fenech, 22 February 2013; and The Police vs Amanda Agius, also of 22 February 2013, and the Constitutional Court ’ s reasoning in the applicant ’ s case). As a result, a number of cases where the accused had not been assisted by a lawyer – because the matter was not regulated in Maltese law – were found not to violate the Convention and the Constitution. Nevertheless, in The Republic of Malta vs Alfred Camilleri of 12 November 2012 the Constitutional Court, in the particular circumstances of the case, found a violation of the accused ’ s fair trial rights, in particular because he had not even been cautioned by the police. However, following a request for retrial which was upheld by a judgment of the Constitutional Court of 31 January 2014, no violation was found in that case because the accused, who had given a statement in the absence of a lawyer, had not been forced to reply to the questions put to him by the police, nor was he particularly vulnerable to the extent that he would have required the assistance of a lawyer. The accused was fifty-five years old and therefore mature. While he had never been to prison or been questioned, he had already been found guilty of minor charges and therefore was acquainted with the law. Lastly, his statement had not been the only evidence, as some police officers had been eyewitnesses to his handling of the drugs in issue.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION",
"47. The applicant complained under Article 6 § 3 in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody in his case, contrary to the findings in the judgment of Salduz v. Turkey ( [GC], no. 36391/02, ECHR 2008). Moreover, he complained that the lack of legal assistance to third persons who were called as witnesses against him also affected the fairness of his trial. He further complained under Article 6 § 1 about a lack of objective impartiality resulting from the system in place in Malta, in so far as the magistrate performing investigating functions, namely conducting the in genere inquiry, who collected the evidence was the same one who sat in the Court of Magistrates as a Court of Criminal Inquiry, and who decided in the present case that the applicant should be committed to trial.",
"The provisions, in so far as relevant, read as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”",
"48. The Government contested those arguments.",
"A. Lack of legal assistance to the applicant",
"1. Admissibility",
"49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) The parties ’ submissions",
"50. The applicant submitted that he had not been legally assisted when he was in police custody and during the interrogation because of a systemic restriction of access to a lawyer in the legal system. Despite amendments to the law in 2002, the law had not come into force.",
"51. The applicant noted that the line taken by the courts and the Government in his case was that of this Court in the early nineties, particularly in the case of Imbrioscia v. Switzerland ( 24 November 1993, Series A no. 275), and they failed to take into consideration the Court ’ s jurisprudential developments. He referred to the case of John Murray v. the United Kingdom, (8 February 1996, Reports of Judgments and Decisions 1996 ‑ I), and Magee v. the United Kingdom (no. 28135/95, ECHR 2000 ‑ VI) and subsequently to the case of Salduz [GC], cited above, particularly its paragraph 55. In the applicant ’ s view the latter judgment was continuously misinterpreted by the domestic courts, despite its principles being reiterated by the Court in other cases, such as in Pishchalnikov v. Russia (no. 7025/04, 24 September 2009 ), where the Court found a violation despite the fact that the statement had not been the sole evidence. The applicant further referred to Dayanan v. Turkey (no. 7377/03, 13 October 2009) where the Court had found a violation on the basis that there was a systemic restriction on access to a lawyer (as in Malta), despite the fact that the applicant had remained silent during questioning. The applicant further referred to Yeşilkaya v. Turkey ( no. 59780/00, 8 December 2009 ), Boz v. Turkey (no. 2039/04, 9 February 2010), Nechiporuk and Yonkalo v. Ukraine ( no. 42310/04, 21 April 2011 ) and Huseyn and Others v. Azerbaijan ( nos. 35485/05, 45553/05, 35680/05 and 36085/05, 26 July 2011 ), all of which confirmed the approach taken in Salduz (cited above).",
"52. The applicant submitted that in the light of the current case-law, given the systemic restriction on access to a lawyer, all the arguments set out by the Government were irrelevant.",
"53. The Government considered that the right to see ( sic ) a lawyer in the early stages of a police investigation was not absolute and could be subject to restrictions. They referred to the cases of Imbrioscia, cited above; John Murray, cited above; and Ahmet Mete v. Turkey ( no. 77649/01, 25 April 2006 ), as well as Salduz (cited above). The Government, recapitulating the facts and findings in the case of Salduz, considered that in reaching its conclusion the Grand Chamber gave particular weight to the applicant ’ s age. The Government reiterated that the faithful interpretation of Salduz was that “a violation can only be found if the conviction of an accused person is solely based on incriminating statements that an accused made while being questioned, where the accused person was not given access to legal assistance”. In their view any other interpretation thwarted the logic around the judgment. The Government further referred to the facts and findings in Płonka v. Poland (no. 20310/02, 31 March 2009); Aleksandr Zaichenko v. Russia (no. 39660/02, 18 February 2010); Nechiporuk and Yonkalo ( cited above ); and Huseyn and Others ( also cited above ) and noted that in those cases the applicants were convicted solely on the basis of their statements in which the applicants had admitted wrongdoing.",
"54. They submitted that in the present case the applicant was twenty ‑ seven years old, and the amount of drugs involved was 816 grams of heroin which was 47% pure, which had been transported to Malta by two couriers who had already been used by the applicant for this purpose. Other objects associated with drug importation and trafficking had been seized by the police from the applicant ’ s residence, such as telephones and a piece of paper with foreign names written on it. Other evidence besides his statement was collected and brought to the attention of the trial courts. Although the applicant chose not to sign the statement, he had voluntarily answered the questions put to him during questioning, he had been cautioned about his right to remain silent, and at no point was he threatened or coerced into giving a statement. Moreover, he answered some questions and refused to answer others, and categorically denied involvement in the drug transaction. Furthermore, the applicant was not a first offender, as according to his conviction sheet he had been arraigned on one previous occasion (concerning driving a modified car without a seatbelt).",
"55. They were of the view that the Court found violations in cases where applicants were convicted on the sole basis of statements within which they admitted wrongdoing. This was not so in the present case. Similarly, the Court gave weight to the age of the victim to determine his vulnerability, and again in the present case the applicant was a mature person and was not intimidated by police officers. He understood what was being said and the consequences of his statements, enough to be able to choose which questions to answer; this showed he had understood the caution and its importance. Moreover, it was of particular relevance that, at the time of the present case, no inferences could be made from the applicant ’ s silence, and therefore in choosing not to reply the applicant was not in any way incriminating himself. Thus, the applicant had not illustrated what prejudice he had suffered, given that his conviction had been based on the totality of the evidence collected and was not solely based on his statement. The Government therefore considered that given the proceedings as a whole, there had been no violation of the applicant ’ s rights.",
"(b) The Court ’ s assessment",
"(i) General principles",
"56. Early access to a lawyer is one of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies ( see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008).",
"57. The Court reiterates that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction ( see Salduz, cited above, § 55).",
"58. Denying the applicant access to a lawyer because this was provided for on a systematic basis by the relevant legal provisions already falls short of the requirements of Article 6 (ibid., § 56).",
"(ii ) Application to the present case",
"59. The Court observes that the post-Salduz case-law referred to by the Government (paragraph 53 in fine ) does not concern situations where the lack of legal assistance at the pre-trial stage stemmed either from a lack of legal provisions allowing for such assistance or from an explicit ban in domestic law.",
"60. The Court notes that it has found a number of violations of the provisions at issue, in different jurisdictions, arising from the fact that an applicant did not have legal assistance while in police custody because it was not possible under the law then in force (see, for example, Salduz, cited above, § 56; Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, §§ 81-85, 24 October 2013; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Stojkovic v. France and Belgium, no. 25303/08, §§ 51-57, 27 October 2011 ). A systemic restriction of this kind, based on the relevant statutory provisions, was sufficient in itself for the Court to find a violation of Article 6 ( see, for example, Dayanan v. Turkey, no. 7377/03 §§ 31 ‑ 33, 13 October 2009; Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009; and Fazli Kaya v. Turkey, no. 24820/05, 17 September 2013 ).",
"61. In respect of the present case, the Court observes that no reliance can be placed on the assertion that the applicant had been reminded of his right to remain silent (see Salduz, cited above, § 59 ); indeed, it is not disputed that the applicant did not waive the right to be assisted by a lawyer at that stage of the proceedings, a right which was not available in domestic law. In this connection, the Court notes that the Government have not contested that there existed a general ban in the domestic system on all accused persons seeking the assistance of a lawyer at the pre-trial stage (in the Maltese context, the stage before arraignment).",
"62. It follows that, also in the present case, the applicant was denied the right to legal assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons. This already falls short of the requirements of Article 6 namely that the right to assistance of a lawyer at the initial stages of police interrogation may only be subject to restrictions if there are compelling reasons (see Salduz, cited above, § § 52, 55 and 56 ).",
"63. There has accordingly been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 of the Convention.",
"B. Lack of legal assistance to third persons who were called as witnesses against the applicant in his criminal proceedings",
"1. The parties ’ submissions",
"64. The applicant submitted that the lack of legal assistance to third persons who were called as witnesses against him had also affected the fairness of his trial.",
"65. The applicant considered that the fact that he did not object to the witnesses during the criminal proceedings did not mean that he was renouncing his rights under Article 6. He referred to Damir Sibgatullin v. Russia (no. 1413/05, § 48, 24 April 2012), where the Court reiterated “that as a matter of principle the waiver of the right must be a knowing, voluntary and intelligent act, done with sufficient awareness of the relevant circumstances. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).”",
"66. The applicant noted that as in Jalloh v. Germany [GC] (no. 54810/00, ECHR 2006 ‑ IX), in the present case the evidence used against him (the statement from the two witnesses) was obtained by a measure which breached one of the core rights guaranteed by the Convention. The applicant submitted that just as much as a statement of the accused given without legal assistance should not be used as evidence against him, similarly statements made by third persons in such circumstances should also be excluded, as the accused had no guarantee that those statements were delivered freely, without promise of reward and according to the law.",
"67. The Government noted that N. and M. had been caught red - handed, with drugs in their possession just before the drugs “ were handed over to the applicant ” ( sic ). While it was true that they had not been assisted by a lawyer when they gave their statements, they had not contested the admissibility of their statements, nor claimed a breach of their rights, thus the applicant could not raise such a complaint.",
"68. The Government submitted that Article 6 did not lay down rules for the admissibility of evidence, which was a matter for regulation under national law, and it was thus not for the Court to determine whether a particular type of evidence was admissible, or whether an applicant was guilty or not. The Court had to determine whether the proceedings as a whole were fair and whether the rights of the defence were respected. They referred to Schenk v. Switzerland ( 12 July 1988, Series A no. 140 ).",
"69. The Government further submitted that in the present case the statements by N. and M. (of which the applicant was complaining) were taken in accordance with the provisions of the Criminal Code. In his statement of defence of 13 July 2006 the applicant had objected to the admissibility of these statements, an objection which was, however, withdrawn by the applicant on 30 October 2006. The two Turkish nationals gave evidence in the trial by jury and the applicant cross-examined both witnesses. The Government also noted that there was other evidence besides these statements, such as the testimony of a police sergeant concerning the whereabouts of the applicant, the piece of paper found in his car, and the data collected from the mobile phones seized in the applicant ’ s residence.",
"70. The Government distinguished the present case from Jalloh v. Germany [GC] ( cited above ), where the use as evidence of drugs obtained by forcible administration of emetics to that applicant had rendered his trial as a whole unfair. In the present case the applicant ’ s statements as well as those of M. and N. had been given voluntarily (as also shown by the fact that their statements were confirmed on oath before the magistrate conducting the inquiry), the applicant had been able to, and actually did, cross-examine M. and N. Further, the finding of guilt had been the result of an assessment of various pieces of evidence which corroborated the impugned statement, as also confirmed by the Court of Appeal, thus the impugned measure had not proved decisive to obtaining a conviction. It followed that the applicant had had a fair hearing.",
"2. The Court ’ s assessment",
"71. For the purposes of the present case the Court accepts that the applicant has victim status. It also considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor does it appear inadmissible on any other grounds. It must therefore be declared admissible.",
"72. However, having regard to the findings in paragraph 63 above, the Court does not consider it necessary to examine the merits of this complaint.",
"C. Impartiality",
"1. The parties ’ submissions",
"73. The applicant submitted that in the Maltese legal system the magistrate sitting in the Court of Magistrates as a Court of Criminal Inquiry effectively decides on the criminal charge, in so far as it is that magistrate who decides whether there is sufficient evidence to indict the defendant or drop the case.",
"74. He claimed that in his case there had been a lack of objective impartiality resulting from the system in place in Malta, in so far as the magistrate performing investigating functions, namely conducting the in genere inquiry (who collected the evidence ) was the same one who sat in the Court of Magistrates as a Court of Criminal Inquiry, and who thus, in the present case, also decided that the applicant should be charged and committed for trial. The applicant submitted that the issue remained relevant in his case even though the magistrate performing investigating functions had not in fact completed the in genere inquiry in his case.",
"75. The Government noted that the plea concerning this complaint made during the criminal proceedings was eventually withdrawn by the applicant.",
"76. They explained that the Court of Magistrates may act as a Court of Criminal Judicature when it has full competence to decide the merits of a charge. However, when this was not the case, as in the present case, it would function as a Court of Criminal Inquiry hearing the committal proceedings in respect of such charges. The domestic system also provided for a magistrate who conducts an inquest (for the purpose of the in genere inquiry) (see paragraph 31 above) : when acting in that function the magistrate is not part of the Police (unlike other jurisdictions) – the use of such a magistrate is provided for by law in cases where it is appropriate that an investigation is not carried out solely by the Police. The Government highlighted that the exercise of the criminal action lay with the police, that acted as prosecutors before the Court of Magistrates (both as court of criminal judicature and criminal inquiry). Thus, the magistrate conducting the inquest is independent of the Police and the Public Prosecutor.",
"77. The Government explained that during the inquest the scenario was not adversarial and there was no accused – the magistrate ’ s role was limited to investigating, collecting, and preserving the evidence, and drawing up a procès-verbal which is admissible as evidence in the subsequent criminal proceedings. The procès-verbal is intended to establish whether in fact an offence was committed, and if so whether the evidence collected pointed towards a particular person. Moreover, when, pending this investigative stage, an accused is charged in court ( as happened in the present case), the investigative role of the magistrate comes to an end and the magistrate will only produce the evidence gathered without submitting his or her conclusions in a procès-verbal – therefore in this case the magistrate had not even expressed an opinion on the investigation. Thus, in both cases the magistrate was not responsible for any finding of guilt.",
"78. As to the inquiry (committal proceedings), at this stage there is already an accused and the relevant charges, and its purpose is for the magistrate to hear evidence relative to the person arraigned and to determine whether there is a basis on which to indict the accused. During this committal stage, all evidence is presented in adversarial proceedings in which the accused is entitled to assistance by legal counsel and allowed to cross-examine witnesses. If it turns out that there is sufficient prima facie evidence against the accused, the magistrate will refer to the Attorney General for indictment. If there is not sufficient evidence, the accused is discharged. It follows that at this stage the Court of Magistrates also does not determine the “guilt” of the accused.",
"79. The Government submitted that an issue would arise only if the investigating magistrate in the in genere inquiry was the same magistrate who sat on the Court of Magistrates as a Court of Criminal Judicature and whose role is in fact to determine the criminal charge, because this would mean that the person conducting the investigation would also determine the accused ’ s guilt or innocence.",
"80. In any event, the Government also submitted that there was clearly no subjective partiality in the applicant ’ s case.",
"2. The Court ’ s assessment",
"81. According to the Court ’ s case-law concerning the criminal limb of Article 6, the impartiality and independence guarantees arising from Article 6 § 1 apply only to organs determining the merits of a criminal charge (see Previti v Italy, (dec.), no. 45291/06, 18 December 2009, and Priebke v. Italy (dec.), no. 48799/99). Nonetheless, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings (see Imbrioscia, cited above, § 37).",
"82. Although investigating judges do not determine a “ criminal charge ”, the steps taken by them have a direct influence on the conduct and fairness of the subsequent proceedings, including the actual trial. Accordingly, Article 6 § 1 may be held to be applicable to the investigation procedure conducted by an investigating judge, although some of the procedural safeguards envisaged by Article 6 § 1 might not apply (see Vera Fernández ‑ Huidobro v. Spain, (no. 74181/01, § 110, 6 January 2010). The Court highlights the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (ibid. , § 111).",
"83. Concerning the substance of the complaint, the Court notes that the question of lack of judicial impartiality in the present case is functional in nature: namely, where the judge ’ s personal conduct is not in any way impugned, but where, for instance, the exercise of different functions within the judicial process by the same person objectively justify misgivings as to the impartiality of the tribunal, which thus fails to meet the Convention standard under the objective test ( see Kyprianou v. Cyprus [GC], no. 73797/01, § 121, ECHR 2005 ‑ XIII; and Morice v. France [GC], no. 29369/10, §§ 73-78, 2 3 April 2015 ).",
"84. The Court observes that such functional complaints generally arise in connection with the judge actually deciding on the applicant ’ s guilt. In that context the Court has previously held that the mere fact that a judge has also made pre-trial decisions in the case cannot be taken as in itself justifying fears as to his impartiality (see Hauschildt v. Denmark, § 50, 24 May 1989, Series A no. 154). What matters is the extent and nature of the pre-trial measures taken by the judge (see Fey v. Austria, 24 February 1993, § 30, Series A no. 255 ‑ A). On the one hand, the presence on the bench of a member of the judiciary who had conducted the preliminary investigation with extensive investigation and questioning, provided grounds for some legitimate misgivings leading to a violation of Article 6 (see De Cubber v. Belgium, 26 October 1984, § 30, Series A no. 86, and Pfeifer and Plankl v. Austria, 25 February 1992, § 36, Series A no. 227). On the other hand, less onerous steps such as a marginal interrogation role where it was not for the impugned person on the bench to assess the merits of the accusations at the earlier investigation stage, did not lead to the same conclusion (see Fey, cited above, §§ 31-36). One of the relevant factors was whether the judge at issue could have had a pre-formed opinion (on the applicant ’ s guilt) which was liable to weigh heavily in the balance at the moment of the decision (see De Cubber, cited above, § 29, and Fey, cited above, § 34).",
"85. The Court notes that the complaint in the present case concerns the objective (functional) impartiality of the magistrate sitting in a Court of Magistrates as a Court of Criminal Inquiry, who committed the applicant for trial, given that she had also been the magistrate conducting the in genere inquiry, namely the investigation and collection of the evidence.",
"86. The function of this magistrate in committal proceedings was to hear the report of the police officer on oath, examine the accused, hear all the evidence in relation to the accused (in adversarial proceedings) and to finally determine whether there were sufficient grounds to commit the accused for trial, and if not to discharge him. Furthermore, the magistrate had the power to order the applicant ’ s arrest if he had not already been remanded in custody, and to hear any bail requests. In the present case the magistrate concluded that there were sufficient grounds for the applicant to be indicted. The Court notes that in Vera Fernández-Huidobro it concluded that, in the specific context of the Spanish system – namely, where Spanish law required the investigating judge to be impartial, since his decisions could affect fundamental rights (adopting provisional measures in the proceedings, for instance as in that case the fact that the investigating judge placed the applicant in pre-trial detention) – and the specific context of that case, namely, where the applicant was judged at only one level of jurisdiction, the investigating judge had to be impartial. Given the similarities of the situation, despite them not being identical, the Court finds no reason not to apply its considerations in Vera Fernández-Huidobro also to the present circumstances. It therefore considers that the provision is applicable to the proceedings before the Court of Magistrates as a Court of Criminal Inquiry.",
"87. In view of its findings in the subsequent paragraphs it is not necessary to address the Government ’ s argument concerning the applicant ’ s withdrawal of his objection during the criminal proceedings in relation to this complaint.",
"88. The Court observes that the procedure in the applicant ’ s case was in conformity with the norms of domestic law. Nevertheless, such a procedure may result in an accused being faced at committal stage with the same magistrate who had already made an assessment of the evidence and, thus, who may have a preconceived idea as to the applicant ’ s guilt. Thus, the Court does not exclude, in the light of the case-law cited above, that an issue may arise as to the objective (functional) impartiality of a magistrate in that position.",
"89. However, on the specific facts of the present case, the Court notes that, the duty magistrate conducting the in genere inquiry had not gone herself to the spot to conduct the inquest, she had merely appointed the police investigating officer to hold an on - site inquiry, and had appointed a number of experts to assist him. She had also acceded to the Commissioner of Police ’ s request to order the collection of the relevant telephone data. While it was true that the police and the experts had to report their findings to her, given that on 21 April 2013 the Commissioner of Police requested the magistrate to close the inquest, she did not make any final findings (nor did she express herself as to the applicant ’ s guilt) because the committal proceedings had commenced before the closing of the inquest. In consequence, in these circumstances, the Court considers that it cannot be said that the magistrate had already had a preconceived idea of the applicant ’ s guilt. Neither did the magistrate take any other decision which had an impact on the trial, nor was she ever part of the prosecution.",
"90. In conclusion, in the light of the limited investigative steps taken by magistrate C. prior to the committal proceedings, the Court does not find that such fears as the applicant may have had as to her impartiality can be held to have been objectively justified.",
"91. It follows that this complaint must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"92. The applicant also complained about the conflicting domestic judgments concerning the application of the Salduz case-law, which were delivered by the supreme court of the land, namely, the Constitutional Court, which ran counter to the principle of legal certainty as upheld in Beian v. Romania ((no. 1), no. 30658/05, ECHR 2007 ‑ V (extracts)).",
"93. The Government contested that argument.",
"A. Admissibility",
"94. The Government submitted that the applicant had failed to exhaust domestic remedies on account of this complaint concerning the conflicting case-law of the Constitutional Court, which was never brought before the domestic courts. They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings, which under domestic rules are not subject to a time - limit. They considered that such proceedings would not be particularly lengthy – they gave examples of two Article 6 length cases which were decided within one year and two years and two months respectively.",
"95. The applicant noted that his complaint arose from the Constitutional Court judgment and thus could not have been included in that application. Subsequently he could not have been expected to institute a new set of constitutional redress proceedings, given the length of such proceedings, as often remarked upon also by this Court. He referred to the cases of Suso Musa v. Malta (no. 42337/12, 23 July 2013), and Aden Ahmed v. Malta (no. 55352/12, 23 July 2013). Moreover, the applicant had been one of the first to be subject to the impugned application of the law.",
"96. The Court notes that it has already established, in the context of Maltese cases before it, that even though Maltese domestic law provides for a remedy against a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy and that, in view of the specific situation of the Constitutional Court in the domestic legal order, in certain circumstances it is not a remedy which is required to be exhausted (see Saliba and Others v. Malta, no. 20287/10, § 78, 22 November 2011; Bellizzi v. Malta, no. 46575/09, § 44, 21 June 2011; and Dimech, cited above, § 53 ).",
"97. In the present case the criminal proceedings against the applicant started in 2003 and ended in 2011, and were followed by another two years of constitutional redress proceedings. Moreover, given the nature of the complaint and the above-mentioned specific situation of the Constitutional Court in the domestic legal order, the Court sees no reason to find otherwise in the circumstances of the present case.",
"98. Accordingly, the Government ’ s objection that domestic remedies have not been exhausted is dismissed.",
"99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"100. The applicant submitted that the Constitutional Court changed its interpretation of the Salduz judgment in 2012 and 2013 (see relevant domestic law) and different conclusions were then arrived at. He noted that these conflicting judgments ran counter to the principle of legal certainty. It was the Constitutional Court ’ s role to create certainty; however, concerning the subject matter it had done just the opposite. The applicant relied on the case of Beian, cited above. He noted that in The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011, and The Police v Mark Lombardi, also of 12 April 2011, the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. This interpretation was reversed in the judgment in the names of Joseph Bugeja vs The Attorney General, 14 January 2013; The Police vs Tyron Fenech, 22 February 2013; and The Police vs Amanda Agius, also of 22 February 2013, as well as in his own case. The interpretation was again reversed in The Republic of Malta vs Alfred Camilleri of 12 November 2012, albeit that decision was once again overturned.",
"101. The applicant considered that contrary to the Government ’ s submission no distinction could be drawn between judgments concerning criminal cases which had been concluded and those concerning criminal cases still pending, since the legal issue to be determined was the same.",
"(b) The Government",
"102. The Government submitted that the case did not concern an uncertainty in the interpretation of the law, but an alleged uncertainty following a judgment delivered by the Court. In their view the applicant disagreed with the findings in his case and was attempting to fabricate a complaint based on the judicial interpretation of that judgment.",
"103. The Government submitted that the Court ’ s judgments had to be interpreted by domestic courts with reference to specific circumstances of each case before them. They noted that the facts of the cases decided in 2011 had been different to those decided subsequently.",
"104. Moreover, the Government submitted that it was a natural consequence of a judicial system based on various strata of jurisdiction for judgments to vary over the years (see Santos Pinto v. Portugal, no. 39005/04, 20 May 2008). The Government noted that in Albu and Others v. Romania (nos. 34796/09 and others, 10 May 2012) the Court reiterated the general principles applicable in cases concerning conflicting court decisions. It emphasised that it was not the Court ’ s function to deal with errors of fact or law allegedly committed by a national court, unless they had infringed rights and freedoms protected by the Convention. Furthermore, in that judgment the Court reiterated that the possibility of conflicting court decisions was an inherent trait of any judicial system and that it was important to establish whether ‘ profound and long-standing differences ’ existed in the case-law of the domestic courts, whether the domestic law provided for machinery for overcoming those inconsistencies, whether that machinery had been applied, and if appropriate to what effect. A key consideration in assessing the above was whether certain stability in legal situations had been ensured, as legal certainty contributed to public confidence in the courts. However, the requirements of legal certainty did not create a right of consistency of case-law, given that case ‑ law development was not, in itself, contrary to the proper administration of justice. Achieving consistency of the law might take time, and periods of conflicting case-law might therefore be tolerated without undermining legal certainty.",
"105. The Government submitted that a distinction had to be made between those cases which concerned criminal proceedings which had come to an end and those which concerned criminal proceedings which were still ongoing. The applicant ’ s criminal case had come to an end when constitutional proceedings were undertaken, unlike those cited by him which were delivered in 2011, thus, his case had to be compared like with like, namely the following: Gregory Robert Eyre vs Attorney General, decided by the Civil Court (First Hall) in its constitutional jurisdiction on 27 June 2012; Simon Xuereb vs Attorney General, decided by the Constitutional Court on 28 June 2012; Joseph Bugeja vs Attorney General, decided by the Constitutional Court on 14 January 2013; Matthew Lanzon vs Commissioner of Police, decided by the Constitutional Court on 25 February 2013; Carmel Joseph Farrugia vs Attorney General, decided by the Constitutional Court on 5 April 2013; John Attard vs the Honourable Prime Minister and the Attorney General, decided by the Constitutional Court on 31 May 2013; and Geoffrey Galea vs Attorney General decided by the Constitutional Court on 28 June 2013. In all these cases the courts had found no violation of the provision at issue. Thus, there existed no judgment finding such a violation in respect of criminal cases that had been concluded. Furthermore, it had to be noted that the 2011 cases cited by the applicant concerned vulnerable people due to their age, and that statements made without legal assistance constituted the sole evidence brought against them.",
"106. In the Government ’ s view, contrary to the applicant ’ s assertion, the Constitutional Court managed to create legal certainty by establishing a pattern in the manner in which cases concerning the subject matter at issue were being dealt with. From an analysis of the judgments it was clear that the Constitutional Court attributed importance to the vulnerability of the individual in those cases where the only evidence that the prosecution had was an admission in a statement. The Constitutional Court has also established that each and every case is considered on its own merits and if it transpires that the person is not a vulnerable person or there is other evidence besides an admission in a statement, the Constitutional Court did not find an Article 6 violation. Thus, there were no divergences in the case ‑ law of the Constitutional Court.",
"2. The Court ’ s assessment",
"(a) General principles",
"107. One of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII), which, inter alia, guarantees a certain stability in legal situations and contributes to public confidence in the courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 57, 20 October 2011). The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009). However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008), and case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010).",
"108. The Court has been called upon a number of times to examine cases concerning conflicting court decisions and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of domestic supreme courts were in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention (see Paduraru v. Romania, no. 63252/00, ECHR 2005 ‑ XII (extracts); Beian, cited above; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009; Pérez Arias v. Spain, no. 32978/03, 28 June 2007; Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, 27 January 2009; Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008; and Tudor Tudor v. Romania, no. 21911/03, 24 March 2009 ). In so doing it has explained the criteria that guided its assessment, which consist in establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied, and if appropriate to what effect (see Iordan Iordanov and Others, cited above, §§ 49 ‑ 50).",
"(b) Application to the present case",
"109. In reply to the Government ’ s arguments (paragraph 105 above), the Court notes that the Constitutional Court ’ s findings in the applicant ’ s case were not dependent on the fact that his proceedings had ended. Indeed, irrespective of the statements made by the first-instance constitutional jurisdiction concerning the applicant ’ s case being res judicata, the Constitutional Court went on to examine and determine the merits of the applicant ’ s complaint in detail and in the light of the relevant case-law. Thus, the Court finds no reason to distinguish the examination of this complaint from that made in the case of Dimech, cited above.",
"110. Having analysed the judgments brought to the Court ’ s attention the Court observes that the difference the applicant complains of resides not in the factual situations examined by the domestic courts (see, conversely, Erol Uçar v. Turkey (dec.), no. 12960/05, 29 September 2009) – in so far as all the claimants were subject to the blanket provision – but in the application of the law (based on case-law, namely the case-law of this Court). It also appears that the Constitutional Court originally followed the Salduz judgment strictly. However, at some point, notably from 2012 onwards, the Constitutional Court “restricted” its interpretation of the Salduz judgment, with the consequence that a number of persons who were subject to the systemic ban in Malta, and who therefore were not assisted by a lawyer when they made their statements, did not have the benefit of favourable judgments remedying their situation. This interpretation appears to have remained the practice thereafter, in so far as the only example brought by the applicant to demonstrate a further inconsistency was the case of The Republic of Malta vs Alfred Camilleri of 12 November 2012, which was however overturned by the Constitutional Court pending proceedings before this Court.",
"111. Thus, as was the case in the recent Dimech judgment (cited above), in the Court ’ s view, unlike in Beian (cited above), the present case does not deal with divergent approaches by the supreme court – in the present case the Constitutional Court, which is the highest court in Malta – which could create jurisprudential uncertainty, depriving the applicant of the benefits arising from the law. The situation in the present case constituted a reversal of case-law. In this connection the Court reiterates that, as held in S.S. Balıklıçeşme Beldesi Tarım Kalkınma Kooperatifi and Others v. Turkey (nos. 3573/05, 3617/05, 9667/05, 9884/05, 9891/05, 10167/05, 10228/05, 17258/05, 17260/05, 17262/05, 17275/05, 17290/05 and 17293/05, 30 November 2010), in the absence of arbitrariness, a reversal of case-law falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as in Malta) and which are not, in theory, bound by precedent (see also Torri and Others v. Italy, (dec.), nos. 11838/07 and 12302/07, § 42, 24 January 2012, and Yiğit v Turkey, (dec.) no. 39529/10, §§ 21-22, 14 April 2014).",
"112. In Dimech, having examined the circumstances, which also pertain to this case, the Court held that no issue arose in respect of Article 6 § 1 as regards the notion of legal certainty and accordingly there was no violation of that provision (§ 69).",
"113. The Court finds no reason to hold otherwise in the present case. There has therefore not been a violation of Article 6 § 1.",
"III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6.",
"114. The applicant further complained that he had been treated differently from others in his situation as evidenced by the conflicting constitutional judgments, without an objective and reasonable justification, contrary to Article 14 of the Convention, which reads as follows:",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"115. The Government contested that argument.",
"A. The parties ’ submissions",
"116. The applicant considered that despite his being in an identical, analogous or relevantly similar situation to other persons who had not been assisted by a lawyer, the Constitutional Court had not found in his favour. That decision had been subjective and not based on any objective justification, and therefore was discriminatory. He noted discrimination needed not be based on one specific ground, although in the present case, according to the Government, it appeared that the discrimination was on the basis of age.",
"117. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint, which had never been brought before the domestic courts. They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings, which under domestic rules were not subject to a time-limit.",
"118. The Government submitted that if the Court found no violation of the substantive provision it could not find a violation of Article 14. Moreover, the applicant had not provided evidence linking the alleged discrimination with any of the grounds provided for by Article 14. Lastly, the Government submitted that the applicant had not proved that he had been treated differently from others in the same situation, namely mature persons who had given a statement during the investigation stage but had not admitted the offence, and whose proceedings contained other evidence in connection with the offence. In fact the applicant was treated the same as others in that position, and therefore had not suffered any discrimination.",
"B. The Court ’ s assessment",
"119. The Court refers to the considerations it set out above (see paragraphs 96-98 above) and therefore holds that the Government ’ s objection that domestic remedies have not been exhausted must be rejected.",
"120. The Court reiterates that although the application of Article 14 does not presuppose a breach of the other substantive provisions of the Convention and its Protocols – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Mintoff v. Malta, (dec.), no. 4566/07, 26 June 2007, and Zammit Maempel v. Malta, no. 24202/10, §§ 81 ‑ 82, 22 November 2011 ).",
"121. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). The Court also points out that the grounds on which those differences of treatment are based are relevant in the context of Article 14. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see O ’ Donoghue and Others v. the United Kingdom, no. 34848/07, § 101, ECHR 2010 (extracts)).",
"122. The Court notes that, as Article 6 applies in the present case, it follows that Article 14, in conjunction with the latter provision, is also applicable.",
"123. The Court observes that the applicant, like others in his situation, has been affected by a general ban. There is therefore a common denominator, and the applicant can, to an extent, be considered as being in an analogous situation. However, it is also true that the domestic judgments he refers to as a means of comparison concerned individuals whose situation was different from his; in particular, they concerned mostly young persons who had given statements at the investigation stage and whose proceedings, which had not come to an end, contained no other evidence in connection with the offence. Thus, despite the fact that the applicant claims that he was discriminated against possibly on the basis of age, the Court considers that this is not the sole criterion on which the domestic courts based their differentiation of the cases (see also, Dimech, cited above, § 79).",
"124. Moreover, while the Court has already held that the applicant has suffered a violation of his Article 6 rights (6 § 3 (c) taken in conjunction with Article 6 § 1, see paragraph 63 above) as a result of his not having been assisted by a lawyer, the Court did not find that an issue arose under the Convention as a result of the reversal of the case-law by the domestic courts. Following that reversal it appears that all cases of the same kind were examined on the basis of the same legal principles and criteria of judicial assessment (see Dimech, cited above, § 80 ), namely the new interpretation given to this Court ’ s case-law. It also appears that those cases that were similar to the applicant ’ s case were rejected.",
"125. It follows that any difference in treatment was objectively and reasonably justified on the basis of the new interpretation given by the domestic courts concerning the relevant safeguard, which (however questionable it may be on the merits) must be considered as falling within the margin of appreciation of a State and therefore not contrary to Article 14 (see Pérez Arias, cited above, § 28 and Dimech, cited above, § 81 ). Furthermore, it does not appear from the case file that there was any discrimination against the applicant on any other grounds (see, in similar circumstances, ibid. , and David and Others v. Romania, (dec.), no. 54577/07, 9 April 2013).",
"126. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"127. Lastly, the applicant complained in a confused manner under Article 13 of the Convention. Arguing as though his case was still pending before the criminal courts, he considered that the only effective remedy for a breach of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 would be a trial without the use of the impugned evidence. He noted that in Salduz when the Court had found a violation it had considered a retrial as the appropriate remedy ensuring that any used statements were those obtained with legal assistance.",
"128. The Court notes primarily that in the applicant ’ s case criminal proceedings had come to an end when he brought constitutional redress proceedings, thus his arguments in connection with pending criminal proceedings are out of place. Secondly, his arguments concerning the type of redress which should be meted out by the constitutional jurisdictions are misconceived in so far as they would only be of relevance had the constitutional jurisdictions found in the applicant ’ s favour. This was not so in the present case and the complaint is therefore of little pertinence in connection with the facts of the instant case, where the Constitutional Court found against the applicant (see Dimech, § 84).",
"129. Further, it has not been argued under Article 13 that the constitutional proceedings undertaken by the applicant had no prospects of success. The Court observes that while it is true that recent case-law had been in the applicant ’ s disfavour, and was, to the Court ’ s knowledge, consistently applied, it has not been argued that the domestic courts would undoubtedly have dismissed his complaint. The Court further notes that nothing seems to indicate that, had the constitutional jurisdictions found in favour of the applicant they would not have awarded the relevant redress, including if necessary, a retrial (compare, mutatis mutandis, Constitutional Court judgment no. 281/2004/1 of 18 March 2005).",
"130. Nevertheless, what is relevant to the circumstances pertaining to the present case, namely, where the domestic courts rejected the applicant ’ s claim, is that according to the Court ’ s case-law the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006 ‑ VII) and the mere fact that an applicant ’ s claim fails is not in itself sufficient to render the remedy ineffective (see Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II).",
"131. Thus, in the current scenario, the fact that the Constitutional Court rejected the applicant ’ s claim does not render such a remedy ineffective; the complaint must therefore be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"132. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"133. The applicant claimed “ non-pecuniary damage as well as pecuniary damage in the amount of expenses made in the local courts”.",
"134. The Government noted that the applicant ’ s claim for non-pecuniary damage had not been quantified. They considered that a finding of a violation was sufficient just satisfaction, and that, in any event, such an award should not exceed EUR 1,000.",
"135. Ruling on an equitable basis, the Court awards the applicant EUR 2, 5 00 in non-pecuniary damage.",
"B. Costs and expenses",
"136. The applicant claimed EUR 2,185 for the costs and expenses incurred before the domestic courts in respect of the constitutional redress proceedings.",
"137. The Government submitted that the applicant had failed to prove that the costs amounting to EUR 1, 0 76 representing Government costs during the constitutional proceedings had been paid by the applicant.",
"138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and noting that the sum mentioned by the Government remains payable domestically, the Court considers it reasonable to award the sum of EUR 2,185 covering costs and expenses in the domestic proceedings.",
"C. Default interest",
"139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
211 | Ibrahim and Others v. the United Kingdom | 13 September 2016 (Grand Chamber) | On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The first three applicants were arrested on suspicion of having detonated three of the bombs. The fourth applicant was initially interviewed as a witness in respect of the attacks but it subsequently became apparent that he had assisted one of the bombers after the failed attack and, after he had made a written statement, he was also arrested. All four applicants were later convicted of criminal offences. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers. | The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention in respect of the three first applicants and that there had been a breach of those provisions in respect of the fourth applicant. In respect of the three first applicants the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. There had therefore been compelling reasons for the temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair. The position with regard to the fourth applicant, who also complained about the delay in access to a lawyer, was different. He was initially interviewed as a witness, and therefore without legal advice. However, it emerged during questioning that he had assisted a fourth bomber following the failed attack. At that point, according to the applicable code of practice, he should have been cautioned and offered legal advice. However, this was not done. After he had made a written witness statement, he was arrested, charged with, and subsequently convicted of, assisting the fourth bomber and failing to disclose information after the attacks. In his case, the Court was not convinced that there had been compelling reasons for restricting his access to legal advice and for failing to inform him of his right to remain silent. It was significant that there was no basis in domestic law for the police to choose not to caution him at the point at which he had started to incriminate himself. The consequence was that he had been misled as to his procedural rights. Further, the police decision could not subsequently be reviewed as it had not been recorded and no evidence had been heard as to the reasons behind it. As there were no compelling reasons, it fell to the UK Government to show that the proceedings were nonetheless fair. In the Court’s view they were unable to do this and it accordingly concluded that the overall fairness of the fourth applicant’s trial had been prejudiced by the decision not to caution him and to restrict his access to legal advice. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Introduction",
"B. The first three applicants",
"1. The arrests and interviews",
"2. The trial of the first three applicants",
"3. The appeal of the first three applicants",
"C. The case of the fourth applicant",
"1. The fourth applicant ’ s questioning by the police",
"2. The fourth applicant ’ s trial",
"3. The fourth applicant ’ s appeal"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Cautions",
"B. Safety interviews",
"1. The Terrorism Act 2000",
"2. The relevant provisions of Code C",
"C. The admissibility of evidence",
"D. The reopening of criminal proceedings",
"III. RELEVANT EUROPEAN UNION AND INTERNATIONAL LEGAL MATERIALS",
"A. European Union law",
"1. The right to be informed",
"2. The right of access to a lawyer",
"3. Privilege against self-incrimination and right to silence",
"B. International law",
"1. The International Covenant on Civil and Political Rights (“ICCPR”)",
"2. International criminal tribunals",
"IV. RELEVANT COMPARATIVE LEGAL MATERIALS",
"A. Council of Europe States",
"B. The United States",
"C. Canada",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"A. The Chamber ’ s conclusions",
"B. The parties ’ submissions to the Grand Chamber",
"1. The applicants",
"2. The Government",
"3. The third party intervener",
"C. The Court ’ s assessment",
"1. General principles",
"2. The application of the general principles to the facts of the case",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"A. Damage",
"B. Costs and expenses",
"C. Default interest"
] |
212 | Simeonovi v. Bulgaria | 12 May 2017 (Grand Chamber) | The applicant, who is currently serving a sentence in Sofia Prison, alleged in particular that he had not been assisted by a lawyer during the first days of his detention. | The Grand Chamber held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention, finding that the Bulgarian Government had presented relevant and sufficient evidence to demonstrate that they had not irremediably infringed the fairness of the criminal proceedings taken as a whole on account of the lack of legal assistance during the first three days of the applicant’s police custody. In particular, the Court noted that no evidence capable of being used against the applicant had been obtained and included in the criminal file during that period; that the applicant, assisted by a lawyer of his own choosing, had voluntarily confessed two weeks after being charged, when he had been informed of his procedural rights, including the privilege against self-incrimination; that the applicant had actively participated in all stages of the criminal proceedings; that his conviction had not been based solely on his confession but also on a whole body of consistent evidence; that the case had been assessed at three judicial levels and that the domestic courts had provided adequate reasons for their decisions in both factual and legal terms and had properly examined the issue of respect for procedural rights. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicant was born in 1975 and is detained in Sofia Prison.",
"A. Criminal proceedings against the applicant",
"1. The applicant ’ s arrest and detention in police custody",
"11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide.",
"12. The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S.",
"13. By decision of 9 July 1999 a police officer ordered the applicant ’ s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee ’ s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time.",
"14. On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next.",
"15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant ’ s detention for twenty-four hours from 8 p.m.",
"16. On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day.",
"17. The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant ’ s right to the assistance of a lawyer and does not bear his signature.",
"18. The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests.",
"19. He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders.",
"20. The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant ’ s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold - up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident.",
"21. On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold - up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements:",
"“I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov.",
"I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence.",
"I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.”",
"2. Continuation of the criminal proceedings against the applicant",
"22. On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims.",
"23. On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date.",
"24. On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S.",
"25. On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva.",
"26. Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence.",
"27. On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again.",
"28. On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh.",
"29. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.",
"30. On 17 May 2000 the regional prosecutor ’ s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court.",
"31. The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.",
"32. On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant ’ s placement under the “special” prison regime.",
"33. Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant ’ s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim ’ s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.",
"34. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias.",
"35. The applicant ’ s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re ‑ examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence ‑ gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias.",
"36. The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.",
"37. On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter ’ s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered.",
"38. The Court of Appeal observed that the accused ’ s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused ’ s initial statements, which had been made to an investigator in their lawyers ’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer ’ s allegation that the applicant ’ s initial confession had been extracted from him.",
"39. The Court of Appeal turned its attention to the applicant ’ s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant ’ s version of events.",
"40. The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused ’ s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties ’ interests.",
"41. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds.",
"42. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant ’ s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant ’ s detention in police custody.",
"43. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant ’ s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken.",
"44. Furthermore, in endorsing the Court of Appeal ’ s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused ’ s rights had been fully respected.",
"B. The applicant ’ s conditions of detention",
"45. The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.",
"1. Burgas Investigation Detention Facility",
"46. The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.",
"47. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees ’ human dignity.",
"2. Burgas Prison",
"48. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict ’ s uniform even though he should have been allowed to wear his own clothes, under the prison rules.",
"49. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S. ’ s statement (see paragraph 48 above), prisoners were allowed one-hour ’ s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.",
"50. According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison ’ s activity coordinator.",
"3. Sofia Prison",
"51. Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population.",
"52. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet.",
"53. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.",
"54. Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant ’ s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books.",
"55. According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting.",
"56. Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population.",
"57. Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void.",
"IV. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)",
"76. The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment.",
"77. Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment.",
"78. Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57-59 of the Chamber judgment.",
"79. The relevant part of the last report on a visit to this prison, in 2015, reads as follows:",
"“3. Conditions of detention",
"a. material conditions",
"...",
"39. At the time of the visit, the closed section of Sofia Prison was holding 816 prisoners for an official capacity of 650. The closed section of Varna Prison was accommodating 422 prisoners for an official capacity of 350. And as for Burgas Prison, at the time of the visit, there were 579 prisoners in the closed section for an official capacity of 371.",
"In the three prisons, the overwhelming majority of the cells were extremely overcrowded ... The situation at Sofia and Varna prisons remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.",
"40. The situation was aggravated even more by the fact that material conditions in all the three prisons visited in 2015 still demonstrated an ever-worsening advanced state of dilapidation and insalubrity, despite some last-minute cosmetic efforts observed. Most of the common sanitary facilities at Sofia, Burgas and Varna prisons were totally dilapidated and unhygienic. Moreover, they were accessible to prisoners only during the day; at night the majority of the inmates had to resort to buckets (one for each cell).",
"The cells were mostly equipped with two-tier and three-tier bunk beds and access to natural light and ventilation was poor. Walls were covered with mould, floors were damaged, and ceilings leaking; cells were infested with cockroaches, bedbugs and other vermin. It should be noted in this regard that no cleaning materials were made available to the prisoners.",
"Heating was functioning only a couple of hours a day (the delegation measured some 14 o C in cells and 10 o C in in-cell toilets at Sofia Prison ...",
"It can thus be stated that most parts of these establishments were unfit for human accommodation and represented a serious health risk both for inmates and staff. Despite the repeated criticism, no progress was observed as regards the implementation of the CPT ’ s recommendations made after its visits in 2010, 2012 and 2014. To sum up, in the CPT ’ s opinion, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.",
"…",
"b. Regime",
"...",
"43. Possibilities for purposeful activities in Sofia, Varna and Burgas prisons were very limited. The cells were unlocked during the day (with the exception of the high security and admission units) and most prisoners just roamed the corridors or stayed in their cells watching TV or playing board games with other inmates. All inmates had access to a library and a multi-faith area.",
"The only activity for most prisoners was daily outdoor exercise, usually lasting one hour at Varna Prison, one-and-a-half hours at Sofia Prison and two hours at Burgas Prison.",
"44. As regards work, at Sofia Prison, 258 prisoners had jobs (but 120 of the work places were unpaid), most of them on general prison maintenance services. ... Educational activities were offered to 78 prisoners at Sofia and 49 prisoners at Varna Prison. Other activities included language courses and IT classes (with 225 inmates attending at Sofia Prison) ...”",
"80. On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted):",
"“1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has carried out ten visits to Bulgaria since 1995. In the course of those visits, delegations of the Committee have visited all but one prison, several investigation detention facilities (IDFs) and numerous police establishments in the country.",
"2. Major shortcomings have been identified during the above-mentioned visits, especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas.",
"In its reports, the CPT has many times drawn the Bulgarian authorities ’ attention to the fact that the principle of co-operation between State Parties and the CPT, as set out in Article 3 of the Convention establishing the Committee, is not limited to steps taken to facilitate the tasks of a visiting delegation. It also requires that decisive action be taken to improve the situation in the light of the CPT ’ s recommendations.",
"The vast majority of these recommendations have remained unimplemented, or only partially implemented. In the course of the Committee ’ s visits to Bulgaria in 2010, 2012, 2014, and 2015, the CPT ’ s delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty.",
"3. In the report on its 2012 visit, the Committee expressed its extreme concern about the lack of progress observed in the Bulgarian prison system and stressed that this could oblige the CPT to consider having recourse to Article 10, paragraph 2, of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment.",
"This procedure was set in motion after the March/April 2014 visit; indeed, the Committee ’ s findings during that visit demonstrated a persistent failure by the Bulgarian authorities to address certain fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty. The visit report highlighted a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995, as regards the phenomenon of ill-treatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in IDFs and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and contact with the outside world.",
"4. The responses of the Bulgarian authorities to the report on the CPT ’ s 2014 visit and to the letter by which the Committee has informed the authorities of the opening of the procedure set out in Article 10, paragraph 2, of the Convention have, to say the least, not alleviated the CPT ’ s concerns. In particular, the responses were succinct, contained very little new information and failed to address the majority of the Committee ’ s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints. Further, most of the information contained in the CPT ’ s report as concerns ill-treatment and inter-prisoner violence was simply dismissed.",
"The 2015 visit was therefore an opportunity for the Committee to assess the progress in the implementation of its long-standing recommendations and to review, in particular, the treatment and detention conditions of persons held at Sofia, Burgas and Varna Prisons, as well as at Sofia IDF (located on G.M. Dimitrov Boulevard).",
"Regrettably, the findings made during the aforementioned visit demonstrate that little or no progress has been achieved in the implementation of key recommendations repeatedly made by the CPT.",
"For these reasons, the Committee has been left with no other choice but to make a public statement, pursuant to Article 10, paragraph 2, of the Convention; it took this decision at its 86th plenary meeting in March 2015.",
"Police ill-treatment",
"5. In the course of the 2015 visit, the Committee ’ s delegation received a significant number of allegations of deliberate physical ill-treatment of persons detained by the police; the number of such allegations had not decreased since the 2014 visit but was even on the rise in Sofia and Burgas. The alleged ill-treatment generally consisted of slaps, kicks, and in some cases truncheon blows. The delegation concluded that men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning.",
"6. Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT ’ s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody.",
"...",
"Detention in the Ministry of Justice ’ s establishments",
"8. The situation as regards physical ill-treatment of prisoners by staff remains alarming in the three prisons visited in 2015. Many allegations of deliberate physical ill-treatment (usually consisting of slaps, punches, kicks and truncheon blows) were again heard at Sofia and Burgas Prisons and, at Varna Prison, the Committee ’ s delegation was flooded with such allegations. In a number of cases, the delegation found medical evidence consistent with the allegations received.",
"...",
"12. Overcrowding remains a very problematic issue in the Bulgarian prison system. For example, at Burgas Prison, the vast majority of inmates had less than 2 m² of living space in multi-occupancy cells, with the notable exception of the remand section. The situation at Sofia Prison remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.",
"13. The material conditions at Sofia, Burgas, and Varna Prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee ’ s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.",
"14. The vast majority of inmates (including almost all the remand prisoners) in the three prisons visited in the course of the 2015 visit still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day.",
"...",
"Concluding remarks",
"17. In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above ‑ mentioned long-standing problems. This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change.",
"18. The Committee fully acknowledges the challenges that the Bulgarian authorities are facing. In the CPT ’ s view, there is a real need to develop a comprehensive prison policy, instead of concentrating exclusively on material conditions (which, as should be stressed, have only improved to an extremely limited extent). Having in place a sound legislative framework is no doubt important. However, if laws are not backed by decisive, concrete and effective measures to implement them, they will remain a dead letter and the treatment and conditions of persons deprived of their liberty in Bulgaria will deteriorate even further. As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights).",
"The Committee ’ s aim in making this public statement is to motivate and assist the Bulgarian authorities, and in particular the Ministries of the Interior and Justice, to take decisive action in line with the fundamental values to which Bulgaria, as a member state of the Council of Europe and the European Union, has subscribed. In this context, the CPT ’ s long-standing recommendations should be seen as a tool that helps the Bulgarian authorities to identify shortcomings and make the necessary changes. In furtherance of its mandate, the Committee is fully committed to continuing its dialogue with the Bulgarian authorities to this end.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Conditions for the execution of life sentences, and compensatory remedies under the 1988 State and Municipalities Responsibility for Damage Act",
"58. The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of poor conditions of detention were summarised in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 108- 1 35 and §§ 136- 1 46 respectively, ECHR 2014 [extracts]).",
"B. The right to the assistance of a lawyer in criminal proceedings and information to be provided to detainees concerning their rights",
"1. The Ministry of the Interior Act and its implementing regulations",
"59. The Ministry of the Interior Act 1997 and its 1998 implementing regulations allowed the police to arrest persons suspected of having committed criminal offences and detain them for twenty-four hours. Arrestees were entitled to legal assistance from the time of their arrest. The relevant provisions of the Act and the implementing regulations, in the version in force at the time of the applicant ’ s arrest, read as follows:",
"Section 70 of the 1997 Act",
"“(1) The police may detain persons:",
"1. who have committed criminal offences ...",
"(4) Detained persons shall be entitled to legal assistance as of the time of their arrest.”",
"Regulation 54 of the Act ’ s implementing regulations",
"“(1) A detention order shall be made in respect of the persons mentioned in section 53 (1).",
"(2) Orders made under (1) above shall mention:",
"...",
"5. the rights secured to the person concerned under section 70(3) and (4) of the Ministry of the Interior Act.",
"(3) The order must be signed by the police department and the detainee.",
"...",
"(6) A copy of the order shall be presented to the detainee.”",
"60. At the time of the applicant ’ s arrest domestic legislation did not provide for presenting detainees with a separate document setting out their rights, including the right to legal assistance.",
"61. On 6 March 2002 the Minister of the Interior issued an internal instruction stating that, immediately after their arrest, detainees had to sign two copies of a statement setting out their rights, including the right to legal assistance.",
"62. In 2003 Implementing Regulation 54(3) of the Ministry of the Interior Act (see paragraph 59) was amended. The amended regulation provided for the presentation to detainees of a “declaration of rights” which they had to sign, stating, in particular, their intention either to avail themselves of or to waive their right to legal assistance. The new wording of the paragraph was as follows:",
"“( 3) The detainee shall fill in a declaration indicating that he has been informed of his rights and stating whether or not he intends to use his rights under paragraph (2) (5) (b)-(e).”",
"63. The domestic legislation and regulations introduced in this sphere since that time have incorporated a reference to the “declaration of rights” which detainees must sign after their arrest.",
"2. Code of Criminal Procedure",
"64. At the time of the proceedings in issue, the 1974 Code of Criminal Procedure allowed investigators responsible for criminal cases to order the suspect ’ s detention for twenty-four hours. The detention period could be extended by a prosecutor up to a maximum of three days. The legislative provisions on such detention and the rights conferred on the suspect during detention read as follows:",
"Article 202",
"“(1) The investigator may, even without the prosecutor ’ s authorisation, order preliminary detention for a criminal offence which is subject to mandatory prosecution and for which a preliminary investigation is compulsory where:",
"1. the person in question was arrested at or just after the time of commission of the offence;",
"2. an eyewitness has identified the person as the perpetrator of the offence;",
"3. visible traces of the offence have been discovered on the person ’ s body or clothing or in his place of residence;",
"4. the person in question has attempted to flee ...”",
"Article 203",
"“(1) The investigator must inform the prosecutor of the detention within twenty-four hours, mentioning the reasons for it.",
"(2) The prosecutor must immediately confirm or revoke the detention order. Under the circumstances set out in Article 202 § 1, points 1 and 3, where detention has been ordered for a serious crime which is subject to mandatory prosecution, the prosecutor may extend the period of detention up to a maximum of three days.",
"(3) If, on expiry of the period set out in paragraphs 1 and 2 above, the person concerned has not been charged with an offence, the investigator must release him.",
"...”",
"Article 206",
"“(1) Individuals who are under a detention order ... within the meaning of Article 202 shall have the following rights: to be informed of the offences of which they are suspected; to make statements; to take action ... to challenge measures taken by the authorities responsible for the preliminary investigation ...",
"2) As regards the statements ... mentioned in the previous paragraph, the provisions of Articles 73 [and] 87 ... shall be applicable mutatis mutandis .”",
"65. During the preliminary investigation the suspect is formally notified of the charges against him by means of an indictment. This confers on him official defendant ( обвиняем ) status. From then on the person ’ s statements can be recorded for use in evidence in the criminal proceedings. The defendant has several procedural rights, including the right to the assistance of a lawyer at the preliminary investigation stage. The relevant provisions of the 1974 Code of Criminal Procedure read:",
"Article 50",
"“The defendant is a person who has been charged under the conditions and according to the procedures set out in the present Code.”",
"Article 51",
"“(1) The defendant has the following rights: to know the charges against him and the evidence on which those charges are based, to give statements on the charges, to have access to the case file and obtain the requisite copies of case papers, to submit evidence, to take part in the criminal proceedings, to submit requests ..., to speak last during questioning, to challenge the decisions of courts and preliminary investigation bodies infringing his rights and legitimate interests and to be assisted by a defence lawyer. At the defendant ’ s request, the defence lawyer shall be present during the implementation of the investigative measures.",
"...”",
"Article 67",
"“(1) The defence lawyer may be a person practising the legal profession.",
"...”",
"Article 70",
"“(1) Participation by a defence lawyer in the criminal proceedings is mandatory where:",
"...",
"3. the criminal case concerns a crime punishable by the death penalty, life imprisonment or a prison sentence of at least ten years.",
"(3) When participation by a defence lawyer is mandatory, the competent authority shall be required to appoint a person practising the legal profession as defence lawyer.",
"(4) The officially appointed defence lawyer shall be excluded from the criminal proceedings if the defendant engages a different defence lawyer.”",
"Article 72",
"“(1) The defendant may, at any stage in proceedings, waive his right to the assistance of a defence lawyer, except in the situation mentioned in Article 70 § 1, paragraphs. 1 to 3.",
"...”",
"Article 73",
"“(1) The defence lawyer may take part in the criminal proceedings as of the time the person concerned has been arrested or charged.",
"(2) The authority responsible for the preliminary investigation must inform the defendant of his right to the assistance of a defence lawyer and permit him to contact such lawyer. That authority cannot implement any investigative measures before having fulfilled that obligation.",
"...”",
"Article 85",
"“(1) Evidence shall be established on the basis of the defendant ’ s statements, the suspect ’ s statements, witness statements, records of the investigative and procedural steps and by other means as laid down in this Code.",
"(2) Evidence which has not been gathered or drawn up in conformity with the rules of the present code shall be declared inadmissible.",
"...”",
"Article 87",
"“(1) The defendant shall give evidence orally and directly before the competent authority. The defendant shall give evidence in the presence of a defence lawyer if he so requests. That request shall be recorded in minutes and the defence lawyer shall be invited to attend the questioning.",
"...",
"(3) The defendant may refuse to give evidence.",
"...”",
"Article 91",
"“(1) The indictment and the conviction cannot be based solely on the defendant ’ s confessions.",
"(2) Confessions by the defendant shall not release the competent authorities from their obligation to gather other evidence in the course of the proceedings.”",
"3. Case-law",
"66. Under the established case-law of the Bulgarian Supreme Court of Cassation, if the authorities responsible for criminal investigations fail to formally charge the suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the courts to refer the case back to the preliminary investigation stage and the aforementioned authorities so that they can remedy the omission ( Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК ).",
"67. By the same token, the absence of a defence lawyer during the charging of the suspect and the implementation of the subsequent investigative measures, when legal assistance is mandatory under the Code of Criminal Procedure, amounts to a major procedural flaw which necessitates the referral of the case back to the authorities responsible for the preliminary investigation ( Решение № 68 от 21.04.1992г. по н.д. № 986/91г. на ВС, I н.о. ). In that situation those authorities are required to repeat the investigative measures in question in the presence of a defence lawyer ( Решение № 604 от 31.10.1991г. по н.д. № 436/91г. на ВС, I н.о .).",
"68. Under the established case-law of the Bulgarian courts, evidence gathered in breach of the rules set out in the Code of Criminal Procedure, including statements made to the police, has no probative value and is excluded from the case file ( Решение № 179 от 21.11.1997г. на ВКС по н.д. № 182/1997г. ВК; Решение № 361 от 8.07.2003г. на ВКС по н.д. № 123/2003г., III н.о. ; Решение № 518 от 21.01.2009г. на ВКС по н.д. № 435/2008г., II н.о ., НК).",
"III. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW",
"A. United Nations",
"69. Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial. The relevant parts of that provision read as follows:",
"Article 14",
"“...",
"3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:",
"...",
"(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;",
"...",
"(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...”",
"70. The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications.",
"71. The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see Kelly v. Jamaica, 1991, 253/1987, § 5.10., and Borisenko v. Hungary, 2002, 852/1999, § 7.5), including during police questioning (see Gridin v. the Russian Federation, 2000, 770/1997, § 8.5). However, in Levinov v. Belarus (2011, 1812/2008, § 8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14 § 3 (b) of the Covenant had not been infringed by the authorities.",
"72. As regards the right to be informed of the right to a lawyer, in its concluding observations on the 4 th periodic report concerning the Netherlands ((2009), UN doc. CCPR/C/NDL/CO/4, § 11), the HRC considered that States should give full effect to the right to contact counsel before police questioning and ensure that individuals suspected of criminal offences were informed, on their arrest, of their right to legal assistance.",
"73. Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. the Russian Federation, 2011, 1304/2004).",
"B. European Union",
"74. Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings was adopted on 22 May 2012. The deadline for its transposition into the legislation of the European Union Member States was 2 June 2014. The relevant provisions of the Directive read as follows:",
"Article 1 Subject matter",
"“This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them ...”",
"Article 2 Scope",
"“1. This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings ...”",
"Article 3 Right to information about rights",
"“1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:",
"(a) the right of access to a lawyer ...",
"2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.”",
"Article 4 Letter of Rights on arrest",
"“1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty ...”",
"75. Directive 2013/48/EU of the European Parliament and of the Council on, inter alia, the right of access to a lawyer in criminal proceedings was adopted on 22 October 2013. The deadline for its transposition into the legislation of the European Union Member States was 27 November 2016. The relevant provisions of the Directive read as follows:",
"Article 1 Subject matter",
"“This Directive lays down minimum rules concerning [the right] of suspects and accused persons in criminal proceedings ... to have access to a lawyer ...”",
"Article 2 Scope",
"“1. This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings ...”",
"Article 3 The right of access to a lawyer in criminal proceedings",
"“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.",
"2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:",
"(a) before they are questioned by the police or by another law enforcement or judicial authority;",
"(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;",
"(c) without undue delay after deprivation of liberty;",
"(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.",
"3. The right of access to a lawyer shall entail the following:",
"(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;",
"(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;",
"(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:",
"(i) identity parades;",
"(ii) confrontations;",
"(iii) reconstructions of the scene of a crime.",
"4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.",
"Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.",
"...”",
"Article 9 Waiver",
"“1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10:",
"(a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and",
"(b) the waiver is given voluntarily and unequivocally.",
"2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.",
"3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.”",
"THE LAW",
"I. SCOPE OF THE GRAND CHAMBER ’ S JURISDICTION",
"81. In his memorial submitted to the Grand Chamber and in the course of the hearing, the applicant asked the Grand Chamber to reverse the decision given on 23 August 2011 by the Chamber declaring inadmissible his complaint under Article 3 of the Convention relating to his whole-life sentence.",
"82. The Government opposed that request. They submitted that it was contrary to the Court ’ s case-law to the effect that the case which was referred to the Grand Chamber was the application as declared admissible by the Chamber.",
"83. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber ’ s decision on admissibility (see, in particular, K. and T. v. Finland [GC], no. 25702/94, §§ 140 and 141, ECHR 2001 ‑ VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III; Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 235 and 236, ECHR 2012 (extracts); and Murray v. the Netherlands [GC], no. 10511/10, § 86, ECHR 2016 ). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from that principle in the present case.",
"84. Accordingly, in the framework of the present case, the Court has no jurisdiction to adjudicate on the complaint raised under Article 3 of the Convention concerning the imposition of a whole-life sentence on the applicant.",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"85. The applicant complained of the physical conditions of his detention and of the prison regime in the Burgas Investigation Detention Facility and in Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. The parties ’ submissions",
"86. The applicant invited the Grand Chamber to endorse the Chamber ’ s conclusion that there had been a violation of Article 3 of the Convention.",
"87. The Government submitted no observations on this complaint before the Grand Chamber. However, they pointed out that a wide-ranging programme to reform the Bulgarian prison system was currently being implemented. The programme would ultimately facilitate the application of the European standards on prisoner treatment, including in terms of conditions of detention.",
"B. The Court ’ s assessment",
"88. The Court notes that the Chamber found that there had been a violation of Article 3 of the Convention (see paragraphs 88-95 of the Chamber judgment). The Chamber stated in particular:",
"“89. The applicant has been incarcerated since October 1999. Since that date he has been held in three different establishments: the Burgas Investigation Detention Facility, Burgas Prison and Sofia Prison.",
"90. The Court notes that the parties agree on the inadequacy of the material conditions which prevailed in the Burgas Investigation Detention Facility between October 1999 and April 2000, when the applicant was held there ... The report on the 1999 CPT visit corroborates this finding ...",
"91. The applicant was subsequently transferred to Burgas Prison, where he remained from 2000 to 2004 ... In the report on its 2002 visit the CPT delegation stated that the wing for life prisoners in Burgas Prison where the applicant ’ s cell was located had recently been refurbished, that the individual cells had an area of 6 m2 each and had adequate ventilation and lighting. The main problem noted by the CPT delegation had been the restricted access to the shared sanitary facilities and the use of buckets as toilets by the prisoners ...",
"92. On 25 February 2004 the applicant was transferred to Sofia Prison, where he continued to serve his sentence. According to the reports of the 2006, 2008 and 2014 CPT visits to that prison, all the cells in the prison ’ s high-security wing had in-cell sanitary facilities ... According to information presented by the Government, this section of the prison was renovated in 2005 and 2006, and the applicant benefited from a decent-sized individual cell ... However, the report of the CPT ’ s visit in 2014 once again singles out the general dilapidation of the area of Sofia Prison reserved for prisoners serving life sentences, and the lack of daylight and insufficient hygiene in the premises ...",
"93. The Court notes that throughout his years in prison the manner and method of executing the applicant ’ s life sentence, as determined by the prison regime assigned to him, were highly restrictive. The applicant had initially been assigned a so-called special prison regime: he had spent twenty-three hours a day locked up in his cell, mostly on his bed; his access to the prison library had been limited to the few minutes it took to choose and borrow a book; he had been allowed to attend the prison chapel twice a year, with a ban on meeting other prisoners ... In 2008 his prison regime was relaxed ... However, like all prisoners in his category, he was still kept separate from the rest of the prison population and his cell was kept locked during the day ( ibid .). The successive CPT reports show that the prisoners in the high-security wing of Sofia Prison have very few out-of-cell activities and are kept separated from the other prisoners ...",
"94. In the light of the foregoing facts and as it noted in the recent judgment in the case of Harakchiev and Tolumov, cited above, §§ 203-214, the Court considers that the applicant ’ s poor conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term in question, subjected the applicant to an ordeal far exceeding the suffering inherent in the execution of a prison sentence. The Court therefore finds that the severity threshold required for the application of Article 3 of the Convention was exceeded in the present case. The applicant was placed in an ongoing situation of infringement of his right not to be subjected to inhuman and degrading treatment.",
"95. There has therefore been a violation of Article 3 of the Convention.”",
"89. The Court sees no reason to depart from the Chamber ’ s conclusions. Moreover, it observes that the report of the CPT ’ s last visit to Bulgaria and its public statement of 2015 mention that the poor conditions of detention noted in Sofia Prison persist (see paragraphs 79 and 80 above).",
"90. Like the Chamber, the Court considers that the applicant ’ s conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term (since 1999), have subjected him to an ordeal exceeding the suffering inherent in the execution of a prison sentence and amount to inhuman and degrading treatment.",
"91. There was therefore a violation of Article 3 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"92. The applicant alleged that he had not been assisted by a lawyer for the first few days of his detention. He relied on Article 6 §§ 1 and 3 (c), which reads as follows:",
"Article 6",
"“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”",
"93. The Government contested that argument.",
"A. The Chamber judgment",
"94. Having reiterated the principles emerging from the Court ’ s case-law concerning legal assistance, the Chamber considered that a distinction should be made between the present case and that of Dayanan v. Turkey (no. 7377/03, 13 October 2009) inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choosing from the time of their arrest. However, the Chamber noted that the applicant had not actually benefited from this legal safeguard for the first three days of his detention, but stated that it was unable to determine whether that situation had been due to the authorities ’ acting mala fide or the applicant ’ s own passivity.",
"95. The Chamber lastly concluded that the fairness of the proceedings had not been infringed, for the following reasons: (i) there was no indication in the file that the applicant had been questioned during the first three days of his detention; (ii) all his interrogations had taken place after he had been formally charged on 6 October 1999, in the presence of a lawyer; (iii) no other investigative measure involving the applicant had been implemented during that initial period of detention; (iv) the applicant had confessed to the offences a few days later, when he had been assisted by a lawyer of his choosing and had known that that confession could be used in evidence against him in support of a possible conviction; (v) his conviction had been based not solely on that confession but on a whole body of consistent evidence; (vi) the applicant had amply benefited from his right to defend himself with a lawyer ’ s assistance and the domestic courts had delivered reasoned judgments (see paragraphs 113-116 of the Chamber judgment).",
"B. The parties ’ submissions",
"1. The applicant",
"96. The applicant invited the Grand Chamber to conclude that there had been a violation of Article 6 on the grounds that he had not been assisted by a lawyer while in police custody from 3 to 6 October 1999 at noon.",
"97. He submitted that he had made several requests between 3 and 6 October 1999 to consult a lawyer but that the authorities had rejected them. He stated that he had been questioned during that time, and maintained that his allegations were not ill-founded. He alleged that it would have been quite illogical for the authorities not to attempt to question him during that time, and the lack of any written trace of those interrogations corroborated his allegation that he had been pressured by the investigators to confess.",
"98. The applicant argued that the fact that he had remained silent when questioned on 6 and 12 October 1999 could not be deemed decisive. He explained that he had not had an opportunity to consult the lawyers before the questioning or to obtain guidance from them. That was also why the fact that he had been assisted by a lawyer of his choosing when he had confessed on 21 October 1999 could not be held against him. The lawyers ’ presence during those interrogations did not mean that they had provided him with any effective assistance.",
"99. Finally, the applicant affirmed that the right to legal assistance laid down in Article 6 § 3 (c) was autonomous from the requirement of a fair trial enshrined in Article 6 § 1. A finding of a violation or no violation of that autonomous right in the present case depended solely on the answer to the following question: were there any reasons justifying the restriction of his access to a lawyer while in police custody? If there were no such reasons, the fact that the conviction had not been exclusively based on the applicant ’ s confession and the fact that he had had the effective assistance of one or more lawyers for the rest of the criminal proceedings were of no consequence in relation to Article 6 § 3 (c).",
"2. The Government",
"100. The Government invited the Grand Chamber to follow the Chamber ’ s example by declaring that in the instant case there had been no violation of the relevant provisions of the Convention.",
"101. They observed that under domestic legislation the applicant had been entitled to legal assistance as of the time of his arrest, and that it had been the police officers ’ legal duty to inform him of that right. The Government affirmed that in the absence of any proof to the contrary, that obligation had been honoured. In any event the applicant ’ s allegations themselves indicated that he had been aware that domestic legislation entitled him to legal assistance.",
"102. Moreover, there was no evidence to corroborate the applicant ’ s allegations that while in police custody he had asked to speak to a lawyer and his request had been refused by the authorities. Domestic legislation at the material time had not provided for the preparation of written documents recording the detainee ’ s wish to consult a lawyer or his waiver of that right. Furthermore, the applicant had not, at any stage in the criminal proceedings before the domestic courts, raised his complaint concerning the absence of a lawyer during his time in police custody.",
"103. The Government further submitted that there was no evidence to support the applicant ’ s allegation that he had been questioned in police custody before being charged. At the hearing before the Grand Chamber the Government added that even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings. At no stage in the proceedings had the authorities referred to any statements given by the applicant between 3 and 6 October 1999 at noon. Furthermore, his conduct during that period had not been taken into account in the ensuing criminal proceedings. During that time the applicant had been arrested, transferred to Burgas, taken to the Burgas detention facility and been subjected to medical examinations. At no stage in the domestic proceedings had he alleged that he had been questioned in police custody, and his observations on the subject before the Court had been inconsistent, contradictory and lacking in detail.",
"104. Lastly, the Government observed that the right to legal assistance as secured under Article 6 § 3 (c) was one of the aspects of the right to a fair criminal trial guaranteed by Article 6 § 1 of the Convention. They therefore submitted that the Court should seek to establish whether the overall fairness of the criminal proceedings in the present case had been affected by the fact that the applicant had not had the assistance of a lawyer while in police custody. The Government invited the Grand Chamber to uphold the Chamber ’ s finding that the criminal proceedings in the applicant ’ s case had generally been fair. He had been assisted by lawyers of his choosing, a body of evidence had been gathered and the case had been scrutinised by courts at three levels of jurisdiction, which had addressed the arguments put forward by the defence. No statement by the applicant or other piece of evidence that might have been used as a basis for his conviction had been gathered during his time in police custody without a lawyer.",
"3. Third-party submissions",
"105. In its observations to the Grand Chamber, the Association for the Prevention of Torture emphasised that making legal assistance available as soon as a suspect was detained was one of the fundamental safeguards for the fairness of criminal proceedings. In its case-law the Court had found violations of Article 6 §§ 1 and 3 (c) where confessions obtained during detention in the absence of a lawyer had subsequently been used to convict the person in question (citing Salduz v. Turkey [GC], no. 36391/02, ECHR 2008), but also where the detainees had opted to remain silent (citing Dayanan v. Turkey, cited above) or to deny their involvement in the offences with which they were charged (citing Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009). The bodies responsible for human rights protection within the United Nations system had also emphasised the importance of legal assistance from the first few hours of detention.",
"106. Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect ’ s right not to incriminate himself where he had not been informed of the charges against him. Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention. Thus, even if the detainee made no statement, the mere absence of a lawyer during the first few hours of detention was detrimental to the fairness of proceedings. That was particularly true in cases where the allegations were extremely serious and where the detainee was in a particularly vulnerable position.",
"107. With reference to various European, national and international legal instruments, the third party pointed out that it was widely accepted that an effective right of access to a lawyer required the following: the accused had to be informed in advance of his right to speak to a defence lawyer; access to the lawyer had to be provided as soon as the person was arrested, and at all events before the initial police questioning; the lawyer had to be able to perform all the services necessary for his work, such as being able to hold private talks with his client, discuss all the facts of the case, be present during questioning, put questions and ask for clarifications.",
"108. The third party reminded the Grand Chamber of the approach used by the Chamber in the case of Leonid Lazarenko v. Ukraine (no. 22313/04, § 57, 28 October 2010), in which the right to a fair trial had been found to have been irretrievably prejudiced by the fact that a confession obtained without access to a lawyer had been used for a conviction, even if they had not been the sole basis for it.",
"109. Lastly, the third party observed that even if a refusal by the authorities to allow the suspect to speak to a lawyer at the beginning of his detention had not impaired the overall fairness of the proceedings, such a situation could nevertheless amount to a violation of Article 6 § 3 (c).",
"C. The Court ’ s assessment",
"1. General principles",
"(a) Applicability of Article 6 in its criminal aspect",
"110. The protections afforded by Article 6 §§ 1 and 3 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 ).",
"111. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect.",
"(b) The right to legal assistance and the overall fairness of the criminal proceedings",
"112. The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53 ‑ 54, and Ibrahim and Others, cited above, § 255).",
"113. Article 6 § 3 (c) does not therefore secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention. In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others, cited above, §§ 250 and 251). Article 6 § 3 (c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial system, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Salduz, cited above, § 51).",
"114. Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a “criminal charge” exists within the meaning of this Court ’ s case-law (see paragraphs 110 and 111 above) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Dvorski, cited above, § 76; and Ibrahim and Others, cited above, § 253).",
"( c) Waiver of the right to legal assistance",
"115. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance (see, among other authorities, Dvorski, cited above, §§ 100 and 101, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 90, 2 November 2010). However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see Pishchalnikov v. Russia, no. 7025/04, § 77, 24 September 2009, and paragraph 1 19 below). Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be ( Pishchalnikov, cited above, § 77 in fine). Moreover, the waiver must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A, and Sejdovic v. Italy [GC], no. 56 581/00, § 86, ECHR 2006 ‑ II ).",
"(d) Temporary restriction of the access to a lawyer for “compelling reasons”",
"116. The Court also reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. In paragraph 55 of its Salduz judgment (cited above), the Court held as follows concerning the restriction of the access to a lawyer for “compelling reasons” during detention in police custody:",
"“... the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction .”",
"117. In its recent judgment in the case of Ibrahim and Others (cited above), the Court specified and fleshed out the criteria laid down in the Salduz judgment. It stated, in particular, that restrictions on access to legal advice were permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2 and 3 and Article 5 § 1 of the Convention in particular. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them ( ibid ., §§ 258 and 259).",
"118. The Court went on to point out that the absence of “compelling reasons” for restricting access to a lawyer did not lead in itself to a finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention ( ibid ., § 262). In the absence of “compelling reasons”, the Court must apply a very strict scrutiny to its fairness assessment: the Government ’ s failure to point to any compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice ( ibid ., § 265). Where, on the contrary, compelling reasons for restricting access to a lawyer have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 ( ibid ., § 264).",
"(e) The right to be informed of the right to legal assistance",
"119. In Ibrahim and Others ( ibid ., §§ 272- 2 73), the Court also found that it was inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 had the right to be notified of these rights. Consequently, Article 6 § 3 (c) of the Convention must be interpreted as also safeguarding the right of persons charged with an offence to be informed immediately of their right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing. Moreover, respect for that right may well influence the validity of any waiver of the right to legal assistance (see paragraph 115 above).",
"(f) Relevant factors for the assessment of the overall fairness of proceedings",
"120. Since the fairness of criminal proceedings is assessed in each case with regard to the conduct of the proceedings as a whole, the Court set out a non-exhaustive list in Ibrahim and Others, cited above, § 274, of factors to be taken into account, where appropriate, in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings. Those factors are as follows:",
"(a) whether the applicant was particularly vulnerable, for example by reason of his age or mental capacity;",
"(b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair;",
"(c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use;",
"(d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;",
"(e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found;",
"(f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified;",
"(g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case;",
"(h) whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions;",
"(i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and",
"(j) other relevant procedural safeguards afforded by domestic law and practice.",
"2. Application of those principles to the instant case",
"(a) Starting-point for the application of Article 6 in the present case",
"121. Turning to the facts of the present case, the Court observes that the applicant had been wanted by the investigating authorities and the police since the beginning of July 1999, when his arrest had been ordered on the grounds that he was suspected of having committed armed robbery and two murders and that he had been on the run for almost three months (see paragraph 13 above). The Court, however, considers that the date of the applicant ’ s arrest by the police on 3 October 1999 should be taken as the starting-point for the application of the safeguards set out in Article 6 of the Convention. The arrest was based on suspicions that the applicant had committed criminal offences, and substantially affected the applicant ’ s situation by enabling the authorities to conduct investigative measures in which he participated. It was therefore on 3 October 1999 that the right to legal assistance provided for in Article 6 § 3 (c) became applicable in the present case.",
"(b) Whether the applicant waived his right to legal assistance",
"122. The Court notes that the lack of legal assistance for the applicant while in police custody was a limitation which did not follow from domestic law, since Bulgarian legislation authorised him to have access to a lawyer as of the time of his arrest, on 3 October 1999 (see paragraph 59 above). Thus, if the applicant had asked for leave to speak to a lawyer on 3, 4, 5 and 6 October 1999 (before 12 noon), the authorities would have been under a legal obligation to grant that request.",
"123. The parties disagree on whether the applicant requested contact with a lawyer (see paragraphs 97 and 102 above). There is nothing in the file to corroborate the applicant ’ s assertion that he submitted such a request. At the material time Bulgarian legislation did not yet require a detainee ’ s request to consult a lawyer or his waiver of that right to be recorded in writing (see paragraphs 60-62 above).",
"124. The Court reiterates that in order to assess this evidence, it adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). The Court finds it unfortunate that the applicant ’ s first three days of detention were not properly documented so as to avoid any doubts as to whether the applicant did ask for a lawyer or not (see, mutatis mutandis, Dvorski, cited above, § 105 in fine ). Consequently, several years on from the events at issue and in the absence of any prima facie evidence, the Court is not in a position to ascertain whether the applicant did in fact request a consultation with a lawyer.",
"125. The Court must nevertheless seek to establish whether in the particular circumstances of the case, the lack of objective evidence that the applicant requested legal assistance while in police custody might point to an implicit waiver of that right.",
"126. In that regard the Court observes that in a legal system such as that which was in force in Bulgaria at the material time, in which the assistance of a lawyer during detention in police custody requires an express request from the suspect, it is essential that the latter be promptly informed of that right so as to enable him to rely on it (see paragraph 119 above). This is especially important where, as in the present case, the accused is suspected of serious offences and is liable to a heavy penalty. It is in the face of the heaviest penalties that respect for the right to a fair trial must be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54). That raises the question whether the applicant was duly informed of his right to legal assistance as of the time of his arrest, as domestic law in fact provided (see paragraph 59 above).",
"127. In their observations and at the hearing, the Government, with reference to the relevant provisions of domestic law requiring the authorities to inform persons charged with a criminal offence of their rights (see paragraph 101 above), submitted that the applicant had received that information just after his arrest. Yet the case file contains no written trace of such a measure and the Government have not supported their allegation with any further evidence. The Court can only note that the order for the applicant ’ s detention, which mentioned his right to legal assistance, had not been signed by him and that there is no evidence to show that he was issued with a copy of the order after his arrest (see paragraphs 13 and 14 above). It must therefore be assumed that he was never properly served with the order. As a result, the applicant was not verifiably informed of his procedural rights before the date on which he was charged, that is to say 6 October 1999 (see paragraph 21 above).",
"128. The Court reiterates that the receipt of such information by the accused person is one of the guarantees enabling him to exercise his defence rights and allowing the authorities to ensure, in particular, that any waiver by the accused of the right to legal assistance is voluntary, knowing and intelligent. That information therefore guarantees the effective possibility of exercising that right and – moreover – the validity of any waiver under the Convention (see paragraphs 115 and 119 above). Accordingly, even supposing that the applicant did not expressly request the assistance of a lawyer while in police custody, as provided in Bulgarian law at the material time, he cannot be deemed to have implicitly waived his right to legal assistance, since he had not promptly received such information after his arrest. His right to legal assistance was therefore restricted.",
"(c) Whether there were “compelling reasons” to restrict access to a lawyer",
"129. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 117 above).",
"130. However, the Government mentioned no such exceptional circumstances, and it is not the Court ’ s task to assess of its own motion whether they existed in the present case. It therefore sees no “compelling reason” which could have justified restricting the applicant ’ s access to a lawyer while he was in police custody: there were no allegations of imminent danger to the lives, physical integrity or security of other persons (see, to converse effect, Ibrahim and Others, cited above, § 276). Furthermore, domestic legislation on access to a lawyer during detention in police custody did not explicitly lay down any exceptions to the application of that right (see paragraphs 59 and 64 above). It would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT ’ s 2015 public statement, paragraph 80 above).",
"131. The Court observes in that connection that such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles (see Stafford v. the United Kingdom [GC], no. 46295/99, §63, ECHR 2002-IV ).",
"(d) Whether the overall fairness of the proceedings was ensured",
"132. The Court must seek to ascertain whether the absence of a lawyer while the applicant was in police custody had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against him. The lack of “compelling reasons” in the present case requires the Court to conduct a very strict scrutiny of the fairness of the proceedings. It is incumbent on the Government to demonstrate convincingly that the applicant nonetheless had a fair trial (see paragraph 118 above).",
"133. In that connection, the Government referred to the following circumstances: the applicant had not been formally questioned in the absence of a lawyer during his time in police custody; no statement that the applicant might have made during that time had been taken into account or subsequently used in evidence against him; his conduct while in police custody had not been taken into account by the prosecuting authorities or the relevant courts; he had at no stage complained to the authorities of having been forced to confess while in police custody; he had benefited from a wide range of procedural safeguards during criminal proceedings which had had all the attributes of a fair trial (see paragraph 103 above).",
"134. The Court notes that the parties disagree on whether the applicant was questioned in the absence of a lawyer over the period from 3 to 6 October 1999. Drawing on the absence of any document mentioning this point, the Government submitted that even supposing a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings (see paragraph 103 above). The applicant, for his part, stated before the Grand Chamber that he had been questioned and that it would have been illogical for the authorities to have missed such an opportunity to obtain further evidence (see paragraph 97 above).",
"135. The Court notes in that connection that the version of events set out by the applicant during the proceedings before it has changed as the case had unfolded. In his application to the Court the applicant was very vague on this subject. It was not until he submitted his memorial before the Grand Chamber that he provided a number of more specific details, affirming, for example, that he had made statements while in police custody, and disclosing the content of those statements and the name of the lawyer whom he had asked to contact. The Court also observes that the applicant did not mention his lack of legal assistance while in police custody in the proceedings before the Burgas Court of Appeal (see paragraph 34 above) and that his appeal on points of law referred only marginally to the absence of a lawyer on 4 October 1999 in the context of a separate plea relating to the exclusion of evidence obtained in the presence of his officially assigned lawyer (see paragraph 42 above). Moreover, whereas the handwritten statement of his presumed accomplice, A.S., dated 3 October 1999, was included in the case file (see paragraph 20 above), there is no prima facie evidence for the Court to conclude that the applicant was formally or informally questioned while in police custody.",
"136. Be that as it may, the Court attaches decisive importance to the fact that during that period of about three days no evidence capable of being used against the applicant was obtained and included in the case file. No statement was taken from the applicant. No evidence in the file indicates that the applicant was involved in any other investigative measures over that period, such as an identification parade or biological sampling. Furthermore, the applicant did not personally allege before the Court that the domestic courts had possessed evidence presented during that period and used it at the trial in order to secure his conviction.",
"137. It should be emphasised here that the domestic law and the domestic courts ’ case-law provided for the exclusion of evidence obtained in a manner incompatible with the rules of the Code of Criminal Procedure (see paragraph 68 above). In the applicant ’ s case, because he was liable to a life sentence, legal assistance during questioning was also a sine qua non for the admissibility in evidence at the trial of any statement on his part (see paragraph 65 above).",
"138. In addition, unlike in the cases of John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996 ‑ I) and Averill v. the United Kingdom (no. 36408/97, ECHR 2000 ‑ VI) the failure of the accused to make any statement would have had no impact on the ensuing stages of the criminal proceedings. The applicant could even have benefited from remaining silent if he had not opted to confess at a subsequent stage in the proceedings, when he had already secured the assistance of a lawyer of his choosing.",
"139. On 21 October 1999, two weeks after he had been formally charged, the applicant voluntarily confessed (see paragraphs 21 and 24 above). In assessing the voluntary nature of that confession, the Court has regard to the fact that the applicant had already been questioned on two occasions, on 6 and 12 October 1999, with the assistance of a lawyer, and that he had remained silent on both those occasions (see paragraphs 21 and 23 above). During both these interrogations, and when he confessed on 21 October 1999, he had already been informed of his procedural rights, particularly the right not to incriminate himself (see paragraph 21 above). At that time, moreover, he was in receipt of the advice and assistance of a lawyer of his choosing (see paragraphs 23 and 24 above).",
"140. It is not disputed that only the confession made by the applicant on 21 October 1999 was used in order to convict him. No causal link was ever posited, either before the domestic courts or before the Court, between the absence of a lawyer from 3 to 6 October 1999 and the applicant ’ s confession two weeks after the end of that period in the presence of a lawyer of his choosing (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 180, ECHR 2010). Consequently, the absence of a lawyer during the applicant ’ s time in police custody in no way prejudiced his right not to incriminate himself.",
"141. The Court further notes that the applicant actively participated at all stages in the criminal proceedings: he subsequently retracted his initial statements, presenting a different version of events, and his defence lawyers obtained exculpatory evidence and contested the incriminating evidence (see paragraphs 27, 29, 31, 35 and 42 above).",
"142. Moreover, the applicant ’ s conviction was not based exclusively on his confession of 21 October 1999, which he made in the presence of the lawyer of his choosing, but on a whole body of consistent evidence, including the statements of a large number of witnesses who had been questioned during the assessment of the case, the results of ballistic, technical and accountants ’ reports and medical and psychiatric opinions, and also on the physical and documentary evidence gathered (see paragraphs 26, 33, 36-41 and 43 above).",
"143. The case was examined at three levels of jurisdiction, by a regional court, a court of appeal and the Supreme Court of Cassation. All these courts gave due consideration to the evidence available, including the statements of the many witnesses questioned during the assessment of the case, the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, as well as the physical and documentary evidence gathered. Their decisions, which were properly reasoned in factual and legal terms, also duly assessed whether the applicant ’ s procedural rights had been respected (see paragraphs 31-44 above).",
"144. In the light of these findings, the Court considers that the Government provided relevant and sufficient evidence to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance while he had been in police custody, from 3 to 6 October 1999.",
"(e) Conclusion",
"145. In conclusion, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION",
"146. The applicant invited the Court to indicate to the Government, as it had done in the case of Harakchiev and Tolumov (cited above, § 280), measures for the execution of a finding of violation of Article 3 of the Convention owing to the material conditions of detention and the regime applicable to life prisoners.",
"147. The Government did not state a position on that matter.",
"148. The relevant part of Article 46 of the Convention reads as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...”",
"149. Under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, §§ 254- 2 55, ECHR 2012).",
"150. The Court reiterates that it set out the following recommendations in its Harakchiev and Tolumov judgment (cited above, § 280):",
"“The breach of Article 3 of the Convention found in the present case in relation to the regime and conditions of the applicants ’ detention flows in large part from the relevant provisions of the 2009 Execution of Punishments and Pre-Trial Detention Act and its implementing regulations ... It discloses a systemic problem that has already given rise to similar applications (see Chervenkov [v. Bulgaria, no. 45358/04], §§ 50 and 69-70[, 27 November 2012], and Sabev [v. Bulgaria, no. 27887/06], §§ 72 and 98 ‑ 99[, 28 May 2013]), and may give rise to more such applications. The nature of the breach suggests that to execute this judgment properly, the respondent State would be required to reform, preferably by means of legislation, the legal framework governing the prison regime applicable to persons sentenced to life imprisonment with or without parole. That reform, invariably recommended by the CPT since 1999 ..., should entail (a) removing the automatic application of the highly restrictive prison regime currently applicable to all life prisoners for an initial period of at least five years, and (b) putting in place provisions envisaging that a special security regime can only be imposed – and maintained – on the basis of an individual risk assessment of each life prisoner, and applied for no longer than strictly necessary.”",
"151. The Court observes that in the present case it found a violation of Article 3 of the Convention on account of the applicant ’ s conditions of detention taken in conjunction with his restrictive prison regime and the length of his period of imprisonment (see paragraphs 9 0 and 9 1 above). Those circumstances, as well as the applicable domestic legislation, are identical to those which led the Court to find a violation of Article 3 on account of the material conditions of detention and the prison regime in the Harakchiev and Tolumov judgment, cited above. It therefore considers it appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"152. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"153. The applicant clamed 10,00 0 euros (EUR) in respect of non ‑ pecuniary damage sustained owing to his prison regime and his conditions of detention.",
"154. The Government made no observations before the Grand Chamber on that matter.",
"155. In its judgment of 20 October 2015 the Chamber awarded the applicant EUR 8,000 under this head.",
"156. The Court considers that the applicant sustained non-pecuniary damage owing to the poor conditions to which he was exposed in the custodial facilities in which he was held and the restrictive prison regime to which he was subject. Like the Chamber, the Court considers that he should be awarded EUR 8,000 under this head.",
"B. Costs and expenses",
"157. The applicant claimed EUR 2,160 in respect of lawyer ’ s fees and 767 Bulgarian levs (BGN) in respect of the other costs and expenses incurred during the proceedings before the Chamber, as well as EUR 6,420 in respect of lawyer ’ s fees, EUR 927.27 in respect of travel expenses and BGN 1,929 in respect of other costs and expenses incurred during the proceedings before the Grand Chamber.",
"158. The Government made no observations on that point.",
"159. In its judgment the Chamber awarded the applicant EUR 2,589.50 in respect of costs and expenses.",
"160. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 8,000 reasonable in respect of all the expenses incurred during the proceedings before the Chamber and the Grand Chamber, less EUR 2,952.52 received from the Council of Europe in respect of legal aid, and awards that sum to the applicant.",
"C. Default interest",
"161. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
213 | Beuze v. Belgium | 9 November 2018 (Grand Chamber) | The applicant, sentenced to life imprisonment for intentional homicide, complained that he had been denied access to a lawyer while in police custody, had been insufficiently informed of his right to remain silent and not to incriminate himself, and had also been deprived of legal assistance when he was questioned, or subjected to other investigative acts, during the judicial pre-trial investigation. | The Grand Chamber held that there had been a violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention. It found in particular that the criminal proceedings, when considered as a whole, had not remedied the procedural defects occurring at the pre-trial stage. The restrictions on the right of access to a lawyer had been particularly extensive and in those circumstances, without being sufficiently informed of his right to remain silent, the applicant had made detailed statements while in police custody. His statements had subsequently been included in the evidence before the Assize Court, which had failed to conduct an appropriate examination of how they had been obtained or to consider the impact of the lawyer’s absence. The Court of Cassation had focused on the lack of legal assistance in police custody but had not assessed the consequences for the applicant’s defence rights of the lawyer’s absence during his subsequent police interviews, examinations by the investigating judge and other acts during the judicial investigation. In the Grand Chamber’s view, the combination of these various factors had rendered the proceedings unfair as a whole. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicant was born in 1974. He is currently serving a life sentence in Marche-en-Famenne prison (Belgium).",
"A. The applicant ’ s arrest in France",
"9. The applicant was arrested on 17 December 2007 by the French gendarmerie in a village situated in the French département of Nord and taken into police custody under a European arrest warrant issued against him on 14 November 2007 by an investigating judge of the Charleroi (Belgium) Court of First Instance, on the basis of a request of 6 November 2007 from the Crown Prosecutor attached to that court.",
"10. The warrant stated that the applicant was wanted for the premeditated murder of his former girlfriend, M.B., committed on 5 November 2007. The warrant stated that a witness who was a neighbour of M.B. had formally identified the applicant. It also referred to a risk of reoffending in view of his history of violence.",
"11. The interview record drawn up by the French gendarmes at the time of the applicant ’ s arrest on 17 December 2007 indicated that he had waived his right under Article 63-4 of the French Code of Criminal Procedure to consult with a lawyer of his choosing or, failing that, officially assigned counsel.",
"12. In a judgment of 21 December 2007, the Investigation Division of the Court of Appeal of Douai (France), after acknowledging that the applicant had not renounced his entitlement to the rule of speciality [1], ordered his surrender to the Belgian judicial authorities for the execution of the above ‑ mentioned arrest warrant. The applicant was assisted before the Investigation Division by a lawyer, Ms A., of the Douai Bar.",
"B. Surrender to Belgian authorities and pre-trial investigation stage",
"13. Having been surrendered to the Belgian authorities at 10.40 a.m. on 31 December 2007, the applicant was interviewed by the criminal investigation police from 11.50 a.m. to 3.55 p.m.",
"14. As shown by the police interview record, in accordance with Article 47 bis of the Code of Criminal Procedure ( code d ’ instruction criminelle ) (see paragraphs 62-65 below), the applicant was notified that he was entitled to request the verbatim transcription of all the questions put to him and his answers, to request any investigative act or the conducting of any interview, and that his statements could be used in evidence.",
"15. During that first interview, the applicant explained that he had met M.B. in early 2007 through C.L., his then girlfriend. He admitted that he had been present on 5 November 2007 at the scene of the crime but denied having committed the murder. He claimed that the victim, M.B., had been struck with a hammer by her thirteen-year-old son. He explained that he had intervened and grabbed the hammer from the child, but the latter had continued to hit his mother. The applicant stated that he had left with an axe – which the police had later found near the scene – because he was afraid of being accused on account of his criminal record. He explained that he had fled the scene and had been hiding in his car when the emergency services arrived. He stated that he was unaware that the victim was dead.",
"16. During the interview the applicant was also questioned about a statement made to the police by M.B. on 25 October 2007 according to which the applicant had tried to kill her by running her over. The applicant explained that he had accidentally skidded while driving his car and had probably hit M.B., but denied that his intention had been to kill her as she had alleged.",
"17. The investigators informed the applicant that they had intercepted a number of text messages that had been sent to relatives of M.B., following her death, from a mobile phone belonging to him. Those messages included one offering condolences for the death of M.B. The applicant denied having sent them himself.",
"18. The applicant ’ s detailed statements were taken down by the police in an eight-page record. The record indicated at the very end that following the interview the applicant had read over his statements and had not wished to correct them or add to them.",
"19. All subsequent records of his statements contained the same indications and were signed by the applicant. Except for the first police interview record, of which a copy was given to him after his examination by the investigating judge later that day, the applicant received his copies immediately after being questioned.",
"20. Following his interview by the criminal investigation police, the applicant was examined by the investigating judge at the Charleroi Court of First Instance at 4.45 p.m. that day. He confirmed his statements to the investigating judge.",
"21. On being asked by the investigating judge at the beginning of the examination whether he had chosen a lawyer, the applicant answered in the negative. At the end of the interview record it was stated:",
"“I (the investigating judge) have notified him that I have informed the deputy to the Chair of the Bar Council, given that, at the current stage of the proceedings, he has not appointed counsel.”",
"22. Following the investigating judge ’ s examination, which finished at 5.42 p.m., the judge observed that a psychiatrist needed to be called immediately. He formally charged the applicant with the premeditated murder of M.B. An arrest warrant was issued to the applicant on the same day and he was remanded in custody.",
"23. It is not in dispute that the applicant was not allowed to communicate with a lawyer between the time of his surrender to the Belgian authorities and the end of his period in police custody on 31 December 2007. He was only allowed to consult with a lawyer, in accordance with the applicable law, once the decision had been taken by the investigating judge to remand him in custody (see paragraphs 21 above and 55-56 below). Moreover, even though he was subsequently assisted by a lawyer during the judicial pre-trial investigation, that lawyer did not attend the police interviews, examinations by the investigating judge or other investigative acts which took place throughout that phase of the proceedings (see paragraph 59 below).",
"24. On 11 January 2008 the applicant was again interviewed by the criminal investigation police. He confirmed his previous statements about M.B. ’ s death and provided further particulars about what had happened. The applicant stated that he had indeed seen a person passing by in the street who had witnessed the blows inflicted by the victim ’ s son, and that this witness had been accompanied by a woman, and he admitted to having threatened the witness with a fake gun that had subsequently been found in his car after his arrest. When the officers pointed out the inconsistencies in his account, the applicant acknowledged that he had been carrying a real gun at the time but continued to deny that he was the murderer.",
"25. There is no indication in the interview record of 11 January 2008, or elsewhere in the file, that the applicant had actually been assigned a lawyer following the notification to the Bar on 31 December 2007, or that he had been in contact with a lawyer prior to that interview.",
"26. In parallel to the investigation into the murder of M.B., the applicant was interviewed by the police on four occasions between 6 and 7 March 2008 for “criminal association” in respect of car thefts.",
"27. When examined again by the investigating judge on 17 March 2008, the judge asked the applicant if he had chosen a lawyer. He replied in the affirmative and mentioned that he had been in contact with a lawyer at the Brussels Bar. The applicant was informed that the psychiatric assessment had been received and that it had identified an antisocial personality disorder. When questioned about the facts related to M.B. ’ s murder, the applicant confessed to having stolen a document from the case file, although the authorities had been unaware of this. Subsequently, having repeated that the perpetrator of M.B. ’ s murder was her son, the applicant changed his account of the events. He mentioned the presence of C.L. at the scene of the crime at the time when M.B. was attacked. He explained that he had witnessed an argument between the two women and that he had had to wrest a hammer from C.L. ’ s hands.",
"28. On 25 March 2008 the criminal investigation police interviewed the applicant for the purposes of a morality and personality assessment. A second police interview was held on the same day concerning bodily harm inflicted on C.L. on 17 September 2007. The applicant acknowledged that he had invited C.L., then pregnant, to get into his car. He stated that he had punched C.L. in the face to “protect” her from a possible encounter with M.B. that had been planned with the aim of stealing the latter ’ s mobile phone and bank card. He explained that M.B., with the help of an accomplice, had then pushed C.L. into the canal.",
"29. A neuropsychological assessment of the applicant was carried out on 28 April 2008 and sent to the investigating judge. The expert psychologist concluded that the applicant had limited verbal skills but that his reasoning was not abnormal. The expert also highlighted his significant lack of empathy and sociability.",
"30. On 6 June 2008 a reconstruction of the events of 5 November 2007 was held at the scene of the crime. The two eyewitnesses took part in the reconstruction (see paragraphs 10 and 24 above). The applicant ’ s lawyer was absent, as the law did not provide for the attendance of a lawyer at any investigative act (see paragraph 59 below). In the context of the reconstruction, the applicant mentioned when interviewed that another person, A.N., had also been at the scene on the day in question. He changed his version of events again and stated that he had falsely accused the victim ’ s son. He claimed that the fatal blows had in fact been struck by C.L. and that he had fired a gun to intimidate C.L.",
"31. During the interview conducted on the same day by the criminal investigation police, the applicant challenged the account given by the two eyewitnesses at the reconstruction and confirmed his new version of the facts. There is no evidence in the file that the applicant sought to communicate with his lawyer before or after the reconstruction or the interview of the same day.",
"32. An arrest warrant was issued on 8 August 2008 extending the investigating judge ’ s remit, on the basis of the submissions of the Crown Prosecutor dated 23 May 2008 and 7 July 2008, to three additional offences: the attempted murder of M.B. on 25 October 2007, and two offences committed on 17 September 2007 against C.L., namely robbery with violence or threats, and fraud.",
"33. The applicant was examined on that subject by the investigating judge on 18 August 2008. The information provided for by Article 47 bis of the Code of Criminal Procedure (see paragraph 65 below) was repeated to him; he was also notified of his right to refuse the extension of the charges and to consult with his lawyer on this matter beforehand. The record of the examination shows that he agreed to the extension, thereby renouncing his entitlement to the speciality rule that had been granted by the French authorities (see paragraph 12 above). He also expressed his wish that his lawyer should confirm his position.",
"34. On 5 December 2008 the applicant was heard by the Crown Prosecutor as to whether he agreed to the extension of the charges. He replied that he wished to consult with his lawyer on this matter.",
"35. Acknowledging that the applicant had not ultimately given his consent, in a judgment of 13 January 2009 the Investigation Division of the Douai Court of Appeal agreed to extend his surrender for the purposes of a criminal prosecution to the three above-mentioned additional charges.",
"36. At the close of the judicial investigation stage, the applicant was committed to stand trial before the Assize Court of Hainaut Province by a judgment of 31 August 2009 of the Indictment Division ( chambre des mises en accusation ) of the Mons Court of Appeal. The Indictment Division found that there were serious indications of the applicant ’ s guilt in the light, principally, of the witness statements, the investigators ’ findings, the real evidence gathered and the forensic medical and psychiatric assessments.",
"C. Proceedings in the Assize Court",
"37. At the start of the trial in the Assize Court, on 1 February 2010, the applicant, assisted by his Belgian counsel, filed a submission in which he requested that the records of the interviews conducted without legal assistance and the ensuing acts should be annulled and that the prosecution case should be declared inadmissible. He argued that his lack of access to a lawyer while in police custody, on 31 December 2007, and during the subsequent interviews and examinations had entailed a breach of an essential formal requirement directly affecting his defence rights and thus irretrievably vitiating the arrest warrant. The applicant complained that the absence of a lawyer had necessarily caused him damage.",
"38. Referring to the Court ’ s case-law and in particular the judgments in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) and Dayanan v. Turkey (no. 7377/03, 13 October 2009), the applicant submitted that it laid down an absolute principle not allowing for any case-specific assessment, given that the restriction arising from Belgian law was one of a general and mandatory nature, and that Belgian law did not meet the requirements of the Convention in such matters.",
"39. The Assize Court, in an interlocutory judgment of the same day, dismissed the applicant ’ s plea to dismiss the prosecution case. It began by pointing out that the Court ’ s case-law did not guarantee, in an absolute manner, the presence of a lawyer at all stages of the criminal proceedings from the first interview onwards and that the Court had emphasised the need to take account of the proceedings as a whole when assessing whether the right to a fair trial had been upheld. It explained that, in principle, defence rights would be irretrievably affected only where incriminating statements were made. The Assize Court further found that courts had no power to substitute their own solutions for those of the legislature in order to make good the shortcomings complained of by the applicant.",
"40. As to the consequences of the Court ’ s case-law for the proceedings in the present case, the Assize Court took the view that, in respect of the French part of the proceedings, the applicant had initially waived his right to legal assistance. Later, before the Investigation Division of the Douai Court of Appeal he had been assisted by a lawyer. The Assize Court dismissed his allegation of pressure by the French gendarmes on the grounds that in one of his interviews (namely in the context of the reconstruction of 6 June 2008 referred to in paragraph 30 above) the applicant had given a different explanation as to why he had falsely accused the victim ’ s son, allegedly under duress, at the time of his arrest.",
"41. As to the Belgian part of the proceedings, the Assize Court found that the applicant had not incriminated himself in respect of the charges, had not claimed that he had been put under any pressure by the investigators, had not been interviewed in a state of particular vulnerability, had expressed himself freely on the facts and had not in any way been compelled to incriminate himself, even being able to exercise his right to remain silent. The applicant had been able to confer with his lawyer after each police interview and examination by the investigating judge to discuss his defence and had been afforded every opportunity to consult with his lawyer throughout the investigation stage. He had also been able, for the two years of his pre-trial detention, to prepare his defence with his lawyer every time he had appeared before the pre-trial courts ( juridictions d ’ instruction ), but he had failed, on those occasions, to mention the omission of which he later complained in the Assize Court.",
"42. Furthermore, the Assize Court noted that the applicant had been committed to stand trial before it in the light of indications of guilt which stemmed primarily from material other than his own statements (see paragraph 36 above) and that he had availed himself of the right to request the performance of additional investigative acts. After pointing out that the jury ’ s inner conviction was formed during the oral proceedings before it, the Assize Court concluded that the applicant ’ s defence rights had been observed and that there was no reason to declare the interview/examination records or prosecution invalid. It therefore declared the prosecution case admissible and ordered that the proceedings be continued.",
"43. The bill of indictment drawn up by the Principal Crown Prosecutor on 23 November 2009 was read out at the hearing in the Assize Court. Containing twenty-one pages, it set out the facts and how they had occurred, the investigative acts and their results, and the forensic medical assessments, together with the applicant ’ s background and family life. The indictment referred to the particulars that had been acknowledged by the applicant (his presence at the scene of M.B. ’ s murder, the threatening of a witness and the fact that he had been alone with C.L. and had struck her). It also reproduced the various versions of the events that he had given during his police interviews and examinations by the investigating judge, explaining that those accounts were inconsistent with the investigators ’ factual findings and were contradicted by the various witness statements.",
"44. At the close of the trial, on 9 February 2010, the jury found the applicant guilty, principally of the premeditated murder of M.B. on 5 November 2007 and of the attempted premeditated murder of C.L. on 17 September 2007.",
"45. The jury ’ s reasons were set out in the Assize Court ’ s “reasoning judgment” ( arrêt de motivation ) of the same day. The relevant parts read as follows:",
"“... the main reasons for the decision given by the jury are as follows:",
"– The first and second questions [concerning the murder of M.B. on 5 November 2007]",
"The jury considered decisive the consistent and mutually corroborative testimony of the youngsters who had seen only the defendant and the victim at the scene of the crime, without any other person being present, the threats previously made by the defendant against his victim and the various steps taken by Philippe Beuze (in particular the fact of hiding the axe in a bush) in preparation for the crime.",
"– The third and fourth questions [concerning the attempted murder of M.B. on 25 October 2007]",
"[Finding of not guilty]",
"– The fifth and sixth questions [concerning the attempted murder of C.L. on 17 September 2007]",
"The jury found that the following evidence proved both the actual occurrence of the acts and the homicidal intention which had driven the defendant:",
"– the defendant had deliberately arranged to be alone with a pregnant woman, whom he knew was thus placed in a weakened position;",
"– he violently struck C.L., as shown by the medical findings, and left her for dead;",
"– he then fled the scene without calling for help, even though he had the means to do so;",
"– he subsequently sent text messages clearly showing his intention to kill C.L.",
"The jury also took the view that the acts committed by the defendant before going off towards the canal at the end of a long walk (simulation of a flat tyre, deliberate car crash, etc.) all constituted evidence of premeditation.”",
"46. In a sentencing judgment dated 10 February 2010, the Assize Court sentenced the applicant to life imprisonment.",
"D. Proceedings before the Court of Cassation",
"47. The applicant lodged an appeal on points of law against the Assize Court judgments of 1, 9 and 10 February 2010. Alleging a violation of Article 6 §§ 1 and 3 (c) of the Convention, as interpreted in the Court ’ s case-law, he relied on the right to be assisted by a lawyer and submitted that the presence of a lawyer during questioning was mandatory under the Convention.",
"48. In a judgment of 26 May 2010 the Court of Cassation dismissed that ground of appeal as follows:",
"“3. Sections 1, 2, 16(2) and (4), and 20(1) of the Law of 20 July 1990 on pre ‑ trial detention do not provide for the presence of a lawyer to assist the person in police custody during the twenty-four hour period laid down by Article 12, paragraph 3, of the Constitution.",
"The secrecy imposed by Article 28 quinquies, § 1, first paragraph, and Article 57 § 1, first paragraph, of the Code of Criminal Procedure precludes, as a rule, the lawyer ’ s attendance at acts performed during the preliminary investigation by the public prosecutor and the judicial pre-trial investigation.",
"4. These provisions cannot be said in themselves to violate the right to a fair trial. There are two reasons for this. First, the impugned restriction must be assessed in relation to the full set of legal safeguards made available to the defendant with a view to ensuring the effective protection of his defence rights from the time the prosecution is brought. Secondly, the appellant ’ s interpretation of Article 6 of the Convention must be examined with reference to the constitutional principle of the legality of criminal proceedings.",
"5. In the light of the following elements, there can be no automatic finding that it is irretrievably impossible for a person questioned by the police and the investigating judge without a lawyer to have a fair trial: the formal requirements laid down for the questioning of a suspect in Article 47 bis of the Code of Criminal Procedure, the brevity of the police custody period, the immediate issuance to the person charged (upon notification of the arrest warrant) of all the documents referred to in sections 16(7) and 18(2) of the Law of 20 July 1990, the right of the person charged to communicate immediately with his lawyer in accordance with section 20(1) and (5) of that Law, access to the file as governed by section 21(3) of the Law, the lawyer ’ s presence at the recapitulatory examination provided for in section 22(1), (2) and (3), and the rights set forth, in particular, in Articles 61 ter, 61 quater, 61 quinquies, 136 and 235 bis of the Code of Criminal Procedure.",
"6. As a rule, Article 12, paragraph 2, of the Constitution does not allow the court to amend the formalities of criminal proceedings as laid down by the law of a democratic State. The only exception is where a domestic rule, if declared incompatible, may be set aside without distortion by the court of the legal framework of which it is part.",
"On account of its lack of precision, the weight that the appellant attaches to a fair trial cannot trump the above-mentioned principle of legality, whereby the investigation, prosecution and trial can only proceed in accordance with pre-existing and accessible statutes. The submission does not determine the extent to which the court should set aside the domestic statute in order to render the trial fair for the purposes of Article 6 of the Convention according to its proposed evolutive interpretation.",
"Therefore, neither the appellant nor the case-law on which he relies indicate clearly whether the trial would have been fair on the sole condition that the lawyer had been present during the police custody period or whether it would have been necessary to extend that assistance to all investigative acts.",
"The right to a fair trial also implies that none of the parties should be placed in a more favourable or less advantageous situation than that of another party. It cannot therefore be regarded as established that the proceedings submitted to the court ’ s review would have been fairer, within the meaning of the appellant ’ s submission, simply if a lawyer had been present at all his interviews, without an equivalent advantage being secured to the other parties.",
"7. The submission that the alleged right of the accused is absolute in nature must accordingly be rejected, and it is necessary to consider in concrete terms whether, in the light of the proceedings taken as a whole, the matter complained of by the appellant may have vitiated those proceedings.",
"This does not appear to have been the case. As can be seen from the following findings of the judgment appealed against [of 1 February 2010]:",
"(i) the appellant made no self-incriminating statements while in police custody;",
"(ii) prior to his first interview by the French gendarmerie, he expressly waived the legal assistance to which he was entitled under Article 63-4 of the French Code of Criminal Procedure;",
"(iii) the appellant was assisted by a lawyer from the time of his appearance before the Investigation Division of the Douai Court of Appeal and for the two years of his pre-trial detention;",
"(iv) the appellant was at no point compelled to incriminate himself, and at all times expressed himself freely.",
"The Assize Court therefore acted within the law in refusing to declare the prosecution case inadmissible.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Legislative situation prior to the “Salduz Act” of 2011",
"49. At the relevant time, the lawyer ’ s role upon the arrest of a suspect and during the judicial pre-trial investigation stage, together with the safeguards surrounding police interviews, examinations by an investigating judge and other investigative acts, were regulated as follows.",
"1. Arrest and remand in pre-trial detention",
"50. Article 12, paragraph 3, of the Constitution provided that no one could be deprived of liberty for more than twenty-four hours from the time of arrest without review by a judge. That period has recently been extended to forty-eight hours by an amendment to Article 12 on 24 October 2017.",
"51. An individual in respect of whom there are serious suspicions creating a presumption that he has committed an offence may be deprived of his liberty and remanded in pre-trial detention ( détention préventive ), which is governed by the Law of 20 July 1990 on pre-trial detention.",
"52. Upon arrest, a record must be drawn up mentioning the time and circumstances of the arrest, the decision and measures taken by the Crown Prosecutor, the manner of their notification, and the precise time at which the person is notified of the decision to arrest (sections 1 and 2 of the Law on pre-trial detention).",
"53. During the above-mentioned twenty-four-hour period, at the time, the person concerned would usually undergo a police interview and an initial examination by the investigating judge, after which an arrest warrant could be issued. The provision requiring the investigating judge to conduct this initial examination was section 16(2) of the Law on pre-trial detention, which read as follows prior to its amendment by the “Salduz Act” (see paragraphs 72-77 below):",
"“(2) Unless the person charged is a fugitive or is evading arrest, the investigating judge shall, before issuing an arrest warrant, question that person about the facts forming the basis for the charges and potentially justifying an arrest warrant, and hear his or her observations. Failure to question the person charged shall entail his or her release.",
"The investigating judge shall also notify the person charged about the possibility that an arrest warrant might be issued for his or her detention and hear his or her observations on that matter. Failure to satisfy these conditions shall entail the person ’ s release.",
"...”",
"54. It was inferred from the silence of those provisions of the Law on pre-trial detention, and from the secrecy of the preliminary police investigation and judicial pre-trial investigation (under Article 28 quinquies, § 1, first paragraph, of the Code of Criminal Procedure) that the arrested person could not be accompanied by a lawyer during the twenty-four-hour period in question. Nor was the arrested person entitled to consult with a lawyer, the right to communicate freely with a lawyer only being granted at the end of the first appearance before the investigating judge, which had to take place within a twenty-four-hour period (see paragraph 55 below).",
"2. Judicial pre-trial investigation phase",
"55. Section 20 of the Law on pre-trial detention, on which the right to consult and communicate freely with a lawyer was based, was worded as follows, in its relevant part, prior to its amendment by the “Salduz Act”:",
"“(1) Immediately after the first interview [ sic ], the person charged may communicate freely with his or her lawyer.",
"...",
"(5) The investigating judge ’ s decision to restrict visits, correspondence and telephone calls shall not alter the rights of the person charged as regards the possibilities of consulting with his or her lawyer.",
"... ”",
"56. That provision, appearing in Chapter III of the Law on arrest warrants issued by the investigating judge, referred not to the first police interview but to the first examination by the investigating judge.",
"57. During that first appearance, the investigating judge was required to notify the person charged that he had the right to choose a lawyer. If the person did not choose a lawyer, the investigating judge would inform the Chair of the Bar Council or his deputy (section 16(4) of the Law on pre ‑ trial detention).",
"58. Free communication consisted mainly in the possibility for the lawyer to visit his client in prison, to read the investigation file made available to the accused and to counsel for a period of two days prior to any hearings (section 21(3) of the Law on pre-trial detention) and to assist the client on a monthly basis before the chambre du conseil of the Court of First Instance in order to discuss any serous indications of guilt and/or the need to maintain the detention measure (section 22, fourth paragraph, of the Law). No later than five days after the notification of the arrest warrant and every month thereafter, or in the case of serious charges every three months (section 22, first and second paragraphs, of the Law), the competent chambre du conseil had to rule on the need to extend the detention. During that hearing the person charged was assisted by his lawyer and was entitled to ask the investigating judge for additional acts to be performed (Article 61 quinquies, § 1, of the Code of Criminal Procedure).",
"59. The right to communicate with the lawyer did not mean that the latter could attend any subsequent police interviews or examinations by an investigating judge or any other investigative acts during the judicial investigation stage such as reconstructions or confrontations. The Court of Cassation took the view that the secrecy imposed by Article 28 quinquies § 1, first paragraph, and Article 57 § 1, first paragraph, of the Code of Criminal Procedure precluded, as a rule, the presence of the lawyer at any acts of the preliminary police investigation or judicial pre ‑ trial investigation (see, among other authorities, Court of Cassation, 26 May 2010, in the applicant ’ s case – paragraph 48 above).",
"60. The main exception was the possibility for the lawyer to attend the recapitulatory examination by the investigating judge, as provided for in section 22, second paragraph, of the Law on pre-trial detention, which read as follows before being amended by the “Salduz Act”:",
"“At the request of the person charged or his counsel, the investigating judge shall summon the person charged ten days prior to each appearance before the chambre du conseil, or the Indictment Division ruling in cases remitted to it in accordance with section 31(4), for a recapitulatory examination; the clerk shall immediately notify the summons, in writing or by fax, to the lawyer of the person charged and to the Crown Prosecutor, both of whom may attend the said examination.”",
"3. Formalities to be observed during interviews and examinations",
"61. Section 16(7) of the Law on pre-trial detention, prior to its amendment by the “Salduz Act”, provided that the record of the first examination by the investigating judge of the person charged, together with the records of all police interviews with the person charged between the time he was deprived of liberty and his first appearance before the investigating judge, had to mention the time at which the interview started and finished, together with the time of the beginning and end of any interruptions. On the notification of the arrest warrant, a copy of the statement to the investigating judge and copies of other documents listed in section 16(7) ( cited above ) were to be given to the person charged in accordance with section 18(2) of the Law.",
"62. Article 47 bis of the Code of Criminal Procedure further laid down certain rules to be complied with by the police or prosecutor for the organisation of any interviews during the preliminary investigation phase and for the drafting of the interview records. Under Article 70 bis of the Code of Criminal Procedure, the same rules applied to questioning at the pre-trial investigation stage, in particular the examinations by the investigating judge.",
"63. Prior to its amendment by the “Salduz Act”, Article 47 bis of the Code of Criminal Procedure read as follows:",
"“For the purposes of interviews conducted with any persons questioned in any capacity whatsoever, the following minimum rules shall be complied with:",
"1. At the beginning of any interview, the person interviewed shall be informed:",
"(a) that he or she may request that all questions put and answers given be recorded verbatim;",
"(b) that he or she may request any investigative act or interview;",
"(c) that his or her statements may be given in evidence at trial.",
"...”",
"64. The express notification to the person interviewed that his or her statements might be given in evidence at trial was regarded as indirectly enshrining the right to remain silent in Belgian legislation. Such right was not provided for expressly in Belgian law at the relevant time, even though it was one of the defence rights and, according to the Court of Cassation, was part of the general principles of law (Court of Cassation, 13 May 1986, Pasicrisie, 1986-I, no. 558).",
"65. Article 47 bis of the Code of Criminal Procedure also provided that at the end of the interview, the person interviewed had to be able to read over the statement, unless he or she asked for it to be read out. He or she then had to be asked if the statement should be corrected or complemented. The person interviewed was free to sign the statement or to refuse to do so. He or she could also ask to write it out himself or herself and to request that it be attached to the interview record.",
"B. Development of the Court of Cassation ’ s case-law after the Salduz judgment",
"66. Following the Salduz judgment, the Court of Cassation was, on a number of occasions, called upon to examine – in cases concerning both pre-trial detention and the merits of a criminal prosecution – legal argument based on an alleged violation of Article 6 §§ 1 or 3 (c) of the Convention on the ground that the suspect had not had legal assistance during his or her time in police custody or when questioned by the police or investigating judge.",
"67. The Court of Cassation took the view that, although Belgian law did not provide for the presence of a lawyer alongside a suspect from the time of his deprivation of liberty, that did not automatically give rise to a violation of the right to a fair trial. In the court ’ s view, that restriction had to be assessed in the light of the proceedings as a whole and of the statutory safeguards generally afforded to the accused in order to ensure respect for his or her defence rights from the time of the decision to prosecute. In that connection the court referred in particular to the following safeguards provided for under Belgian law:",
"(a) the formalities imposed for the interview of the suspect under Article 47 bis of the Code of Criminal Procedure;",
"(b) the brevity of the police custody period under the Constitution (Article 12 § 3);",
"(c) the immediate remittance to the person charged, upon notification of the arrest warrant, of his interview records;",
"(d) the right of the person charged to communicate immediately with his lawyer after his first examination by the investigating judge;",
"(e) access to the file prior to appearance before the pre-trial court;",
"(f) the lawyer ’ s presence at the recapitulatory examination.",
"68. The Court of Cassation would then verify in concreto if the suspect had made self-incriminating statements without legal assistance during the first police interviews and examinations by the investigating judge, and if so whether those statements had been used by the trial court to find the defendant guilty, and more generally, whether the initial absence of legal assistance had adversely affected the fairness of the trial in the light of the proceedings as a whole.",
"69. In a judgment of 5 May 2010 the Court of Cassation thus saw fit, on the first appeal it had received against such a conviction, to examine “whether the interviews [with the accused], without a lawyer being present, conducted by the federal criminal investigation police ... and by the investigating judge ... [had] had any impact on the conduct of the trial” (Court of Cassation 5 May 2010 P.10.0257.F; see also Court of Cassation, 26 May 2010 (in the applicant ’ s case, see paragraph 48 above), and Court of Cassation, 22 June 2010, P.10.0872.N).",
"70. In a judgment of 15 December 2010 ( P.10.0914.F ), the Court of Cassation quashed for the first time, on account of a violation of Article 6 of the Convention, a trial court decision relying on self-incriminating statements given to the police by a suspect in police custody without any possibility of legal assistance. In response to the appellant ’ s ground of appeal criticising the judgment for basing his conviction in particular on the statements he had made to the investigators and to the investigating judge in the interviews conducted during the twenty-four-hour period after being taken into custody, the Court of Cassation found, in particular, as follows:",
"“The right to a fair trial, as enshrined in Article 6 § 1 of the Convention ..., implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer during the police interview which takes place within twenty ‑ four hours after he or she is taken into custody, unless it is shown, in the light of the particular circumstances of the case, that there are compelling reasons to restrict such right.",
"In so far as it allows such access to a lawyer only after the first examination by the investigating judge, section 20(1) of the Law of 20 July 1990 on pre-trial detention must be regarded as incompatible with Article 6 of the Convention.",
"The fairness of a criminal trial should be assessed in the light of the proceedings as a whole, by ascertaining whether the defence rights have been observed, examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use, verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy, and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings.",
"The evidence in the file shows that the appellant challenged, before the trial court, the charges of rape and indecent assault laid against him and of which the first respondent claimed to have been the victim at a time when, as a minor, he could not legally have consented to the sexual acts thus characterised.",
"In support of their conviction as to the appellant ’ s guilt, the judges of the Court of Appeal noted that, until his release by the investigating judge, the suspect had gradually confessed to the acts described by the complainant before calling everything into question and seeking his acquittal in the trial court.",
"To explain this change of position, the judgment took the view ... that the appellant had probably not perceived the significance in criminal law of the acts that he had admitted committing, being unaware that oral penetration was also characterised as rape.",
"Therefore in giving the statement in question, during police custody and without legal assistance, the suspect had incriminated himself because he did not have the legal knowledge which would have enabled him to put his words into a different perspective.",
"The appellant ’ s confession and the reason for its withdrawal justify, according to the judgment, the fact of not giving credence to his claims that the accusations against him were mere fiction.",
"Self-incriminating statements given to the police within twenty-four hours of being taken into custody by a suspect who, in the absence of a lawyer, may not, according to the Court of Appeal, have understood the legal consequences of his words, were thus taken into consideration by that court in finding the criminal complaint credible and accordingly in concluding that the prosecution case was made out.",
"Being based on that reasoning, the decision breaches Article 6 of the Convention.”",
"71. Lastly, it is noteworthy that in a judgment of 31 October 2017 (P.17.0255.N), the Court of Cassation took the view that in order to gauge the impact of the lawyer ’ s absence from interviews during the judicial pre ‑ trial investigation (interviews which had been conducted in 2010, and thus after the Salduz judgment, but before the 2011 “Salduz Act”), the trial court had to take account of a non-exhaustive list of factors enumerated by the Court as set out in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, § 274, 13 September 2016 ).",
"C. The “Salduz Act” and “Salduz bis Act”",
"72. The reform of the domestic law began with the enactment of the Law of 13 August 2011 (known as the “Salduz Act”), which entered into force on 1 January 2012, amending the Code of Criminal Procedure and the Law of 20 July 1990 on pre-trial detention. The relevant provisions were again amended by the Law of 21 November 2016 on certain rights of persons during questioning (known as the “Salduz bis Act”), which entered into force on 27 November 2016. This new Law transposes into domestic law the provisions of Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013, L 294, p. 1 – see paragraph 82 below).",
"73. Under Article 47 bis § 2 of the Code of Criminal Procedure, as replaced by the “Salduz Act”, any person interviewed as a suspect, provided that the potential charges concern an offence that could justify an arrest warrant, is entitled to a confidential consultation with a lawyer prior to the first interview. The “Salduz bis Act” has added the possibility for the suspect to be assisted by a lawyer while being interviewed.",
"74. Article 47 bis § 2 of the Code of Criminal Procedure, as replaced by the “Salduz Act”, also provides that before being interviewed, a suspect must be informed that his statements may be used in evidence and that he cannot be compelled to incriminate himself. The “Salduz bis Act” has added that the suspect may choose, after giving his identity, to make a statement, to answer the questions put to him, or to remain silent.",
"75. For persons in custody, section 2 bis of the Law on pre-trial detention, as inserted by the “Salduz Act”, provides that the police or judicial authorities must enable the arrested person to exercise his or her right to prior consultation with a lawyer of his or her choosing, or a duty lawyer assigned by the Bar.",
"76. Under that same section, persons in custody are also entitled to legal assistance when questioned by the police or a judge during the twenty-four hour period following their arrest.",
"77. The lawyer ’ s role during an interview consists in ensuring that his client ’ s rights are upheld. The “Salduz bis Act” has extended that role in particular to enable intervention by the lawyer for the purpose of requesting investigative acts or clarifications, in addition to making observations.",
"D. The possibility of reopening criminal proceedings",
"78. In Belgium, Article 442 bis of the Code of Criminal Procedure enables convicted persons to apply to the Court of Cassation for the reopening of proceedings following a judgment of the Court finding a violation of the Convention. The provision reads as follows:",
"“If a final judgment of the European Court of Human Rights has found that there has been a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ..., an application may be made for the reopening – in respect of criminal matters alone – of the proceedings that resulted in the applicant ’ s conviction in the case before the European Court of Human Rights or in the conviction of another person for the same offence on the basis of the same evidence.”",
"III. RELEVANT EU AND INTERNATIONAL LAW MATERIAL",
"A. European Union law",
"1. The right to be informed",
"79. On 22 May 2012 the European Union adopted Directive 2012/13/EU of the Parliament and the Council on the right to information in criminal proceedings (OJ L 142, p. 1). As can be seen from Recitals 14 and 18 of this Directive, it is founded upon the rights laid down in the Charter of Fundamental Rights of the European Union (“the Charter”), and in particular Articles 6, 47 and 48 thereof, building upon Articles 5 and 6 of the Convention as interpreted by the Court. In addition, the Directive explicitly establishes the right to information about procedural rights, as “inferred from the case-law” of the Court (Recital 18).",
"80. Article 1 of Directive 2012/13/EU clarifies that the right to information has two aspects: information on procedural rights and information on the accusation. Pursuant to Article 2 § 1, the Directive applies from the time persons are made aware by the competent authorities of a member State that they are suspected or accused of having committed a criminal offence. Such persons must be provided promptly with information concerning at least the five procedural rights listed in Article 3 § 1 of the Directive, namely: the right of access to a lawyer; the right to free legal advice; the right to be informed of the accusation; the right to interpretation and translation; and the right to remain silent. Article 8 § 2 provides that suspects must have the right under national law to challenge any failure to provide the requisite information. The Directive, of which the relevant provisions have not yet given rise to interpretation by the Court of Justice of the European Union (CJEU), does not address how evidence obtained before the suspect has been informed of his or her procedural rights should be treated in any subsequent criminal proceedings.",
"81. Directive 2012/13, which had to be transposed by 2 June 2014, applies to all EU Member States except Denmark.",
"2. The right of access to a lawyer",
"82. Directive 2013/48/EU ( cited above ) lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant. In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, building upon Articles 3, 5, 6 and 8 of the Convention, as interpreted by this Court (Recital 12). In its Preamble the Directive explains, by reference to case-law of the Court, that where a person other than a suspect or accused person, such as a witness, becomes a suspect or accused person, that person should be protected against self-incrimination and has the right to remain silent. In such cases, questioning by law enforcement bodies should be suspended immediately and may only be continued if the person concerned has been made aware that he or she is a suspect or accused person and is able to fully exercise the rights provided for in the Directive (Recital 21). In addition, the member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings (Recital 25).",
"83. Article 2 § 1 of the Directive provides that the rights in the Directive apply to:",
"“suspects or accused persons ... from the time when they are made aware by the competent authorities ..., by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty.”",
"84. Article 3 of Directive 2013/48/EU, entitled “The right of access to a lawyer in criminal proceedings”, reads as follows:",
"“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.",
"2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:",
"(a) before they are questioned by the police or by another law enforcement or judicial authority;",
"(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;",
"(c) without undue delay after deprivation of liberty;",
"(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.",
"3. The right of access to a lawyer shall entail the following:",
"(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;",
"(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;",
"(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence ‑ gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:",
"(i) identity parades;",
"(ii) confrontations;",
"(iii) reconstructions of the scene of a crime.",
"4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.",
"Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.",
"...",
"6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:",
"(a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;",
"(b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.”",
"85. Article 12 § 2 addresses the question of remedies and provides that, without prejudice to national rules and systems on the admissibility of evidence, member States must ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3 § 6 ( cited above ), the rights of the defence and the fairness of the criminal proceedings are respected.",
"86. Directive 2013/48/EU, which had to be transposed by 27 November 2016, applies to all EU member States except for the United Kingdom, Ireland and Denmark.",
"B. International and comparative law",
"87. Article 14 of the International Covenant on Civil and Political Rights of 1966 (“the Covenant”) guarantees the right to a fair trial. Article 14 § 3 (d) provides in particular that everyone charged with a criminal offence has the right, in full equality, to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.",
"88. In a number of cases the Human Rights Committee has found a violation of Article 14 § 3 (d) of the Covenant on account of a failure to provide sufficient information to an accused about the right to legal assistance (see, for example, Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. Russian Federation, 2011, 1304/2004).",
"89. The Court would further refer to the other international and comparative law material presented in Ibrahim and Others ( cited above, §§ 218-33).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"90. The applicant alleged that the fact of being deprived of access to a lawyer while he was in police custody, without being given sufficient information on his right to remain silent and not to incriminate himself, together with the fact that no lawyer was present during the subsequent police interviews, examinations by an investigating judge and other investigative acts in the course of the pre-trial investigation, had breached his right to a fair trial as secured by Article 6 §§ 1 and 3 (c) of the Convention. Those provisions read as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”",
"A. Admissibility",
"91. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"92. The applicant complained that when he had been questioned on 31 December 2007 by the Belgian police, while in police custody, and later by the investigating judge, no lawyer had been present. The fact that he had received legal assistance during the proceedings in France was of no consequence, in his view, as those proceedings had concerned the execution of the European arrest warrant and not the offences with which he had been charged in Belgium. Referring to the Court ’ s case-law, in particular Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) and Dayanan v. Turkey (no. 7377/03, 13 October 2009 ), he submitted that the absence of a lawyer at that stage of the proceedings stemmed from the application of Belgian law which, at the time of the proceedings against him, did not meet the requirements of that case-law as it did not, on account of the secrecy of the judicial investigation, grant legal assistance to a person in custody until after the investigating judge ’ s decision on pre ‑ trial detention.",
"93. As Article 47 bis of the Code of Criminal Procedure did not provide for the notification to a suspect of his right to remain silent, the absence of a lawyer at the interview and examination of 31 December 2007 meant that the applicant had not been specifically informed of that right or of the privilege against self-incrimination. In view of his limited intellectual capacities he had not been able, on his own, to infer the right to remain silent from the caution given to him that his statements could be used in evidence. Moreover, while the applicant had signed the interview record, which mentioned the caution that his statements could be used in evidence, in the absence of a lawyer there was no guarantee that this caution had indeed been read out to him prior to the interview.",
"94. The applicant pointed out that, while the Belgian Court of Cassation ’ s case-law had evolved favourably, taking account of the Salduz judgment, that court had never reached the conclusion that the legislation in itself entailed a violation of the right to a fair trial. Moreover, it was only after the judgment of 15 December 2010 (see paragraph 70 above), and thus subsequent to the applicant ’ s case, that the Court of Cassation had struck down judgments of the trial courts based on self-incriminating statements made during the initial interviews without a lawyer being present.",
"95. In the applicant ’ s view there had been no compelling reason – and no such reason had even been invoked – to deny him his right to legal assistance. The restriction on the right of access to a lawyer had been the norm at the time and had lasted throughout the pre-trial investigation. In his case, no individual assessment had been made and there had been no urgent need to protect a person from serious harm to that person ’ s life or liberty or from serious injury.",
"96. As the Court had confirmed in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, § 265, 13 September 2016 ), the lack of compelling reasons entailed a presumption of a violation of Article 6. Where the person was not notified of the right to remain silent or of the privilege against self-incrimination, it was even more difficult for the Government to rebut this presumption (ibid., § 273).",
"97. A finding that there was a general and mandatory statutory restriction on legal assistance should suffice, in the applicant ’ s view, on the basis of the case-law he had cited, for a breach of the requirements of Article 6 to be established, even where the suspect had denied the allegations or exercised his right to remain silent. He pointed out that such an approach had been followed by the Court in a number of cases ( Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010; Simons v. Belgium (dec.), no. 71407/10, 28 August 2012; Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; and Borg v. Malta, no. 37537/13, 12 January 2016).",
"98. While the Ibrahim and Others judgment allowed for the respondent Government to demonstrate convincingly why the overall fairness of a trial had not been irretrievably prejudiced by the restriction on access to legal advice, that possibility could only, in the case of a statutory restriction, be afforded on an exceptional basis in the light of the particular circumstances.",
"99. The applicant submitted, incidentally, that the restriction on his right to legal assistance had irretrievably prejudiced the fairness of his trial as a whole. That conclusion followed from an examination of some of the criteria enumerated in Ibrahim and Others. First, the applicant argued that he had been in a particularly vulnerable situation as a result of his detention and that it had been aggravated by his very poor verbal skills. He then pointed out that denials and inconsistent statements, as in the present case, could be detrimental to the accused, especially where they were used to find that the suspect had changed his version of events. Moreover, as the investigating judge had ordered a psychiatric assessment, at the end of his examination on 31 December 2007, the applicant questioned whether he had really been in a fit state to be questioned. He submitted that, while the reasons for his conviction did not directly reproduce his statements, his various interviews and examinations had been cited at some length in the indictment, a key document that had been read to the jury at the start of the trial and handed to them. Certain assertions by the jury had been derived from those statements, for example his statement to the effect that he knew C.L. was pregnant and that he had struck her. Lastly, it was appropriate in the applicant ’ s view to note from the hearing record of 1 February 2010 that the President of the Assize Court had not given any warning to the jury as to the weight they should attach, in their deliberations, to the various statements made by him.",
"(b) The Government",
"100. The Government acknowledged that, as a result of the applicable Belgian law at the material time, the applicant had not been able to consult with a lawyer while he was in police custody and no lawyer had been present during the ensuing interviews and examinations or at the reconstruction. However, it could not automatically be inferred that the applicant ’ s trial had not been fair. It was necessary to assess the overall fairness of the proceedings in accordance with the Court ’ s method and case ‑ law which, as reiterated in the Ibrahim and Others judgment, showed that the right to legal assistance was not an end in itself.",
"101. In the present case, that assessment involved first verifying the proceedings at their earliest stages. It was the applicant ’ s arrest by the French authorities which had to be regarded, in the Government ’ s view, as the starting-point for the safeguards enumerated in Article 6. It was noteworthy that the applicant had immediately been granted, upon his arrest by the French gendarmerie, the possibility afforded under French law to be assisted by a lawyer while in police custody. The fact that this possibility was not recognised under Belgian law at the material time was thus of little consequence. Moreover, the fact that the applicant had expressly waived legal assistance at the time of his arrest by the French authorities meant that any restriction of the right of access to a lawyer (the Government referred to Simeonovi v. Bulgaria [GC], no. 21980/04, § 128, 12 May 2017) could be ruled out. The applicant had subsequently been assisted by a lawyer once he had asked the French authorities to find him one.",
"102. The only gap in the continuous legal assistance enjoyed by the applicant since his arrest in France concerned the period from the interview and examination of 31 December 2007, following his surrender to the Belgian authorities, when he had ceased to be assisted by the French lawyer, until the time when he came into contact with a Belgian lawyer. The Government acknowledged that there was some uncertainty as to whether the applicant had been advised by this new lawyer at the time of the police interview on 11 January 2008. However, there was no doubt that after the period of police custody on 31 December 2007, the investigating judge had contacted the Chair of the Bar to arrange for the appointment of a lawyer. Subsequently, and throughout his pre-trial detention, the applicant had been able, in accordance with Belgian law as it stood at the time, to make unlimited use of his right to confer confidentially with his lawyer in order to prepare for questioning and organise his defence.",
"103. In order to show that the proceedings had been fair in spite of any shortcomings in the safeguards afforded at the early stages, the Government emphasised, first, that the applicant had clearly been aware of his rights when he had initially come before the Belgian authorities. He had provided them with a constructed version of the facts and had put forward a defence strategy consisting in pleading his innocence and denying all the charges then laid against him. That was a result of the fact that he had received legal assistance in France prior to his surrender and had previously had dealings with the Belgian justice system. Nor should it be overlooked that the interviews conducted while he was in police custody on 31 December 2007 had served mainly to determine whether his detention was absolutely necessary for public safety, thus justifying the issuance of an arrest warrant. Accordingly, in view of the gravity of the charges, it could be considered that the presence of a lawyer would not have changed the outcome of the interviews.",
"104. In addition, as shown by the record of each interview, the applicant had been informed of his rights in accordance with Article 47 bis of the Code of Criminal Procedure. He had fully availed himself, from the time of his first statements, of his right to silence, including the right to be unresponsive, to lie, and to select or conceal facts. He had also been informed of the possibility of adducing evidence and of requesting any additional investigative acts. No correlation, whether positive or negative, could, moreover, be observed between the version of the events adopted by the applicant at any given time and the presence or absence of a lawyer.",
"105. The Government submitted, secondly, that with the single exception of the confession that he had taken a document from the file during his interview on 17 March 2008, the applicant had never made any self-incriminating statements. That point was decisive in assessing the overall fairness of the proceedings. Moreover, it could be seen from the committal judgment of the Indictment Division of 31 August 2009 and the Assize Court ’ s sentencing judgment of 10 February 2010 that the accepted indications of the applicant ’ s guilt were derived primarily from witness statements, investigators ’ findings, real evidence and forensic medical and psychiatric assessments, and that his statements had not been used against him by the trial court.",
"106. Thirdly, it transpired from the settled case-law of the Court of Cassation, both before and after the judgment delivered against the applicant, that it applied an exclusionary rule which consisted in systematically quashing convictions based on self-incriminating statements made in the absence of a lawyer. The Court of Cassation had thus not waited for the legislature to change the Belgian statutory framework in order to transpose the Salduz case-law and, taking the view that the restriction on legal assistance had to be assessed in the light of the proceedings as a whole, it verified that any self-incriminating statements made in the absence of a lawyer could not be used by the trial court for the defendant ’ s conviction. While the Court of Cassation had not quashed the Assize Court judgments in the present case, that was only after examining the situation as a whole and finding that the applicant ’ s right to a fair trial had not been prejudiced by the application of Belgian law. The applicant ’ s conviction had indeed been primarily based on evidence other than the statements in question.",
"107. Lastly, in addition to the fact that the applicant could not rely on any particular vulnerability or on any allegation of pressure on the part of the police, he had been afforded many other safeguards, as listed by the Court of Cassation in its judgment of 26 May 2010, the practical impact of which had been evident throughout the proceedings, in the Government ’ s view. The right to receive copies of the documents in the file had enabled him to organise and devise the best possible defence, through unlimited consultations with his lawyer; the systematic copies of interview records had helped him to keep to the same version of events, albeit contradicting that of the witnesses; and the judicial investigation had been subject to review by the Indictment Division, before which the applicant had been entitled to challenge the legality of the investigation at any time. In addition, all the decisions taken and all the warrants issued against the applicant had been fully reasoned and he had also enjoyed the procedural safeguards surrounding trial in the Assize Court.",
"2. The third-party intervener",
"108. Fair Trials International (FTI) was of the opinion that the present case provided the Court with an opportunity to clarify its approach on a number of points.",
"109. Firstly, when it came to assessing the conformity of a “systemic” statutory restriction with Article 6 §§ 1 and 3 (c), the Court should clarify whether it would follow its previous approach in A.T. v. Luxembourg (no. 30460/13, 9 April 2015) and examine, through an overall fairness assessment, whether any incriminating statements, in a broad sense, obtained without a lawyer were used for the conviction. If that approach were to be taken, FTI suggested that, in line with the subsidiarity principle, the Court should only proceed to conduct its own assessment of the use made of such statements if, in the specific case, the problem had been identified and Convention compliance assessed by the national courts, regardless of the domestic law.",
"110. Secondly, as to the use of self-incriminating statements, the Court should take the opportunity in the present case to reiterate that when evidence taken without a lawyer – whether or not the restriction was statutory in origin – had any adverse effect at trial, this would cause irretrievable prejudice to the rights of the defence.",
"111. In FTI ’ s view, the judgment in Ibrahim and Others had departed from the post- Salduz line by asserting that, even in cases where there were no compelling reasons, there was no reason in principle why such statements should not be used for a conviction, provided that the overall fairness of the proceedings was not affected.",
"112. FTI did not support this more flexible approach, arguing that it ran counter to the developments in European legal systems since Salduz. The immediate consequence of the Ibrahim and Others judgment had been to legitimise situations in which the use of evidence obtained in the absence of a lawyer was tolerated. Moreover, the application of the Ibrahim test – a discretionary substantive assessment based on ten non-exhaustive factors – was liable to lead to varying interpretations and results, as shown by the lack of consensus in the Grand Chamber ’ s Simeonovi judgment on the overall fairness issue.",
"113. To avoid any regression, FTI asked the Court to confirm that, in cases where an overall fairness assessment showed that there was a link, however tenuous, between the absence of a lawyer and the outcome of the trial, it would be necessary to consider that the early breach had “crystallised” and to find a violation, regardless of the extent of any prejudice caused to the overall fairness of the proceedings.",
"3. The Court ’ s assessment",
"(a) Preliminary comments",
"114. The Court observes, by way of introduction, that the Grand Chamber has already had occasion, in a number of cases, to rule on the right of access to a lawyer under Article 6 §§ 1 and 3 (c) of the Convention (see, as recent examples, Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015; Ibrahim and Others, cited above; and Simeonovi, cited above ).",
"115. In the present case, as can be seen from paragraphs 3 and 90 above, the applicant complained first that he had not had access to a lawyer while in police custody and, in addition, that even once he had been able to consult with a lawyer, his lawyer could not assist him during his police interviews or examinations by the investigating judge or attend a reconstruction of events.",
"116. The applicant ’ s complaints concern statutory restrictions on the right of access to a lawyer, the first alleged restriction being of the same nature as that complained of in the Salduz judgment. It should be pointed out that, further to that judgment, the Grand Chamber provided significant clarification on the right of access to a lawyer in its Ibrahim and Others judgment, even though the restriction complained of in the latter case was not one of a general and mandatory nature. The present case thus affords the Court an opportunity to explain whether that clarification is of general application or whether, as claimed by the applicant, the finding of a statutory restriction is, in itself, sufficient for there to have been a breach of the requirements of Article 6 §§ 1 and 3 (c).",
"117. The present case also raises questions concerning the content and scope of the right of access to a lawyer. The Court observes that, since the Salduz judgment, its case-law has evolved gradually and that the contours of that right have been defined in relation to the complaints and circumstances of the cases before it. The present case thus affords an opportunity to restate the reasons why this right constitutes one of the fundamental aspects of the right to a fair trial, to provide explanations as to the type of legal assistance required before the first police interview or the first examination by a judge. It also allows the Court to clarify whether the lawyer ’ s physical presence is required in the course of any questioning or other investigative acts carried out during the period of police custody and that of the pre-trial investigation (as conducted by an investigating judge in the present case).",
"118. Those questions will be examined in the light of the general principles set out below.",
"(b) General principles",
"(i) Applicability of Article 6 in its criminal aspect",
"119. The Court reiterates that the protections afforded by Article 6 §§ 1 and 3 (c), which lie at the heart of the present case, apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein).",
"(ii) General approach to Article 6 in its criminal aspect",
"120. The fairness of a criminal trial must be guaranteed in all circumstances. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case (see Ibrahim and Others, cited above, § 250). The Court ’ s primary concern, in examining a complaint under Article 6 § 1, is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Bykov v. Russia [ GC], no. 4378/02, §§ 94-105, 10 March 2009; Taxquet v. Belgium [GC], no. 926/05, §§ 84 and 93-100, ECHR 2010; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118, and 152-65, ECHR 2011; Dvorski, cited above, §§ 81 ‑ 82 and 103-13; Schatschaschwili v. Germany [GC ], no. 9154/10, §§ 101 and 161-65, ECHR 2015; Blokhin v. Russia [GC], no. 47152/06, §§ 194 and 211-16, 23 March 2016; Lhermitte v. Belgium [GC], no. 34238/09, §§ 69 and 83-85, 29 November 2016; Ibrahim and Others, cited above, §§ 274, 280-94, and 301-11; and Correia de Matos v. Portugal [GC], no. 56 402 /1 3, §§ 118, 120, and 160-68, 4 April 2018).",
"121. As the Court has found on numerous occasions, compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see, for example, Salduz, cited above, § 50; Al ‑ Khawaja and Tahery, cited above, § 118; Dvorski, cited above, § 76; Schatschaschwili, cited above, § 100; Blokhin, cited above, § 194; and Ibrahim and Others, cited above, § 251).",
"122. Those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Ibrahim and Others, cited above, §§ 251 and 262, and Correia de Matos, cited above, § 120).",
"(iii) Right of access to a lawyer",
"123. The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Ibrahim and Others, cited above, § 255).",
"(α) Starting-point of the right of access to a lawyer",
"124. Where a person has been taken into custody, the starting-point for the right of access to a lawyer is not in doubt. The right becomes applicable as soon as there is a “criminal charge” within the meaning given to that concept by the Court ’ s case-law (see paragraph 119 above) and, in particular, from the time of the suspect ’ s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period (see Simeonovi, cited above, §§ 111, 114 and 121).",
"(β) Aims pursued by the right of access to a lawyer",
"125. Access to a lawyer at the pre-trial stage of the proceedings also contributes to the prevention of miscarriages of justice and, above all, to the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53-54; Blokhin, cited above, § 198; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112).",
"126. The Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Salduz, cited above, § 54; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112).",
"127. The Court has also recognised that the vulnerability of suspects may be amplified by increasingly complex legislation on criminal procedure, particularly with regard to the rules governing the gathering and use of evidence (see Salduz, cited above, § 54, and Ibrahim and Others, cited above, § 253).",
"128. Lastly, one of the lawyer ’ s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself (see Salduz, cited above, § 54; Dvorski, cited above, § 77; and Blokhin, cited above, § 198) and for his right to remain silent.",
"129. In this connection, the Court has considered it to be inherent in the privilege against self-incrimination, the right to remain silent and the right to legal assistance that a person “charged with a criminal offence”, within the meaning of Article 6, should have the right to be informed of these rights, without which the protection thus guaranteed would not be practical and effective (see Ibrahim and Others, cited above, § 272, and Simeonovi, cited above, § 119; the complementarity of these rights had already been emphasised in John Murray v. the United Kingdom, 8 February 1996, § 66, Reports of Judgments and Decisions 1996-I; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Navone and Others, cited above, §§ 73 ‑ 74). Consequently, Article 6 § 3 (c) of the Convention must be interpreted as safeguarding the right of persons charged with an offence to be informed immediately of the content of the right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing (see Simeonovi, cited above, § 119).",
"130. In the light of the nature of the privilege against self-incrimination and the right to remain silent, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. Where a suspect has not, however, been so notified, the Court must examine whether, notwithstanding this failure, the proceedings as a whole were fair. Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against self ‑ incrimination takes on particular importance (see Ibrahim and Others, cited above, § 273, and case-law cited therein).",
"(γ) Content of the right of access to a lawyer",
"131. Article 6 § 3 (c) does not specify the manner of exercising the right of access to a lawyer or its content. While it leaves to the States the choice of the means of ensuring that it is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the Convention, namely to guarantee rights that are practical and effective (see Öcalan v. Turkey [ GC], no. 46221/99, § 135, ECHR 2005 ‑ IV; Salduz, cited above, § 51; Dvorski, cited above, § 80; and Ibrahim and Others, cited above, § 272).",
"132. Assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Öcalan, cited above, § 135; Sakhnovskiy v. Russia [GC], no. 21272/03, § 95, 2 November 2010; and M v. the Netherlands, no. 2156/10, § 82, 25 July 2017 ), and to that end, the following minimum requirements must be met.",
"133. First, as the Court has already stated above (see paragraph 124), suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview (see Brusco, cited above, § 54, and A.T. v. Luxembourg, cited above, §§ 86-87), or even where there is no interview (see Simeonovi, cited above, §§ 111 and 121). The lawyer must be able to confer with his or her client in private and receive confidential instructions (see Lanz v. Austria, no. 24430/94, § 50, 31 January 2002; Öcalan, cited above, § 135; Rybacki v. Poland, no. 52479/99, § 56, 13 January 2009; Sakhnovskiy, cited above, § 97; and M v. the Netherlands, cited above, § 85 ).",
"134. Secondly, the Court has found in a number of cases that suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre ‑ trial proceedings (see Adamkiewicz v. Poland, no. 54729/00, § 87, 2 March 2010; Brusco, cited above, § 54; Mađer v. Croatia, no. 56185/07, §§ 151 and 153, 21 June 2011; Šebalj v. Croatia, no. 4429/09, §§ 256-57, 28 June 2011; and Erkapić v. Croatia, no. 51198/08, § 80, 25 April 2013 ). Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract (see A.T. v. Luxembourg, cited above, § 87), and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (see John Murray, cited above, § 66, and Öcalan, cited above, § 131).",
"135. The Court has found, for example, that depending on the specific circumstances of each case and the legal system concerned, the following restrictions may undermine the fairness of the proceedings :",
"(a) a refusal or difficulties encountered by a lawyer in seeking access to the criminal case file, at the earliest stages of the criminal proceedings or during the pre-trial investigation (see Moiseyev v. Russia, no. 62936/00, §§ 217-18, 9 October 2008; Sapan v. Turkey, no. 17252/09, § 21, 20 September 2011; and contrast A.T. v. Luxembourg, cited above, §§ 79 ‑ 84);",
"(b) the non-participation of a lawyer in investigative measures such as identity parades (see Laska and Lika v. Albania, nos. 12315/04 and 17605/04, § 67, 20 April 2010) or reconstructions (see Savaş v. Turkey, no. 9762/03, § 67, 8 December 2009; Karadağ v. Turkey, no. 12976/05, § 47, 29 June 2010; and Galip Doğru v. Turkey, no. 36001/06, § 84, 2 8 April 2015 ).",
"136. In addition to the above-mentioned aspects, which play a crucial role in determining whether access to a lawyer during the pre-trial phase has been practical and effective, the Court has indicated that account must be taken, on a case-by-case basis, in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance: discussion of the case, organisation of the defence, collection of exculpatory evidence, preparation for questioning, support for an accused in distress, and verification of the conditions of detention (see Hovanesian v. Bulgaria, no. 31814/03, § 34, 21 December 2010; Simons, cited above, § 30; A.T. v. Luxembourg, cited above, § 64; Adamkiewicz, cited above, § 84; and Dvorski, cited above, §§ 78 and 108).",
"(iv) Relationship between the justification for a restriction on the right of access to a lawyer and the overall fairness of the proceedings",
"137. The principle that, as a rule, any suspect has a right of access to a lawyer from the time of his or her first police interview was set out in the Salduz judgment ( cited above, § 55) as follows:",
"“... in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ ..., Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”",
"138. The Salduz judgment also demonstrated that the application on a “systematic basis”, in other words on a statutory basis, of a restriction on the right to be assisted by a lawyer during the pre-trial phase could not constitute a compelling reason ( ibid., § 56). In spite of the lack of compelling reasons in that case, the Court nevertheless analysed the consequences, in terms of overall fairness, of the admission in evidence of statements made by the accused in the absence of a lawyer. It took the view that this defect could not have been cured by the other procedural safeguards provided under domestic law (ibid., §§ 52 and 57-58).",
"139. The stages of the analysis as set out in the Salduz judgment – first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer, then examining the overall fairness of the proceedings – have been followed by Chambers of the Court in cases concerning either statutory restrictions of a general and mandatory nature, or restrictions stemming from case-specific decisions taken by the competent authorities.",
"140. In a number of cases, which all concerned Turkey, the Court did not, however, address the question of compelling reasons, and neither did it examine the fairness of the proceedings, but found that systematic restrictions on the right of access to a lawyer had led, ab initio, to a violation of the Convention (see, in particular, Dayanan, cited above, § 33, and Boz v. Turkey, no. 2039/04, § 35, 9 February 2010). Nevertheless, in the majority of cases, the Court has opted for a less absolute approach and has conducted an examination of the overall fairness of the proceedings, sometimes in summary form (see, among other authorities, Çarkçı v. Turkey (no. 2), no. 28451/08, §§ 43-46, 14 October 2014), and sometimes in greater detail (see, among other authorities, A.T. v. Luxembourg, cited above, §§ 72 ‑ 75 ).",
"141. Being confronted with a certain divergence in the approach to be followed, in Ibrahim and Others the Court consolidated the principle established by the Salduz judgment, thus confirming that the applicable test consisted of two stages and providing some clarification as to each of those stages and the relationship between them (see Ibrahim and Others, cited above, §§ 257 and 258 ‑ 62).",
"(α) Concept of compelling reasons",
"142. The criterion of “compelling reasons” is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the suspect ’ s first police interview, restrictions on access to a lawyer are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Salduz, cited above, §§ 54 in fine and 55, and Ibrahim and Others, cited above, § 258). A finding of compelling reasons cannot stem from the mere existence of legislation precluding the presence of a lawyer. The fact that there is a general and mandatory restriction on the right of access to a lawyer, having a statutory basis, does not remove the need for the national authorities to ascertain, through an individual and case-specific assessment, whether there are any compelling reasons.",
"143. The Court has also explained that where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to a compelling reason to restrict access to legal advice for the purposes of Article 6 of the Convention (see Ibrahim and Others, cited above, § 259, and Simeonovi, cited above, § 117).",
"(β) The fairness of the proceedings as a whole and the relationship between the two stages of the test",
"144. In Ibrahim and Others the Court also confirmed that the absence of compelling reasons did not lead in itself to a finding of a violation of Article 6. Whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole (see Ibrahim and Others, cited above, § 262). That latter point is of particular importance in the present case, since the applicant relied on a certain interpretation of the Court ’ s case-law on the right of access to a lawyer (see paragraph 97 above) to the effect that the statutory and systematic origin of a restriction on that right sufficed, in the absence of compelling reasons, for the requirements of Article 6 to have been breached. However, as can be seen from the Ibrahim and Others judgment, followed by the Simeonovi judgment, the Court rejected the argument of the applicants in those cases that Salduz had laid down an absolute rule of that nature. The Court has thus departed from the principle that was set out, in particular, in the Dayanan case and other judgments against Turkey (see paragraph 140 above).",
"145. Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265).",
"146. The Court further emphasises that where access to a lawyer was delayed, and where the suspect was not notified of the right to legal assistance, the privilege against self-incrimination or the right to remain silent, it will be even more difficult for the Government to show that the proceedings as a whole were fair (ibid., § 273 in fine ).",
"147. Lastly, it must be pointed out that the principle of placing the overall fairness of the proceedings at the heart of the assessment is not limited to the right of access to a lawyer under Article 6 § 3 (c) but is inherent in the broader case-law on defence rights enshrined in Article 6 § 1 of the Convention (see the case-law on Article 6 § 1 cited in paragraph 120 above).",
"148. That emphasis, moreover, is consistent with the role of the Court, which is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused.",
"149. As the Court has already observed, subject to respect for the overall fairness of the proceedings, the conditions for the application of Article 6 §§ 1 and 3 (c) during police custody and the pre-trial proceedings will depend on the specific nature of those two phases and on the circumstances of the case.",
"(γ) Relevant factors for the overall fairness assessment",
"150. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court ’ s case-law, should, where appropriate, be taken into account (see Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120):",
"(a) whether the applicant was particularly vulnerable, for example by reason of age or mental capacity;",
"(b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with – where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair;",
"(c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use;",
"(d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;",
"(e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found;",
"(f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified;",
"(g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case;",
"(h) whether the assessment of guilt was performed by professional judges or lay magistrates, or by lay jurors, and the content of any directions or guidance given to the latter;",
"(i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and",
"(j) other relevant procedural safeguards afforded by domestic law and practice.",
"(c) Application of the general principles to the facts of the case",
"151. By way of introduction, the Court points out that the police interviews, examinations by an investigating judge and other investigative acts conducted without the applicant having had any prior access to a lawyer, and without his lawyer being physically present, took place before the delivery of the Court ’ s judgment in Salduz. That being said, it notes that, at his trial before the Assize Court, the applicant referred to that judgment in seeking the exclusion of the statements he had made when questioned without legal assistance. Moreover, the Assize Court, in its interlocutory judgment of 1 February 2010, took account of the Salduz judgment in assessing the situation in the present case, and the Court of Cassation also sought to respond to the ground of appeal based on that case-law (see paragraphs 37-39 and 48 above).",
"152. In addition, the applicant ’ s trial took place a long time before the Grand Chamber judgment in Ibrahim and Others. While that judgment should be taken into account in so far as it confirms and consolidates the Salduz case-law, the Court is nevertheless aware of the difficulties that the passage of time and the development of its case-law may entail for national courts, even though, as regards Article 6 §§ 1 and 3 (c), such development has been linear since the Salduz judgment.",
"153. The Court also acknowledges the efforts of the Belgian Court of Cassation to take account of the development of its case-law in spite of the restrictions on the right of access to a lawyer which were imposed at the time under Belgian law. As can be seen from an examination of the relevant judgments delivered between 2010 and 2011 (see paragraphs 66 ‑ 70 above), the Court of Cassation endeavoured to interpret domestic law in such a way as to ensure that it was compliant, to the extent possible, with the principle laid down in the Salduz judgment and applied subsequently by the Court. To that end, it sought essentially to assess the effects of the restriction on the right of access to a lawyer in the context of its assessment of the overall fairness of the proceedings in the case concerned.",
"(i) Existence and extent of the restrictions",
"154. The Court observes that the impugned restrictions on the right of access to a lawyer in the present case were particularly extensive.",
"155. The applicant was unable to communicate with a lawyer between the time of his surrender to the Belgian authorities at 10.40 a.m. on 31 December 2007 and his police interview at 11.50 a.m., or between that interview and the examination by the investigating judge at 4.45 p.m. on the same day. He was only granted the right to consult with a lawyer, in accordance with section 20 of the Law on Pre-Trial Detention, once the investigating judge had remanded him in custody, at the end of the examination at 5.42 p.m., and had notified the Bar to arrange for defence counsel to be assigned (see paragraphs 13 and 54 above).",
"156. Even though he was subsequently able to communicate freely with his assigned lawyer, the applicant continued to be deprived of the lawyer ’ s presence during the subsequent interviews, examinations and other investigative acts conducted in the course of the judicial pre-trial investigation. In addition to the fact that this restriction derived from a lack of provision in the law and from the secrecy of that investigation, as imposed by the Code of Criminal Procedure, and therefore from the interpretation of the legislation in force at the material time (see paragraphs 54 and 59 above), the restriction was applied throughout the pre ‑ trial phase. In total, between his surrender to the Belgian authorities on 31 December 2007 and the judgment of the Indictment Division of the Mons Court of Appeal of 31 August 2009, committing him to stand trial, the applicant was questioned on the charges without a lawyer five times by the criminal investigation police (not including the interviews of 6 and 7 March 2008 about car thefts), three times by the investigating judge and twice by the Crown Prosecutor. Nor did the applicant ’ s lawyer participate in the reconstruction of the crime scene held on 6 June 2008.",
"157. The Court further finds that uncertainty remains as to the point from which the applicant was actually in contact with a lawyer for the preparation of his defence, after the investigating judge had, at the end of the police custody period on 31 December 2007, taken the necessary steps to have a lawyer assigned (see paragraph 21 above). There is no reference to this matter in the record of the first subsequent interview on 11 January 2008 or elsewhere in the file (see paragraph 25 above). The only certain information available to the Court, on the basis of the record of the investigating judge ’ s examination on 17 March 2008, is that the applicant had, by that point, chosen a lawyer and met him (see paragraph 27 above). In response to the questions put to them at the hearing, the Government were not able to provide any more precise information in this connection.",
"158. Having regard to the foregoing and to the general principles set out above (see paragraphs 119, 125-30 and 131-36), the Court finds that the applicant, who was entitled to the protection of Article 6 of the Convention from the time of his surrender to the Belgian authorities, did not enjoy the right of access to a lawyer under that provision while in police custody and that this right was subsequently restricted throughout the judicial pre-trial investigation.",
"159. In the Court ’ s view, the Government ’ s observation that the applicant had been assisted by a lawyer in the course of the proceedings in France is of no consequence in this connection. Those proceedings and the legal assistance provided in France concerned only the execution of the European arrest warrant by the French authorities.",
"(ii) Whether there were compelling reasons",
"160. It is not in dispute that, at the relevant time, the impugned restrictions stemmed from the lack of provision in the Belgian legislation and the interpretation of the law by the domestic courts (see paragraphs 49 ‑ 60 above).",
"161. The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 142 above). There was clearly no such individual assessment in the present case, as the restriction was one of a general and mandatory nature.",
"162. The Belgian legislation has admittedly been amended by the “Salduz Act”, which entered into force on 1 January 2012, and further by the “Salduz bis Act”, which entered into force on 27 November 2016. The amended legislation confers rights, under certain conditions, to suspects who are questioned or are in custody, such as the right to consult with a lawyer before the police interview and the right to be assisted by the lawyer during any subsequent questioning (see paragraphs 72 ‑ 77 above). It must be observed, however, that the applicant was unable to benefit from those provisions at the time of the pre-trial proceedings against him.",
"163. Furthermore, the Government have failed to demonstrate the existence of any exceptional circumstances which could have justified the restrictions on the applicant ’ s right, and it is not for the Court to ascertain such circumstances of its own motion (see Simeonovi, cited above, § 130).",
"164. The restrictions in question were not justified by any compelling reason.",
"(iii) The fairness of the proceedings as a whole",
"165. In such circumstances, the Court must apply very strict scrutiny to its fairness assessment, especially where there are statutory restrictions of a general and mandatory nature. The burden of proof thus falls on the Government, which, as they have accepted, must demonstrate convincingly that the applicant nevertheless had a fair trial as a whole. As indicated above (see paragraph 145 above and the case-law cited), the Government ’ s inability to establish compelling reasons weighs heavily in the balance, and the balance may thus be tipped towards finding a violation of Article 6 §§ 1 and 3 (c).",
"166. In this exercise, the Court will examine, to the extent that they are relevant in the present case, the various factors deriving from its case-law as set out in the Ibrahim and Others and Simeonovi judgments and reiterated in paragraph 150 above.",
"(α) Whether the applicant was vulnerable",
"167. The Government argued that the applicant had not been particularly vulnerable. The applicant, however, contended that he had been in a vulnerable state on account of his detention and that this vulnerability had been exacerbated by his low IQ and extremely poor verbal skills, as shown by a neuropsychological assessment carried out in April 2008 (see paragraph 29 above).",
"168. The Court notes that the above-mentioned assessment concluded that while the applicant had limited intellectual capacities, his reasoning was nevertheless within the norm. Moreover, the applicant has not pointed to any indication in the records of his interviews and examinations that he had difficulty expressing himself. In addition, no other particular circumstance can be noted which would indicate that the applicant was in a greater state of vulnerability than that in which persons interviewed by investigators would generally find themselves. The interviews conducted while he was in police custody and during the judicial pre-trial investigation were not unusual or excessively long.",
"(β) The circumstances in which the evidence was obtained",
"169. The Court observes that the applicant did not allege, either before the domestic courts or before it, that the Belgian police had exerted any pressure on him. As to the allegation that he had been pressurised by the French gendarmes into subsequently accusing a minor at his first police interview in Belgium, this was dismissed by the Assize Court. That allegation was also contradicted by the applicant himself, as in a subsequent version of the events he gave a different explanation as to why he had made a false accusation (see paragraphs 30 and 40 above).",
"(γ) The legal framework governing pre-trial proceedings and the admissibility of evidence at trial, and whether the applicant was able to challenge the evidence and oppose its use",
"170. The Government relied on the general safeguards that, in their view, the applicant had enjoyed as a result of the legal framework governing pre-trial proceedings at the material time, and in particular on the fact that, except during questioning, the applicant had been entitled to communicate freely and in an unlimited manner with his lawyer from the end of the police custody period. Subsequently, except for the record of the police interview of 31 December 2007 – of which a copy was given to him at the end of his first appearance before the investigating judge – he systematically received a copy of all the interview and examination records, thus enabling him to discuss them with his lawyer and to mount his defence.",
"171. It is true that these safeguards enabled the applicant to benefit, during the judicial investigation phase, from the services of defence counsel and to prepare his defence strategy. In view of the fact, however, that Belgian law as applied in the proceedings against the applicant was not in conformity with the requirements of Article 6 § 3 (see, in particular, paragraphs 160 and 161 above), the overall fairness of the proceedings could not have been guaranteed merely by legislation providing for certain safeguards in the abstract. The Court must examine whether the application of these legal provisions in the present case had a compensatory effect in practical terms, rendering the proceedings fair as a whole. In the context of this examination, which lies at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments, the Court finds that the applicant ’ s conduct during the police interviews and examinations by an investigating judge was capable of having such consequences for the prospects of his defence that there was no guarantee that either the assistance provided subsequently by a lawyer or the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the period of police custody (see, mutatis mutandis, Salduz, cited above, § 58). In addition, as mentioned in paragraph 157 above, the date from which the applicant began to receive legal assistance is not to be found in the case file. While it is clear that the applicant ’ s defence counsel changed several times, it is not clear from the case file how frequent the consultations were, or whether the lawyer had been notified of the dates of the interviews and examinations. The applicant could not therefore prepare for his questioning beforehand with his lawyer, and he could only tell his lawyer later on how the interview or examination had gone, if need be with the help of the official record, and then draw the appropriate conclusions for the future.",
"172. The Government further pointed out that the judicial investigation had been conducted under the supervision of the Indictment Division, before which the applicant could have challenged its lawfulness or complained of procedural irregularities, with his lawyer ’ s assistance, at any time (see paragraph 107 above). However, that safeguard did not play a major role in the present case. First, the applicant never raised, at that stage, the complaints that he later submitted to the Assize Court, the Court of Cassation and this Court, and secondly, the pre-trial courts did not address, as they could have done of their own motion, the procedural defects at issue in the present case.",
"173. As pointed out in the Ibrahim and Others judgment ( cited above, § 254), complaints under Article 6 about the investigation stage tend to crystallise at the trial itself when the prosecution seeks to rely on evidence obtained during the pre-trial proceedings – the phase in which the restrictions on Article 6 rights applied – and the defence seeks its exclusion. In the present case, the question whether the applicant ’ s statements should have been admitted in evidence was examined before the Assize Court at the opening of the trial on 1 February 2010. The applicant, assisted by his lawyer, filed pleadings seeking the nullity of the statements he had given when questioned without a lawyer and the dismissal of the prosecution case. Relying on the Salduz judgment, he argued that the systematic deprivation of his right of access to a lawyer from the time of his first police interview sufficed for a violation of Article 6 to be found. In a judgment given on the same day, the Assize Court rejected the applicant ’ s plea and admitted in evidence all the records in question, finding that the applicant could still have a fair trial even though he had not been assisted by a lawyer during the police interviews and examinations by an investigating judge (see paragraph 41 above).",
"174. It should, however, be observed that the Assize Court did not carry out a more precise examination of either the official records or the circumstances in which the applicant had been questioned by – and had given statements to – the police and the investigating judge (contrast Ibrahim and Others, cited above, §§ 69-84 and 282). Thus there is no indication that the court engaged in the requisite analysis of the consequences of the lawyer ’ s absence at crucial points in the proceedings. Such an omission is all the more significant as, on account of the oral nature of proceedings in the Assize Court and the fact that no detailed record of the hearing is kept, it is not possible to assess the impact of the oral argument in the presence of the jury.",
"175. As regards the subsequent assessment by the Court of Cassation, the Government explained that the settled case-law at the time, which consisted in the systematic quashing of convictions based on self ‑ incriminating statements given in the absence of a lawyer, was tantamount to an exclusionary rule. Where interviews or examinations had been conducted without a lawyer, the Court of Cassation examined whether they had had an effect on the fairness of the trial and it had thus struck down judgments of trial courts which had taken account of self ‑ incriminating statements given without legal assistance (see paragraphs 66-70 above).",
"176. The Court observes that the Court of Cassation quashed a judgment on those grounds for the first time on 15 December 2010, and therefore after the trial court judgment in the present case. In that judgment the Court of Cassation pointed out, for example, that it was necessary to assess the influence of improperly obtained evidence on the outcome of the prosecution. In the present case, it does not appear from the Court of Cassation ’ s judgment that it carried out its assessment of the overall fairness of the proceedings from that perspective. Rather, in its examination of the proceedings, the Court of Cassation focused on a lack of self-incriminating statements during the interviews in police custody and, as regards the rest of the pre-trial investigation in which the applicant ’ s right was also restricted, it merely stated that he had never been compelled to incriminate himself and that he had always expressed himself freely (see paragraph 48 above).",
"(δ) The nature of the statements",
"177. According to the Assize Court and the Court of Cassation, the statements given by the applicant during the interviews and examinations at issue were not self-incriminating and did not contain any confessions. The Government also relied on that position.",
"178. The Court reiterates, however, that the privilege against self ‑ incrimination is not confined to actual confessions or to remarks which are directly incriminating; for statements to be regarded as self ‑ incriminating it is sufficient for them to have substantially affected the accused ’ s position (see Schmid-Laffer v. Switzerland, no. 41269/08, § 37, 16 June 2015; see also A.T. v. Luxembourg, cited above, § 72).",
"179. In the present case, while it is true that the applicant never confessed to the charges and therefore did not incriminate himself stricto sensu, he nevertheless gave detailed statements to the investigators which influenced the line of questioning. He thus admitted on 31 December 2007, while in police custody, that he had been present at the scene of the crime when M.B. was murdered and that he had threatened a witness, as confirmed by eyewitnesses (see paragraph 24 above). When he was interviewed on 25 March 2008 he further stated that C.L. had been pregnant, that he had been alone with her on 17 September 2007 and that he had struck her. Those particulars regarding C.L., which were not corroborated by any testimony other than that of the victim (see paragraph 28 above), must have affected the applicant ’ s position. From that point onwards, the investigators ’ suspicions about the assault on C.L. could only be regarded, in their view, as well-founded. In addition, as the applicant changed his version of the facts several times in the course of the judicial investigation, thus undermining his general credibility, his first examination by the investigating judge was of crucial importance. Reiterating that very strict scrutiny is called for where there are no compelling reasons to justify the restrictions at issue, the Court finds that significant weight must be attached to the above factors in its assessment of the overall fairness of the proceedings.",
"180. The applicant complained that the investigators had obtained information from him on 31 December 2007 while he was in police custody, even though he had not consulted with a lawyer beforehand and had not been notified in a sufficiently explicit manner of his right to remain silent and the privilege against self-incrimination. The Court observes in that connection that at the start of his first police interview the applicant received express information that his statements could be used in evidence (see paragraph 14 above). That information, which he also received at the beginning of each of his subsequent interviews and examinations, was regarded as indirectly enshrining the right to remain silent in Belgian law, whereas the legislation at the time did not expressly provide for that right (see paragraph 54 above).",
"181. Having regard to the case-law set out above (see paragraphs 129 ‑ 30), and since the applicant was not able to consult with a lawyer prior to questioning or to secure the presence of one while he was in police custody, the Court is not persuaded, in the circumstances of the present case, that the information thus given by the investigators was sufficiently clear to guarantee the effective exercise by the applicant of his right to remain silent and not to incriminate himself. In that connection, it cannot but note that the applicant made significant statements and fully availed himself of his freedom to select or conceal facts.",
"(ε) The use of evidence and, in a case where guilt is assessed by lay jurors, the content of any jury directions or guidance",
"182. The trial took place in the Assize Court, a non-permanent court made up of professional judges assisted by a jury (see Taxquet v. Belgium, no. 926/05, §§ 18-21, 13 January 2009, and Castellino v. Belgium, no. 504/08, §§ 45-47, 25 July 2013, for the composition of the Assize Court and rules governing the selecting of the jury; see Taxquet, Chamber judgment cited above, §§ 25-31, and Lhermitte, cited above, §§ 40-44, for rules governing the trial itself).",
"183. The indictment was read out at the start of the trial, before the oral argument. It set out, in twenty-one pages, the applicant ’ s family life and background, the facts and how they had occurred, the investigative acts and their results, and the content of the medical assessments. It mentioned the elements that the applicant had acknowledged and his different versions of the facts.",
"184. The Government challenged the applicant ’ s argument that the indictment was largely based on his statements. The Court observes that the prosecution also relied on various material that was unrelated to and independent of his statements, namely witness statements, the investigators ’ findings, the real evidence collected before his arrest and the results of the medical and psychiatric assessments (see paragraph 43 above). Nevertheless, as noted above (paragraph 178), the statements given by the applicant from the time of his questioning in police custody contained a detailed account of the events which had occurred on the day of the murder, and were complemented or contradicted by equally detailed subsequent statements, and he never denied being present at the scene of the crime or threatening a witness. He also spontaneously gave information about C.L. which tended to incriminate him. Those statements provided the investigators with a framework which must have influenced the indictment, even though they had already obtained certain evidence prior to the applicant ’ s first interview.",
"185. As to whether those elements influenced the deliberation and the decision ultimately reached by the jury, the Court takes account of the fact that the indictment is of limited value for an understanding of the jury ’ s verdict, because it is read out before the oral argument, which will necessarily serve as the basis for the jurors ’ personal conviction (see Taxquet [GC], cited above, § 95, and Lhermitte, cited above, § 77).",
"186. That being said, in the present case the jury concluded that the attempted murder of C.L. had been premeditated, as could be established in particular from the applicant ’ s statements (see paragraphs 45 and 179 above). The Court attaches considerable weight to this point, as it demonstrates that the statements given by the applicant without a lawyer being present were an integral part of the evidence upon which the verdict on this count was reached.",
"187. As to the other counts of the indictment, and in particular the principal one concerning the murder of M.B., the Court agrees with the Government that the jury relied on evidence other than the applicant ’ s statements, namely the consistent and mutually corroborative witness statements of youngsters who had seen only the accused and his victim at the scene, without anyone else being present, the threats that the accused had previously made against his victim and the various steps he had taken in preparing to commit the crime (see paragraph 45 above).",
"188. Nevertheless, the Court notes from an examination of the record of the 1 February 2010 hearing that the President of the Assize Court did not give any warning to the jury as to the weight to be attached in their deliberations to the applicant ’ s numerous statements. While it is necessary to take account of the special procedural features of trials in assize courts sitting with a lay jury, which decides independently whether or not the defendant is guilty, the Court would point out that, in the context of cases concerning the accused ’ s comprehension of the reasoning behind the verdict, it has emphasised the importance of any directions or guidance given by the president to the jurors as to the legal issues arising or the evidence given (see Taxquet [GC], cited above, § 92, and Lhermitte, cited above, § 68). Such directions or guidance may be of particular importance in order to enable the jurors to assess the consequences, for the fairness of the trial, of any procedural defects that may have arisen at the investigation stage (see Ibrahim and Others, cited above, §§ 274, 292 and 310). In spite of its efforts to assess the overall fairness of the proceedings having regard to the Court ’ s recent case-law (see paragraph 48 above), the Court of Cassation does not seem to have taken into account, in its review, the impact on the jury ’ s decision of the fact that the jurors had not been informed of particulars which could have guided them in assessing the significance of the statements that had been given by the applicant without legal assistance.",
"189. The Court therefore takes the view that the total absence, in the present case, of any directions or guidance as to how the jury should assess the applicant ’ s statements in relation to the other evidence in the file and their evidential value, even though they had been taken without a lawyer being present, and, for those given in police custody, without the applicant having received sufficiently clear information on his right to remain silent, is a major defect.",
"(ζ) Weight of the public interest",
"190. There is no doubt that sound public-interest considerations justified prosecuting the applicant, as he was indicted in particular on one count of murder and two counts of attempted murder.",
"(η) Whether other procedural safeguards were afforded by domestic law and practice",
"191. The Court observes that the Belgian Court of Cassation, at the relevant time, took account of a series of procedural safeguards under Belgian law in order to assess the conformity with the Convention of the statutory restrictions on access to a lawyer in police custody (see paragraphs 48 and 67).",
"192. As the Court has emphasised in paragraph 171 above, the overall fairness of the proceedings is not guaranteed merely by legislation providing for certain safeguards in the abstract. Only through an examination of their application to the case at hand can it be determined whether the proceedings were fair as a whole. In any event, all the safeguards referred to by the Court of Cassation have been taken into account by the Court in its examination of the present case (see paragraphs 165-90 above).",
"(θ) Conclusion as to the overall fairness of the proceedings",
"193. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant:",
"(a) The restrictions on the applicant ’ s right of access to a lawyer were particularly extensive. He was questioned while in police custody without having been able to consult with a lawyer beforehand or to secure the presence of a lawyer, and in the course of the subsequent judicial investigation no lawyer attended his interviews or other investigative acts.",
"(b) In those circumstances, and without having received sufficiently clear prior information as to his right to remain silent, the applicant gave detailed statements while in police custody. He subsequently presented different versions of the facts and made statements which, even though they were not self-incriminating stricto sensu, substantially affected his position as regards, in particular, the charge of the attempted murder of C.L.",
"(c) All of the statements in question were admitted in evidence by the Assize Court without conducting an appropriate examination of the circumstances in which the statements had been given, or of the impact of the absence of a lawyer.",
"(d) While the Court of Cassation examined the admissibility of the prosecution case, also seeking to ascertain whether the right to a fair trial had been respected, it focused on the absence of a lawyer during the period in police custody without assessing the consequences for the applicant ’ s defence rights of the lawyer ’ s absence during his police interviews, examinations by the investigating judge and other acts performed in the course of the subsequent judicial investigation.",
"(e) The statements given by the applicant played an important role in the indictment and, as regards the count of the attempted murder of C.L., constituted an integral part of the evidence on which the applicant ’ s conviction was based.",
"(f) In the trial before the Assize Court, the jurors did not receive any directions or guidance as to how the applicant ’ s statements and their evidential value should be assessed.",
"194. The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance (see Schatschaschwili, cited above, § 124). In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole.",
"(iv) General conclusion",
"195. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"196. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"197. The applicant alleged that he had sustained non-pecuniary damage on account of the lack of legal assistance during the pre-trial phase (police custody and judicial investigation) and he estimated this damage at 5,000 euros (EUR).",
"198. The Government argued that if the Court were to award any sum by way of just satisfaction, it would be reasonable to limit it to EUR 3,000.",
"199. As the Court has found on many occasions, it does not follow from the Court ’ s finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the applicant ’ s case that he was wrongly convicted and it is impossible to speculate as to what might have occurred had there been no breach of the Convention (see Dvorski, cited above, § 117, and Ibrahim and Others, cited above, § 315). In the circumstances of the present case, the Court takes the view that a finding of a violation constitutes in itself sufficient just satisfaction and it thus rejects the applicant ’ s claim.",
"200. The Court notes that Article 442 bis of the Code of Criminal Procedure provides for the possibility of reopening the proceedings against a convicted person (see paragraph 78 above). It reiterates in this connection that while this may be regarded as an important aspect of the execution of its judgments, the reopening of proceedings is not the only way to execute a judgment of the Court. The use of this possibility in the present case will be a matter for assessment, if appropriate, by the Court of Cassation, having regard to domestic law and to the particular circumstances of the case (see, mutatis mutandis, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 94 and 99, 11 July 2017). It is for the national authorities and not the Court to settle this question."
] |
214 | Doyle v. Ireland | 23 May 2019 | This case concerned the applicant’s complaint that his right of access to a solicitor was restricted during questioning on suspicion of murder. Although the applicant could consult with his solicitor prior to the first interview and thereafter, police practice at the time meant solicitors were not permitted to be present during police questioning. | The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of the Convention. It noted in particular that very strict scrutiny had to be applied in cases where, as here, there had been no compelling reasons to justify restricting the applicant’s right of access to a lawyer. However, when examining the proceedings as a whole, the Court found that the overall fairness of the trial had not been prejudiced. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1985 and is currently serving a life sentence for murder in Mountjoy Prison, Dublin.",
"6. In the early hours of 9 November 2008, the applicant killed a man in Limerick. It was a case of mistaken identity. The applicant had set out to kill another man at the behest of a well-known criminal figure in the city in the context of a feud between criminal gangs. The applicant mistook the victim, S.G., who had no connection whatsoever to the criminal milieu, for the intended target. S.G., who was 28 years old, was walking home when the applicant shot and wounded him on the street. He then pursued his victim into the back garden of a nearby house where he shot him several times, inflicting five wounds in all, including a fatal head wound.",
"7. On 24 February 2009 investigating police carried out a search of the applicant ’ s residence. They arrested him there at 7.15 a.m. He was brought to a police station shortly before 8.00 a.m. There he was informed of his rights, including a right of access to a solicitor. He requested legal advice from a particular solicitor, whom the police duly notified. At 9.55 a.m. the solicitor telephoned the police station and spoke to the applicant. This first consultation lasted two minutes.",
"8. The first police interview commenced at 10.12 a.m. and lasted fifty minutes. All of the interviews were video recorded, and were conducted without the applicant ’ s solicitor being physically present in the interview room. At no stage did the applicant or his solicitor request the presence of the latter during questioning. It was confirmed during the subsequent proceedings that, in view of police practice at that time, such a request would have been denied.",
"9. Another solicitor, Mr O ’ D., who was acting on behalf of the first solicitor, arrived at the police station at 11.00 a.m. and represented the applicant from that point onwards. The police concluded the first interview at 11.03 a.m. The applicant then had a consultation with the solicitor lasting nine minutes. The second interview commenced at 11.19 a.m. and lasted twenty-three minutes. The third interview started at 12.07 p.m. and lasted one hour and fifty-four minutes. The fourth interview began at 3.00 p.m. and had a duration of one hour and thirty-nine minutes. The fifth interview, beginning at 5.59 p.m., lasted for two hours and seven minutes. The final interview of the day took place between 10 p.m. and 11.42 p.m., a duration of one hour and forty-two minutes. The applicant, who did not request or have any further contact with his solicitor that day, did not make any admissions to police.",
"10. The following day, 25 February 2009, the police continued to question the applicant. Three interviews took place in the morning and afternoon, lasting almost five hours in total. The applicant was brought before the District Court, which extended his detention for a further 72 hours. His solicitor was present at the court hearing. The applicant was brought back to the police station where another interview, the tenth, took place between 10.38 p.m. and 11.25 p.m. During this interview, the police informed him that his former girlfriend, G, who was also the mother of his young daughter, had been arrested in Dublin early the previous morning on suspicion of withholding information. She was being held in detention and interviewed by police about her knowledge of the killing. He was given certain details about her replies to police questions. Once again, the applicant did not request further consultations with his solicitor and did not make any admissions.",
"11. The interviewing of the applicant continued on 26 February 2009. The eleventh interview began at 9.03 a.m. and lasted seventy-two minutes. Questioning recommenced at 12.22 p.m. for one hour and twenty-one minutes. The police impressed on him that G was enduring the hardship of detention as well as separation from her young daughter on account of the applicant ’ s refusal to admit to the crime. They also underlined the fact that the victim had been an entirely innocent man. The thirteenth interview took place between 3.02 p.m. and 4.15 p.m. During it, the applicant asked to consult his solicitor. Questioning stopped while the police made contact with the solicitor. The consultation between the applicant and his solicitor was again by telephone. It lasted approximately two minutes.",
"12. The next interview, the fourteenth, commenced at 5.32 p.m. In the first minutes, the police asked the applicant about text messages sent to Ms G. around the time of the murder. At some point the applicant asked to speak to his solicitor again. The interviewers replied that he had just spoken to the solicitor, to which the applicant said that he had not been able to speak to him properly. It is not clear from the documents in the case-file when this occurred. The interview continued. At around 6.15 p.m. the applicant again asked to speak with the solicitor, saying that he would answer questions afterwards. A moment later the interview was briefly suspended while one of the officers left the room to fetch a glass of water. He returned at 6.20 p.m. and for the remaining 15 minutes the officers questioned him about his background and his sporting interests. Before ending, they informed him that Ms G was alright. The interview concluded at 6.35 p.m.",
"13. As requested by the applicant, the solicitor arrived at the police station at 6.52 p.m. He and the applicant spoke for about ten minutes. According to a memo written by a police officer some hours afterwards, the solicitor then approached the officers conducting the interviews and told them, on an off ‑ the ‑ record basis, that the applicant was prepared to admit to the murder provided that Ms G. was released. The police replied that they wanted the applicant to tell the truth about the killing. The solicitor conferred again with the applicant for ten minutes and then informed the police that there would be no admissions before Ms G. ’ s release. The police replied that a confession taken in such circumstances would not be accepted in court, as it would be regarded as inducement. The solicitor then consulted with the applicant for a further 10 minutes, after which he indicated to the police that the applicant would not admit to anything prior to Ms G. being released and then left the police station.",
"14. The fifteenth interview commenced at 7.42 p.m. The applicant refused to answer the first two questions posed to him, but then stated that he had been present at the scene around the time of the murder. At that moment another police officer entered the interview room and stated that the applicant ’ s solicitor had telephoned the station and wished to speak to him. The interview was immediately suspended to allow the applicant confer with his solicitor. This consultation took about four minutes. When the interview resumed at 7.51 p.m., the applicant admitted to shooting the victim. As the interview continued, he provided a number of other details about the crime: how he had been driven to the scene in a particular car; the clothes he had been wearing and which he had burned later; how many shots he had fired, and where; the fact that he had used his right hand to shoot; the fact that the gun had jammed and that he had cleared it by ejecting bullets. He also sketched a map of the crime scene to indicate where each event had taken place. Beyond this, he refused to answer the questions put to him. The interview ended at 9.05 p.m. At the conclusion of the interview, the applicant made a particular gesture. He removed a set of rosary beads that he wore around his neck as a memento of his dead brother, and asked the police give them to the victim ’ s family.",
"15. The sixteenth interview took place between 10.09 p.m. and 11.29 p.m., a duration of 90 minutes. The police repeatedly asked him to explain why he had killed an innocent man, but the applicant refused to answer.",
"16. By that time, Ms G. was no longer in custody, having been released at 9 p.m. that same day.",
"17. There were five further interviews the next day, 27 February 2009, with a combined duration of seven hours and twenty-seven minutes. The applicant continued to refuse to answer the questions put to him about the identity of the intended victim, about his own association with a well ‑ known criminal figure in the city, and about calls and messages to and from his mobile phone around the date of the murder. In the twentieth interview, held that evening, he indicated on a map how the crime had unfolded, and stated that when he caught up with him in the back garden, the victim had said “please stop” just before the fatal shots were fired.",
"18. Two further interviews were held on 28 February, lasting two hours and three minutes in all. The police showed the applicant various items of evidence retrieved from the scene of the crime, including unfired bullets, bullet casings, bullets removed from the victim ’ s body, and items of the victim ’ s clothing. He made no comment on this or any other question put to him. At 3.15 p.m. police charged the applicant with murder and brought him before the District court.",
"19. The applicant pleaded not guilty. He was tried in the Central Criminal Court.",
"The first and second criminal trials",
"20. The first trial, in 2011, was inconclusive, the jury failing to reach a verdict.",
"21. The second trial commenced on 16 January 2012 and lasted 22 days. At the outset, the applicant sought to exclude the admissions he had made to the police. In accordance with domestic law, his challenge was considered by the trial judge in the absence of the jury. This process, a voir dire (a trial within a trial to determine the admissibility of evidence) took ten days. The trial judge viewed more than twenty hours of the video records of the interviews. During that process, the recording of the interview was played on screen and then the interviewing officers gave evidence concerning the videos and were cross-examined by the legal representatives for the prosecution and defence. At the end, counsel for both sides made submissions to the judge in regard to the questions of inducement of threat, oppression and fairness.",
"22. On the eleventh day of the trial the judge ruled as follows:",
"“The defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody .... The defence contend that these admissions are inadmissible and rely on three grounds.",
"1) That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression.",
"2) That the admissions were made as a result of breaches of the accused ’ s constitutional right of access to legal advice.",
"3) The admissions were made as a result of breaches of the requirement of fundamental fairness.",
"...",
"The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so.",
"...",
"With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in [the police station] prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the [police] were entitled to continue interviewing Barry Doyle in interview 14 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor ’ s arrival at the [police] station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle ’ s constitutional right to legal advice.",
"In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the [police] when he chose to do so and refused to answer questions when he did not wish to do so. ...",
"With regard to the questioning by [the police officers], the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the [police] investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with [the police] in a limited way, essentially as a result of [their] appeal to Barry Doyle ’ s humanity. This engagement was built on ... and ultimately the accused told the [police] about his involvement in the death of [S.G.].",
"The Court holds that the interviews conducted by [police] were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so.",
"With regard to the question as to whether some of the promptings by the [police] to Barry Doyle to the effect that he should tell the truth and not keep [G] away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of [G], could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with [G], as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded ... that being in custody on suspicion of the murder of [S.G.] was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth.",
"Notwithstanding the context in which they occurred, ... even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor ’ s interaction with [the police]. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do.",
"The Court holds that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.",
"Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind [the relevant Supreme Court case-law].",
"The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence.”",
"23. Following the conclusion of the voir dire proceedings, the trial resumed. The jury was shown excerpts from the video recordings and received transcripts of the interviews. There was other evidence before the court. This included ballistic evidence, evidence about the car the applicant had travelled in, and evidence given by G. There was evidence from another witness, C, who said she had been present when the killing had been ordered, and, the day after the murder, had heard the applicant confirm that he had carried it out.",
"24. Following the final submissions of the prosecution and defence, the judge summarised the case and gave instructions to the jury in the Judge ’ s Charge. He instructed the jury to be careful when considering the evidence and underlined their obligation to examine neutrally the question of whether the applicant had been induced to confess to the crime, with a detailed explanation of what that meant in the circumstances. The judge also warned the jury that it may be dangerous to convict a person on confession evidence alone without corroboration. The judge went on to explain in detail why that was the case, and what corroboration evidence meant in the circumstances.",
"25. On 15 February 2012 the applicant was unanimously convicted by a jury of the murder of S.G. He received the mandatory sentence of life imprisonment.",
"The Court of Appeal",
"26. The applicant appealed against his conviction, raising 27 grounds. The Court of Appeal dismissed the appeal on 8 June 2015. Insofar as relevant, the Court of Appeal decided as follows.",
"27. It first dealt with the submission that the police had resorted to inducement or threat to elicit his confession to the murder. It agreed with the position taken by the trial judge that the fact that the applicant had consulted with his lawyer immediately before admitting the crime in the fifteenth interview represented a significant interruption in the process of police questioning. Of even greater significance was the fact that the police rejected the proposal of the applicant to confess in return for the release of G, which the solicitor conveyed to the applicant. With no room for ambiguity or misunderstanding in this respect, the response of the police was sufficient to refute the argument about inducement or threat. Nor did the Court of Appeal accept that, during the course of the interviews, the police resorted to implied inducement or threat. It considered that, as found by the trial judge, the transcripts showed the police trying to appeal to his better nature and to his essential humanity. This interpretation of the evidence was borne out by the applicant ’ s gesture of remorse following the fifteenth interview (see paragraph 14 above ). It was also supported by the fact that the applicant had retained a degree of precision and control over the admissions he was prepared to make. He provided certain precise details to the police about his own actions but gave nothing away about the other persons implicated in the murder. The fact that he did not ask about G ’ s release after admitting the murder further suggested that there was no element of inducement. It concluded on this point:",
"“48. The Court holds that the learned trial judge was entitled to find on the evidence that the prosecution had established that the admissions made by the appellant were not brought about by any inducement or threat. The Court is also satisfied that the judge ’ s interpretation of the interviews was correct. It concludes that the proposal by the appellant ’ s solicitor not only dissipated any possible belief in an offer by the [police] but also constituted an approach that actually negated belief in an inducement ...”",
"28. The Court of Appeal then considered the argument that the applicant had not been granted sufficient access to legal advice and, as a result, had been subjected to oppression during questioning. The applicant further complained of irretrievable prejudice caused by the continuation of the fourteenth interview despite his request to consult his solicitor, which was not cured but actually compounded by the subsequent consultation. The judgment states:",
"“69. The appellant had access to his solicitor for as much time and on as many occasions as he or his lawyer requested, in which circumstances it is hard to see how he can say that there was oppression because of the inadequate legal advice availability. The solicitor ... did not ask to be present for the interviewing by the [police]. No doubt, had he asked for that facility, it would have been refused but that simply did not happen and it was not the understanding at the time that a lawyer was entitled to be present. That, however, does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made.",
"...",
"72. It was submitted by the appellant that if a solicitor had been present throughout the interviewing of Barry Doyle, the interviews would have proceeded differently. But it is by no means clear that that would have been of any great assistance to him; the questions would still have been asked and he could well have been in the same situation of deciding that he was going to confess to the extent, limited in degree as it was, that he actually did in interview 15 and followed up in later interviews.”",
"29. The Court of Appeal again referred to the fact that all interviews had been recorded, so that the trial judge was able to see precisely what had happened during them. The police had respected the custody regulations, and while they had repeatedly questioned him they had permitted him breaks and access to a solicitor. There was no sign of oppression or unfairness.",
"30. The Court of Appeal also reviewed in detail the content of the Judge ’ s Charge to the jury, following a challenge that it had been inadequate and incorrect, and it rejected that complaint. It considered that most of the challenges to the judge ’ s charge concerning the applicant ’ s admissions amounted to a complaint that the judge ’ s charge had not adopted the applicant ’ s arguments. The Court of Appeal rejected this recalling that “118. It would not have been correct for the judge to tell the jury what the appellant wanted him to say” and “ 121 ... it is not the function of the trial judge to make another speech either for defence or prosecution ...”. The Court of Appeal also noted that the applicant criticised the Judge ’ s Charge on the question of the dissipation of inducement or threat, and recalled that the judge had consulted with the lawyers of both parties in advance on the presentation of that issue and both had indicated their agreement. Overall, the Court of Appeal concluded:",
"“159. The appellant ’ s advisors legitimately advanced every ground of objection in defending their client. All of their extensive submissions were fully ventilated and carefully considered by the trial judge. The many issues were re-visited in a hearing in this Court that occupied two full days of oral argument and which were also explored in comprehensive submissions that were of great assistance to the Court.",
"160. The Court is satisfied that none of the grounds of appeal can succeed. The trial was satisfactory and the conviction of Mr Doyle was safe.”",
"The Supreme Court",
"31. On 8 June 2015 the Supreme Court granted leave to appeal, identifying three issues for examination, one of which is of central relevance to the present application:",
"“Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15 th interview with the [police], during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the [police].",
"Whether the matters set out in the applicant ’ s application, under the heading ‘ relevant facts considered not to be in dispute ’, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had ‘ dissipated ’, or ‘ worn off ’, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had ‘ dissipated ’, or ‘ worn off ’, by the time of the alleged admissions.”",
"32. On 18 January 2017 the Supreme Court dismissed the appeal, by a majority of six to one. Six members of the court gave judgment.",
"33. In the first judgment, the Chief Justice limited her remarks to the first issue above. She recalled that reasonable access to a solicitor was a constitutional right for persons in detention. As a matter of constitutional law, the concept of basic fairness of process applied from the time of arrest, as the Supreme Court had recently affirmed in a judgment that took into account the relevant Convention jurisprudence – DPP v. Gormley and DPP v. White, [2014] IESC 17 (“Gormley”). Since the question of the presence of a solicitor during questioning did not arise on the facts in Gormley, any statements in the judgment on this matter were obiter. She continued:",
"“15. ... [I]t is clear that the appellant requested access to a solicitor and obtained access to a solicitor. He had access to legal advice. He had access to the solicitor before the important Interview 15, and he had access, at the solicitor ’ s request, during that interview, when the solicitor phoned in and sought to speak to the appellant as Interview 15 was underway. The interview was interrupted to enable the appellant to speak to his solicitor. There was no request to have the legal adviser present during the interview.",
"16. I am satisfied that the constitutional right of access to legal advice was met by the attendance of the appellant with his solicitor prior to Interview 15, and indeed by the telephone call from his solicitor which interrupted Interview 15.",
"17. The constitutional right is a right of access to a lawyer. The right is one of access to a lawyer, not of the presence of a lawyer during an interview.” [emphasis in the original]",
"34. She considered that the requirements of the Convention had also been met. Regarding the second issue in the appeal she concurred with Charleton J (see below).",
"35. The second judgment was given by O ’ Donnell J, who also confined his analysis to the first issue. He too regarded statements in Gormley about a more general right to the presence of a solicitor during detention as obiter. Referring to relevant Convention case-law he observed:",
"“8. Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.”",
"36. In his view, the legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle therefore rested almost entirely on the reasoning of the Miranda decision of the US Supreme Court. However, that authority had not been followed in Irish jurisprudence in the fifty years since it was decided. In the present case, the voluntary nature of the confession was not in doubt, and the admission of the applicant ’ s statement had not been held to be unfair. Were a bright-line rule to be adopted, it would have the potential to exclude key evidence in the shape of statements given voluntarily without the benefit of legal advice in circumstances otherwise beyond criticism. He stated:",
"“14 ... I would for my part stop short at this point of finding that in addition to the videotaping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.”",
"37. He concluded:",
"“84. The appellant ’ s conviction was based upon a confession of his guilt, supported by significant independent evidence. This included a description by the appellant of what happened at the scene of the crime examination of matters unknown to the garda, and ballistic evidence. The conviction was supported by independent testimony from Ms. [G.], to whom he (the appellant) made inculpatory remarks outside the confines of a garda station. It was corroborated by evidence from Ms [A.], who was present both when the order was given to the appellant to commit the murder, and the following day when the appellant was challenged as to whether or not he had shot the right man, and when he asserted, incorrectly, that he had. The voluntary nature of the confession was proved to the satisfaction of the trial judge based upon a detailed review of all the evidence, including 20 hours of interview process. There is no basis, under the law, upon which it can be contended that the evidence was inadmissible, or that the trial herein was an unfair one. ...”",
"38. MacMenamin J gave the third judgment. He recalled that at the time of the applicant ’ s arrest and trial, the relevant precedent of the Supreme Court, Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390, did not accept that a suspect was generally entitled to the presence of a solicitor during police questioning.",
"39. He rejected the argument that the applicant ’ s will had been sapped, notably during the fourteenth interview. While the police had continued to question him even after he had requested another consultation with his solicitor, nothing had been elicited in that interview that had carried through to the next interview. There was no basis to consider that the applicant ’ s position, at that point in time or subsequently, had been irretrievably prejudiced.",
"40. As to the argument that, in light of the Supreme Court ’ s decision in Gormley and also Convention and US case-law, there was now a right to have a solicitor present during police questioning, MacMenamin J held that it could not succeed in the instant case. He stated:",
"“46. ... [W]hat I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed [S.G.]. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.” [emphasis in the original]",
"41. The judge continued that he would be prepared, in light of recent developments in law and procedures, to recognise in future cases a right under the Constitution to have a solicitor present during police questioning. He then referred to a number of relevant ECtHR judgments, in particular the case of Salduz v. Turkey [GC], no. 36391/02, ECHR 2008. He considered that the facts of the present case were very different, and that the two must be distinguished. He added that, for the purposes of Article 6 of the Convention, the relevant issue was always whether criminal proceedings as a whole had been fair.",
"42. Charleton J, with whom Laffoy J concurred, dealt first with the inducement issue. He reviewed in detail the applicant ’ s evidence and the circumstances in which it was taken by police. He considered that in the thirteenth interview the references to G ’ s situation constituted a clear inducement to confess. However, the fact that he was granted access to independent legal advice from his chosen solicitor was important. He then referred to several factors – including the evidence of remorse, the fact that the applicant limited his admissions to his own role, the fact that he did not retract his statement, and the gesture involving the beads – which constituted material on which the decision of the trial judge could reasonably be made. The decision could not be disturbed.",
"43. On the issue of access to a solicitor, Charleton J noted that the Court of Appeal had followed the existing Supreme Court case-law to the effect that there was no constitutional right to have a solicitor present during questioning. The Gormley case had not established such a right, since this point had not arisen on the facts of that case. While the fundamental requirement of basic fairness applied from the time of arrest, it did not necessarily follow that all of the safeguards of a fair trial, especially legal representation, must also be applied in full from the outset.",
"44. O ’ Malley J agreed that the appeal should be dismissed. However, she took a different approach to MacMenamin and Charleton JJ in relation to the implications of the right of access to legal advice. She agreed with the conclusion of MacMenamin J that there was no causative link between the applicant ’ s admissions and the absence of the solicitor during questioning, and that this was sufficient to dispose of the issue in the present case. However, she considered that the issue might properly arise for consideration in another case. She saw some strength in the argument that this should now be regarded as a right flowing from the constitutional right to a fair trial. The State had in effect anticipated this by modifying police practice in this respect. She noted that the issue might arise in the context of statutory provisions that permit the drawing of inferences from a failure to answer questions. As this was not an appropriate case to reach a definitive view, she reserved her position on the question. She stated:",
"“71 ... I consider that the question of the existence of such a right does not truly arise on the admittedly unusual facts of this case.",
"72. Largely, this is because of the unusually central role, discussed above, taken by [the solicitor] in the events immediately preceding the admissions. Prior to that, it is true that the appellant did not see his solicitor for any great length of time. However, it is also clear that he was aware of his right to see him; that he saw him when he wanted to, for as long as he wanted; and that he was under no pressure to relinquish or curtail his right of access. It is also clear that while he answered some questions in some interviews he did not incriminate himself prior to Interview No.15.",
"73. I do not accept the contention that the statement by the appellant (in Interview No. 14) that he would answer questions when he saw his solicitor demonstrates that he was ‘ irretrievably prejudiced ’ by the [police] decision to continue asking questions despite the request for the solicitor. I cannot see that it should be interpreted as a decision to incriminate himself - he committed himself to nothing, and certainly not to admitting guilt. There is no evidence that his will was overborne to any extent, still less to the extent that a consultation could not assist him.",
"74. The actual admissions came about in the circumstances discussed above. The role of the solicitor was, in fact, far more central than would be envisaged where a lawyer is present in the interview room - the [police] and the appellant were actually communicating through him, rather than directly with each other. He had complete privacy to advise his client while carrying on the discussion with the [police] and also a greater degree of control than would be normal over what was said on behalf of the client and how it was presented. For the reasons already discussed, therefore I consider that not only was the trial judge entitled to conclude that the admissions were the result of a fully voluntary decision by the appellant, but that there is nothing to indicate that the exercise of the right now contended for would have altered the situation in any material respect.”",
"45. McKechnie J dissented. On the issue of the presence of the solicitor during questioning, he first rejected the applicant ’ s argument that the amount of contact he had had with his solicitor during the period of detention did not amount to reasonable access. The real question at issue was if, where reasonable access to legal advice has been afforded, a solicitor ’ s attendance at the interview process was as of right or by concession. He referred to the recent change of police practice in this respect and observed:",
"“136. [A]lthough this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.”",
"46. Turning to Convention case-law, he analysed the Salduz judgment and considered that it did not directly support the applicant ’ s argument. He considered, however, that this Court ’ s interpretation of Article 6 had evolved since then, citing the following cases: Dayanan v. Turkey, no. 7377/03, 13 October 2009; Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; A.T. v. Luxembourg, no. 30460/13, 9 April 2015; Simons v. Belgium (dec.), no. 71407/10, 28 August 2012; and Brusco v. France, no. 1466/07, 14 October 2010. In drawing out the main points of this case-law he stated:",
"“150. ... [I]t seems clear that the judgments have made express reference to a suspect ’ s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle ’ s situation ... in which the Court has definitively declared the existence of such right.”",
"47. He next referred to Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1–12). Under the Directive, the right of suspects or accused persons for their lawyer to be present and to participate effectively in during questioning is provided for. Although the Directive did not apply to Ireland, it “illuminate[d] the directional focus” of other EU Member States, and “offer[ed] further evidence of a prevailing trend amongst fellow members of the Union”. Moreover, the Directive had been referred to by in A.T. v. Luxembourg (cited above). In addition, he took note of the position of the Committee for the Prevention of Torture, which considered that the right of access to a lawyer should include the right to legal assistance during questioning (CPT/Inf (2011) 28, at § 24). He then summarised the position in the different jurisdictions of the United Kingdom, noting that in each of them provision was made for solicitors to be present during questioning. In view of all of this material, he saw a “significant shift in the acknowledgment of this right across other diverse legal regimes”:",
"“167. ... I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments [referred to above] and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. ...”",
"48. He then set out a series of considerations in support of according constitutional status to the right to the presence of a solicitor during questioning: the substantial length of detention permitted by law, allowing for multiple interviews throughout the day over a number of days; the daunting and frightening effect that detention may have on many people; even where the accused is a hardened criminal, the importance of preserving their rights too; the increasing complexity of the criminal law; the limits of judicial control, which prohibits rather than prevents abuse. He did not consider that existing safeguards were sufficient to overcome the inequality in the interview room. While the recording of interviews permitted judicial scrutiny of the actions of the police, he was",
"“not convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.”",
"RELEVANT DOMESTIC LAW AND PRACTICEConstitution of Ireland (Bunreacht na hÉireann)",
"Constitution of Ireland (Bunreacht na hÉireann)",
"Constitution of Ireland (Bunreacht na hÉireann)",
"49. Article 38.1 of the Constitution enshrines the principle of fairness in the criminal process: “No person shall be tried on any criminal charge save in due course of law”.",
"Case-law",
"50. The right of access to a solicitor, when requested by or on behalf of a person in detention, was recognised as being a constitutional right by Finlay C.J. in The People (DPP) v. Healy [1990] 2 I.R. 73, where he stated:",
"“The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators. Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in it origin, and to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give.”",
"51. In the case The People (DPP) v Pringle (1981) 2 Frewen 57, it was held by O ’ Higgins CJ that, in the absence of an express guarantee against self ‑ incrimination in the Irish Constitution, it was not possible to infer a right to have a solicitor present during questioning.",
"52. In the case Lavery v. Member in Charge, Carrickmacross Garda Station (cited above, see paragraph 38), O ’ Flaherty J affirmed that position:",
"“Counsel for the State submitted to the High Court Judge that in effect what [the solicitor] was seeking was that the [police] should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.”",
"53. The core issue in DPP v. Gormley and DPP v. White (cited above, see paragraph 33) which was repeatedly referred to by the Supreme Court in the present case was, according to Clarke J:",
"“8.1. ... whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of [the Irish Constitution], encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested .... If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as ... the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning.... By no means do all of those issues arise on the facts of these cases. ” [ Emphasis added ]",
"54. On the main question raised in the Gormley case Clarke J stated:",
"“8.7. The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a ‘ trial in due course of law ’. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.",
"8.8. I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.”",
"55. Later in his judgment he observed:",
"“9.10 ... [T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.”",
"56. In a concurring judgment, Hardiman J stated:",
"“For many years now judicial and legal authorities have pointed to the likelihood that our system ’ s option for the very widespread questioning of suspects who are held in custody for that purpose, was very likely to attract a right on the part of such suspects, not merely to be advised by lawyers before interrogation, but to have lawyers present at the interrogation, and enabled to intervene where appropriate. This has now come to pass in countries with similar judicial systems... and also under the European Convention on Human Rights ( ‘ ECHR ’ )...",
"It is notable, however, that Mr. Gormley has not asserted that right to its full extent but has asserted only a right to have a lawyer to advise him, in custody, before the questioning starts. Manifestly, however, it will not be long before some person or other asserts a right to legal advice in custody on a broader basis. I say this in explicit terms in order that this may be considered by those whose duty it is to take account of potential developments.”",
"Practice",
"57. Following the Gormley case, and acting on the advice of the Director of Public Prosecutions, the Irish police force changed its practice so as to permit a solicitor to be present during the questioning of a suspect. In April 2015 it published a code of practice on the subject, setting out in detail the manner in which police officers should give effect to a suspect ’ s entitlement to the presence of a solicitor.",
"58. In December 2015, the Law Society of Ireland published a document entitled “Guidance for Solicitors Providing Legal Services in Garda Stations”. The document sets out advice for solicitors, in light of the relevant law and the police code of practice.",
"EUROPEAN UNION MATERIALThe right of access to a lawyer",
"The right of access to a lawyer",
"The right of access to a lawyer",
"59. Article 3(1) – (3) of Directive 2013/48, entitled “The right of access to a lawyer in criminal proceedings” reads as follows:",
"“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.",
"2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:",
"(a) before they are questioned by the police or by another law enforcement or judicial authority;",
"(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;",
"(c) without undue delay after deprivation of liberty;",
"(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.",
"3. The right of access to a lawyer shall entail the following:",
"(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;",
"(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;",
"(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence ‑ gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:",
"(i) identity parades;",
"(ii) confrontations;",
"(iii) reconstructions of the scene of a crime.”",
"60. For a detailed summary of the recitals and other relevant provisions of the directive see Beuze v. Belgium [GC], no. 71409/10, § § 82-85, 9 November 2018).",
"61. Directive 2013/48, which had to be transposed by 12 November 2016, applies to all EU Member States except for Denmark, Ireland and the United Kingdom."
] | [
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION",
"62. The applicant complained that, following his arrest, he was not entitled to have a solicitor present during his police interrogation, representing a failure by the respondent State to vindicate his right to a fair trial. The Court will examine this complaint pursuant to Article 6 §§ 1 and 3 c) of the Convention. Those provisions read as follows:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"...”",
"63. The Government contested that argument.",
"Admissibility",
"64. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"65. The applicant argued that at the time of the facts, police practice was not to admit solicitors to attend with an accused person during police interviews. To vindicate his Constitutional right to a trial in due process of law and his right to a fair trial under Article 6 of the Convention, the State ought to have ensured that he was entitled to have a solicitor present during his interrogation. The applicant submitted that he was vulnerable as he was inexperienced in the interrogation process. The absence of his solicitor from the interrogations meant that the police were able to pressure him to give his confession which was ultimately relied upon at trial. The applicant recognised that he had been cautioned and advised of his right to remain silent at the beginning of each interview. He argued, however, that the interviewers sought to undermine his caution in a manner calculated to instil fear and anxiety and erode his will not to self-incriminate. In view of the above, he was deprived of a fair trial.",
"66. The Government submitted that the applicant ’ s rights under Article 6 § 3 (c) of the Convention had not been affected by the fact his lawyer was not present as he was provided with access to a lawyer from his first interrogation by police, as set out in Salduz v. Turkey ([GC], no. 36391/02, § 55, ECHR 2008). Concerning inducement, they emphasised that under Irish law, a strict exclusionary rule applies to any statement made involuntarily by an accused (see the People (DPP) v. McCann, [1998] 4 IR 397). As regards the protection against self-incrimination, the Government contested the applicant ’ s version of events. Pointing to the finding of the trial court, which had viewed the video recordings of the interviews, it emphasised that the latter had found that the applicant was in full control of himself throughout the interviews and that he had made the admissions he did because he chose to do so. That was, furthermore, the position articulated by the applicant in his 20 th interview. The Government concluded that even assuming that the applicant ’ s right of access to a lawyer had been restricted, with reference to the factors set out in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, § 574, 13 September 2016) the overall fairness of his trial was not irretrievably prejudiced.",
"The Court ’ s assessment",
"(a) General principles",
"67. The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz cited above, § 51).",
"68. Since its judgment in Salduz, the Grand Chamber has, on a number of occasions, confirmed, clarified and consolidated what that right entails (see Beuze, cited above, § § 119-150; Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-120, 12 May 2017 and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 249-274, 13 September 2016 ).",
"69. In its recent judgment in Beuze, the Grand Chamber underlined that since Salduz, cited above, its case-law concerning the rights guaranteed under Article 6 § 3 had evolved gradually and that the case of Beuze, cited above, afforded it an opportunity to restate the reasons why this right constitutes one of the fundamental aspects of the right to a fair trial, to provide explanations as to the type of legal assistance required before the first police interview or the first examination by a judge, and to clarify whether the lawyer ’ s physical presence is required in the course of any questioning or other investigative acts carried out during the period of police custody and that of the pre-trial investigation (as conducted, in that case, by an investigating judge) (see Beuze, cited above, § 117).",
"70. It also reiterated that what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case. The Court ’ s primary concern, in examining a complaint under Article 6 § 1, is to evaluate the overall fairness of the criminal proceedings (see Beuze, cited above, § 120 with further references).",
"71. Compliance with the requirements of a fair trial must thus be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see Beuze, cited above, § 121, with further references).",
"72. According to the Court, those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Beuze, cited above, § 122, and Ibrahim and Others, cited above, §§ 251 and 262 with further references).",
"73. Concerning the content of the right of access to a lawyer, Article 6 § 3 (c) does not specify the manner of exercising the right of access to a lawyer or its content. While it leaves to the States the choice of the means of ensuring that it is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the Convention, namely to guarantee rights that are practical and effective (see Beuze, cited above, § 131).",
"74. First, suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview, or even where there is no interview (see Beuze, cited above, §§ 124 and 133 and Simeonovi, cited above, §§ 111, 114 and 121). The lawyer must be able to confer with his or her client in private and receive confidential instructions. Second, suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre ‑ trial proceedings. Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract, and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (see Beuze, cited above, § § 132-134 and Soytemiz v. Turkey, no. 57837/09, §§ 43-46, 27 November 2018). Third, one of the lawyer ’ s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself and for his right to remain silent (see Salduz, cited above, § 54, Beuze, cited above, § 128, with further references, and Soytemiz v. Turkey, no. 57837/09, §§ 43-46, 27 November 2018).",
"75. The applicable test under Article 6 §§ 1 and 3 c) of the Convention consists of two stages – first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer and then examining the overall fairness of proceedings ( Beuze, cited above, §§ 138 and 141 and Ibrahim and Others, cited above, §§ 257 and 258-62)",
"76. In Beuze, the Court confirmed that the finding of compelling reasons cannot stem from the mere existence of legislation precluding the presence of a lawyer. It also held that, whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole, the Court having already rejected the argument of applicants according to which it had laid down an absolute rule in Salduz to the effect that the statutory and systematic origin of a restriction on the right of access to a lawyer sufficed, in the absence of compelling reasons, for the requirements of Article 6 to have been breached ( Beuze, cited above, §§ 142 and 144; Ibrahim and Others, cited above, §§ 258 and 262).",
"77. However, as the Court indicated, where there are no compelling reasons justifying such a restriction, it will apply very strict scrutiny to its fairness assessment ( Beuze, cited above, § 145).",
"78. A non-exhaustive list of factors, drawn from the case-law, has been developed which the Court will take into account, where appropriate, when examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of criminal proceedings (see, for further details, Beuze, cited above, § 150; Simeonovi, cited above, § 120, and Ibrahim and Others, cited above, § 274).",
"(b) Application of the general principles to the present case",
"79. By way of introduction, the Court notes that the police interviews in the present case took place just after the delivery of the Court ’ s judgment in Salduz, cited above, but before those cases in which the question of the physical presence of lawyers at police interviews was directly addressed (see the case law referred to in Beuze, cited above, § 134). The Court has indicated that it is aware of the difficulties that the passage of time and the development of its case-law may entail for national courts. However, as regards Article 6 §§ 1 and 3 (c), it has pointed out that the development has been linear since the Salduz judgment (ibid. § 152).",
"80. This latter point was highlighted by the dissenting member of the Supreme Court in his analysis of the right of access to a lawyer (see paragraph 46 above) and indeed to an extent by other members of the Supreme Court who regarded a requirement of physical presence as being part of the possible or probable direction of travel in the case-law (see paragraphs 41 above). As the Court confirmed in Beuze, that requirement clearly flows from Article 6 §§ 1 and 3 c) of the Convention.",
"(i) Existence and extent of the restrictions",
"81. In the present case it is important to stress that the applicant had, pursuant to domestic law and practice at the time, the right to consult a solicitor following his arrest and the right to consult with his solicitor, at his request, or that of the solicitor, throughout the pre-trial stage. He was entitled to and was granted access to a lawyer after his arrest and prior to being interviewed by the police on 24 February 2009 (see paragraph 8 above). After that first interview he was able to request access to his lawyer at any time, meet with his solicitor in person and continue to consult him by telephone if the solicitor was not or could not be in attendance at the police station. He met with his solicitor again in person when he was brought before the District Court to have his detention extended, and then had a longer consultation with him in person the next day (see paragraphs 9, 10 and 13 above). He also consulted with his lawyer by telephone on the third and fourth days he was interviewed (see paragraphs 11-17 above). Crucially, the applicant consulted with his solicitor in person between the fourteenth and fifteenth interviews and the latter was interrupted, following a call from his solicitor, for further consultation. Overall, he received 42 minutes of legal advice both by telephone and in person, having been interviewed for approximately 31 hours.",
"82. However, the fact that the applicant ’ s lawyer could not be present during his police interviews amounted to a restriction of his right of access to his lawyer. His solicitor was not permitted in the police interview as a result of the relevant police practice applied at the time.",
"83. There is no doubt that the applicant was subject to police interviews, over a period of days, for a considerable number of hours. However, the clear restriction of his right of access to a lawyer due to the absence of the physical presence of the solicitor during the police interviews must be placed in context when assessing the extent of the restriction. Unlike the applicant in Beuze, cited above, he had access to his solicitor before the crucial first police interview; he could request and was granted access to his lawyer at any time thereafter, bar a delay following the request during the 14 th interview; all the interviews were video recorded, recordings which were later examined by the trial judge; his consultations preceded the interviews and even took place during them, particularly during the crucial 15 th interview. A detailed register of police interviews and legal consultations was maintained. In conclusion, although there is no doubt that the applicant ’ s right was restricted, the extent of that restriction was relative.",
"(ii) Whether there were compelling reasons",
"84. The Court considers that as the restriction on his right under Article 6 § 3 (a) resulted from police practice at the time, there was no individual assessment of the applicant ’ s circumstances. The restriction was of a general nature. In the circumstances, there is nothing to suggest that the restriction was justified by compelling reasons, within the meaning of the Court ’ s case-law (see Ibrahim and Others, cited above, § 258).",
"(iii) The fairness of the proceedings as a whole",
" Whether the applicant was vulnerable",
"85. The applicant has argued that he was vulnerable as he was unaccustomed to police interviews (see paragraph 65 above). The Court accepts that a police interview is inevitably a stressful event from a suspect ’ s perspective. However, the applicant was an adult and a native English speaker (see a contrario Knox v. Italy, no. 76577/13, § 160, 24 January 2019 (not yet final)). The interviews conducted whilst he was in police custody were not unusual and, while conducted over several days, they were not excessively long. The applicant was permitted extensive breaks from police questioning with, as indicated previously, access to his lawyer by phone or, at times, in person, when requested. The trial judge also examined this question and found that the applicant was physically and mentally strong throughout the interviews. He chose when and when not to engage with the police. In these circumstances, the Court considers that the applicant was not particularly vulnerable.",
" The circumstances in which the evidence was obtained",
"86. There is no suggestion that the applicant had been subject to ill ‑ treatment by the police during the interview process. The applicant argued that the police had exerted pressure on him by threatening him or inducing him to confess (see paragraph 65 above). In particular, he submitted that the fact that the police informed him about the detention of his partner Ms G., and his subsequent concern for their daughter whom he believed to be in need of medical treatment and without her parents, amounted to psychological intimidation and a threat or inducement on him to admit to the crime with which he was charged.",
"87. This element was considered extensively by all three judicial instances in accordance with the strict scrutiny required under domestic law. None of them found that the police had resorted to inducement or threat as a matter of domestic law (see paragraphs 22, 27, and 36 - 39 above). The Court cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness, which there is not in the instant case (see Naït-Liman v. Switzerland [GC], no. 51357/07, § 116, 15 March 2018 and Zubac v. Croatia [GC], no. 40160/12, § 79, 5 April 2018). On the contrary, the domestic courts examined very carefully the question of whether there had been threat or inducement, the trial judge reviewed the video recordings of the relevant interviews in their entirety and all three instances gave extensive reasons for their conclusions.",
"88. Insofar as the question whether there had been a threat or inducement is relevant to the Court ’ s overall assessment of fairness, it finds convincing the reasoning of the trial judge that even if the actions of the police could have been considered a threat or inducement, they did not have any link with the applicant ’ s admission because of the passage of time and the fact that the applicant had an opportunity to consult with his solicitor both in person and by telephone immediately prior to making the admission (see paragraphs 14, 15 and 22 above).",
" The legal framework governing pre-trial proceedings and the admissibility of evidence at trial, and whether the applicant was able to challenge the evidence and oppose its use",
"89. The applicant was able to and did challenge the use of the statements he made during some of the police interviews on the basis that it had been obtained in breach of what he argued was his Constitutional and Conventional right to have a legal representative present during questioning. The trial court held a ten day voir dire procedure, or trial within a trial, where it reviewed the video recordings of the police interviews and heard from the police officers concerned, who were cross questioned by counsel for the defence and prosecution, in order to establish whether the evidence from the applicant ’ s police interviews was admissible (see paragraph 21 above). At the end of those proceedings the trial judge gave a lengthy, reasoned decision as to why he had decided to admit the evidence (see paragraph 22 above). As such, the trial judge conducted a precise examination of the circumstances in which the applicant had been questioned by – and had given statements to – the police (see Ibrahim and Others, cited above, §§ 69-84 and 282, and contrast Beuze, cited above, § 174).",
"90. Moreover, the applicant had the opportunity to argue again before the Court of Appeal and the Supreme Court that the evidence should not have been admitted. Both courts considered the matter at great length and in detail, paying attention to the case-law of this Court.",
"91. All three courts found that in light of the manner in which the evidence had been obtained and the fact that the applicant had had contact with his solicitor by telephone and in person during the interview process, admitting the evidence was not problematic. In doing so, they applied a domestic legal framework which allowed the applicant to challenge the admissibility of the evidence and to oppose its use, in light of the Convention case ‑ law, at every stage of the proceedings.",
" The nature of the statements and the prosecution ’ s case",
"92. The admissions made by the applicant during the fifteenth police interview were incriminating, as they amounted to an admission that he had committed the crime. Those admissions and certain details provided by the applicant therefore formed a central part of the evidence against him. Given that very strict scrutiny is called for where there are no compelling reasons to justify the restriction of an accused ’ s right of access to a lawyer, the Court finds that significant weight must be attached to the above factors in its assessment of the overall fairness of the proceedings.",
"93. However, two crucial points are of relevance in that assessment. Firstly, the evidence against the applicant was not restricted to the details of the crime he provided or to his admissions. At trial, that evidence formed part of a substantial prosecution case against the applicant, including ballistic evidence, evidence about the car the applicant had travelled in on the night of the murder, the evidence which had been provided by Ms. G. to whom the applicant had made inculpatory remarks prior to his arrest and further evidence by a witness, C., to the effect that she had been present when the killing had been ordered and who, the day after the murder, had heard the applicant confirm that he had carried it out (see paragraph 23 above). The Supreme Court ’ s examination of this aspect of the applicant ’ s trial was also very thorough and by a majority of six to one it concluded that the applicant ’ s conviction was based on a voluntary confession of his guilt, supported by significant independent evidence (see, for example, paragraph 38 above). Secondly, it cannot be said that the applicant ’ s statements were made without him having had access to legal assistance. As indicated previously, he consulted with his lawyer prior to his police interviews and during the days when he was being interviewed. After the fourteenth interview he consulted with his lawyer in person and during the fifteenth interview, just before making his first admission, questioning was interrupted in order to facilitate further consultation. Thus, while one aspect of his right had undoubtedly been restricted, he had been provided with legal assistance from the outset.",
" The use of evidence and, in a case where guilt is assessed by lay jurors, the content of any jury directions or guidance",
"94. The applicant was convicted by a lay jury at trial. Videos of the applicant ’ s police interviews were shown to the jury as evidence but only after the question of their admissibility had been determined by the trial judge after the ten day voir dire proceedings (see paragraph 23 above). The nature of the voir dire proceedings and the judge ’ s conclusion on those proceedings was also brought to the attention of the jury. As such, the jury was informed about the contested status of the interviews, and the judge ’ s reasons as to why those interviews could be admitted as evidence.",
"95. At the end of the trial the judge summed up the proceedings for the jury in the Judge ’ s Charge (see paragraph 24 above). Having decided that the evidence of the police interviews could be admitted following the voir dire proceedings he did not address the question of its admissibility separately during the Judge ’ s Charge. The directions of the trial judge were of particular importance given that their purpose was to enable the jurors to assess the consequences, for the overall fairness of the trial, of any procedural defects that may have arisen at the investigation stage. The trial judge instructed the jury to be careful when considering the evidence and underlined their obligation to examine neutrally the question of whether the applicant had been induced to confess to the crime, with a detailed explanation of what that meant in the circumstances. The judge also warned the jury that it may be dangerous to convict a person on confession evidence alone without corroboration. The judge went on to explain in detail why that was the case, and what corroboration evidence meant in the circumstances. The applicant also had an opportunity to challenge the content of the Judge ’ s Charge before the Court of Appeal which that court rejected (see paragraph 30 above).",
" Weight of the public interest",
"96. The Court finds that sound public-interest considerations justified prosecuting the applicant, who was charged with murder. Furthermore, it is not disputed that the criminal trial in the present case followed the killing of an innocent victim as a result of mistaken identity following the ordering of the killing of another man in the context of a feud between criminal gangs which required appropriate measures to be taken (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 53, ECHR 2008); violence by and between criminal gangs is a problem in the respondent state which the Court has previously noted (see Campion v. Ireland (dec.), no. 29276/17, 10 October 2017).",
" Whether other procedural safeguards were afforded by domestic law and practice",
"97. It is not disputed that the applicant was notified of his rights on his arrest and that he was provided with immediate access to his lawyer who was able to provide further information about his procedural rights, including his to remain silent and the privilege against self-incrimination.",
"98. While the applicant ’ s solicitor was not physically present during the interviews it is clear that he could and did interrupt them to further consult with his client. As indicated by one of the Supreme Court judges, his role was, in fact, central in that the police and the applicant were actually communicating through him, rather than directly with each other.",
"99. A key additional safeguard highlighted by the Court of Appeal and the Supreme Court was the fact that all the applicant ’ s police interviews were recorded on video and those videos were available to the judges at all three levels of jurisdiction and the jury at trial. The Court considers that this was indeed an important safeguard as it doubtless acted to maintain pressure on the police to act in conformity with the law. It also enabled the domestic courts to make well informed decisions when considering whether it was possible to admit the evidence obtained in police interview. Finally, the fact of video-recording the interviews was a step towards prevention of coercion and ill ‑ treatment by the police, which is one reason for the presence of a lawyer during police interviews (see Beuze, cited above, § 126).",
" Conclusion as to the overall fairness of the proceedings",
"100. In conclusion, the Court recalls that its role is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused (see Beuze, cited above, § 148.).",
"101. In the present case it is important to stress that while a majority of the Supreme Court, which engaged extensively with the Court ’ s case-law on Article 6, was correct in concluding that where there have been procedural defects at pre-trial stage, the primary concern of the domestic courts at trial stage and on appeal must be the overall fairness of the criminal proceedings, it failed to recognize that the right of an accused to have access to a lawyer extended to having that lawyer physically present during police interviews.",
"102. The Court finds that, in the circumstances of the present case, notwithstanding the very strict scrutiny that must be applied where, as here, there are no compelling reasons to justify a restriction of the accused ’ s right of access to a lawyer, when considered as a whole the overall fairness of the trial was not irretrievably prejudiced.",
"103. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention."
] |
215 | Panovits v. Cyprus | 11 December 2008 | This case concerned in particular the failure to inform the applicant, who was a minor, of his right to consult a lawyer prior to first police questioning. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. In view of the circumstances, and especially given the applicant’s age and the fact that he had not assisted by his guardian during the questioning, it found that the lack of sufficient information on the applicant's right to consult a lawyer before his questioning by the police had constituted a breach of his defence rights. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born on 14 August 1982 and is currently serving concurrent sentences of imprisonment at the Nicosia Central Prison.",
"A. The applicant ’ s arrest",
"7. In the context of a police investigation concerning a murder and robbery which took place on 19 April 2000, the police contacted the applicant ’ s father and invited him and the applicant to visit the Limassol police station. At the time the applicant was just over 17 years old. The applicant went to the police station accompanied by his father. The Limassol District Police Director (hereinafter “ the Police Director”) informed the applicant ’ s father, in the presence of the applicant, about the crime that had been committed, the seriousness of the case, and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him.",
"8. According to the applicant, he immediately stated that he was innocent. Another police officer told him that his friend had already confessed to murdering the victim together with the applicant. The police officer added that the applicant ’ s friend was crying and hitting his head against a wall while he (the applicant) was merely lying to them. Then, another police officer came into the Police Director ’ s room holding an arrest warrant and informed the applicant that he was under arrest for murder. The applicant replied that he had nothing to add to his statement that he was innocent. The police officer then told the applicant to follow him into a different office. There there were 5 or 6 officers who started asking him questions and inducing him to confess, promising that if he did so they would assist him. They questioned him for approximately 30-40 minutes but he kept saying that he could not remember anything as he had been very drunk the night before. At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do. The police officers told him that if he wanted to go he should confess. Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember. The applicant then agreed to make a written statement. He denied having made any prior oral admission.",
"9. According to the Government, relying on the testimonies of the police officers participating in the interrogation, the applicant was shown the arrest warrant and informed of the reasons for his arrest, and had his attention drawn to the law. The applicant replied that he had nothing to say other than that he was innocent. He was then taken to a different room for questioning. Before the applicant was questioned the arresting officer explained again the reasons for his arrest, repeated that there was evidence involving the applicant in the circumstances under investigation and cautioned him that anything he said could be used against him in subsequent proceedings. There were four police officers present in the room. The applicant replied that he had not intended to kill anyone and started to give an explanation of the events. According to the arresting officer, the applicant was interrupted and his attention was drawn to the law. During the questioning the applicant confessed his guilt.",
"10. The parties agreed that when the applicant was taken away for questioning, his father remained in the Police Director ’ s office. He was shocked and after a couple of minutes told the Police Director that they should not use violence against his son. The Police Director replied that the police did not use such practices and added that the case was serious, that there was evidence linking the applicant with the crime and that it was important to seek the advice of a lawyer. He asked the applicant ’ s father whether he wanted to be present while his son was questioned. The father declined the offer. A few minutes afterwards, a police officer entered the room and informed the Police Director and the applicant ’ s father that the applicant had confessed. The Police Director invited the applicant ’ s father to join his son in the interview room so that he could hear what his son had admitted. The applicant ’ s father preferred to wait outside.",
"11. The applicant was charged with manslaughter and robbery under the Criminal Code (Cap. 154). On 9 May 2000 the applicant noted in an additional written statement : “I did not hit him (the victim) with the stone but only kicked him a couple of times.”",
"B. Proceedings before the Limassol Assize Court",
"12. The applicant and his co-accused were brought for trial before the Limassol Assize Court.",
"13. During the trial the applicant maintained that his confession to the police had not been voluntary but the product of deception, psychological pressure, promises, threats and other tactics aimed at creating fear. He also argued that at the time he had made his statement to the police he had been drunk and, therefore, he had not been in a position to remember accurately the facts described in that statement. Furthermore, the applicant argued that he had not had legal advice immediately after his arrest and before being questioned and induced to sign the written statement.",
"14. On 11 and 12 January 2001 the court heard the evidence of the Police Director concerning the applicant ’ s arrest and questioning. The Director confirmed that he had invited the applicant and his father to his office, where he had told the father, without addressing the applicant, that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime. The applicant had then been cautioned, arrested and taken into a separate room for questioning. Shortly after the applicant left the room the Director had explained to the applicant ’ s father the seriousness of the case and suggested that they find a lawyer.",
"15. On 7 February 2001 the Assize Court, having considered all the evidence put before it, found that the applicant ’ s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it. The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant ’ s allegations that, at the time of his confession, he had suffered loss of memory due to drunkenness. The confession was, therefore, admissible as evidence.",
"16. As regards the applicant ’ s claims concerning the lack of legal representation before his questioning, the court noted that the defence had not relied on any provision or authority recognising a right to have legal advice as a condition for receipt of an accused ’ s statement. Nor had the applicant or his father requested a lawyer and been refused one by the police. Moreover, the Director of Police had advised the applicant ’ s father that he and his son should seek legal representation. Overall, there had been no inappropriate action on the part of the police in this respect.",
"17. Subsequently, on 14 February 2001, during the main trial, the following exchange took place between the applicant ’ s lawyer, Mr Kyprianou, and the bench (translation of verbatim record of the proceedings):",
"“Mr Kyprianou : I will ask the prosecution to give me all the statements of suspects who made a statement about this case so that I can continue my cross-examination of this witness. The prosecution is obliged to supply me with all the statements taken from other suspects and it is not permissible in our view for the prosecution to hide behind this.",
"Court: First we want you to lower the tone of your voice. You do not let slip an opportunity to attack the prosecution who we believe is trying to present its case in a fair way, at least as the facts so far show. If you asked at some stage for the statements to be given to you and the prosecution refused, that is another matter.",
"Mr Kyprianou : I believed that I would get this from the case file, now I am deprived of this right. I want the complete case file. I cannot continue my cross-examination of this witness if I do not have the complete case file.",
"Ms Kyriakidou (prosecutor) : The position of the prosecution on the basis of Article 7 of the Law on Criminal Procedure (is that) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses, then the defence is entitled to complain.",
"Here, the defence did not apply in writing; certain particulars, photographs, plans were asked for verbally and whatever was asked for was given and the prosecution never refused to give anything to the defence. This process did not happen and it is my position that this attitude of the defence is not justified.",
"Court: We have considered the request of the learned counsel of accused no. 2 for the Court to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents. As stated earlier today, the defence had a right, on the basis of Article 7 of the Law on Criminal Procedure, Cap.155, to request to be supplied with the said copies from the day when the accused pleaded not guilty, but failed to do so.",
"We do not consider it expedient to break after so much delay and to create a fresh delay for this purpose. In any case, the Court in the present case is occupied with whether the prosecution will succeed in proving the guilt of the accused, who we note are presumed innocent until the prosecution, with their evidence, prove their guilt beyond all reasonable doubt.",
"Whether the examination was unsatisfactory or not is a matter which will be decided at the end of the case. The request is therefore refused.",
"Mr Kyprianou : I would ask for a break of five minutes in view of your ruling to gather my thoughts and see how I shall proceed because I believed that there would be disclosure of all the documents, for this reason I want five minutes to think about what I shall do in view of your ruling, that is to say how I shall proceed with the cross-examination. The cross-examination will take another sitting of the court. So the five minutes I am asking for are not unjustifiable.",
"Court: We will approve a break of ten minutes but we will remind (the defence) that it is the second time that an interruption of the proceedings has been requested for inspecting the case file. We had a break in a previous session and gave a sufficient interval for them to see the file.”",
"18. Following the break, the proceedings were resumed. At one point a confrontation occurred between the applicant ’ s lawyer, Mr Kyprianou, and the court. Mr Kyprianou was at the time cross-examining a police officer who had taken the applicant ’ s written statement and was asking him about the manner in which an indication by another police-officer to insert the time of taking the statement was made. The court interrupted Mr Kyprianou and noted that they found his questions unnecessary. Mr Kyprianou then sought leave to withdraw from the case which was refused. The verbatim record of the proceedings reports the following exchange (translation):",
"“Court: We consider that your cross-examination goes beyond the detailed cross-examination that can take place at the present stage of the main trial in issues ...",
"Mr Kyprianou : I will stop my cross-examination...",
"Court: Mr Kyprianou ...",
"Mr Kyprianou : Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case.",
"Court: Whether an advocate is to be granted leave to withdraw or not, is a matter within the discretionary power of the court and, in the light of what we have heard, no such leave is granted. We rely on the case of Kafkaros and Others v. the Republic and do not grant leave.",
"Mr Kyprianou : Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose. ”",
"Court: We consider your persistence...",
"Mr Kyprianou : And I am sorry that when I was cross-examining, the members of the court were talking to each other, passing ‘ ravasakia ’ among themselves, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the court.",
"Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44 (1) (a) of the Courts of Justice Law applies to its full extent.",
"Mr Kyprianou : You can try me.",
"Court: Would you like to say anything?",
"Mr Kyprianou : I saw with my own eyes the small pieces of paper going from one judge to another when I was cross-examining, in a way not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder?",
"Court (Mr Photiou ): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it.",
"Court (Ms Michaelidou ): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianou ’ s behaviour utterly unacceptable.",
"Court (Mr Photiou ): We shall have a break in order to consider the matter. The defendant (in the main trial) should in the meantime remain in custody.",
"...",
"Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44 (1) (a) of the Courts of Justice Law 14/60 ... that is, showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the court should proceed.",
"Mr Kyprianou : Mr President, certainly during the break, I wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time that I face such an accusation. That is all I have to say.",
"Court: We shall adjourn for ten minutes and shall then proceed with sentencing.”",
"19. After a short break the Assize Court, by a majority, sentenced Mr Kyprianou to five days ’ imprisonment. The court referred to the above exchange between Mr Kyprianou and its members and held as follows:",
"“...It is not easy, through words, to convey the atmosphere which Mr Kyprianou created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the court not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating a climate of intimidation and terror within the court. We are not exaggerating at all in saying that Mr Kyprianou was shouting and gesticulating at the court.",
"It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, ‘ You can try me ’.",
"Later, after a long break, Mr Kyprianou was given a second chance to address the court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of apprehension for the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the ‘ very tense atmosphere ’. However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse.",
"Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of ‘ ravasakia ’, that is, ‘ love letters ’ (See: ‘ Dictionary of Modern Greek - Spoudi ravasaki (Slavic ravas ), love letter, written love note ’ ). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret.",
"We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate.",
"The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the court ’ s reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned.",
"It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a deterrent nature, which can only be imprisonment.",
"We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, brought matters to this end.",
"In the light of the above we impose a sentence of imprisonment of five days”.",
"20. Mr Kyprianou served his prison sentence immediately. He was in fact released before completing the full term in accordance with section 9 of the Prison Law (Law no. 62(I)/1996).",
"21. The applicant continued to be represented by Mr Kyprianou for the rest of his trial.",
"22. On 21 February 2001 the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench. Mr Kyprianou requested that the court be addressed by another lawyer in this respect, given the fact that he had been directly concerned by the court ’ s decision on contempt. The defence was concerned that the court would not be impartial. This request was granted.",
"23. On 2 March 2001, by an interim decision, the Assize Court dismissed the request for its withdrawal. Having examined the relevant case-law on the issue it found that no ground had been established for its withdrawal. In this connection it noted that :",
"“no reasonable person who had actual knowledge of the circumstances of the case from genuine sources – as opposed to plain rumours or the manner in which the matter had been presented in the media – would justifiably form the impression that there was a real likelihood of prejudice by the court against the defendant simply because of its conclusion that his lawyer ’ s behaviour, at some stage of the proceedings, had been in contempt of court”.",
"24. Given that its decision on contempt had been a decision reached within the context of its exercise of its judicial functions and, as such, there was no issue of personal feelings of the judges or any prejudice on the part of the court, there was no reason why the court should abandon the examination of the case before the completion of the trial.",
"25. The proceedings therefore continued before the same bench.",
"26. On 10 May 2001 the Assize Court found the applicant guilty of manslaughter and robbery. The court dismissed the applicant ’ s allegations that his confession had been fabricated by the police and taken under suspicious circumstances. It found that there had been clear, independent and persuasive evidence demonstrating the genuine nature of his confession to the police. Furthermore, it noted that apart from the free and voluntary confession, the conclusion about the applicant ’ s guilt was supported by other strong and independent evidence and facts. In particular, the court relied on the applicant ’ s further statement of 9 May 2000 (see paragraph 11 above), placing the applicant at the time and place of the crime and confirming that he used force against the victim, a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim, and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim, leaving the pub right after the victim and heading in the same direction as the victim. Moreover, further testimonies confirmed that the applicant was seen in the early hours of the following morning drinking in another pub dressed in clothes covered in mud. The medical evidence concerning the victim ’ s death had confirmed that the cause of death had been multiple and violent blows, a finding which was consistent with the applicant ’ s two statements as well as that of his co-accused. The confession of his co-accused could not be treated as evidence against the applicant.",
"27. On 24 May 2001 the Assize Court sentenced the applicant to two concurrent sentences of imprisonment for fourteen and six years for manslaughter and robbery respectively.",
"C. Appeal proceedings before the Supreme Court",
"28. On 29 May 2001 the applicant lodged an appeal with the Supreme Court against his conviction and sentence.",
"29. In challenging his conviction he repeated his arguments concerning the involuntary nature of his confession, the circumstances in which it had been taken and the violation of his right to the assistance of a lawyer. In particular, it was emphasised that the Director of Police had not advised the applicant himself that he should consult a lawyer and had not warned the applicant that he was under no obligation to state anything about the case. Moreover, the applicant maintained that his conviction had been the direct consequence of the hostility which had been openly expressed by the Assize Court towards his lawyer, who had also been tried, convicted by the same court for contempt and imprisoned. As a result, the applicant ’ s confidence in the impartiality of the court and his lawyer had been shaken.",
"30. The prosecution also lodged an appeal challenging the sentence imposed as “manifestly insufficient” in the circumstances.",
"31. On 3 July 2003 the Supreme Court dismissed both appeals.",
"32. As to what had occurred at the pre-trial stages of the proceedings the Supreme Court noted that the applicant had gone to the police station accompanied by his father and both had been informed about the crime, the suspicion that the applicant had been involved in it and that they could be assisted by a lawyer if they so wished. The applicant had stated that he was innocent; he had then been arrested and taken for questioning in a different room. When his son had been taken for questioning the applicant ’ s father had been warned about the seriousness of the case, that they could consult a lawyer and that he could be present during the questioning. However, he had preferred to wait outside. A few minutes later the applicant ’ s father and the Police Director had been informed that the applicant had confessed his guilt. The court observed that the fact that the applicant had confessed did not necessarily lead to the conclusion that something improper had occurred.",
"33. As to the applicant ’ s confession, the court noted that it had constituted the subject of a separate hearing within the trial and that the Assize Court had concluded that it had been the product of the free will of the applicant and found it admissible as evidence. The court observed that the Assize Court, following settled principles of Cypriot jurisprudence, had re-examined the content of the statement in the light of the entirety of the evidence in the main trial. Its judgment was elaborate and the evidential material was discussed with meticulousness together with the arguments of the parties. A simple reading of the minutes confirmed the correctness of the Assize Court ’ s judgment. As for the applicant ’ s credibility, the Supreme Court noted that:",
"“as a general comment, ... the appellant appeared, as it is shown by the evidence, to have had a selective memory. He remembered all the details which did not incriminate him while he had complete lack of memory in respect of all the elements which linked him to the crime. This attitude is evident from his evidence both in the main trial and in the trial within a trial concerning the voluntariness of the contested statement. And in both proceedings he tried to negate the statements he had made in his earlier written confession .”",
"34. Moreover, there was sufficient, powerful and independent evidence putting the applicant at the time and place of the crime. Such evidence taken together with the applicant ’ s admission contained in a second statement, the admissibility of which was not contested as having been submitted on an involuntary basis, rendered the applicant ’ s guilt proven beyond any reasonable doubt.",
"35. The Supreme Court also dismissed the applicant ’ s argument concerning the Assize Court ’ s alleged lack of impartiality in view of his lawyer ’ s conviction for contempt of court. In particular it stated the following:",
"“ Following his conviction by the Assize Court (for contempt of court) Mr Kyprianou requested to withdraw from the proceedings and to stop acting as counsel for the appellant .... The appellant ’ s argument that, in view of what had happened before the Assize Court, this ceased to be an impartial court and the trial was rendered unfair, is incorrect. A simple reading of the voluminous transcript of the proceedings demonstrates the smooth conduct of the trial, in which all the evidence was presented before the court, which had to evaluate it and decide the extent to which the prosecution had managed to prove the charges against the appellant beyond all reasonable doubt. We have indicated above that the evidence against the appellant was conclusive. His advocate had put to the Assize Court everything that could be submitted in his defence in a trial; a task which was, admittedly, rather difficult. The Assize Court ’ s decision not to allow the advocate to withdraw in the middle of the trial or to withdraw itself from the case, which would have led to a retrial, did not render the trial unfair, while the court itself had, in our opinion, preserved its impartiality throughout the proceedings.”",
"36. Finally, as regards the sentence imposed by the Assize Court, the Supreme Court found that there had been evident leniency in sentencing, making the length of the prison sentence imposed almost manifestly insufficient. Nevertheless, it decided not to interfere with the Assize Court ’ s decision in this respect.",
"37. Concerning the Mr Kyprianou ’ s request to stop acting as counsel for the applicant (see paragraphs 18 and 35 above), the Government clarified that it was made before the contempt proceedings. This was supported by the applicant and the relevant transcript of the proceedings."
] | [
"II. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS",
"A Rights of the accused",
"38. Article 11 (4) of the Constitution of the Republic of Cyprus provides as follows:",
"“Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.”",
"39. Article 12 (4) and (5) of the Constitution provides, in so far as relevant, as follows:",
"(4) “Every person charged with an offence shall be presumed innocent until proved guilty according to law.",
"(5) Every person charged with an offence has the following minimum rights:",
"(a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him;",
"(b) to have adequate time and facilities for the preparation of his defence; ...”",
"B. Right to a fair trial",
"40. Article 30 (2) and (3) provides, in so far as relevant, as follows:",
"(2) “In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law.",
"...",
"(3) Every person has the right:",
"(a) to be informed of the reasons why he is required to appear before the court;",
"(b) to present his case before the court and to have sufficient time necessary for its preparation....”.",
"C. International Covenant on Civil and Political Rights 1966 (“ICCPR”)",
"41. The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that:",
"“In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.”",
"D. Treatment of a suspect",
"1. Domestic law",
"42. Section 8 of the Criminal Procedure Law, Cap. 155 provides as follows:",
"“Without prejudice to the generality of section 3 of this Law and without prejudice to the operation of section 5 of this Law the rules for the time being approved by Her Majesty ’ s Judges of the Queen ’ s Bench Division in England relating to the taking of statements by police officers (known as ‘ The Judges ’ Rules ’ ) shall apply to the taking of statements in the Colony as they apply to the taking of statements in England”.",
"43. Section 13 of the Criminal Procedure Law, Cap. 155 provides, in so far as relevant, as follows:",
"“ ... Any [arrested] person while in custody shall be given reasonable facilities for obtaining legal advice, for taking steps to obtain bail and otherwise for making arrangements for his defence or release.”",
"44. Rule II of the Judges ’ Rules provides as follows:",
"“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.",
"The caution shall be in the following terms:",
"‘ You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. ’ ”",
"2. Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Ref: CPT/ inf /E (2002) 1_Rev.2006)",
"45. The CPT standards on police detention were set out in its 2 nd General Report [CPT/ Inf (92) 3] as follows:",
"36. The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). They are, in the CPT ’ s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc).",
"37. Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.",
"38. Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation.",
"46. The CPT standards on juveniles deprived of their liberty were set out in the CPT ’ s 9 th General Report [CPT/ Inf (99) 12] as follows:",
"“ In this context, the CPT has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest. It follows that it is essential that all persons deprived of their liberty (including juveniles) enjoy, as from the moment when they are first obliged to remain with the police, the right to notify a relative or another third party of the fact of their detention, the right of access to a lawyer and the right of access to a doctor.”",
"E. Treatment of an accused ’ s confession under the national law",
"47. In Vouniotis v. The Republic (1975) 2 C.L.R. 34 the Supreme Court held that the court should verify the truthfulness of a confession by independent evidence. In this case the following extracts from R v Sykes 8 Cr. App. Rev. were cited with approval:",
"“A man may be convicted on his own confession alone; there is no law against it ... the first question [to be asked] when ... examining the confession of a man, is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? ... Is it [the confession] consistent with other facts which have been ascertained and which have been, as in this case, proved before us? ... ”",
"48. In the case of Kafkaris v. The Republic (1990) 2 CLR 203, the following was stated:",
"“A confession of a crime – so long as it is accepted as voluntary – can on its own constitute sufficient ground for an accused ’ s conviction. No matter how voluntary a confession is, it is prudent, in accordance with the case-law ... to have, where possible, corroborating evidence in support of the accuracy of its content. That would exclude the possibility of error and discourage the interrogating authorities to seek a confession as an easy alternative to having a crime properly investigated. The content of a confession must be judged not only on the basis of the authenticity of the allegations it contains, but also in conjunction with any other testimony that tends to support or disprove the accuracy of its content.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"49. The applicant made a number of complaints concerning the fairness of the various stages of the criminal proceedings under Article 6 of the Convention, which reads, in so far as relevant, as follows:",
"“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ”",
"50. With regard to the pre-trial stage of the proceedings, the applicant complained that he had not been informed of his right to consult a lawyer prior to being questioned and submitting his statement and that he had not been provided with an adequate opportunity to find a lawyer at that stage. This had been particularly detrimental for his defence given that he was a minor at the time and had not even been questioned by the police in the presence of his guardian. He further complained that he had not been adequately warned of his right to remain silent.",
"51. The applicant also complained that he had not received a fair trial by the Assize Court given its acceptance of his confession, the admission of other evidence attempting to show his “bad character ” and concerning his involvement in other criminal investigations, and the continual interferences by the court in the conduct of the trial which ended in a direct conflict with the applicant ’ s lawyer. His lawyer ’ s subsequent conviction and imprisonment for contempt of court had inhibited the lawyer ’ s ability to defend the applicant (see, for the relevant facts, Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ ... ).",
"52. Finally, the applicant complained that there was no third- instance appeal jurisdiction in Cyprus to review the lawfulness of the findings of the Supreme Court on appeal.",
"53. The Government contested the applicant ’ s arguments in their entirety.",
"A. Admissibility",
"54. The Court considers that the complaints concerning the pre-trial stage of the proceedings and the fairness of the trial at first instance and on appeal raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring them inadmissible has been established. These complaints must therefore be declared admissible.",
"55. In connection with the applicant ’ s complaint, concerning the lack of a third level of jurisdiction in Cyprus to which the soundness and lawfulness of the judgments of the Supreme Court on appeal could be challenged, the Court considers that it falls to be examined under Article 2 of Protocol No. 7 of the Convention. The Court observes that the applicant, following his conviction and sentence by the Assize Court, appealed to the Supreme Court, which dealt with his elaborate grounds of appeal providing adequate reasoning for its findings. The applicant therefore had his conviction and sentence reviewed by a higher tribunal in conformity with Article 2 of Protocol No. 7. In this connection, the Court notes that neither this provision nor any other provision of the Convention or its Protocols guarantees a right to have a case heard by three judicial instances.",
"56. Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.",
"B. Merits",
"1. Complaints concerning the pre-trial stage of the proceedings",
"(a) The Government",
"57. The Government maintained that the police had drawn the applicant ’ s attention to his right to remain silent on three occasions : at the time of his arrest, when he was taken for questioning and before his written statement was taken. In particular, the applicant had been warned in accordance with the wording of Rule II of the Judges ’ Rules which apply in Cyprus by virtue of section 8 of the Criminal Procedure Law.",
"58. The Government stated that the testimony of the witnesses for the prosecution concerning the events at the pre-trial stage of the proceedings had been accepted by the Assize Court both in the trial within a trial and in the main proceedings. They noted that in the trial within a trial the prosecution had succeeded in proving beyond all reasonable doubt that the applicant ’ s confession, given shortly after his arrest, had been voluntary.",
"59. Although the applicant ’ s father, who was acting at the time as the applicant ’ s guardian, had been made fully aware of the seriousness of the case and had been prompted to appoint a lawyer immediately after the applicant was taken for questioning, the father did not appoint a lawyer and preferred not to be present when the applicant gave his written statement to the police. Moreover, neither the applicant nor his father had requested the assistance of a lawyer to which they were entitled from the initial stages of the investigation in accordance with domestic law. Had they requested such services, access to a lawyer would have been granted. There had therefore been no denial of the applicant ’ s rights in this respect and he had benefited from the assistance of a lawyer from the day following his arrest and throughout the proceedings.",
"60. In the light of the entirety of the proceedings, the absence of legal assistance on the day of the applicant ’ s arrest had not deprived him of a fair hearing. The applicant had had every opportunity under domestic law to challenge the voluntary nature and admissibility of his written statement in the subsequent proceedings. He had been represented by counsel and had the witnesses of the prosecution cross-examined, whereas the burden of satisfying the court as to the voluntary character of the confession, to the requisite criminal standard of proof, had remained with the prosecution.",
"61. The applicant ’ s father, being at the time the applicant ’ s guardian, had by his conduct unequivocally waived the applicant ’ s right to have the assistance of a lawyer at the pre-trial stage of the proceedings. The Government could not be held accountable in the present circumstances for the applicant ’ s failure to exercise his right in this respect.",
"(b) The applicant",
"62. The applicant maintained that he had not been advised to find a lawyer before he was taken for questioning, and that his father had only been advised to do so while the applicant was being questioned. The applicant, being underage at the time, had been unable to comprehend the seriousness of the matter and was totally unaware of the fact that had he asked for a lawyer the police questioning could have been deferred pending the lawyer ’ s arrival. Moreover, his father had been unable to respond and request a lawyer for his son immediately as according to the testimonies of the police officers he had been “ stunned, shocked and unable to speak ”.",
"63. Moreover, due respect by the State of the applicant ’ s rights required that he himself be advised of his right to consult a lawyer upon his arrest. If the police considered him mature enough to be arrested, taken for questioning alone, and able to make a statement to the police without the presence of his father or a lawyer, it was their duty to explain directly to the applicant that he had the right to consult a lawyer upon his arrest and that he was entitled to legal aid.",
"(c) The Court ’ s assessment",
"64. At the outset the Court observes that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005 ‑ IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275 ). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( Imbrioscia, cited above, § 38).",
"65. Moreover, the Court reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ( see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996 ‑ I, and Funke v. France, 25 February 1993, § 44, Series A no. 256 ‑ A ). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996 ‑ VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000 ‑ XII; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan v. the United Kingdom, no. 48539/99, § 44, ECHR 2002-IX ). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention.",
"66. As regards the applicant ’ s complaints which concern the lack of legal consultation at the pre-trial stage of the proceedings, the Court observes that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation. The lack of legal assistance during an applicant ’ s interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.",
"67. The Court notes that the applicant was 17 years old at the material time. In its case-law on Article 6 the Court has held that when criminal charges are brought against a child, it is essential that he be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 84 ). The right of an accused minor to effective participation in his or her criminal trial requires that he be dealt with with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce as far as possible his feelings of intimidation and inhibition (see, mutatis mutandis, T. v. the United Kingdom, cited above, § 85) and ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent ( mutatis mutandis, S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004 ‑ IV ). It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said by the arresting officer and during his questioning by the police ( ibid ).",
"68. The Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance ( Håkansson and Sturesson v. Sweden, 21 February 1990, Series A No. 171, § 66, and most recently Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ ... ). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 324 32/96, 27 March 2007, § 59, and Jones v. the United Kingdom ( dec .), no. 30900/02, 9 September 2003). The Court considers that given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of an important right under Article 6 can only be accepted where it is expressed in an unequivocal manner after the authorities have taken all reasonable steps to ensure that he or she is fully aware of his rights of defence and can appreciate, as far as possible, the consequence of his conduct.",
"69. Having examined all the material submitted by the parties and, in particular, the testimonies submitted in the first-instance proceedings as recorded in the relevant transcript, the Court makes the following findings as to the sequence of events concerning the applicant ’ s confession. The applicant, who was a minor at the relevant time, visited the Police Director ’ s office together with his father. The Police Director explained to the father, in the applicant ’ s presence, that the police were investigating a murder and robbery, that there was evidence linking the applicant with the commission of these crimes and that an arrest warrant had been issued against him. The arresting officer then entered the Director ’ s office, showed the arrest warrant and arrested the applicant. During his arrest, the applicant was “cautioned” within the meaning of the relevant Judges Rules (see paragraph 44 above). He was therefore told that he was not obliged to say anything and that anything he did say could be used in subsequent court proceedings. The applicant was then taken into a separate room for questioning. The applicant ’ s father was concerned that the police might use force against the applicant and the Director reassured him that no such practices would be used. He explained that the case was serious and that they should seek the assistance of a lawyer. A few minutes later and while the applicant was already being questioned, they were informed that the applicant had confessed his guilt. The Director suggested that the applicant ’ s father join the applicant in the interview room so that he could hear himself what the applicant had admitted. The applicant ’ s father preferred to wait outside. The applicant was cautioned before his written statement confessing his guilt was taken by a police officer.",
"70. The Court observes that the Government did not dispute the fact that the applicant was not offered legal assistance and that the suggestion to find a lawyer was only put to the applicant ’ s father while the applicant was being interrogated. The Court considers that the authorities ’ treatment of the applicant ranged from treating him as a minor and, as such, addressing his father to explain the seriousness of the case and describe the evidence existing against the applicant, to approaching him as a person capable of being questioned in the absence of his guardian, without informing him of his right to consult a lawyer before proceeding to make any statement. Neither the applicant nor his father were adequately informed of the applicant ’ s rights to legal representation before the applicant ’ s questioning. Moreover, the applicant ’ s father was not invited to accompany the applicant during his initial questioning nor was any other person who would be in a position to assist the applicant to understand the proceedings. The applicant himself was not advised that he could see a lawyer before saying anything to the police and before he had his written statement taken.",
"71. In view of the above the Court considers that it was unlikely, given the applicant ’ s age, that he was aware that he was entitled to legal representation before making any statement to the police. Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the investigation of a murder (see Talat Tunç, cited above, § 60).",
"72. The Court takes note of the Government ’ s argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61 ). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.",
"73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant ’ s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant ’ s defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant ’ s right to receive legal representation prior to his interrogation in an explicit and unequivocal manner.",
"74. Concerning the applicant ’ s complaint as to his right to remain silent, the Court notes that the Government maintained that the applicant had been cautioned in accordance with domestic law both at the time of his arrest and before his written statement had been taken. The applicant did not dispute this. The Court notes that in accordance with domestic law the applicant was told that he was not obliged to say anything unless he wished to do so and that what he said could be put into writing and given in evidence in subsequent proceedings (see paragraph 44 above). The Court finds, given the circumstances of the present case, in which the applicant had been underage and was taken for questioning without his legal guardian and without being informed of his right to seek and obtain legal representation before he was questioned, that it was unlikely that a mere caution in the words provided for in the domestic law would be enough to enable him to sufficiently comprehend the nature of his rights.",
"75. Lastly, the Court considers that although the applicant had the benefit of adversarial proceedings in which he was represented by the lawyer of his choice, the nature of the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings, in which his confession was treated as voluntary and was therefore held to be admissible as evidence.",
"76. In this connection the Court notes that despite the fact that the voluntariness of the applicant ’ s statement taken shortly after his arrest was challenged and formed the subject of a separate trial within the main trial, and although it was not the sole evidence on which the applicant ’ s conviction was based, it was nevertheless decisive for the prospects of the applicant ’ s defence and constituted a significant element on which his conviction was based. It is indicative in this respect that the Supreme Court found that throughout the course of the first- instance proceedings the applicant had consistently tried to negate his initial statement, an approach which had a great impact on the court ’ s assessment of his credibility.",
"77. In the light of the above considerations the Court concludes that there has been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention on account of the lack of legal assistance to the applicant in the initial stages of police questioning.",
"2. Complaints concerning the use of the applicant ’ s confession and other evidence in the proceedings",
"(a ) The domestic courts ’ reliance on the applicant ’ s confession",
"78. The applicant complained about the use made of his confession in the proceedings before the Assize Court resulting in his conviction which was upheld on appeal.",
"79. The Government did not make any submissions on this point.",
"80. The Court notes that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94, ECHR 2006 ‑ ..., and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV).",
"81. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan, cited above, § 42 ). The severity of the sentence that may be imposed upon the conclusion of the criminal proceedings would increase the level of due diligence that is required from the domestic authorities in this respect.",
"82. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35, 37, and Allan, cited above, § 43).",
"83. As for the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterates that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see paragraph 65 above).",
"84. Turning to the facts of the present case, the Court repeats its findings of a violation of the applicant ’ s rights of defence at the pre-trial stage of the proceedings due to the fact that, whilst being a minor, his questioning had taken place in the absence of his guardian and without him being sufficiently informed of his right to receive legal representation or of his right to remain silent. The Court notes that the applicant ’ s confession obtained in the above circumstances constituted a decisive element of the prosecution ’ s case against him that substantially inhibited the prospects of his defence at trial and which was not remedied by the subsequent proceedings.",
"85. The Court notes that in addition to the applicant ’ s confession his conviction was supported by his second statement admitting that he had kicked the victim, a testimony reporting the applicant ’ s statement that he had been involved in a serious fight with the victim and various testimonies confirming that the applicant had been drinking with the victim on the evening the victim died and that his clothes had been covered in mud in the early hours of the following morning. There was also medical evidence confirming that the cause of the victim ’ s death was multiple and violent blows. While it is not the Court ’ s role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based to a decisive extent on the applicant ’ s confession, corroborated largely by his second statement. It considers that the extent to which the second statement made by the applicant was tainted by the breach of his rights of defence due to the circumstances in which the confession had been taken was not addressed by the trial court and remains unclear. Moreover, the Court observes that having regard to the Assize Court ’ s acceptance of the applicant ’ s first statement, it appears that it would have been futile for him to contest the admissibility of his second statement.",
"86. In the light of the above considerations, the Court concludes that there has been a violation of Article 6 of the Convention because of the use in trial of the applicant ’ s confession obtained in circumstances which breached his rights to due process and thus irreparably undermined his rights of defence.",
"(b) Admission of evidence of “bad character”",
"87. The applicant also complained that he had not received a fair trial given the admission in the main trial of evidence attempting to show his “bad character” and concerning his involvement in other criminal investigations.",
"88. The Court considers that the applicant ’ s submission was left undeveloped and unsubstantiated. Hence, it concludes that there has been no violation of Article 6 § 1 in this respect.",
"3. Complaints concerning the Assize Court ’ s treatment of counsel for the defence",
"(a) The Government",
"89. The Government submitted that the applicant ’ s trial taken as a whole had been fair and in conformity with the Convention. They maintained that the Assize Court had been impartial towards the applicant throughout the criminal proceedings from both an objective and a subjective standpoint. The dispute between the applicant ’ s counsel and the court concerning certain behaviour of the counsel had been an isolated incident that had not had any impact on the objective examination of the case or on its outcome. Moreover, the applicant ’ s counsel had not applied to withdraw from the case following his conviction for contempt of court.",
"90. There was no evidence of bias against the applicant on the part of the Assize Court. The applicant had not submitted anything before the Court indicating any factor that could objectively raise a legitimate fear as to the impartiality of the judges in relation to the conduct of the proceedings and their findings.",
"91. The Assize Court had delivered a detailed and reasoned judgment with a thorough evaluation of the evidence put before it together with the position of the defence. Its interventions in the proceedings had not exceeded what was permissible in the circumstances. The Supreme Court had confirmed the findings of the Assize Court and found that the trial had been fair and the conviction and the sentence justified.",
"(b) The applicant",
"92. The applicant submitted that his case could not be distinguished from the case that his lawyer had lodged with the Court and in which a violation of his lawyer ’ s rights under Articles 6 § § 1, 2 and 3 and 10 of the Convention had been found by this Court ’ s Grand Chamber ( see Kyprianou v. Cyprus, cited above ). He stated that his trial had been a continuous confrontation between the bench and his lawyer; a confrontation which had reached its climax with his lawyer ’ s trial, conviction for contempt of court and imprisonment. During the trial the Assize Court had made continual and clearly inappropriate interferences in the proceedings. It was indicative that his lawyer had requested permission to withdraw from the case since he felt unable to defend the applicant as a result of the court ’ s approach towards him; a request which was refused thus compelling him to continue defending the applicant against his will. Moreover, the applicant ’ s faith in his lawyer had been seriously undermined as a result of the contempt proceedings.",
"93. Following the contempt proceedings, his lawyer had felt unable to repeat the same request to withdraw from the case as the matter had already been decided upon by the Assize Court. He had nevertheless requested that the court withdraw from the further examination of the case in view of the events that had occurred. The request had again been refused and the trial had resumed in a climate which did not coincide with the requirements of a democratic society.",
"(c) The Court ’ s assessment",
"94. The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused (see Kyprianou v. Cyprus, cited above, § 118, and Padovani v. Italy, 26 February 1993, § 27, Series A no. 257-B).",
"95. The central question raised under this head of the applicant ’ s complaint is whether the nature of the Assize Court ’ s interferences with the defence counsel ’ s exercise of his duties, combined with the deficiencies found by the Grand Chamber of this Court as to the trial judges ’ treatment of the applicant ’ s lawyer, were such as to cast doubt on the fairness of the trial.",
"96. The Court notes that the applicant ’ s lawyer and the judges of the Assize Court engaged in various disagreements over the course of the applicant ’ s trial, and that the applicant ’ s lawyer had felt the need to request leave to withdraw from the proceedings due to the court ’ s interferences with his conduct of the applicant ’ s defence. His request was refused and he continued to represent the applicant.",
"97. The Court further notes that upon the resumption of the main trial following the contempt proceedings Mr Kyprianou felt that it was necessary for another lawyer to represent the applicant and request the court itself to withdraw from the further examination of the case. The request was refused as the Assize Court considered that no reasonable person could conclude that the applicant could have been prejudiced in any way by the contempt proceedings.",
"98. While the Court does not doubt that the judges of the Assize Court were determined to exercise their functions in an impartial manner, it reiterates that in its judgment in the Kyprianou case (cited above, § 133) it concluded that the judges ’ personal conduct had breached the subjective test of impartiality. In particular, the Court concluded from the manner in which the contempt proceedings were conducted, together with the decision and sentencing of Mr Kyprianou, that the court had failed to sufficiently detach itself from the facts of the case as the judges had been personally insulted by Mr Kyprianou ’ s comments. The Court considers that the personal conduct of the judges in the case undermined the applicant ’ s confidence that his trial would be conducted in a fair manner. Although the contempt proceedings were separate from the applicant ’ s main trial, the fact that the judges were offended by the applicant ’ s lawyer when he complained about the manner in which his cross-examination was received by the bench undermined the conduct of the applicant ’ s defence.",
"99. The Court also reiterates that in its judgment in the Kyprianou case (cited above, § 179) it found that although the conduct of the applicant ’ s lawyer could be regarded as disrespectful for the judges of the Assize Court, his comments were aimed at and were limited to the manner in which the judges were trying the case and, in particular, their allegedly insufficient attention to his cross-examination of a witness carried out in the course of defending the applicant. In this respect, the interference with the freedom of expression of the applicant ’ s lawyer in conducting the applicant ’ s defence, had breached Article 10 of the Convention ( ibid. , § 183). Moreover, the Court held that the sentence imposed on the applicant ’ s lawyer had been capable of having a “chilling effect” on the performance of the duties attached to lawyers when acting as defence counsel.",
"100. The Court finds that the refusal of Mr Kyprianou ’ s request for leave to withdraw from the proceedings due to the fact that he felt unable to continue defending the applicant in an effective manner exceeded, in the present circumstances, the limits of a proportionate response given the impact on the applicant ’ s rights of defence. Further, in the view of the Court, the Assize Court ’ s response to Mr Kyprianou ’ s discourteous criticism of the manner in which they were trying the case, which was to convict him immediately of contempt of court and impose a sentence of imprisonment on him, was also disproportionate. It further considers that the “chilling effect” on Mr Kyprianou ’ s performance of his duties as defence counsel was demonstrated by his insistence, upon the resumption of the proceedings, that another lawyer should address the court in respect of the request for the continuation of the proceedings before a different bench.",
"101. In these circumstances, the Court concludes that the Assize Court ’ s handling of the confrontation with the applicant ’ s defence counsel rendered the trial unfair. It follows that there has been a violation of Article 6 § 1 in this respect.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"102. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"103. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. It reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if requested (see Öcalan v. Turkey, cited above, § 210 in fine )."
] |
216 | Güveç v. Turkey | 20 January 2009 | This case concerned in particular the inability of a minor defendant to participate effectively in his criminal trial and lack of adequate legal representation. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer. During the retrial, both the applicant and his lawyer were absent from most of the hearings. | The Court held that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. It considered in particular that the applicant had not been able to effectively participate in the trial, given that he had not attended at least 14 of the 30 hearings both during the initial trial and at retrial. Having considered the entirety of the criminal proceedings against the applicant, and their shortcomings, in particular the lack of legal assistance for most of the proceedings, the Court concluded that there had been a violation of his defence rights. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born on 30 April 1980 and lives in Belgium.",
"6. On 29 September 1995 a certain Mr Özcan Atik was arrested on suspicion of membership of the PKK [1]. The following day the applicant was arrested in Istanbul upon information allegedly given to the police by Mr Atik. According to that information, the applicant was a member of the PKK. Following his arrest the applicant was placed in police custody.",
"7. The applicant was questioned by police officers on 5 October 1995. In a written statement prepared by the police and signed by him, the applicant was quoted as having stated that he was a member of the PKK and that he had had a number of meetings with several of its members, including Özcan Atik. One day Özcan Atik had told the applicant that he had asked a certain Menderes Koçak to provide financial assistance to the PKK but that Mr Koçak had refused. Özcan Atik had then asked the applicant to help him set fire to a vehicle owned by Mr Koçak. This they had done one evening with the help of two other persons. The applicant also added that had he not been arrested, he would have taken part in further activities on behalf of the PKK.",
"8. On 7 October 1995 Mr Koçak identified Mr Atik and another person as the persons who had asked him to give money to the PKK. He did not know whether it had been the same two persons who had subsequently set fire to his vehicle and shop.",
"9. On 9 October 1995 police officers took the applicant and three other persons, including Mr Atik, to the street where Mr Koçak ’ s vehicle had been set on fire.",
"10. On 12 October 1995 the applicant and 21 other persons who had been arrested as part of the same police operation were taken to the Istanbul branch of the Forensic Medicine Institute, where they were examined by a doctor. According to the medical report drawn up the same day, the applicant ’ s body did not bear any signs of ill-treatment.",
"11. The same day the applicant was taken to the Istanbul State Security Court, where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him. In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the PKK. He had set fire to the vehicle together with three other persons. In the statement drawn up by the judge, however, the applicant was quoted as having stated that he had set fire to the vehicle on his own.",
"12. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer.",
"13. On 27 November 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and fifteen other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. According to Article 125 of the Criminal Code in force at the time, the punishment stipulated for this offence was the death penalty (see Relevant Domestic Law and Practice below).",
"14. A preparatory hearing was held on 18 December 1995 by the Istanbul State Security Court (hereinafter “the trial court”). One of the three judges on the bench was an army officer.",
"15. At the first hearing, held on 27 February 1996, the applicant was present but not represented by a lawyer.",
"16. During the second hearing, held on 1 March 1996, the applicant was still not represented by a lawyer but was questioned by the trial court. The applicant told the trial court that his childhood friend Özcan Atik had told him one day that he had been selling newspapers and that one of his customers had refused to pay. Mr Atik had then suggested “ teaching that customer a lesson ”. One night the applicant and Mr Atik had arrived outside a big building. Mr Atik had poured some petrol on the street outside the building from a jerry can and set fire to it. The applicant himself had not set fire to any vehicle and he did not know Menderes Koçak.",
"17. The applicant also told the trial court that, while detained in police custody, he had been given electric shocks, sprayed with pressurised water and beaten with a truncheon; the soles of his feet had also been beaten. He had then signed the statements implicating him in the offences with which he was subsequently charged. As regards the statements taken from him by the prosecutor and the judge on 12 October 1995, the applicant stated that the prosecutor and the judge had only asked him his date of birth; he had not made any statements before them. The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle (see paragraph 9 above). The applicant ’ s request for release was rejected by the trial court the same day.",
"18. During the third hearing held on 18 April 1996, a lawyer representing some of the applicant ’ s co-accused informed the trial court that she would also be representing the applicant. During the same hearing Menderes Koçak also gave evidence as a witness and stated that Özcan Atik had never asked him to give money to the PKK. A vehicle owned by him had been set on fire but he did not think Özcan Atik had done it.",
"19. The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family.",
"20. The applicant did not attend four of the subsequent six hearings held at two - monthly intervals. Requests for his release made by his lawyer were all rejected by the trial court. The lawyer argued that there was no evidence against the applicant other than that obtained under ill-treatment.",
"21. In the course of the 10th hearing, which was held on 29 May 1997 in the applicant ’ s absence but with the attendance of his lawyer, the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property, and not for the offence with which he was charged in the indictment (see paragraph 13 above). The trial court rejected the request for the applicant ’ s release.",
"22. The applicant ’ s lawyer did not attend the 11th hearing held on 17 July 1997. During the 12 th hearing, on 26 August 1997, the lawyer argued that, on account of the testimony given to the trial court by Mr Koçak on 18 April 1996 (see paragraph 18 above), there was no evidence showing that the applicant had committed the offences with which he was charged.",
"23. The lawyer did not attend the 13th hearing, held on 2 October 1997, because she had other business before a Labour Court. The applicant made his own defence submissions and repeated his allegations of ill-treatment in police custody. He also asked to be released. This request was rejected by the trial court.",
"24. On 17 October 1997 the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle, and sentenced him to nine years, eight months and ten days ’ imprisonment. The trial court considered that the statements given by the applicant in police custody and the statements given by his co-accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle.",
"25. The applicant appealed. On 12 March 1998 the Court of Cassation quashed the applicant ’ s conviction. The case was remitted to the trial court for a retrial.",
"26. On 11 September 1998 the trial court held a preparatory hearing in the retrial. One of the three judges on the bench was a military officer.",
"27. Eight hearings were held between 27 October 1998 and 3 0 December 1999. The applicant ’ s lawyer attended only one of these hearings, that on 18 March 1999, whereas the applicant attended two hearings. During the 5th hearing, held on 15 July 1999, the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime ( cf. Öcalan v. Turkey [GC], no. 46221/99, §§ 2-54, ECHR 2005 ‑ IV).",
"28. On 18 November 1999 a police chief informed the trial court that, contrary to the allegations, no vehicle belonging to Menderes Koçak had been set on fire.",
"29. A 9th hearing was held on 21 March 2000. The applicant was present but his lawyer was not. During the hearing Menderes Koçak gave evidence before the trial court and stated that his vehicle had not been burned. No one had asked him to give money to the PKK. When asked by the trial court to explain the inconsistencies between the statement he had made to the police on 7 October 1995 (see paragraph 8 above) and his testimony, Mr Koçak stated that he had not told any such things to the police; he had had to sign whatever was written in the statement drafted by the police officers.",
"30. During the same hearing the applicant reiterated that he did not know Mr Koçak and had not set fire to any vehicle. He pointed out that he had been arrested at the age of 15 with no evidence against him, and asked to be released. This request was rejected by the trial court.",
"31. The applicant but not his lawyer attended the 10 th hearing, held on 23 May 2000.",
"32. In the course of the 11 th hearing, held on 25 July 2000 in the absence of the applicant ’ s lawyer, the trial court was presented with a letter drafted by the applicant ’ s cell - mates. The letter states that “[the applicant] has serious psychiatric problems. His treatment is being overseen by a psychiatric hospital in Istanbul. He is unable to live without the assistance of others and his health is deteriorating. As such, he is unable to attend the hearings and he refused to attend today ’ s hearing. We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings ”.",
"33. According to a medical report prepared by the prison doctor on 24 July 2000 which was appended to the cell - mates ’ letter, the applicant had been taken to a psychiatric hospital on 2 June 2000 and returned to the prison on 11 July 2000.",
"34. The applicant ’ s mother also attended this hearing and informed the trial court of the applicant ’ s serious psychiatric problems. She asked for the applicant to be released from the prison. During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson (Article 516 § 7 of the Criminal Code) but to convict him of the offence of membership of an illegal organisation (Article 168 of the Criminal Code).",
"35. Nevertheless, the trial court ordered the applicant ’ s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity ( doli capax ) at the time of the alleged commission of the offence.",
"36. On 7 August 2000 the prison doctor reported on the problems which the applicant had been suffering in prison. According to this report, the applicant had attempted suicide in June 1999 by taking an overdose. In August 1999 he had set himself on fire and suffered extensive and serious burns. He had spent three months in hospital where he was treated for his injuries. During that time in hospital he had also received medication for depression. Following his return to the prison his treatment for the burns had continued for five months. His body still bore burn marks.",
"37. On 2 June 2000 the applicant ’ s psychological health had deteriorated and he was taken to hospital, where he stayed for a month and a half. His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone.",
"38. The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant ’ s treatment. The applicant needed to spend a considerable time in a specialised hospital.",
"39. During the 12th hearing, held on 10 October 2000, Ms Mükrime Avcı, one of the applicant ’ s legal representatives named above (see paragraph 2 ), submitted a power of attorney to the trial court and informed that court that she was taking over the applicant ’ s representation. Ms Avcı argued in her written observations submitted to the trial court the same day that the applicant had only been 15 years old at the time of his arrest. Turkey was a Party to the United Nations Convention on the Rights of the Child. Article 40 § 3 of that Convention recommended that the States Parties establish procedures and institutions specifically for children charged with criminal offences. Indeed, juvenile courts existed in Turkey. However, the applicant had been charged with an offence falling within the jurisdiction of State Security Courts and, as such, the domestic law prevented him from being tried by a juvenile court. Had the applicant been tried before a juvenile court, he would not have been kept in police custody for 12 days, a lawyer would have been appointed to represent him and his case would have been concluded within a short time.",
"40. The lawyer added that the ill-treatment to which the applicant had been subjected in police custody, coupled with his long detention in prison, had been too much to bear for a child of his age. He had attempted to take his own life on two occasions. He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings. The lawyer asked for the applicant to be released so that he could receive medical treatment.",
"41. The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of 25 July 2000 (see paragraph 35 above). The same day the trial court ordered the applicant ’ s release from prison on bail.",
"42. The applicant attended the 14 th hearing, held on 13 March 2001 and informed the trial court that, although he had gone to the hospital for a medical examination, the hospital authorities had refused to examine him as he had no official letter of referral. The trial court issued a new order of referral.",
"43. The applicant was examined at a psychiatric hospital on 25 April 2001. According to the report pertaining to that examination, other than the two instances referred to above (see paragraph 36 ), the applicant had made another attempt to kill himself, by slashing his wrists, in September 1998. The extensive burn marks on his arms and body were still visible. His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there. Between 2 June 2000 and 11 July 2000 he had been treated in hospital for “major depression”. His psychological problems were now in remission. It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility.",
"44. In its 1 6 th hearing, held on 22 May 2001, the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to eight years and four months ’ imprisonment. The trial court stated that the statements made by the applicant in police custody, and then before the prosecutor and the judge at the end of his police custody, had been decisive in reaching the conclusion that he was a member of the illegal organisation. In those statements the applicant had described the “various activities” in which he had been involved. The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets.",
"45. The applicant appealed. On 13 March 2002 the prosecutor at the Court of Cassation submitted his written observations to that court and asked for the applicant ’ s conviction to be upheld. These observations were not communicated to the applicant or to his lawyer.",
"46. In her detailed appeal submissions the applicant ’ s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle. As established by the trial court, however, no such incident had occurred and the owner of the vehicle had made no such complaint. There was no place in the Turkish legal system for abstract concepts such as “various activities” (see paragraph 44 above). For any activity to be relied on in evidence, it should have been set out clearly and supported with adequate evidence. Furthermore, the trial court ’ s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation ’ s leaflets. The lawyer also reiterated her arguments concerning the applicant ’ s age and her references to the United Nations Convention on the Rights of the Child (see paragraph 39 above).",
"47. On 20 May 2002 the Court of Cassation upheld the applicant ’ s conviction.",
"48. According to the information provided to the Court by the applicant ’ s lawyer, in 2002 the applicant left Turkey for Belgium, where he was subsequently granted refugee status."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"49. Article 125 of the Criminal Code as it stood at the material time provided that :",
"“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”",
"50. Article 168 of the Criminal Code provided:",
"“Any person who, with the intention of committing the offences defined in sections 125, 131, 146, 147, 149 or 156, forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years ’ imprisonment.",
"The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years ’ imprisonment.”",
"51. Article 516 of the Criminal Code provided:",
"“ Any person who destroys, demolishes, spoils or damages property owned by another person shall, upon the complaint of the aggrieved person, be sentenced to not less than one and not more than three years ’ imprisonment ... ”",
"According to paragraph 7 of this Article, if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle, the sentence to be imposed varied between three and seven years.",
"52. At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the State Security Courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days.",
"53. Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, persons under the age of 18 should be given the assistance of an officially assigned legal representative without having to ask for it. According to Article 31 of the above-mentioned Law no. 3842, however, Article 138 was not applicable to persons accused of offences within the jurisdiction of the State Security Courts.",
"54. According to Article 6 § 1 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law No. 2253 of 21 November 1979; repealed and replaced by Law No. 5395 of 15 July 2005 on the Protection of the Child), only juvenile courts had the power to try persons under the age of 15. According to the last paragraph of that Article, however, even children under the age of 15 charged with offences falling within the jurisdiction of State Security Courts were to be tried before those courts rather than before juvenile courts.",
"55. Article 37 of Law No. 2253 also stipulated that minors could only be detained on remand in prisons specially designed for them. In places where no such prisons existed, minors were to be kept in a part of a normal prison separate from where adults were detained. For the purposes of this Law the term “ minor ” means persons who were under 15 years of age at the time when the offence was committed.",
"56. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (dated 5 July 1967) stipulated that detainees under the age of 18 were to be kept separately from other detainees. Under Article 106 of the same Regulations, detainees had the possibility to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”.",
"57. Pursuant to the Law on the Protection of the Child, which on 15 July 2005 replaced the above-mentioned Law on the Establishment, Duties and Procedures of Juvenile Courts, persons under the age of 18 can only be tried before juvenile courts. However, if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults, the juvenile may be tried before the ordinary criminal courts together with those adults.",
"III. RELEVANT INTERNATIONAL TEXTS",
"58. The United Nations Convention on the Rights of the Child 1989 (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.",
"Article 1 of the UN Convention states:",
"“ For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. ”",
"Article 3( i ) states:",
"“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”",
"Article 37(a) and (b) provides:",
"“States Parties shall ensure that:",
"(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.",
"(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time",
"(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;",
"(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. ”",
"Article 40 provides as relevant:",
"“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the reintegration and the child ’ s assuming a constructive role in society.",
"2. To this end ... the States Parties shall, in particular, ensure that:",
"...",
"(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:",
"...",
"(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;",
"(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;",
"(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;",
"...",
"(vii.) To have his or her privacy fully respected at all stages of the proceedings.",
"... ”",
"59. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows:",
"“65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period.",
"66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”",
"60. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R ( 87 )2 0), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, insofar as relevant, reads as follows:",
"“Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ...",
"7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”",
"61. Article 17 of the European Social Charter 1961 regulates the right of mothers and children to social and economic protection. In that context, the European Committee of Social Rights noted in its Conclusions XVII-2 (2005, Turkey ) that the length of pre-trial detention of young offenders was long and the conditions of imprisonment poor.",
"62. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “ as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons ” (CPT/ Inf ( 99) 2 EN, publication date: 23 February 1999 ).",
"63. In its report prepared in respect of its visits conducted in Turkey between 16 and 29 March 2004 (CPT/ Inf (2005) 18), the CPT stated the following:",
"“[ i ] n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (“the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities”) have apparently had little practical impact. ”",
"64. According to UNICEF, the juvenile justice system is still in its infancy in Turkey in 2008. Judges were learning about child-sensitive detention centres, alternative dispute resolution and due process for children in conflict with the law.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"65. Relying on Article 3 of the Convention the applicant complained that his trial before the Istanbul State Security Court, coupled with his detention together with adults, had caused him mental suffering. Article 3 of the Convention provides as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"66. The Government contested that argument.",
"A. Admissibility",
"67. Referring to the Regulations on Prison Administration and Execution of Sentences (see paragraph 56 above), the Government maintained that the applicant had failed to exhaust domestic remedies because neither he nor his lawyer had lodged a complaint under Article 106 of the Regulations to complain about the applicant ’ s detention with adults. The Government also pointed out that it would have been possible for the applicant to bring his complaints to the attention of the trial court or the Court of Cassation.",
"68. The applicant responded that, in view of the unambiguous wording of the domestic regulations and relevant international conventions, the authorities had been under an obligation to keep him separately from adult detainees. Since the applicable domestic legislation clearly anticipated the potential dangers to the well-being of a child of the age he had been at the time, it was not justifiable for the Government to argue that the judges and the prison authorities had been ignorant of those dangers when detaining him in an adult prison.",
"69. The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38).",
"70. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 52 ).",
"71. The Court further notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, § 69).",
"72. The Court notes that the applicant was arrested on 30 September 1995 and detained in police custody for a period of twelve days during which, pursuant to domestic legislation in force at the time, he did not have access to a lawyer or to any member of his family (see paragraph 53 in fine above). At the end of that police custody on 12 October 1995 he was questioned by a prosecutor and a judge, again in the absence of a lawyer. The same day the judge ordered his detention in prison. In these circumstances, the Court considers it unrealistic to expect a fifteen - year - old person, who had just been released from twelve days of incommunicado police custody, to refer to the Regulations on Prison Administration and Execution of Sentences and ask to be detained separately from adult prisoners.",
"73. Furthermore, the Court observes that, when ordering the applicant ’ s detention in prison, the judge had in his possession information showing the applicant ’ s date of birth. It appears, therefore, that although the judge was aware that the applicant was only fifteen years of age, he acted in complete disregard of the applicable procedure by ordering the applicant ’ s detention in an adult prison.",
"74. The first time the applicant was represented by a lawyer was during the third hearing, which was held on 18 April 1996, that is, some six months after his detention in prison had been ordered (see paragraph 18 above). In the course of those six months the trial court did not only allow the applicant to be unrepresented by a lawyer, but also on two occasions ordered his continued detention in the prison (see paragraphs 15-17 above).",
"75. The lawyer who represented the applicant between 18 April 1996 and 10 October 2000, for her part, manifestly failed to defend the applicant adequately. As well as not attending 17 of the 25 hearings, she also failed to inform the trial court of the psychological problems faced by the applicant in the prison or his three attempts to kill himself.",
"76. In the end, it was the applicant ’ s fellow inmates who became aware of that lawyer ’ s failure to represent the applicant adequately and took the initiative to inform the trial court about the medical problems faced by the applicant (see paragraph 32 above).",
"77. The existence of the applicant ’ s problems was confirmed by the prison doctor in his report of 7 August 2000. In that report the doctor informed the trial court that the applicant had set himself on fire, slashed his wrists and taken an overdose and that he had been in and out of hospital on a number of occasions. The doctor also informed the trial court that the situation in the prison was unsatisfactory for the applicant ’ s treatment; he needed to spend a considerable time in a specialised hospital (see paragraph 38 above).",
"78. Even after having been informed about the applicant ’ s medical problems and the unsuitability of the prison for their treatment, the trial court ordered the applicant ’ s continued detention in prison.",
"79. In the present case the Government have not submitted any documents or other evidence showing that the remedy referred to by them was effective for the purposes of Article 35 § 1 of the Convention. Having regard to the widespread practice of detaining minors in adult prisons in Turkey as highlighted in the reports of certain international organisations (see paragraphs 59-64 above), the Court has doubts about the effectiveness of that remedy.",
"80. In any event, the Court considers that the special circumstances described above absolved the applicant from the requirement to exhaust domestic remedies in respect of his complaints under Article 3 of the Convention. Consequently, this complaint cannot be rejected for non-exhaustion of domestic remedies.",
"81. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and finds no other ground to declare it inadmissible. It must therefore be declared admissible.",
"B. Merits",
"82. Referring to the Court ’ s case-law under Article 3 of the Convention, the applicant submitted that the Contracting Parties were under an obligation to take measures to ensure that individuals within their jurisdiction were not subjected to ill-treatment. Such measures should provide effective protection particularly in respect of children and other vulnerable persons and they should include the taking of reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.",
"83. In his case the respondent State had failed, notwithstanding its obligations both under its own domestic legislation and under international conventions to which it was a party, to provide effective protection against the severity of the applicant ’ s arbitrary detention in an adult prison where he was kept with adults for a period of over five years. Furthermore, for the first eighteen months of that period he had been tried for an offence carrying the death penalty. As he was being tried for an offence falling within the jurisdiction of the State Security Courts, he had been subjected to a severely limited visiting regime in the prison. He had not, for example, had the opportunity to have open visits with his family. The conditions of his detention had adversely affected his mental health and had led him to attempt suicide.",
"84. He complained that the above - mentioned problems, coupled with his trial before the Istanbul State Security Court, had caused him psychological suffering amounting to inhuman and degrading treatment.",
"85. The applicant further complained that during his time in prison he had not been provided with adequate medical care, notwithstanding the seriousness of his health problems. In his opinion, the failure to release him, at least temporarily, to enable him to obtain adequate medical care had also amounted to inhuman treatment contrary to Article 3 of the Convention.",
"86. In support of his complaints the applicant referred to the CPT reports ( see paragraphs 62-63 above ) in which the CPT expressed its misgivings as regards the policy of detaining juveniles in adult prisons in Turkey.",
"87. The Government did not dispute that the applicant had been kept in prison together with adults. Referring to the medical report of 25 April 2001 (see paragraph 43 above), they maintained that the applicant had not suffered any mental problems which would have exempted him from being criminally liable for his actions. They also argued that the ill-treatment allegedly suffered by the applicant had not attained the minimum level of severity falling within the scope of Article 3 of the Convention.",
"88. The Court observes at the outset that the applicant ’ s detention in an adult prison was in contravention of the applicable Regulations which were in force at the time (see paragraph 56 above) and which reflected Turkey ’ s obligations under International Treaties (see paragraph 58 above).",
"89. It further observes that, according to the medical report drawn up on 25 April 2001 (see paragraph 43 above), the applicant ’ s psychological problems had begun during his detention in the prison and worsened in the course of his five-year detention there. The medical reports of 24 July 2000 and 7 August 2000 also detailed the serious medical problems from which the applicant was suffering in the prison. The Court considers that the fact that the applicant was found to be fit for trial and his psychological problems to be in remission some six months after his release from the prison does not alter the seriousness of the medical problems he experienced whilst detained.",
"90. As pointed out by the Government, ill-treatment must attain the minimum level of severity for it to fall within the scope of Article 3 of the Convention (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, § 162). The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports 1998-IV, § 52).",
"91. In the present case, the Court disagrees with the Government ’ s submissions that the applicant ’ s problems did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention. The applicant was only fifteen years old when he was detained in a prison where he spent the next five years of his life together with adult prisoners. For the first six and a half months of that period he had no access to legal advice. Indeed, as detailed above (see paragraphs 74 and 75 above), he did not have adequate legal representation until some five years after he was first detained in prison. These circumstances, coupled with the fact that for a period of eighteen months he was tried for an offence carrying the death penalty, must have created complete uncertainty for the applicant as to his fate.",
"92. The Court considers that the above-mentioned features of his detention undoubtedly caused the applicant ’ s psychological problems which, in turn, tragically led to his repeated attempts to take his own life.",
"93. The Court further considers that the national authorities were not only directly responsible for the applicant ’ s problems, but also manifestly failed to provide adequate medical care for him. There are no documents in the file to indicate that the trial court was informed about the applicant ’ s problems and his suicide attempts until the summer of 2000 (see paragraphs 32 and 36 above). Nor are there any documents in the file to show that the trial court showed any concern for the applicant when he repeatedly failed to turn up for the hearings. In fact, the first time the trial court was informed about the applicant ’ s problems was not by any official responsible for prisoners – such as a prison governor or a prison doctor – all of whom were aware of these problems, but by the applicant ’ s cell-mates (see paragraph 32 above). It was those cell-mates who also forwarded the prison doctor ’ s medical report to the trial court (see paragraph 33 above).",
"94. According to that report, the prison was not an adequate place for the applicant ’ s treatment; he needed to spend a considerable time in a specialist hospital (see paragraph 38 above). The Court notes with regret that that information provided by the prison doctor did not spur the trial court into action to ensure adequate medical care for the applicant. The only step taken by the trial court was to refer the applicant to a hospital – not for treatment for his medical problems but for a medical examination with a view to establishing whether he had had the necessary criminal capacity ( doli capax ) when he allegedly committed the offence with which he had been charged (see paragraph 35 above).",
"95. Indeed, as pointed out by the applicant, the trial court not only failed to ensure that he received medical care, but even prevented him and his family from doing so by refusing to release him on bail for an additional period of two and a half months (see paragraphs 35 and 41 above).",
"96. At this juncture the Court reiterates that, although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002 ‑ IX and the cases cited therein). As set out above, the authorities did not acquit themselves of that obligation.",
"97. It must also be noted that no action appears to have been taken, notwithstanding the applicant ’ s psychological problems and his first suicide attempt, to prevent him from making any further such attempts (see, in this connection, Keenan v. the United Kingdom, no. 27229/95, § § 112-116, ECHR 2001 ‑ III ).",
"98. Having regard to the applicant ’ s age, the length of his detention in prison together with adults, the failure of the authorities to provide adequate medical care for his psychological problems, and, finally, the failure to take steps with a view to preventing his repeated attempts to commit suicide, the Court entertains no doubts that the applicant was subjected to inhuman and degrading treatment. There has accordingly been a violation of Article 3 of the Convention.",
"99. The Court considers it unnecessary to examine separately the complaint that the applicant ’ s trial by a State Security Court had also amounted to ill-treatment within the meaning of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 13 OF THE CONVENTION",
"100. The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand was excessive. He further contended under Article 13 of the Convention that there were no remedies in domestic law to challenge the length of his detention on remand. The Court considers that the complaint formulated under Article 13 of the Convention should be examined solely from the standpoint of Article 5 § 4 of the Convention. Article 5 § 3 and 4 provide as follows:",
"“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"101. The Government contested these arguments and maintained that the applicant had been detained as a remand prisoner between 30 September 1995 and 17 October 1997. After that latter date he had been serving his prison sentence and was therefore no longer on remand.",
"102. The Court observes that the applicant ’ s detention, for the purposes of Article 5 § 3 of the Convention, began when he was arrested on 30 September 1995 and continued until he was convicted by the trial court on 17 October 1997. From 17 October 1997 until his conviction was quashed by the Court of Cassation on 12 March 1998, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 ( see Solmaz v. Turkey, no. 27561/02, § 34, ECHR 2007 ‑ II (extracts) and the cases cited therein ). From 12 March 1998 until his release on bail on 10 October 2000, however, the applicant was once more in pre-trial detention for the purposes of Article 5 § 3 of the Convention. It follows that the applicant spent a total of four years, seven months and fifteen days as a remand prisoner.",
"A. Admissibility",
"103. The Government argued that the applicant could not claim to be a victim of a violation of Article 5 § 3 of the Convention because the time spent by him on remand was subsequently deducted from the sentence imposed on him by the trial court on 22 May 2001 (see paragraph 44 above).",
"104. The Court has already examined similar submissions made by the respondent Government in other cases (see, for example, Arı and Şen v. Turkey, no. 33746/02, § 19, 2 October 2007 and the cases cited therein) and concluded that the deduction of the time spent in prison as a remand prisoner from the later sentence could not eliminate a violation of Article 5 § 3. In the present case the Government have not submitted any arguments which could lead the Court to reach a different conclusion. Accordingly, the Government ’ s objection to the applicant ’ s victim status must be rejected.",
"105. The Court considers that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. Article 5 § 3 of the Convention",
"106. The Government argued that there had been a genuine requirement of public interest for the continued detention of the applicant, who had been charged with a serious offence. There had also been a high risk of him escaping or destroying the evidence against him.",
"107. The applicant maintained his allegations.",
"108. The Court observes that the Government, beyond arguing that the applicant ’ s detention was justified on account of the offence with which he was charged, did not argue that alternative methods had been considered first and that his detention had been used only as a measure of last resort, in compliance with their obligations under both domestic law and a number of international conventions (cf. for example Nart v. Turkey, no. 20817/04, § 22, 6 May 2008). Nor are there any documents in the file to suggest that the trial court, which ordered the applicant ’ s continued detention on many occasions, at any time displayed concern about the length of the applicant ’ s detention. Indeed, the lack of any such concern by the national authorities in Turkey as regards the detention of minors is evident in the reports of the international organisations cited above (paragraphs 61-64).",
"109. In at least three judgments concerning Turkey, the Court has expressed its misgivings about the practice of detaining children in pre-trial detention (see Selçuk v. Turkey, no. 21768/02, § 35, 10 January 2006; Koşti and Others v. Turkey, no. 74321/01, § 30, 3 May 2007; and Nart v. Turkey, cited above, § 34) and found violations of Article 5 § 3 of the Convention for considerably shorter periods than that spent by the applicant in the present case. For example, in Selçuk the applicant had spent some four months in pre-trial detention when he was sixteen years old and in Nart the applicant had spent forty - eight days in detention when he was seventeen years old. In the present case, the applicant was detained from the age of fifteen and was kept in pre-trial detention for a period in excess of four and a half years.",
"110. In the light of the foregoing, the Court considers that the length of the applicant ’ s detention on remand was excessive and in violation of Article 5 § 3 of the Convention.",
"2. Article 5 § 4 of the Convention",
"111. The Government submitted that the applicant did in fact have the possibility of challenging his pre-trial detention by lodging objections pursuant to Articles 297-304 of the Code of Criminal Procedure ( compare Bağrıyanık v. Turkey, no. 43256/04, § 19, 5 June 2007 ).",
"112. The Court has already examined the possibility of challenging the lawfulness of pre-trial detention in Turkey at the relevant time and concluded that it offered little prospect of success in practice and that it did not provide for a procedure that was genuinely adversarial for the accused (see Koşti, cited above, § 22; Bağrıyanık, cited above, §§ 50-51; and Doğan Yalçın v. Turkey, no. 15041/03, § 43, 19 February 2008 ). The Court finds no particular circumstances in the instant case which would require it to depart from its previous findings.",
"113. In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention.",
"III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION",
"114. Under Article 6 § 1 of the Convention, the applicant alleged that",
"- he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the Istanbul State Security Court which had tried and convicted him;",
"- the criminal proceedings against him had not been concluded within a reasonable time;",
"- the principle of equality of arms had been violated on account of his inability to respond to the public prosecutor ’ s submissions since he had been a minor, suffering from psychological problems;",
"- the written observations of the principal public prosecutor at the Court of Cassation had not been served on him; and that",
"- the judgment of the Istanbul State Security Court had been arbitrary and lacked reasoning.",
"115. The applicant also alleged a violation of Article 6 § 2 of the Convention because the bill of indictment drafted by the public prosecutor at the Istanbul State Security Court had been based on a report prepared by the security forces. He further maintained under the same head that the excessive length of his detention on remand had violated his right to the presumption of innocence.",
"116. The applicant complained under Article 6 § 3 of the Convention that he had not been informed of the charges against him and that he had been deprived of his right to have adequate time and facilities for the preparation of his defence. Although he had been unable to defend himself, he had not been appointed a lawyer. The relevant parts of Article 6 of the Convention provide as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"...”",
"117. The Government contested the applicant ’ s arguments and maintained that his trial had been fair.",
"A. Admissibility",
"118. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"119. The applicant submitted that at the time of his arrest he had only been 15 years of age, and that he had been kept in police custody for a period of 13 days and questioned there without the assistance of a lawyer. He had subsequently been tried for an offence carrying the death penalty and his mental stability had deteriorated over time. He had not been able to attend a large number of the hearings because of injuries resulting from his suicide attempts and because of his psychological problems. He had not had the assistance of a lawyer or a psychologist to cope with such an onerous trial and he had not had the opportunity to examine the case or adduce evidence in his favour.",
"120. In respect of the above, and referring to the judgments in the cases of T. v. the United Kingdom [GC] ( no. 24724/94, 16 December 1999 ) and V. v. the United Kingdom [GC] ( no. 24888/94, ECHR 1999 ‑ IX ), the applicant complained that he had been deprived of the opportunity to participate effectively in his trial.",
"121. The Government submitted that the police had reminded the applicant of the charges against him and his rights. Furthermore, he had benefited from the assistance of a legal representative right from the beginning of the proceedings.",
"122. The Court observes that in a number of applications against Turkey involving a complaint of an alleged lack of independence and impartiality on the part of State Security Courts, the Court has limited its examination to that aspect alone, not deeming it necessary to address any other complaints relating to the fairness of the impugned proceedings ( see, inter alia, Ergin v. Turkey (No. 6), no. 47533/99, § 55, 4 May 2006 ). However, the Court deems it necessary to put this well - rehearsed approach aside in the instant case because the particularly grave circumstances of the application present more compelling issues involving the effective participation of a minor in his trial and the right to legal assistance.",
"123. The Court reiterates that the right of an accused under Article 6 of the Convention to participate effectively in his or her criminal trial generally includes not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained, in particular, in sub-paragraph (c) of paragraph 3 of Article 6 – “to defend himself in person”.",
"124. “Effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed (see, most recently, Timergaliyev v. Russia, no. 4 0631/02, § 51, 14 October 2008, and the cases cited therein ). It also requires that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to defence counsel his or her version of events, point out any statements with which he or she disagrees and make the trial court aware of any facts which should be put forward for the defence (see Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, § 30).",
"125. The applicant in the present case was arrested on 30 September 1995 and subsequently charged with an offence for which the only punishment foreseen was the death penalty. Despite his very young age, the legislation applicable at the time prevented the applicant from having his trial conducted before a juvenile court (see paragraph 54 above) and from having a lawyer appointed for him by the State (see paragraph 53 above).",
"126. He was not represented by a lawyer until 18 April 19 96, that is some six and a half months after he was arrested. While he remained unrepresented he was questioned by the police, a prosecutor and a duty judge, indicted, and then questioned by the trial court (see paragraphs 7, 11 ‑ 13 and 16- 17; see also Salduz v. Turkey [GC], no. 36391/02, §§ 50-63, 27 November 2008 concerning the absence of legal representation for a minor in police custody).",
"127. Fourteen hearings were held in the course of the first trial and 16 in the retrial. The applicant did not attend at least 14 of those hearings. He claimed that his failure to attend had been due to his health problems. This claim, which is supported by medical evidence (see paragraphs 32, 33 and 36 ‑ 38 above ), was not disputed by the Government. Furthermore, as pointed out above, the trial court did not entertain any concerns about the applicant ’ s absences from the hearings or take steps to ensure his attendance.",
"128. In these circumstances the Court cannot consider that the applicant was able to participate effectively in the trial. Furthermore, for the reasons set out below, the Court does not consider that the applicant ’ s inability to participate in his trial was compensated by the fact that he was represented by a lawyer from 18 April 1996 onwards ( contrast Stanford, cited above, § 3 0).",
"129. The lawyer, who declared during the third hearing, held on 18 April 1996, that she would be representing the applicant from then on, failed to attend 17 of the 25 hearings. In fact, in the course of the retrial this particular lawyer attended only one of the hearings, held on 18 March 1999. During the crucial final stages of the retrial from 18 March 1999 until he was represented by Ms Avcı on 10 October 2002 (see paragraph 39 above) the applicant was completely without any legal assistance.",
"130. At this juncture the Court reiterates its established case-law according to which the State cannot normally be held responsible for the actions or decisions of an accused person ’ s lawyer (see Stanford, cited above, § 28) because the conduct of the defence is essentially a matter between the defendant and his counsel, whether appointed under a legal-aid scheme or privately financed (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002 ‑ VIII; see also Bogumil v. Portugal, no. 35228/03, § 46, 7 October 2008 ). Nevertheless, in case of a manifest failure by counsel appointed under the legal aid scheme to provide effective representation, Article 6 § 3 (c) of the Convention requires the national authorities to intervene ( ibid ).",
"131. In the present case the lawyer representing the applicant was not appointed under the legal aid scheme. Nevertheless, the Court considers that the applicant ’ s young age, the seriousness of the offences with which he was charged, the seemingly contradictory allegations levelled against him by the police and a prosecution witness (see paragraphs 8, 18, 28 and 29 above), the manifest failure of his lawyer to represent him properly and, finally, his many absences from the hearings, should have led the trial court to consider that the applicant urgently required adequate legal representation. Indeed, an accused is entitled to have a lawyer assigned by the court of its own motion “when the interests of justice so require” (see Vaudelle v. France, no. 35683/97, § 59, ECHR 2001-I).",
"132. The Court has had regard to the entirety of the criminal proceedings against the applicant. It considers that the shortcomings highlighted above, including in particular the de facto lack of legal assistance for most of the proceedings, exacerbated the consequences of the applicant ’ s inability to participate effectively in his trial and infringed his right to due process.",
"133. There has, therefore, been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c).",
"IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"134. The applicant complained that he had not had an effective remedy, within the meaning of Article 13 of the Convention, in respect of his complaints under Article 6 of the Convention. Finally, relying on Article 14 of the Convention the applicant alleged that he had been discriminated against because he had been tried by a State Security Court instead of a juvenile court.",
"135. The Court considers that these complaints may be declared admissible. However, having regard to the violations found above the Court deems it unnecessary to examine these complaints separately on the merits.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"136. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"137. The applicant submitted that, at the time of his arrest, he had been working and earning approximately 200 euros (EUR) per month. As a result of his arrest and detention he had been unable to work for a period of five years and one month. Thus, his lost earnings, together with interest, had amounted to EUR 32,000. He claimed that this amount should be awarded to him in respect of pecuniary damage.",
"138. The applicant also claimed EUR 103,000 in respect of non-pecuniary damage.",
"139. The Government contested the claims.",
"140. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to the particularly grave circumstances of the present case and the nature of the multiple violations found, it awards the applicant EUR 4 5 ,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"141. The applicant also claimed 6,050 Turkish liras (approximately EUR 3,735 at the time of the submission of the claim in 2006) for the costs and expenses incurred before the domestic courts, and 79,670 Turkish liras (EUR 49,200) for those incurred before the Court. In support of his claim the applicant submitted a schedule of costs, showing the hours spent by his two lawyers on the case.",
"142. The Government considered the sums to be excessive and unsupported by adequate documentation.",
"143. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000, less EUR 850 received by way of legal aid from the Council of Europe - a total of EUR 4, 150 - covering costs under all heads,",
"C. Default interest",
"144. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
218 | Dushka v. Ukraine | 3 February 2011 | This case concerned the unlawful detention and questioning without a lawyer of a 17-year-old’s. The applicant alleged that he was tortured in police custody in order to make him confess to a robbery. | The Court found that such practice, especially given the applicant’s vulnerable age, qualified as inhuman and degrading treatment, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In particular the fact that the confession had been made in a setting lacking such procedural guarantees as the presence of a lawyer, and had then been retracted upon release, pointed to the conclusion that it might not have been given freely. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in 1985 and lived in Bilgorod-Dnistrovsky.",
"A. Proceedings against the applicant",
"7. In the early morning on 18 November 2002, responding to P.'s complaint about having been robbed, the police arrived in a bar and arrested the applicant, a minor at the material time, and V., his acquaintance, and took them to the police station for questioning. The applicant explained that he knew nothing about the robbery and left the police station. It is unclear whether he was officially released.",
"8. At about noon on 18 November 2002 the applicant was arrested when walking down a street. According to the applicant, he was seized by force by two policemen dressed in civilian clothes, without any explanations. According to the police officers, they invited him for questioning concerning P.'s robbery and he swore at them and attempted to escape, making it necessary to arrest him by force.",
"9. On the same date the applicant was charged with refusal to comply with the lawful demands of the police officers, presented before the Bilgorod-Dnistrovsky Court without his parents being informed or a lawyer being appointed, and sentenced to seven days'administrative detention.",
"10. On 19 November 2002 the police formally initiated criminal proceedings concerning P.'s robbery.",
"11. On 21 November 2002 the Bilgorod-Dnistrovsky Court reviewed the applicant's sentence after an objection from the Bilgorod-Dnistrovsky Prosecutor, reduced it to three days'detention and ordered the applicant's release. Subsequently (on 4 January 2003) the President of the Odessa Regional Court of Appeal quashed the decisions of 18 and 21 November 2002 by way of supervisory review, having found that the applicant should not have been subjected to administrative detention as he was a minor. He did find, however, that the applicant's malicious insubordination rendered him liable to a fine of 136 hryvnias (UAH).",
"12. Before his release on 21 November 2002, the applicant was questioned concerning P.'s robbery, in the presence of his mother and a lawyer appointed by the police, and confessed to having participated in the robbery.",
"13. Following his release, the applicant hired a new lawyer and retracted his confessions. He alleged that he had neither participated in, nor witnessed P.'s alleged robbery and that his previous confessions had been made under duress. He further explained that on 21 November 2002 he had confirmed his confession in presence of his mother and the advocate because the police had threatened that otherwise he would not be released from detention.",
"14. In December 2003 the applicant was committed for trial on charges of robbery. On 3 May 2005 the Bilgorod-Dnistrovsky Court remitted his case for additional investigation. The parties did not provide any further information concerning the outcome of the criminal proceedings.",
"B. The applicant's alleged ill-treatment and the investigation into his ill-treatment complaint",
"15. According to the applicant, while he was serving his administrative detention sentence he was severely ill-treated by police officers, who tried to make him confess to participating in P.'s robbery. In particular, he was handcuffed to a radiator and beaten on the head and body with a plastic water bottle. On several occasions the applicant lost consciousness. As a result of the ill-treatment, on 18 and 19 November 2002 the applicant, who had not been given access to either a lawyer or his parents, wrote self-incriminating statements, dictated by the police. By way of evidence that he was so questioned, the applicant presented copies of his confession statements dated 18 and 19 November 200 2. These documents contained his and the law-enforcement officers'signatures only (no signatures of an advocate or a minor's legal representative) and a seal of the Bilgorod ‑ Dnistrovsky Prosecutor's Office.",
"16. According to the Government, no investigative actions in the applicant's respect took place during his administrative detention.",
"17. According to the applicant, on 22 November 2002 he complained to the Bilgorod-Dnistrovsky and Odessa Regional Prosecutors'Offices that he had been ill-treated by the police, but he was denied referral to a forensic expert to assess his injuries.",
"18. On 23 November 2002 the Internal Security Service of the Ministry of the Interior agreed to provide the applicant with the necessary referral. On the same day the applicant underwent a forensic examination and was found to have minor bodily injuries. In particular, the expert found that the applicant suffered from abrasions and bruises on different parts of his body, a haematoma, situational neurosis, cephalalgia and a possible kidney contusion, which could have been sustained on 18 November 2002.",
"19. Between 26 November and 20 December 2002 the applicant received in-patient treatment for his injuries and stress in the Bilgorod ‑ Dnistrovsky District Hospital. Subsequently (in 2003-2 004 ) the applicant also underwent medical treatment for depression and chronic pyelonephritis, conditions which, according to him, were caused by head and kidney injuries sustained at the hands of the police and related stress.",
"20. On various dates between 22 November 2002 and 1 April 2003 the applicant's mother complained about his ill-treatment to various authorities, including the ombudsman and the President of Ukraine, in various informal ways. However, it appears that no formal action followed.",
"21. On 1 April 2003 the applicant lodged an official request with the Bilgorod-Dnistrovsky Inter-District Prosecutor's Office to institute criminal proceedings in respect of his ill-treatment.",
"22. On 11 April 2003 the prosecutor's office refused to initiate the criminal proceedings, having found that there was no evidence of ill ‑ treatment. It noted, in particular, that on the morning of 18 November 2002 the applicant had left the police station without authorisation and that at noon on the same day he had refused to follow the police officers who invited him to report for questioning, had sworn at them, pushed them and attempted to escape. His arrest and the bringing of insubordination charges had therefore been justified. Moreover, during his detention the applicant had never requested medical assistance and upon his release he had signed a document stating that he had no claims against the police. No investigative measures in the applicant's respect had been taken during the period of his detention.",
"23. On 15 April 2003 the Deputy Head of the Bilgorod-Dnistrovsky Department of the Ministry of the Interior conducted an internal investigation and concluded that there was no ill-treatment case to answer. In particular, the only force applied to the applicant had been during his arrest and in response to his attempt to escape. He further noted that during the applicant's detention no investigative action had been taken in his respect. On 18 September 2003 and 1 April 2004 two other internal investigations were carried out and similar conclusions were reached.",
"24. On 10 January 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision refusing to initiate criminal proceedings concerning the applicant's ill-treatment complaint. It noted that the applicant had fallen to the ground on several occasions while trying to escape. It made no conclusions, however, as to whether or not these falls were the cause of the applicant's injuries. On the same date that decision was quashed by the Odessa Regional Prosecutor's Office and the case was remitted for additional investigation.",
"25. In the meantime, having been notified of the decision of 11 April 2003 in October 2003, the applicant appealed against it before the Bilgorod ‑ Dnistrovsky Court. He noted, in particular, that the prosecutor's office had not questioned him, his relatives or any witnesses to his arrest concerning the events in question. It also failed to respond to his allegation that there was no legal basis for the demand to appear for questioning and his ensuing arrest at noon on 18 November 2002. If the police officers had wanted to question him about P.'s robbery, according to the applicable law they should have issued a summons and informed his parents. This procedure had not been complied with; the police had unlawfully demanded that he follow them, so he should not have been convicted of insubordination. Further, the prosecutor's office had not reacted to the fact that the applicant's administrative detention had been unlawful as he had been a minor at the material time. In addition, the authorities had wrongly stated that no investigative action involving the applicant had been taken during his detention. In particular, on 18 and 19 November 2002 he had made self-incriminating statements.",
"26. On 15 January 2004 the Bilgorod-Dnistrovsky City Court annulled the decision of 11 April 2003. It stated, in particular, that the investigation had been perfunctory and that the prosecution had failed to establish the cause of the applicant's injuries. It further noted that the allegation that the applicant had not been questioned concerning P.'s robbery during his detention contradicted the factual evidence contained in the case-file materials.",
"27. On 9 February and 2 March 2004 the Bilgorod-Dnistrovsky Prosecutor's Office again refused to institute criminal proceedings into the applicant's ill-treatment allegations, relying on essentially the same arguments as above.",
"28. On 20 February and 6 March 2004 respectively those decisions were set aside by the Odessa Regional Prosecutor's Office and the General Prosecutor's Office, and the case was remitted for further investigation. The General Prosecutor's Office noted, in particular, that the investigation had not determined what legal basis there had been for the police officers'initial demand of 18 November 2002 that the applicant report for questioning, or whether the applicant's reaction vis-à-vis the police necessitated his arrest and the use of force against him. Further, the authorities had not questioned the applicant or the medical expert who had examined his injuries and had not verified the police officers'version that the applicant had fallen several times while trying to escape.",
"29. On 22 March 200 4 the Odessa Regional Prosecutor's Office also addressed a letter to the Bilgorod-Dnistrovsky Prosecutor, alerting him that the investigation was perfunctory and one-sided. In particular, it was largely based on the explanations given by the police officers, without any other measures being taken to establish the real facts. It further invited the Bilgorod-Dnistrovsky Prosecutor to facilitate “a proper and professional investigation”.",
"30. On 5 April 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, which was set aside by the Odessa Regional Prosecutor's Office on 15 November 2004 and followed by a new refusal on 14 December 2004.",
"31. On 27 January 2005 the Odessa Regional Forensic Experts Bureau re-assessed the applicant's injuries as being of'intermediate gravity'. In particular, it concluded that his depressive disorders and pyelonephritis could be connected to a traumatic experience in November 2002. It further concluded that, in view of their number and location, the injuries concerned could not have been sustained as a result of a single fall. It was likely that the injuries at issue had been caused by multiple impacts with blunt objects, such as a fist, a foot or the like.",
"32. Following this assessment, on 5 September 2 005 the Bilgorod ‑ Dnistrovsky District Court set aside the decision of 2 March 2004 refusing to initiate criminal proceedings (which had already been annulled by the General Prosecutor's Office on 6 March 2004) and ordered further investigation.",
"33. On 23 March 2006 the Bilgorod-Dnistrovsky Prosecutor's Office refused to comply with the court's instructions, finding that further to the annulment of the decision of 2 March 2004 by the General Prosecutor's Office, it had already carried out additional investigations, and its last decision of 14 December 2004 was valid.",
"34. On 26 May 2006 the Odessa Regional Prosecutor's Office annulled that decision and ordered further investigation.",
"35. On 5 June 2006 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, relying essentially on the same arguments as in its previous refusals."
] | [
"II. RELEVANT DOMESTIC LAW",
"36. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine ( no. 75520/01, §§ 39-42, 6 December 2007).",
"THE LAW",
"I. PRELIMINARY OBSERVATION",
"37. The applicant died on 4 March 200 5, while the case was pending before the Court (see paragraph 4 above).",
"38. The Government submitted that the applicant's mother can pursue the proceedings after the applicant's death as his close relative. She, however, cannot be considered the victim of violations of the Convention in his respect.",
"39. The Court finds that while the applicant's mother has not been directly affected by the violations of the Convention complained about by the applicant, following his death she has standing to pursue the present proceedings on his behalf (see Toteva v. Bulgaria, no. 42027/98, § 45, 19 May 2004, and Yakovenko v. Ukraine, no. 15825/06, § 65, 25 October 2007). However, reference will still be made to the applicant throughout the ensuing text.",
"II. ALLEGED ILL-TREATMENT AND INEFFECTIVE INVESTIGTION OF THE ILL-TREATMENT COMPLAINT",
"40. The applicant complained that he had been ill-treated by police officers whilst in custody in November 2002, to obtain his confession that he had participated in P.'s robbery. He further complained that there had been no effective investigation into his complaint of ill-treatment. The applicant relied on Articles 3 and 13 of the Convention.",
"41. The relevant Articles of the Convention read as follows:",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Article 13",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"A. Admissibility",
"42. The Government submitted that the applicant's complaint of ill ‑ treatment was inadmissible for non-exhaustion of domestic remedies, as the applicant's mother had never appealed against the prosecutor's office's refusal of 5 June 2006 to institute criminal proceedings into his ill-treatment complaint.",
"43. The applicant insisted that between November 2002 and June 2006 he had lodged numerous complaints with various competent authorities, all to no avail, as the prosecutor's office was plainly unwilling to conduct a real investigation. The investigation had therefore been ineffective and it was futile to appeal against a further refusal to investigate his complaint.",
"44. The Court considers that the Government's objection raises an issue which falls to be examined under Article 3 of the Convention together with the complaint about the ineffectiveness of the investigation, and accordingly joins it to the merits of the applicant's complaint.",
"B. Merits",
"1. Submissions of the parties",
"45. The applicant alleged that he had sustained permanent health damage as a result of his ill-treatment by the police. In particular, he suffered from chronic pyelonephritis and the after-effects of a head injury, including depression and suicidal thoughts. He maintained that his injuries had been inflicted on him by the police when they questioned him on 18 and 19 November 2002 in the absence of his parents or a lawyer. The applicant further submitted that under duress he had first made a self-incriminating statement on 18 November 2002, and that he had confirmed it on 21 November 2002 in the presence of his mother and a lawyer, because the police had threatened not to release him otherwise. After recovering from the stress and hiring a new lawyer upon his release, the applicant had retracted his confession.",
"46. The applicant further submitted that immediately upon his release he had notified various authorities, including the local prosecutor's office, of the unlawful conduct of the police officers in his respect. The prosecutor's office, however, had refused to take note of his complaint or even to refer him for a forensic examination of his injuries. It was only a day later (23 November 2002) that he managed to obtain such a referral from the Internal Security department of the local police, which was not competent to investigate his complaint. He further alleged that the prosecutor's office was unwilling to investigate the real circumstances in which he had sustained his injuries. This fact was witnessed by the numerous refusals to institute criminal proceedings, which relied primarily on mere statements by the police officers involved denying any ill-treatment, without the reason for the injuries being established. The applicant also alleged that the prosecutor's office had regularly delayed in informing him of its decisions rejecting his complaints, making it hard for him to appeal against them.",
"47. The Government objected to these arguments. They stated, in particular, that the applicant had not been questioned concerning the robbery during his stay in custody. He had confessed to the robbery in the presence of his mother and a lawyer. Upon his placement in the detention centre, the applicant had been medically examined and found to have no injuries. The injuries complained of could have been sustained under various circumstances, after his release, including falls to the ground or blows from blunt objects, for example. It was not until 1 April 2003 that the applicant had lodged a formal request to initiate criminal proceedings against the police officers. Notwithstanding the lapse of time, the prosecutor's office had taken all necessary measures to investigate the possible ill-treatment and dismissed the applicant's complaint for want of evidence. As the applicant's heirs had failed to appeal against the decision of 5 June 2006, further investigation had not been possible.",
"2. The Court's assessment",
"( a ) Concerning the alleged ill-treatment",
"48. Viewing facts of the present case in light of the general principles determined in its case-law (see, for example, Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241 ‑ A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336 and Vergelskyy v. Ukraine, no. 19312/06, § 106, 12 March 2009 ), the Court notes that according to expert findings of 23 November 2002 and 27 January 2005, which the parties did not challenge, the applicant sustained bruises, abrasions and other injuries on various parts of his body, which could have been inflicted on 18 November 2002 (the day of his placement in custody) by multiple impacts with blunt objects (see paragraphs 18 and 31 above). The applicant's account of the circumstances, in which he suffered these injuries, namely, application of force by the police officers during his interrogations, is sufficiently detailed and consistent with the expert findings. The Government has failed to provide any coherent and substantiated alternative account of the relevant events, in spite of several years of investigations. In these circumstances the Court finds that the State is responsible for the above injuries, which amounted to the applicant's ill-treatment.",
"49. At the same time, the Court finds noteworthy the circumstances surrounding the applicant's arrest, his placement in custody and his questioning about the robbery. First of all it recalls that the applicant's three ‑ day placement in administrative detention was officially declared unlawful by the domestic judicial authorities (see paragraph 11 above ).",
"50. It further notes that neither the refusals of the prosecuting authorities to initiate criminal proceedings, nor the Government's observations, contain any response to the applicant's allegations that his initial forced delivery to the police at noon on 18 November 2002 was not based on any legal ground. In particular, it appears that when the police stopped him on a public street, the applicant had not been engaged in any criminal activity capable of justifying his arrest, nor had he been ordered to report to the police on the basis of an official summons, either as a suspect or as a witness. Moreover, it was not until 19 November 2002 that criminal proceedings were instituted in respect of P.'s robbery complaint. Although the applicant was a minor at the material time, neither his parents nor a lawyer were informed of his arrest and the applicant lacked any representation before the court that sentenced him to administrative detention.",
"51. Finally, although the Government and the prosecutor's office alleged that the applicant was not questioned about the robbery during his custodial sentence, the applicant provided copies of his confessions and self ‑ incriminating explanations dated 18 and 19 November 2002 signed by the applicant and the law-enforcement officers (no signature of a lawyer or a minor's legal representative present – see paragraph 15 above). Likewise, on 15 January 2004 the Bilgorod-Dnistrovsky Court noted that the prosecutor's office's conclusion that the applicant had not been questioned during his detention was in contradiction with other case-file materials.",
"52. The fact that the applicant, a minor at the material time, first confessed to the robbery during his administrative detention in a setting lacking procedural guarantees, such as availability of a lawyer, and retracted his confession upon his release, points to the conclusion that his confession may not have been given freely. This, in conjunction with the ambiguous circumstances surrounding the applicant's arrest and the unlawfulness of his administrative detention, gives rise to a strong suspicion that regardless of whether the police resorted to physical violence (see paragraph 48 above), they arrested the applicant and placed him in detention as a means of breaking his moral resistance and using his vulnerable emotional state to obtain self-incriminating statements.",
"53. The Court finds that such practice is contrary to Article 3 of the Convention (see, mutatis mutandis, Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 ‑ IX, and Gäfgen v. Germany, cited above, § 131) and, especially given the applicant's vulnerable age, qualifies as inhuman and degrading treatment.",
"54. In the light of the above, the Court concludes that there has been a breach of Article 3 of the Convention in respect of the applicant's ill-treatment in custody.",
"( b) Concerning the effectiveness of the investigation",
"55. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by State authorities in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3290, § 102 ).",
"56. As regards the circumstances of the present case, the Court notes that the applicant promptly informed the law-enforcement authorities of his alleged ill-treatment. The investigation, which lasted more than three years, did not establish the circumstances surrounding his complaint and did not identify the person or persons (if any) responsible for his injuries.",
"57. The Court further notes that the investigation was closed on a number of occasions, as the prosecutor's office was not able to detect evidence of ill-treatment. At various times the decisions to close the investigation were set aside by administrative or court orders, as the prosecutor's office had failed to employ all the means available to it to establish the circumstances surrounding the applicant's complaint.",
"58. The prosecuting authorities largely repeated the same conclusions in all of their refusals. In spite of the instructions issued by the courts and supervising prosecutorial authorities (see paragraphs 26, 28 and 29 above), the investigation provided no specific answers to the particular allegations raised by the applicant in his complaints. In particular, it did not find any plausible explanation as to the reason for his injuries, or provide a substantiated response to his arguments concerning the unlawfulness of his arrest and detention or his allegations that he had been questioned about P.'s robbery in violation of procedural guarantees enshrined in the Code of Criminal Procedure. The Court specifically recalls that on 15 January 2004 the Bilgorod-Dnistrovsky Court found that the prosecutor's office's allegation that the applicant had not been questioned about the robbery during his term in custody contradicted the evidence in the case file. Notwithstanding that finding, the subsequent refusals to initiate criminal proceedings reiterated the same conclusion, without further reasoning.",
"59. In these circumstances, the Court does not have reason to believe that yet another appeal by the deceased applicant's heirs would redress the earlier shortcomings and render the investigation effective.",
"60. The Court finds that the factual circumstances surrounding the investigation of the applicant's complaint of ill-treatment in the present case are similar to the situations in which it has found violations in a number of recent cases (see, inter alia, Mikheyev v. Russia, no. 77617/01, §§ 112-113 and 120-121, 26 January 2006; Kobets v. Ukraine, no. 16437/04, §§ 53-56, 14 February 2008; and Vergelskyy v. Ukraine, no. 19312/06, § 102, 12 March 2009 ).",
"61. In the light of the circumstances of the present case and its settled case-law, the Court concludes that there has been a violation of Article 3 of the Convention on account of the ineffective investigation of the applicant's complaint of ill-treatment whilst in custody. It follows that the Government's objection concerning non-exhaustion (see paragraph 4 2 above ) must be dismissed.",
"62. Having regard to its finding under Article 3, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of the effectiveness of the investigation.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"63. In addition, the applicant complained that his arrest on 18 November 2002 had been unlawful, that the court hearing concerning charges of insubordination towards the police officers had been unfair and the resulting conviction arbitrary, and that he had lacked effective domestic remedies in respect of these complaints. He relied on Articles 5, 6 § 1, 7 and 13 of the Convention with respect to these complaints.",
"64. Having considered the applicant's submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.",
"65. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"66. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"67. The applicant claimed 800,000 euros (EUR) in his name and EUR 150,000 euros in his mother's name in respect of non-pecuniary damage allegedly sustained on account of violations of all the provisions of the Convention invoked in his application.",
"68. The Government submitted that these claims were exorbitant and unsubstantiated. Moreover, Mrs Dushka had no right to claim any award in her name. They also contended that should the Court make any award in the applicant's name, it should be deposited for the benefit of all his lawful heirs.",
"69. The Court recalls that it has found violations only of Article 3 of the Convention in respect of the applicant's rights. Ruling on an equitable basis, it awards the applicant EUR 1 8 ,000 in respect of non-pecuniary damage, to be paid to the applicant's estate.",
"B. Costs and expenses",
"70. The applicant also claimed UAH 436 in local transportation costs, UAH 2,781 for his and his mother's medical costs; UAH 6,900 for his and his mother's spa treatment costs; and UAH 1, 528.54 in postal and copying expenses. He provided relevant receipts for medical, copying and postal expenses.",
"71. The Government submitted that these claims were without merit.",
"72. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 150 covering costs for postal and copying expenses and dismisses the remainder of the claims.",
"C. Default interest",
"73. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
219 | Blokhin v. Russia | 23 March 2016 (Grand Chamber) | This case concerned the detention for 30 days of a mentally disturbed 12-year old boy in a juvenile temporary detention centre. The applicant maintained notably that the proceedings against him had been unfair because he had allegedly been questioned by the police in the absence of his guardian, counsel or a teacher. | The Grand Chamber held that there had been a violation of Article 6 §§ 1 and 3 of the Convention. It agreed with the Chamber judgment in the case that the proceedings concerning the boy’s placement in the temporary detention centre were to be considered criminal proceedings for the purpose of Article 6, although they had not been classified as criminal under Russian law. In particular, the domestic courts had referred to the fact that the boy had committed a delinquent act as the main reason for his placement in the detention centre. His defence rights had been violated because he had been questioned by the police without legal assistance and the statements of two witnesses whom he was unable to question had served as a basis for his placement in temporary detention. | Police arrest and assistance of a lawyer | Access to a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1992 and lives in Novosibirsk.",
"A. The applicant’s background and medical condition",
"10. At some point before September 2004, the applicant’s parents were deprived of their parental responsibility; the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October 2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked, but he was reinstated as guardian at the beginning of 2006.",
"11. From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy district of Novosibirsk (“the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days.",
"12. According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder ( a mental and neurobehavioural disorder characterised by either substantial attention difficulties or hyperactivity and impulsiveness, or a combination of the two – ADHD) and a neurogenic bladder causing enuresis ( a disorder involving urinary incontinence).",
"13. On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling.",
"B. The pre-investigation inquiry regarding the applicant",
"14. On 3 January 2005 the applicant, who at that time was 12 years old, was at the home of his nine-year old neighbour S. when the latter’s mother, Ms S., called the police, who came and took the applicant to the police station of the Sovetskiy district of Novosibirsk. He was not informed of the reasons for his arrest.",
"15. According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent around an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that, if he did so, he would be released immediately, whereas if he refused, he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence.",
"16. The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview.",
"17. On the same day, the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that, two days earlier, he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that his father had given it to him.",
"18. S. and his mother were also heard by the police regarding the incident; they claimed that on two occasions, on 27 December 2004 and 3 January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money.",
"19. On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27 December 2004 and 3 January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility, he could not be prosecuted for his actions.",
"20. On 3 February 2005 the applicant’s grandfather complained to the prosecutor’s office of the Sovetskiy district of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence, and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age.",
"21. On 8 June 2005 the prosecutor’s office of the Sovetskiy district of Novosibirsk quashed the decision of 12 January 2005, finding that the pre ‑ investigation inquiry had been incomplete. It ordered a further pre-investigation inquiry.",
"22. On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before.",
"23. During the following months, the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established.",
"24. By letters of 4 August, 9 November and 16 December 2005, the prosecutor’s office of the Sovetskiy district of Novosibirsk and the prosecutor’s office of the Novosibirsk region replied that no criminal proceedings had been instituted against the applicant on the ground of his age. He therefore did not have the status of a suspect or a defendant. On 3 January 2005 he had been asked to give an “explanation” rather than been questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview, and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3 January 2005.",
"C. The detention order",
"25. On 10 February 2005 the head of the Sovetskiy district Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders.",
"26. On 21 February 2005 the Sovetskiy District Court held a hearing which the applicant and his grandfather attended and at which they submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis.",
"27. On the same day, the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows.",
"“The head of the Sovetskiy district Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days.",
"On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.",
"On 24 July 2003 [the applicant] again committed an offence proscribed by Article 213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.",
"On 27 August 2004 [the applicant] again committed a criminal offence under Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days.",
"The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences.",
"On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility.",
"Taking the above-mentioned circumstances into account, [the head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions.",
"The representative of the Juveniles Inspectorate supported the request made by the head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request.",
"[The applicant] refused to provide any explanations.",
"The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time.",
"The lawyer, Ms [R.], asked the court to dismiss the request of the head of the Police Department.",
"The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences.",
"Having heard the parties to the proceedings and examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction.",
"The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27 December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000 roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police.",
"The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004, as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility.",
"Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005.",
"Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days. ”",
"D. Detention in the temporary detention centre for juvenile offenders",
"28. On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23 March 2005.",
"1. The applicant’s description of the conditions of detention in the centre",
"29. According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night.",
"30. During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which contained no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre.",
"31. Inmates had classes twice a week for around three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially-approved secondary-school curriculum. Around twenty children of different ages and school levels were taught together in one class.",
"32. The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in a line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours.",
"33. Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet, and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work.",
"34. Although the applicant’s grandfather had informed the staff of the centre of the applicant’s enuresis and his ADHD, the applicant did not receive any treatment.",
"2. The Government’s description of the conditions of detention",
"35. According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeen square metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited.",
"36. The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and works of fiction were available.",
"37. The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work.",
"38. The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor of his enuresis.",
"39. The applicant’s personal file, containing, in particular, the information on his medical condition on admission, the preventive work carried out and the punishments applied to him, had been destroyed on 17 January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no. 215 (see paragraph 74 below).",
"40. According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they were no longer needed, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had come into force on 12 May 2006 (which provided that medical records were to be stored for three years).",
"41. However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room with the inmates, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate.",
"42. The Government also submitted a copy of an agreement of 1 September 2004 between the detention centre and secondary school no. 15 whereby the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays.",
"E. The applicant’s medical condition after release from the temporary detention centre for juvenile offenders",
"43. On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and ADHD. He remained at the hospital until at least 21 April 2005.",
"44. On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005.",
"45. On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after that, he was returned to his grandfather who had been reinstated as his guardian.",
"46. On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30 November 2005. The prosecutor’s office of the Sovetskiy district of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the prosecutor’s office of the Novosibirsk region sent a reply on 16 December 2005, however, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention.",
"F. The applicant’s appeals against the detention order",
"47. Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention.",
"48. On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination.",
"49. On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the head of the Sovetskiy district Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing.",
"50. On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that, as a result of the discontinuation of the proceedings, the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders.",
"51. On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings.",
"52. On 17 April 2006 the Prosecutor of the Novosibirsk region lodged an application for supervisory review of the Regional Court’s decision of 21 March 2005.",
"53. On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal.",
"54. On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March 2005.",
"III. Proceedings against minors",
"4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action;",
"...",
"8. to reinforcing the legal position of minors throughout the proceedings, including the police investigation, by recognising, inter alia :",
"– the presumption of innocence;",
"– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the state;",
"– the right to the presence of parents or of another legal representative who should be informed from the beginning of the proceedings;",
"– the right of minors to call, interrogate and confront witnesses;",
"...",
"– the right to appeal;",
"– the right to apply for a review of the measures ordered;",
"...”",
"78. Recommendation Rec(2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, adopted on 24 September 2003, in so far as relevant, reads as follows.",
"“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. ...”",
"79. Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures, adopted by the Committee of Ministers on 5 November 2008, provides, inter alia, as follows.",
"“ Part I – Basic principles, scope and definitions",
"...",
"2. The sanctions or measures that may be imposed on juveniles, as well as the manner of their implementation, shall be specified by law and based on the principles of social integration and education and of the prevention of re-offending.",
"...",
"5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports.",
"...",
"7. Sanctions or measures shall not humiliate or degrade the juveniles subject to them.",
"8. Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm.",
"...",
"10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.",
"...",
"13. Any justice system dealing with juveniles shall ensure their effective participation in the proceedings concerning the imposition as well as the implementation of sanctions or measures. Juveniles shall not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure.",
"14. Any justice system dealing with juveniles shall take due account of the rights and responsibilities of the parents and legal guardians and shall as far as possible involve them in the proceedings and the execution of sanctions or measures, except if this is not in the best interests of the juvenile. ...",
"...",
"21. For the purpose of these rules:",
"...",
"21.5. ’deprivation of liberty’ means any form of placement in an institution by decision of a judicial or administrative authority, from which the juvenile is not permitted to leave at will;",
"...",
"Part III – Deprivation of liberty",
"...",
"49.1. Deprivation of liberty shall be implemented only for the purpose for which it is imposed and in a manner that does not aggravate the suffering inherent to it.",
"...",
"50.1. Juveniles deprived of their liberty shall be guaranteed a variety of meaningful activities and interventions according to an individual overall plan that aims at progression through less restrictive regimes and preparation for release and reintegration into society. These activities and interventions shall foster their physical and mental health, self-respect and sense of responsibility and develop attitudes and skills that will prevent them from re-offending.",
"...",
"56. Juveniles deprived of liberty shall be sent to institutions with the least restrictive level of security to hold them safely.",
"57. Juveniles who are suffering from mental illness and who are to be deprived of their liberty shall be held in mental health institutions.",
"...",
"62.2. At admission, the following details shall be recorded immediately concerning each juvenile:",
"...",
"g. subject to the requirements of medical confidentiality, any information about the juvenile’s risk of self-harm or a health condition that is relevant to the physical and mental well-being of the juvenile or to that of others.",
"...",
"62.5. As soon as possible after admission, the juvenile shall be medically examined, a medical record shall be opened and treatment of any illness or injury shall be initiated.",
"...",
"65.2. Juveniles shall have ready access to sanitary facilities that are hygienic and respect privacy.",
"...",
"69.2. The health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community.",
"...",
"73. Particular attention shall be paid to the needs of:",
"...",
"d. juveniles with physical and mental health problems;",
"...",
"77. Regime activities shall aim at education, personal and social development, vocational training, rehabilitation and preparation for release ...",
"...",
"78.3. Where it is not possible for juveniles to attend local schools or training centres outside the institution, education and training shall take place within the institution, but under the auspices of external educational and vocational training agencies.",
"...",
"78.5. Juveniles in detention shall be integrated into the educational and vocational training system of the country so that after their release they may continue their education and vocational training without difficulty.",
"...",
"81. All juveniles deprived of their liberty shall be allowed to exercise regularly for at least two hours every day, of which at least one hour shall be in the open air, if the weather permits.",
"...",
"94.1. Disciplinary procedures shall be mechanisms of last resort. Restorative conflict resolution and educational interaction with the aim of norm validation shall be given priority over formal disciplinary hearings and punishments.",
"...",
"95.1. Disciplinary punishments shall be selected, as far as possible, for their educational impact. They shall not be heavier than justified by the seriousness of the offence.",
"95.2. Collective punishment, corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman and degrading punishment shall be prohibited.",
"...",
"Part IV – Legal advice and assistance",
"120.1. Juveniles and their parents or legal guardians are entitled to legal advice and assistance in all matters related to the imposition and implementation of sanctions or measures.",
"120.2. The competent authorities shall provide juveniles with reasonable facilities for gaining effective and confidential access to such advice and assistance, including unrestricted and unsupervised visits by legal advisors.",
"120.3. The state shall provide free legal aid to juveniles, their parents or legal guardians when the interests of justice so require.",
"...”",
"80. The Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17 November 2010, state, in so far as relevant, the following.",
"“ II. Definitions",
"For the purposes of these guidelines on child friendly justice (hereafter “the guidelines”):",
"...",
"c. ’child-friendly justice’ refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.",
"III. Fundamental principles",
"...",
"E. Rule of law",
"1. The rule of law principle should apply fully to children as it does to adults.",
"2. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and non-judicial and administrative proceedings. ...",
"IV. Child-friendly justice before, during and after judicial proceedings",
"...",
"19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time.",
"...",
"21. Given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should ensure respect and actively support the fulfilment of the rights of the child as set out in universal and European instruments. In addition to other rights, children in particular should have the right to:",
"...",
"b. receive appropriate education, vocational guidance and training, medical care, and enjoy freedom of thought, conscience and religion and access to leisure, including physical education and sport;",
"...",
"B. Child-friendly justice before judicial proceedings",
"...",
"26. Alternatives to court proceedings should guarantee an equivalent level of legal safeguards. Respect for children’s rights as described in these guidelines and in all relevant legal instruments on the rights of the child should be guaranteed to the same extent in both in-court and out-of-court proceedings.",
"C. Children and the police",
"27. Police should respect the personal rights and dignity of all children and have regard to their vulnerability, i.e. take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties.",
"28. Whenever a child is apprehended by the police, the child should be informed in a manner and in language that is appropriate to his or her age and level of understanding of the reason for which he or she has been taken into custody. Children should be provided with access to a lawyer and be given the opportunity to contact their parents or a person whom they trust.",
"29. Save in exceptional circumstances, the parent(s) should be informed of the child’s presence in the police station, given details of the reason why the child has been taken into custody and be asked to come to the station.",
"30. A child who has been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent is available, another person whom the child trusts. ...”",
"B. United Nations",
"81. The United Nations Convention on the Rights of the Child ( adopted on 20 November 1989, 1577 UNTS 3 – “the CRC”) sets out the fundamental principle of the best interests of the child in Article 3, which reads as follows.",
"“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.",
"2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.",
"3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”",
"82. In so far as relevant to the present case, the CRC further states as follows.",
"Article 23",
"“1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.",
"2. States Parties recognize the right of the disabled child to special care ...",
"...”",
"Article 37",
"“States Parties shall ensure that:",
"(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ...",
"(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;",
"(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. ...",
"(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action .”",
"Article 40",
"“1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.",
"2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:",
"...",
"(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:",
"(i) To be presumed innocent until proven guilty according to law;",
"(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;",
"(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;",
"(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;",
"(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;",
"...”",
"83. General Comment No. 9 (2006) of the Committee on the Rights of the Child (27 February 2007, UN Doc. CRC/C/GC/9), contains, inter alia, the following recommendations.",
"“ 73. In the light of article 2 States parties have the obligation to ensure that children with disabilities who are in conflict with the law (as described in article 40, paragraph 1) will be protected not only by the provisions of the Convention which specifically relate to juvenile justice (arts. 40, 37 and 39) but by all other relevant provisions and guarantees contained in the Convention, for example in the area of health care and education. In addition, States parties should take where necessary specific measures to ensure that children with disabilities de facto are protected by and do benefit from the rights mentioned above.",
"74. With reference to the rights enshrined in article 23 and given the high level of vulnerability of children with disabilities, the Committee recommends – in addition to the general recommendation made in paragraph 73 above – that the following elements of the treatment of children with disabilities (allegedly) in conflict with the law be taken into account:",
"a) A child with disability who comes in conflict with the law should be interviewed using appropriate languages and otherwise dealt with by professionals such as police officers, attorneys/advocates/social workers, prosecutors and/or judges, who have received proper training in this regard;",
"b) Governments should develop and implement alternative measures with a variety and a flexibility that allow for an adjustment of the measure to the individual capacities and abilities of the child in order to avoid the use of judicial proceedings. Children with disabilities in conflict with the law should be dealt with as much as possible without resorting to formal/legal procedures. Such procedures should only be considered when necessary in the interest of public order. In those cases special efforts have to be made to inform the child about the juvenile justice procedure and his or her rights therein;",
"c) Children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment for addressing his or her problems which have resulted in the commission of a crime and the child should be placed in an institution that has the specially trained staff and other facilities to provide this specific treatment. In making such decisions the competent authority should make sure that the human rights and legal safeguards are fully respected. ”",
"84. General Comment No. 10 (2007) of the Committee on the Rights of the Child (25 April 2007, UN Doc. CRC/C/GC/10), includes the following recommendations.",
"“33. ... In this regard, State parties should inform the Committee in their reports in specific detail how children below the [minimum age of criminal responsibility] set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above [the minimum age of criminal responsibility].",
"...",
"49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge. ...",
"...",
"52. ... decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.",
"...",
"56. In line with article 14 (3) (g) of ICCPR, CRC requires that a child be not compelled to give testimony or to confess or acknowledge guilt ...",
"57. ... The term ‘compelled’ should be interpreted in a broad manner and not be limited to physical force or other clear violations of human rights. The age of the child, the child’s development, the length of the interrogation, the child’s lack of understanding, the fear of unknown consequences or of a suggested possibility of imprisonment may lead him/her to a confession that is not true. That may become even more likely if rewards are promised such as: ‘You can go home as soon as you have given us the true story’, or lighter sanctions or release are promised.",
"58. The child being questioned must have access to a legal or other appropriate representative, and must be able to request the presence of his/her parent(s) during questioning. There must be independent scrutiny of the methods of interrogation to ensure that the evidence is voluntary and not coerced, given the totality of the circumstances, and is reliable. The court or other judicial body, when considering the voluntary nature and reliability of an admission or confession by a child, must take into account the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives of the child. ...”",
"85. General Comment No. 35 of the Human Rights Committee (16 December 2014, UN Doc. CCPR/C/GC/35), comprises the following remarks concerning Article 9 (Liberty and security of person) of the International Covenant on Civil and Political Rights.",
"“28. For some categories of vulnerable persons, directly informing the person arrested is required but not sufficient. When children are arrested, notice of the arrest and the reasons for it should also be provided directly to their parents, guardians, or legal representatives. ...",
"...",
"62. Article 24, paragraph 1, of the Covenant entitles every child ‘to such measures of protection as are required by his status as a minor, on the part of his family, society and the State’. That article entails the adoption of special measures to protect the personal liberty and security of every child, in addition to the measures generally required by article 9 for everyone. A child may be deprived of liberty only as a last resort and for the shortest appropriate period of time. In addition to the other requirements applicable to each category of deprivation of liberty, the best interests of the child must be a primary consideration in every decision to initiate or continue the deprivation. ... The child has a right to be heard, directly or through legal or other appropriate assistance, in relation to any decision regarding a deprivation of liberty, and the procedures employed should be child-appropriate. ...”",
"86. The relevant parts of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), adopted by the General Assembly on 29 November 1985 (UN Doc. A/RES/40/33), state the following.",
"“5. Aims of juvenile justice",
"5.1 The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.",
"...",
"7. Rights of juveniles",
"7.1 Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.",
"...",
"10. Initial contact",
"10.1 Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.",
"...",
"10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case.",
"...",
"17. Guiding principles in adjudication and disposition",
"17.1 The disposition of the competent authority shall be guided by the following principles:",
"...",
"(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;",
"(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;",
"...",
"Commentary",
"...",
"Rule 17.1 (b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person.",
"...",
"19. Least possible use of institutionalization",
"19.1 The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period.",
"Commentary",
"...",
"Rule 19 aims at restricting institutionalization in two regards: in quantity (‘last resort’) and in time (‘minimum necessary period’). Rule 19 reflects one of the basic guiding principles of resolution 4 of the Sixth United Nations Congress: a juvenile offender should not be incarcerated unless there is no other appropriate response. ... In fact, priority should be given to ‘open’ over ‘closed’ institutions. Furthermore, any facility should be of a correctional or educational rather than of a prison type.",
"...",
"26. Objectives of institutional treatment",
"...",
"26.2 Juveniles in institutions shall receive care, protection and all necessary assistance – social, educational, vocational, psychological, medical and physical – that they may require because of their age, sex and personality and in the interest of their wholesome development.",
"...”",
"87. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), adopted by General Assembly Resolution 45/113 of 14 December 1990, include the following provisions.",
"“ I. Fundamental perspectives",
"...",
"2. Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release.",
"...",
"II. Scope and application of the rules",
"11. For the purposes of the Rules, the following definitions should apply:",
"...",
"(b) The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.",
"...",
"IV. The management of juvenile facilities",
"...",
"B. Admission, registration, movement and transfer",
"21. In every place where juveniles are detained, a complete and secure record of the following information should be kept concerning each juvenile received:",
"...",
"(e) Details of known physical and mental health problems, including drug and alcohol abuse.",
"...",
"C. Classification and placement",
"27. As soon as possible after the moment of admission, each juvenile should be interviewed, and a psychological and social report identifying any factors relevant to the specific type and level of care and programme required by the juvenile should be prepared. This report, together with the report prepared by a medical officer who has examined the juvenile upon admission, should be forwarded to the director for purposes of determining the most appropriate placement for the juvenile within the facility and the specific type and level of care and programme required and to be pursued. ...",
"28. The detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations. The principal criterion for the separation of different categories of juveniles deprived of their liberty should be the provision of the type of care best suited to the particular needs of the individuals concerned and the protection of their physical, mental and moral integrity and well-being.",
"...",
"D. Physical environment and accommodation",
"31. Juveniles deprived of their liberty have the right to facilities and services that meet all the requirements of health and human dignity.",
"32. The design of detention facilities for juveniles and the physical environment should be in keeping with the rehabilitative aim of residential treatment, with due regard to the need of the juvenile for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure-time activities. ...",
"...",
"34. Sanitary installations should be so located and of a sufficient standard to enable every juvenile to comply, as required, with their physical needs in privacy and in a clean and decent manner.",
"...",
"E. Education, vocational training and work",
"38. Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. ...",
"...",
"H. Medical care",
"49. Every juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care, as well as pharmaceutical products and special diets as medically indicated. ...",
"50. Every juvenile has a right to be examined by a physician immediately upon admission to a detention facility, for the purpose of recording any evidence of prior ill-treatment and identifying any physical or mental condition requiring medical attention.",
"51. The medical services provided to juveniles should seek to detect and should treat any physical or mental illness, substance abuse or other condition that may hinder the integration of the juvenile into society. Every detention facility for juveniles should have immediate access to adequate medical facilities and equipment appropriate to the number and requirements of its residents and staff trained in preventive health care and the handling of medical emergencies. Every juvenile who is ill, who complains of illness or who demonstrates symptoms of physical or mental difficulties, should be examined promptly by a medical officer.",
"52. Any medical officer who has reason to believe that the physical or mental health of a juvenile has been or will be injuriously affected by continued detention, a hunger strike or any condition of detention should report this fact immediately to the director of the detention facility in question and to the independent authority responsible for safeguarding the well-being of the juvenile.",
"53. A juvenile who is suffering from mental illness should be treated in a specialized institution under independent medical management. Steps should be taken, by arrangement with appropriate agencies, to ensure any necessary continuation of mental health care after release.",
"...",
"L. Disciplinary procedures",
"66. Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person.",
"67. All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited.",
"...”",
"88. The United Nations Guidelines for the Prevention of Juvenile Delinquency (“the Riyadh Guidelines”), adopted by General Assembly Resolution 45/112 of 14 December 1990, include the following provision.",
"“46. The institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance. Criteria authorizing formal intervention of this type should be strictly defined and limited to the following situations: (a) where the child or young person has suffered harm that has been inflicted by the parents or guardians; (b) where the child or young person has been sexually, physically or emotionally abused by the parents or guardians; (c) where the child or young person has been neglected, abandoned or exploited by the parents or guardians; (d) where the child or young person is threatened by physical or moral danger due to the behaviour of the parents or guardians; and (e) where a serious physical or psychological danger to the child or young person has manifested itself in his or her own behaviour and neither the parents, the guardians, the juvenile himself or herself nor non-residential community services can meet the danger by means other than institutionalization.”",
"89. In its Concluding Observations on the combined fourth and fifth periodic reports of the Russian Federation of 25 February 2014 (UN Doc. CRC/C/RUS/CO/4-5), the Committee on the Rights of the Child “urged the State party to establish a juvenile justice system in full compliance with the Convention, in particular Articles 37, 39 and 40, and with other relevant standards”. It further recommended that the Russian Federation “prevent the unlawful detention of children and ensure that legal safeguards are guaranteed for children detained”. Articles 37 and 40 of the CRC relates to children in conflict with the law (see paragraph 82 above) while Article 39 concerns the rights of children who are victims of crimes."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Constitution of the Russian Federation",
"55. An arrested or detained person or a person accused of a criminal offence is entitled to legal assistance from the time of his or her arrest, placement in custody, or when charges are brought (Article 48 § 2).",
"B. The Criminal Code",
"56. The Criminal Code fixes the age of criminal responsibility at 16 years of age. For certain offences, including extortion, the age of criminal responsibility is fixed at 14 years of age (Article 20).",
"57. Under Article 43 § 2 of the Code, the purposes of criminal punishment are restoration of social justice, reformation of the offender and the prevention of further crimes.",
"58. Article 87 § 1 of the Criminal Code regulates the criminal liability of minors, defining them as persons between 14 and 18 years of age, and states that mandatory measures of an educational nature or punishment may be applied to minors who have committed a criminal offence. Article 87 § 2 provides that, where a court relieves a minor of punishment, the minor may still be placed in a special closed educational facility run by a body of the Ministry of Education.",
"C. The Code of Criminal Procedure",
"59. A suspect or an accused is entitled to legal assistance from the time of arrest (Articles 46 § 4 (3), 47 § 4 (8) and 49 § 3).",
"60. The presence of a defence lawyer is mandatory if the suspect or the accused is a minor. If neither the minor nor his guardian has retained a defence lawyer, one must be appointed by the police officer, the investigator, the prosecutor or the judge in charge of the case (Article 51 §§ 1 and 3).",
"61. A defence lawyer must be present during each questioning of the minor suspect. The presence of a psychologist or a teacher is also mandatory if the suspect is under the age of 16. The police officer, investigator or prosecutor in charge of the questioning must ensure that a psychologist or a teacher is present during each questioning (Article 425 §§ 2-4).",
"62. The guardian of a juvenile suspect is entitled to participate in all investigative actions starting from the first questioning (Article 426 §§ 1 and 2 (3)).",
"63. Witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre ‑ trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281).",
"D. The Minors Act",
"64. The Federal Law no. 120-FZ on the basic measures for preventing child neglect and delinquency of minors of 24 June 1999 (“the Minors Act”) defines a minor as a person under the age of 18 (section 1).",
"65. A minor with special educational needs who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a “closed educational institution” for up to three years (section 15(4-7)). The main aims of closed educational institutions are as follows:",
"(i) the accommodation, upbringing and education of minors between eight and 18 years old requiring a special educational approach;",
"(ii) the psychological, medical and pedagogical rehabilitation of minors, as well as individual preventive work;",
"(iii) the protection of the rights and legitimate interests of minors, and the provision of medical care and of secondary and professional education;",
"(iv) the provision of social, psychological and pedagogical assistance to minors with health, behavioural or educational difficulties;",
"(v) the organisation of sports, science or other clubs or sections and encouragement of participation by minors in such clubs or sections;",
"(vi) the implementation of programmes and policies aimed at developing law-abiding behaviour in minors (section 15(2)).",
"66. A minor may only be placed in a temporary detention centre for juvenile offenders for the shortest possible time necessary for appropriate accommodation to be found, and for a maximum of thirty days (section 22(6)), in the following cases:",
"(i) a minor whose placement in a closed educational institution has been ordered by a court may be placed in a temporary detention centre for juvenile offenders for the time necessary to prepare his transfer to the closed educational institution (section 22(1)(3) and 22(2)(1) and section 31(1));",
"(ii) a minor in respect of whom a request for placement in a closed educational institution is pending before a court may be placed in a temporary detention centre for juvenile offenders for a period of up to thirty days if it is necessary in order to protect his life or health or to prevent him from committing a further delinquent act, or if he has no fixed residence, has absconded or has failed to appear at court hearings or medical examinations more than twice without a valid reason (sections 22(2)(2) and 26(6));",
"(iii) a minor who has escaped from a closed educational institution may be placed in a temporary detention centre for juvenile offenders for the time necessary for appropriate accommodation to be found for him (section 22(2)(3));",
"(iv) a minor who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a temporary detention centre for juvenile offenders if it is necessary in order to protect his life or health or to prevent him from committing a further delinquent act, or if his identity is unknown, he has no fixed place of residence, resides in a region other than the one where the delinquent act was committed, or if he cannot be immediately placed in the charge of his parents or guardians owing to the remoteness of their place of residence (section 22(2)(4-6)).",
"67. The main aims of temporary detention centres for juvenile offenders are as follows:",
"(i) the temporary detention of juvenile offenders with the aim of protecting their life and health and preventing them from committing further delinquent acts;",
"(ii) individual preventive work with minors with the aim of discovering whether they are involved in the commission of delinquent acts, establishing the circumstances, reasons and conditions conducive to such acts, and informing the competent law-enforcement authorities;",
"(iii) the transfer of minors to closed educational institutions and other measures aimed at finding accommodation for minors temporarily placed in the centre’s care (section 22(1)).",
"68. Placement in a temporary detention centre for juvenile offenders is to be ordered by a judge (section 22(3)(2)) at the request of the local department of the interior, which must submit the following materials in support of the request: evidence confirming that the minor has committed a delinquent act; materials indicating the aims of, and reasons for, the placement of the minor in the temporary detention centre for juvenile offenders; and materials confirming that such placement is necessary to protect the life or health of the minor or to prevent him from committing a further delinquent act (section 31.1). The minor and his parents or guardian are entitled to study these materials. The materials are then examined by a single judge at a hearing with the participation of the minor concerned, his parents or guardian, defence lawyer, a prosecutor, and representatives of the local department of the interior and of the temporary detention centre for juvenile offenders. The judge issues a reasoned decision either granting or rejecting the request for the placement of the minor in the temporary detention centre for juvenile offenders (section 31.2). The minor or his parents, guardian, or defence lawyer may, within ten days, appeal against the decision to a higher court (section 31.3).",
"E. The Instruction on temporary detention centres for juvenile offenders",
"69. The Instruction on the organisation of the activities of temporary detention centres for juvenile offenders, adopted by Order no. 215 of the Ministry of the Interior on 2 April 2004 (in force at the material time), provided that temporary detention centres for juvenile offenders were to be managed by the local departments of the interior (§ 4).",
"70. On admission to a temporary detention centre for juvenile offenders, the minor and his belongings had to be searched. Prohibited belongings had to be confiscated, while money, valuables and other belongings had to be deposited with the centre’s accountant (§§ 14-15).",
"71. Temporary detention centres had to be enclosed and the enclosures equipped with an alarm system and an entry checkpoint (§ 19). The disciplinary regime was maintained by a duty squad (§ 22).",
"72. The director of the temporary detention centre for juvenile offenders was responsible for security arrangements, which had to ensure the twenty ‑ four-hour surveillance of inmates, including while asleep, and had to exclude any possibility of unauthorised leaving of the premises by inmates (§ 39).",
"73. A personal file had to be opened in respect of each minor and contain the following information: the documents which served as the basis for the minor’s admission to the centre, the search report, the record of preventive work carried out and of rewards and punishment applied, the medical certificates documenting the minor’s condition on admission, and any others (§ 18). Personal files had to be stored for two years and be destroyed after the expiry of that time-limit (Appendix no. 5).",
"74. The temporary detention centre’s “accounting and statistical records” for each minor had to be kept indefinitely in the centre (Appendix 4, endnote 2).",
"75. If appropriate, individual preventive work might be carried out with the minors, taking into account their age, conduct, the gravity of the delinquent acts committed and other circumstances (§ 24). In order to make the preventive work more efficient, incentives and punishment might be applied to minors (§ 25).",
"76. With the aim of preventing delinquency, the staff of temporary detention centres for juvenile offenders might take the following measures in the context of preventive work:",
"(i) establishing the living and educational conditions of the minor’s family, the minor’s personal qualities and interests, his or her reasons for running away from home or for abandoning school, and the facts of the minor’s participation in the commission of any delinquent acts and the circumstances in which they were committed, including information on any accomplices and how any stolen property was disposed of;",
"(ii) passing to the law-enforcement authorities any information concerning those involved in delinquent acts, or any other information that may contribute to the investigation of such delinquent acts;",
"(iii) taking individual educational measures, with particular emphasis on developing positive qualities and interests, to combat any defects of character and to motivate the minors in studying and working (§ 26).",
"III. RELEVANT INTERNATIONAL MATERIALS",
"A. Council of Europe",
"77. The relevant parts of Recommendation No. R (87) 20 on social reactions to juvenile delinquency, adopted by the Committee of Ministers on 17 September 1987, state as follows.",
"“... Considering that young people are developing beings and in consequence all measures taken in their respect should have an educational character;",
"Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors and that the latter need specialised interventions and, where appropriate, specialised treatment based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child;",
"...",
"Convinced that minors must be afforded the same procedural guarantees as adults; ...",
"Recommends the governments of member states to review, if necessary, their legislation and practice with a view:",
"...",
"THE LAW",
"I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER",
"90. In their submissions before the Grand Chamber, the Government invited the Court to refine the Chamber’s reasoning in respect of the applicant’s complaint under Article 5 § 4 of the Convention relating to the hearing of 11 April 2005. For his part, the applicant maintained his complaints under Article 6 of the Convention that he had had insufficient time to study the case file and that the court-appointed counsel had been ineffective.",
"91. The Court observes that, according to its case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR 2007-IV, and K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII). It notes that, in its judgment of 14 November 2013, the Chamber declared inadmissible the applicant’s complaints under Article 6 that he had had insufficient time to study the case file and that the court-appointed counsel had been ineffective, as well as his complaint under Article 5 § 4 relating to the hearing held on 11 April 2005. Accordingly, these complaints are not within the scope of the case before the Grand Chamber.",
"II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS",
"92. The Government, in their written submissions of 20 May 2014, contended for the first time that the applicant had neither exhausted domestic remedies nor complied with the six-month time-limit as required by Article 35 § 1 of the Convention in respect of his complaints under Article 3 of the Convention, and his complaints under Article 6 relating to the pre-investigation inquiry.",
"A. Exhaustion of domestic remedies",
"93. Concerning the applicant’s complaint under Article 3 of the Convention relating to the alleged lack of medical care in the temporary detention centre, the Government submitted that, after his release, the applicant could have instituted civil proceedings which was a domestic remedy capable of affording him adequate redress in the form of monetary compensation for any damage caused to him.",
"94. Regarding the applicant’s complaints under Article 6 relating to the pre-investigation inquiry, the Government contended that the applicant had failed to lodge a complaint with the domestic courts under Article 125 of the Code of Criminal Procedure of the Russian Federation, according to which anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings could appeal against that decision to a court.",
"95. The applicant did not expressly respond to the Government’s objections, but submitted that the Chamber had made a correct assessment of his complaints.",
"96. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 79, 17 July 2014; Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006 ‑ II; and K. and T. v. Finland, cited above, § 145). The Chamber ruled on the admissibility and merits of the application in its judgment of 14 November 2013. The Court observes that the Government did not raise either of these two objections in their observations on the admissibility and merits of the case before the Chamber, or at any other point during the Chamber proceedings.",
"97. The Government have not claimed that there were any exceptional circumstances that could have dispensed them from the obligation to raise these objections in a timely manner. The Court therefore holds that the Government are estopped from raising their preliminary objections of non-exhaustion of domestic remedies at the present stage of the proceedings (see Svinarenko and Slyadnev, § 82, and Sejdovic, § 42, both cited above).",
"98. The Government’s preliminary objections must therefore be rejected.",
"B. Six-month time-limit",
"99. The Government contended that the applicant had failed to lodge with the Court his complaint under Article 3 relating to the lack of medical care in the temporary detention centre within the six-month time-limit provided for in Article 35 § 1 of the Convention. They submitted that the applicant’s grandfather had only raised this complaint, in a summary fashion, in a letter of 30 November 2005 to the prosecution authorities who had replied on 16 December 2005, more than six months before the application was lodged on 1 November 2006.",
"100. According to the Government, the applicant had also failed to comply with the six-month time-limit with regard to his complaint under Article 6 relating to the pre-investigation inquiry, since the revised ruling refusing to initiate criminal proceedings against the applicant had been made on 6 July 2005 and a reply to the applicant’s grandfather’s last complaint concerning this matter to the prosecution authorities had been given on 16 December 2005.",
"101. The applicant did not address the Government’s objections but maintained that the Chamber’s judgment was correct.",
"102. The Government did not raise their objections as to non-compliance with the six-month rule in the proceedings before the Chamber, and the Chamber did not examine the issue. However, the Court has already held that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012; Svinarenko and Slyadnev, cited above, § 85; Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III; and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I ). Furthermore, the Court has decided that, notwithstanding the requirements of Rule 55, Governments are not estopped from raising the issue of the six-month rule before the Grand Chamber (see Sabri Güneş, cited above, § 30).",
"103. Consequently, the Grand Chamber has jurisdiction to examine the issue of compliance with the six-month rule in relation to the applicant’s complaints under Article 3 of the Convention as well as under Article 6 concerning the pre-investigation inquiry.",
"1. Compliance with the six-month time-limit in respect of the applicant’s complaints under Article 3 of the Convention",
"(a) The parties’ submissions",
"104. The Government submitted that it appeared from paragraph 40 of the Chamber judgment that the applicant’s grandfather had lodged only one complaint with the prosecution authorities, dated 4 October 2005, concerning the quality of medical care in the temporary detention centre. This was more than one year prior to the applicant lodging the application with the Court on 1 November 2006. However, the Government argued that the complaint of 4 October 2005 had not contained any grievances concerning the lack of medical care and, moreover, a reply had been prepared on 9 November 2005 by the prosecutor’s office of the Sovetskiy district of Novosibirsk. Furthermore, they stated that a similar complaint, in which the grievances had been set out in a summary fashion and sent by the applicant’s grandfather to the prosecution authorities on 30 November 2005, had been replied to on 16 December 2005 by the prosecutor’s office of the Novosibirsk region. However, the Government stressed that this was still outside the six ‑ month time-limit.",
"105. The applicant did not reply to this objection in his submissions to the Grand Chamber.",
"(b) The Court’s assessment",
"106. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Moreover, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009, and Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).",
"107. Turning to the present case, the Court has to ascertain whether the applicant had an effective remedy available to him and, if so, whether he made use of it and then seized the Court within the required time-limit. In doing so, the Court will not consider whether the applicant should have made use of civil proceedings since it has found above (see paragraphs 96 ‑ 98) that the Government are estopped from raising an objection of non-exhaustion at this stage of the proceedings.",
"108. The Court notes at the outset that, on 28 February 2005, the applicant’s grandfather lost his status as the applicant’s guardian and that he was only reinstated at some point at the beginning of 2006. Thus, during the entire period when the grandfather was not the guardian, the applicant appears to have been under the guardianship of the State, and the grandfather had no legal rights to represent the applicant or defend his interests. Since the applicant was released from the temporary detention centre for juvenile offenders on 23 March 2005, he had at that time only the State to protect his interests. Consequently, the authorities were under no legal obligation during that period of time to reply to the grandfather’s complaints concerning the applicant since he was not his guardian.",
"109. However, the Court observes that the grandfather continued to endeavour to protect the applicant’s interests. Hence, it appears from the grandfather’s letter of 30 November 2005 to a Deputy Prosecutor General that he had been informed that his complaint of 4 October 2005 to the Prosecutor General had been sent to various prosecutors’ offices. Moreover, in his letter of 30 November 2005, the grandfather did indeed repeat the complaints regarding the applicant’s treatment in the temporary detention centre and his poor health which he had already set out in his previous letter of 4 October 2005 (see paragraph 46 above). The Court notes that the prosecutor’s reply of 9 November 2005 and the regional prosecutor’s reply of 16 December 2005 nevertheless contained no information in response to the grandfather’s complaints concerning the applicant’s medical condition or the authorities’ failure to treat him while in the temporary detention centre for juvenile offenders.",
"110. Furthermore, the Court has regard to the fact that, once reinstated as the applicant’s guardian, the grandfather pursued the matter of the legality of the applicant’s detention and, within the framework of those proceedings, raised the issue of the applicant’s frail health and the lack of medical treatment. In particular, in the complaint against the decision of 21 February 2005, which was examined by the President of the Novosibirsk Regional Court on 29 May 2006, the grandfather cited the applicant’s diagnosis and the impossibility for him of being detained in the absence of medical advice. The President of the Regional Court responded in its judgment that the fact that the applicant suffered from various illnesses could not serve as a ground for quashing the decision of 21 February 2005, given that it had already been enforced in March 2005.",
"111. Against this background the Court finds that, in the absence of any answer from the prosecutors’ offices to the grandfather’s complaints in October and November 2005, the grandfather, once reinstated as the applicant’s guardian, used other possible avenues to argue the applicant’s case pertaining to his poor health and the lack of medical treatment in the temporary detention centre. Since the only concrete answer he received to that complaint was through the judgment of 29 May 2006 when, in essence, he was told that there was no point in complaining any further as the applicant’s detention had already ended, the Court considers that, in the specific circumstances of the present case, the six-month period should be calculated from that date, as further complaints to the authorities would have had no prospects of success. Noting that the application was lodged with the Court on 1 November 2006, it follows that the applicant’s complaints under Article 3 fall within the six-month time-limit.",
"112. The Government’s objection must therefore be dismissed.",
"2. Compliance with the six-month time-limit in respect of the applicant’s complaints under Article 6 concerning the pre-investigation inquiry",
"(a) The parties’ submissions",
"113. The Government submitted that the applicant had failed to comply with the six-month time-limit in so far as his complaint under Article 6 related to the pre-investigation inquiry, since the revised ruling refusing to initiate criminal proceedings against the applicant had been made on 6 July 2005 and a reply to the applicant’s grandfather’s last complaint on this matter to the prosecution authorities had been given on 16 December 2005.",
"114. In this regard, the Government stressed that the present case involved two separate sets of proceedings, not one as found by the Chamber in its judgment. The first of these – the pre-investigation inquiry, conducted in accordance with Chapters 19 and 20 of the Code of Criminal Procedure – was to verify information on an alleged crime and decide whether there was sufficient evidence that a crime had been committed and whether to institute criminal proceedings. The second set – the proceedings deciding on the placement of the applicant in the temporary detention centre, conducted in accordance with Chapter 3.1 of the Minors Act – did not require a pre-investigation inquiry to be conducted and were not limited in scope to information obtained during the inquiry. Thus, the outcome of the first set of proceedings did not, in itself, constitute a decisive ground for initiating the second set of proceedings, as exemplified in the applicant’s case where only the last two inquiries, out of five, had been followed by the second set of proceedings for his placement in the temporary detention centre, and then because it had become obvious that other preventive measures had been unsuccessful. Hence, the Government found no grounds for treating the two sets of proceedings as a single process, as the Chamber had done in its judgment, and argued that the applicant’s complaints under Article 6 should be examined separately in respect of each set of proceedings in question.",
"115. The applicant did not explicitly address the Government’s objection or whether the two sets of proceedings should be considered separately or together. However, he maintained that the Chamber’s judgment was correct and should be followed.",
"(b) The Court’s assessment",
"116. The Court will firstly consider the Government’s claim that the pre-investigation inquiry and the proceedings leading to the applicant’s placement in the temporary detention centre should be considered separately, since the result on this point will determine whether or not the Court needs to consider the Government’s objection relating to the six-month rule.",
"117. While the Court acknowledges that the pre-investigation inquiry and the placement proceedings were, formally, two unrelated procedures, governed by separate legal rules, it notes that in the present case there was a close link, both in law and in fact, between them. In particular, the domestic courts gave as the main reason for the applicant’s placement in the temporary detention centre that he had committed a delinquent act punishable by the Criminal Code. The District Court referred at length to the witness statements made by S. and his mother in its judgment, and relied on those and the pre-investigation inquiry’s findings when making its ruling (see paragraph 27 above). Moreover, both the District Court and the Regional Court found that the placement of the applicant in the temporary detention centre was necessary to prevent him from committing further delinquent acts, which shows that the placement was a direct consequence of the outcome of the pre-investigation inquiry.",
"118. Consequently, the Court finds that the two sets of proceedings should be considered together as a single set of proceedings for the purposes of the present case, and will proceed with its examination of the applicant’s complaints under Article 6 on this basis. The Government’s objection as to compliance with the six-month time-limit in relation to the pre-investigation inquiry must, therefore, be rejected since the final domestic decision, regarding the proceedings as a whole, was taken on 29 May 2006 when the President of the Novosibirsk Regional Court upheld the initial judgment ordering the applicant’s placement in the temporary detention centre for juvenile delinquents. Since the application was lodged with the Court on 1 November 2006, it was introduced within the six-month time-limit.",
"119. The Government’s objection must therefore be dismissed.",
"III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"120. The applicant complained that he had not received adequate medical care while in the temporary detention centre for juvenile offenders and that the conditions of his detention there had been inhuman, contrary to Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. The Chamber judgment",
"121. The Chamber found that the lack of adequate medical treatment for the applicant in the temporary detention centre for juvenile offenders amounted to inhuman and degrading treatment contrary to Article 3. It noted in particular that, despite its request for a copy of the applicant’s medical records from the temporary detention centre, the Government had failed to produce one, claiming that the records had been destroyed in accordance with domestic regulations which had not been submitted to the Court or published or made accessible to the public. Moreover, the Chamber observed that the normal time-limit for storage of medical records was ten years in the Russian Federation. Thus, since the applicant’s grandfather had repeatedly informed the authorities of the applicant’s health problems, the Chamber found no reason to doubt that the staff at the temporary detention centre had been made aware of his state of health. There was no evidence that the applicant had been examined during his detention by a neurologist or psychiatrist or that he had received any of his prescribed medication. The Chamber found this lack of medical attention, resulting in the applicant being hospitalised a day after his release, unacceptable.",
"122. In view of its finding of a violation due to the lack of medical treatment, the Chamber did not consider it necessary to examine the remainder of the applicant’s complaints under Article 3.",
"B. The parties’ submissions",
"1. The applicant",
"123. The applicant emphasised that, at the time of being placed in the temporary detention centre for juvenile offenders, he was suffering from neurosis, ADHD, psychopathic conduct and enuresis. While he acknowledged that these conditions did not require immediate medical aid at the time of being detained, he emphasised that the pressure exerted on him throughout his detention at the police station and the questioning there, together with the thirty days at the temporary detention centre, had resulted in a sharp exacerbation of all of his conditions and an immediate need for medical treatment. This had been proved by the medical certificates submitted by him during the proceedings before the Chamber, which confirmed that he had been forcibly hospitalised in a psychiatric hospital immediately upon release from the temporary detention centre. He argued that there were no other possible causes for the worsening of his conditions.",
"124. In his view, the Russian authorities had failed to take timely measures to avoid his illnesses getting worse. In particular, he alleged that, when requesting that he be placed in the temporary detention centre, the head of the Sovetskiy district Police Department was required to submit to the District Court a decision by the relevant health-care facility on the presence or absence of contraindications of a medical nature, including a psychiatric examination, against placing him in the temporary detention centre. However, no such decision had been submitted either to the court or the temporary detention centre.",
"125. The applicant further maintained his submissions before the Chamber, claiming that both he and his grandfather had informed the teachers and employees of the temporary detention centre of his illnesses and had asked that he have unrestricted access to the bathroom. However, this had been ignored and he had suffered badly, both psychologically and physically, owing to his enuresis.",
"126. Having regard to all of the circumstances of his case, the applicant maintained that the conditions in the temporary detention centre for juvenile offenders, at the time of his stay there, had been incompatible with the requirements of Article 3 of the Convention.",
"2. The Government",
"127. The Government maintained that the applicant’s complaints under Article 3 did not disclose any violation of that provision.",
"128. They reiterated that the applicant’s personal file from the temporary detention centre for juvenile offenders, which might have included a medical record describing the applicant’s health on admission, had been destroyed in accordance with the instructions in force at the time (see paragraph 73 above). Moreover, other medical records and logbooks from the temporary detention centre for the period of the applicant’s stay had been destroyed as soon as they were no longer “needed”, as no time-limits for keeping such documents existed at the material time. Order no. 340 of 12 May 2006, referred to in paragraph 34 of the Chamber judgment, had come into force only after those documents had been destroyed.",
"129. However, the Government noted that the applicant’s “accounting and statistical record” from his stay at the temporary detention centre in September 2004 and in February 2005 had been retained since its storage period was unlimited in accordance with Order no. 215 of 2 April 2004 (see paragraph 74 above). According to the Government, the Court had mistakenly called these records “medical records” in paragraphs 32 and 90 of the Chamber judgment and had therefore reached a wrong conclusion in paragraph 90.",
"130. They further stated that, since they had only been given notice of the present case on 1 October 2010, more than five and a half years after the events in question and following the destruction of most of the relevant records, they had to rely on the report by the head of the temporary detention centre, dated 28 December 2010, and the explanation of a supervisor at the same centre, dated 23 December 2010 (see paragraph 41 above). From these documents it appeared that all children kept at the temporary detention centre, including the applicant, had been examined daily by the medical staff. This was further supported by the “daily routine” approved on 17 January 2013 and submitted to the Court. Moreover, children could ask for medical assistance at any time; there were properly equipped medical rooms; access to toilets was not restricted; and special night-time arrangements were made for children suffering from enuresis. No complaints had been made by the applicant concerning any of these matters during his stay at the temporary detention centre. In this respect, the Government pointed out that minors kept in the temporary detention centre could receive unrestricted visits and telephone calls from their relatives, provided that they did not interfere with the activities foreseen in the daily schedule. The applicant’s grandfather had never claimed to have been prevented from visiting the applicant and did not appear to have made any written or oral complaints during such visits.",
"131. Lastly, the Government submitted that, according to the staff schedule of the temporary detention centre in force from 18 June 2003 to 3 October 2005, a psychiatrist, a paediatrician, a doctor’s assistant and a nurse were present at the centre. An information note further stated that the quality of medical care and the living conditions at the temporary detention centre had not been subject to any departmental or other inspection during 2004 or 2005. In view of all of the above, and since the applicant had not submitted any documents to substantiate his claims, the Government argued that there was no indication that the temporary detention centre was not suitable to accommodate, for a maximum period of thirty days, a child suffering from enuresis and a behavioural disorder.",
"132. With regard to the applicant’s health, the Government pointed out that his enuresis was not mentioned in any medical documents submitted by the applicant (issued after 2003) nor in the applicant’s “accounting and statistical record” from the temporary detention centre. Moreover, the degree of manifestation of this illness was not mentioned in any of the available documents. Turning to the applicant’s behavioural disorder, the Government noted that, according to the extract from medical history no. 3624 (submitted by the applicant to the Court in October 2007), the applicant had suffered from a social behavioural disorder at the material time which seemed to be a result of external factors rather than of his other illnesses. In their view, the applicant had failed to submit any medical certificate to substantiate the allegation that this disorder prevented his placement in the temporary detention centre. He had also failed to produce a report by a medical expert confirming that his stay at the temporary detention centre had caused his health to deteriorate.",
"133. Consequently, the Government considered that the applicant’s complaints did not disclose a violation of Article 3.",
"3. The third-party intervener",
"134. The Mental Disability Advocacy Center (“the MDAC”) stressed that children with mental disabilities faced a “double disadvantage” – both as children and as individuals with mental disabilities. These children were particularly vulnerable to violations of their rights and had additional needs which had to be protected through stringent and effective safeguards. The MDAC referred to the United Nations Convention on the Rights of Persons with Disabilities (adopted on 13 December 2006, UNTS 2515 – “the CRPD”) and in particular its main object to ensure equality and non-discrimination in all domains (Article 5 § 2). It further referred to the CRC, emphasising that the best interests of the child should always be a primary consideration and that States Parties undertook to ensure the child such protection and care as was necessary for his or her well-being (Article 3 – see paragraph 81 above). Moreover, Article 23 of the CRC specifically related to children with disabilities and the MDAC observed that the Committee on the Rights of the Child, in its General Comment No. 9 (2006), set out further guidance as to the treatment of children with disabilities in conflict with the law. Thus, the Committee stated that “children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment” (see paragraph 83 above). The MDAC emphasised that the Court had held that States had an obligation to take particular measures to provide effective protection of vulnerable persons from ill-treatment of which the authorities had or ought to have had knowledge (they referred to Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).",
"C. The Court’s assessment",
"1. General principles",
"135. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 201, ECHR 2012). However, to come within the scope of the prohibition contained in Article 3, the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see M.S. v. the United Kingdom, no. 24527/08, § 38, 3 May 2012, and Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII).",
"136. Article 3 further imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical care (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and Khudobin v. Russia, no. 59696/00, § 93, 26 October 2006). Thus, the Court has held on many occasions that lack of appropriate medical care may amount to treatment contrary to Article 3 (see, for example, M.S. v. the United Kingdom, cited above, §§ 44 ‑ 46; Wenerski v. Poland, no. 44369/02, §§ 56-65, 20 January 2009; and Popov v. Russia, no. 26853/04, §§ 210-13 and 231-37, 13 July 2006).",
"137. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention (see Khudobin, cited above, § 83 ), that diagnosis and care are prompt and accurate (see Melnik v. Ukraine, no. 72286/01, § § 104-06, 28 March 2006, and Hummatov, cited above, § 115), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis (see Popov, cited above, § 211; Hummatov, cited above, §§ 109 and 114; and Amirov v. Russia, no. 51857/13, § 93, 27 November 2014 ). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006, and Hummatov, cited above, § 116). Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).",
"138. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). When dealing with children, the Court considers that, in line with established international law, the health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community (see, for example, Rules 57, 62.2, 62.5, 69.2, and 73 (d) of the 2008 European Rules for juvenile offenders subject to sanctions or measures, Article 3 § 3 of the CRC, and Rules 49-53 of the Havana Rules in paragraphs 79, 81 and 87 above). The authorities should always be guided by the child’s best interests, and the child should be guaranteed proper care and protection. Moreover, if the authorities are considering depriving a child of his or her liberty, a medical assessment should be made of the child’s state of health to determine whether or not he or she can be placed in a juvenile detention centre.",
"139. The Court further stresses that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII, with further references; Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV; Amirov, cited above, § 80; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012).",
"140. In this connection it should be noted that the Court has held that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation). According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 ‑ IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Amirov, cited above, § 92 ). In the absence of such an explanation the Court can draw inferences that may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).",
"2. Application to the present case",
"141. The Court notes from the outset that both the applicant’s young age and his state of health are circumstances of relevance in assessing whether the minimum level of severity has been attained (see paragraph 135 above) and it will have particular regard to the principles set out in paragraph 138 above.",
"142. In the present case, the Court notes that the Government have submitted numerous documents in support of their submissions before the Grand Chamber to show that the conditions at the temporary detention centre were good and that medical treatment was provided. However, the great majority of these documents date from 2008 to 2014, several years after the applicant’s stay at the temporary detention centre and, consequently, do not shed light on the conditions in the centre during his placement there. Moreover, as concerns the report by the head of the temporary detention centre, dated 28 December 2010, and the explanation of a supervisor at the centre, dated 23 December 2010, the Court finds it unlikely that they would remember whether or not one child, who had stayed at the temporary detention centre for thirty days almost six years earlier, had complained of the conditions or access to the toilets. It has also on previous occasions found that reports or certificates like those submitted by the Russian Government were of little evidentiary value as they lacked references to original documentation held by the relevant prison or detention centre (see Ananyev and Others, cited above, § 124, with further references).",
"143. Thus, while the Court does not question the submission that some of the documents from the temporary detention centre relating to the applicant may have been destroyed in accordance with the relevant rules in force at that time, this does not absolve the Government from the obligation to support their factual submissions with appropriate evidence (ibid., § 125).",
"144. The parties have submitted a number of relevant documents that allow the Court to examine the applicant’s complaints in depth. In particular, it finds it established through the medical certificates submitted by the applicant that he was examined by a neurologist and a psychiatrist on 27 December 2004 and 19 January 2005, that is, only slightly over a month before being placed in the temporary detention centre. At that time, medication was prescribed for him, as well as regular supervision by a neurologist and a psychiatrist and regular psychological counselling for his ADHD. It has further been established through medical records that the applicant was hospitalised the day after his release from the temporary detention centre and treated for neurosis and ADHD. He remained in hospital at least until 12 April 2005, thus for approximately three weeks.",
"145. Moreover, the Court notes that the applicant’s grandfather submitted medical certificates at the detention hearing on 21 February 2005 to show that the applicant suffered from ADHD, thereby ensuring that the authorities were aware of his condition. In this connection, the Court observes that an officer from the Juveniles Inspectorate was present at the hearing on 21 February 2005 and that, in accordance with section 31.2 of the Minors Act, a representative of the temporary detention centre was also required to be present. Since the applicant’s grandfather drew attention to the applicant’s medical condition during the hearing, the relevant authorities responsible for the applicant’s placement at the temporary detention centre were made aware of his condition.",
"146. Thus, even if the applicant’s personal file from the temporary detention centre has been destroyed, the Court considers that there is sufficient evidence to show that the authorities were aware of the applicant’s medical condition upon his admission to the temporary detention centre and that he was in need of treatment. Moreover, the fact that he was hospitalised the day after his release, and kept in the psychiatric hospital for almost three weeks, provides an indication that he was not given the necessary treatment for his condition at the temporary detention centre. The applicant has thereby provided the Court with a prima facie case of lack of adequate medical treatment. Having regard to the considerations set out above (see paragraphs 142-43 above) concerning the documents submitted by the Government and the lack of any other convincing evidence, the Court finds that the Government have failed to show that the applicant received the medical care required by his condition during his stay at the temporary detention centre where he was kept for thirty days without the right to leave and entirely under the control and responsibility of the staff at the centre. In these circumstances, the authorities were under an obligation to safeguard the applicant’s dignity and well-being, and are responsible under the Convention for the treatment he experienced (see M.S. v. the United Kingdom, cited above, § 44).",
"147. As concerns the applicant’s enuresis, the Court notes that it is not mentioned in the medical certificates of 27 December 2004 and 19 January 2005 and that it was not the reason for his hospitalisation following his detention. Thus, in the Court’s view, the applicant has not submitted sufficient prima facie evidence to show whether and, if so, to what extent he suffered from enuresis on admission to the temporary detention centre and whether the personnel at the centre were, or should have been, aware of it. Since most of the medical certificates and files from the temporary detention centre concerning the applicant have been destroyed, it appears difficult to obtain any clarification on this point. On the other hand, the Court has already found it established that the applicant suffered from ADHD.",
"148. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the applicant’s rights under Article 3 on account of the lack of necessary medical treatment at the temporary detention centre for juvenile offenders, having regard to his young age and particularly vulnerable situation, suffering as he was from ADHD.",
"149. There has, accordingly, been a violation of Article 3 of the Convention.",
"150. In view of this finding of a violation of Article 3, and like the Chamber in its judgment, the Court does not find it necessary to examine the remainder of the applicant’s complaints under this provision.",
"IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"151. The applicant complained that his detention in the temporary detention centre for juvenile offenders had violated Article 5 § 1 of the Convention, which reads as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”",
"A. The Chamber judgment",
"152. In its judgment, the Chamber found that the applicant’s placement in the temporary detention centre amounted to a deprivation of liberty since the centre was closed and guarded, inmates were routinely searched on admission, all personal belongings were confiscated, and a disciplinary regime was applied to the inmates.",
"153. The Chamber further considered that the detention had not been intended for educational supervision within the meaning of Article 5 § 1 (d) since, under domestic law, temporary detention centres were designed for the temporary detention of minors while more appropriate accommodation was being sought, such as a return to the family or placement in an educational institution. Moreover, domestic law did not provide for any educational activities in the centres. Thus, the Chamber concluded that the temporary detention centres were not designed to provide educational supervision, and that the applicant’s detention in the centre had not been “for the purpose of” educational supervision, since he had been placed there for “behaviour correction” and the prevention of further delinquent acts.",
"154. The Chamber then found that the applicant’s detention could not be “reasonably considered necessary to prevent his committing an offence”, within the meaning of Article 5 § 1 (c), since neither the domestic authorities nor the Government had mentioned any concrete and specific delinquent acts which the applicant had to be prevented from committing. Moreover, Article 5 § 1 (c) required that detention to prevent a person from committing an offence was “effected for the purpose of bringing him before the competent legal authority”, which was not the case for the applicant, who had been placed in the temporary detention centre by order of a court at the end of the proceedings against him.",
"155. The Chamber further considered that since the applicant had not been convicted of an offence because he had not reached the statutory age of criminal responsibility, his detention could not be regarded as “lawful detention after conviction by a competent court” within the meaning of Article 5 § 1 (a). Furthermore, it found that the applicant’s deprivation of liberty did not fall under Article 5 § 1 (b) of the Convention and that sub-paragraphs (e) and (f) were clearly not relevant in the present case. Consequently, the Chamber concluded that the applicant’s detention in the temporary detention centre had not had any legitimate purpose under Article 5 § 1 and had accordingly been arbitrary.",
"B. The parties’ submissions",
"1. The applicant",
"156. The applicant agreed with the reasoning in the Chamber judgment in relation to Article 5 § 1. He had been placed in the temporary detention centre for thirty days for the “correction of conduct”, which did not involve “educational supervision” within the meaning of Article 5 § 1 (d). In his view, the temporary detention centre was in no sense an institution intended for educational supervision and, according to section 22 of the Minors Act, its tasks did not include carrying out educational work with the minor. In fact, according to domestic legislation, temporary detention centres were not included in the system of educational institutions. The applicant emphasised that special closed institutions existed that did have the specific task of bringing up and educating children and young persons of deviant behaviour.",
"157. Moreover, section 22(4)(2) of the Minors Act contained a list of situations in which a minor could be placed in a temporary detention centre (see paragraph 66 above) and the applicant’s situation did not fall under any of these. He emphasised that his identity had been known as had his place of residence and that his guilt in respect of the allegation of extortion had never been established by a court verdict. Furthermore, the applicant noted that, under section 22(6) of the Minors Act, a minor should only be kept in a temporary detention centre for the minimum time necessary for putting his or her affairs in order, and no more than thirty days. This implied that the purpose of the temporary detention centre was not educational supervision, but solely the detention of minors until such time as they could be handed over to their guardian or placed in a special educational institution. In any event, the Government had not submitted any relevant documents confirming that the applicant had received any individual precautionary instructions or had any school lessons while detained in the centre.",
"158. Lastly, the applicant submitted that his placement in the temporary detention centre did not serve any of the purposes listed in Article 5 § 1 (a), (b), or (c) either.",
"159. He concluded that his detention had been unlawful as it fell outside the scope of Article 5 § 1 of the Convention.",
"2. The Government",
"160. The Government maintained that the applicant’s detention in the temporary detention centre had been in accordance with Article 5 § 1 (d) of the Convention since his placement had been ordered precisely for the purposes of “educational supervision”. They noted that the national courts had authorised the applicant’s placement in the temporary detention centre to prevent him from committing further offences – by correcting his behaviour through individual preventive work – in accordance with section 22(2)(4) of the Minors Act. They observed that other preventive measures taken earlier had not resulted in the improvement of the applicant’s behaviour and that his family had been unable to ensure proper supervision. In relation to this, the Government emphasised the applicant’s troubled background with alcoholic parents, placements in orphanages, anti ‑ social and aggressive behaviour and commission of offences which had led to his being placed under the preventive supervision of the Juveniles Inspectorate between 2002 and 2005. They noted that the case file concerning the preventive supervision of the applicant had been destroyed in 2011.",
"161. Moreover, the Government submitted that individual preventive work, foreseen by the Minors Act, included an element of “educational supervision”, and its implementation at the temporary detention centre had been expressly required in the applicant’s situation. While the applicant’s personal file from the centre had been destroyed in accordance with domestic rules, the Government relied on other documents that indirectly confirmed that individual preventive work had been carried out with the applicant during his stay, such as an undated personality profile ( характеристика ) of the applicant issued by the temporary detention centre at the request of his representative (submitted to the Court by the applicant’s grandfather in 2007). They further relied on a number of documents to demonstrate that temporary detention centres in general were designed to provide “educational supervision” and secondary-school education, such as the staff schedule approved on 18 June 2003, the contracts of 1 September 2004 and 1 September 2005 between the temporary detention centre and school no. 15 of Novosibirsk on the provision of education to minors placed at the centre, and the licence issued to that school for the period from 4 September 2002 until 19 June 2007 to work with the educational and consultation centre of the temporary detention centre.",
"162. The Government also claimed that the regime in closed educational institutions, as foreseen by section 15(4) of the Minors Act, was similar to the regime in temporary detention centres, as specified in section 22(2)(4) of the Minors Act. Although the emphasis was placed differently in the wording of the two provisions, the essence, methods and aims of the work conducted with the minors were the same in both places. The difference was merely in the duration of the stay. The main objects of the closed educational institutions, as specified in section 15 of the Minors Act, were fully applicable to temporary detention centres.",
"3. The third-party intervener",
"163. The MDAC pointed out that, pursuant to Article 37 (b) of the CRC, the arrest, detention or imprisonment of a child must be in conformity with the law and used only as a measure of last resort and for the shortest possible time (see paragraph 82 above). It further observed that the Committee on the Rights of the Child, in its General Comment No. 9 (2006), stated that “[c]hildren with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment ... and the child should be placed in an institution that has specially trained staff” (see paragraph 83 above). Moreover, Rule 28 of the Havana Rules (see paragraph 87 above) provided that “[t]he detention of juveniles should only take place under conditions that took full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensured their protection from harmful influences and risk situations”.",
"C. The Court’s assessment",
"164. The Court notes at the outset that the Government have not maintained their claim that the applicant’s placement in the temporary detention centre fell outside the scope of Article 5 of the Convention on the ground that the placement did not constitute a deprivation of liberty. In any event, the Court confirms the Chamber’s finding that the applicant’s placement for thirty days in the temporary detention centre amounted to a deprivation of liberty within the meaning of Article 5 § 1, noting in particular that the centre was closed and guarded, with twenty-four-hour surveillance of inmates to ensure that they did not leave the premises without authorisation, and with a disciplinary regime enforced by a duty squad (see paragraphs 71-72 above).",
"165. Moreover, the applicant has submitted that his placement in the temporary detention centre fell outside the scope of all sub-paragraphs of Article 5 § 1 while the Government, in their submissions to the Grand Chamber, have claimed that the placement was in accordance with Article 5 § 1 (d), without arguing that it could also fall under one of the other sub-paragraphs of the said provision. In view of this, and agreeing with the Chamber’s findings that the applicant’s detention did not come within the scope of Article 5 § 1 (a), (b), (c), (e) or (f) of the Convention (see paragraphs 117-27 of the Chamber judgment), the Court will focus its examination on whether or not the applicant’s placement in the temporary detention centre was in accordance with Article 5 § 1 (d).",
"166. The Court reiterates that the list of exceptions to the right to liberty set out in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997 ‑ IV ). Moreover, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local-authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see P. and S. v. Poland, no. 57375/08, § 147, 30 October 2012; D.G. v. Ireland, no. 39474/98, § 80, ECHR 2002 ‑ III; and Koniarska v. the United Kingdom (dec.), no. 33670/96, 12 October 2000).",
"167. Further, detention for educational supervision pursuant to Article 5 § 1 (d) must take place in an appropriate facility with the resources to meet the necessary educational objectives and security requirements. However, placement in such a facility does not necessarily have to be immediate. Sub-paragraph (d) does not preclude an interim custody measure being used as a preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however, the interim custody measure must be speedily followed by actual application of a regime of educational supervision in a setting (open or closed) designed – and with sufficient resources – for the purpose (see Bouamar v. Belgium, 29 February 1988, §§ 50 and 52, Series A no. 129, and D.G. v. Ireland, cited above, § 78).",
"168. In the present case, it appears from the relevant provisions in the Minors Act that a placement in such a centre should be of a temporary character – as the name itself indicates – and for the shortest possible time, thirty days at the most. Thus, for instance, a minor may be placed there while his identity and place of residence are established or for the time necessary to prepare his transfer to, or return following an escape from, a closed educational institution (section 22(2)(4-6) of the Minors Act). However, none of these grounds is relevant in the present case since the applicant’s placement was for the purpose of “correcting his behaviour”. In any event, the various reasons provided for in the Minors Act for placing a minor in a temporary detention centre indicate that its purpose is interim accommodation only until a permanent solution is found and not for “educational supervision”.",
"169. In the Court’s view, and contrary to the Government’s claims, the applicant’s placement in the temporary detention centre cannot be compared to a placement in a closed educational institution, which is a separate and long-term measure intended to try to help minors with serious problems (compare A. and Others v. Bulgaria, no. 51776/08, §§ 66-74, 29 November 2011). As noted above, placement in a temporary detention centre is a short-term, temporary solution, and the Court fails to see how any meaningful educational supervision to change a minor’s behaviour and offer him or her appropriate treatment and rehabilitation, can be provided during a maximum period of thirty days.",
"170. As concerns the Government’s submission that the applicant did receive schooling in the temporary detention centre, the Court finds that the documents relied on by the Government show that an agreement existed with a local school to provide education to the juveniles at the temporary detention centre during the time that the applicant was there. In this connection, the Court considers that, in order to avoid gaps in their education, schooling in line with the normal school curriculum should be standard practice for all minors deprived of their liberty and placed under the State’s responsibility, even when they are placed in a temporary detention centre for a limited period of time,. This is also supported by international instruments dealing with the deprivation of liberty of minors (see, for instance, Rules 77, 78.3 and 78.5 of the 2008 European Rules for juvenile offenders subject to sanctions and measures; Guidelines 21 and 28 of the Council of Europe Guidelines on child friendly justice; Rule 26.2 of the Beijing Rules; and Rule 38 of the Havana Rules. All of these sources are cited above in paragraphs 79, 80, 86 and 87 respectively). Consequently, while the Court accepts that some schooling was provided in the centre, it considers that this does not substantiate the Government’s argument that the applicant’s placement was “for the purpose” of educational supervision. On the contrary, the centre was characterised by its disciplinary regime rather than by the schooling provided.",
"171. The Court further considers it to be of importance that none of the domestic courts examining the applicant’s detention order stated that the placement was for educational purposes. Instead, they referred to “behaviour correction” and the need to prevent him from committing further delinquent acts, neither of which is a valid ground covered by Article 5 § 1 (d) of the Convention. In fact, the Court observes that the purpose of “behaviour correction” coincides with the aims of criminal punishment found in Article 43 § 2 of the Criminal Code and in Article 87 § 2 of the Code for minors between 14 and 18 years of age (see paragraphs 57-58 above).",
"172. In view of the foregoing, the Court finds that the applicant’s placement in the temporary detention centre did not fall under Article 5 § 1 (d) of the Convention. Since it has already established that the detention did not fall within the ambit of any of the other sub-paragraphs of this provision, it follows that there has been a violation of Article 5 § 1.",
"V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"173. The applicant further complained that the proceedings relating to his placement in the temporary detention centre had been unfair. In particular, he alleged that he had been questioned by the police without his guardian, a defence lawyer or a teacher present and that he had not had the opportunity to cross-examine witnesses against him during the proceedings. He relied on Article 6 §§ 1 and 3 of the Convention, which in their relevant parts read as follows:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"...”",
"A. Applicability of Article 6 to the present case",
"1. The parties’ submissions",
"174. Firstly, in their submissions before the Grand Chamber, the Government considered that the court hearing of 21 February 2005 ordering the applicant’s detention in the temporary detention centre should be examined for compliance with the requirements of Article 5 § 4 of the Convention, instead of Article 6, since it concerned the imposition of a measure for the purposes foreseen by Article 5 § 1 (d). In this connection they noted that the Chamber had already examined another court hearing, namely that of 11 April 2005 relating to the applicant’s appeal against his placement in the temporary detention centre, for compliance with Article 5 § 4. Moreover, the Court had previously relied on this provision in relation to similar measures (in Ichin and Others v. Ukraine, nos. 28189/04 and 28192/04, §§ 41 and 43, 21 December 2010, and A. and Others v. Bulgaria, cited above, §§ 81 and 107).",
"175. In any event, the Government maintained their stance that Article 6 of the Convention was not applicable to the proceedings in the present case.",
"176. They contended that, as far as the pre-investigation inquiry was concerned, it had only involved one informal act with the participation of the applicant – the questioning – which should not be confused with a formal interview. They further reiterated that the pre-investigation inquiry concerned only the establishment of the facts and could not lead to the imposition of any punishment and thus did not involve the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention. The inquiry could only lead to a decision whether or not to institute criminal proceedings. Since the applicant was under the age of criminal responsibility, the institution of criminal proceedings was excluded. Thus, as in the situation of a mentally ill defendant, the possibility of conviction was completely excluded. Referring to Kerr v. the United Kingdom ((dec.), no. 63356/00, 23 September 2003) and Antoine v. the United Kingdom ((dec.), no. 62960/00, 13 May 2003), the Government observed that, for exactly these reasons, the Court had found that Article 6 was not applicable to criminal proceedings in respect of mentally ill defendants.",
"177. Regarding the proceedings leading to the applicant’s placement in the temporary detention centre, the Government argued that Article 6, under its criminal head, was not applicable. They referred to sections 22(2)(4) and 31.1(2) of the Minors Act and to the domestic court rulings of 21 February 2005 and 29 May 2006. In their view, these sources confirmed that the purpose of the applicant’s placement in the temporary detention centre had been to prevent him from committing further offences, by correcting his behaviour, and not to punish him for the latest offence he had committed. Thus, the domestic courts had examined not only the circumstances of the latest offence, but the entire record of the applicant’s anti-social and delinquent behaviour, as well as his living conditions and family situation, and had concluded that he lacked the necessary supervision and that the preventive measures previously put in place had been inadequate. Consequently, the domestic court could not, and had not, established the applicant’s guilt in respect of a crime but had merely assessed the sufficiency of the evidence confirming his commission of an act prohibited by the Criminal Code. This could not amount to a “determination of a criminal charge” within the meaning of Article 6 § 1. Furthermore, the court hearing of 21 February 2005 had been conducted in accordance with the procedure foreseen by the Minors Act, not by the Code of Criminal Procedure, and the Constitutional Court of the Russian Federation had expressly stated that this procedure under the Minors Act constituted a type of civil proceedings (finding of 14 May 2013, no. 690-O).",
"178. The applicant contested the applicability of Article 5 § 4 and maintained that the Chamber’s approach had been the correct one and that the proceedings fell within the scope of Article 6 and should be considered in terms of compliance with that provision. He contended that his placement in the temporary detention centre had not been aimed at educational supervision but to punish him for the crime he had allegedly committed. In his view, the authorities had used the placement as a measure of criminal prosecution since they were prevented from instituting criminal proceedings against him on account of his age.",
"2. The Court’s assessment",
"179. The Court notes that, in its judgment, the Chamber came to the conclusion that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention (see paragraph 149 of the Chamber judgment). It held as follows.",
"“139. The Court reiterates that the concept of a ‘criminal charge’ within the meaning of Article 6 § 1 is an autonomous one. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), to be considered in determining whether or not there was a ‘criminal charge’ within the meaning of Article 6 § 1 of the Convention. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, in particular, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003 ‑ X).",
"140. Turning to the present case, the Court observes that, after establishing that the applicant’s actions contained elements of the criminal offence of extortion, the domestic authorities refused to institute criminal proceedings against him because he was under the statutory age of criminal responsibility ... Subsequently, in separate proceedings, a court ordered the applicant’s placement in a temporary detention centre for juvenile offenders for thirty days on the ground that he had committed a delinquent act – extortion – and it was necessary to ‘correct his behaviour’ and prevent him from committing further delinquent acts ...",
"141. The Court takes note of the Government’s argument that the proceedings against the applicant were not classified as criminal under domestic law. It has already recognised that States, in the performance of their task as guardians of the public interest, are entitled to create or maintain a distinction between different categories of offences for the purposes of their domestic law and to draw a dividing line between what belongs to the criminal sphere and what does not. By removing certain forms of conduct from the category of criminal offences under domestic law, the law-maker may be able to serve the needs of the proper administration of justice, as well as the interests of the individual, as in the present case for example, by exempting minors under a certain age from criminal liability for their actions according to the level of development of their mental and intellectual capacities. Nevertheless, the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of Article 6. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see Öztürk v. Germany, 21 February 1984, § 49, Series A no. 73; Campbell and Fell v. the United Kingdom, 28 June 1984, § 68, Series A no. 80; Ezeh and Connors, cited above, § 83; and Matyjek v. Poland (dec.), no. 38184/03, § 45, 30 May 2006). In view of the above, the fact that the proceedings against the applicant were not classified as criminal under Russian law has only a formal and relative value; the ‘very nature of the offence is a factor of greater import’ (see Ezeh and Connors, cited above, § 91).",
"142. It was not disputed before the Court that the delinquent act imputed to the applicant corresponded to an offence in the ordinary criminal law. Indeed, the decision not to institute criminal proceedings stated that ‘[the applicant’s] actions ... contained elements of the criminal offence of extortion, punishable by Article 163 of the Criminal Code’ ... At the same time, the Court does not lose sight of the fact that the criminal charges against the applicant were not pursued on the ground that he had not reached the statutory age of criminal responsibility. It is, however, not necessary to decide whether, despite the indisputably criminal nature of the imputed offence, the fact that criminal prosecution of the applicant was legally impossible because of his age removed the proceedings against him from the ambit of the criminal limb of Article 6. The Court will instead concentrate on the third criterion: the nature and degree of severity of the penalty that the applicant risked incurring.",
"143. The Court observes that under Russian law a minor who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a closed educational institution for up to three years, or in a temporary detention centre for juvenile offenders for up to thirty days ... In the present case, within a month of the refusal to institute criminal proceedings against the applicant, the local department of the interior asked a court to place him in a temporary detention centre for juvenile offenders on the ground that he had committed a delinquent act for which he could not be held criminally liable because of his age. Referring to his unruly way of life and previous delinquent acts, the local department of the interior claimed that it was necessary to detain the applicant in order to ‘correct’ his behaviour and prevent him from committing further delinquent acts ... The District Court ordered the applicant’s placement in a temporary detention centre for juvenile offenders for thirty days for ‘behaviour correction’, on the grounds that he had not ‘drawn proper conclusions’ from his previous placements in that centre and had committed a further delinquent act ... The Regional Court upheld that decision on appeal, referring to the fact that the applicant had committed a delinquent act punishable by the Criminal Code and to his family situation and poor school performance. It found that his placement in the centre was necessary to prevent him from committing further delinquent acts ...",
"144. The Court is not oblivious to the fact that the decision to place the applicant in the temporary detention centre for juvenile offenders was taken in separate proceedings which were formally unrelated to the criminal pre-investigation inquiry regarding the applicant. However, taking into account that the domestic courts referred to the fact that the applicant had committed a delinquent act as the main reason for his placement in the temporary detention centre for juvenile offenders, and that in their decisions they extensively relied on the documents obtained and the findings made during the criminal pre-investigation inquiry, the Court considers that there was a close link, both in law and fact, between the criminal pre-investigation inquiry and the placement proceedings. Indeed, the wording of the applicable legal provisions and of the judicial decisions, both cited in paragraph 143 above, clearly shows that the applicant’s placement in the temporary detention centre for juvenile offenders was a direct consequence of the local department of the interior’s finding that his actions had contained elements of the criminal offence of extortion.",
"145. The Court has already found that the placement in a temporary detention centre for juvenile offenders amounted to a deprivation of the applicant’s liberty ... There is therefore a presumption that the proceedings against the applicant were ‘criminal’ within the meaning of Article 6, a presumption which was rebuttable only in entirely exceptional circumstances and only if the deprivation of liberty could not be considered “appreciably detrimental” given its nature, duration or manner of execution (see Ezeh and Connors, cited above, § 126).",
"146. As already found above, the applicant’s placement in the temporary detention centre for juvenile offenders did not pursue the purpose of educational supervision ... The stated purpose of the applicant’s placement in the detention centre for juvenile offenders was to correct his behaviour and to deter him from committing further delinquent acts rather than to punish him. However, the Court’s case-law indicates that it may be necessary to look beyond the appearances and the language used and concentrate on the realities of the situation (see Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002 ‑ IV, and Ezeh and Connors, cited above, § 123).",
"147. The Court notes that the applicant’s detention lasted thirty days and was served in a detention centre for juvenile offenders rather than in an educational institution. As established above, the centre was closed and guarded to prevent inmates from leaving without authorisation. Inmates were subject to constant supervision and to a strict disciplinary regime ... The Court therefore considers that the deprivation of liberty, imposed after a finding that the applicant’s actions contained elements of the criminal offence of extortion and served in a detention centre for juvenile offenders subject to a quasi-penitentiary regime as described above, contained punitive elements as well as elements of prevention and deterrence. The Court finds it difficult to distinguish between the punishment and deterrent aims of the measure in question, these objectives not being mutually exclusive and being recognised as characteristic features of criminal penalties. Indeed, in the Court’s case-law criminal penalties have customarily been recognised as comprising the twin objectives of punishment and deterrence (see Öztürk, cited above, § 53; Bendenoun v. France, 24 February 1994, § 47, Series A no. 284; Lauko v. Slovakia, 2 September 1998, § 58, Reports 1998 ‑ VI; and Ezeh and Connors, cited above, §§ 102 and 105).",
"148. In view of the nature, duration and manner of execution of the deprivation of liberty which was liable to be, and which actually was, imposed on the applicant, the Court finds no exceptional circumstances capable of rebutting the presumption that the proceedings against the applicant were “criminal” within the meaning of Article 6.",
"149. In view of the above, the Court concludes that the nature of the offence, together with the nature and severity of the penalty, were such that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention. This Article therefore applies to the proceedings against the applicant.”",
"180. The Court does not see any reason to depart from the Chamber’s findings, which are detailed and well reasoned. Like the Chamber, it emphasises the need to look beyond appearances and the language used and to concentrate on the realities of the situation (see paragraph 146 of the Chamber judgment). When doing so in the applicant’s case, the Court considers that his placement for thirty days in the temporary detention centre for juvenile offenders had clear elements of both deterrence and punishment (see paragraph 147 of the Chamber judgment).",
"181. Having regard to the above, the Court does not agree with the Government’s contention that the complaints should be considered under Article 5 § 4 of the Convention. In its view, since the proceedings taken against the applicant concerned the determination of a criminal charge, the applicant’s complaints should be seen in the context of the more far-reaching procedural guarantees enshrined in Article 6 of the Convention rather than Article 5 § 4. The Court would add that it does not agree with the Government’s submission that the applicant’s situation should be treated in the same way as that of a mentally ill defendant. In cases of mentally ill defendants, the proceedings can lead to their being placed in closed institutions for treatment and to prevent them from committing further criminal acts. There are no punitive or deterrent elements involved, unlike in the applicant’s case.",
"182. Accordingly, the Court concludes that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention and that this provision is therefore applicable in the present case.",
"B. Compliance with the requirements of Article 6",
"1. The Chamber judgment",
"183. With regard to the applicant’s complaint that he had been questioned by the police in the absence of his guardian, a defence lawyer or a teacher, the Chamber noted that there was no evidence to support the Government’s claim that the applicant’s grandfather, his guardian, or anyone else had been present during the questioning. Moreover, having regard to his young age, it considered the circumstances surrounding the questioning to have been psychologically coercive. The Chamber further observed that the applicant’s confession to the police had been used against him in the ensuing proceedings. Thus, the absence of a lawyer while in police custody had irremediably affected his defence rights and undermined the fairness of the proceedings as a whole. There had therefore been a violation of Article 6 §§ 1 and 3 (c).",
"184. Next, the Chamber noted that the applicant had had no opportunity to cross-examine S. and his mother although their witness statements were the only evidence against him and had therefore been decisive. Moreover, no efforts had been made by the authorities to secure the appearance of S. or his mother in court, nor had they made a reasonable effort to compensate for this. It therefore found that the applicant’s right to question and challenge witnesses had been restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d).",
"185. Lastly, the Chamber observed that the above-mentioned restrictions on the applicant’s defence rights had been due to the special legal regime applicable to his situation because he had not reached the statutory age of criminal responsibility. The Minors Act, applicable to the proceedings against the applicant, provided for significantly restricted procedural guarantees. In view of the above considerations, the proceedings against the applicant had not been fair and there had been a violation of Article 6 § 1.",
"2. The parties’ submissions",
"(a) The applicant",
"186. The applicant fully agreed with the Chamber judgment. He maintained that he had been deprived of his right to a defence both at the time of his initial questioning at the police station and during the court proceedings to place him in the temporary detention centre. He had also been deprived of legal safeguards such as the right to question witnesses and be presumed innocent.",
"(b) The Government",
"187. The Government submitted that the applicant had been questioned by a specially trained officer from the Juveniles Inspectorate at the police station in the presence of his grandfather. He had also been informed of his right not to make self-incriminating statements, which was confirmed by his signature on the first page of his confession statement.",
"188. Moreover, since the Government considered that the court hearing of 21 February 2005 ordering the applicant’s detention in the temporary detention centre should be examined for compliance with the requirements of Article 5 § 4 of the Convention, instead of Article 6, they developed their arguments with reference to that provision. They emphasised, in particular, that the procedure under Article 5 § 4 did not necessarily have to be attended by the same guarantees as those required under Article 6 for criminal proceedings.",
"189. Thus, the Government pointed out that the hearing of 21 February 2005 had been held in compliance with section 31.2(2) of the Minors Act and attended by the applicant, his grandfather, a court-appointed lawyer, the officer from the Juveniles Inspectorate who had delivered the ruling of 12 January 2005 on the refusal to initiate criminal proceedings against the applicant, as well as a prosecutor. The applicant’s grandfather had denied that the applicant had committed any offences, referring to his visit to a doctor earlier on the relevant day, and the applicant had refused to give any explanation. The court-appointed lawyer had objected to the applicant’s placement in the temporary detention centre. While acknowledging that S. and his mother had not been heard during the hearing, the Government expressed doubts as to whether the applicant had even requested their attendance, since this did not appear from the judgment. Moreover, the court hearing record had been destroyed together with the case file in 2013. Furthermore, in his cassation complaint of 2 March 2005, the applicant’s grandfather did not claim to have made such a request to the court. The Government further noted that section 31.2 of the Minors Act neither required nor prohibited the examination of witnesses.",
"190. In view of the above, the Government considered that the applicant’s complaints concerning the fairness of the proceedings did not disclose any violation of the Convention.",
"(c) Third-party interveners",
"(i) The MDAC",
"191. The MDAC stressed that States had a positive obligation to apply stringent and effective safeguards in order to ensure that rights were “practical and effective” and that this was particularly important in relation to children with disabilities, who were very vulnerable. Article 13 of the CRPD addressed the specific issue of access to justice of persons with disabilities and stated that States Parties must ensure effective access to justice for persons with disabilities, including through the provision of procedural and age-appropriate accommodation, in order to facilitate their effective role as direct or indirect participants in all legal proceedings. Reasonable accommodation meant that appropriate modification and adjustments, which did not impose a disproportionate or undue burden, should be taken in each particular case. Moreover, Article 40 of the CRC dealt with children in conflict with the law and listed the minimum guarantees for children, including the right to legal assistance (see paragraph 82 above). The MDAC reiterated that the best interests of the child had to be of primary importance.",
"(ii ) League of Human Rights",
"192. The League of Human Rights (“the LIGA”) also referred to Article 40 of the CRC. It further referred to the Beijing Rules (see paragraph 86 above), the Guidelines for Action on Children in the Criminal Justice System (Annex to UN Resolution 1997/30, adopted on 21 July 1997) and the Havana Rules (see paragraph 87 above) which all provided for a right to legal counsel and assistance for children in conflict with the law. Moreover, the LIGA pointed out that Council of Europe Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures (see paragraph 79 above) provided that juveniles should not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure. The LIGA also stressed that the right to legal assistance, referred to in various international instruments, applied from the very outset of a procedure, including the police questioning stage, involving children and those under the age of criminal responsibility. Since children below the age of criminal responsibility were often subject to very paternalistic proceedings on the grounds that the proceedings were not penal but protective, the traditional procedural safeguards were often not applied. That approach was based on the theory of welfare juvenile justice systems which had emerged in the United States of America and Europe in the late nineteenth and early twentieth centuries and had been systematically criticised by a number of scholars for its overall paternalistic approach to children, typically suppressing their procedural rights and treating them as objects of care and discipline.",
"193. According to the LIGA, the particular vulnerability of children should instead require additional protection of their rights. In particular, legal assistance should be provided to all children on a mandatory basis. Lastly, it noted that Guideline 30 of the Council of Europe Guidelines on child friendly justice (see paragraph 80 above) stated that a child who had been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent was available, another person whom the child trusted.",
"3. The Court’s assessment",
"(a) General principles",
"194. The Court reiterates that, as the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, it often examines the complaints under both provisions taken together (see, among many other authorities, Lucà v. Italy, no. 33354/96, § 37, ECHR 2001 ‑ II; Krombach v. France, no. 29731/96, § 82, ECHR 2001 ‑ II; and Poitrimol v. France, 23 November 1993, § 29, Series A no. 277 ‑ A). Moreover, where the applicant complains of numerous procedural defects, the Court may examine the various grounds giving rise to the complaint in turn in order to determine whether the proceedings, considered as a whole, were fair (see Insanov v. Azerbaijan, no. 16133/08, §§ 159 et seq. 14 March 2013, and Mirilashvili v. Russia, no. 6293/04, §§ 164 et seq., 11 December 2008 ).",
"195. As regards juvenile defendants, the Court has held that the criminal proceedings must be so organised as to respect the principle of the best interests of the child. It is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see Adamkiewicz v. Poland, no. 54729/00, § 70, 2 March 2010; Panovits v. Cyprus, no. 4268/04, § 67, 11 December 2008; V. v. the United Kingdom [GC], no. 24888/94, § 86, ECHR 1999 ‑ IX; and T. v. the United Kingdom [GC], no. 24724/94, § 84, 16 December 1999). The right of a juvenile defendant to effective participation in his criminal trial requires that the authorities deal with him with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce, as far as possible, the child’s feelings of intimidation and inhibition and ensure that he has a broad understanding of the nature of the investigation, of what is at stake for him, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent ( see Martin v. Estonia, no. 35985/09, § 92, 30 May 2013; Panovits, cited above, § 67; and S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004 ‑ IV ).",
"196. In view of his status as a minor, when a child enters the criminal-justice system his procedural rights must be guaranteed and his innocence or guilt established, in accordance with the requirements of due process and the principle of legality, with respect to the specific act which he has allegedly committed. On no account may a child be deprived of important procedural safeguards solely because the proceedings that may result in his deprivation of liberty are deemed under domestic law to be protective of his interests as a child and juvenile delinquent, rather than penal. Furthermore, particular care must be taken to ensure that the legal classification of a child as a juvenile delinquent does not lead to the focus being shifted to his status as such, while neglecting to examine the specific criminal act of which he has been accused and the need to adduce proof of his guilt in conditions of fairness. Processing a child offender through the criminal-justice system on the sole basis of his status of being a juvenile delinquent, which lacks legal definition, cannot be considered compatible with due process and the principle of legality (see, mutatis mutandis, Achour v. France [GC], no. 67335/01, §§ 45-47, ECHR 2006 ‑ IV, relating to the legal classification of recidivism). Discretionary treatment, on the basis of someone being a child, a juvenile, or a juvenile delinquent, is only acceptable where his interests and those of the State are not incompatible. Otherwise – and proportionately – substantive and procedural legal safeguards do apply.",
"(i) Right to legal assistance",
"197. The Court notes that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol, cited above, § 34).",
"198. As regards legal assistance at the pre-trial stages of the proceedings, the Court has emphasised the importance of the investigative stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at trial. Therefore, the Court has held that the particular vulnerability of the accused at the initial stages of police questioning can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. Indeed, this right presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. It is further important to protect the accused against coercion on the part of the authorities and contribute to the prevention of miscarriage of justice and ensure equality of arms. Accordingly, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as soon as a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced where incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Panovits, cited above, §§ 64-66, and Salduz v. Turkey [GC], no. 36391/02, §§ 50-55, ECHR 2008).",
"199. In view of the particular vulnerability of children, and taking into account their level of maturity and intellectual and emotional capacities, the Court stresses in particular the fundamental importance of providing access to a lawyer where the person in custody is a minor (see Salduz, cited above, § 60; see also the case-law cited in paragraph 195 above).",
"(ii) Right to obtain the attendance and examination of witnesses",
"200. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must usually be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Lucà, cited above, §§ 39-40).",
"201. Moreover, having regard to the Court’s case-law, firstly, there must be a good reason for the non-attendance of a witness at the trial and, secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011, as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, ECHR 2015 ).",
"202. Where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (see Al-Khawaja and Tahery, cited above, § 147, and as further developed in Schatschaschwili, cited above, § 116).",
"(b) Application to the present case",
"203. The Court notes from the outset that the applicant in the present case was only 12 years old when the police took him to the police station and questioned him. He was thus well below the age of criminal responsibility set by the Criminal Code (fourteen years) for the crime that he was accused of, namely, extortion. In view of this, he was in need of special treatment and protection by the authorities, and it is clear from a variety of international sources (see, for instance, Council of Europe Recommendations No. R (87) 20 and Rec(2003)20; Guidelines 1, 2, and 28 to 30 of the Council of Europe Guidelines on child friendly justice; Article 40 of the CRC, and General Comment No. 10, point 33; and Rule 7.1. of the Beijing Rules, all cited above in paragraphs 77, 78, 80, 82, 84 and 86 respectively) that any measures against him should have been based on his best interests and that, from the time of his apprehension by the police, he should have been guaranteed at least the same legal rights and safeguards as those provided to adults. Moreover, the fact that the applicant suffered from ADHD, a mental and neurobehavioural disorder (see paragraph 12 above), made him particularly vulnerable and thus he required special protection (see Guideline 27 of the Council of Europe Guidelines on child friendly justice, and Article 23 of the CRC, and General Comment No. 9, points 73-74, all cited above in paragraphs 80 and 82-83 respectively).",
"204. Against this background, the Court will look at the applicant’s specific complaints under Article 6, that is, whether he was provided with legal assistance and had the opportunity to cross-examine witnesses, in order to determine whether the proceedings to place him in the temporary detention centre for juvenile offenders were fair.",
"(i) Right to legal assistance",
"205. The Court observes that it is undisputed that the applicant was taken to the police station without being told why. He also had to wait a certain amount of time before being questioned by a police officer. However, there is no indication that the applicant was in any form or manner informed that he had the right to call his grandfather, a teacher, a lawyer or another person of confidence during this period for them to come and assist him during the questioning. Nor were any steps taken to ensure that legal assistance was provided to him during the questioning. The Government’s submission that the applicant’s grandfather was present during the questioning remains unsupported by evidence. Moreover, the Court notes that the confession statement signed by the applicant – the probative value of which must be considered to be extremely questionable given his young age and health condition – did not mention the grandfather’s presence and was not countersigned by him. The written statement signed by his grandfather on the same day could, as claimed by the applicant, have been signed later, after the applicant had been questioned by the police officer, and thus does not prove his presence during the questioning. In this connection, the Court notes that it was marked on the applicant’s confession statement that he had been informed of his right not to make self-incriminating statements. However, that document did not mention that the applicant had been informed of his right to have legal counsel or someone else present during the questioning or that any such person had indeed been present.",
"206. Therefore the Court considers it established that the police did not assist the applicant in obtaining legal representation. Nor was the applicant informed of his right to have a lawyer and his grandfather or a teacher present. This passive approach adopted by the police was clearly not sufficient to fulfil their positive obligation to furnish the applicant, a child, suffering, moreover, from ADHD, with the necessary information enabling him to obtain legal representation (see Panovits, cited above, § 72).",
"207. The fact that the domestic law does not provide for legal assistance to a minor under the age of criminal responsibility when interviewed by the police is not a valid reason for failing to comply with that obligation. The Court has previously found that a systematic restriction on the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself to constitute a violation of Article 6 (see Salduz, cited above, § 56). Moreover, it is contrary to the basic principles set out in international sources according to which a minor should be guaranteed legal, or other appropriate, assistance (see, for example, Article 40 § 2 (b) (ii) of the CRC, and the comments thereto; Rule 7.1 of the Beijing Rules; and Council of Europe Recommendation No. R (87) 20, point 8, all cited in paragraphs 82, 83-84, 86 and 77 above).",
"208. Furthermore, the Court considers that the applicant must have felt intimidated and exposed while being held alone at the police station and questioned in an unfamiliar environment. In fact, he retracted the confession immediately when his grandfather came to the police station, and protested his innocence. In this regard, the Court emphasises that the confession statement, made in the absence of a lawyer, was not only used against the applicant in the proceedings to place him in the temporary detention centre but actually formed the basis, in combination with the witness statements of S. and his mother, for the domestic courts’ finding that his actions contained elements of the criminal offence of extortion, thus providing the ground for his placement in the centre.",
"209. In view of the above, the Court finds that the absence of legal assistance during the applicant’s questioning by the police irretrievably affected his defence rights and undermined the fairness of the proceedings as a whole (see Panovits, cited above, §§ 75-76, and Salduz, cited above, §§ 58 and 62).",
"210. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"(ii) Right to obtain the attendance and examination of witnesses",
"211. Turning to the applicant’s complaint that he did not have the opportunity to cross-examine S. or his mother during the District Court hearing to decide on his placement in the temporary detention centre for juvenile offenders, the Court firstly notes that it was a single judge at the Sovetskiy District Court of Novosibirsk, in accordance with sections 22(3)(2) of the Minors Act, who ordered the applicant’s placement, after holding a hearing. At the hearing, the applicant, his grandfather and court-appointed counsel were present, as were a prosecutor and the officer from the Juveniles Inspectorate who had ruled on 12 January 2005 not to initiate criminal proceedings against the applicant. From the judgment, it appears that the applicant and his grandfather had the opportunity to address the court and submit documents. Thus, the Court notes that, on the face of it, it would appear that the proceedings afforded certain procedural safeguards for the applicant.",
"212. However, the District Court was provided with the results of the pre-investigation inquiry, among other material concerning the applicant. This included the statements made by the alleged victim S. and his mother, as well as the confession statement signed by the applicant. The Court reiterates that the applicant had retracted the confession and had claimed that it had been obtained under duress. Moreover, as found above, the applicant did not benefit from the assistance of a lawyer during the questioning at the police station, which irremediably affected his defence rights. Furthermore, the grandfather also claimed that the applicant had been at a doctor’s surgery earlier on the relevant day. However, the Court observes that neither S. nor his mother was called to the hearing to give evidence and provide the applicant with an opportunity to cross-examine them, despite the fact that their testimonies were of decisive importance to the pre-investigation inquiry’s conclusion that the applicant had committed a delinquent act, namely, extortion.",
"213. In this connection, it is also relevant to note that there is no indication, nor has it been claimed by the Government, that S. and his mother were not available or that it would otherwise have been difficult to summon them to the hearing as witnesses. There was, consequently, no good reason for the witnesses’ non-attendance. Moreover, in view of the fact that the applicant had retracted his confession, the Court considers that it was important for the fairness of the proceedings that S. and his mother be heard. In the Court’s view, this safeguard is even more important when the matter concerns a minor under the age of criminal responsibility in proceedings determining such a fundamental right as his right to liberty.",
"214. Furthermore, although court-appointed counsel was present at the hearing to represent the applicant, it is unclear when she was appointed and to what extent she actually defended the applicant’s rights. If it is correct, as indicated by the Government, that no request to hear S. or his mother was made to the District Court by the applicant, then this would indicate a lack of diligence on the part of counsel and, in the Court’s view, also on the part of the judge, who should have ensured that the principle of equality of arms was respected during the proceedings. In fact, no efforts were made by the authorities to secure the appearance of S. and his mother in court, even though the Minors Act does provide for the possibility of hearing witnesses, as acknowledged by the Government. Having regard to the fact that what was at stake for the applicant in the placement proceedings was his deprivation of liberty for thirty days – not a negligible length of time for a 12-year-old boy – the Court considers that it was of utmost importance that the District Court guarantee the fairness of the proceedings.",
"215. Lastly, the Court notes that there were no counterbalancing factors to compensate for the applicant’s inability to cross-examine S. and his mother at any stage of the proceedings. As noted by the Chamber in paragraph 173 of its judgment, the applicant was not provided with an opportunity to scrutinise the witnesses’ questioning by the investigator, nor was he then or later provided with the opportunity to have his own questions put to them. Furthermore, as the witnesses’ statements to the investigator were not recorded on video, neither the applicant nor the judges were able to observe the witnesses’ demeanour under questioning and thus form their own impression of their reliability (see, for similar reasoning, Makeyev v. Russia, no. 13769/04, § 42, 5 February 2009).",
"216. Having regard to all of the above, the Court finds that the applicant’s defence rights, in particular the right to challenge and question witnesses, were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention, and there has accordingly been a violation of these provisions.",
"(iii) Conclusion",
"217. The Court has found that the applicant’s defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 of the Convention because of the absence of legal assistance during police questioning and the denial of an opportunity to cross-examine the witnesses whose evidence against him had been decisive for the domestic court’s decision to place him in the temporary detention centre for juvenile offenders for thirty days.",
"218. However, the Court considers it important to add, as did the Chamber (see paragraph 176 of its judgment), that the above restrictions were due to the fact that the applicant was under the age of criminal responsibility and therefore fell outside the protection offered by the procedural guarantees provided for by the Code of Criminal Procedure (see paragraphs 59-63 above). Instead, the Minors Act was applicable to the applicant. This Act provided for significantly restricted procedural safeguards (see paragraph 68 above) since it was intended as protective legislation for minors. According to the Court, and as also noted by the LIGA in its submission (see paragraph 192 above), this is where, as illustrated by the present case, the legislature’s intention to protect children and ensure their care and treatment comes into conflict with reality and the principles set out in paragraph 196 above, since the child is deprived of his liberty without having the procedural rights to defend himself properly against the imposition of such a harsh measure.",
"219. In the Court’s view, minors, whose cognitive and emotional development in any event requires special consideration, and in particular young children under the age of criminal responsibility, deserve support and assistance to protect their rights when coercive measures, albeit in the guise of educational measures, are applied in their regard. As is clear from the relevant international materials before the Court (see paragraphs 77-89 above), this has been established in many international documents. It has also been emphasised by the third-party interveners. Thus, the Court is convinced that adequate procedural safeguards must be in place to protect the best interests and well-being of the child, certainly when his or her liberty is at stake. To find otherwise would be to put children at a clear disadvantage compared with adults in the same situation. In this connection, children with disabilities may require additional safeguards to ensure that they are sufficiently protected. The Court would point out that this does not mean, however, that children should be exposed to a fully fledged criminal trial; their rights should be secured in an adapted and age-appropriate setting in line with international standards, in particular the Convention on the Rights of the Child.",
"220. Having regard to all of the above-mentioned considerations, the Court concludes that the applicant was not afforded a fair trial in the proceedings leading to his placement in the temporary detention centre for juvenile offenders in violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.",
"VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"221. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"1. The parties’ submissions",
"222. The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage, as awarded to him by the Chamber in its judgment, although he submitted that it would not fully cover all costs for the recovery of his physical and mental health.",
"223. The Government contested that sum and considered that if the Court were to find a violation of the Convention, the Court’s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.",
"2. The Chamber judgment",
"224. The Chamber, making an assessment on an equitable basis, awarded the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"3. The Court’s assessment",
"225. The Court observes that it has found the same combination of violations as the Chamber in the present case. Moreover, the applicant has requested the same sum as granted to him by the Chamber in its judgment. The Court finds this to be an equitable amount and thus awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"1. The parties’ submissions",
"226. The applicant also claimed a total of 24,979 roubles (RUB) (approximately EUR 417) for legal fees (RUB 20,000), translation costs (RUB 4,620) and postal expenses (RUB 359) incurred before the Grand Chamber, in addition to the sum granted by the Chamber in its judgment.",
"227. The Government contested both the sum awarded by the Chamber and the applicant’s additional claims before the Grand Chamber. They considered that the available payment receipts submitted to the Court could not be viewed as valid documentary evidence since they bore stamps of a Bar association but were signed by the representative himself. Moreover, no legal-assistance contract between the applicant, or his grandfather, and the representative had been submitted to the Court. The random payment receipts from a translation centre were also insufficient to confirm translation expenses. The Government further pointed out that the representative was not mentioned in any of the domestic courts’ decisions and that his involvement in the proceedings before the Court had been limited, most of the work having been done by the applicant’s grandfather.",
"2. The Chamber judgment",
"228. The Chamber awarded the applicant EUR 1,493 for legal fees and translation expenses, plus any tax that may be chargeable to the applicant on that amount.",
"3. The Court’s assessment",
"229. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court finds no reason to question the sum granted by the Chamber to the applicant for his costs and expenses. It further finds that the invoices and payment receipts submitted by the applicant to the Court prove that he has paid his representative RUB 20,000 for his legal services in the proceedings before the Grand Chamber. It also accepts in full the invoices and payment receipts relating to costs for translations and postal services.",
"230. In the light of the above, the Court grants the applicant the full amount claimed, that is, EUR 1,493, for the proceedings before the Chamber and EUR 417 for the proceedings before the Grand Chamber, namely, a total amount of EUR 1,910, plus any tax that may be chargeable to the applicant on that amount.",
"C. Default interest",
"231. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
220 | Aleksandr Zaichenko v. Russia | 18 February 2010 | Convicted of stealing diesel from the company for which he worked as a driver and sentenced to a suspended prison sentence, the applicant complained that his conviction had been based on admissions he had made to police before the trial in the absence of a lawyer. | The Court held that there had been no violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention. Although the applicant had not been free to leave when he was stopped on 21 February the circumstances of the case disclosed no significant curtailment of his freedom of action sufficient to activate a requirement for legal assistance at that stage. The police’s role had been to draw up a record of inspection of the car and to hear the applicant’s explanation as to the origin of the cans. That information had then been passed to an inquirer who had in turn compiled a report on the basis of which his superior had decided to open a criminal case against the applicant. At that stage (2 March 2001) the applicant was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial. | Police arrest and assistance of a lawyer | Voluntary waiver of right to assistance of a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1946 and lives in the village of Lazarevo in the Jewish Autonomous Region, Russia.",
"6. The applicant worked as a driver for a private company.",
"7. It appears that at the time there were several reported cases of the company workers allegedly pouring out diesel from their service vehicles. Thus the company's director asked the competent authorities to carry out checks.",
"8. On 21 February 2001 while driving home in the company of another person (Mr Kh), the applicant's car was stopped and inspected by the police. Two cans of diesel were discovered in the car.",
"9. According to the applicant, in reply to the questioning by the police he did not tell about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase (see also paragraph 14 below). That is why he explained that he had poured the fuel from the tank of his service vehicle (see also paragraph 11 below).",
"10. Immediately, a vehicle inspection record was drawn under Article 178 of the RSFSR Code of Criminal Procedure (CCrP) in force at the material time (see paragraph 26 below). The record reads as follows:",
"“ Vehicle Inspection Record [drawn] at Birofeld village on 21 February 2001 from 8.50 to 9.20 [pm].",
"Officers B and L in the presence of attesting witnesses K and P and [the applicant] have carried out an inspection of VAZ-21061 car in compliance with Articles 178 and 179 of the RSFSR Code of Criminal Procedure and have drawn this record under Article 182 of the Code.",
"Before the start of the inspection all the above persons have been informed of their rights to be present throughout the proceeding and to make comments in relation to the inspection ...",
"The attesting witnesses have been informed of their obligation to attest the fact of the inspection and its results (Article 135 of the Code) ...",
"During the inspection one passenger was present in the car; there was a white plastic can with fuel ( ten litres). There was another metallic can of fuel ( twenty litres) in the car boot ...",
"The physical evidence has been seized in order to be attached to a criminal file: the plastic can with fuel (ten litres) and the metallic can with twenty litres of fuel ...",
"Requests and comments by the participants: [the applicant] explained that he had poured out the fuel from the company premises.",
"I have read the record and agree with its contents.",
"Signatures: Officer B, attesting witnesses K and P, [the applicant], officer L. ”",
"11. Having completed the inspection record, officer B put in writing a statement entitled “Explanations”, which included a note concerning Article 51 of the Constitution of the Russian Federation on the privilege against self-incrimination (see paragraph 21 below). The “Explanations” read as follows:",
"“ Explanations [put in writing] on 21 February 2001 at Birofeld village.",
"I, officer B ..., have interviewed [the applicant] ...",
"The contents of Article 51 of the Constitution have been explained to me. { [the applicant's signature] }",
"I [the applicant] make the following statement. Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use.",
"{in the applicant's handwriting} I have read this statement. It is correct. {[the applicant's] signature.}",
"{Officer's B signature.}”",
"On the same day, both attesting witnesses made written statements, indicating that they had been present during the inspection of the car and seizure of the fuel. They confirmed that the applicant had explained that he had poured out the fuel from the company premises for personal use.",
"12. The applicant was not detained. On 2 March 2001 an inquirer compiled a report under a so-called record-based procedure (see paragraph 23 below) on the events of 21 February 2001. The report reads as follows:",
"“I, inquirer P, have examined the data concerning theft. As required under Article 415 of the RSFSF Code of Criminal Procedure, I have compiled this report, which states as follows:",
"At 8 pm on 21 February 2001 [the applicant] ... being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.",
"His actions disclose an offence of theft punishable under Article 158 § 1 of the Criminal Code.",
"The above has been confirmed by the following evidence:",
"1. the inspection record. 2. [the applicant's] written statement. 3. Mr K's written statement. 4. Mr P's written statement ...",
"{Inquirer P's signature}”",
"13. On the same day, the inquirer's superior opened a criminal case against the applicant on suspicion of theft and summoned him (see paragraph 23 below). The act of accusation read as follows:",
"“I, major K, having examined the [inquirer's] report and the enclosed documents, consider that there are sufficient grounds indicating that [the applicant] had committed the offence of theft punishable under Articile 158 of the Criminal Code.",
"Pursuant to the procedure under Article 415 § 4 of the RSFSR Code of Criminal Procedure, a criminal case should be opened against [the applicant]...",
"The accusation: At 8 pm on 21 February 2001 [the applicant] ... being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles.",
"Major K's signature",
"I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities'actions.",
"[the applicant's] signature",
"I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial.",
"[the applicant's] signature”",
"14. At the trial the applicant was represented by Mr Adamchik, a lawyer practising in Birobidjan. As follows from the trial judgment and the trial record, the applicant contended at the trial that he had purchased the fuel on or around 15 February 2001 at a petrol station; on 21 February 2001 he had put the cans in his car intending to exchange it for firewood later and went to his work; after the working day he was stopped by the police on his way home; when stopped he had not told about the purchase of the fuel because he felt intimidated and had no receipt to prove the purchase. He contended that Mr Kh, who was in his car on 21 February 2001, had seen the applicant purchase the fuel at the petrol station. At the trial the applicant was asked if the inspection record had been drawn up on the spot or in Birofeld. The applicant replied as follows:",
"“[The police] started to draw up the inspection record on the spot. Then a bus arrived. There was a tense situation so we left. The bus was also inspected ...",
"The inspection record was signed in Birofeld. It was started on the spot but was not finished there. ”",
"15. On 20 March 2001 the applicant submitted to the court an invoice for the purchase of diesel. The court refused to accept the invoice in evidence considering that the applicant did not specify why he had not adduced that evidence at the initial stage of the questioning by the police or at the opening of the trial. The applicant, however, indicated that the invoice had been kept by his wife. It also appears that he specified the name and location of the petrol station where he had allegedly bought it and asked the court to verify this fact. It appears that the court did not follow up his request.",
"16. The trial court heard the applicant's wife, who claimed that she had purchased the fuel and had given one petrol can to the applicant and that the applicant had purchased the remainder. The court also questioned Mr Kh who claimed to have seen the applicant purchasing diesel. Mr Kh was with the applicant on 21 February 2001 and told the court that he had not witnessed any threats to the applicant from the police officers. The trial court refused to take those testimonies into consideration, considering that those persons were in close or friendly relationship with the defendant and that their testimonies would therefore be prejudiced.",
"17. Instead, the trial judge relied on the inspection record and the written statement made by the applicant on 21 February 2001, testimonies from the attesting witnesses who had been present during the inspection and seizure of fuel from the applicant's car. The court also examined a Mr F who explained there had been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks. The applicant's car was apparently stopped during one of the checks.",
"18. Having examined the evidence, the judge considered that as followed from the inspection record, the applicant had admitted to “have stolen” the diesel from the company premises. By a judgment of 20 April 2001, the Birobidjan District Court convicted the applicant of theft and sentenced him to a suspended sentence of six months'imprisonment. The court held as follows:",
"“It follows from the inspection record that two cans of diesel (thirty litres) were seized from [the applicant's] car ... The applicant explained that he had stolen the diesel from the company premises ...",
"Assessing the defendant's testimony at the trial, the court considers that it is made-up with a view to avoiding criminal responsibility for the crime committed; this testimony has not been supported by any objective evidence. The court takes into account his pre-trial testimony, from which it follows that on 21 February 2001 after the end of his working day he had poured out fuel from his service vehicle and was stopped on his way back home. This testimony is logical and corresponds to witness statement by Mr F, Mr K and Mr P, as well as to the materials in the case file. ”",
"19. The applicant and his counsel appealed alleging that there was no proof that any diesel had been stolen from the company and that the applicant had not been apprised of the privilege against self-incrimination while the court then relied on his admissions made on 21 February 2001. In his appeal, the prosecutor considered that the applicant's acts should be reclassified as misappropriation of property. On 24 May 2001 the Court of the Jewish Autonomous Region dismissed the appeals and upheld the judgment. The court confirmed that the applicant had been convicted on the basis of his own pre-trial admission and other evidence obtained by lawful means, including the inspection record. The applicant's allegation of self-incrimination had been rightly rejected as unfounded."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Russian Constitution",
"20. Article 48 § 2 of the Constitution provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest, placement into custody or when charges are brought.",
"21. Article 51 of the Constitution provides that no one should be obliged to give evidence against himself or herself, his or her spouse or close relative. Other exemptions from the obligation to testify may be authorised by a federal statute.",
"B. RSFSR Code of Criminal Procedure",
"1. Right to legal representation",
"22. Pursuant to Article 47 § 1 of the Code, counsel could participate in the proceedings from the date when charges were brought or when the person was arrested or detained. If no preliminary inquiry or investigation was required in the case, counsel could participate in the proceedings from the date when the case was submitted for trial (Article 47 § 2). On 27 June 2000 the Constitutional Court declared Article 47 § 1 unconstitutional as regards the limitation on legal representation before charges were brought. The Constitutional Court decided that until the relevant legislation was amended, Article 48 § 2 of the Constitution should be directly applicable with due regard to the interpretation given by the Constitutional Court.",
"2. Record-based procedure",
"23. Chapter 13 of the RSFSR Code of Criminal Procedure provided for a record-based pre-trial procedure in respect of a number of criminal offences. The general provisions of the Code were applicable in this procedure unless Chapter 13 of the Code otherwise provided (Article 414). Under the record-based procedure, an inquirer was required to determine within ten days the circumstances of the case, identify the offender and collect the evidence (Article 415). The offender should sign an undertaking to present himself on the inquirer's or court's summons. The circumstances of the case and the legal characterisation of the offence should be put in writing in a report.",
"24. Having examined the report, the inquiring authority should open a criminal case. The person concerned should be informed of the nature of the accusation and be apprised of his right to legal representation and to have access to the file.",
"25. Having received the file, the prosecutor should (i) submit the case to a court or (ii) order an inquiry or preliminary investigation or (iii) discontinue the case.",
"3. Inspection",
"26. An investigator could carry out an inspection of a crime scene, location, premises, physical objects or documents in order to detect traces of the crime or other physical evidence or to determine the relevant circumstances (Article 178 of the Code). In urgent cases, the inspection could be carried out before opening a criminal case. In such cases, the case was to be opened immediately after the inspection of the crime scene.",
"27. A record had to be drawn up and signed by all persons who took part in the investigative measure (Articles 141 and 182 of the Code). Those persons were to be informed that they had a right to make comments (Article 141). If the suspect, accused or another participant refused to sign the record, a note to this effect should be included in the record (Article 142).",
"4. Admissions",
"28. An accused had a right to give the testimony on the charges against him, the circumstances of the case and the evidence collected in the case. His or her admission of guilt in the commission of an offence could be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case (Article 77 of the Code).",
"C. Code of Criminal Procedure",
"29. Article 413 of the Code of Criminal Procedure, in force at the present time, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights.",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION",
"30. The applicant alleged that the proceedings on 21 February 2001 and the ensuing criminal proceedings before the national courts, taken together, had violated his rights under Article 6 §§ 1 and 3 (c) and (d), Article 7 of the Convention and Article 2 of Protocol No. 7. The Court has examined the applicant's complaint under Article 6 of the Convention, which in the relevant parts reads as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ”",
"A. Submissions by the parties",
"1. Complaints concerning the pre-trial proceedings",
"31. The applicant alleged that on 21 February 2001 he had admitted the wrongdoing without the benefit of legal advice, fearing incarceration and in the hope of being acquitted at the trial. The applicant submitted that the village in which the questioning had taken place and the proceedings had been instituted had no lawyers. He had not been afforded any time to retain one from a nearby town.",
"32. The Government submitted that the applicant's car had been inspected in the presence of two attesting witnesses; two cans of diesel had been seized from the car. As follows from the inspection record signed by the applicant, he had poured out the diesel from his employer's premises. Thereafter, he had been apprised of his right not to testify against himself and had been questioned under Article 415 of the RSFSR Code of Criminal Procedure (CCrP) (see paragraph 23 above). The applicant confirmed that he had taken the diesel for personal use. The Government contended that Article 47 of the CCrP had not been applicable in the record-based proceedings (see paragraph 22 above). The latter did not require presence of counsel for an on-the-spot interview such as that of the applicant on 21 February 2001. In any event, the applicant waived his right not to testify against himself.",
"2. Complaints concerning the court proceedings",
"33. The applicant also complained that the trial court should not have convicted him on the basis of his pre-trial statements; the trial judge had arbitrarily rejected the testimonies by the defence witnesses, including the applicant's wife and Mr P and thus had failed to examine them under the same conditions as the prosecution witnesses, who merely attested the fact of the car inspection. He also contended that both the trial and appeal courts had wrongly refused to verify and to take into consideration other exculpatory evidence, including an invoice for the purchase of diesel.",
"34. The Government submitted that the applicant's conviction had been based on his pre-trial statements and witness testimonies by Mr K, Mr P and Mr F. The witnesses suggested by the applicant had been examined by the trial court. Their testimony had not been considered reliable in view of their interest in the outcome of the proceedings. Despite repeated requests from the trial court, the applicant had failed to provide a convincing explanation for the delay in submitting the invoice. Thus, this document had not been accepted in evidence.",
"B. The Court's assessment",
"1. Admissibility",
"35. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"( a ) General principles",
"36. The Court reiterates that Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005 ‑ IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275 ). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( Imbrioscia, cited above, § 38).",
"37. In Salduz v. Turkey [GC] ( no. 36391/02, § § 55, 27 November 2008 ) the Court held that as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid, and more recently, Çimen v. Turkey, no. 19582/02, § § 26-27, 3 February 2009 ).",
"38. The Court also reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ( see Bykov v. Russia [GC], no. 4378/02, § 92, ECHR 2009 ‑ ..., with further references ). The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put ( ibid. ).",
"39. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Public-interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see Bykov, cited above, § 93).",
"40. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance ( see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ ... ). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 324 32/96, § 59, 27 March 2007, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).",
"(b) Application in the present case",
"41. Having examined all the material submitted by the parties, the Court makes the following findings as to the sequence of events concerning the applicant's self-incriminating statements. As followed from the statement made at the trial by Mr F, there had previously been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks (see paragraph 17 above). The applicant's car was apparently stopped during one of such checks. It does not transpire from the case file that at any time on 21 February 2001 the applicant was informed of the reason for which his car had been stopped and inspected. Neither was he informed of the nature and cause of any suspicion or accusation against him. After the police inspection of his car, the applicant was asked about the origin of the fuel. He did not tell them about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase. Instead, he stated that he had poured out the fuel from his service vehicle. An inspection record was drawn. This record contained a note indicating that the applicant had poured out the fuel from the company's premises. Shortly thereafter, the applicant was apprised of his right to remain silent and signed a statement to the police confirming that he had poured out thirty litres of fuel from his service vehicle for personal use.",
"42. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “ charged ”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened ( see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, and more recently, O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 35, ECHR 2007 ‑ ... ). “ Charge ”, for the purposes of Article 6 § 1, may be defined as “ the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence ”, a definition that also corresponds to the test whether “ the situation of the [ person ] has been substantially affected” (see Shabelnik v. Ukraine, no. 16404/03, § 57, 19 February 2009; Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; and Saunders v. the United Kingdom, 17 December 1996, § § 67 and 74, Reports of Judgments and Decisions 1996 ‑ VI ). Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment.",
"43. Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, §§ 67 and 74; and Allen v. the United Kingdom (dec.), no. 76574/01, 10 September 2002). It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above). Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date “substantially affected” his situation. The Court accepts that Article 6 of the Convention was engaged in the present case. Nor was there any disagreement on this point between the parties.",
"44. The Court further notes that the main thrust of the applicant's complaint is that he was convicted on the basis of his pre-trial admissions made without the benefit of legal advice. It is noted that the respondent Government did not plead that the applicant had not exhausted domestic remedies by failing to raise in substance the above issue on appeal against the trial judgment. Thus, the Court will examine the merits of the applicant's complaint.",
"45. Although the Court has accepted that Article 6 of the Convention was applicable in the pre-trial proceedings in the present case (see paragraph 43 above), the Court repeats that the manner in which the guarantees of its paragraphs 1 and 3 (c) are to be applied in pre-trial proceedings depends on the special features of those proceedings and the circumstances of the case assessed in relation to the entirety of the domestic proceedings conducted in the case.",
"(i) Legal assistance",
"46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant “chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel ”.",
"47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre-trial proceedings (see Salduz [GC], §§ 12-17 and Öcalan [GC], § 131, both cited above; see also Shabelnik, cited above, § 59; Panovits v. Cyprus, no. 4268/04, § § 7-10, 11 December 2008; Kolu v. Turkey, no. 35811/97, § § 14-22, 2 August 2005; Brennan v. the United Kingdom, no. 39846/98, § 41, ECHR 2001 ‑ X; Quinn v. Ireland, no. 36887/97, § § 10-13, 21 December 2000; Averill v. the United Kingdom, no. 36408/97, § 55, ECHR 2000 ‑ VI; Magee v. the United Kingdom, no. 28135/95, § § 8-15, ECHR 2000 ‑ VI; and Imbrioscia, §§ 9-19, cited above) because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self-incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events.",
"48. Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings.",
"49. The Court notes that the role of the police in a situation such as in the present case was to draw up an inspection record and receive the applicant's explanation as to the origin of the cans in his car (see paragraphs 9 and 10 above). Having done so, the police transferred the documents to the inquirer who, in his turn, compiled a report to his superior indicating that there was a case to answer against the applicant on suspicion of theft (see paragraph 12 above). This report prompted the inquirer's superior to open a criminal case against the applicant (see paragraph 13 above).",
"50. At that stage, namely on 2 March 2001, the applicant was apprised of his right to legal assistance. It was open to him to consult a lawyer before attending the meeting on 2 March 2001. At that meeting the applicant was presented with the version of the events based on his statements made on 21 February 2001. The applicant voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial.",
"51. The foregoing considerations suffice for the Court to conclude that the absence of legal representation on 21 February and 2 March 2001 did not violate the applicant's right to legal assistance under Article 6 § 3 (c) of the Convention.",
"(ii) Privilege against self-incrimination and right to remain silent",
"52. Concerning the privilege against self-incrimination and the right to remain silent, the Court has already held that the circumstances of the case disclosed the existence of a suspicion of theft against the applicant after he had failed to prove the fuel purchase (see paragraph 42 above). It is not without relevance in that connection that when putting in writing the applicant's “explanations”, officer B considered it necessary to apprise him of the privilege against self-incrimination. In the Court's opinion, this fact also gives credence to the argument suggesting that already at that time the authorities suspected the applicant of theft. The Convention is intended to guarantee rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court considers that in the circumstances of the case it was incumbent on the police to inform the applicant of the privilege against self-incrimination and the right to remain silent.",
"53. The Court notes that the Government maintained that the applicant had waived his right not to testify against himself. The applicant did not dispute this. It is true that in accordance with Article 51 of the Constitution the applicant was told that he was not obliged to give evidence against himself (see paragraph 21 above). Although it has not been alleged that the above warning was in any way insufficient, Court notes that the applicant was apprised of the right to remain silent after he had already made a self-incriminating statement in the inspection record indicating that he had poured out the diesel from the company's premises.",
"54. Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating (see Saunders, cited above, § 71). Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility (ibid).",
"55. The Court considers that being in a rather stressful situation and given the relatively quick sequence of the events, it was unlikely that the applicant could reasonably appreciate without a proper notice the consequences of his being questioned in proceedings which then formed basis for his prosecution for a criminal offence of theft. Consequently, the Court is not satisfied that the applicant validly waived the privilege against self-incrimination before or during the drawing of the inspection record. Moreover, given the weight accorded to the applicant's admission at the trial, the Court does not need to determine the validity of the applicant's subsequent waiver of the privilege against self-incrimination in the “Explanations”, which derived from his earlier admission (see paragraphs 11 and 40 above).",
"56. In sum, the evidence available to the Court supports the claim that the applicant's pre-trial admission, whether directly self-incriminating or not, was used in the proceedings in a manner which sought to incriminate him. In the Court's view, statements obtained in the absence of procedural guarantees, should be treated with caution (see Lutsenko v. Ukraine, no. 30663/04, § 51, 18 December 2008 ).",
"57. Hence, what remains to be determined is whether the criminal proceedings against the applicant can be considered fair on account of the use made of the applicant's pre-trial admission. Regard must be had to whether the rights of the defence have been respected and whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy.",
"58. The Court notes in that connection that in so far as it can be discerned from the national courts'reasoning, the applicant's pre-trial admission was not considered to have been obtained in breach of domestic law. The Court considers in its turn that although the applicant was represented by a lawyer at the trial, the detriment he suffered because of the breach of due process in the pre-trial proceedings was not remedied at the trial. The trial court expressly referred to the statement made by the applicant in the inspection record and his subsequent statement. It did not draw any distinction or made any comparison between that statement and the subsequent more detailed statement made after the applicant had been apprised of Article 51 of the Constitution. While it is not the Court's role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based on the applicant's self-incriminating statements. The Court finds it regrettable that the courts did not provide sufficient reasons for dismissing the applicant's arguments challenging the admissibility of the pre-trial statements, especially in the light of the weakness of the other evidence presented by the prosecution at the trial. It was, however, the prosecution's obligation under Russian law to prove the offence of theft on the strength of the other evidence because the CCrP required that a defendant's admission of guilt in the commission of an offence could be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case (see paragraph 28 above). The Court cannot but observe that two of the witnesses presented by the prosecution only confirmed the fact of the car inspection and the seizure of the fuel. A third person only testified on the circumstances which were capable of clarifying the reasons for and the purpose of the above inspection.",
"59. The Court further observes that, contrary to the applicant's allegation, it follows from the trial record that the trial court examined witnesses on behalf of the applicant. However, it rejected their testimony as unreliable on account of the witnesses'close relationship with the applicant. Lastly, it is also noted that the court refused to accept in evidence the invoice which would allegedly exculpate the applicant (see, by contrast, Bykov, cited above, § § 95 et seq.; and Heglas v. the Czech Republic, no.5935/02, § § 89 and 90, 1 March 2007 ). Thus, the Court concludes that the trial court based the conviction of the applicant on the statement that he had given to the police without being informed of his right to not incriminate himself.",
"60. In the light of the above considerations, given the particular circumstances of the present case and taking the proceedings as a whole, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"61. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"62. The applicant claimed 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.",
"63. The Government considered that the applicant's claim concerned only non-pecuniary damage and was unsubstantiated.",
"64. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, and having regard to the nature of the violation found, the Court awards the applicant EUR 3 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.",
"65. The Court also reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned (see Öcalan [GC], cited above, § 210, and Vladimir Romanov v. Russia, no. 41461/02, § 118, 24 July 2008 ). The Court observes, in that connection, that Article 413 of the Code of Criminal Procedure of the Russian Federation provides that criminal proceedings may be reopened if the Court has found a violation of the Convention (see paragraph 29 above).",
"B. Costs and expenses",
"66. The applicant made no claim in respect of costs and expenses. The Court considers that there is no call to make an award under this head.",
"C. Default interest",
"67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
221 | Akdağ v. Turkey | 17 September 2019 | The applicant alleged that she had confessed to being a member of an illegal organisation after being threatened and ill-treated by the police, without access to a lawyer in police custody. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. Although it rejected as inadmissible the applicant’s complaint about her conviction on the basis of police statements taken under duress because of lack of evidence of ill-treatment, it found that the Turkish Government had failed to show that a printed “X” next to “no lawyer sought” on her statement form had amounted to her validly waiving her right to a lawyer during custody. In point of fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her statements. Nor was the Court satisfied with the national courts’ response to the applicant’s complaint. They had neither examined the validity of the waiver nor the statements she had made to the police in the absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced. | Police arrest and assistance of a lawyer | Voluntary waiver of right to assistance of a lawyer | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1974 and was serving a sentence in İzmit Prison at the time of lodging of the application.",
"6. On 13 November 2003 the applicant was arrested in the vicinity of her house on suspicion of membership of an illegal organisation, namely the PKK/KADEK (the Workers ’ Party of Kurdistan). She was in possession of a fake identity card at the time of her arrest.",
"7. Subsequently, police officers carried out a search of the house in which the applicant and the other co-accused, İ.A., lived. According to the search and seizure report drafted by the police and signed by the applicant and İ.A., the police searched the applicant ’ s flat and found the following items; a book with the title Twenty-first Century Women Freedom Manifesto, five pieces of rubber band used for a tourniquet, fourteen pieces of elastic plaster, ten thermometers, five bandages, nine compression bandages, and a bag of cotton balls. İ.A., who was also at the house, was arrested by the police. A paper containing the number “0535 8 .. .. ..”, which was later found to have belonged to R.B. (who was the applicant in Ruşen Bayar v. Turkey, no. 25253/08, 19 February 2019), was found on the applicant along with other material.",
"8. Her first medical examination upon her arrest was carried out at 10.45 p.m. on the same day and the applicant told the doctor that she had been arrested at approximately 3.30 p.m. and that she had not been ill-treated other than having been yelled at by the police officers. According to the medical report issued in respect of the applicant, there were no signs of violence on the applicant ’ s body.",
"9. The applicant was then taken to the anti-terrorism division of the Istanbul Security Directorate. On 14 November 2003 she was questioned by police officers in the absence of a lawyer. The applicant ’ s statements to the police were transcribed on printed forms, the first page of which was filled in to indicate, inter alia, that the applicant was suspected of carrying out activities within the PKK/KADEK. The same page also included a printed statement that, inter alia, the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant refused legal assistance, since the first page of the record includes a printed phrase stating “No lawyer sought” and a box next to it marked with a printed “X”. Moreover, according to the record, the applicant also stated that she did not want a lawyer or to remain silent. She gave a statement of nine pages in length in which she admitted her membership of the PKK/KADEK and gave a detailed account of her involvement and training in the illegal organisation, as well as how she had met R.B. and N.A., two of the co-accused. Every page of the statement form was signed by the applicant.",
"10. On 16 November 2003 İ.A. was questioned by the police, but by different police officers from the ones who had questioned the applicant. According to his statement form, which was in the same format as that of the applicant, he wished to be represented by a lawyer. A lawyer was accordingly assigned to him and İ.A. availed himself of his right to remain silent.",
"11. On 17 November 2003 at approximately 10.30 p.m., at the end of her police custody, the applicant was once again examined by a doctor. According to the report drawn up in respect of the applicant, she told the doctor that the police had hit her head, threatened to kill and rape her and had driven their car into her as a result of which she had lost consciousness. The doctor noted no signs of lesions while adding that the applicant had subjective pain in her back and on her left leg. The doctor accordingly concluded that there were no signs of violence on the applicant ’ s body.",
"12. On the same day, the applicant was brought before the public prosecutor where she gave statements in the presence of her lawyer. Denying the content of her police statements, the applicant submitted that she had had to sign those statements as a result of violence and coercion by the police. The applicant further complained that she had been ill-treated by the police as described by her in the medical report. The applicant ’ s lawyer stated that she had no connection with the PKK/KADEK.",
"13. Again on the same day, the applicant was brought before the investigating judge where she gave statements in the presence of her lawyer. She once again denied her police statements, alleging that they had been taken under duress and pressure. She complained of the alleged torture she had been subjected to while in police custody. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence and the state of the evidence.",
"14. On 4 December 2003 the public prosecutor at the Istanbul State Security Court filed a bill of indictment, accusing the applicant of being a member of an illegal terrorist organisation under Article 168 of the now defunct Criminal Code, Law no. 765.",
"15. On an unknown date the applicant lodged a formal complaint with the Fatih public prosecutor ’ s office claiming that she had been ill-treated by the police while in custody between 13 and 17 November 2003. On 31 March 2004 Fatih public prosecutor ’ s office delivered a decision not to prosecute the police officers for lack of evidence.",
"16. On 17 March 2004, at the first hearing in the case, the applicant gave evidence in person, submitting that she had not been a member of the illegal organisation and denying once again her police statements, alleging that she had been forced to sign them. She further maintained that she had been forcibly taken by the police to a graveyard and threatened with death. The applicant also mentioned that the police had hit her head against a wall several times and that she had been stripped naked hourly in order to obtain a confession from her. She maintained that her signature under her police statement had been obtained in those circumstances and further alleged that she was illiterate. The applicant further stated that the reason why she had had the fake identity card found on her had been because she had been married to İ.A. and that her family had been against the marriage.",
"17. At a hearing held on 22 November 2004 the case against the applicant and her co-accused was joined to another case brought against a number of other people charged with being members of the same illegal organisation and the killing of a certain M.Y. in 1999 on behalf of the organisation.",
"18. At the hearing on 5 June 2006 the Istanbul public prosecutor read out his observations on the merits of the case ( esas hakkında mütalaa ) to the trial court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged.",
"19. On 19 December 2008, at the eleventh hearing, the applicant ’ s lawyer submitted that they reiterated their previous defence submissions.",
"20. On 13 February 2009, during the last hearing, the applicant ’ s lawyer reiterated the previous submissions, requesting the applicant ’ s acquittal and the application of provisions in favour of the applicant.",
"21. While the applicant ’ s trial was pending before the Istanbul State Security Court, those courts were abolished in accordance with Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. Therefore, the Istanbul Assize Court acquired jurisdiction over the case.",
"22. On 13 February 2009 the Istanbul Assize Court found, inter alia, that on the basis of the applicant ’ s statements to the police, the applicant had been a member of the PKK/KADEK, and sentenced her to six years and three months ’ imprisonment. The trial court listed the following items in the following order in its judgment: a summary of the indictment, the public prosecutor ’ s observations on the merits of the case ( esas hakkında mütalaa ), the defence submissions of the defendants, the evidence, the evaluation of evidence and the sentences. The court did not rely on the case file as a whole and listed the evidence in its possession in respect of the accused in detail. It appears that the only relevant item of evidence in respect of the applicant listed in the “evidence” part of the judgment was “the statements of the accused throughout the proceedings”. The relevant parts of the trial court ’ s judgment in so far as it concerned the applicant read as follows:",
"“... [The court finds] that the [applicant] and İ .A. were members of the terrorist organisation, that they received military and political training in the organisation ’ s camps abroad, that they came to Turkey with a view to carrying out organisational activities, that a fake identity card was found on [the applicant], that she had an organisational connection with R.B. and that she lived together with the organisation member İ .A. ...”",
"23. According to the reasoned judgment, seven out of fifteen of the accused who had admitted their guilt while giving police statements in the absence of a lawyer had denied those statements either before the public prosecutor or before the investigating judge. Moreover, fourteen of the accused had denied the accusations against them during the trial. However, the reasoned judgment did not contain any examination of the admissibility of those statements.",
"24. On 13 February 2009 the applicant ’ s lawyer lodged an appeal against the decision. In that one-page-long document, it was argued that the applicant ’ s conviction had been unlawful and “contrary to procedure”. The lawyer further maintained in that appeal statement that the applicant would submit her detailed arguments following the service of the trial court ’ s reasoned judgment.",
"25. On 27 April 2010 the Court of Cassation upheld the conviction. This decision was deposited with the registry of the first-instance court on 25 May 2010."
] | [
"II. RELEVANT DOMESTIC LAW",
"26. A description of the relevant domestic law concerning the right to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27 ‑ 31, 27 November 2008).",
"27. Under Article 135/ a of the Code of Criminal Procedure in force at the time of the applicant ’ s arrest, statements were to be given by the accused of his or her own free will. Methods such as ill-treatment, torture, induced fatigue, the administration of drugs, torment and deception that “impairs the will of the accused” were proscribed. Statements that had been obtained through such methods could not be used in evidence, even if the accused had agreed to their use.",
"28. Article 238 of the same Code empowered the criminal courts to refuse to admit any unlawfully obtained evidence. Furthermore, Article 254 of the same Code explicitly stated that evidence that had been obtained unlawfully could not be used by the courts.",
"29. Article 148 of the new Code of Criminal Procedure (“the CCP”) (Law no. 5271) in force as of 1 June 2005 reads as follows:",
"“The statement of the suspect and the accused should be based on his or her own free will. Physical or psychological interference capable of undermining [the free will], such as ill-treatment, torture, the administration of drugs, induced fatigue, torment and deception, duress, threat, or use of other equipment, shall be prohibited.",
"No benefit that is contrary to law shall be promised.",
"Statements that were obtained through such methods shall not be used in evidence even if consent has been given [by the accused or the suspect] for their use.",
"Statements taken by the police in the absence of a lawyer shall not be relied on [for conviction] unless the suspect or the accused verifies them before a judge or a court.",
"...”",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"30. The applicant alleged, in particular, that she had not had a fair trial on account of the denial of access to a lawyer while in police custody and the use by the trial court of her statements allegedly obtained under duress and in the absence of a lawyer. The Court will examine her complaints under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”",
"31. The Government contested that argument.",
"A. Use of the applicant ’ s police statements taken under alleged duress",
"32. The Government raised a plea of non-exhaustion of domestic remedies in respect of the applicant ’ s complaint that her statements allegedly taken under duress had been relied on by the trial court to convict her. In that connection, the Government maintained that the applicant had failed to raise that complaint either explicitly or at least in substance before the Court of Cassation. Consequently, the Government requested that the Court reject that complaint under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.",
"33. In response, the applicant maintained that the Government ’ s objection had been in contravention of the spirit and the settled case-law of the Court under Article 6 of the Convention. She accordingly invited the Court to dismiss the Government ’ s objection.",
"34. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies, given that this part of the application is in any event inadmissible for the following reasons.",
"35. The Court observes that the applicant has not submitted any evidence demonstrating that she was subjected to physical pressure while in custody. Nor did she argue that she had been unable to obtain, or had been prevented from obtaining, any such evidence. In this connection, the Court notes that the two medical reports included in the case file indicated no signs of ill-treatment on the applicant ’ s body and at no stage of the domestic proceedings or during the proceedings before the Court did the applicant challenge the veracity of these reports or allege that the doctors who had issued them had failed to examine her properly. Moreover, the Fatih public prosecutor ’ s office issued a decision not to prosecute in respect of her complaints of ill-treatment while in police custody owing to lack of evidence. The Court therefore considers that the applicant has failed to lay the basis of an arguable claim in respect of her allegations that she was subjected to duress while giving statements to the police (see Kaytan v. Turkey, no. 27422/05, § 50, 15 September 2015).",
"36. It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.",
"B. Access to a lawyer during police custody",
"1. Admissibility",
"37. The applicant complained that she had been denied legal assistance while in police custody.",
"38. The Government contested that claim.",
"39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) The parties ’ submissions",
"40. The applicant reiterated her claims.",
"41. The Government pointed out that the present case was different from that of Salduz in that the applicant had been free to have legal assistance when giving statements to the police, as the statutory restriction on the right of access to a lawyer had already been lifted. The Government stated that although the applicant had promptly retracted her statements to the police, her retraction had not been convincing and consistent as, in their opinion, the medical reports issued in respect of her had been more important than her allegations. Moreover, there had been no element indicating that the applicant had not validly waived her right to legal assistance. To support that contention, the Government referred to Yoldaş v. Turkey, no. 27503/04, §§ 51 ‑ 54, 23 February 2010, and argued that the applicant ’ s statement form had indicated that no lawyer had been requested. Thus, the statement form, which the applicant had signed, should be sufficient to show that the applicant had validly waived her right to a lawyer when giving statements to the police. They further pointed out that İ.A., who had also been arrested during the same period with the applicant, had benefited from the assistance of a lawyer. In the view of the Government, this refuted the applicant ’ s allegation that she had been denied the assistance of a lawyer.",
"42. As to the fairness of the criminal proceedings against the applicant, the Government submitted that the applicant ’ s police statement had not been the sole evidence constituting the basis for her conviction. In that connection, they pointed out that the applicant, who had given detailed statements in relation to her connection with the PKK, had failed to provide a convincing explanation as to why she lived together with İ.A. and why she had a piece of paper with R.B. ’ s phone number on it. The applicant had had the opportunity to challenge the authenticity of the evidence and to oppose its use.",
"43. Furthermore, the domestic courts had examined the evidence in an objective manner and addressed the objections put forward by the applicant. The procedural guarantees had been sufficient in the instant case. Lastly, taking into account the proceedings as a whole, the fact that the applicant ’ s lawyer had been absent during her custody had not seriously impaired her right to a fair trial. As such, the Government invited the Court to conclude that there had been no violation in the instant case.",
"(b) The Court ’ s assessment",
"(i) General principles",
"44. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016); Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017); and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018).",
"45. The Court reiterates that the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as the assistance of a lawyer is equally important at this point of the interview. The lawyer ’ s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police (see Soytemiz v. Turkey, no. 57837/09, § 45, 27 November 2018).",
"46. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, § 115). It follows that a waiver of the right to a lawyer, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, § 118, 18 December 2018).",
"47. The Court further reiterates that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others v. the United Kingdom, cited above, § 251 ). Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case (see Murtazaliyeva, cited above, §§ 117 ‑ 18).",
"(ii) Application to the present case",
"48. The Court observes at the outset that the present case differs from Salduz, where the restriction on the applicant ’ s right of access to a lawyer stemmed from Law no. 3842 and was thus systemic. In other words, there was no blanket restriction on the applicant ’ s right of access to a lawyer in police custody, as at the time of her arrest Law no. 3842 – which had provided for a systemic restriction on access to a lawyer in respect of people who had been accused of committing an offence that fell within the jurisdiction of State Security Courts – had already been amended. For that reason, from 15 July 2003 onwards it had been legally possible for suspects to have access to a lawyer when giving statements to the police, the public prosecutor and the investigating judge subject to the condition that they had asked for one.",
"49. The legal question before the Court is whether the applicant validly waived her right of access to a lawyer before giving statements to the police on 14 November 2003, as it is not disputed between the parties that the applicant was represented by a lawyer when giving statements to the public prosecutor and the investigating judge.",
"50. Turning to the particular circumstances of the case, the Court observes that according to the statement form dated 14 November 2003, which the applicant signed, she was informed of her rights, including her right to have legal assistance and her right to remain silent at the time her statements were taken. The first page of the same record where the applicant stated that she did not want a lawyer or to remain silent includes a printed phrase stating “No lawyer sought” and a box next to it is marked with a printed “X”. Moreover, the Court notes that it was essential that the applicant be clearly informed about the consequences of not requesting the assistance of a lawyer. The Government have not demonstrated that the applicant received any specific information to that effect.",
"51. In that connection, the Government relied on the Yoldaş judgment (cited above) to support their argument that the applicant had validly waived her right to a lawyer when giving statements to the police. In their reading of that judgment, the Court considered the applicant ’ s statement form, which had been signed by him and according to which he had not asked for a lawyer, as an unequivocal waiver. Therefore, the same approach should also be maintained in the instant case in view of the applicant ’ s declaration to the effect that she had not asked for a lawyer on the statement form, which she had signed.",
"52. The Court takes note of the following factors in relation to its Yoldaş judgment (cited above, §§ 52-53). Firstly, it is important to reiterate that in Yoldaş the Court did not adjudicate the validity of the applicant ’ s waiver on the basis of a single isolated element, namely the applicant ’ s signature on the statement form explaining the rights of arrested persons, including the right to remain silent and the right to legal assistance. In fact, it was a combination of facts such as the applicant ’ s undisputed signature on the statement form and on the form concerning the rights of suspects and accused ( şüpheli sanık hakları formu ), his handwritten note on another record that he would not wish to see his family while in custody, and more importantly the trial court ’ s scrupulous examination of the applicant ’ s police statements and its subsequent refusal to convict the applicant in respect of six offences that were based solely on his police statements. In the light of those factors, the Court, after carrying out a holistic assessment of the circumstances of that case, with an emphasis on the trial court ’ s scrutiny of the applicant ’ s allegation that he had been denied legal assistance when giving statements to the police, and after having observed that there had been nothing in the proceedings to suggest that the applicant ’ s waiver of legal assistance while in police custody had not been free and unequivocal, concluded that the waiver had been valid and that there had been no violation of the applicant ’ s rights under Article 6 §§ 1 and 3 (c) of the Convention.",
"53. In the view of the Court, the present case cannot be rejected on the basis of Yoldaş as it differs from it in certain important aspects. First of all, the applicant ’ s statement form in the instant case did not bear a handwritten note by her (compare Sharkunov and Mezentsev v. Russia, no. 75330/01, § 104, 10 June 2010). Secondly, the applicant in Yoldaş retracted his police statements only during the course of the trial, whereas in the instant case the applicant immediately retracted her police statements as soon as she had access to a lawyer both before the public prosecutor and the investigating judge, and maintained that position before the trial court (see Dvorski v. Croatia [GC], no. 25703/11, § 102, ECHR 2015). Furthermore, as will be examined below, the trial court does not appear to have subjected the applicant ’ s police statements to scrutiny when using those statements to convict her. As a result, the Court dismisses the Government ’ s argument based on Yoldaş.",
"54. On that account, the applicant ’ s situation appears to resemble that of the applicant in the case of Ruşen Bayar v. Turkey (no. 25253/08, 19 February 2019), who was tried and convicted in the same set of criminal proceedings as the applicant in the instant case. In that case, the Court held, inter alia, that the Government were not able to show the validity of the applicant ’ s waiver of his right to a lawyer on the basis of the documents he had signed while in police custody, given that the applicant had contested the content of his police statements first of all during his appearance before the public prosecutor and subsequently throughout the entire proceedings (see Knox v. Italy, no. 76577/13, § 126, 24 January 2019). The Court is mindful of the probative value of documents signed while in police custody. However, as with many other guarantees under Article 6 of the Convention, those signatures are not an end in themselves and they must be examined by the Court in the light of all the circumstances of the case (see Ruşen Bayar v. Turkey, cited above, § 121). In addition, the use of a printed waiver formula may represent a challenge as to ascertaining whether the text actually expresses an accused ’ s free and informed decision to waive his or her right to be assisted by a lawyer.",
"55. In the instant case, the Court is of the view that the applicant ’ s immediate statements to the doctor at the end of her police custody on 17 November 2003 that the police had hit her head, threatened to kill and rape her and had driven their car into her, as a result of which she had fallen unconscious, and her statements to the public prosecutor that she had had to sign the police statements as a result of the violence and coercion on their part, are weighty indications against the conclusion that she had waived her right to a lawyer in accordance with the Convention standards when giving statements to the police on 16 November 2003. This remains so despite the fact that the Court has already declared inadmissible the applicant ’ s complaint that she was subjected to duress while in police custody as being manifestly ill-founded, because the absence of any element suggesting that the applicant was subjected to ill-treatment or was otherwise coerced into making incriminating statements is not, in itself, sufficient to conclude that the waiver in a given case is valid for the purposes of a fair trial under Article 6 of the Convention (see Bozkaya v. Turkey, no. 46661/09, § 45 in fine, 5 September 2017).",
"56. Furthermore, the Court observes that the first page of the applicant ’ s statement form in the instant case also included the information that she was literate. That said, however, according to the third page of the same record the applicant stated that she had not attended school. Likewise, at the hearing held on 17 March 2004, the applicant stated before the trial court that she was illiterate and that she had been forced by the police to sign her statements.",
"57. In this context, the Court finds it useful to reiterate that additional protection should be provided for illiterate detainees with a view to ensuring that the voluntary nature of a waiver is reliably established and recorded (see Şaman v. Turkey, no. 35292/05, § 35, 5 April 2011). The Court also notes that the applicant was accused of being a member of an illegal organisation, which is a very serious charge, and faced a heavy penalty. Yet, the trial court did not take any reasonable steps to verify this crucial point, specifically whether the applicant was illiterate, despite the fact that the applicant had brought that matter to its attention at the hearing held on 17 March 2004.",
"58. While the Court notes that some of the documents found on the applicant included handwritten numbers which forensic experts concluded had been handwritten by the applicant, it is not entirely convinced that those factors were sufficient to establish that the applicant was not illiterate.",
"59. However, the fact remains that the trial court failed to carry out an assessment of the above-mentioned circumstances in relation to the validity of the applicant ’ s waiver of her right to legal assistance (see Savaş v. Turkey, no. 9762/03, § 68, 8 December 2009).",
"60. Moreover, although the Government argued that the fact that İ.A., who had been arrested on the same day as the applicant, had been able to benefit from legal assistance and had refuted the applicant ’ s allegations, the Court notes that their statements were taken on different dates and by different police officers. Under these circumstances, the mere fact of being in the same police station and having been arrested on the same day is not sufficient to refute the applicant ’ s contention. Therefore, the Court is unable to subscribe to that argument (compare Imbras v. Lithuania (dec.), no. 22740/10, § 65, 10 July 2018).",
"61. In view of the conflicting circumstances as to the validity of the applicant ’ s waiver of her right to legal assistance and several years on from the events in issue, the Court is not in a position to establish whether the applicant ’ s waiver was a valid one, especially in view of the fact that it is in the first place the national authorities ’ duty to establish in a convincing manner whether the applicant ’ s confessions and waivers of legal assistance were voluntary (see Türk v. Turkey, no. 22744/07, § 53, 5 September 2017). Therefore, it considers that the Government have failed to demonstrate that the applicant validly waived her right to a lawyer when giving statements to the police.",
"(c) Whether there were “compelling reasons” to restrict access to a lawyer",
"62. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Simeonovi, cited above, § 117).",
"63. The Court notes that the Government have not offered any compelling reasons for the restriction of the applicant ’ s access to a lawyer on 14 November 2003 when she gave statements to the police. It is not for the Court to undertake of its own motion to determine whether there had been any compelling reasons to restrict the applicant ’ s right of access to a lawyer.",
"(d) Whether the overall fairness of the proceedings was ensured",
"64. The Court will now examine whether the overall fairness of the criminal proceedings against the applicant was prejudiced by the absence of a valid waiver of legal assistance when the applicant gave statements to the police and the subsequent admission by the trial court of those statements to secure her conviction. As there were no compelling reasons to restrict the applicant ’ s right of access to a lawyer when she was giving statements to the police, the Court must apply a very strict scrutiny to its fairness assessment (see Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). More importantly, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Simeonovi, cited above, § 132, and Ibrahim and Others, cited above, § 265).",
"65. The Court reiterates that in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected (see Ibrahim and Others, cited above, § 274 for a non ‑ exhaustive list of factors when assessing the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings), in particular whether the applicant was given the opportunity of challenging the admissibility and authenticity of the evidence and of opposing its use (see Panovits, cited above, § 82). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Pavlenko, cited above, § 116).",
"66. Furthermore, the Court reiterates that it was in the first place the trial court ’ s duty to establish in a convincing manner whether or not the applicant ’ s confessions and waivers of legal assistance had been voluntary (see Dvorski, cited above, § 109, and Türk, cited above, § 53). In that connection, the Court also notes that Turkish law sets out a very strong procedural safeguard in Article 148 § 4 of the Code of Criminal Procedure capable of remedying the procedural shortcomings in relation to the use of police statements taken without a lawyer being present irrespective of whether a suspect had waived his or her right to legal assistance or not. Pursuant to that provision, the police statements taken without a lawyer being present should not have been used by the trial court unless they had been confirmed before a court or a judge (see Ruşen Bayar, cited above, § 128).",
"67. In the view of the Court, the above-mentioned facts of the instant case were capable of raising at least a prima facie case in relation to the validity of the applicant ’ s waiver of the right to have legal assistance when giving statements to the police, which was required to be addressed by the national authorities. With that in mind, the Court also observes that the applicant made very detailed self-incriminatory statements to the police and confessed to her crimes. According to the documents in the Court ’ s possession, that was the only occasion on which the applicant made self-incriminatory statements. The applicant promptly retracted those statements as soon as she was represented by her lawyer on 17 November 2003 and retracted her police statements before the public prosecutor, the investigating judge and the trial court (see Ruşen Bayar, cited above, § 129, and Pishchalnikov v. Russia, no. 7025/04, § 88, 24 September 2009).",
"68. Nevertheless, as was mentioned above, the trial court did not conduct any examination as regards the validity of the applicant ’ s waiver or the statements she had made to the police in the absence of a lawyer. In the absence of any such assessment, the Court is unable to conclude that the applicant had the opportunity to meaningfully challenge the authenticity of the evidence and to oppose its use despite the fact that she was represented by a lawyer throughout the trial (compare Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 131, 10 November 2016). Hence, the Court is not satisfied that the applicant ’ s complaint received an appropriate response from the national courts and considers that fair procedures for making an assessment of the issue of legal assistance proved non-existent in the present case (see Rodionov v. Russia, no. 9106/09, § 167 in fine, 11 December 2018).",
"69. Moreover, the trial court used the applicant ’ s police statements when finding her guilty of membership of a terrorist organisation and eventually in sentencing her to six years and three months ’ imprisonment. As is apparent from the trial court ’ s reasoned judgment, the Court considers that it cannot be ruled out that the applicant ’ s statements formed an integral part of the evidence upon which her conviction was based.",
"70. Against such a background, the Court is of the view that the absence of a close scrutiny by the national courts of the circumstances surrounding the applicant ’ s waiver and the fact that this flaw was not remedied by any other procedural safeguards during the proceedings rendered the trial as a whole unfair (see Bozkaya, cited above, § 53, and Türk, cited above, § 58).",
"71. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"72. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"73. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.",
"74. The Government submitted that the applicant ’ s claims were excessive.",
"75. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure to have the domestic proceedings reopened in the event that the Court finds a violation of the Convention, the Court makes no award under this head ( see Bayram Koç, cited above § 29).",
"B. Costs and expenses",
"76. The applicant claimed 5,022 Turkish liras (TRY – approximately EUR 1,570), which constituted the legal fee inclusive of value-added tax for the proceedings before the Court.",
"77. She also claimed TRY 600 for expenses relating to postage, translation and stationery which she had incurred before the proceedings (approximately EUR 187). In support of her claims, the applicant submitted the scale of fees of the Union of Bar Associations of Turkey.",
"78. The Government invited the Court to dismiss the applicant ’ s claims under costs and expenses due to her failure to submit any documents to support those claims.",
"79. The Court reiterates that it has already held that mere reference to the Bar Associations ’ scale of fees without submitting any other document was not sufficient to comply with Rule 60 § 2 and 3 of its Rules and dismissed the claims relating to costs and expenses on that ground (see Hülya Ebru Demirel v. Turkey, no. 30733/08, § 61, 19 June 2018).",
"In the instant case, regard being had to the fact that the applicant only submitted the Union of Bar Associations of Turkey ’ s scale of fees to support her claims, the Court decides not to any award under this head."
] |
222 | Baytar v. Turkey | 14 October 2014 | This case concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. | The Court held that there had been a violation of Article 6 § 3 (e) (right to the assistance of an interpreter) taken together with Article 6 § 1 of the Convention. It found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, the applicant had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance. | Police arrest and assistance of a lawyer | Absence of an interpreter during police questioning | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1949 and lives in Van.",
"A. First set of criminal proceedings against the applicant",
"6. On 30 April 2001 the applicant went to Muş prison during visiting hours to see her brother, who was being held there in connection with a case related to the PKK, an illegal armed organisation.",
"7. The staff responsible for body searches found on the applicant “close to the left side of her abdomen”, a piece of paper that had been folded several times and wrapped in tape. It was an unsigned letter dated 24 April 2001, written by a member of the PKK and addressed to another member.",
"8. The applicant was taken into police custody on the same day and questioned in Turkish by the gendarmes the following day. During the interview she stated that she had picked up the object in question in Van at the bus stop where she was waiting for the bus to Muş. She had thought that the object might have some value and had intended to remove the wrapping once she was alone.",
"9. On 1 May 2001 she gave a statement to the same effect before the public prosecutor and then before the District Court. As she was illiterate, she signed the statements with her fingerprint.",
"10. She was remanded in custody after being examined and was released on 5 July 2001.",
"11. On 27 September 2001 the State Security Court of Van acquitted the applicant, considering her version of events to be credible.",
"B. Second set of criminal proceedings against the applicant",
"12. On 17 December 2001 the applicant visited her brother again in Muş prison during a religious festival. After the visit she was taken into police custody.",
"13. The police report drawn up that same day stated that the staff responsible for body searches had discovered, hidden in the lining of the applicant ’ s dress, a sixteen-page document consisting of rolled-up onionskin paper protected by adhesive tape. According to the report, the document contained, in particular, information about the PKK ’ s strategy and its activities in prisons, about the conduct to be adopted vis-à-vis the prison authorities and about prison staff.",
"14. She was questioned in Turkish by two gendarmes on 18 December 2001. The report stated that she had been reminded of her right to the assistance of a lawyer but had waived that right. As to the facts, she had stated that she had seen a wrapped object in the prison waiting room and had picked it up out of mere curiosity, placing it in her bra. She added that, during the search, the prison officers had discovered the object and had unwrapped it. She had noticed pieces of paper covered in writing. During her visit to her brother she had told him about the incident but he had not said anything about it. The gendarmes had then arrested her as she was leaving the prison.",
"15. In response to a question about her personal status, she replied that she was married to G.I. on the basis of a religious marriage, not a civil one, and that they had had five children together. Her husband had another partner with whom he had had six children.",
"16. When asked whether she worked for the PKK, she replied in the negative. She added that, on the first occasion, she had picked up the object thinking it might contain gold and that it was with the same thought in mind that she had taken the paper in the waiting room.",
"17. In response to a question about ten pieces of gold discovered on her during the search, she stated that half of them belonged to her daughter and the other half were hers.",
"18. After she had been questioned, the public prosecutor called for her to be remanded in custody. As a result she was brought before the District Court judge.",
"19. Finding that she did not speak Turkish with sufficient fluency, the judge asked a member of the applicant ’ s family who was waiting in the corridor outside the courtroom to act as interpreter. The relative accepted.",
"20. The applicant stated once again that she had found the document in question in the waiting room. Immediately afterwards, she claimed that this statement, and the one previously taken by the gendarmes, concerned events that had occurred seven months earlier; that no document had been discovered on her person when she last visited the prison; that she had thought the gendarmes were questioning her about earlier events; and that, not being able to read or write, she had signed the police report with her fingerprint without knowing what it said. When she was informed of the report ’ s content she disputed its veracity.",
"21. On 18 December 2001, after the hearing, the applicant was remanded in custody and criminal proceedings were brought against her before the State Security Court of Van for membership of an illegal armed organisation and, in the alternative, for aiding and abetting such an organisation.",
"22. At the various hearings before that court the applicant was assisted by a lawyer and an interpreter.",
"23. In the course of the proceedings, the defence disputed the prison officers ’ version of events. Counsel argued that no document had been found on the applicant, adding that, according to her, a document had certainly been found on a female visitor during the search carried out on entering the premises and that person had nevertheless been authorised to visit on the grounds that it was a public holiday. The prison officers had failed to arrest her when she left the prison on account of the large number of visitors that day. Having realised that the visitor in question had evaded their control, the officers had decided to arrest the applicant instead, because they knew that a similar accusation had already been made against her. In addition, the defence stated that in her statement to the gendarmes the applicant had said that the impugned object had been found in her bra, whereas the record of the incident indicated that it had been found in the lining of her dress.",
"24. On 12 May 2002 two female prison officers were interviewed on the basis of a warrant. The first, C.A., stated that she had personally found the impugned document in the lining of the applicant ’ s dress during the body search. The second, F.A., confirmed this version and stated that she had been called immediately by her colleague after the discovery.",
"25. Testimony was also taken from a number of defence witnesses. Two women who were visiting the prison on the day of the incident stated that they did not know if the applicant had been searched on entering the prison. Another testified that she had entered the prison at the same time as the applicant but not had seen her being searched. One of the applicant ’ s brothers testified that he had arrived at the prison with her but that they had become separated during the body search before coming together again to visit their brother. In their conversation with the latter, the applicant had never mentioned any incident during her body search.",
"26. On 29 May 2002 the applicant was given a prison sentence of three years and nine months for aiding and abetting an illegal armed organisation. In its reasoning, the State Security Court observed that, in the first case, the applicant had claimed to have found the impugned document at a bus stop in Van, and that, in the second, she had stated during the investigation that she had found the document in the prison waiting room. It noted that the applicant had reiterated this statement to a district judge before claiming that she had been talking about the first case and that no document had in fact been found on her during the body search of 17 December 2001. The court took the view that there were some serious inconsistencies in the applicant ’ s explanations. It noted that if she had really believed that the questioning by the gendarmes and the district judge concerned the events of 30 April 2001 she should logically have stated that she had found the impugned document not in the waiting room of Muş prison but in Van. It concluded that the version of events given by the applicant and the defence witnesses was not credible, and it accepted the testimony of the two prison officers, which confirmed the findings in the relevant police report. The court thus found the applicant guilty as charged.",
"27. On 7 October 2002 the Court of Cassation quashed that judgment on a procedural ground.",
"28. On 18 April 2003 the State Security Court convicted the applicant again and handed down the same sentence. Moreover, taking into account the time she had already served, it ordered her release.",
"29. That judgment was quashed on 19 January 2004 on an appeal on points of law by the applicant. The Court of Cassation took the view that the offence with which she was charged had been incomplete and had remained at the attempt stage. It dismissed the applicant ’ s other grounds of appeal on points of law, including the question of the absence of an interpreter in police custody.",
"30. On 3 May 2004 the State Security Court sentenced the applicant to one year and three months ’ imprisonment for attempting to aid and abet an illegal armed organisation. It adopted the same reasoning as that of its previous judgments.",
"31. On 6 June 2005 the Court of Cassation referred the case back to the first-instance court stating that, in accordance with Law no. 5252, setting out the rules and procedures for the application of the new Criminal Code which had recently entered into force, the case had to be re-examined in the light of that new code to determine whether the applicant could be granted the benefit of a more lenient provision.",
"32. On 19 September 2005 the Van Assize Court (formerly the State Security Court) convicted the applicant once again, adopting the same reasoning as that of its previous judgments, and specifying that the provisions of the former code were more lenient.",
"33. The applicant appealed on points of law against that judgment, submitting in particular that she had not been assisted by an interpreter while in police custody.",
"34. Her appeal was dismissed on 31 October 2006."
] | [
"II. RELEVANT DOMESTIC LAW",
"35. The Code of Criminal Procedure in force at the relevant time did not contain any provision prohibiting access to an interpreter in police custody.",
"36. The Rules concerning the arrest, custody and questioning of suspects, as in force until 1 June 2005, provided in Article 12 ( d), subparagraph 6, that the police custody register had to indicate whether an interpreter was present during the interview and, if so, the interpreter ’ s name and signature was required.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION FOR LACK OF ASSISTANCE OF AN INTERPRETER IN POLICE CUSTODY",
"37. The applicant complained that there had been no interpreter to assist her while she was in police custody and that this had entailed a violation of her right to a fair trial within the meaning of Article 6 §§ 1 and 3 ( e) of the Convention, provisions which read as follows :",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”",
"38. The Government contested that argument.",
"A. Admissibility",
"39. The Government argued that the applicant should have submitted her complaint to the Court within six months after the end of her police custody, given that, in their opinion, there was no effective or appropriate remedy by which she could have had her complaint examined.",
"40. Should the Court not agree with their argument about the lack of a remedy, the Government asked it to declare the complaint inadmissible for failure to exhaust domestic remedies, firstly because the applicant had not raised the complaint during the domestic proceedings and, secondly, because the case was still pending before the domestic courts at the time she lodged her application.",
"41. As to the argument that the applicant had not complied with the six-month period allegedly running from the end of her police custody, the Court noted that the use of remedies, such as an appeal on points of law, could have enabled the applicant to obtain redress for the defect which, in her submission, had vitiated the proceedings, by obtaining a ruling either that the incriminating statements made during her police custody should be excluded or that she should not be convicted. In that connection, the Court would refer to its settled case-law to the effect that, following an acquittal or the quashing of a conviction, the applicant cannot be considered a “victim” of a violation of the rights guaranteed by Article 6 of the Convention ( see Bouglamé v. Belgium ( dec. ), no. 16147/08, 2 March 2010, and the numerous references therein ). An appeal on points of law was therefore one of the remedies to be exhausted and the applicant acquired victim status only once her appeal on points of law had been dismissed and her conviction had become final. It was thus on 31 October 2006 that the six-month period began to run and not, as the Government argued, at the end of her time in police custody.",
"42. As to the assertion that the applicant had not submitted her complaint to the domestic courts, the Court observes that, in her appeals on points of law, she had expressly complained about the use by the Assize Court of the statement obtained without the assistance of an interpreter while she was in police custody ( see paragraphs 29 and 33 above ).",
"43. As to the objection that domestic remedies had not been exhausted, on the grounds that the Court of Cassation had not yet ruled on the applicant ’ s appeal at the time the application was lodged, the Court observes that the conviction has in the meantime become final and that all domestic remedies have been exhausted. It would moreover note that this was already the case on the date when notice of the application was given to the Government.",
"44. In conclusion, the three objections raised by the Government are unfounded and must be dismissed.",
"45. Furthermore, finding that no other ground for declaring the complaint inadmissible has been established and that it is not manifestly ill-founded, the Court declares it admissible.",
"B. Merits",
"46. The applicant complained that she had not been assisted by an interpreter when questioned by the gendarmes while she was in their custody and argued that the statement taken in those circumstances constituted illegally obtained evidence which should therefore have been excluded by the trial court.",
"47. The Government argued that the applicant had not shown how the absence of an interpreter during her police custody had impaired her right to a fair trial, as when she had subsequently reiterated her statement to a judge, an interpreter had then been present. The Government further argued that the applicant had been assisted by an interpreter throughout the remainder of the proceedings.",
"48. Reiterating the finding in its case-law that the requirements of paragraph 3 (e) of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together ( see, for example, Valentini v. Italy ( dec. ), no. 45003/98, 18 May 2000, or Pala v. France ( dec. ), no. 33387/04, 30 January 2007).",
"49. The Court further reiterates that paragraph 3 (e) of Article 6 guarantees the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court ’ s language in order to have the benefit of a fair trial ( see Luedicke, Belkacem and Koç v. Germany, 28 November 1978, § 48, Series A no. 29). Furthermore, the interpretation assistance provided should be such as to enable the accused to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events ( see Güngör v. Germany ( dec. ), no. 31540/96, 17 May 2001).",
"50. Furthermore, like the assistance of a lawyer, that of an interpreter should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right ( see, to that effect, Diallo v. Sweden ( dec. ), no. 13205/07, § 25, 5 January 2010).",
"51. In the present case, the Court would first observe that it is not in dispute that the applicant ’ s level of knowledge of Turkish rendered necessary the assistance of an interpreter. Both the District Court and the trial court decided that she needed an interpreter. As the Government never submitted argument to the contrary, the Court finds this point established.",
"52. The Court further notes that, while the applicant enjoyed the assistance of an interpreter when she was examined by the judge responsible for deciding whether she should be remanded in custody, this had not been the case during her questioning by the gendarmes, when she had stated that she had found the impugned document in the prison waiting room, thus admitting that a document had indeed been found in her possession.",
"53. The Court has already had occasion to emphasise the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained at this stage may be decisive for the subsequent proceedings ( see, to that effect, Salduz v. Turkey [GC], no. 36391/02, § 63, ECHR 2008). It should be pointed out that an individual held in police custody enjoys a certain number of rights, such as the right to remain silent or to be assisted by a lawyer. The decision to exercise or waive such rights can only be taken if the individual concerned clearly understands the charges, so that he or she can consider what is at stake in the proceedings and assess the advisability of such a waiver.",
"54. The Court takes the view that, as the applicant was not able to have the questions put to her translated and was not made aware as precisely as possible of the charges against her, she was not placed in a position where she could fully assess the consequences of her alleged waiver of her right to remain silent or her right to be assisted by a lawyer and thus to benefit from the comprehensive range of services that can be performed by counsel. Accordingly, it is questionable whether the choices made by the applicant without the assistance of an interpreter were totally informed.",
"55. The Court finds that this initial defect thus had repercussions for other rights which, while distinct from the right alleged to have been breached, were closely related thereto and undermined the fairness of the proceedings as a whole.",
"56. While it is true that the applicant enjoyed the assistance of an interpreter when she was brought before a judge following her police custody, the Court is of the opinion that this fact was not such as to cure the defect which had vitiated the proceedings at their initial stage.",
"57. Furthermore, the Court observes that the judge apparently failed to verify the skills of that interpreter, who was simply a member of the applicant ’ s family waiting in the corridor ( see, mutatis mutandis, Cuscani v. the United Kingdom, no. 32771/96, § 38, 24 September 2002, and paragraph 19 above ).",
"58. Moreover, the Court notes that the impugned statement was not excluded by the trial court. Even though the conviction was based on a number of factors, it is nevertheless established that the statements obtained by the gendarmes without the assistance of an interpreter were also relied upon when the applicant was found guilty.",
"59. In conclusion, having regard to its consequences for the fairness of the proceedings as a whole, the failure to provide the applicant with an interpreter while she was in police custody entailed a violation of Article 6 § 3 ( e) of the Convention taken together with Article 6 § 1.",
"II. OTHER ALLEGED VIOLATIONS",
"60. Relying on Article 5 of the Convention, the applicant complained about the length of her detention on remand and alleged that she did not have a remedy by which to obtain an examination of its lawfulness, with the possibility of then being released.",
"61. In addition, relying on Article 6 of the Convention, the applicant argued that the use by the judges, in the reasoning given for her conviction, of the statement she had given to the gendarmes, constituted a breach of her right to be presumed innocent.",
"62. Under Article 14 of the Convention, she also contended that she had been the victim of a violation of Convention rights on account of her ethnic origin.",
"63. Lastly, she argued that she did not have a domestic remedy, within the meaning of Article 13 of the Convention, by which to submit her complaints.",
"64. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine these allegations, the Court finds no appearance of a breach of the provisions of the Convention.",
"65. Accordingly, it declares these complaints inadmissible.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"66. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"67. The applicant claimed 20, 000 euros (EUR) in respect of the non-pecuniary damage she alleged to have sustained.",
"68. She also claimed EUR 2, 500 for the costs and expenses she had incurred before the domestic courts, EUR 5, 075 for the cost of her representation before the Court, and EUR 298 for the translation expenses in support of which she submitted invoices.",
"69. The Government disputed those claims, which they found excessive, and asked the Court to reject them.",
"70. The Court finds that it is appropriate to award the applicant EUR 1, 500 in respect of non-pecuniary damage.",
"71. The Court takes the view that, in circumstances such as those of the present case, a re-trial or the reopening of the proceedings, at the request of the person concerned, represents in principle an appropriate means of redress for the violation in question ( see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).",
"72. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred, and are reasonable as to quantum. In the present case, and having regard to the documents in its possession and its case-law, the Court finds it reasonable to award the applicant EUR 1, 300 in respect of all costs and expenses.",
"73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
223 | Paksas v. Lithuania | 6 January 2011 (Grand Chamber) | The applicant, a former President of Lithuania, was removed from office by Parliament following impeachment proceedings for committing a gross violation of the Constitution and breaching the constitutional oath. Criminal proceedings were also brought against him on a charge of disclosing information classified as a State secret, but he was eventually acquitted. The applicant alleged, inter alia, that the institution of impeachment proceedings followed by criminal proceedings against him had amounted to trying him twice for the same offence. | The Court, pursuant to Article 35 (admissibility criteria) of the Convention, declared this part of the application inadmissible as being incompatible ratione materiae (in terms of subject matter) with the provisions of the Convention. The Court noted in particular that the first set of proceedings in the Constitutional Court had concerned the compliance with the Constitution and the law of a naturalisation decree issued by the applicant by virtue of his presidential powers, and the second set had sought to ascertain whether he had committed gross violations of the Constitution or breached his constitutional oath. In the Court’s view, the proceedings in question had not concerned the “determination of his civil rights and obligations” or of a “criminal charge” against him within the meaning of Article 6 § 1 (right to a fair trial) of the Convention; nor had he been “convicted” or “tried or punished ... in criminal proceedings” within the meaning of Article 4 § 1 of Protocol No. 7. | Right not to be tried or punished twice (the non bis in idem | Scope | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1956 and lives in Vilnius. He is currently a member of the European Parliament.",
"10. On 5 January 2003 the applicant was elected President of the Republic of Lithuania. He took office on 26 February 2003, following his inauguration. On that occasion, in accordance with Article 82 of the Constitution, he took an oath to be loyal to the Republic of Lithuania and the Constitution, to fulfil the duties of his office conscientiously, and to be equally just to all.",
"11. On 11 April 2003 the applicant issued Decree no. 40, countersigned by the Minister of the Interior, granting Lithuanian citizenship “by way of exception” ( išimties tvarka ) to a Russian businessman, J. B. , who had been awarded the Medal of Darius and Girėnas in 2001 by the applicant's predecessor, Valdas Adamkus, for services to Lithuania ( he was subsequently divested of the medal following the events outlined below ).",
"A. Proceedings concerning the lawfulness of Presidential Decree no. 40",
"12. On 6 November 2003 the Seimas (the Lithuanian Parliament) requested the Constitutional Court to determine whether Presidential Decree no. 40 was in compliance with the Constitution and the Citizenship Act. The Seimas submitted that the procedure of granting citizenship by way of exception appeared to have been applied inappropriately in this case. In particular, it asserted that J. B. had no special merit warranting his exceptional treatment and that the applicant had in fact granted him citizenship as a reward for his substantial assistance by financial and other means to the applicant's election campaign.",
"13. On 10 November 2003 the Constitutional Court accepted the request for consideration as case no. 40/03. On 10 December 2003 it held a public hearing and examined witnesses.",
"14. On 12 December 2003 an article was published in a Lithuanian daily newspaper, Respublika, reporting that the President of the Constitutional Court had been seen in a coffee bar with the Deputy Speaker of the Seimas, who had been closely involved in the inquiry into the applicant's activities. The newspaper implied that during this informal meeting the two officials had discussed the proceedings taking place in the Constitutional Court, thus casting a shadow of suspicion over that court's objectivity. The two men had subsequently said that they often met professionally and socially, and denied discussing the merits of the case.",
"15. Referring to the above-mentioned newspaper article, the applicant's lawyers challenged the President of the Constitutional Court for bias, seeking his removal from the examination of case no. 40/03. Their challenge was dismissed on the ground that the mere fact that the two officials had met informally did not constitute a basis for the withdrawal of a judge from proceedings before the Constitutional Court.",
"16. On 30 December 2003 the Constitutional Court gave its ruling in case no. 40/03, finding that Decree no. 40 was not in compliance with Article 29 § 1, Article 82 § 1 and Article 84 § 21 of the Constitution, the constitutional principle of the rule of law and section 16 ( 1 ) of the Citizenship Act.",
"17. On the last point, the Constitutional Court observed that citizenship could be granted by way of exception only to persons who had never been Lithuanian citizens. It noted in that connection that J. B. , a Russian citizen by birth from a Soviet military family, had acquired Lithuanian citizenship under the Citizenship Act of 3 November 1989, by which citizenship could be granted, inter alia, to persons who on that date had had their permanent residence and permanent place of work or source of income in Lithuania. In 1994 the Constitutional Court had ruled that “soldiers of the Soviet Union who previously served in the Soviet occupying military forces unlawfully stationed in the territory of Lithuania [ could ] not be regarded as permanently residing and working in Lithuania ”. On 4 November 1999 the Citizenship Commission (established in 1998 under section 4 of the 1995 Implementing Act for the Citizenship Act) had found that J. B .'s status was unlawful, since he had served in the Soviet armed forces. It had nevertheless recommended that his status be regularised in accordance with the above - mentioned section 4, by which exceptions could be made for persons who had acquired citizenship in good faith before 31 December 1993 on that unlawful ground. On 11 November 1999 the Migration Department of the Ministry of the Interior had followed that recommendation. However, in 2000 J. B. had applied for Russian citizenship, which he had been granted in June 2002; on 18 March 2003 he had been issued with a Russian passport, thereby losing his Lithuanian citizenship. The Constitutional Court observed that the applicant had signed Decree no. 40 on 11 April 2003 even though the Migration Department of the Ministry of the Interior had reminded him the day before that J. B. had previously lost his Lithuanian citizenship.",
"18. The Constitutional Court held that, as a result, Decree no. 40 was also in breach of Article 84 § 21 of the Constitution – which provides that the President is to grant citizenship in accordance with the procedure established by law – and the constitutional principle of the rule of law.",
"19. The Constitutional Court went on to note that, although the Lithuanian authorities had already made an exception in his favour by regularising his status in 1999, J. B. had acquired Russian citizenship in 2000. This showed that “citizenship of the Republic of Lithuania was of less value to [J.B.] than citizenship of the Russian Federation ”. The Constitutional Court further noted that the Director of the State Security Department had informed the applicant, prior to 11 April 2003, that an investigation was being carried out into J. B .'s activities as director of an aviation company and, on 17 March 2003, that J. B. had threatened to disseminate information discrediting the applicant if the latter failed to keep his promise to appoint him as an adviser. In the Constitutional Court's view, the applicant had knowingly ignored these circumstances, although they were of crucial importance in deciding whether or not to grant citizenship to J. B. by way of exception. Having regard also to the fact that J. B. had made a significant financial contribution to the applicant's election campaign, it concluded that the decision to grant him citizenship had been “ determined not by any merit rendering [J. B. ] worthy of becoming a citizen of the Republic of Lithuania, but by his significant assistance by financial and other means to [the applicant's ] election campaign in 2002 ”. Thus, “the granting of citizenship to [J. B. ] by way of exception was nothing but a reward by the President of the Republic R. Paksas to [J. B. ] for the aforesaid support ”; consequently, in issuing Decree no. 40, the President had heeded “ neither the Constitution ... nor the law, nor the interests of the people and the State, but purely his own interests ”. The court therefore concluded that the applicant had “ afforded [J. B. ] exceptional treatment and knowingly disregarded the fundamental principles enshrined in Article 29 § 1 and Article 82 § 1 of the Constitution respectively, whereby all persons are equal before State institutions or officials, and the President of the Republic must be equally just to all”.",
"20. In a public speech on 31 December 2003, and again in his New Year speech, the applicant declared that “politics [ had ] taken precedence over the law” in the Constitutional Court's ruling. In reply, on 5 January 2004 the Constitutional Court issued a public statement emphasising its independence and noting, inter alia, that the applicant had attempted to undermine its authority.",
"B. Impeachment proceedings",
"21. On 18 December 2003, eighty-six members of the Seimas submitted a proposal to initiate impeachment proceedings against the applicant. On 23 December 2003 the Seimas set up a special commission to investigate the reasonableness and seriousness of certain allegations about the applicant's conduct, in order to determine whether such proceedings should indeed be initiated.",
"22. On 19 February 2004 the special investigation commission concluded that some of the charges levelled against the applicant were founded and serious. Accordingly, it recommended that the Seimas institute impeachment proceedings. The State Security Department had apparently provided the commission with transcripts of secretly taped telephone conversations involving the applicant. The applicant's lawyers were not given access to the transcripts by the Department or by the commission, because it had decided not to rely on them.",
"23. Also on 19 February 2004 the Seimas decided to follow the special investigation commission's recommendation and requested the Constitutional Court to determine whether the specific acts of the applicant cited by the commission had breached the Constitution. The impeachment charges submitted to the Constitutional Court included the following allegations in particular, involving purely private interests to the detriment of those of the nation, thus discrediting the institution of the presidency :",
"– that the applicant had undertaken to perform a number of actions in J. B .'s favour in exchange for financial and other forms of support during his election campaign, and had later acted under J.B.'s influence;",
"– that, as a reward for this support, the applicant had unlawfully granted Lithuanian citizenship to J. B. ;",
"– that he had disclosed a State secret by informing J. B. that the secret services were investigating his activities, notably by telephone tapping; and",
"– that he had exercised undue pressure on the management decisions of a private company in order to secure pecuniary advantages for certain people close to him.",
"24. On 1 March 2004 the Constitutional Court accepted the request for consideration as case no. 14/04.",
"25. The applicant's lawyers sought the removal of the President of the Constitutional Court and all its members on grounds of bias, arguing that they had in effect already determined the case in the previous ruling of 30 December 2003 in case no. 40/03. The challenge was dismissed.",
"26. In a declaration of 25 March 2004 the Seimas unsuccessfully proposed that the applicant tender his resignation in order to avoid protracted impeachment proceedings. The declaration alleged that his actions had become increasingly unpredictable and represented a danger to the State, its citizens and the prestige of the presidency.",
"27. On 31 March 2004 the Constitutional Court concluded that the applicant had committed gross violations of the Constitution and a breach of his constitutional oath on account of the following acts:",
"– unlawfully granting citizenship to J.B. by Decree no. 40 as a reward for the latter's financial and other forms of support, in breach of section 16( 1 ) of the Citizenship Act and Article 29 § 1, Article 82 § 1 and Article 84 § 21 of the Constitution;",
"– knowingly hinting to J. B ., in breach of sections 3(7), 9(2) and 14(1) of the Official Secrets Act and Article 77 § 2 and Article 82 § 1 of the Constitution, that the law- enforcement institutions were investigating him and tapping his telephone conversations; and",
"– exploiting his official status to influence decisions by the Žemaitijos keliai company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him, in breach of section 3 of the Adjustment of Private and Public Interests in the Public Service Act and Article 29 § 1, Article 77 § 2 and Article 82 § 1 of the Constitution.",
"28. The applicant sought clarification of these conclusions under section 61 of the Constitutional Court Act, but his request was refused by the Constitutional Court on 6 April 2004 on procedural grounds.",
"29. On 6 April 2004 the Seimas decided to remove the applicant from the office of President on account of the gross violations of the Constitution found by the Constitutional Court. Its decision was taken by eighty-six votes to seventeen for the first breach, eighty-six votes to eighteen for the second and eighty-nine votes to fourteen for the third.",
"C. Disqualification from elected office",
"30. The applicant wished to stand as a candidate in the presidential election called for 13 June 2004. On 22 April 2004 the Central Electoral Committee (CEC) found that there was nothing to prevent him from standing. By 7 May 2004 the applicant had gathered the required number of signatures in support of his candidacy, and submitted them to the CEC with a view to his registration as a candidate.",
"31. However, on 4 May 2004 the Seimas amended the Presidential Elections Act by inserting the following provision :",
"“A person who has been removed from parliamentary or other office by the Seimas in impeachment proceedings may not be elected President of the Republic if less than five years have elapsed since his removal from office. ”",
"32. Following this amendment, the CEC refused to register the applicant as a candidate in the forthcoming election. The applicant lodged a complaint with the Supreme Administrative Court on 10 May 2004, arguing in particular that that decision thwarted the legitimate expectations of his supporters and ran counter to the principles of the rule of law and the prohibition of retrospective legislation.",
"33. On an unspecified date, a number of members of the Seimas requested the Constitutional Court to review the constitutionality of the amendment to the Presidential Elections Act, arguing that barring a person who had been removed from office from running for election as President was in itself in breach of the Constitution. The request was registered as case no. 24/04.",
"34. The Constitutional Court held on 25 May 2004 that disqualifying a person who had been removed from office from standing in presidential elections was compatible with the Constitution, but that subjecting such a restriction to a time-limit was unconstitutional. The court held, inter alia :",
"“... The Constitutional Court has held that a breach of the oath is, at the same time, a gross violation of the Constitution, while a gross violation of the Constitution is, at the same time, a breach of the oath to the nation (Constitutional Court ruling of 30 December 2003; Constitutional Court conclusion of 31 March 2004) ...",
"A gross violation of the Constitution or a breach of the oath undermines trust in the institution of the presidency and in State authority as a whole ... Removal from office of a president who has grossly violated the Constitution or breached the oath is one of the ways of protecting the State for the common good of society, as provided for in the Constitution.",
"It needs to be stressed that, under the Constitution, a person in respect of whom the Seimas – following a finding by the Constitutional Court that he, as President, has committed a gross violation of the Constitution and breached the oath – has applied the constitutional sanction, namely removal from office, may not evade constitutional liability through fresh presidential elections, a referendum or any other means...",
"The Constitution does not provide that, after a certain time has elapsed, a president whose actions have been recognised by the Constitutional Court as having grossly violated the Constitution, and who has been found to have breached the oath and has been removed from office by the Seimas [ on that account ] ..., may [subsequently] be treated as though he had not breached the oath or committed a gross violation of the Constitution ... [ A person]. .. who has been removed from office by the Seimas, the body representing the people, will always remain someone who has breached his oath to the nation and grossly violated the Constitution, and who has been dismissed as President for those reasons ...",
"[A person removed from the office of President ] may never again ... give an oath to the nation, as there would always exist a reasonable doubt ... as to its reliability ...",
"Impeachment is a form of public and democratic scrutiny of those holding public office, a measure of self-protection for the community, a ... defence against high-ranking officials who disregard the Constitution and laws...",
"Where a person has been removed from the office of President ... for a gross violation of the Constitution or a breach of the oath ... he may never again be elected President of the Republic [or] a member of the Seimas; [he] may never hold office as ... a member of the Government, [or] the National Audit Officer, that is, [he] may not hold an office provided for in the Constitution for which it is necessary to take an oath in accordance with the Constitution ... ”",
"35. On 28 May 2004 the Supreme Administrative Court dismissed the applicant's complaint against the decision of the CEC, referring, inter alia, to the Constitutional Court's ruling of 25 May 2004. It noted in particular :",
"“ ... It appears from the reasoning of the Constitutional Court that ... the applicant has forfeited the right to be elected President with effect from 6 April 2004. Therefore, he ... cannot take part in the election announced on 15 April 2004...",
"Until it was amended on 4 May 2004, the Presidential Elections Act did not specify the [residual] rights of a person who had forfeited the right to be elected President.",
"Article 6 § 1 of the Constitution provides that the Constitution is directly applicable ... [I]t follows that, from the moment ... the applicant submitted his candidacy for the election, his situation was governed by the Constitution, which, as the Constitutional Court has found, bars [ a person removed from the office of President ] from standing in presidential elections. In these circumstances ... there has been no breach of the principle of the prohibition of retrospective legislation ...”",
"36. On 15 July 2004 the Seimas passed an amendment to the Seimas Elections Act, to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament.",
"D. Criminal proceedings against the applicant",
"37. In autumn 2004 the Prosecutor General discontinued the investigation into allegations that while in office, the applicant had abused his authority in relation to a private company (Article 2 28 of the Criminal Code).",
"38. On an unspecified date the applicant was charged with disclosing information classified as a State secret (Article 125 § 1 of the Criminal Code). On 25 October 2004 the Vilnius Regional Court acquitted him for lack of evidence. On 1 March 2005 the Court of Appeal reversed that decision, finding the applicant guilty. It held, however, that owing to new circumstances, namely the applicant's removal from office as President and disqualification from elected office, it was reasonable to discharge him from criminal liability and to discontinue the criminal proceedings. On 13 December 2005 the Supreme Court quashed the Court of Appeal's judgment, upholding the acquittal delivered by the Vilnius Regional Court.",
"E. Criminal proceedings against J. B.",
"39. On account of his threat to disseminate information discrediting the applicant if he failed to keep his promise to appoint him as an adviser ( see paragraph 19 above), J. B. was convicted of having, for his own benefit and “by means of mental coercion, required a civil servant or person in a position of public authority to carry out or refrain from certain actions” (Article 287 § 1 of the Criminal Code). He was fined 10, 000 Lithuanian litai, equivalent to approximately 2,900 euros (judgments of the Vilnius City 1st District Court of 22 November 2004, the Vilnius Regional Court of 6 April 2005, and the Supreme Court of 18 October 2005).",
"III. GUIDELINES ON ELECTIONS ADOPTED BY THE VENICE COMMISSION",
"59. The relevant passages of the Guidelines on Elections adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 51st session (5-6 July 2002) read as follows:",
"“ I. Principles of Europe's electoral heritage",
"The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals.",
"1. Universal suffrage",
"1.1. Rule and exceptions",
"Universal suffrage means in principle that all human beings have the right to vote and to stand for election. This right may, however, and indeed should, be subject to certain conditions:",
"a. Age ...",
"b. Nationality ...",
"c. Residence ...",
"d. Deprivation of the right to vote and to be elected:",
"i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:",
"ii. it must be provided for by law;",
"iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;",
"iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence;",
"v. furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. ...”",
"The Explanatory Report, adopted by the Venice Commission at its 52nd session (18-19 October 2002), reads as follows (footnote omitted):",
"“... provision may be made for clauses suspending political rights. Such clauses must, however, comply with the usual conditions under which fundamental rights may be restricted; in other words, they must:",
"– be provided for by law;",
"– observe the principle of proportionality;",
"– be based on mental incapacity or a criminal conviction for a serious offence.",
"Furthermore, the withdrawal of political rights may only be imposed by express decision of a court of law. However, in the event of withdrawal on grounds of mental incapacity, such express decision may concern the incapacity and entail ipso jure deprivation of civic rights.",
"The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them, as the holding of a public office is at stake and it may be legitimate to debar persons whose activities in such an office would violate a greater public interest. ...”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Competence of the Constitutional Court",
"40. The Constitutional Court has jurisdiction to review the constitutionality and lawfulness of the acts of the President (Articles 102, 10 5 and 106 of the Constitution). Acts of the President cease to have legal effect if the Constitutional Court rules that they are in breach of the Constitution (Article 107 of the Constitution).",
"41. Decisions of the Constitutional Court have statutory force and are final (Article 107 of the Constitution). The power of the Constitutional Court to declare a legal act unconstitutional may not be circumvented by the subsequent adoption of a similar legal act ( section 72 of the Constitutional Court Act ).",
"42. In addition, the Constitutional Court may be called upon to determine whether certain acts of a president against whom impeachment proceedings have been instituted are in breach of the Constitution (Article 105 of the Constitution). No appeal lies against the court's conclusions ( section 83 ( 2 ) of the Constitutional Court Act ). However, the final decision on the sustainability of allegations giving rise to impeachment proceedings is taken by the Seimas on the basis of the Constitutional Court's conclusions (Article 107 § 3 of the Constitution; see also below).",
"43. Article 104 of the Constitution provides that, in discharging their duties, the judges of the Constitutional Court act independently of any other State institution, person or organisation, and are guided only by the Constitution.",
"44. Section 48 of the Constitutional Court Act provides that a judge of the Constitutional Court may withdraw or be removed from a case if he or she, inter alia, is a relative of one of the parties to the case or has publicly declared how it should be decided.",
"B. Impeachment proceedings",
"45. Article 86 of the Constitution provides that the President of Lithuania is immune from any criminal liability while in office. However, under Article 74 of the Constitution, he or she may be removed from office following impeachment proceedings, inter alia for a gross violation of the Constitution or a breach of the constitutional oath. The decision is taken by the Seimas (Article 107 § 3 of the Constitution).",
"46. In accordance with Articles 227 and 228 of the Statute of the Seimas, impeachment is a parliamentary procedure aimed at determining the constitutional liability of the highest - ranking officials, such as the President of the Republic or members of parliament, for acts carried out while in office which undermine the authorities'credibility. Impeachment proceedings may be initiated by a quarter of the members of the Seimas where such an official is alleged to have committed a gross violation of the Constitution and/or a breach of the constitutional oath and/or is suspected of committing a criminal offence (Articles 229 and 230 of the Statute of the Seimas). They are to be conducted in accordance with the rules of criminal procedure (Article 246 § 3 of the Statute of the Seimas).",
"47. Having received a petition for impeachment, the Seimas sets up a special investigation commission, which sits in private (Article 238 of the Statute of the Seimas ) and hears evidence from the parties to the procedure, witnesses and experts, in accordance with the rules of criminal procedure (Article 239 of the Statute of the Seimas ). It reports its findings to the Seimas as to whether there are grounds to institute impeachment proceedings (Article 2 4 1 of the Statute of the Seimas). If the Seimas – sitting in public – considers that such grounds exist, it passes a resolution to initiate the proceedings, requesting the Constitutional Court to determine whether the acts of the person indicated in the impeachment charges are in breach of the Constitution (Article 2 40 of the Statute of the Seimas and Article 106 of the Constitution ). On the basis of the Constitutional Court's conclusions (Article 105 of the Constitution), the Seimas conducts an inquiry ( likewise observing the basic rules of criminal procedure) and ultimately decides whether the person against whom the proceedings have been brought should be removed from office for a gross violation of the Constitution, on the basis of the available evidence and testimony (Articles 2 46 to 258 and 260 of the Statute of the Seimas; Article 74 and Article 107 § 3 of the Constitution ).",
"48. In its ruling of 31 March 2004, in which it set out its conclusions in case no. 14/04 ( see paragraph 27 above), the Constitutional Court provided the following clarifications :",
"“... The provision of Article 107 § 2 of the Constitution whereby decisions of the Constitutional Court on issues within its competence are final and not subject to appeal also means that when deciding whether or not to remove the President from office, the Seimas may not reject, change or question the Constitutional Court's conclusion that specific acts of the President are (or are not) in breach of the Constitution. No such powers are assigned to the Seimas by the Constitution. [ Such a ] conclusion ... is binding on the Seimas in so far as the Constitution does not empower it to decide whether the Constitutional Court's conclusions are well-founded and lawful; only the [ Constitutional ] Court can establish that the actions of the President are (or are not) in breach of the Constitution.",
"Under Article 74 of the Constitution, only the Seimas may remove the President from office for a gross violation of the Constitution.",
"Thus, the Constitution assigns the Seimas and the Constitutional Court different functions in impeachment proceedings, and confers on them the respective powers necessary to discharge those functions: the Constitutional Court decides whether specific acts of the President are in breach of the Constitution and submits its conclusions to the Seimas ( Article 105 § 3, point (4), of the Constitution), whereas the Seimas, in the event that the President has committed a gross violation of the Constitution, decides whether or not to remove him from office (Article 74 of the Constitution) ... Under Article 107 § 3 of the Constitution, the Seimas is empowered to decide whether to remove the President from office, but not to determine whether his acts are in breach of the Constitution.",
"It should be noted that this constitutional provision whereby only the Constitutional Court is empowered to decide ( through its conclusions on the matter ) whether specific acts of the President are in breach of the Constitution represents a further guarantee for the President that his constitutional liability will not be incurred unreasonably. Thus, if the Constitutional Court reaches the conclusion that the President's acts are not in breach of the Constitution, the Seimas may not remove him from office for a gross violation of the Constitution ... ”",
"49. In addition to possible constitutional liability, a person removed from public office may incur ordinary liability ( teisinė atsakomybė ).",
"50. According to the Constitutional Court's ruling of 11 May 1999 on the compliance of Article 259 of the Statute of the Seimas of the Republic of Lithuania with the Lithuanian Constitution, “the constitutional sanction applied in the context of impeachment proceedings is of an irreversible nature”. In the same ruling the Constitutional Court also stated that fair -trial principles applied in impeachment proceedings, meaning that the persons charged “must have the right to be heard and a legally guaranteed opportunity to defend their rights”.",
"C. Election of the President and of members of the Seimas",
"51. Article 56 of the Constitution provides:",
"“ Any citizen of the Republic of Lithuania who is not bound by an oath or pledge to a foreign State, and who, on the date of the election, is at least twenty-five years of age and permanently resident in Lithuania, may be elected as a member of the Seimas.",
"Persons who have not completed a sentence imposed by a court, and persons declared legally incapable by a court, may not be elected as members of the Seimas. ”",
"52. As mentioned above, on 4 May 2004 the Seimas amended the Presidential Elections Act by inserting the following provision :",
"“ A person who has been removed from parliamentary or other office by the Seimas in impeachment proceedings may not be elected President of the Republic if less than five years have elapsed since his removal from office.”",
"Following the Constitutional Court's ruling of 25 May 2004 (see paragraph 34 above), the Seimas passed an amendment to the Seimas Elections Act, to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament.",
"53. The Constitution further provides :",
"Article 59",
"“ ... Newly elected members of the Seimas shall acquire all the rights of a representative of the nation only after taking an oath before the Seimas to be loyal to the Republic of Lithuania.",
"Members of the Seimas who do not take the oath according to the procedure established by law, or who take a conditional oath, shall forfeit their parliamentary office...”",
"Article 78",
"“ Any person who is a Lithuanian citizen by birth, who has lived in Lithuania for at least the three years preceding the election, is at least 40 years old on the date of the election and is eligible for election as a member of the Seimas may be elected President of the Republic.",
"The President of the Republic shall be elected by the citizens of the Republic of Lithuania for a five-year term by universal, equal and direct suffrage by secret ballot.",
"The same person may not be elected President of the Republic for more than two consecutive terms. ”",
"Article 79",
"“ Any citizen of the Republic of Lithuania who satisfies the conditions set forth in the first paragraph of Article 78 and has collected the signatures of no fewer than 20,000 voters shall be registered as a candidate for the office of President.",
"There shall be no limit on the number of candidates for the office of President. ”",
"54. Article 82 of the Constitution provides:",
"“ The newly elected President of the Republic shall take office ... after swearing an oath to the nation in Vilnius, in the presence of the representatives of the people, namely the members of the Seimas, to be loyal to the Republic of Lithuania and the Constitution, to fulfil the duties of his office conscientiously, and to be equally just to all.",
"A person re-elected President of the Republic shall also take the oath.",
"The record of the oath taken by the President of the Republic shall be signed by him and by the President of the Constitutional Court or, in the latter's absence, by another judge of the Constitutional Court. ”",
"55. Pursuant to section 3 of the Presidential Office Act, the newly elected President takes the following oath:",
"“I (name and surname)",
"Swear to the nation to be loyal to the Republic of Lithuania and the Constitution, to observe and enforce the law, and to protect the integrity of Lithuanian territory;",
"I swear to fulfil conscientiously the duties of [ presidential ] office, and to be equally just to all;",
"I swear to strengthen the independence of Lithuania, to the best of my ability, and to serve my homeland, democracy and the welfare of the people of Lithuania ... ”",
"D. Other provisions",
"56. Article 29 of the Constitution provides that “ [a]ll persons shall be equal before the law, the courts, and other State institutions and officials. ” Article 84 § 21 of the Constitution states that the President “ shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law ”.",
"57. Section 16 ( 1 ) of the Citizenship Act provides that the President may grant Lithuanian citizenship by way of exception – that is, without applying the usual eligibility requirements – to foreign citizens of special merit rendering them worthy of becoming a citizen of the Republic of Lithuania.",
"58. Articles 68 and 71 of the Constitution read as follows :",
"Article 68",
"“ The right to initiate legislation in the Seimas shall be vested in members of the Seimas, the President of the Republic and the Government.",
"Citizens of the Republic of Lithuania shall also have the right to initiate legislation. A Bill may be brought before the Seimas by 50,000 citizens with the right to vote, and the Seimas must consider it.”",
"Article 71",
"“ Within ten days of receiving a law passed by the Seimas, the President of the Republic shall either sign and officially promulgate the law, or shall send it back to the Seimas, with reasoned observations, for reconsideration.",
"If a law passed by the Seimas is not sent back or signed by the President within the prescribed period, the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas.",
"The President of the Republic must, within five days, sign and officially promulgate any laws or other instruments adopted by referendum.",
"If such a law is not signed and promulgated by the President within the prescribed period, the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas .”",
"IV. LAW AND PRACTICE REGARDING IMPEACHMENT IN THE MEMBER STATES OF THE COUNCIL OF EUROPE",
"60. The term “ impeachment ” denotes a formal indictment procedure whereby the legislature may remove from office a head of State, a senior official or a judge for breaching the law or the Constitution. The purpose of impeachment is in principle to allow the institution of criminal proceedings in the courts against the person concerned, but in practice it does not necessarily produce such an outcome.",
"61. The legal systems of the majority of the Council of Europe's member States with a republican system make specific provision for the impeachment of the head of State ( Albania, Austria, Azerbaijan, Bulgaria, Croatia, Czech Republic, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Moldova, Montenegro, Poland, Romania, Russian Federation, Serbia, Slovakia, Slovenia, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine ). Impeachment proceedings may be instituted on the following grounds (for Lithuania, see paragraph 46 above): breach of the Constitution or undermining of the constitutional order ( Austria, Bulgaria, Croatia, Georgia, Germany, Greece, Hungary, Moldova, Romania, Slovakia, Slovenia, “the former Yugoslav Republic of Macedonia” ); high treason ( Bulgaria, Cyprus, Czech Republic, Finland, France, Greece, Italy, Romania, Russian Federation ); breach of the law ( Germany, Hungary ); an ordinary or serious criminal offence ( Finland, Russian Federation ); or immoral conduct ( Ireland ).",
"62. In most of these republics, impeachment proceedings have no direct effects on the electoral and other political rights of a head of State who is removed from office. However, in Austria, if the Federal President is removed from office following impeachment proceedings, the Constitutional Court may order the temporary forfeiture of “political rights” if there are particularly aggravating circumstances. Similarly, in Poland the special court with competence in such matters may, in addition to removing the President from office, temporarily deprive him or her of certain political rights ( general disqualification from standing for election for a period of up to ten years, prohibition from occupying certain positions for a similar period and revocation of orders and other honorary titles ). In Slovakia and the Czech Republic, a person removed from presidential office as a result of impeachment proceedings permanently forfeits the right to stand for election as President but may be a candidate in any other elections; in the Russian Federation he or she is barred only from standing in the presidential elections called as a result of his or her removal from office.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 2 AND 3 OF THE CONVENTION, ARTICLE 7 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 7",
"63. The applicant alleged a violation of his right to a fair hearing in connection with the two sets of proceedings in the Constitutional Court, concerning Decree no. 40 and the merits of the impeachment charges against him. He submitted that because of collusion between the court's President and the member of the Seimas who had initiated the proceedings against him, the Constitutional Court could not be considered an independent and impartial tribunal, and noted that that court had subsequently issued a public response to his accusations of bias on its part; in a supplement to his application, dated 30 November 2006, he added that the Constitutional Court's endorsement of the conclusions of the declaration of 25 March 2004 by the Seimas showed that it had been put under considerable pressure by Parliament as a result of such collusion. He further submitted that he had been unable to defend himself effectively and that, in the impeachment proceedings, his lawyers had not had access to certain classified documents which the special investigation commission had examined and the Constitutional Court had exceeded its powers by making findings as to the facts and the issue of “guilt”. He relied on Article 6 §§ 1 and 3 ( b) of the Convention, which provides :",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"( b) to have adequate time and facilities for the preparation of his defence; ...”",
"Furthermore, in another supplement to his application, dated 30 September 2005, the applicant submitted that by justifying his permanent disqualification from elected office on the ground that there would always be reasonable doubt as to the reliability of any constitutional oath sworn by him in future, the Constitutional Court's ruling of 25 May 2004 had established a presumption of guilt, in breach of Article 6 § 2 of the Convention. In the supplement of 30 November 2006 to his application, he added that the declaration of 25 March 2004 by the Seimas had breached the same provision, which provides :",
"“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ”",
"In addition, in the supplement of 30 September 2005 to his application the applicant complained that the sanction imposed on him as a result of the impeachment proceedings, namely removal from office and a lifelong ban on standing for election, was more severe than the penalties envisaged by the criminal law for equivalent offences, adding that lifelong disqualification from elected office was not provided for by law and was, to say the least, “bizarre”. On that account he alleged a violation of Article 7 of the Convention, which provides :",
"“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”",
"Lastly, the applicant submitted that the institution of impeachment proceedings followed by criminal proceedings in his case amounted to trying him twice for the same offence. He relied on Article 4 § 1 of Protocol No. 7, which provides :",
"“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”",
"64. The Court must determine at the outset whether the provisions relied on by the applicant are applicable in the instant case.",
"65. With regard to Article 6 § 1 of the Convention, the Court reiterates that the fact that proceedings have taken place before a constitutional court does not suffice to remove them from the ambit of that provision. It must therefore be ascertained whether the proceedings before the Constitutional Court in the instant case did or did not relate to the “ determination ” of the applicant's “ civil rights and obligations” or of a “criminal charge” against him ( see Pierre-Bloch v. France, 2 1 October 1997, § 48, Reports of Judgments and Decisions 1997 ‑ VI).",
"66. The first set of proceedings concerned the review of the compliance with the Constitution and the Citizenship Act of a decree issued by the applicant by virtue of his presidential powers, granting Lithuanian citizenship to J.B. “by way of exception”. The purpose of the second set of proceedings was to determine whether, in discharging his duties as President, the applicant had committed gross violations of the Constitution or breached his constitutional oath. It is therefore clear that the proceedings in question did not concern the determination of the applicant's civil rights or obligations.",
"For the Court to conclude that they likewise did not concern a “criminal charge”, it is sufficient for it to find that they did not involve the imposition of a sanction by the Constitutional Court against the applicant. Admittedly, it notes in this connection that the second set of proceedings formed a stage of the impeachment proceedings instituted by the Seimas, the purpose of which was to determine whether or not the applicant should remain in office as President and be eligible to stand for election. However, in any event, in the context of impeachment proceedings against the President of Lithuania for a gross violation of the Constitution or a breach of the presidential oath, the measures of removal from office and (consequent) disqualification from standing for election involve the head of State's constitutional liability, so that, by virtue of their purpose, they lie outside the “criminal” sphere. Furthermore, and above all, the decision to remove the President from office is taken not by the Constitutional Court but by Parliament.",
"67. The Court thus concludes that Article 6 § 1 of the Convention is not applicable in either its civil or its criminal aspect to the Constitutional Court proceedings in issue.",
"68. It also follows from the foregoing that the applicant was not “charged with a criminal offence” within the meaning of Article 6 § 2 of the Convention in those proceedings, or “convicted” or “ tried or punished ... in criminal proceedings ” within the meaning of Article 4 § 1 of Protocol No. 7, and that the proceedings did not result in his being held “guilty of a criminal offence” or receiving a “penalty” within the meaning of Article 7 of the Convention. Those provisions likewise do not apply in the present case.",
"69. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1",
"70. In the supplement of 30 September 2005 to his application the applicant complained of his lifelong disqualification from elected office, arguing that permanently denying him the opportunity to stand for election although he was a politician enjoying considerable popular support was contrary to the very essence of free elections and was a wholly disproportionate measure. In the supplement of 30 November 2006 to his application he further submitted that the amendment of electoral law passed following his removal from office had been arbitrary and designed to bar him from holding any public office in future. He relied on Article 3 of Protocol No. 1, which provides :",
"“ The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”",
"A. Admissibility",
"1. Applicability of Article 3 of Protocol No. 1",
"71. The Court reiterates that Article 3 of Protocol No. 1 applies only to the election of the “legislature”.",
"72. Regard being had to the constitutional structure of Lithuania, it is not in doubt that Article 3 of Protocol No. 1 is applicable to the election of members of the Seimas. The reverse is true, however, as regards the election of the President of Lithuania. It follows that, in so far as the applicant complained about his removal from office or disqualification from standing for the presidency, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.",
"2. Exhaustion of domestic remedies",
"73. The Government submitted that parliamentary elections had been held in 2004 and 2008 and that the applicant had not expressed the wish to be a candidate in them. Had his candidacy been refused, it would have been open to him to apply to the administrative courts, which could then have requested the Constitutional Court to review the constitutionality of the Seimas Elections Act as amended on 15 July 2004. The Government further noted that, as President of Lithuania, the applicant could have applied to the Constitutional Court, under section 61 of the Constitutional Court Act, for an interpretation of its ruling of 11 May 1999, in which it had held that the constitutional sanction imposed in the context of impeachment proceedings was “ of an irreversible nature ”, and asked it to clarify whether this meant lifelong disqualification from standing for election. He would then have had the option of resigning in order to avoid that outcome. In short, the Government argued, this part of the application should be declared inadmissible for failure to exhaust domestic remedies.",
"74. The applicant submitted in reply that since the Constitutional Court had very clearly ruled on 25 May 2004 that lifelong disqualification from standing for election was a consequence of removal from presidential office, it was certain not only that his registration as a candidate in the 2004 and 2008 parliamentary elections would have been refused but also that any subsequent remedies would have had no prospects of success. He added that an application to the Constitutional Court under section 61 of the Constitutional Court Act for an interpretation of the ruling of 11 May 1999 would have been ineffective, seeing that the meaning of the phrase “of an irreversible nature” was not open to doubt. Lastly, the argument that he would have avoided the impeachment proceedings if he had resigned did not, in his view, call for a response.",
"75. The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation ( see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports 1996 ‑ II ). More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ( see, for example, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V). It falls to the respondent State, if it pleads non-exhaustion of domestic remedies, to establish that these various conditions are satisfied ( see, among other authorities, Johnston and Others v. Ireland, 18 December 1986, § 45, Series A no. 112, and Selmouni, loc. cit. ).",
"76. In the instant case the Court observes that in its ruling of 25 May 2004 the Constitutional Court held that a person who had been removed from the office of President for a gross violation of the Constitution or a breach of the oath could never again be elected President of the Republic or a member of the Seimas or hold an office for which it was necessary to take an oath in accordance with the Constitution. It follows from Article 107 of the Lithuanian Constitution that decisions of the Constitutional Court have statutory force and are final. Furthermore, as the Government pointed out in their written observations, the Constitutional Court itself is bound by its own precedents. An appeal against a refusal to register the applicant as a candidate for election to the Seimas would therefore have been bound to fail. Indeed, the Supreme Administrative Court's decision of 28 May 2004 provides an illustration of this point, since it attached decisive weight to the Constitutional Court's conclusions of 25 May 2004 in dismissing the applicant's complaint against the refusal of the Central Electoral Committee to register him as a candidate in the 2004 presidential election.",
"77. The Court also takes note of the Government's argument that the applicant could have made a prior request to the Constitutional Court for clarification of whether removal from office entailed lifelong disqualification from standing for election and that, if that position were confirmed, he could have resigned before the vote on whether to remove him from office. Such a request could not, however, have prompted an examination of the applicant's particular situation for the purposes of Article 3 of Protocol No. 1. It would also have required him to resign voluntarily as President and thereby to accept such a restrictive condition that the remedy in question could not in any event be regarded as “accessible”. It cannot therefore be classified as a domestic remedy that had to be used for the purposes of Article 35 § 1 of the Convention.",
"78. It follows from the foregoing that the Government have not shown that a domestic remedy satisfying the requirements of Article 35 § 1 of the Convention was available to the applicant.",
"3. Compliance with the six-month time-limit",
"79. The Government submitted that the applicant had raised his complaint under Article 3 of Protocol No. 1 for the first time in a supplement to his application dated 30 September 2005, more than six months after the final domestic decision ( the Constitutional Court's ruling of 25 May 2004). They accordingly contended that this part of the application was out of time and, as such, inadmissible.",
"80. The applicant submitted in reply, in particular, that he had already raised the complaint under Article 3 of Protocol No. 1 in substance in his application; as a result, his submissions of 30 September 2005 had simply expanded on an argument he had already submitted to the Court within the six-month period prescribed by Article 35 § 1 of the Convention. He pointed out in that connection that in the Ringeisen v. Austria judgment (16 July 1971, § 90, Series A no. 13) the Court had accepted that initial applications could be followed by “ additional documents ”, the purpose of which was “ to fill the gaps or clarify obscure points ”.",
"81. The Court observes, as the Government did, that the applicant did not raise this complaint in his application, even in substance. He mentioned it for the first time in his supplement of 3 0 September 2005 to the application, more than six months after the Constitutional Court's ruling of 25 May 2004 to the effect that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath could never again be elected as a member of the Seimas – among other positions (see paragraph 34 above) – and the Act of 15 July 2004 amending the Seimas Elections Act accordingly.",
"82. However, regard should be had to the particular features of the present case. The Court notes in this connection that, in so far as the right under Article 3 of Protocol No. 1 to stand in parliamentary elections is in issue here, the applicant's complaint concerns general provisions which did not give rise in his case to an individual measure of implementation subject to an appeal that could have led to a “final decision” marking the start of the six-month period provided for in Article 35 § 1 of the Convention. Admittedly, it might at first sight have appeared conceivable for the applicant to attempt to register as a candidate in parliamentary elections after his removal from office and, once his registration was refused, to apply to the administrative courts on the basis of Article 3 of Protocol No. 1. However, as noted above, in view of the Constitutional Court's ruling of 25 May 2004, such a remedy would have been ineffective in the present case, and an applicant cannot be required to avail himself of a remedy lacking effectiveness ( see paragraph 7 6 above ).",
"83. It therefore appears that the applicant's complaint does not concern an act occurring at a given point in time or even the enduring effects of such an act, but rather the Constitutional Court's ruling of 25 May 2004 that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath can never again be elected as a member of the Seimas ( among other positions ), and the Act of 15 July 2004 amending the Seimas Elections Act accordingly. He is therefore complaining of provisions giving rise to a continuing state of affairs, against which no domestic remedy is in fact available to him. However, as the European Commission of Human Rights noted in the De Becker v. Belgium decision (9 June 1958, no. 214/56, Yearbook 2), the existence of the six-month period specified in Article 35 § 1 of the Convention is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question. Although this represents a “legitimate concern for order, stability and peace”, it cannot be allowed to stand in the way of the consideration of a permanent state of affairs which is not a thing of the past but still continues without any domestic remedy being available to the applicant; since there is no justification for the application of the rule, there can be no question of his being debarred by lapse of time. The Commission added that accordingly, “when [it] receives an application concerning a legal provision which gives rise to a permanent state of affairs for which there is no domestic remedy, the problem of the six months period specified in Article 26 [ of the Convention ( current Article 35 § 1)] can arise only after this state of affairs has ceased to exist; ... in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six months period”. The Court itself has subsequently applied this principle. Thus, it has considered the merits of a number of applications which concerned statutory provisions that had not given rise to individual decisions against the applicants but had produced a permanent state of affairs, and which had been lodged more than six months after the entry into force of the provisions in question ( see, for example, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009-.. . ).",
"84. In the instant case no domestic remedy is available to the applicant and the state of affairs complained of has clearly not ceased. It cannot therefore be maintained that this part of the application is out of time.",
"4. Application of Article 17 of the Convention",
"85. The Government submitted that it would be contrary to the general principles set forth in the Court's case-law concerning protection of democracy for the applicant to be able to stand in parliamentary elections after having breached his constitutional oath. They added that his real aim was to be re-elected President in the election called for 13 June 2004, and not to become a member of the Seimas. In their submission, the applicant was seeking to use the Convention machinery to gain political revenge and regain the highest State office.",
"86. The applicant asserted in reply that his aim was to obtain a judgment from the Court which would have the effect of allowing him to stand in parliamentary or presidential elections, and that such an aim could not constitute an abuse of rights for the purposes of Article 17 of the Convention.",
"87. The Court reiterates, firstly, that “ the purpose of Article 17, in so far as it refers to groups or to individuals, is to make it impossible for them to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention; ... therefore, no person may be able to take advantage of the provisions of the Convention to perform acts aimed at destroying the aforesaid rights and freedoms ...” ( see Lawless v. Ireland, 1 July 1961, § 7, pp. 45-46, Series A no. 3).",
"Since the general purpose of Article 17 is, in other words, to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated in the Convention ( see W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004-VII, and Norwood v. the United Kingdom, no. 23131/03, ECHR 2004-XI), this Article is applicable only on an exceptional basis and in extreme cases, as indeed is illustrated by the Court's case-law.",
"88. The Court has held, in particular, that a “ remark directed against the Convention's underlying values ” is removed from the protection of Article 10 by Article 17 ( see Lehideux and Isorni v. France, 2 3 September 1998, § 53, Reports 1998-VII, and Garaudy v. France ( dec. ), no. 65831/01, ECHR 2003-IX). Thus, in Garaudy (ibid.), which concerned, in particular, the conviction for denial of crimes against humanity of the author of a book that systematically denied such crimes perpetrated by the Nazis against the Jewish community, the Court found the applicant's Article 10 complaint incompatible ratione materiae with the provisions of the Convention. It based that conclusion on the observation that the main content and general tenor of the applicant's book, and thus its aim, were markedly revisionist and therefore ran counter to the fundamental values of the Convention and of democracy, namely justice and peace, and inferred from that observation that he had attempted to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were contrary to the text and spirit of the Convention ( see also Witzsch v. Germany (dec.), no. 4785/03, 13 December 2005 ). The Court reached the same conclusion in, for example, Norwood ( (dec.), cited above ) and Pavel Ivanov v. Russia ( ( dec .), no. 35222/04, 20 February 2007 ), which concerned the use of freedom of expression for Islamophobic and anti-Semitic purposes respectively. In Orban and Others v. France (no. 20985/05, § 35, 15 January 2005 ) it noted that statements pursuing the unequivocal aim of justifying war crimes such as torture or summary executions likewise amounted to deflecting Article 10 from its real purpose. In the same vein, the Court has held that Article 17 of the Convention prevented the founders of an association whose memorandum of association had anti-Semitic connotations from relying on the right to freedom of association under Article 11 of the Convention to challenge its prohibition, noting in particular that the applicants were essentially seeking to employ that Article as a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention ( see W.P. and Others, cited above ).",
"89. In the present case there is no indication that the applicant was pursuing an aim of that nature. He relied legitimately on Article 3 of Protocol No. 1 to challenge his disqualification from elected office, seeking to obtain a judgment from the Court whose execution at domestic level would have the likely effect of allowing him to stand in parliamentary elections. In other words, he is seeking to regain the full enjoyment of a right which the Convention in principle secures to everyone, and of which he claims to have been wrongly deprived by the Lithuanian authorities, the Government's allegation that the applicant's real aim is to be re-elected President of Lithuania being immaterial in this context. Article 17 of the Convention cannot therefore apply.",
"5. Conclusion",
"90. In so far as the applicant's complaint concerns his removal from office or his disqualification from standing for election as President of Lithuania, this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.",
"In so far as it concerns his inability to stand for election to the Seimas, it raises complex issues of fact and law which can only be resolved after examination on the merits. It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. Within these limits, the application must therefore be declared admissible.",
"B. Merits",
"1. The parties'submissions",
"( a) The Government",
"91. The Government noted in the first place that the principle that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath could not stand in presidential or parliamentary elections resulted from an interpretation of the Constitution by the Constitutional Court. However, it was not a new judge-made rule applied for the first time by the Constitutional Court in the applicant's case, but an “implicit” provision of the Constitution which that court had simply confirmed. The Government pointed out that rulings of the Constitutional Court were final and binding on everyone, including the court itself, and that, like the actual text of the Constitution, “implicit” constitutional provisions could be amended only by changing the Constitution. They also emphasised that the conclusions reached by the Constitutional Court in the present case had not been unforeseeable, in particular given that, in a ruling of 11 March 1999 ( see paragraph 50 above ), that court had stressed that the constitutional sanction resulting from removal from office was irreversible; its ruling of 25 May 2004 had thus been consistent with its previous case-law.",
"92. The Government further noted that the restriction in question, which applied only to the passive aspect of the right protected by Article 3 of Protocol No. 1, was not directed at the applicant personally but at a category of individuals to which he indisputably belonged.",
"They added that the purpose of the restriction was to prevent persons who had committed a gross violation of the Constitution or breached the constitutional oath from holding an office for which it was necessary to take an oath in accordance with the Constitution; it therefore pursued the legitimate aim not only of preserving the democratic order but also of “protecting national security”.",
"In the Government's submission, taking into account what was at stake, the restriction could not be regarded as disproportionate. In that connection they emphasised that such conduct on the part of the highest authorities – especially the head of State – undermined people's trust in State institutions and posed a serious and imminent threat to democracy and the constitutional order. Furthermore, relying on Ždanoka v. Latvia [GC] (no. 58278/00, §§ 100 and 103, ECHR 2006-IV), they highlighted the wide margin of appreciation afforded to States in this sphere and also, referring to the concept of a “ democracy capable of defending itself”, the need to take account of the evolution of the political context in which the measure in issue had been taken; features unacceptable in the context of one country's system could be justified in another system. On that point, they stressed that Lithuania had been a democracy only between 1918 and 1940 and after 1990; accordingly, it did not have a long -standing democratic tradition, society had not completely rid itself of the “remnants of the totalitarian occupying regime” – including corruption and a lack of public trust in State institutions – and there were numerous examples of inappropriate and unethical conduct in politics. Lithuania's political, historical, cultural and constitutional situation therefore justified the measure in question, even though it might appear excessive in a well-established democracy. That position was all the more compelling in this instance since the head of State was the institution to which the nation had entrusted the duties of protecting and defending the constitutional order and democracy. Lastly, the lack of a European consensus in this area served to confirm that in deciding that persons dismissed following impeachment proceedings should be permanently disqualified from elected office, Lithuania remained within its margin of appreciation.",
"93. In addition, relying on Ždanoka ( cited above, §§ 112-14), the Government emphasised that the categories of persons affected by the prohibition imposed on the applicant were clearly and precisely defined and that the applicable rules afforded the highest possible degree of individualisation and guarantees against arbitrariness. They noted in that connection that two institutions were involved in impeachment proceedings, namely the Seimas and the Constitutional Court; only the former could initiate them, and only the latter could rule on whether there had been a violation of the Constitution or a breach of the constitutional oath. Only if the Constitutional Court had established such a violation could the Seimas remove the person concerned from office ( and, moreover, this required a three-fifths majority of all members of the Seimas ). They also pointed out that impeachment proceedings were judicial in nature, that the rules of criminal procedure applied, that in such proceedings the Seimas was presided over not by one of its members but by a member of the Supreme Court, and that the decision included reasons and was taken following an objective public investigation into the circumstances of the case. In the instant case, moreover, the applicant had had the opportunity to escape “full” constitutional liability by resigning after the Constitutional Court's opinion of 31 March 2004; he would thereby have avoided being removed from office and the resulting disqualification from standing for election.",
"( b) The applicant",
"94. In the applicant's submission, the Constitutional Court's finding that removal from office for a gross violation of the Constitution or a breach of the constitutional oath was irreversible – to such an extent that it could not even be challenged in a popular vote – was excessive. This was particularly true in his case since, although the charges forming the basis for his removal from office were criminal in nature, they had either not given rise to a criminal prosecution after his immunity had been lifted or they had resulted in his acquittal. He was therefore subject to a permanent sanction based on a questionable decision by a court that appeared biased, on account of acts constituting criminal offences in respect of which he had either been acquitted or not prosecuted.",
"95. The applicant – who likewise referred to the principles set forth by the Court in Ždanoka (cited above) – submitted that even assuming that the aim pursued had been legitimate, it was unacceptable for it to have been attained in his case through violations of the Constitution resulting, for example, from retrospective application of the law and denial of a fair trial.",
"He further contended that the restriction of his right under Article 3 of Protocol No. 1 was disproportionate in that it was not subject to a time-limit. Noting in that connection that in the Ždanoka case the Chamber (judgment of 17 June 2004) had found a violation of that Article for that reason, he argued that since the authoritative nature of the Constitutional Court's rulings meant that his disqualification was permanent, a finding along similar lines was all the more compelling in his case. Although he nonetheless conceded that the European Commission of Human Rights had reached the opposite conclusion in several cases, he pointed out that all those cases had concerned persons found guilty of particularly serious offences such as war crimes or acts of high treason, whereas he had not been convicted of any criminal offence on account of the acts forming the basis of his disqualification from standing for election.",
"Furthermore, in justifying the lack of a time-limit for the disqualification from elected office of a person who had breached his constitutional oath as President by saying that there would always be a doubt as to the reliability of any new oath he would have to take in the event of his subsequent election, the Constitutional Court had lent that measure a preventive purpose which, rather than justifying it, made it even more disproportionate. In the applicant's submission, this amounted to a “presumption of guilt”.",
"2. The Court's assessment",
"(a) General principles",
"96. The Court refers to the general principles concerning Article 3 of Protocol No. 1, as set out in the following judgments in particular: Mathieu-Mohin and Clerfayt v. Belgium ( 2 March 1987, §§ 46-54, Series A no. 113 ); Hirst ( cited above, §§ 56-62 ), Ždanoka ( cited above, §§ 102- 15); Ādamsons v. Latvia (no. 3669/03, § 111, ECHR 2008-.. .); and Tănase v. Moldova [GC], no. 7/08, §§ 154-162, ECHR 2010-. .. ).",
"It follows from the foregoing that Article 3 of Protocol No. 1, which enshrines a fundamental principle of an effective political democracy and is accordingly of prime importance in the Convention system, implies the subjective rights to vote and to stand for election ( see Mathieu-Mohin and Clerfayt, cited above, §§ 47-51; Hirst, cited above, §§ 57-58; Ždanoka, cited above, §§ 102- 03; and Tănase, cited above, § § 154-55 ).",
"Although those rights are important, they are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere ( see Mathieu-Mohin and Clerfayt, cited above, § 52; Hirst, cited above, § 60; and Ždanoka, cited above, § 103). The margin in this area is wide, seeing that there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision ( see Hirst, cited above, § 61, and Ždanoka, loc. cit. ).",
"Thus, for the purposes of applying Article 3 of Protocol No. 1, any electoral legislation or electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature” ( see Mathieu-Mohin and Clerfayt, cited above, § 54; Ždanoka, cited above, § § 106 and 115; and Tănase, cited above, § 157 ).",
"In particular, the Contracting States enjoy considerable latitude in establishing criteria governing eligibility to stand for election, and in general, they may impose stricter requirements in that context than in the context of eligibility to vote ( see Ždanoka, cited above, § 115; Ādamsons, cited above, § 111; and Tănase, cited above, § 156 ).",
"However, while the margin of appreciation is wide, it is not all-embracing. It is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that the restrictions imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness; that they pursue a legitimate aim; and that the means employed are not disproportionate. In particular, such restrictions must not thwart “ the free expression of the opinion of the people in the choice of the legislature ” ( see Mathieu-Mohin and Clerfayt, cited above, § 52; Hirst, cited above, § 62; Ždanoka, cited above, § 104; and Tănase, cited above, §§ 157 and 161 ).",
"( b) Application of these principles in the present case",
"97. In the most recent Grand Chamber case concerning Article 3 of Protocol No. 1 the Court examined whether there had been interference with the applicant's rights under that Article, adding that such interference would constitute a violation unless it met the requirements of lawfulness, pursued a legitimate aim and was proportionate; it then sought to ascertain whether those conditions were satisfied ( see Tănase, cited above, §§ 162 and 163 ‑ 80).",
"98. Proceeding in the same manner in the instant case, the Court notes at the outset that the applicant, as a former President of Lithuania removed from office following impeachment proceedings, belongs to a category of persons directly affected by the rule set forth in the Constitutional Court's ruling of 25 May 2004 and the Act of 15 July 2004. Since he has thereby been deprived of any possibility of running as a parliamentary candidate, he is entitled to claim that there has been interference with the exercise of his right to stand for election.",
"99. As to whether the interference was lawful, the Court observes that the principle that a person removed from office as President following impeachment proceedings is no longer entitled to stand for election to the Seimas is clear from the Constitutional Court's ruling of 25 May 2004 and the Act of 15 July 2004.",
"The Court notes that the applicant complained that this rule had been applied with retrospective effect. It reiterates, however, that under Article 3 of Protocol No. 1 it is only required to examine the applicant's inability to stand for election to the Seimas. In any event, in so far as the rule in question entails ineligibility for parliamentary office, it was not applied retrospectively in the applicant's case. In fact, the first parliamentary elections in which he was barred from standing were held in October 2004, long after the above-mentioned ruling and legislative enactment.",
"100. As to the aim pursued, given that Article 3 of Protocol No. 1 does not contain a list of “legitimate aims” capable of justifying restrictions on the exercise of the rights it guarantees and does not refer to those enumerated in Articles 8 to 11 of the Convention, the Contracting States are free to rely on an aim not mentioned in those Articles, provided that it is compatible with the principle of the rule of law and the general objectives of the Convention ( see, for example, Ždanoka, cited above, § 115).",
"The Court accepts that this is the position in the present case. The prohibition imposed on the applicant is the consequence of his removal from office following impeachment proceedings, the purpose of which, according to the Statute of the Seimas, is to determine the constitutional liability of the highest- ranking State officials for acts carried out while in office which undermine the authorities'credibility. The measure thus forms part, according to the reasons given in the Constitutional Court's ruling of 24 May 2004, of a self-protection mechanism for democracy through “ public and democratic scrutiny ” of those holding public office, and pursues the aim of excluding from the legislature any senior officials who, in particular, have committed gross violations of the Constitution or breached their constitutional oath. As the Government submitted, the measure is thus intended to preserve the democratic order, which constitutes a legitimate aim for the purposes of Article 3 of Protocol No. 1 ( see, for example, Ždanoka, cited above, § 118).",
"101. In assessing the proportionality of the interference, it should above all be emphasised that Article 3 of Protocol No. 1 does not exclude the possibility of imposing restrictions on the electoral rights of a person who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations ( see, for example, Ždanoka, cited above, § 110). The present case concerns circumstances of this kind. In the context of impeachment proceedings, the Constitutional Court held that by having, while in office as President, unlawfully and for his own personal ends granted Lithuanian citizenship to J.B., disclosed a State secret to the latter by informing him that he was under investigation by the secret services, and exploited his own status to exert undue influence on a private company for the benefit of close acquaintances, the applicant had committed a gross violation of the Constitution and breached his constitutional oath. On the basis of that finding, the Seimas removed the applicant from office, his inability to serve as a member of parliament being a consequence of that decision.",
"102. Furthermore, as the Court observed above, the categories of persons affected by the disqualification are very clearly defined in law, and as a former President removed from office following impeachment proceedings for a gross violation of the Constitution or a breach of the constitutional oath, there is no doubt whatsoever that the applicant belongs to that group. Indeed, that has never been in dispute. There is therefore a clear link between the applicant's disqualification from elected office and his conduct and situation. As a result, the fact that his disqualification was not based on a specific court decision following a review of its proportionality in the individual circumstances of his case is not decisive ( see, for example, Hirst, cited above, § 71; Ždanoka, cited above, §§ 113 ‑ 14, 115 ( d) and 128; and Ādamsons, cited above, §§ 124-25 ), especially since the finding that he had committed a violation of the Constitution and breached his constitutional oath was made by the Constitutional Court, which offers the guarantees of a judicial body.",
"More broadly, the Court observes that in the context of impeachment proceedings, following which a senior State official may be removed from office and barred from standing for election, domestic law provides for a number of safeguards protecting the persons concerned from arbitrary treatment. Firstly, it appears from the case-law of the Constitutional Court and the Statute of the Seimas that the rules of criminal procedure and fair- trial principles apply in impeachment proceedings (see paragraphs 46 and 50 above). In addition, while the decision to initiate such proceedings on account of a gross violation of the Constitution or a breach of the constitutional oath and the final decision to remove a senior official from office are the prerogative of a political body, namely the Seimas, it is the task of a judicial body, namely the Constitutional Court, to rule on whether there has been a violation of the Constitution; if the court finds no such violation, the Seimas cannot remove the official from office. Furthermore, when sitting in impeachment proceedings the Seimas is presided over not by one of its members but by a judge of the Supreme Court, and it cannot remove a person from office other than by a three-fifths majority of its members in a reasoned decision. Lastly, in the specific circumstances of the present case the Court observes that the applicant, assisted by counsel, gave evidence to the Seimas and the Constitutional Court at public hearings.",
"103. Be that as it may, the Court, while not wishing either to underplay the seriousness of the applicant's alleged conduct in relation to his constitutional obligations or to question the principle of his removal from office as President, notes the extent of the consequences of his removal for the exercise of his rights under Article 3 of Protocol No. 1; as positive constitutional law currently stands, he is permanently and irreversibly deprived of the opportunity to stand for election to Parliament. This appears all the more severe since removal from office has the effect of barring the applicant not only from being a member of parliament but also from holding any other office for which it is necessary to take an oath in accordance with the Constitution ( see paragraph 34 above ).",
"104. Admittedly, the Government contended that in assessing proportionality in the present case, regard should be had to the evolution of the local political context in which the principle of disqualification from elected office was applied. The Court does not disagree. It takes note in this connection of the Government's argument that, in a recent democracy such as (according to the Government) Lithuania, it is not unreasonable that the State should consider it necessary to reinforce the scrutiny carried out by the electorate through strict legal principles, such as the one in issue here, namely permanent and irreversible disqualification from standing in parliamentary elections. Nevertheless, the decision to bar a senior official who has proved unfit for office from ever being a member of parliament in future is above all a matter for voters, who have the opportunity to choose at the polls whether to renew their trust in the person concerned. Indeed, this is apparent from the wording of Article 3 of Protocol No. 1, which refers to “ the free expression of the opinion of the people in the choice of the legislature”.",
"Still, as the Government suggested, the particular responsibilities of the President of Lithuania should not be overlooked. An “ institution ” in himself and the “personification” of the State, the President carries the burden of being expected to set an example, and his place in the Lithuanian institutional system is far from merely symbolic. In particular, he enjoys significant prerogatives in the legislative process since he has the right to initiate legislation (Article 68 of the Constitution) and the possibility, when a law is submitted to him for signature and promulgation, of sending it back to the Seimas for reconsideration ( Article 71 of the Constitution ). In the Court's view, it is understandable that a State should consider a gross violation of the Constitution or a breach of the constitutional oath to be a particularly serious matter requiring firm action when committed by a person holding that office.",
"105. However, that is not sufficient to persuade the Court that the applicant's permanent and irreversible disqualification from standing for election as a result of a general provision constitutes a proportionate response to the requirements of preserving the democratic order. It reaffirms in this connection that the “free expression of the opinion of the people in the choice of the legislature” must be ensured in all cases.",
"106. The Court notes, firstly, that Lithuania's position in this area constitutes an exception in Europe. Indeed, in the majority of the Council of Europe's member States with a republican system where impeachment proceedings may be brought against the head of State, impeachment has no direct effects on the electoral rights of the person concerned. In the other States in this category, there is either no direct effect on the exercise of the right to stand in parliamentary elections, or the permissible restrictions require a specific judicial decision and are subject to a time-limit ( see paragraph 6 2 above ).",
"107. The Court further observes that the circumstances of the present case differ greatly from those of the Ždanoka case, to which the Government referred. The central issue in that case was a statutory provision barring persons who, like the applicant, had “actively participated after 13 January 1991 ” in the Communist Party of Latvia ( CPL ) from standing in parliamentary elections. The provision had been enacted by Parliament on account of the fact that, shortly after the Declaration of Independence of 4 May 1990, the party in question had been involved in organising and conducting attempted coups in January and August 1991 against the newly formed democratic regime. After observing in particular that, in the historical and political context in which the impugned measure had been taken, it had been reasonable for the legislature to presume that the leading figures of the CPL held an anti-democratic stance, the Court concluded that there had been no violation of Article 3 of Protocol No. 1. It held in particular that while such a measure could not be accepted in the context, for example, of a country with a long- established framework of democratic institutions, it might be considered acceptable in Latvia in view of the historical and political context which had led to its adoption, and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring a totalitarian regime ( see Ždanoka, cited above, § § 132-36; see also Ādamsons, cited above, § 113 ). However, besides the obvious contextual differences between that case and the present one, the Court, without wishing to underplay the seriousness of the applicant's alleged conduct in relation to his constitutional obligations, observes that the importance of his disqualification for the preservation of the democratic order in Lithuania is not comparable.",
"108. The Court also notes that, in finding no violation in the Ždanoka case, it attached considerable weight to the fact that, firstly, the Latvian parliament periodically reviewed the provision in issue and, secondly, the Constitutional Court had observed that a time-limit should be set on the restriction. It further concluded that the Latvian Parliament should keep the restriction under constant review, with a view to bringing it to an early end, and added that such a conclusion was all the more justified in view of the greater stability which Latvia now enjoyed, inter alia by reason of its full European integration, indicating that any failure by the Latvian legislature to take active steps to that end might result in a different finding by the Court ( see Ždanoka, loc.cit. ).",
"109. Thus, in assessing the proportionality of such a general measure restricting the exercise of the rights guaranteed by Article 3 of Protocol No. 1, decisive weight should be attached to the existence of a time-limit and the possibility of reviewing the measure in question. The need for such a possibility is, moreover, linked to the fact that, as the Government noted, the assessment of this issue must have regard to the historical and political context in the State concerned; since this context will undoubtedly evolve, not least in terms of the perceptions which voters may have of the circumstances that led to the introduction of such a general restriction, the initial justification for the restriction may subside with the passing of time.",
"110. In the present case, not only is the restriction in issue not subject to any time-limit, but the rule on which it is based is set in constitutional stone. The applicant's disqualification from standing from election accordingly carries a connotation of immutability that is hard to reconcile with Article 3 of Protocol No. 1. This is a further notable difference between the present case and the Ždanoka case cited above.",
"111. The Court observes, lastly, that although it is worded in general terms and is intended to apply in exactly the same manner to anyone whose situation corresponds to clearly defined criteria, the provision in question results from a rule-making process strongly influenced by the particular circumstances.",
"In this connection it notes in particular that the second paragraph of Article 56 of the Constitution, which specifies the persons who cannot be elected as members of the Seimas, makes no reference to persons who have been removed from office following impeachment proceedings. When the Seimas decided to remove the applicant from office as President (on 6 April 2004), no legal provision stated that he was to be barred from standing for election as a result. Accordingly, when he informed the Central Electoral Committee of his intention to stand in the presidential election called for 13 June 2004 following his removal from office, the committee initially found (on 22 April 2004) that there was nothing to prevent him from doing so. The Seimas then introduced an amendment to the Presidential Elections Act to the effect that anyone who had been removed from office following impeachment proceedings could not be elected President until a period of five years had elapsed, as a result of which the committee ultimately refused to register the applicant as a candidate. Further to an action brought by members of the Seimas, the Constitutional Court held (on 25 May 2004) that such disqualification was compatible with the Constitution but that subjecting it to a time-limit was unconstitutional, adding that it applied to any office for which it was necessary to take an oath in accordance with the Constitution. The Seimas subsequently (on 15 July 2004) introduced an amendment to the Seimas Elections Act to the effect that anyone who had been removed from office following impeachment proceedings was ineligible to be a member of parliament.",
"The striking rapidity of the legislative process reinforces the impression that it was at least triggered by the specific desire to bar the applicant from standing in the presidential election called as a result of his removal from office. That, admittedly, is not a decisive factor for the purposes of Article 3 of Protocol No. 1, which applies only to the election of the legislature. However, the Court considers that it constitutes an additional indication of the disproportionate nature of the restriction of the applicant's rights under that Article ( see, mutatis mutandis, Tănase, cited above, § 179).",
"112. Having regard to all the above factors, especially the permanent and irreversible nature of the applicant's disqualification from holding parliamentary office, the Court finds this restriction disproportionate and thus concludes that there has been a violation of Article 3 of Protocol No. 1.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1",
"113. The applicant complained that he had not had an effective remedy available in respect of the Constitutional Court's ruling of 25 May 2004. He relied on Article 13 of the Convention taken in conjunction with Article 3 of Protocol No. 1. Article 13 provides :",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"114. Having regard to its finding of a violation of Article 3 of Protocol No. 1, the Court considers that the applicant had an “arguable claim” calling in principle for the application of Article 13 of the Convention.",
"However, it reiterates that the absence of remedies against decisions of a constitutional court will not normally raise an issue under this Article ( see for example, Wendenburg and Others v. Germany ( dec. ), no. 71630/01, ECHR 2003-II).",
"It further observes that in the instant case the applicant's complaint concerns his inability to challenge the rule laid down by the Constitutional Court in its decision on an action for review of constitutionality, to the effect that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath is no longer entitled to hold office as a member of parliament, among other positions. However, Article 13 of the Convention, which does not go so far as to guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national authority on the ground of being contrary to the Convention ( see, for example, James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002-VI; Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X; and Tsonyo Tsonev v. Bulgaria, no. 33726/03, § 47, 1 October 2009 ), likewise cannot require the provision of a remedy allowing a constitutional precedent with statutory force to be challenged. In the present case the complaint raised by the applicant under Article 13 falls foul of this principle, seeing that his disqualification does not derive from an individual decision against him but from the application of the above-mentioned rule ( see, mutatis mutandis, Tsonyo Tsonev, cited above, § 48).",
"115. It follows that this part of the application is manifestly ill-founded and as such must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"116. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"117. The applicant sought 50 ,000 euros (EUR) in compensation for the non-pecuniary damage caused by the fact that he was deprived for life of the right to stand for election and by the extensive media coverage of the proceedings against him.",
"In respect of pecuniary damage, he sought an amount corresponding to forty - seven months'salary as President, making a total of EUR 183, 912. 88. He submitted in that connection that his monthly salary had been EUR 3, 913. 04 and that he had been removed from office after thirteen months of the five-year term for which he had been elected. He also sought reimbursement of his “final pension”. He noted that under Lithuanian law, former presidents were entitled to a lifetime pension amounting to 50% of their salary; since the average life expectancy in Lithuania was seventy - seven years and he would have been fifty-three at the end of his term of office, he assessed the loss sustained on that account at EUR 586 ,956.",
"118. The Government contended that the claim for pecuniary damage was unfounded, unsubstantiated and excessive. They further argued that there was no causal link between the pecuniary damage referred to by the applicant and the alleged violation of Article 3 of Protocol No. 1 and that he had not substantiated his claims under that head either.",
"119. The Court would point out that its finding of a violation of Article 3 of Protocol No. 1 does not relate to the manner in which the impeachment proceedings against the applicant were conducted or to his removal from office as President, but solely to his permanent and irreversible disqualification from standing for election to Parliament. It thus concludes that there is no causal link between the alleged pecuniary damage and the violation of the Convention it has found and dismisses the applicant's claims under this head. In addition, while finding that the applicant is, on the other hand, entitled to claim that he has suffered non-pecuniary damage, it considers, having regard to the particular circumstances of the case, that such damage is sufficiently compensated by its finding of a violation of Article 3 of Protocol No. 1.",
"That apart, the Court also reiterates that by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties. Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it. This means, inter alia, that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State an obligation to determine, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be taken in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences, in such a way as to restore as far as possible the situation existing before the breach (see, for example, Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004-II, and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 85, ECHR 200 9 ‑. . .).",
"B. Costs and expenses",
"120. The applicant also sought reimbursement of the costs of his representation before the Seimas and the Constitutional Court (EUR 35,000) and before the Court (EUR 39,000), and of the expenses incurred by him and his lawyer in travelling to Strasbourg for the Grand Chamber hearing (estimated at EUR 2,500).",
"121. The Government argued that the applicant had not produced any evidence in support of those claims. They further contended that he had omitted to show that the (unreasonable) amount claimed for the costs incurred in the domestic proceedings had been necessary to prevent the alleged breach of Article 3 of Protocol No. 1. In addition, they argued that the claims relating to the proceedings before the Court were excessive.",
"122. The Court observes that the proceedings before the Constitutional Court and the Seimas were not intended to “prevent or redress” the violation of the Convention which it has found ( see, for example, Zimmermann and Steiner v. Switzerland, 13 July 1983, § 36, Series A no. 66; Lallement v. France, no. 46044/99, § 34, 11 April 2002; and Frérot v. France, no. 70204/01, § 77, 12 June 2007 ), since the violation results solely from the applicant's inability to stand for election to Parliament. The applicant is therefore not entitled to claim reimbursement of the costs and expenses relating to those proceedings.",
"With regard to those incurred in the proceedings before the Court, including in connection with the hearing on 28 April 2010, the Court reiterates that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum; furthermore, Rule 60 §§ 2 and 3 of the Rules of Court requires the applicant to submit itemised particulars of all claims, together with any relevant supporting documents, failing which the Court may reject the claims in whole or in part ( see, for example, Frérot, loc. cit. ). In the present case, seeing that the applicant did not produce any documents in support of his claims, the Court decides to dismiss them in their entirety."
] |
224 | Trabelsi v. Belgium | 4 September 2014 | This case concerned the extradition of a Tunisian national from Belgium to the United States, where he was being prosecuted on charges of terrorist offences and was liable to life imprisonment. The applicant alleged, inter alia, that his extradition violated Article 4 of Protocol No. 7. | In this judgment the Court reiterated its case-law to the effect that Article 4 of Protocol No. 7 does not secure the non bis in idem principle in respect of prosecutions and convictions in different States. It declared the applicant’s complaint under Article 4 of Protocol No. 7 inadmissible pursuant to Article 35 (admissibility criteria) of the Convention. | Right not to be tried or punished twice (the non bis in idem | Scope | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1970 and is currently being held in Rappahannock Prison in Stafford, Virginia (United States).",
"A. Criminal and asylum proceedings",
"6. On 14 September 2001 an arrest warrant was issued against the applicant by an investigating judge of the Brussels Regional Court. A search of his home had led to the discovery of false passports, automatic weapons and ammunition, as well as chemical formulae that could be used for making explosives and a detailed plan of the United States Embassy in Paris.",
"7. Following a simultaneous search of a Brussels café, where the applicant had been a regular customer, drawing on information provided by another suspect, who had also been arrested, the police discovered 59 litres of acetone and 96 kilograms of sulphur powder. Under the arrest warrant which was subsequently issued, the applicant was accused of acts of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia.",
"8. The applicant admitted the offences as charged and was sentenced to ten years’ imprisonment by the Brussels Regional Court on 30 September 2003 for attempting to blow up the Kleine-Brogel Belgian army base, forgery, and instigating a criminal conspiracy to attack persons and property. The court’s judgment included the following finding:",
"“[the defendant] attempted to commit one of the most serious crimes since Belgian independence; in spite of the lapse of time since his arrest, he has never shown any remorse, the danger which he poses has remained intact and his case presents no mitigating circumstances.”",
"9. In a judgment of 9 June 2004 the Brussels Court of Appeal upheld the applicant’s ten-year prison sentence for a range of offences, including:",
"“ - attempting to blow up the Kleine-Brogel Belgian army base, with the added circumstance that the perpetrator must have presumed that there were one or more persons present at the time of the explosion ...,",
"- holding a position of command in a conspiracy formed to perpetrate serious crimes liable to life imprisonment and, in the present case, to carry out a terrorist attack ...,",
"- receiving from a foreign organisation funds intended for conducting, in Belgium, an activity liable to jeopardise national security ...,",
"- being in unlawful possession of a combat weapon ...,",
"- setting up, and assisting or participating in, a private militia or other organisation of private individuals for the purpose of using force ...”",
"10. On 26 January 2005 the applicant was sentenced in absentia by a Tunisian military court to ten years’ imprisonment for belonging to a terrorist organisation abroad in peacetime. On 29 June 2009 the Permanent Military Court in Tunis issued a warrant for the applicant to be brought before it, for which an application for enforcement was submitted to the Belgian authorities by diplomatic note of 10 September 2009.",
"11. The principal prison sentence imposed on the applicant in Belgium was completed on 13 September 2011. Two subsequent subsidiary prison sentences of six and three months respectively were imposed in 2007 and enforced immediately. The applicant completed these sentences on 23 June 2012.",
"12. On 25 August 2005, meanwhile, the applicant had submitted an asylum application in Belgium, which the Commissioner General for Refugees and Stateless Persons dismissed in a decision of 10 April 2009. This decision refused the applicant refugee status and subsidiary protection on the grounds that he had committed offences contrary to the aims and principles of the United Nations within the meaning of Article 1 f) c of the Geneva Convention. That decision was upheld by the Aliens Appeals Board in a judgment of 18 May 2009.",
"B. Extradition proceedings",
"1. Judicial stage of the validation of the US indictment",
"13. By a diplomatic note of 8 April 2008 the US authorities transmitted to the Belgian authorities a request for extradition of the applicant under the Extradition Agreement concluded between the Kingdom of Belgium and the United States of America on 27 April 1987. The reasons for the request were the indictment issued by the District Court of the District of Columbia (Washington D.C.) against the applicant on 16 November 2007, comprising the following charges:",
"“A. Conspiracy to kill United States nationals outside of the United States, in violation of the following provisions: 18 U.S.C. § 2332 (b) (2) and 1111 (a)",
"B. Conspiracy and attempt to use of weapons of mass destruction, in violation of the following provisions: 18 U.S.C. § 2332a and 2",
"C. Conspiracy to provide material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B",
"D. Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B and 2.”",
"14. The extradition request continued as follows:",
"“A warrant for the arrest of Mr Nizar Trabelsi was issued on 16 November 2007 by order of ... judge ....",
"The underlying facts of the charges indicate that in mid-2000 or earlier, while in Germany, and elsewhere in Europe, and in Afghanistan, Nizar TRABELSI knowingly entered into an agreement with al Qaeda associates, including Osama bin Laden, to provide material support and resources, to unlawfully kill United States nationals in targeted facilities in Western Europe, and to use a large-scale explosive device (a weapon of mass destruction) to destroy property in Western Europe used by the United States and/or a department or agency of the United States.”",
"15. According to the documents in support of the extradition request, notably the applicable extracts from criminal law (Title 18 of the United States Code, U.S.C.) transmitted by the US authorities, these offences carried the following penalties:",
"“A. 18 U.S.C. § 2332 (b) (2) and 1111 (a): a maximum term of life imprisonment, or a combined fine and prison sentence.",
"B. 18 U.S.C. § 2332a and 2: a maximum term of life imprisonment.",
"C. 18 U.S.C. § 2339B: a fine or a maximum term of 15 years imprisonment, or a combination of both.",
"D. 18 U.S.C. § 2339B and 2: a fine or a maximum term of 15 years imprisonment, or a combination of both.”",
"16. On 4 June 2008 the Federal Attorney transmitted to the chambre du conseil of the Nivelles Regional Court a request for enforcement of the arrest warrant issued on 16 November 2007 against the applicant. In his request the Federal Attorney pointed out that the maximum sentences for the offences underlying the request for extradition were fifteen and ten years respectively.",
"17. By a diplomatic note of 12 November 2008 the US authorities made the following assurances concerning the applicant to the Belgian authorities:",
"“The Government of the United States assures the Government of Belgium that, pursuant to his extradition, Nizar Trabelsi will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006. The Government of the United States further assures the Government of Belgium that upon extradition, Trabelsi will not be detained or incarcerated in any facility other than a civilian facility in the United States.”",
"18. By an order of 19 November 2008, the chambre du conseil of the Nivelles Regional Court acceded to the Federal Attorney’s request and declared the arrest warrant issued by the US District Court enforceable. However, the order added the following stipulation:",
"“It emerges from the examination of the documents enclosed with the arrest warrant issued for the purposes of extradition ... that the ‘overt acts’ listed by the US authorities in support of the first charge include several which correspond very precisely to the acts committed in Belgian territory which justify the [applicant’s] conviction in Belgium.",
"...",
"Therefore, by virtue of the ne bis in idem principle, the arrest warrant issued for the purposes of extradition on 16 November 2007 by the competent judicial authority of the United States of America cannot be declared enforceable in respect of ‘overt acts’ nos. 23, 24, 25, 26 set out in paragraph 10 of the first charge, which are deemed repeated in support of the other charges.”",
"19. Having examined an appeal lodged by the applicant, the Indictments Division of the Brussels Court of Appeal delivered a judgment on 19 February 2009 upholding the aforementioned order and declared the warrant enforceable. Having noted that the extradition concerned acts (committed outside Belgium) other than those for which the applicant had been prosecuted and convicted in Belgium, the Court of Appeal argued that:",
"“There are no serious grounds for believing that the request for extradition was submitted for the purposes of prosecuting or punishing Trabelsi Nizar for considerations of race, religion, nationality or political opinion or that this individual’s situation is liable to be worsened for any of these reasons.",
"...",
"Nor is there any serious reason to believe that if Trabelsi Nizar were to be extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman or degrading treatment; there is no reason to suppose that the United States of America will not meticulously comply with all the provisions, including Articles 7.2 and 7.3, of the Extradition Agreement concluded with Belgium, and every reason to believe that Trabelsi Nizar will be detained in a civilian facility and tried by the ordinary courts, in accordance with conventional procedure.",
"...”",
"20. On 24 April 2009 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal. He relied on the risk of treatment incompatible with Article 3 of the Convention and the risk of a flagrant denial of justice. He contended that the Court of Appeal had not assessed the consequences of his extradition to the United States in the light of the general situation in that country or his own specific circumstances, and argued that the Court of Appeal should have adopted the same line of reasoning as the Court in the case of Saadi v. Italy [GC] (no. 37201/06, ECHR 2008). He also complained that the Court of Appeal had not addressed the potential problem under Article 3 of sentencing a person to an irreducible life sentence. Lastly, he complained of a violation of the ne bis in idem principle.",
"21. By a judgment of 24 June 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. It ruled that the Court of Appeal had provided adequate reasons and legal justification for its decision, considering",
"“ - that the requesting State is currently conducting a thorough review of its anti-terrorist policy, stepping up its action against torture and inhuman and degrading treatment, and is on the verge of suspending the special courts and abolishing the unlimited detention without trial of persons captured in the context of international conflict;",
"- that under the terms of the formal guarantees provided in support of the extradition request, the appellant will be tried by an ordinary civilian court in accordance with the normal procedure in force in the requesting State, enjoying all the rights and remedies available under the national judicial system;",
"- that the appellant is not liable to a life sentence for the offences for which his extradition has been requested and that the penalties which they carry can be commuted into other penalties with possibilities for release on parole;",
"- that because the evidence relied upon by the appellant lacks any specific aspect affecting his own personal situation, which would have made the risks he alleges more credible, it does not substantiate any serious concern that he could be exposed to a flagrant denial of justice or acts of torture or inhuman and degrading treatment.",
"...”",
"22. In a letter of 11 November 2009 sent to the Belgian authorities at the behest of the Federal Attorney responsible for the extradition request, the US Department of Justice supplied the following additional information:",
"“The statutory maximum sentence for a conviction of each of the first two of these offenses is life imprisonment and the statutory maximum sentence for the latter two offenses is 15 years. In addition, the United States Sentencing Guidelines, which are the voluntary guidelines that judges may choose to follow in sentencing defendants, call for a life sentence for each of the first two of these offenses.",
"A life sentence is not mandatory and the court has the discretion to issue a sentence less than life. In issuing a sentence, the court may consider the gravity of the offense and whether any lives were lost or property was damaged. In this instance, Trabelsi did not succeed in carrying out his plans to kill United States nationals and to use weapons of mass destruction. Thus, the court in issuing a sentence, in its discretion, may consider that Trabelsi was not successful in carrying out his plans. The court also may consider any mitigating factors, such as whether the defendant acknowledges responsibility for his actions.",
"If the court, in its discretion, sentences Trabelsi to a punishment of less than life, i.e. a term of years, Trabelsi’s sentence could be reduced by up to 15% for good behaviour while incarcerated. This type of sentence reduction is only possible, however, if the original sentence is to a term of years, however long, rather than a life sentence. Therefore, if Trabelsi were sentenced to a term of 20, 30, or even 50 years, then he could be eligible for a sentence reduction of up to 15% of his original sentence based on his good behaviour while incarcerated. If, however, Trabelsi is sentenced to life, he would not be eligible for any reduction in his sentence.",
"Finally, Trabelsi can apply for a Presidential pardon or sentence commutation. (A pardon would eliminate the conviction; a commutation would be an adjustment to the sentence.) However, this is only a theoretical possibility in Trabelsi’s case. We are not aware of any terrorism defendant ever having successfully applied for a Presidential pardon or sentence commutation.”",
"2. Judicial and administrative phase of the response to the extradition request",
"a) Opinion of the Indictments Division",
"23. Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced.",
"24. On 4 February 2010 the Federal Attorney forwarded his written opinion to the Brussels Court of Appeal inviting it, in the light of the Court’s case-law, particularly Kafkaris v. Cyprus [GC] (no. 21906/04, ECHR 2008), to issue a positive opinion on the applicant’s extradition. He pointed out that in the case of the first two charges, the applicant was liable to a life sentence, while in the case of the other two charges he was liable to a fifteen-year prison sentence.",
"25. In a letter of 29 March 2010 to the Federal Department of Justice the applicant took note of the fact that at the hearing on 24 March 2010 the Federal Attorney had acknowledged a mistake in his observations in the enforcement request proceedings concerning the sentence to which the applicant might be liable following his extradition to the United States (see paragraph 16 above).",
"26. On 10 June 2010 the Indictments Division of the Court of Appeal issued a favourable opinion on the applicant’s extradition, specifying a number of conditions:",
"“ - extradition may only be granted:",
"i. on condition that the death penalty is not imposed on N. Trabelsi or, if the United States cannot guarantee this condition, on condition that the death penalty is not enforced;",
"ii. on condition that any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts;",
"- in the event of a request for N. Trabelsi’s re-extradition to a third country, such as Tunisia, the United States must request the agreement of Belgium should Tunisia send the US Government any future request for extradition after N. Trabelsi has been handed over to them.",
"If the US fails to accept these conditions the extradition must be refused.”",
"b) Ministerial decree granting extradition",
"27. By a diplomatic note of 10 August 2010 the US authorities confirmed that the applicant was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US authorities reiterated that the maximum life prison sentence was not mandatory and that even if all the constituent elements of the criminal offences in question were secured and proved, the court had the discretion to impose a lighter sentence. The note specified that US legislation provided for several means of reducing life sentences:",
"“Regarding the question of commutation of a life sentence, the United States wishes to make it clear, in the first instance, that if Trabelsi were convicted, a life sentence is not mandatory; the court has the discretion to impose a sentence less than life. Also, a defendant has a statutory right to appeal the conviction and sentence, including a life sentence, both directly, and collaterally through a habeas corpus petition. In addition, there are certain statutory bases for reduction of an already-imposed sentence, including where the defendant has provided substantial assistance in the investigation or prosecution of a third party (Federal Rule of Criminal Procedure 35(b) and Title 18 United States Code, Section 3582(c)(1)(B)), or for compelling humanitarian reasons such as the terminal illness of the prisoner (Title 18, United States Code, Section 3582(c)(lXA)(i)).",
"In addition to these measures, the defendant may request that his sentence be reduced as an exercise of executive clemency by the President of the United States. The President’s power under Article H, Section 2, of the U.S. Constitution, “to grant reprieves and pardons” includes the authority to commute (reduce) a sentence of imprisonment, including a life sentence. There are established regulations and procedures governing the application process for executive clemency, and the Office of the Pardon Attorney has been established in the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The U.S. Constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has, on occasion, been granted for serious offenses implicating national security. For example, in 1999, President Clinton commuted the sentences of 13 members of the FALN, a violent Puerto Rican nationalist organization responsible for numerous bombings in the 1970s and early 1980s, who had been convicted of conspiracy to commit armed robbery, bomb making, sedition and other offenses.”",
"28. On 23 November 2011 the Minister for Justice adopted a ministerial decree granting the applicant’s extradition to the US Government. Having noted that the applicant would in no case be liable to the death penalty, the decree examined each of the other guarantees provided.",
"29. On the matter of possible life imprisonment, the ministerial decree read as follows:",
"“Under US Federal criminal law the maximum penalty laid down in respect of the charges – the offences under A and B – precludes early release and release on parole. Life sentences as provided for in these two provisions of the US Criminal Code are therefore, from the legal and factual angles, in principle served for the whole of the person’s life.",
"...",
"In diplomatic note no. 21 of 10 August 2010 from the United States Embassy, the US authorities provided a guarantee that (even) if an irreducible life sentence were handed down it would be possible to obtain a pardon from the US President. This right is set out in Article 2, II of the US Constitution. Furthermore, Presidential pardons have in fact been granted on several occasions in the past, including the recent past, to persons sentenced by the US courts, particularly at the Federal level.",
"...",
"Even if we view it in its historical context, the FALN case shows that in cases likely to fall under the current legislation on terrorism in force since 11 September 2001, which cases must objectively be seen as much more serious than those of which the person sought is suspected and which are therefore liable to lead to severer penalties, Presidential pardons can indeed be granted.",
"Even though some individuals have since 2001 been given irreducible life sentences ... for terrorism or acts linked to terrorism, such cases cannot be compared to the Trabelsi case in terms of their content. All those who have been sentenced to life imprisonment in the US without early release or release on parole were charged, prosecuted and finally convicted for active involvement in terrorist attacks which had caused deaths and/or injuries and considerable material damage, for example the attacks on the US Embassies in Nairobi, Kenya, and Dar-es-Salaam (Tanzania) on 7 August 1998. ...",
"Those offences were manifestly incomparable in extent and nature with those attributed to the person whose extradition has been requested.",
"In the aforementioned cases persons, sometimes enormous numbers of people, in addition to US nationals, suffered substantial physical and material damage. The person sought in the present case, however, is being prosecuted for having planned and prepared a terrorist attack which was never carried out. He did not succeed, in cooperation with others, in causing human injuries or even material damage.",
"It is therefore manifestly plausible that the offences as charged are not such that the maximum applicable sentence laid down in the US Criminal Code, that is to say an irreducible life sentence, could be called for or imposed.",
"A recent survey by the Human Rights First NGO shows that of the 214 persons prosecuted since 11 September 2001 for terrorist offences linked to al-Qaeda or other Islamist groups or for offences connected with such terrorist offences, 195 have been convicted. Each case involved prosecutions or convictions instigated by Federal attorneys and courts. 151 of the convicted persons were sentenced to imprisonment, while twenty were released on licence or given prison terms corresponding to the period of custody already served. The average length of prison sentences handed down was 8.4 years. Only 11 of those convicted were sentenced to life imprisonment. The report also points out that the proceedings complied with the right to a fair trial (“Human Rights First, In pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments”, 2009, 68 pp.).",
"The statistics show that, objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought.”",
"30. In connection with the applicant’s possible re-extradition to Tunisia, the ministerial decree continued as follows:",
"“By diplomatic note no. 21 of 10 August 2010 from the US Embassy the US authorities clearly indicated that if the Tunisian authorities applied to the United States for extradition, it would be turned down.",
"...",
"Given the decision to refuse extradition to the Tunisian Republic, in view of the fact that re-extradition necessitates the agreement of the State which authorised the initial extradition, no re-extradition to the Tunisian Republic is possible.",
"Since the Belgian authority refused extradition to the Tunisian Republic, if Tunisia were to transmit to the US a request for extradition in the future the US would also refuse it, and no extradition by the United States to the Tunisian Republic is possible.”",
"31. Lastly, the ministerial decision analysed the application of the ne bis in idem principle as follows:",
"“Under the Agreement (the Extradition Agreement of 27 April 1987), Belgium and the United States of America ... have mutually undertaken to refuse extradition if the person sought has been acquitted in the requested State or has been convicted in the same State for the same offence as that for which extradition is being requested. Ratification ... incorporated this agreement into the Belgian and US legal systems.",
"In other words it is not the acts but the legal classification of the acts, namely the offences, which must be identical.",
"...",
"The facts forming the basis of the offences in question correspond to ‘overt acts’ which individually or together function as factual elements supporting the charges. The double jeopardy principle does not exclude the possibility of using or not using these elements.",
"In the present case the offences for which the person sought was finally convicted by the Brussels Court of Appeal on 9 June 2004 do not correspond to the offences listed in charges A to D in the arrest warrant forming the basis for the US extradition request. The constituent elements of the respective US and Belgian offences, their scope and the place(s) and time(s) of their commission do not match up.",
"...",
"Under US Federal criminal law an ‘overt act’ is a (factual) element, an act, a behaviour or a transaction which in itself may not necessarily be classified as an offence...",
"An ‘overt act’ is merely a piece of supporting evidence which in itself or in conjunction with other overt acts may help constitute the offence or offences for which the person is being prosecuted, that is to say conspiracy, for instance to kill US nationals (see charge A). ...",
"Although each of ‘overt acts’ nos. 24, 25 and 26 could be classified as an offence, these acts nonetheless do not constitute offences for which the extradition has been requested.”",
"32. Article 2 of the decree stated that “extradition will take place after the person sought has complied with the requirements of the Belgian courts ”.",
"33. On the same day, under another ministerial decree, the Minister for Justice refused the Tunisian authorities’ request for the applicant’s extradition (see paragraph 10 above).",
"c) Application for judicial review before the Conseil d’Etat",
"34. On 6 February 2012, relying on violations of Article 3 of the Convention and Article 4 of Protocol No. 7, the applicant lodged an application with the Conseil d’Etat for judicial review of the ministerial decree granting his extradition to the United States of America.",
"35. At the Conseil d’Etat hearing on 19 September 2013 the applicant relied on the Court’s judgment in Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He deduced from this judgment that the Court had now adopted a position requiring preventive review of whether a life prison sentence was reducible or not before the prisoner began his sentence, and therefore that the distinction drawn in the Babar Ahmad and Others v. United Kingdom judgment, (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012) depending on whether the person subject to extradition had been convicted or not was no longer relevant.",
"36. In a judgment of 23 September 2013 the Conseil d’Etat dismissed the application for judicial review. As to the complaint under Article 3 of the Convention and the risk of an irreducible life sentence, the Conseil d’Etat reasoned as follows:",
"“Even supposing that the applicant is sentenced by the US courts to life imprisonment, it should be noted that in its Vinter and Others v. United Kingdom judgment of 9 July 2013 [the Court] ruled that: ‘a life sentence does not become irreducible by the mere fact that in practice it may be served in full’, that ‘no issue arises under Article 3 if a life sentence is de jure and de facto reducible ...’ and that ‘where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3’.",
"In the present case, as in that of Babar Ahmad and Others v. United Kingdom which led to [the Court’s judgment] of 10 April 2012, the applicant has not been sentenced by a US court to life imprisonment, and has still less begun serving such a sentence.",
"As in the aforementioned case, therefore, the applicant does not show that in the event of a life sentence, the question will arise whether there is any legitimate penological justification for continuing his imprisonment.",
"Moreover, in his most recent submissions the applicant acknowledges that a possible life sentence imposed on him would be reducible de jure. US law allows him either to request a review or apply for a Presidential pardon or commutation of sentence, and the applicant does not contend that this power of executive clemency or sentence commutation is accompanied by restrictions comparable to those in issue in the [Court’s] aforementioned judgment of 9 July 2013.",
"Although the applicant challenges the assertion that such a sentence is reducible de facto, the explanations provided to the opposing party by the US authorities do show that the US President has already used his power to commute sentences. Therefore, the legal remedy available to the applicant in the event of a life prison sentence is not excluded in practice.",
"Furthermore, the applicant’s contention that since the 11 September 2001 terrorist attack it has been inconceivable for the US President to grant a pardon to or commute the sentence of a person convicted of terrorism has not been substantiated by any reliable information, nor can it be in view of the relatively short period of time, as compared with a life sentence, which has elapsed since the said attack and any criminal sentences subsequently imposed.",
"As in Babar Ahmad ..., therefore, it has not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing the applicant’s imprisonment.",
"Any possible life sentence imposed on the applicant would therefore also be reducible de facto.",
"Consequently, it is unnecessary to determine whether the opposing party was wrong to consider that the applicant would not necessarily be sentenced to life imprisonment, because, even if he were sentenced to such a prison term, this penalty would not constitute a breach of Article 3 [of the Convention]”.",
"37. As to the complaint under Article 5 of the Extradition Agreement between the Kingdom of Belgium and the United States of America, Article 4 of Protocol No. 7 to the Convention and Article 14 § 7 of the International Covenant on Civil and Political Rights, the Conseil d’Etat held that:",
"“The US authorities request the applicant’s extradition on four charges, namely:",
"1) Conspiracy to kill United States nationals outside of the United States;",
"2) Conspiracy and attempt to use of weapons of mass destruction;",
"3) Conspiracy to provide material support and resources to a foreign terrorist organisation;",
"4) Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions.",
"Again according to the US authorities, in order to commit these offences as charged the applicant and four accomplices carried out a series of ‘overt acts’, including those for which extradition is being granted to the US authorities presented as follows: [a list of 28 charges follows].",
"In Belgium the charges (‘in the Brussels judicial district and, on related charges, elsewhere in the Kingdom’) against the applicant are as follows: [a list of 13 charges follows].",
"Comparing all the ‘overt acts’ for which extradition has been granted to the US authorities with all the Belgian charges valid ‘in the Brussels judicial district and ... elsewhere in the Kingdom’, it will be noted that the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities.",
"It emerges from the case file that the applicant is wanted by the US authorities for a number of offences in respect of which he has not been ‘found guilty, convicted or acquitted in the requested State’ and that the ‘overt acts’ constitute so many elements to be used by the US judicial authorities to establish whether the applicant is guilty or innocent of the four charges brought against him.”",
"C. Indication of an interim measure and following stages in the proceedings before the Court",
"38. On 6 December 2011, the date of notification of the ministerial decrees relating to the requests for extradition (see paragraphs 28 and 33), the applicant lodged a request with the Court for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition.",
"39. On the same day the Court acceded to the applicant’s request and decided to indicate to the Government, in the interests of the parties and of the proper conduct of proceedings before it, that it should not extradite the applicant to the United States of America.",
"40. On 20 December 2011, arguing that the interim measure had been indicated prematurely because the applicant had not yet been placed in custody pending extradition and that such a measure would create a situation detrimental to the proper administration of justice, the Belgian Government requested that the measure be lifted.",
"41. On 11 January 2012, the Court, having re-examined the application in the light of the information supplied by the parties, decided, on the basis of the said information, to refuse to lift the interim measure.",
"42. On 21 May 2012 the Government submitted a second request for the lifting of the interim measure.",
"43. In reply, the Court pointed out, in a letter of 25 May 2012, that the request to lift the measure and the application would be re-examined once the judgment delivered on 10 April 2012 by the Court in Babar Ahmad and Others v. United Kingdom, cited above, had become final.",
"44. In a letter of 25 June 2012 the Court informed the parties that the examination of the request to lift the interim measure had been postponed indefinitely in view of the request for referral to the Grand Chamber of the cases Vinter and Others v. United Kingdom (no. 66069/09) and Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07).",
"45. On 3 August 2012 the Court informed the parties that it had been decided to refer the aforementioned Vinter case to the Grand Chamber and that the question of the request to lift the interim measure would be re-examined when a decision had been taken on the request for referral of the aforementioned case of Babar Ahmad and Others to the Grand Chamber.",
"46. The application was communicated to the respondent Government on 27 November 2012.",
"47. In their observations on the admissibility and merits of the application the Government requested, for the third time, the immediate lifting of the interim measure.",
"48. In a letter of 7 January 2013 the Court replied that the Government would be informed in due course of the decision taken by the Court on the interim measure.",
"49. On 15 January 2013 it was decided to maintain the interim measure for the duration of the proceedings before the Court.",
"50. In a letter of 18 June 2013 in reply to a fourth request from the Government to lift the interim measure, the Court stated that the interim measure had been maintained and would be applied until the end of the proceedings before it.",
"51. On 10 July 2013 the Court informed the parties that examination of the case had been adjourned in view of the imminent delivery of the judgment of the Conseil d’Etat and of the Grand Chamber judgment in Vinter and Others [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013).",
"52. In reply to a question from the Government on the deadline for dealing with the case, the Court informed them on 25 September 2013 that the examination of the case would begin at the end of October or the beginning of November.",
"53. On 18 October 2013 the Court informed the parties that the chamber constituted to examine the case was intending to relinquish the case to the Grand Chamber under Article 30 of the Convention.",
"54. By letter of 31 October 2013 the applicant expressed his agreement to such relinquishment. The Government, on the other hand, indicated, by letter of 8 November 2013, that they opposed relinquishment.",
"D. Detention pending extradition",
"55. On 24 June 2012, having served the sentences imposed on him (see paragraph 11 above), the applicant was taken into custody pending extradition in pursuance of section 3 of the Extradition Act of 15 March 1874.",
"56. On 7 June 2012 the applicant lodged a first application for release with the Nivelles Regional Court. By an order of 12 June 2012 the chambre du conseil dismissed the application. The order was upheld by the Indictments Division of the Brussels Court of Appeal on 28 June 2012.",
"57. Subsequently, having meanwhile been transferred first to Bruges Prison and then to Hasselt Prison, the applicant lodged a second application for release on 13 August 2012 with the Hasselt Regional Court. On 24 August 2012 the chambre du conseil allowed his application. On appeal from the public prosecutor, by judgment of 6 September 2012, the Indictments Division of Antwerp Court of Appeal set aside this decision and dismissed the application.",
"58. On 3 December 2012 the applicant lodged a third application for release. By an order of 14 December 2012 the chambre du conseil of the Hasselt Regional Court declared the application unfounded. The applicant appealed to the Indictments Division of Antwerp Court of Appeal, which upheld the aforementioned decision by judgment of 10 January 2013.",
"59. In January 2013, having meanwhile been transferred to Mons Prison, the applicant lodged a fourth application for release, which was declared unfounded by the chambre du conseil of the Mons Regional Court on 4 February 2013, and then by the Indictments Division of the Mons Court of Appeal on 21 February 2013.",
"60. On 23 August 2013, having meanwhile been transferred to Ittre Prison, the applicant lodged a fifth application for release. This application was dismissed by the chambre du conseil of Nivelles Regional Court on 28 August 2013 and then by the Indictments Division of the Brussels Court of Appeal on 12 September 2013.",
"61. Meanwhile, on 5 September 2013, the applicant had left Ittre Prison for Bruges Prison, having obtained a date for his wedding to a Belgian national with whom he had had two children.",
"E. The applicant’s extradition",
"62. On 3 October 2013 the applicant was informed that he was being transferred from Bruges Prison to Ittre Prison. In fact he was being taken to Melsbroek military airport, where Federal Bureau of Investigation (FBI) agents were waiting for him. At 11.30 a.m. he was extradited to the United States.",
"63. The Minister for Justice issued a public statement announcing the applicant’s departure at 1.30 p.m.",
"64. At 3 p.m. the applicant’s lawyer made a highly urgent ex parte application to the President of Brussels Regional Court. The decision, which was given at 6.30 p.m., stated that the Belgian State was required to comply with the interim measure indicated by the Court, and ordered “prohibition or suspension of the applicant’s extradition, as far as this might be possible”, on pain of a fine of EUR 5,000 (five thousand euros). The Court has not been informed of any appeal against this order.",
"F. The applicant’s detention in the United States",
"65. In the United States the applicant was immediately placed in custody. On 7 October 2013, assisted by an officially appointed lawyer, he was brought before the District Court of the District of Columbia to hear the charges against him.",
"66. The applicant is currently being held in the Rappahannock regional prison in Stafford (Virginia). On 1 November 2013 a letter from the prison administration to the Belgian authorities stated that the applicant was subject to the same conditions of detention as all other prisoners.",
"67. According to an email sent on 6 November 2013 by the applicant’s US lawyer to his representative before the Court, the applicant was allowed to have postal contact with the outside world, but all correspondence would be translated and read in advance by the US Government. He was also allowed to have telephone contact with some members of his family provided that an interpreter was available. Close relatives could visit him subject to obtaining a US entry visa.",
"68. The applicant was visited by his lawyer, who, in an email sent to a member of his family on 7 December 2013, said that he had been placed in an isolated cell. She expressed concern about his mental state."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Belgian legislation on extradition",
"69. Under Belgian law, extradition proceedings are governed by the Extradition Act of 15 March 1874, the provisions of which, as far as they apply to the present case, may be summarised as follows.",
"70. Under section 1, extradition is only possible between Belgium and foreign States under a treaty concluded on a mutual basis.",
"71. The Belgian Act makes extradition subject to several conditions regarding the offence for which extradition is being requested:",
"Section 2",
"“... where the crime or offence giving rise to the application for extradition has been committed outside the territory of the requesting party, the Government may only hand over the prosecuted or convicted foreigner, on a reciprocal basis, if Belgian legislation authorises the prosecution of the same offences committed outside the Belgian Kingdom.”",
"Section 2bis",
"“Extradition may not be granted if there are serious reasons to believe that the application was submitted for the purpose of persecuting or punishing a person on considerations of race, religion, nationality or political opinions, or if the situation of such person is liable to be worsened for any one of those reasons.",
"Nor can extradition be granted if there are serious risks that if the person were extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman and/or degrading treatment in the requesting State.",
"Where the offence for which extradition has been requested is punishable by the death penalty in the requesting State, the Government shall allow extradition only if the requesting State provides formal guarantees that the death penalty will not be enforced.”",
"72. In accordance with section 3(2), the application must be accompanied, in cases such as the present one, by an arrest warrant or any other equivalent document issued by the competent foreign authority, provided that these documents include a precise indication of the offence for which they have been issued and that they have been declared enforceable by the chambre du conseil of the regional court of the foreigner’s place of residence in Belgium or of the place where he is to be found. Investigatory proceedings before the chambre du conseil are not open to the public.",
"73. The decision is open to appeal before the Indictments Division of the Court of Appeal, where the investigatory proceedings are also not open to the public. Subsequently, an appeal on points of law lies against the judgment of the Indictments Division.",
"74. Pursuant to section 3(4), once the foreigner has been detained under the arrest warrant as declared enforceable, the Government take cognisance of the opinion of the Indictments Division of the competent court of appeal. The latter must verify that all the statutory and Treaty conditions for extradition are fulfilled. The hearing is, in principle, open to the public. The public prosecutor and the foreigner are heard, the latter having been duly summoned to appear and provided with the case file ten days before the hearing. The opinion of the Indictments Division is not made public, and at this stage neither the foreigner nor his lawyer has access to it.",
"75. The opinion is then transmitted to the Minister for Justice. Since the opinion is not a judgment it is not open to an appeal on points of law before the Court of Cassation. Nor is it liable to an application for judicial review before the Conseil d’Etat.",
"76. The Minister for Justice decides whether or not to hand over the foreigner to the requesting State. A non-suspensive application for judicial review of the ministerial decision lies to the Conseil d’Etat.",
"B. The extradition agreement between Belgium and the United States",
"77. A treaty on extradition between Belgium and the United States was signed in Brussels on 27 April 1987. This bilateral agreement was amended and updated, pursuant to the 25 June 2003 agreement between the European Union and the United States of America on extradition, under a bilateral “instrument” of 16 December 2004.",
"78. The relevant provisions of the 27 April 1987 agreement as amended are as follows:",
"Article 2 - Extraditable Offenses",
"“1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.",
"2. If extradition is requested for the execution of a sentence, the sentence originally imposed must have been deprivation of liberty for a period of at least one year or a more severe penalty.",
"3. The following shall also be an extraditable offense:",
"(a) an attempt to commit one of the offenses described in paragraph 1 or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense; or",
"(b) an association formed to commit any of the offenses described in paragraph 1 under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States.",
"4. In determining whether an offense is an extraditable offense, the Contracting States:",
"(a) shall consider only the essential elements of the offense punishable under the laws of both states; and",
"(b) shall not consider as an essential element of an offense punishable in the United States an element such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, since such an element is for the purpose of establishing jurisdiction in a United States federal court;",
"(c) shall disregard that the respective laws do not place the offense within the same category of offenses or describe the offense by the same terminology.",
"5. If extradition has been granted for an extraditable offense or for the execution of a sentence, it shall also be granted for:",
"(a) any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, and",
"(b) the execution of any other penalty, including a fine, specified in the request for extradition even if the severity of the penalty does not fulfill the requirement of the minimum punishment imposed by paragraph 2, provided that all other requirements for extradition are met.",
"6. Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or a suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.”",
"Article 5 – Prior Prosecution",
"“1. Extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested.",
"2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.”",
"Article 6 – Humanitarian Considerations",
"“1. If an offense for which extradition is requested is punishable by death in the Requesting State, and if in respect of such offense the death penalty is not provided for by the Requested State or is not normally carried out by it, extradition may be refused, unless the Requesting State gives such assurances as the Requested State considers sufficient that the death penalty will not be carried out.",
"2. Notwithstanding the provisions of the present Treaty, the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.”",
"C. Possibilities of reducing life sentences under US law",
"79. The possibilities of sentence reduction mentioned in the diplomatic note sent by the US authorities to their Belgian counterparts on 10 August 2010 (see paragraph 27 above) are set out in the following provisions:",
"Federal Rules of Criminal Procedure",
"Rule 35. Correcting or Reducing a Sentence",
"“...",
"(b) Reducing a Sentence for Substantial Assistance.",
"(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.",
"(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:",
"(A) information not known to the defendant until one year or more after sentencing;",
"(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or",
"(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.",
"(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s pre-sentence assistance.",
"(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.",
"(c) ‘Sentencing’ Defined. As used in this rule, “sentencing” means the oral announcement of the sentence.”",
"United States Code, Title 18 - Crimes and Criminal Procedure",
"§ 3582. Imposition of a sentence of imprisonment",
"“...",
"(c) MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT",
"The court may not modify a term of imprisonment once it has been imposed except that",
"(1) in any case",
"(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that",
"(i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and",
"(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure;",
"...”",
"80. The aforementioned Article 3582 (c)(1)(A) is relied upon by the Federal Bureau of Prisons in cases of particularly exceptional or pressing circumstances which could not reasonably have been foreseen by the court at the time of determination of sentence. It is primarily a case of sentence reduction on humanitarian grounds.",
"81. Furthermore, Article 2 (II) of the US Constitution empowers the President to commute or reduce a sentence or grant a pardon in cases of conviction for a Federal offence.",
"82. The Constitution does not restrict the President’s power to grant or refuse executive clemency, but the Pardon Attorney operating with the Department of Justice prepares a recommendation to the President for every application for a pardon, and is required to consider the applications in accordance with the guidelines set out in Title 28 of the Code of Federal Regulations. This Code states that persons requesting a pardon or sentence commutation must wait five years after their conviction to be eligible for a pardon. They must fill out and sign an application form, which must be addressed to the President and submitted to the Pardon Attorney. Applicants must state their reasons for requesting a pardon and provide detailed information, and also references. On receipt of the application the Pardon Attorney must carry out an investigation and decide whether the application for a pardon should be accepted by the President.",
"83. The President’s decision is final and not open to appeal. The prisoner must wait a minimum of two years from the date of the refusal before submitting a fresh application.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE APPLICANT’S EXTRADITION",
"844. According to the applicant, the Belgian authorities’ decision to hand him over to the United States was in breach of Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Admissibility",
"85. In their additional observations on Article 34 of the Convention as submitted to the Court on 8 November 2013, the Government raised an objection as to inadmissibility based on non-exhaustion of domestic remedies. They contended that the application had been manifestly premature because it had been lodged on 23 December 2009, before completion of the administrative phase of the response to the request for extradition. According to the Government, the applicant should have lodged his application on completion of this phase, that is to say after the dismissal of his application to the Conseil d’Etat for judicial review of the ministerial decree on his extradition.",
"86. The applicant submitted that the application had been lodged within six months of the 24 June 2009 judgment of the Court of Cassation, which had closed the judicial phase of enforcement of the US arrest warrant. At that stage in the extradition procedure the decision was a final one from which no appeal lay. The phase referred to by the Government was separate from the judicial enforcement proceedings, being an administrative phase which was open to appeal before the Conseil d’Etat and which, in the present case, ended with the Conseil d’Etat judgment of 23 September 2013.",
"87. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014).",
"88. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as regards complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and the references cited therein).",
"89. The Court also reiterates that the assessment of an applicant’s obligation to exhaust domestic remedies is normally carried out with reference to the date on which the application was lodged with it (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)).",
"90. In the instant case the Court notes that in his application bringing the case before the Court, the applicant complained of the judgment delivered on 24 June 2009 by the Court of Cassation dismissing his appeal against the judgment of the Court of Appeal allowing judicial enforcement of the arrest warrant issued against him by the US courts. This was a final decision in that it was not open to appeal.",
"91. The Court agrees that the situation is peculiar in that, during the judicial enforcement phase, the judicial courts do not decide on the extradition itself, which is a matter for the executive under the supervision of the Conseil d’Etat. This does not, however, mean that the decisions taken during the judicial enforcement phase cannot give rise to complaints under the Convention. Thus the applicant argued before the Court of Cassation that the enforcement of the arrest warrant which the USA had issued against him was problematical from the angle of Article 3 of the Convention (see paragraph 20 above). The applicant subsequently presented the same arguments to the Court.",
"92. The Court considers these factors sufficient to conclude that the application was not premature and that the objection as to non-exhaustion of the domestic remedies should be rejected. As a subsidiary consideration, it notes that in any case the final stages of the two phases of the extradition proceedings have meanwhile been completed before the Court decision on the admissibility of the application.",
"93. Moreover, the Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a) The applicant",
"94. The applicant complained that his extradition to the United States of America exposed him to treatment incompatible with Article 3 of the Convention. He contended that offences A and B, on the basis of which his extradition had been granted, carried a maximum life prison sentence which was irreducible de facto, and that if he were convicted he would have no prospect of ever being released.",
"95. The applicant deduced the de facto irreducibility of the life sentence from the factual data set out in the diplomatic notes of 11 November 2009 and 10 August 2010. He pointed out that the US authorities had referred to only one instance of sentence commutation in connection with serious offences relating to national security, and stated that they had no knowledge of any Presidential pardon or sentence commutation in cases of conviction for a terrorist offence such as those of which the applicant was accused. In this connection, the example of President Clinton’s executive clemency in 1999 was not relevant. This example should be seen in its context, which had nothing in common with the situation since the launch, after 11 September 2001, of a veritable war on so-called “Islam-inspired” terrorism; this was the context in which the applicant was being prosecuted.",
"96. The applicant also considered that the sources used by the Government to demonstrate the contrary should be treated with caution. The Government had failed to point out that at the time of publication of the studies cited, the Human Rights First NGO had been headed by an individual who had since taken up office in the US executive. The applicant also questioned the quality of the information supplied. He found it very strange that the problem of the conditions of detention of persons prosecuted for terrorism should be completely disregarded despite the fact that this issue had been central to the Court’s concerns in the aforementioned case of Babar Ahmad and Others. In fact, the CagePrisoners NGO, which supported Muslim prisoners held by the US on terrorism charges, had conducted an investigation which showed that such prisoners suffered very strict conditions of detention and a policy of discrimination in prison, were tortured in order to extract confessions, and were sentenced to disproportionate and unfair terms of imprisonment, and so on.",
"97. The applicant provided a different interpretation of the statistics cited by the Government. He pointed out that the average sentence length of 8.4 years excluded life sentences and took no account of the period of detention served by sentenced persons who were either released at the time of trial or placed on probation. Nor did these studies cover persons who had been arrested during the reference period but had not yet been tried. Furthermore, the US Department of Justice produced different figures: of the 403 persons already tried between 11 September 2001 and 18 March 2010, thirty-one had not yet been convicted, twelve had been given life sentences and five had been sentenced to sixty or more years’ imprisonment. The applicant cited the case of Richard Reid, whose name had been mentioned on several occasions in the criminal file which had led to the applicant’s conviction in Belgium, as well as during the extradition proceedings. Richard Reid had been sentenced in 2003 to life imprisonment on the same charge B as the applicant, for planning to destroy an aircraft during flight by means of explosives hidden in his shoes.",
"98. The applicant contended that his case was incomparable to that of the applicants in the aforementioned case of Babar Ahmad and Others because he had already been sentenced by the Belgian courts to the maximum penalty applicable in Belgium at the time of the facts charged and that he had not benefited from any mitigating circumstances.",
"99. Lastly the applicant argued that his only “hope of being released” lay in the prospects for the success, which were de facto non-existent “post-9/11”, of a request for a Presidential pardon or sentence commutation. This possibility, which lay in the hands of the executive without judicial supervision, not only bore no resemblance to a guarantee but was also totally non-juridical. It was subject to changing public opinion and was based on no predefined minimum criteria. It was therefore diametrically opposed to the requirements of coherency and foreseeability established in the aforementioned Vinter and Others judgment.",
"b) The Government",
"100. As a preliminary point, the Government argued that in line with the Court’s approach in the aforementioned cases of Harkins and Edwards and Babar Ahmad and Others, the life-sentence issue had to be analysed against the background of an extradition, and it had to borne in mind that the applicant’s extradition had been requested solely for the purposes of prosecution before the US courts and that there was no certainty that the applicant would be found guilty of the charges against him.",
"101. Regard should also be had to the fact that even if the constituent elements of the offences set out in charges A and B (see paragraph 13 above), for which the applicant was liable to life imprisonment (see paragraph 15 above) were all present, the US authorities had provided assurances that such a sentence was discretionary and that the court dealing with the case was not obliged to impose the maximum penalty provided for by law. Furthermore, were a life sentence to be imposed, there were direct and indirect legal remedies against the conviction and the sentence, a possibility of requesting review of the conviction and means of reducing sentence. All this was in addition to the assurance provided by the US authorities that the applicant would be tried in the ordinary courts, that he would only be held in a civilian prison and that he was in no way exposed to the death penalty.",
"102. The Government submitted that there was no reason to doubt the assurances provided. Belgium had been bound by an extradition treaty with the United States since 1901 and had never experienced any cases of non-compliance by the United States with the obligations deriving from the diplomatic safeguards given.",
"103. At all events, according to the Government, any real risk of the applicant being subsequently sentenced to the maximum penalty laid down for the offences set out in charges A and B was limited, as attested by the data set out in the Human Rights First reports backed up by the statistics provided by the US Department of Justice on convictions for acts of terrorism (paragraph 29 above). Those publications showed clearly that all the cases of life sentences concerned much more serious offences than those with which the applicant had been charged. The example of Richard Reid cited by the applicant (see paragraph 97 above) fell into the same category because Reid had been arrested while he was engaged in carrying out his plan. In other cases individuals suspected of offences such as those set out in charges A and/or B applicable to the applicant had not been sentenced to the maximum penalty provided for by US law.",
"104. As to whether the life sentence to which the applicant was liable for the offences set out in charges A and B passed the “test” set by the Court in the aforementioned case of Kafkaris and was reducible de jure and de facto, the Government invited the Court to adopt the same reasoning as in the aforementioned cases of Babar Ahmad and Others and Harkins and Edwards.",
"105. Assuming that the question of proportionality was relevant in the present case despite the fact that the applicant’s extradition had only been requested for the purpose of his prosecution, it should first of all be pointed out that in view of the gravity of the charges against him the penalties which he risked incurring were not manifestly disproportionate. The only question arising was therefore whether, notwithstanding the fact that he was liable to a life sentence, he could be regarded as having any prospect of being released.",
"106. The first fact to be noted, one which had been acknowledged by the applicant before the Conseil d’Etat, was that in view of the legal possibilities of obtaining a commutation of sentence or a Presidential pardon in the United States as described in the diplomatic note of 10 August 2010, life sentences were reducible de jure.",
"107. Secondly, it was established that sentence reductions and Presidential pardons had indeed been granted on several occasions and that life sentences were also reducible de facto. The Government provided supporting statistics on the pardons and sentence reductions which had been granted since 1990, consultable on the US website of the Department of Justice. They submitted that all US Presidents had hitherto used their right to commute sentences and/or grant pardons. President George Bush had done so in 2008 in the case of a person who had been sentenced to life imprisonment without parole for drug trafficking. These measures had also been implemented for persons convicted of offences against national security, as in the case of the FALN members cited by the US authorities in their diplomatic note of 10 August 2010.",
"108. No other conclusion could be drawn from the fact that there had been no sentence reductions or Presidential pardons for individuals sentenced to life imprisonment for al-Qaeda-linked acts of terrorism. The same reasoning should be used as in Iorgov v. Bulgaria (no. 2) (no. 36295/02, 2 September 2010): since the sentences imposed by the US authorities for such acts had all been recent, the persons thus sentenced could not yet have requested a Presidential pardon. They were not eligible for such a measure until they had served part of their prison sentences. The lack of pardons for such offences could not therefore support the conclusion that the pardon system did not work. Supposing that he was convicted, when he had served part of his sentence the applicant could, at the appropriate time and in accordance with the provisions of US law, apply for a Presidential pardon or a sentence commutation. Several factors, or changes in the situation, might militate in favour of or against such a measure, and it was impossible at the current stage to speculate whether or when the applicant could be released.",
"109. The Government also contended that the US system met the requirements specified by the Court in its aforementioned Vinter and Others judgment, which, they stressed, had concerned mandatory life sentences, and not discretionary ones as in the present case. A Presidential pardon was a known measure which was therefore foreseeable under the legislation, and an appropriate measure which was broad enough to provide certain legal prospects of release to prisoners serving whole-life sentences. That having been said, it was also important to note that the US system was different from that of the United Kingdom. Unlike in the UK, a person convicted in the United States could apply for a pardon or a commutation of his sentence at any time. The duration or nature of the sentence was irrelevant. A convicted person could submit an unlimited number of applications. The procedure required prior assessment by the Pardon Attorney, who operated within the Department of Justice, and who provided a non-binding opinion to the President taking account of the circumstances of the offence and the applicant’s character.",
"2. The Court’s assessment",
"110. The alleged violation consisted in having exposed the applicant, by extraditing him to the United States, to the risk of an irreducible life sentence without parole, in breach of the requirements of Article 3 of the Convention.",
"111. The Court will begin its examination of the matter before it with a number of general considerations on the state of its case-law on Article 3, dealing first of all with life sentences and then going on to the removal of aliens from the national territory. It will subsequently address the issue of the application of the principles on life sentences to the specific situation of the applicant, who has been extradited.",
"a) Principles applicable to life imprisonment",
"112. It is well-established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, §§ 88 and 89). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97).",
"113. This latter principle gives rise to two further ones. First of all, Article 3 does not prevent life prison sentences from being, in practice, served in their entirety. What Article 3 does prohibit is that a life sentence should be irreducible de jure and de facto. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the Court seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98, and references cited therein).",
"114. Until recently the Court had held that the sole possibility of adjustment of a life sentence was sufficient to fulfil the requirements of Article 3. It had thus ruled that the possibility of early release, even where such a decision was only at the discretion of the Head of State (see Kafkaris, cited above, § 103) or the hope of Presidential clemency in the form of either a pardon or a commutation of sentence (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 51 to 60, 2 September 2010) was sufficient to establish such a possibility.",
"115. In Vinter and Others, cited above, the Court re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible. It considered this issue in the light of the prevention and rehabilitation aims of the penalty (§§ 112 to 118). With reference to a principle already set out in the Kafkaris judgment, the Court pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds (§ 119). Furthermore, the Court explained for the first time that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought. Consequently, where domestic law did not provide any mechanism or possibility for review of a whole-life sentence, the incompatibility with Article 3 on this ground already arose at the moment of the imposition of the whole-life sentence and not at a later stage of incarceration (§ 122).",
"b) Principles applicable to removal of aliens",
"116. Under well-established case-law, protection against the treatment prohibited under Article 3 is absolute, and as a result the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the State in question under the Convention, where there are serious grounds to believe that if the person is extradited to the requesting country he would run the real risk of being subjected to treatment contrary to Article 3 (see Soering v. United Kingdom, 7 July 1989, § 88, Series A no. 161). The fact that the ill-treatment is inflicted by a non-Convention State is beside the point (see Saadi, cited above, § 138). In such cases Article 3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State. The Court draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition (see Harkins and Edwards, cited above, § 120, and Babar Ahmad and Others, cited above, § 168).",
"117. Moreover, the Court reiterates that it is acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights. It is therefore careful not to underestimate the extent of the danger represented by terrorism and the threat it poses to society (see Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012, and the references cited therein). It considers it legitimate, in the face of such a threat, for Contracting States to take a firm stand against those who contribute to terrorist acts ( ibid ). Lastly, the Court does not lose sight of the fundamental aim of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension (see Soering, cited above, § 86).",
"118. However, none of these factors have any effect on the absolute nature of Article 3. As the Court has affirmed on several occasions, this rule brooks no exception. The principle has therefore had to be reaffirmed on many occasions since Chahal v. the United Kingdom (15 November 1996, §§ 80 et 81, Reports of Judgments and Decisions 1996-V), to the effect that it is not possible to make the activities of the individual in question, however undesirable or dangerous, a material consideration or to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of the State is engaged under Article 3 (see Saadi, cited above, § 138; see also Daoudi v. France, no. 19576/08, § 64, 3 December 2009, and M. S. v. Belgium, no. 50012/08, §§ 126 and 127, 31 January 2012).",
"119. In order to establish such responsibility, the Court must inevitably assess the situation in the requesting country in terms of the requirements of Article 3. This does not, however, involve making the Convention an instrument governing the actions of States not Parties to it or requiring Contracting States to impose standards on such States (see Soering, cited above, § 86, and Al-Skeini and Others v. United Kingdom [GC], no. 55721/07, § 141, ECHR 2011). In so far as any liability under the Convention is or may be incurred, it is incurred by the extraditing Contracting State by reason of its having taken action which has the direct consequence of exposing an individual to proscribed ill-treatment (see Soering, cited above, § 91; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Saadi, cited above, § 126).",
"120. If the extradition is likely to have consequences in the requesting country which are incompatible with Article 3 of the Convention, the Contracting State must not extradite. It is a matter of ensuring the effectiveness of the safeguard provided by Article 3 in view of the serious and irreparable nature of the alleged suffering risked (see Soering, cited above, § 90).",
"c) Application of the principles to the present case",
"121. The Court notes that the applicant has been extradited to the United States, where he is being prosecuted on charges relating to al-Qaeda-inspired acts of terrorism, and that if he is found guilty and convicted of some of these offences he is liable to a maximum discretionary whole-life prison sentence. The sentence is discretionary in that the judge can impose a lighter penalty, with the option of imposing a fixed-term sentence.",
"122. The question to be addressed by the Court is whether, in view of the risk incurred, the applicant’s extradition was in violation of Article 3 of the Convention. The Court has several times in the past dealt with the issue of the risk of a whole-life sentence. In every case it has attempted to determine, on the basis of the diplomatic assurances provided by the requesting country, whether the extradition of the persons concerned did indeed expose them to such a risk, and if so, whether the life sentence could be reduced so that they had a hope of being released (see, among other authorities, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; Olaechea Cahuas v. Spain, no. 24668/03, ECHR 2006-X; and Schuchter v. Italy, (dec.), no. 68476/10, 11 October 2011).",
"123. This issue arose once again in the cases of Harkins and Edwards and Babar Ahmad and Others, cited above. Most of the applicants in these cases had been threatened with extradition from the United Kingdom to the United States, where they faced prosecution for offences relating to al-Qaeda-inspired acts of terrorism and, in the event of conviction, were liable to mandatory or discretionary life sentences.",
"124. Drawing on its case-law on life imprisonment in the domestic system as set out in its Kafkaris judgment (see paragraphs 112 to 114 above), the Court held that, in the absence of gross disproportionality, a discretionary life sentence without parole would only raise an issue under Article 3 where it could be shown that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds, and that the sentence was irreducible de facto and de jure (see Harkins and Edwards, cited above, § 135, and Babar Ahmad and Others, cited above, §§ 241 and 242).",
"125. The Court subsequently held that the applicants, who had not been convicted, still less begun serving any sentence imposed as a result of such conviction, had not shown that in the event of extradition their incarceration in the United States would not serve any legitimate penological purpose. It deemed it still less certain that if that point were ever reached, the US authorities would refuse to avail themselves of the available mechanisms to reduce their sentences (see Harkins and Edwards, cited above, §§ 140 and 142, and Babar Ahmad and Others, cited above, §§ 130, 131 and 243). The Court concluded that the risk of imposition of life sentences was no obstacle to the applicants’ extradition.",
"126. In the present case the Court notes that before his extradition the applicant had been in a situation very similar to that of the applicants in the case of Babar Ahmad and Others.",
"127. In line with the approach adopted in that case, the Court considers that in view of the gravity of the terrorist offences with which the applicant is charged and the fact that the sentence can only be imposed after the trial court has taken into consideration all relevant mitigating and aggravating factors, a discretionary life sentence would not be grossly disproportionate (see Babar Ahmad and Others, cited above, § 243).",
"128. The respondent Government essentially argued that in order to determine the conformity of this sentence with Article 3 of the Convention in the context of extradition, the “test” which the Court applied in the cases of Harkins and Edwards and Babar Ahmad and Others must also apply here and that there was no justification in the instant case for discarding this “test” on the basis of the more recent case-law established by the Vinter and Others judgment.",
"129. According to the Government, regard must be had to the fact that the applicant was extradited for the sole purpose of prosecution, that he has not yet been convicted and that it is therefore impossible to determine, before conviction, whether the point at which his incarceration would no longer serve any penological purpose would ever come, or to speculate on the manner in which, at that particular moment, the US authorities would implement the available mechanisms. In the Government’s view, the fact that the Court held in Vinter and Others (§ 122) that the starting time for determining conformity with Article 3 of the Convention was the date of imposition of the life sentence was irrelevant to the present case because the applicant has not yet been convicted.",
"130. The Court considers that it must reject this argument because it in effect obviates the preventive aim of Article 3 of the Convention in matters of removal of aliens, which is to prevent the persons concerned from actually suffering a penalty or treatment of a level of severity proscribed by this provision. The Court reiterates that Article 3 requires Contracting States to prevent the infliction of such treatment or the implementation of such a penalty (see paragraph 120 above). Furthermore, the Court holds, as it has done in all extradition cases since Soering, that it must assess the risk incurred by the applicant under Article 3 ex ante – that is to say, in the present case, before his possible conviction in the United States – and not ex post facto, as suggested by the Government.",
"131. The Court’s task is to ensure that the applicant’s extradition was compatible with Article 3 and therefore to consider whether the discretionary life sentence to which the applicant is liable fulfils the criteria which it has established in its case-law on this matter (see paragraphs 112 to 115 above).",
"132. In this connection, the Government affirmed that the US system fulfilled both the requirements set out by the Court in its Kafkaris judgment and the new criteria laid down by the Court in Vinter and Others. They submitted that the life sentence which the applicant risked incurring was reducible de jure because he would be able, under the US Constitution, to apply for a Presidential pardon or a commutation of sentence. He could submit such an application at any time after the conviction has become final, and as many times as he wished. His request would be considered by the Pardon Attorney, who would issue a non-binding opinion to the President. The grounds on which the applicant could obtain a pardon were, in the Government’s view, sufficiently broad, and in any case broader than those used in the United Kingdom, as assessed in the Vinter and Others judgment. The discretionary life sentence was also reducible de facto. The Government referred to the diplomatic assurances and statistics provided by the US authorities showing that all the US Presidents had used their powers of pardon and/or commutation of sentence and that they had previously granted such facilities to persons sentenced to life imprisonment or imprisoned for offences relating to national security.",
"133. The applicant submitted that his only “hope of release” lay in the prospects of success, which were de facto non-existent in the aftermath of the 11 September 2001 terrorist attacks, of an application for a Presidential pardon or commutation of sentence. This possibility, which was completely at the discretion of the executive, was no guarantee and was based on no predefined criterion. That being the case, the discretionary life sentence which he might incur could not be considered reducible de jure and de facto within the meaning of the Court’s Vinter and Others judgment.",
"134. The Court understands the US legal provisions referred to in the diplomatic note of 10 August 2010 provided by the US authorities as not providing for possible release on parole in the event of a life sentence, whether mandatory or discretionary, but infers that there are several possibilities for reducing such a sentence. The sentence can be reduced on the basis of substantial cooperation on the part of the prisoner in the investigation of his case and the prosecution of one or more third persons. It can also be reduced for compelling humanitarian reasons. Furthermore, prisoners may apply for commutation of their sentence or for a Presidential pardon under the US Constitution (see paragraphs 27 and 79 to 83 above).",
"135. The Court further notes that despite the express requirement stipulated on 10 June 2010 by the Indictments Division of the Brussels Court of Appeal in its opinion on the applicant’s extradition (see paragraph 26 above), the US authorities have at no point provided an assurance that the applicant would be spared a life sentence or that, should such a sentence be imposed, it would be accompanied by a reduction or commutation of sentence (see, by contrast, Olaechea Cahuas, cited above, § 43, and Rushing v. Netherlands (dec.), no. 3325/10, § 26, 27 November 2012). It therefore does not have to ascertain, in this case, whether the assurances provided by the requesting authorities are sufficient, in terms of their content, to guarantee that the applicant is protected against the risk of a penalty incompatible with Article 3 of the Convention. It considers that in any case the US authorities’ explanations concerning sentencing and their references to the applicable provisions of US legislation on sentence reduction and Presidential pardons are very general and vague and cannot be deemed sufficiently precise (see Othman (Abu Qatada), cited above, § 189).",
"136. The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with Article 3 of the Convention.",
"137. No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a “prospect of release” within the meaning of the Kafkaris judgment – even if doubts might be expressed as to the reality of such a prospect in practice – none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above).",
"138. Under these conditions, the Court considers that the life sentence liable to be imposed on the applicant cannot be described as reducible for the purposes of Article 3 of the Convention within the meaning of the Vinter and Others judgment. By exposing the applicant to the risk of treatment contrary to this provision the Government engaged the respondent State’s responsibility under the Convention.",
"139. The Court accordingly concludes that the applicant’s extradition to the United States of America amounted to a violation of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"140. The applicant complained that his extradition to the United States had been in breach of the interim measure indicated by the Court in accordance with Rule 39 of its Rules of Court, and that the extradition had therefore amounted to a violation of his right of individual petition. He relied on Article 34 of the Convention, which reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"Rule 39 of the Rules of Court provides as follows:",
"“1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.",
"2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.",
"3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.”",
"A. The parties’ submissions",
"141. The applicant submitted that his extradition in contravention of the interim measure indicated by the Court had been decided without any regard to legal considerations and had stemmed from a deliberate political decision based on fallacious reasons. The Government provided no evidence to substantiate the applicant’s so-called dangerousness; moreover, the applicant had not been the subject of any investigation consequent upon any attempted escape or acts of proselytising; on the contrary, all the opinions of the governors of the prisons in which the applicant had been held mentioned his irreproachable behaviour. The only reason for the Belgian Government’s action had been a political determination to hand the applicant over to the US authorities as quickly as possible and to avoid a Court judgment finding a violation of Article 3 in the event of extradition. This determination had in fact long been in evidence, as could be seen by the repeated requests for the lifting of the interim measure while the appeal pending before the Conseil d’Etat was not of suspensive effect vis-à-vis the decision to extradite. In so doing the Government had irreversibly infringed the applicant’s right of individual petition, as he now found it legally impossible, because of his extradition, and materially impossible, because of his solitary confinement in a prison virtually cut off from the outside world, to usefully pursue his application to the Court.",
"142. The Government first of all pointed out that according to the Court’s case-law, particularly the Mamatkulov and Askarov judgment (cited above, § 108), the purpose of an interim measure was to facilitate the exercise of the right of individual petition secured under Article 34 of the Convention, and therefore to preserve the subject of the application when the Court considered that there was a risk of the applicant suffering irreparable damage. In the instant case, however, the Court should have deduced from the inadmissible nature of the request (see paragraph 39 above) that the interim measure lacked any real justification.",
"143. Secondly, the Government expounded the reasons for which it had extradited the applicant on 3 October 2013. The extradition had been decided in the wake of the judgment delivered by the Conseil d’Etat on 23 September 2013 explaining in detail, and with full knowledge of the Court’s case-law, why the applicant’s complaints of a violation of the Convention were unfounded. Both the Minister and the Conseil d’Etat had been assured, by virtue of the guarantees provided by the US authorities, that the applicant would not be exposed to treatment contrary to Article 3 of the Convention. Furthermore, the applicant had posed a threat to law and order in Belgium because of his proselytising in prison, his contacts with extremist jihadist circles and his attempts to escape, and the longer he remained in prison the more likely it had become that the investigating judicial bodies would order his release. The Government had not wished to run the risk of being unable to honour its commitment to hand over the applicant to the United States because he had escaped or been released.",
"B. The Court’s assessment",
"144. The Court recently reiterated, in the case of Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211 to 213, ECHR 2013 (extracts), the crucial importance of and the vital role played by interim measures under the Convention system. The Court now refers to this judgment.",
"145. Considering the present case in the light of these principles, the Court reiterates that on 6 December 2011 it acceded to the applicant’s request to apply Rule 39 of the Rules of Court, and indicated that in the interests of the parties and the smooth running of the proceedings before it, the Belgian Government should not extradite the applicant to the United States. It also reiterates that it thrice refused to accede to the Government’s request to lift the interim measure and explained on several occasions – the last time being on 18 June 2013 – that the said measure had been indicated until the conclusion of the proceedings before it. The Government had therefore been fully aware of the scope of the measure.",
"146. On 3 October 2013 Belgium nevertheless extradited the applicant to the United States (see paragraph 62 above).",
"147. The Government suggested that the interim measure had been unjustified because it was “premature” and that the Court should have reviewed its justification after an assessment of admissibility.",
"148. The Court observes that it indicated to the Belgian Government that it should stay the extradition on the day of notification of the ministerial decree granting the applicant’s extradition (see paragraph 39 above). Although at that time the applicant could have brought an application for judicial review of this decree before the Conseil d’Etat, such action lacked any suspensive effect vis-à-vis extradition and therefore did not fulfil the Court’s requirements in terms of effectiveness under Article 13 of the Convention (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 83, ECHR 2002 ‑ I; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012). Thus, in accordance with case-law, the fact that this remedy had not been exhausted was immaterial.",
"149. The Government acknowledged that the Belgian authorities had acted in breach of the interim measure indicated by the Court. They considered, however, that this attitude had been justified in that it had been ascertained that the applicant would not be exposed to treatment contrary to the Convention and because the utmost had to be done to ensure his handover to the US authorities owing to the risk of his escape or a judicial decision to release him. The proceedings before the Court had jeopardised Belgium’s commitments to the United States, and extending them had increased the risk of the applicant evading the Belgian authorities.",
"150. The Court notes that the respondent State deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court. The extradition has, at the very least, rendered any finding of a violation of the Convention otiose, as the applicant has been removed to a country which is not a Party to that instrument, where he alleged that he would be exposed to treatment contrary to the Convention.",
"151. The Court considers that none of the arguments put forward by the Belgian Government justified its non-compliance with the interim measure. Although the Government have never concealed from the Court their awkward position vis-à-vis the US authorities and their wish to have the interim measure lifted, at no point did they mention any possible attempts to explain the situation to those authorities or to find an alternative to the applicant’s detention whereby the Belgian authorities could still keep him under surveillance. Furthermore, knowing that the Court had examined all the arguments advanced by the Government’s with a view to persuading it to terminate the measure, including the diplomatic assurances provided by the US authorities, and had rejected them, it was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court.",
"152. The Court also reiterates that the effective exercise of the right of petition requires it to be able, throughout the proceedings before it, to examine the application in accordance with its usual procedure.",
"153. The fact is that in the instant case the applicant is being held in solitary confinement in a prison in the United States, and, as ascertained by his lawyer, is enjoying very little contact with the outside world (see paragraphs 64 to 67 above). He does not seem to have been able to have direct contact with his representative before the Court. These factors are enough for the Court to consider that the Government’s actions have made it more difficult for the applicant to exercise his right of petition and that the exercise of the rights secured under Article 34 of the Convention have therefore been impeded (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 147, 27 March 2008, and Toumi v. Italy, no. 25716/09, § 76, 5 April 2011).",
"154. In the light of the information in its possession, the Court concludes that by deliberately failing to comply with the interim measure indicated in pursuance of Rule 39 of the Rules of Court, the respondent State failed to honour the obligations incumbent on it under Article 34 of the Convention.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"A. Other complaint of a violation of Article 3",
"155. The applicant alleged in substance that his conditions of detention in Belgium had constituted treatment contrary to Article 3 of the Convention. He complained of the constant transfers from one prison to another, the conditions under which the transfers had taken place and the special security measures applied to him during his incarceration. He backed up this complaint with several reports drawn up by psychiatrists pointing to the negative effects of such a situation on his mental health.",
"156. The Government pointed out that the applicant had not brought any judicial action complaining of his conditions of detention and the transfers.",
"157. In the absence of any proceedings before the domestic courts concerning this complaint, the Court considers that it must be dismissed for non-exhaustion of domestic remedies.",
"158. Consequently, this part of the application is inadmissible within the meaning of Article 35 § 1 of the Convention and must be dismissed in accordance with Article 35 § 4.",
"B. Complaint of a violation of Article 6 § 1 of the Convention",
"159. The applicant submitted that he had not had the benefit of a fair trial or the safeguards which should accompany criminal proceedings during the judicial procedure for enforcement of the US arrest warrant. He relied on Article 6 § 1 of the Convention, which provides that:",
"“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”",
"160. The Court reiterates that extradition proceedings do not involve determining an applicant’s civil rights and obligations and do not relate to the merits of any criminal charge against him or her within the meaning of Article 6 § 1 of the Convention (see Raf v. Spain (dec.), no. 53652/00, 21 November 2000; Peñafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I; Cipriani v. Italy (dec.), no. 22142/07, 30 March 2010; and Schuchter, decision cited above). Therefore Article 6 § 1 of the Convention is inapplicable to the impugned extradition proceedings.",
"161. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4.",
"C. Complaint of a violation of Article 4 of Protocol No. 7",
"162. In his initial application, the applicant alleged in substance that his extradition violated Article 4 of Protocol No. 7, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"Protocol No. 7 came into force in respect of Belgium on 1 July 2012.",
"163. The applicant invited the Court to find that the arrest warrant issued on 16 November 2007 by the District Court of the District of Columbia could not have been declared enforceable without violating the ne bis in idem principle. He submitted that an analysis of the criminal file and the decisions given disclosed that all the “overt acts” listed by the US authorities in support of the first charge and repeated in support of the other charges had been mentioned and/or detailed during the investigation conducted in Belgium.",
"164. Even supposing that this part of the application is compatible ratione temporis with the Convention, the Court reiterates its case-law to the effect that Article 4 of Protocol No. 7 does not secure the ne bis in idem principle in respect of prosecutions and convictions in different States (see, among other authorities, Gestra v. Italy (dec.), no. 21072/92, 16 January 1995; Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001; Da Luz Domingues Ferreira v. Belgium (dec.), no. 50049/99, 6 July 2006; and Sarria v. Poland (dec.), no. 45618/09, 18 December 2012).",
"165. At all events, the ministerial decree granting the applicant’s extradition explained that US law drew a clear distinction between the actual offences for which extradition was requested and “overt acts”, which were mere factors presented in support of the charges (see paragraph 31 above). The Conseil d’Etat noted that comparison of all the “overt acts” with the Belgian charges showed that “the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities” (see paragraph 37 above). The Court sees nothing arbitrary or unreasonable in these interpretations and conclusions.",
"166. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, or is at least manifestly ill-founded within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4.",
"D. Complaint of a violation of Article 8 of the Convention",
"167. Lastly, the applicant complained that his extradition to the US constituted an interference with his private and family life in Belgium, in breach of Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"168. The Court notes that the applicant’s extradition raises no issues regarding the criterion that interference must be in accordance with the law and pursue a legitimate aim.",
"169. As to the necessity of the measure, the Court reiterates that it is only in exceptional circumstances that an applicant’s private or family life in a Contracting State can outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, § 29, 26 January 2010, and Babar Ahmad and Others, cited above, § 252).",
"170. In the present case the applicant submitted that he had been separated from his partner, who lived in Belgium and whom he wished to marry. In the Court’s view, that does not constitute an exceptional circumstance preventing the applicant’s extradition. Despite the great geographical distance between Belgium and the United States and the resultant limitation on contacts between the applicant and his partner should he be convicted and remain in prison, the Court must take into account the gravity of the offences for which the applicant is being prosecuted in the United States. It considers that the public interest in extraditing the applicant may be seen as weighing more heavily in terms of all the interests involved. For this reason, and in view of Belgium’s interest in honouring its commitments to the United States – without prejudice to its obligation to comply with the other provisions of the Convention, particularly Articles 3 and 34 – the Court considers that the applicant’s extradition was not in breach of Article 8 of the Convention.",
"171. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and must be dismissed in accordance with Article 35 § 4.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"172. Article 41 of the Convention provides as follows:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"173. The applicant claimed EUR 1,000,000 in respect of the damage which he had suffered owing to his extradition in breach of the Convention. He stated that this sum covered both pecuniary and non-pecuniary damage. Where pecuniary damage was concerned, he explained that since he was incarcerated in the United States he needed substantial financial resources in order to pay for the services of a legal team capable of defending him.",
"174. The Government considered this amount grossly excessive, observing that care had to be taken, in the applicant’s case, to ensure that any major compensatory sums did not lead to financing the international terrorism in which he was still involved owing to his numerous contacts with radical Islamist movements.",
"175. In the absence of evidence enabling it to assess whether the alleged pecuniary damage has been proved and to calculate the sums claimed to compensate for such damage, the Court dismisses the applicant’s claims in this respect.",
"176. On the other hand the Court considers that the applicant has suffered non-pecuniary damage owing to his extradition to the United States. Ruling on an equitable basis in accordance with Article 41 of the Convention, it awards him EUR 60,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"177. The applicant also claimed reimbursement of the costs and expenses incurred for his defence before the Belgian courts and before the Court to a total of EUR 51,350. A first bill of costs mentions a sum of EUR 23,900 for the proceedings before the domestic courts and EUR 7,400 for the applicant’s defence before the Court, calculated on the basis of an hourly rate of EUR 100. The amounts awarded in respect of legal assistance, that is to say a total of EUR 9,550, must be deducted from those sums. The remaining costs were incurred by mailing and typing expenses. A second bill of costs was drawn up for the domestic proceedings conducted on the occasion of the applicant’s extradition and the continuation of proceedings before the Court, to a total of EUR 15,990.",
"178. According to the Court’s well-established case-law, an applicant is entitled to reimbursement of costs and expenses under Article 41 only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, they are only recoverable to the extent that they relate to the violation found (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, ECHR 2011, and Creangă v. Romania [GC], no. 29226/03, § 130, 23 February 2012). In this connection the Court reiterates that the applicant’s claims were only partially successful before it.",
"179. Making its own estimate on the basis of the information available, the Court considers it reasonable to award the applicant EUR 30,000 to cover all costs and expenses.",
"C. Default interest",
"180. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
225 | Trabelsi v. Belgium | 4 September 2014 | This case concerned the extradition, which had been effected despite the indication of an interim measure by the Court, under Rule 39 of the Rules of Court, of a Tunisian national from Belgium to the United States, where he is being prosecuted on charges of terrorist offences and is liable to life imprisonment. | The Court held that the applicant’s extradition to the United States entailed a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered that the life sentence to which the applicant was liable in the United States was irreducible inasmuch as US law provided for no adequate mechanism for reviewing this type of sentence, and that it was therefore contrary to the provisions of Article 3. The Court also held that there had been a violation of Article 34 (right of individual application) of the Convention: the failure of the Belgian State to observe the suspension of extradition indicated by the Court had irreversibly lowered the level of protection of the rights secured under Article 3 of the Convention, which the applicant had attempted to uphold by lodging his application with the Court, and had interfered with his right of individual application. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1970 and is currently being held in Rappahannock Prison in Stafford, Virginia (United States).",
"A. Criminal and asylum proceedings",
"6. On 14 September 2001 an arrest warrant was issued against the applicant by an investigating judge of the Brussels Regional Court. A search of his home had led to the discovery of false passports, automatic weapons and ammunition, as well as chemical formulae that could be used for making explosives and a detailed plan of the United States Embassy in Paris.",
"7. Following a simultaneous search of a Brussels café, where the applicant had been a regular customer, drawing on information provided by another suspect, who had also been arrested, the police discovered 59 litres of acetone and 96 kilograms of sulphur powder. Under the arrest warrant which was subsequently issued, the applicant was accused of acts of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia.",
"8. The applicant admitted the offences as charged and was sentenced to ten years’ imprisonment by the Brussels Regional Court on 30 September 2003 for attempting to blow up the Kleine-Brogel Belgian army base, forgery, and instigating a criminal conspiracy to attack persons and property. The court’s judgment included the following finding:",
"“[the defendant] attempted to commit one of the most serious crimes since Belgian independence; in spite of the lapse of time since his arrest, he has never shown any remorse, the danger which he poses has remained intact and his case presents no mitigating circumstances.”",
"9. In a judgment of 9 June 2004 the Brussels Court of Appeal upheld the applicant’s ten-year prison sentence for a range of offences, including:",
"“ - attempting to blow up the Kleine-Brogel Belgian army base, with the added circumstance that the perpetrator must have presumed that there were one or more persons present at the time of the explosion ...,",
"- holding a position of command in a conspiracy formed to perpetrate serious crimes liable to life imprisonment and, in the present case, to carry out a terrorist attack ...,",
"- receiving from a foreign organisation funds intended for conducting, in Belgium, an activity liable to jeopardise national security ...,",
"- being in unlawful possession of a combat weapon ...,",
"- setting up, and assisting or participating in, a private militia or other organisation of private individuals for the purpose of using force ...”",
"10. On 26 January 2005 the applicant was sentenced in absentia by a Tunisian military court to ten years’ imprisonment for belonging to a terrorist organisation abroad in peacetime. On 29 June 2009 the Permanent Military Court in Tunis issued a warrant for the applicant to be brought before it, for which an application for enforcement was submitted to the Belgian authorities by diplomatic note of 10 September 2009.",
"11. The principal prison sentence imposed on the applicant in Belgium was completed on 13 September 2011. Two subsequent subsidiary prison sentences of six and three months respectively were imposed in 2007 and enforced immediately. The applicant completed these sentences on 23 June 2012.",
"12. On 25 August 2005, meanwhile, the applicant had submitted an asylum application in Belgium, which the Commissioner General for Refugees and Stateless Persons dismissed in a decision of 10 April 2009. This decision refused the applicant refugee status and subsidiary protection on the grounds that he had committed offences contrary to the aims and principles of the United Nations within the meaning of Article 1 f) c of the Geneva Convention. That decision was upheld by the Aliens Appeals Board in a judgment of 18 May 2009.",
"B. Extradition proceedings",
"1. Judicial stage of the validation of the US indictment",
"13. By a diplomatic note of 8 April 2008 the US authorities transmitted to the Belgian authorities a request for extradition of the applicant under the Extradition Agreement concluded between the Kingdom of Belgium and the United States of America on 27 April 1987. The reasons for the request were the indictment issued by the District Court of the District of Columbia (Washington D.C.) against the applicant on 16 November 2007, comprising the following charges:",
"“A. Conspiracy to kill United States nationals outside of the United States, in violation of the following provisions: 18 U.S.C. § 2332 (b) (2) and 1111 (a)",
"B. Conspiracy and attempt to use of weapons of mass destruction, in violation of the following provisions: 18 U.S.C. § 2332a and 2",
"C. Conspiracy to provide material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B",
"D. Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B and 2.”",
"14. The extradition request continued as follows:",
"“A warrant for the arrest of Mr Nizar Trabelsi was issued on 16 November 2007 by order of ... judge ....",
"The underlying facts of the charges indicate that in mid-2000 or earlier, while in Germany, and elsewhere in Europe, and in Afghanistan, Nizar TRABELSI knowingly entered into an agreement with al Qaeda associates, including Osama bin Laden, to provide material support and resources, to unlawfully kill United States nationals in targeted facilities in Western Europe, and to use a large-scale explosive device (a weapon of mass destruction) to destroy property in Western Europe used by the United States and/or a department or agency of the United States.”",
"15. According to the documents in support of the extradition request, notably the applicable extracts from criminal law (Title 18 of the United States Code, U.S.C.) transmitted by the US authorities, these offences carried the following penalties:",
"“A. 18 U.S.C. § 2332 (b) (2) and 1111 (a): a maximum term of life imprisonment, or a combined fine and prison sentence.",
"B. 18 U.S.C. § 2332a and 2: a maximum term of life imprisonment.",
"C. 18 U.S.C. § 2339B: a fine or a maximum term of 15 years imprisonment, or a combination of both.",
"D. 18 U.S.C. § 2339B and 2: a fine or a maximum term of 15 years imprisonment, or a combination of both.”",
"16. On 4 June 2008 the Federal Attorney transmitted to the chambre du conseil of the Nivelles Regional Court a request for enforcement of the arrest warrant issued on 16 November 2007 against the applicant. In his request the Federal Attorney pointed out that the maximum sentences for the offences underlying the request for extradition were fifteen and ten years respectively.",
"17. By a diplomatic note of 12 November 2008 the US authorities made the following assurances concerning the applicant to the Belgian authorities:",
"“The Government of the United States assures the Government of Belgium that, pursuant to his extradition, Nizar Trabelsi will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006. The Government of the United States further assures the Government of Belgium that upon extradition, Trabelsi will not be detained or incarcerated in any facility other than a civilian facility in the United States.”",
"18. By an order of 19 November 2008, the chambre du conseil of the Nivelles Regional Court acceded to the Federal Attorney’s request and declared the arrest warrant issued by the US District Court enforceable. However, the order added the following stipulation:",
"“It emerges from the examination of the documents enclosed with the arrest warrant issued for the purposes of extradition ... that the ‘overt acts’ listed by the US authorities in support of the first charge include several which correspond very precisely to the acts committed in Belgian territory which justify the [applicant’s] conviction in Belgium.",
"...",
"Therefore, by virtue of the ne bis in idem principle, the arrest warrant issued for the purposes of extradition on 16 November 2007 by the competent judicial authority of the United States of America cannot be declared enforceable in respect of ‘overt acts’ nos. 23, 24, 25, 26 set out in paragraph 10 of the first charge, which are deemed repeated in support of the other charges.”",
"19. Having examined an appeal lodged by the applicant, the Indictments Division of the Brussels Court of Appeal delivered a judgment on 19 February 2009 upholding the aforementioned order and declared the warrant enforceable. Having noted that the extradition concerned acts (committed outside Belgium) other than those for which the applicant had been prosecuted and convicted in Belgium, the Court of Appeal argued that:",
"“There are no serious grounds for believing that the request for extradition was submitted for the purposes of prosecuting or punishing Trabelsi Nizar for considerations of race, religion, nationality or political opinion or that this individual’s situation is liable to be worsened for any of these reasons.",
"...",
"Nor is there any serious reason to believe that if Trabelsi Nizar were to be extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman or degrading treatment; there is no reason to suppose that the United States of America will not meticulously comply with all the provisions, including Articles 7.2 and 7.3, of the Extradition Agreement concluded with Belgium, and every reason to believe that Trabelsi Nizar will be detained in a civilian facility and tried by the ordinary courts, in accordance with conventional procedure.",
"...”",
"20. On 24 April 2009 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal. He relied on the risk of treatment incompatible with Article 3 of the Convention and the risk of a flagrant denial of justice. He contended that the Court of Appeal had not assessed the consequences of his extradition to the United States in the light of the general situation in that country or his own specific circumstances, and argued that the Court of Appeal should have adopted the same line of reasoning as the Court in the case of Saadi v. Italy [GC] (no. 37201/06, ECHR 2008). He also complained that the Court of Appeal had not addressed the potential problem under Article 3 of sentencing a person to an irreducible life sentence. Lastly, he complained of a violation of the ne bis in idem principle.",
"21. By a judgment of 24 June 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. It ruled that the Court of Appeal had provided adequate reasons and legal justification for its decision, considering",
"“ - that the requesting State is currently conducting a thorough review of its anti-terrorist policy, stepping up its action against torture and inhuman and degrading treatment, and is on the verge of suspending the special courts and abolishing the unlimited detention without trial of persons captured in the context of international conflict;",
"- that under the terms of the formal guarantees provided in support of the extradition request, the appellant will be tried by an ordinary civilian court in accordance with the normal procedure in force in the requesting State, enjoying all the rights and remedies available under the national judicial system;",
"- that the appellant is not liable to a life sentence for the offences for which his extradition has been requested and that the penalties which they carry can be commuted into other penalties with possibilities for release on parole;",
"- that because the evidence relied upon by the appellant lacks any specific aspect affecting his own personal situation, which would have made the risks he alleges more credible, it does not substantiate any serious concern that he could be exposed to a flagrant denial of justice or acts of torture or inhuman and degrading treatment.",
"...”",
"22. In a letter of 11 November 2009 sent to the Belgian authorities at the behest of the Federal Attorney responsible for the extradition request, the US Department of Justice supplied the following additional information:",
"“The statutory maximum sentence for a conviction of each of the first two of these offenses is life imprisonment and the statutory maximum sentence for the latter two offenses is 15 years. In addition, the United States Sentencing Guidelines, which are the voluntary guidelines that judges may choose to follow in sentencing defendants, call for a life sentence for each of the first two of these offenses.",
"A life sentence is not mandatory and the court has the discretion to issue a sentence less than life. In issuing a sentence, the court may consider the gravity of the offense and whether any lives were lost or property was damaged. In this instance, Trabelsi did not succeed in carrying out his plans to kill United States nationals and to use weapons of mass destruction. Thus, the court in issuing a sentence, in its discretion, may consider that Trabelsi was not successful in carrying out his plans. The court also may consider any mitigating factors, such as whether the defendant acknowledges responsibility for his actions.",
"If the court, in its discretion, sentences Trabelsi to a punishment of less than life, i.e. a term of years, Trabelsi’s sentence could be reduced by up to 15% for good behaviour while incarcerated. This type of sentence reduction is only possible, however, if the original sentence is to a term of years, however long, rather than a life sentence. Therefore, if Trabelsi were sentenced to a term of 20, 30, or even 50 years, then he could be eligible for a sentence reduction of up to 15% of his original sentence based on his good behaviour while incarcerated. If, however, Trabelsi is sentenced to life, he would not be eligible for any reduction in his sentence.",
"Finally, Trabelsi can apply for a Presidential pardon or sentence commutation. (A pardon would eliminate the conviction; a commutation would be an adjustment to the sentence.) However, this is only a theoretical possibility in Trabelsi’s case. We are not aware of any terrorism defendant ever having successfully applied for a Presidential pardon or sentence commutation.”",
"2. Judicial and administrative phase of the response to the extradition request",
"a) Opinion of the Indictments Division",
"23. Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced.",
"24. On 4 February 2010 the Federal Attorney forwarded his written opinion to the Brussels Court of Appeal inviting it, in the light of the Court’s case-law, particularly Kafkaris v. Cyprus [GC] (no. 21906/04, ECHR 2008), to issue a positive opinion on the applicant’s extradition. He pointed out that in the case of the first two charges, the applicant was liable to a life sentence, while in the case of the other two charges he was liable to a fifteen-year prison sentence.",
"25. In a letter of 29 March 2010 to the Federal Department of Justice the applicant took note of the fact that at the hearing on 24 March 2010 the Federal Attorney had acknowledged a mistake in his observations in the enforcement request proceedings concerning the sentence to which the applicant might be liable following his extradition to the United States (see paragraph 16 above).",
"26. On 10 June 2010 the Indictments Division of the Court of Appeal issued a favourable opinion on the applicant’s extradition, specifying a number of conditions:",
"“ - extradition may only be granted:",
"i. on condition that the death penalty is not imposed on N. Trabelsi or, if the United States cannot guarantee this condition, on condition that the death penalty is not enforced;",
"ii. on condition that any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts;",
"- in the event of a request for N. Trabelsi’s re-extradition to a third country, such as Tunisia, the United States must request the agreement of Belgium should Tunisia send the US Government any future request for extradition after N. Trabelsi has been handed over to them.",
"If the US fails to accept these conditions the extradition must be refused.”",
"b) Ministerial decree granting extradition",
"27. By a diplomatic note of 10 August 2010 the US authorities confirmed that the applicant was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US authorities reiterated that the maximum life prison sentence was not mandatory and that even if all the constituent elements of the criminal offences in question were secured and proved, the court had the discretion to impose a lighter sentence. The note specified that US legislation provided for several means of reducing life sentences:",
"“Regarding the question of commutation of a life sentence, the United States wishes to make it clear, in the first instance, that if Trabelsi were convicted, a life sentence is not mandatory; the court has the discretion to impose a sentence less than life. Also, a defendant has a statutory right to appeal the conviction and sentence, including a life sentence, both directly, and collaterally through a habeas corpus petition. In addition, there are certain statutory bases for reduction of an already-imposed sentence, including where the defendant has provided substantial assistance in the investigation or prosecution of a third party (Federal Rule of Criminal Procedure 35(b) and Title 18 United States Code, Section 3582(c)(1)(B)), or for compelling humanitarian reasons such as the terminal illness of the prisoner (Title 18, United States Code, Section 3582(c)(lXA)(i)).",
"In addition to these measures, the defendant may request that his sentence be reduced as an exercise of executive clemency by the President of the United States. The President’s power under Article H, Section 2, of the U.S. Constitution, “to grant reprieves and pardons” includes the authority to commute (reduce) a sentence of imprisonment, including a life sentence. There are established regulations and procedures governing the application process for executive clemency, and the Office of the Pardon Attorney has been established in the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The U.S. Constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has, on occasion, been granted for serious offenses implicating national security. For example, in 1999, President Clinton commuted the sentences of 13 members of the FALN, a violent Puerto Rican nationalist organization responsible for numerous bombings in the 1970s and early 1980s, who had been convicted of conspiracy to commit armed robbery, bomb making, sedition and other offenses.”",
"28. On 23 November 2011 the Minister for Justice adopted a ministerial decree granting the applicant’s extradition to the US Government. Having noted that the applicant would in no case be liable to the death penalty, the decree examined each of the other guarantees provided.",
"29. On the matter of possible life imprisonment, the ministerial decree read as follows:",
"“Under US Federal criminal law the maximum penalty laid down in respect of the charges – the offences under A and B – precludes early release and release on parole. Life sentences as provided for in these two provisions of the US Criminal Code are therefore, from the legal and factual angles, in principle served for the whole of the person’s life.",
"...",
"In diplomatic note no. 21 of 10 August 2010 from the United States Embassy, the US authorities provided a guarantee that (even) if an irreducible life sentence were handed down it would be possible to obtain a pardon from the US President. This right is set out in Article 2, II of the US Constitution. Furthermore, Presidential pardons have in fact been granted on several occasions in the past, including the recent past, to persons sentenced by the US courts, particularly at the Federal level.",
"...",
"Even if we view it in its historical context, the FALN case shows that in cases likely to fall under the current legislation on terrorism in force since 11 September 2001, which cases must objectively be seen as much more serious than those of which the person sought is suspected and which are therefore liable to lead to severer penalties, Presidential pardons can indeed be granted.",
"Even though some individuals have since 2001 been given irreducible life sentences ... for terrorism or acts linked to terrorism, such cases cannot be compared to the Trabelsi case in terms of their content. All those who have been sentenced to life imprisonment in the US without early release or release on parole were charged, prosecuted and finally convicted for active involvement in terrorist attacks which had caused deaths and/or injuries and considerable material damage, for example the attacks on the US Embassies in Nairobi, Kenya, and Dar-es-Salaam (Tanzania) on 7 August 1998. ...",
"Those offences were manifestly incomparable in extent and nature with those attributed to the person whose extradition has been requested.",
"In the aforementioned cases persons, sometimes enormous numbers of people, in addition to US nationals, suffered substantial physical and material damage. The person sought in the present case, however, is being prosecuted for having planned and prepared a terrorist attack which was never carried out. He did not succeed, in cooperation with others, in causing human injuries or even material damage.",
"It is therefore manifestly plausible that the offences as charged are not such that the maximum applicable sentence laid down in the US Criminal Code, that is to say an irreducible life sentence, could be called for or imposed.",
"A recent survey by the Human Rights First NGO shows that of the 214 persons prosecuted since 11 September 2001 for terrorist offences linked to al-Qaeda or other Islamist groups or for offences connected with such terrorist offences, 195 have been convicted. Each case involved prosecutions or convictions instigated by Federal attorneys and courts. 151 of the convicted persons were sentenced to imprisonment, while twenty were released on licence or given prison terms corresponding to the period of custody already served. The average length of prison sentences handed down was 8.4 years. Only 11 of those convicted were sentenced to life imprisonment. The report also points out that the proceedings complied with the right to a fair trial (“Human Rights First, In pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments”, 2009, 68 pp.).",
"The statistics show that, objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought.”",
"30. In connection with the applicant’s possible re-extradition to Tunisia, the ministerial decree continued as follows:",
"“By diplomatic note no. 21 of 10 August 2010 from the US Embassy the US authorities clearly indicated that if the Tunisian authorities applied to the United States for extradition, it would be turned down.",
"...",
"Given the decision to refuse extradition to the Tunisian Republic, in view of the fact that re-extradition necessitates the agreement of the State which authorised the initial extradition, no re-extradition to the Tunisian Republic is possible.",
"Since the Belgian authority refused extradition to the Tunisian Republic, if Tunisia were to transmit to the US a request for extradition in the future the US would also refuse it, and no extradition by the United States to the Tunisian Republic is possible.”",
"31. Lastly, the ministerial decision analysed the application of the ne bis in idem principle as follows:",
"“Under the Agreement (the Extradition Agreement of 27 April 1987), Belgium and the United States of America ... have mutually undertaken to refuse extradition if the person sought has been acquitted in the requested State or has been convicted in the same State for the same offence as that for which extradition is being requested. Ratification ... incorporated this agreement into the Belgian and US legal systems.",
"In other words it is not the acts but the legal classification of the acts, namely the offences, which must be identical.",
"...",
"The facts forming the basis of the offences in question correspond to ‘overt acts’ which individually or together function as factual elements supporting the charges. The double jeopardy principle does not exclude the possibility of using or not using these elements.",
"In the present case the offences for which the person sought was finally convicted by the Brussels Court of Appeal on 9 June 2004 do not correspond to the offences listed in charges A to D in the arrest warrant forming the basis for the US extradition request. The constituent elements of the respective US and Belgian offences, their scope and the place(s) and time(s) of their commission do not match up.",
"...",
"Under US Federal criminal law an ‘overt act’ is a (factual) element, an act, a behaviour or a transaction which in itself may not necessarily be classified as an offence...",
"An ‘overt act’ is merely a piece of supporting evidence which in itself or in conjunction with other overt acts may help constitute the offence or offences for which the person is being prosecuted, that is to say conspiracy, for instance to kill US nationals (see charge A). ...",
"Although each of ‘overt acts’ nos. 24, 25 and 26 could be classified as an offence, these acts nonetheless do not constitute offences for which the extradition has been requested.”",
"32. Article 2 of the decree stated that “extradition will take place after the person sought has complied with the requirements of the Belgian courts ”.",
"33. On the same day, under another ministerial decree, the Minister for Justice refused the Tunisian authorities’ request for the applicant’s extradition (see paragraph 10 above).",
"c) Application for judicial review before the Conseil d’Etat",
"34. On 6 February 2012, relying on violations of Article 3 of the Convention and Article 4 of Protocol No. 7, the applicant lodged an application with the Conseil d’Etat for judicial review of the ministerial decree granting his extradition to the United States of America.",
"35. At the Conseil d’Etat hearing on 19 September 2013 the applicant relied on the Court’s judgment in Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He deduced from this judgment that the Court had now adopted a position requiring preventive review of whether a life prison sentence was reducible or not before the prisoner began his sentence, and therefore that the distinction drawn in the Babar Ahmad and Others v. United Kingdom judgment, (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012) depending on whether the person subject to extradition had been convicted or not was no longer relevant.",
"36. In a judgment of 23 September 2013 the Conseil d’Etat dismissed the application for judicial review. As to the complaint under Article 3 of the Convention and the risk of an irreducible life sentence, the Conseil d’Etat reasoned as follows:",
"“Even supposing that the applicant is sentenced by the US courts to life imprisonment, it should be noted that in its Vinter and Others v. United Kingdom judgment of 9 July 2013 [the Court] ruled that: ‘a life sentence does not become irreducible by the mere fact that in practice it may be served in full’, that ‘no issue arises under Article 3 if a life sentence is de jure and de facto reducible ...’ and that ‘where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3’.",
"In the present case, as in that of Babar Ahmad and Others v. United Kingdom which led to [the Court’s judgment] of 10 April 2012, the applicant has not been sentenced by a US court to life imprisonment, and has still less begun serving such a sentence.",
"As in the aforementioned case, therefore, the applicant does not show that in the event of a life sentence, the question will arise whether there is any legitimate penological justification for continuing his imprisonment.",
"Moreover, in his most recent submissions the applicant acknowledges that a possible life sentence imposed on him would be reducible de jure. US law allows him either to request a review or apply for a Presidential pardon or commutation of sentence, and the applicant does not contend that this power of executive clemency or sentence commutation is accompanied by restrictions comparable to those in issue in the [Court’s] aforementioned judgment of 9 July 2013.",
"Although the applicant challenges the assertion that such a sentence is reducible de facto, the explanations provided to the opposing party by the US authorities do show that the US President has already used his power to commute sentences. Therefore, the legal remedy available to the applicant in the event of a life prison sentence is not excluded in practice.",
"Furthermore, the applicant’s contention that since the 11 September 2001 terrorist attack it has been inconceivable for the US President to grant a pardon to or commute the sentence of a person convicted of terrorism has not been substantiated by any reliable information, nor can it be in view of the relatively short period of time, as compared with a life sentence, which has elapsed since the said attack and any criminal sentences subsequently imposed.",
"As in Babar Ahmad ..., therefore, it has not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing the applicant’s imprisonment.",
"Any possible life sentence imposed on the applicant would therefore also be reducible de facto.",
"Consequently, it is unnecessary to determine whether the opposing party was wrong to consider that the applicant would not necessarily be sentenced to life imprisonment, because, even if he were sentenced to such a prison term, this penalty would not constitute a breach of Article 3 [of the Convention]”.",
"37. As to the complaint under Article 5 of the Extradition Agreement between the Kingdom of Belgium and the United States of America, Article 4 of Protocol No. 7 to the Convention and Article 14 § 7 of the International Covenant on Civil and Political Rights, the Conseil d’Etat held that:",
"“The US authorities request the applicant’s extradition on four charges, namely:",
"1) Conspiracy to kill United States nationals outside of the United States;",
"2) Conspiracy and attempt to use of weapons of mass destruction;",
"3) Conspiracy to provide material support and resources to a foreign terrorist organisation;",
"4) Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions.",
"Again according to the US authorities, in order to commit these offences as charged the applicant and four accomplices carried out a series of ‘overt acts’, including those for which extradition is being granted to the US authorities presented as follows: [a list of 28 charges follows].",
"In Belgium the charges (‘in the Brussels judicial district and, on related charges, elsewhere in the Kingdom’) against the applicant are as follows: [a list of 13 charges follows].",
"Comparing all the ‘overt acts’ for which extradition has been granted to the US authorities with all the Belgian charges valid ‘in the Brussels judicial district and ... elsewhere in the Kingdom’, it will be noted that the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities.",
"It emerges from the case file that the applicant is wanted by the US authorities for a number of offences in respect of which he has not been ‘found guilty, convicted or acquitted in the requested State’ and that the ‘overt acts’ constitute so many elements to be used by the US judicial authorities to establish whether the applicant is guilty or innocent of the four charges brought against him.”",
"C. Indication of an interim measure and following stages in the proceedings before the Court",
"38. On 6 December 2011, the date of notification of the ministerial decrees relating to the requests for extradition (see paragraphs 28 and 33), the applicant lodged a request with the Court for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition.",
"39. On the same day the Court acceded to the applicant’s request and decided to indicate to the Government, in the interests of the parties and of the proper conduct of proceedings before it, that it should not extradite the applicant to the United States of America.",
"40. On 20 December 2011, arguing that the interim measure had been indicated prematurely because the applicant had not yet been placed in custody pending extradition and that such a measure would create a situation detrimental to the proper administration of justice, the Belgian Government requested that the measure be lifted.",
"41. On 11 January 2012, the Court, having re-examined the application in the light of the information supplied by the parties, decided, on the basis of the said information, to refuse to lift the interim measure.",
"42. On 21 May 2012 the Government submitted a second request for the lifting of the interim measure.",
"43. In reply, the Court pointed out, in a letter of 25 May 2012, that the request to lift the measure and the application would be re-examined once the judgment delivered on 10 April 2012 by the Court in Babar Ahmad and Others v. United Kingdom, cited above, had become final.",
"44. In a letter of 25 June 2012 the Court informed the parties that the examination of the request to lift the interim measure had been postponed indefinitely in view of the request for referral to the Grand Chamber of the cases Vinter and Others v. United Kingdom (no. 66069/09) and Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07).",
"45. On 3 August 2012 the Court informed the parties that it had been decided to refer the aforementioned Vinter case to the Grand Chamber and that the question of the request to lift the interim measure would be re-examined when a decision had been taken on the request for referral of the aforementioned case of Babar Ahmad and Others to the Grand Chamber.",
"46. The application was communicated to the respondent Government on 27 November 2012.",
"47. In their observations on the admissibility and merits of the application the Government requested, for the third time, the immediate lifting of the interim measure.",
"48. In a letter of 7 January 2013 the Court replied that the Government would be informed in due course of the decision taken by the Court on the interim measure.",
"49. On 15 January 2013 it was decided to maintain the interim measure for the duration of the proceedings before the Court.",
"50. In a letter of 18 June 2013 in reply to a fourth request from the Government to lift the interim measure, the Court stated that the interim measure had been maintained and would be applied until the end of the proceedings before it.",
"51. On 10 July 2013 the Court informed the parties that examination of the case had been adjourned in view of the imminent delivery of the judgment of the Conseil d’Etat and of the Grand Chamber judgment in Vinter and Others [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013).",
"52. In reply to a question from the Government on the deadline for dealing with the case, the Court informed them on 25 September 2013 that the examination of the case would begin at the end of October or the beginning of November.",
"53. On 18 October 2013 the Court informed the parties that the chamber constituted to examine the case was intending to relinquish the case to the Grand Chamber under Article 30 of the Convention.",
"54. By letter of 31 October 2013 the applicant expressed his agreement to such relinquishment. The Government, on the other hand, indicated, by letter of 8 November 2013, that they opposed relinquishment.",
"D. Detention pending extradition",
"55. On 24 June 2012, having served the sentences imposed on him (see paragraph 11 above), the applicant was taken into custody pending extradition in pursuance of section 3 of the Extradition Act of 15 March 1874.",
"56. On 7 June 2012 the applicant lodged a first application for release with the Nivelles Regional Court. By an order of 12 June 2012 the chambre du conseil dismissed the application. The order was upheld by the Indictments Division of the Brussels Court of Appeal on 28 June 2012.",
"57. Subsequently, having meanwhile been transferred first to Bruges Prison and then to Hasselt Prison, the applicant lodged a second application for release on 13 August 2012 with the Hasselt Regional Court. On 24 August 2012 the chambre du conseil allowed his application. On appeal from the public prosecutor, by judgment of 6 September 2012, the Indictments Division of Antwerp Court of Appeal set aside this decision and dismissed the application.",
"58. On 3 December 2012 the applicant lodged a third application for release. By an order of 14 December 2012 the chambre du conseil of the Hasselt Regional Court declared the application unfounded. The applicant appealed to the Indictments Division of Antwerp Court of Appeal, which upheld the aforementioned decision by judgment of 10 January 2013.",
"59. In January 2013, having meanwhile been transferred to Mons Prison, the applicant lodged a fourth application for release, which was declared unfounded by the chambre du conseil of the Mons Regional Court on 4 February 2013, and then by the Indictments Division of the Mons Court of Appeal on 21 February 2013.",
"60. On 23 August 2013, having meanwhile been transferred to Ittre Prison, the applicant lodged a fifth application for release. This application was dismissed by the chambre du conseil of Nivelles Regional Court on 28 August 2013 and then by the Indictments Division of the Brussels Court of Appeal on 12 September 2013.",
"61. Meanwhile, on 5 September 2013, the applicant had left Ittre Prison for Bruges Prison, having obtained a date for his wedding to a Belgian national with whom he had had two children.",
"E. The applicant’s extradition",
"62. On 3 October 2013 the applicant was informed that he was being transferred from Bruges Prison to Ittre Prison. In fact he was being taken to Melsbroek military airport, where Federal Bureau of Investigation (FBI) agents were waiting for him. At 11.30 a.m. he was extradited to the United States.",
"63. The Minister for Justice issued a public statement announcing the applicant’s departure at 1.30 p.m.",
"64. At 3 p.m. the applicant’s lawyer made a highly urgent ex parte application to the President of Brussels Regional Court. The decision, which was given at 6.30 p.m., stated that the Belgian State was required to comply with the interim measure indicated by the Court, and ordered “prohibition or suspension of the applicant’s extradition, as far as this might be possible”, on pain of a fine of EUR 5,000 (five thousand euros). The Court has not been informed of any appeal against this order.",
"F. The applicant’s detention in the United States",
"65. In the United States the applicant was immediately placed in custody. On 7 October 2013, assisted by an officially appointed lawyer, he was brought before the District Court of the District of Columbia to hear the charges against him.",
"66. The applicant is currently being held in the Rappahannock regional prison in Stafford (Virginia). On 1 November 2013 a letter from the prison administration to the Belgian authorities stated that the applicant was subject to the same conditions of detention as all other prisoners.",
"67. According to an email sent on 6 November 2013 by the applicant’s US lawyer to his representative before the Court, the applicant was allowed to have postal contact with the outside world, but all correspondence would be translated and read in advance by the US Government. He was also allowed to have telephone contact with some members of his family provided that an interpreter was available. Close relatives could visit him subject to obtaining a US entry visa.",
"68. The applicant was visited by his lawyer, who, in an email sent to a member of his family on 7 December 2013, said that he had been placed in an isolated cell. She expressed concern about his mental state."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Belgian legislation on extradition",
"69. Under Belgian law, extradition proceedings are governed by the Extradition Act of 15 March 1874, the provisions of which, as far as they apply to the present case, may be summarised as follows.",
"70. Under section 1, extradition is only possible between Belgium and foreign States under a treaty concluded on a mutual basis.",
"71. The Belgian Act makes extradition subject to several conditions regarding the offence for which extradition is being requested:",
"Section 2",
"“... where the crime or offence giving rise to the application for extradition has been committed outside the territory of the requesting party, the Government may only hand over the prosecuted or convicted foreigner, on a reciprocal basis, if Belgian legislation authorises the prosecution of the same offences committed outside the Belgian Kingdom.”",
"Section 2bis",
"“Extradition may not be granted if there are serious reasons to believe that the application was submitted for the purpose of persecuting or punishing a person on considerations of race, religion, nationality or political opinions, or if the situation of such person is liable to be worsened for any one of those reasons.",
"Nor can extradition be granted if there are serious risks that if the person were extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman and/or degrading treatment in the requesting State.",
"Where the offence for which extradition has been requested is punishable by the death penalty in the requesting State, the Government shall allow extradition only if the requesting State provides formal guarantees that the death penalty will not be enforced.”",
"72. In accordance with section 3(2), the application must be accompanied, in cases such as the present one, by an arrest warrant or any other equivalent document issued by the competent foreign authority, provided that these documents include a precise indication of the offence for which they have been issued and that they have been declared enforceable by the chambre du conseil of the regional court of the foreigner’s place of residence in Belgium or of the place where he is to be found. Investigatory proceedings before the chambre du conseil are not open to the public.",
"73. The decision is open to appeal before the Indictments Division of the Court of Appeal, where the investigatory proceedings are also not open to the public. Subsequently, an appeal on points of law lies against the judgment of the Indictments Division.",
"74. Pursuant to section 3(4), once the foreigner has been detained under the arrest warrant as declared enforceable, the Government take cognisance of the opinion of the Indictments Division of the competent court of appeal. The latter must verify that all the statutory and Treaty conditions for extradition are fulfilled. The hearing is, in principle, open to the public. The public prosecutor and the foreigner are heard, the latter having been duly summoned to appear and provided with the case file ten days before the hearing. The opinion of the Indictments Division is not made public, and at this stage neither the foreigner nor his lawyer has access to it.",
"75. The opinion is then transmitted to the Minister for Justice. Since the opinion is not a judgment it is not open to an appeal on points of law before the Court of Cassation. Nor is it liable to an application for judicial review before the Conseil d’Etat.",
"76. The Minister for Justice decides whether or not to hand over the foreigner to the requesting State. A non-suspensive application for judicial review of the ministerial decision lies to the Conseil d’Etat.",
"B. The extradition agreement between Belgium and the United States",
"77. A treaty on extradition between Belgium and the United States was signed in Brussels on 27 April 1987. This bilateral agreement was amended and updated, pursuant to the 25 June 2003 agreement between the European Union and the United States of America on extradition, under a bilateral “instrument” of 16 December 2004.",
"78. The relevant provisions of the 27 April 1987 agreement as amended are as follows:",
"Article 2 - Extraditable Offenses",
"“1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.",
"2. If extradition is requested for the execution of a sentence, the sentence originally imposed must have been deprivation of liberty for a period of at least one year or a more severe penalty.",
"3. The following shall also be an extraditable offense:",
"(a) an attempt to commit one of the offenses described in paragraph 1 or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense; or",
"(b) an association formed to commit any of the offenses described in paragraph 1 under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States.",
"4. In determining whether an offense is an extraditable offense, the Contracting States:",
"(a) shall consider only the essential elements of the offense punishable under the laws of both states; and",
"(b) shall not consider as an essential element of an offense punishable in the United States an element such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, since such an element is for the purpose of establishing jurisdiction in a United States federal court;",
"(c) shall disregard that the respective laws do not place the offense within the same category of offenses or describe the offense by the same terminology.",
"5. If extradition has been granted for an extraditable offense or for the execution of a sentence, it shall also be granted for:",
"(a) any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, and",
"(b) the execution of any other penalty, including a fine, specified in the request for extradition even if the severity of the penalty does not fulfill the requirement of the minimum punishment imposed by paragraph 2, provided that all other requirements for extradition are met.",
"6. Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or a suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.”",
"Article 5 – Prior Prosecution",
"“1. Extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested.",
"2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.”",
"Article 6 – Humanitarian Considerations",
"“1. If an offense for which extradition is requested is punishable by death in the Requesting State, and if in respect of such offense the death penalty is not provided for by the Requested State or is not normally carried out by it, extradition may be refused, unless the Requesting State gives such assurances as the Requested State considers sufficient that the death penalty will not be carried out.",
"2. Notwithstanding the provisions of the present Treaty, the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.”",
"C. Possibilities of reducing life sentences under US law",
"79. The possibilities of sentence reduction mentioned in the diplomatic note sent by the US authorities to their Belgian counterparts on 10 August 2010 (see paragraph 27 above) are set out in the following provisions:",
"Federal Rules of Criminal Procedure",
"Rule 35. Correcting or Reducing a Sentence",
"“...",
"(b) Reducing a Sentence for Substantial Assistance.",
"(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.",
"(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:",
"(A) information not known to the defendant until one year or more after sentencing;",
"(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or",
"(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.",
"(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s pre-sentence assistance.",
"(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.",
"(c) ‘Sentencing’ Defined. As used in this rule, “sentencing” means the oral announcement of the sentence.”",
"United States Code, Title 18 - Crimes and Criminal Procedure",
"§ 3582. Imposition of a sentence of imprisonment",
"“...",
"(c) MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT",
"The court may not modify a term of imprisonment once it has been imposed except that",
"(1) in any case",
"(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that",
"(i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and",
"(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure;",
"...”",
"80. The aforementioned Article 3582 (c)(1)(A) is relied upon by the Federal Bureau of Prisons in cases of particularly exceptional or pressing circumstances which could not reasonably have been foreseen by the court at the time of determination of sentence. It is primarily a case of sentence reduction on humanitarian grounds.",
"81. Furthermore, Article 2 (II) of the US Constitution empowers the President to commute or reduce a sentence or grant a pardon in cases of conviction for a Federal offence.",
"82. The Constitution does not restrict the President’s power to grant or refuse executive clemency, but the Pardon Attorney operating with the Department of Justice prepares a recommendation to the President for every application for a pardon, and is required to consider the applications in accordance with the guidelines set out in Title 28 of the Code of Federal Regulations. This Code states that persons requesting a pardon or sentence commutation must wait five years after their conviction to be eligible for a pardon. They must fill out and sign an application form, which must be addressed to the President and submitted to the Pardon Attorney. Applicants must state their reasons for requesting a pardon and provide detailed information, and also references. On receipt of the application the Pardon Attorney must carry out an investigation and decide whether the application for a pardon should be accepted by the President.",
"83. The President’s decision is final and not open to appeal. The prisoner must wait a minimum of two years from the date of the refusal before submitting a fresh application.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE APPLICANT’S EXTRADITION",
"844. According to the applicant, the Belgian authorities’ decision to hand him over to the United States was in breach of Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Admissibility",
"85. In their additional observations on Article 34 of the Convention as submitted to the Court on 8 November 2013, the Government raised an objection as to inadmissibility based on non-exhaustion of domestic remedies. They contended that the application had been manifestly premature because it had been lodged on 23 December 2009, before completion of the administrative phase of the response to the request for extradition. According to the Government, the applicant should have lodged his application on completion of this phase, that is to say after the dismissal of his application to the Conseil d’Etat for judicial review of the ministerial decree on his extradition.",
"86. The applicant submitted that the application had been lodged within six months of the 24 June 2009 judgment of the Court of Cassation, which had closed the judicial phase of enforcement of the US arrest warrant. At that stage in the extradition procedure the decision was a final one from which no appeal lay. The phase referred to by the Government was separate from the judicial enforcement proceedings, being an administrative phase which was open to appeal before the Conseil d’Etat and which, in the present case, ended with the Conseil d’Etat judgment of 23 September 2013.",
"87. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014).",
"88. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as regards complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and the references cited therein).",
"89. The Court also reiterates that the assessment of an applicant’s obligation to exhaust domestic remedies is normally carried out with reference to the date on which the application was lodged with it (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)).",
"90. In the instant case the Court notes that in his application bringing the case before the Court, the applicant complained of the judgment delivered on 24 June 2009 by the Court of Cassation dismissing his appeal against the judgment of the Court of Appeal allowing judicial enforcement of the arrest warrant issued against him by the US courts. This was a final decision in that it was not open to appeal.",
"91. The Court agrees that the situation is peculiar in that, during the judicial enforcement phase, the judicial courts do not decide on the extradition itself, which is a matter for the executive under the supervision of the Conseil d’Etat. This does not, however, mean that the decisions taken during the judicial enforcement phase cannot give rise to complaints under the Convention. Thus the applicant argued before the Court of Cassation that the enforcement of the arrest warrant which the USA had issued against him was problematical from the angle of Article 3 of the Convention (see paragraph 20 above). The applicant subsequently presented the same arguments to the Court.",
"92. The Court considers these factors sufficient to conclude that the application was not premature and that the objection as to non-exhaustion of the domestic remedies should be rejected. As a subsidiary consideration, it notes that in any case the final stages of the two phases of the extradition proceedings have meanwhile been completed before the Court decision on the admissibility of the application.",
"93. Moreover, the Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a) The applicant",
"94. The applicant complained that his extradition to the United States of America exposed him to treatment incompatible with Article 3 of the Convention. He contended that offences A and B, on the basis of which his extradition had been granted, carried a maximum life prison sentence which was irreducible de facto, and that if he were convicted he would have no prospect of ever being released.",
"95. The applicant deduced the de facto irreducibility of the life sentence from the factual data set out in the diplomatic notes of 11 November 2009 and 10 August 2010. He pointed out that the US authorities had referred to only one instance of sentence commutation in connection with serious offences relating to national security, and stated that they had no knowledge of any Presidential pardon or sentence commutation in cases of conviction for a terrorist offence such as those of which the applicant was accused. In this connection, the example of President Clinton’s executive clemency in 1999 was not relevant. This example should be seen in its context, which had nothing in common with the situation since the launch, after 11 September 2001, of a veritable war on so-called “Islam-inspired” terrorism; this was the context in which the applicant was being prosecuted.",
"96. The applicant also considered that the sources used by the Government to demonstrate the contrary should be treated with caution. The Government had failed to point out that at the time of publication of the studies cited, the Human Rights First NGO had been headed by an individual who had since taken up office in the US executive. The applicant also questioned the quality of the information supplied. He found it very strange that the problem of the conditions of detention of persons prosecuted for terrorism should be completely disregarded despite the fact that this issue had been central to the Court’s concerns in the aforementioned case of Babar Ahmad and Others. In fact, the CagePrisoners NGO, which supported Muslim prisoners held by the US on terrorism charges, had conducted an investigation which showed that such prisoners suffered very strict conditions of detention and a policy of discrimination in prison, were tortured in order to extract confessions, and were sentenced to disproportionate and unfair terms of imprisonment, and so on.",
"97. The applicant provided a different interpretation of the statistics cited by the Government. He pointed out that the average sentence length of 8.4 years excluded life sentences and took no account of the period of detention served by sentenced persons who were either released at the time of trial or placed on probation. Nor did these studies cover persons who had been arrested during the reference period but had not yet been tried. Furthermore, the US Department of Justice produced different figures: of the 403 persons already tried between 11 September 2001 and 18 March 2010, thirty-one had not yet been convicted, twelve had been given life sentences and five had been sentenced to sixty or more years’ imprisonment. The applicant cited the case of Richard Reid, whose name had been mentioned on several occasions in the criminal file which had led to the applicant’s conviction in Belgium, as well as during the extradition proceedings. Richard Reid had been sentenced in 2003 to life imprisonment on the same charge B as the applicant, for planning to destroy an aircraft during flight by means of explosives hidden in his shoes.",
"98. The applicant contended that his case was incomparable to that of the applicants in the aforementioned case of Babar Ahmad and Others because he had already been sentenced by the Belgian courts to the maximum penalty applicable in Belgium at the time of the facts charged and that he had not benefited from any mitigating circumstances.",
"99. Lastly the applicant argued that his only “hope of being released” lay in the prospects for the success, which were de facto non-existent “post-9/11”, of a request for a Presidential pardon or sentence commutation. This possibility, which lay in the hands of the executive without judicial supervision, not only bore no resemblance to a guarantee but was also totally non-juridical. It was subject to changing public opinion and was based on no predefined minimum criteria. It was therefore diametrically opposed to the requirements of coherency and foreseeability established in the aforementioned Vinter and Others judgment.",
"b) The Government",
"100. As a preliminary point, the Government argued that in line with the Court’s approach in the aforementioned cases of Harkins and Edwards and Babar Ahmad and Others, the life-sentence issue had to be analysed against the background of an extradition, and it had to borne in mind that the applicant’s extradition had been requested solely for the purposes of prosecution before the US courts and that there was no certainty that the applicant would be found guilty of the charges against him.",
"101. Regard should also be had to the fact that even if the constituent elements of the offences set out in charges A and B (see paragraph 13 above), for which the applicant was liable to life imprisonment (see paragraph 15 above) were all present, the US authorities had provided assurances that such a sentence was discretionary and that the court dealing with the case was not obliged to impose the maximum penalty provided for by law. Furthermore, were a life sentence to be imposed, there were direct and indirect legal remedies against the conviction and the sentence, a possibility of requesting review of the conviction and means of reducing sentence. All this was in addition to the assurance provided by the US authorities that the applicant would be tried in the ordinary courts, that he would only be held in a civilian prison and that he was in no way exposed to the death penalty.",
"102. The Government submitted that there was no reason to doubt the assurances provided. Belgium had been bound by an extradition treaty with the United States since 1901 and had never experienced any cases of non-compliance by the United States with the obligations deriving from the diplomatic safeguards given.",
"103. At all events, according to the Government, any real risk of the applicant being subsequently sentenced to the maximum penalty laid down for the offences set out in charges A and B was limited, as attested by the data set out in the Human Rights First reports backed up by the statistics provided by the US Department of Justice on convictions for acts of terrorism (paragraph 29 above). Those publications showed clearly that all the cases of life sentences concerned much more serious offences than those with which the applicant had been charged. The example of Richard Reid cited by the applicant (see paragraph 97 above) fell into the same category because Reid had been arrested while he was engaged in carrying out his plan. In other cases individuals suspected of offences such as those set out in charges A and/or B applicable to the applicant had not been sentenced to the maximum penalty provided for by US law.",
"104. As to whether the life sentence to which the applicant was liable for the offences set out in charges A and B passed the “test” set by the Court in the aforementioned case of Kafkaris and was reducible de jure and de facto, the Government invited the Court to adopt the same reasoning as in the aforementioned cases of Babar Ahmad and Others and Harkins and Edwards.",
"105. Assuming that the question of proportionality was relevant in the present case despite the fact that the applicant’s extradition had only been requested for the purpose of his prosecution, it should first of all be pointed out that in view of the gravity of the charges against him the penalties which he risked incurring were not manifestly disproportionate. The only question arising was therefore whether, notwithstanding the fact that he was liable to a life sentence, he could be regarded as having any prospect of being released.",
"106. The first fact to be noted, one which had been acknowledged by the applicant before the Conseil d’Etat, was that in view of the legal possibilities of obtaining a commutation of sentence or a Presidential pardon in the United States as described in the diplomatic note of 10 August 2010, life sentences were reducible de jure.",
"107. Secondly, it was established that sentence reductions and Presidential pardons had indeed been granted on several occasions and that life sentences were also reducible de facto. The Government provided supporting statistics on the pardons and sentence reductions which had been granted since 1990, consultable on the US website of the Department of Justice. They submitted that all US Presidents had hitherto used their right to commute sentences and/or grant pardons. President George Bush had done so in 2008 in the case of a person who had been sentenced to life imprisonment without parole for drug trafficking. These measures had also been implemented for persons convicted of offences against national security, as in the case of the FALN members cited by the US authorities in their diplomatic note of 10 August 2010.",
"108. No other conclusion could be drawn from the fact that there had been no sentence reductions or Presidential pardons for individuals sentenced to life imprisonment for al-Qaeda-linked acts of terrorism. The same reasoning should be used as in Iorgov v. Bulgaria (no. 2) (no. 36295/02, 2 September 2010): since the sentences imposed by the US authorities for such acts had all been recent, the persons thus sentenced could not yet have requested a Presidential pardon. They were not eligible for such a measure until they had served part of their prison sentences. The lack of pardons for such offences could not therefore support the conclusion that the pardon system did not work. Supposing that he was convicted, when he had served part of his sentence the applicant could, at the appropriate time and in accordance with the provisions of US law, apply for a Presidential pardon or a sentence commutation. Several factors, or changes in the situation, might militate in favour of or against such a measure, and it was impossible at the current stage to speculate whether or when the applicant could be released.",
"109. The Government also contended that the US system met the requirements specified by the Court in its aforementioned Vinter and Others judgment, which, they stressed, had concerned mandatory life sentences, and not discretionary ones as in the present case. A Presidential pardon was a known measure which was therefore foreseeable under the legislation, and an appropriate measure which was broad enough to provide certain legal prospects of release to prisoners serving whole-life sentences. That having been said, it was also important to note that the US system was different from that of the United Kingdom. Unlike in the UK, a person convicted in the United States could apply for a pardon or a commutation of his sentence at any time. The duration or nature of the sentence was irrelevant. A convicted person could submit an unlimited number of applications. The procedure required prior assessment by the Pardon Attorney, who operated within the Department of Justice, and who provided a non-binding opinion to the President taking account of the circumstances of the offence and the applicant’s character.",
"2. The Court’s assessment",
"110. The alleged violation consisted in having exposed the applicant, by extraditing him to the United States, to the risk of an irreducible life sentence without parole, in breach of the requirements of Article 3 of the Convention.",
"111. The Court will begin its examination of the matter before it with a number of general considerations on the state of its case-law on Article 3, dealing first of all with life sentences and then going on to the removal of aliens from the national territory. It will subsequently address the issue of the application of the principles on life sentences to the specific situation of the applicant, who has been extradited.",
"a) Principles applicable to life imprisonment",
"112. It is well-established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, §§ 88 and 89). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97).",
"113. This latter principle gives rise to two further ones. First of all, Article 3 does not prevent life prison sentences from being, in practice, served in their entirety. What Article 3 does prohibit is that a life sentence should be irreducible de jure and de facto. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the Court seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98, and references cited therein).",
"114. Until recently the Court had held that the sole possibility of adjustment of a life sentence was sufficient to fulfil the requirements of Article 3. It had thus ruled that the possibility of early release, even where such a decision was only at the discretion of the Head of State (see Kafkaris, cited above, § 103) or the hope of Presidential clemency in the form of either a pardon or a commutation of sentence (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 51 to 60, 2 September 2010) was sufficient to establish such a possibility.",
"115. In Vinter and Others, cited above, the Court re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible. It considered this issue in the light of the prevention and rehabilitation aims of the penalty (§§ 112 to 118). With reference to a principle already set out in the Kafkaris judgment, the Court pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds (§ 119). Furthermore, the Court explained for the first time that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought. Consequently, where domestic law did not provide any mechanism or possibility for review of a whole-life sentence, the incompatibility with Article 3 on this ground already arose at the moment of the imposition of the whole-life sentence and not at a later stage of incarceration (§ 122).",
"b) Principles applicable to removal of aliens",
"116. Under well-established case-law, protection against the treatment prohibited under Article 3 is absolute, and as a result the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the State in question under the Convention, where there are serious grounds to believe that if the person is extradited to the requesting country he would run the real risk of being subjected to treatment contrary to Article 3 (see Soering v. United Kingdom, 7 July 1989, § 88, Series A no. 161). The fact that the ill-treatment is inflicted by a non-Convention State is beside the point (see Saadi, cited above, § 138). In such cases Article 3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State. The Court draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition (see Harkins and Edwards, cited above, § 120, and Babar Ahmad and Others, cited above, § 168).",
"117. Moreover, the Court reiterates that it is acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights. It is therefore careful not to underestimate the extent of the danger represented by terrorism and the threat it poses to society (see Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012, and the references cited therein). It considers it legitimate, in the face of such a threat, for Contracting States to take a firm stand against those who contribute to terrorist acts ( ibid ). Lastly, the Court does not lose sight of the fundamental aim of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension (see Soering, cited above, § 86).",
"118. However, none of these factors have any effect on the absolute nature of Article 3. As the Court has affirmed on several occasions, this rule brooks no exception. The principle has therefore had to be reaffirmed on many occasions since Chahal v. the United Kingdom (15 November 1996, §§ 80 et 81, Reports of Judgments and Decisions 1996-V), to the effect that it is not possible to make the activities of the individual in question, however undesirable or dangerous, a material consideration or to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of the State is engaged under Article 3 (see Saadi, cited above, § 138; see also Daoudi v. France, no. 19576/08, § 64, 3 December 2009, and M. S. v. Belgium, no. 50012/08, §§ 126 and 127, 31 January 2012).",
"119. In order to establish such responsibility, the Court must inevitably assess the situation in the requesting country in terms of the requirements of Article 3. This does not, however, involve making the Convention an instrument governing the actions of States not Parties to it or requiring Contracting States to impose standards on such States (see Soering, cited above, § 86, and Al-Skeini and Others v. United Kingdom [GC], no. 55721/07, § 141, ECHR 2011). In so far as any liability under the Convention is or may be incurred, it is incurred by the extraditing Contracting State by reason of its having taken action which has the direct consequence of exposing an individual to proscribed ill-treatment (see Soering, cited above, § 91; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Saadi, cited above, § 126).",
"120. If the extradition is likely to have consequences in the requesting country which are incompatible with Article 3 of the Convention, the Contracting State must not extradite. It is a matter of ensuring the effectiveness of the safeguard provided by Article 3 in view of the serious and irreparable nature of the alleged suffering risked (see Soering, cited above, § 90).",
"c) Application of the principles to the present case",
"121. The Court notes that the applicant has been extradited to the United States, where he is being prosecuted on charges relating to al-Qaeda-inspired acts of terrorism, and that if he is found guilty and convicted of some of these offences he is liable to a maximum discretionary whole-life prison sentence. The sentence is discretionary in that the judge can impose a lighter penalty, with the option of imposing a fixed-term sentence.",
"122. The question to be addressed by the Court is whether, in view of the risk incurred, the applicant’s extradition was in violation of Article 3 of the Convention. The Court has several times in the past dealt with the issue of the risk of a whole-life sentence. In every case it has attempted to determine, on the basis of the diplomatic assurances provided by the requesting country, whether the extradition of the persons concerned did indeed expose them to such a risk, and if so, whether the life sentence could be reduced so that they had a hope of being released (see, among other authorities, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; Olaechea Cahuas v. Spain, no. 24668/03, ECHR 2006-X; and Schuchter v. Italy, (dec.), no. 68476/10, 11 October 2011).",
"123. This issue arose once again in the cases of Harkins and Edwards and Babar Ahmad and Others, cited above. Most of the applicants in these cases had been threatened with extradition from the United Kingdom to the United States, where they faced prosecution for offences relating to al-Qaeda-inspired acts of terrorism and, in the event of conviction, were liable to mandatory or discretionary life sentences.",
"124. Drawing on its case-law on life imprisonment in the domestic system as set out in its Kafkaris judgment (see paragraphs 112 to 114 above), the Court held that, in the absence of gross disproportionality, a discretionary life sentence without parole would only raise an issue under Article 3 where it could be shown that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds, and that the sentence was irreducible de facto and de jure (see Harkins and Edwards, cited above, § 135, and Babar Ahmad and Others, cited above, §§ 241 and 242).",
"125. The Court subsequently held that the applicants, who had not been convicted, still less begun serving any sentence imposed as a result of such conviction, had not shown that in the event of extradition their incarceration in the United States would not serve any legitimate penological purpose. It deemed it still less certain that if that point were ever reached, the US authorities would refuse to avail themselves of the available mechanisms to reduce their sentences (see Harkins and Edwards, cited above, §§ 140 and 142, and Babar Ahmad and Others, cited above, §§ 130, 131 and 243). The Court concluded that the risk of imposition of life sentences was no obstacle to the applicants’ extradition.",
"126. In the present case the Court notes that before his extradition the applicant had been in a situation very similar to that of the applicants in the case of Babar Ahmad and Others.",
"127. In line with the approach adopted in that case, the Court considers that in view of the gravity of the terrorist offences with which the applicant is charged and the fact that the sentence can only be imposed after the trial court has taken into consideration all relevant mitigating and aggravating factors, a discretionary life sentence would not be grossly disproportionate (see Babar Ahmad and Others, cited above, § 243).",
"128. The respondent Government essentially argued that in order to determine the conformity of this sentence with Article 3 of the Convention in the context of extradition, the “test” which the Court applied in the cases of Harkins and Edwards and Babar Ahmad and Others must also apply here and that there was no justification in the instant case for discarding this “test” on the basis of the more recent case-law established by the Vinter and Others judgment.",
"129. According to the Government, regard must be had to the fact that the applicant was extradited for the sole purpose of prosecution, that he has not yet been convicted and that it is therefore impossible to determine, before conviction, whether the point at which his incarceration would no longer serve any penological purpose would ever come, or to speculate on the manner in which, at that particular moment, the US authorities would implement the available mechanisms. In the Government’s view, the fact that the Court held in Vinter and Others (§ 122) that the starting time for determining conformity with Article 3 of the Convention was the date of imposition of the life sentence was irrelevant to the present case because the applicant has not yet been convicted.",
"130. The Court considers that it must reject this argument because it in effect obviates the preventive aim of Article 3 of the Convention in matters of removal of aliens, which is to prevent the persons concerned from actually suffering a penalty or treatment of a level of severity proscribed by this provision. The Court reiterates that Article 3 requires Contracting States to prevent the infliction of such treatment or the implementation of such a penalty (see paragraph 120 above). Furthermore, the Court holds, as it has done in all extradition cases since Soering, that it must assess the risk incurred by the applicant under Article 3 ex ante – that is to say, in the present case, before his possible conviction in the United States – and not ex post facto, as suggested by the Government.",
"131. The Court’s task is to ensure that the applicant’s extradition was compatible with Article 3 and therefore to consider whether the discretionary life sentence to which the applicant is liable fulfils the criteria which it has established in its case-law on this matter (see paragraphs 112 to 115 above).",
"132. In this connection, the Government affirmed that the US system fulfilled both the requirements set out by the Court in its Kafkaris judgment and the new criteria laid down by the Court in Vinter and Others. They submitted that the life sentence which the applicant risked incurring was reducible de jure because he would be able, under the US Constitution, to apply for a Presidential pardon or a commutation of sentence. He could submit such an application at any time after the conviction has become final, and as many times as he wished. His request would be considered by the Pardon Attorney, who would issue a non-binding opinion to the President. The grounds on which the applicant could obtain a pardon were, in the Government’s view, sufficiently broad, and in any case broader than those used in the United Kingdom, as assessed in the Vinter and Others judgment. The discretionary life sentence was also reducible de facto. The Government referred to the diplomatic assurances and statistics provided by the US authorities showing that all the US Presidents had used their powers of pardon and/or commutation of sentence and that they had previously granted such facilities to persons sentenced to life imprisonment or imprisoned for offences relating to national security.",
"133. The applicant submitted that his only “hope of release” lay in the prospects of success, which were de facto non-existent in the aftermath of the 11 September 2001 terrorist attacks, of an application for a Presidential pardon or commutation of sentence. This possibility, which was completely at the discretion of the executive, was no guarantee and was based on no predefined criterion. That being the case, the discretionary life sentence which he might incur could not be considered reducible de jure and de facto within the meaning of the Court’s Vinter and Others judgment.",
"134. The Court understands the US legal provisions referred to in the diplomatic note of 10 August 2010 provided by the US authorities as not providing for possible release on parole in the event of a life sentence, whether mandatory or discretionary, but infers that there are several possibilities for reducing such a sentence. The sentence can be reduced on the basis of substantial cooperation on the part of the prisoner in the investigation of his case and the prosecution of one or more third persons. It can also be reduced for compelling humanitarian reasons. Furthermore, prisoners may apply for commutation of their sentence or for a Presidential pardon under the US Constitution (see paragraphs 27 and 79 to 83 above).",
"135. The Court further notes that despite the express requirement stipulated on 10 June 2010 by the Indictments Division of the Brussels Court of Appeal in its opinion on the applicant’s extradition (see paragraph 26 above), the US authorities have at no point provided an assurance that the applicant would be spared a life sentence or that, should such a sentence be imposed, it would be accompanied by a reduction or commutation of sentence (see, by contrast, Olaechea Cahuas, cited above, § 43, and Rushing v. Netherlands (dec.), no. 3325/10, § 26, 27 November 2012). It therefore does not have to ascertain, in this case, whether the assurances provided by the requesting authorities are sufficient, in terms of their content, to guarantee that the applicant is protected against the risk of a penalty incompatible with Article 3 of the Convention. It considers that in any case the US authorities’ explanations concerning sentencing and their references to the applicable provisions of US legislation on sentence reduction and Presidential pardons are very general and vague and cannot be deemed sufficiently precise (see Othman (Abu Qatada), cited above, § 189).",
"136. The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with Article 3 of the Convention.",
"137. No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a “prospect of release” within the meaning of the Kafkaris judgment – even if doubts might be expressed as to the reality of such a prospect in practice – none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above).",
"138. Under these conditions, the Court considers that the life sentence liable to be imposed on the applicant cannot be described as reducible for the purposes of Article 3 of the Convention within the meaning of the Vinter and Others judgment. By exposing the applicant to the risk of treatment contrary to this provision the Government engaged the respondent State’s responsibility under the Convention.",
"139. The Court accordingly concludes that the applicant’s extradition to the United States of America amounted to a violation of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"140. The applicant complained that his extradition to the United States had been in breach of the interim measure indicated by the Court in accordance with Rule 39 of its Rules of Court, and that the extradition had therefore amounted to a violation of his right of individual petition. He relied on Article 34 of the Convention, which reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"Rule 39 of the Rules of Court provides as follows:",
"“1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.",
"2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.",
"3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.”",
"A. The parties’ submissions",
"141. The applicant submitted that his extradition in contravention of the interim measure indicated by the Court had been decided without any regard to legal considerations and had stemmed from a deliberate political decision based on fallacious reasons. The Government provided no evidence to substantiate the applicant’s so-called dangerousness; moreover, the applicant had not been the subject of any investigation consequent upon any attempted escape or acts of proselytising; on the contrary, all the opinions of the governors of the prisons in which the applicant had been held mentioned his irreproachable behaviour. The only reason for the Belgian Government’s action had been a political determination to hand the applicant over to the US authorities as quickly as possible and to avoid a Court judgment finding a violation of Article 3 in the event of extradition. This determination had in fact long been in evidence, as could be seen by the repeated requests for the lifting of the interim measure while the appeal pending before the Conseil d’Etat was not of suspensive effect vis-à-vis the decision to extradite. In so doing the Government had irreversibly infringed the applicant’s right of individual petition, as he now found it legally impossible, because of his extradition, and materially impossible, because of his solitary confinement in a prison virtually cut off from the outside world, to usefully pursue his application to the Court.",
"142. The Government first of all pointed out that according to the Court’s case-law, particularly the Mamatkulov and Askarov judgment (cited above, § 108), the purpose of an interim measure was to facilitate the exercise of the right of individual petition secured under Article 34 of the Convention, and therefore to preserve the subject of the application when the Court considered that there was a risk of the applicant suffering irreparable damage. In the instant case, however, the Court should have deduced from the inadmissible nature of the request (see paragraph 39 above) that the interim measure lacked any real justification.",
"143. Secondly, the Government expounded the reasons for which it had extradited the applicant on 3 October 2013. The extradition had been decided in the wake of the judgment delivered by the Conseil d’Etat on 23 September 2013 explaining in detail, and with full knowledge of the Court’s case-law, why the applicant’s complaints of a violation of the Convention were unfounded. Both the Minister and the Conseil d’Etat had been assured, by virtue of the guarantees provided by the US authorities, that the applicant would not be exposed to treatment contrary to Article 3 of the Convention. Furthermore, the applicant had posed a threat to law and order in Belgium because of his proselytising in prison, his contacts with extremist jihadist circles and his attempts to escape, and the longer he remained in prison the more likely it had become that the investigating judicial bodies would order his release. The Government had not wished to run the risk of being unable to honour its commitment to hand over the applicant to the United States because he had escaped or been released.",
"B. The Court’s assessment",
"144. The Court recently reiterated, in the case of Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211 to 213, ECHR 2013 (extracts), the crucial importance of and the vital role played by interim measures under the Convention system. The Court now refers to this judgment.",
"145. Considering the present case in the light of these principles, the Court reiterates that on 6 December 2011 it acceded to the applicant’s request to apply Rule 39 of the Rules of Court, and indicated that in the interests of the parties and the smooth running of the proceedings before it, the Belgian Government should not extradite the applicant to the United States. It also reiterates that it thrice refused to accede to the Government’s request to lift the interim measure and explained on several occasions – the last time being on 18 June 2013 – that the said measure had been indicated until the conclusion of the proceedings before it. The Government had therefore been fully aware of the scope of the measure.",
"146. On 3 October 2013 Belgium nevertheless extradited the applicant to the United States (see paragraph 62 above).",
"147. The Government suggested that the interim measure had been unjustified because it was “premature” and that the Court should have reviewed its justification after an assessment of admissibility.",
"148. The Court observes that it indicated to the Belgian Government that it should stay the extradition on the day of notification of the ministerial decree granting the applicant’s extradition (see paragraph 39 above). Although at that time the applicant could have brought an application for judicial review of this decree before the Conseil d’Etat, such action lacked any suspensive effect vis-à-vis extradition and therefore did not fulfil the Court’s requirements in terms of effectiveness under Article 13 of the Convention (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 83, ECHR 2002 ‑ I; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012). Thus, in accordance with case-law, the fact that this remedy had not been exhausted was immaterial.",
"149. The Government acknowledged that the Belgian authorities had acted in breach of the interim measure indicated by the Court. They considered, however, that this attitude had been justified in that it had been ascertained that the applicant would not be exposed to treatment contrary to the Convention and because the utmost had to be done to ensure his handover to the US authorities owing to the risk of his escape or a judicial decision to release him. The proceedings before the Court had jeopardised Belgium’s commitments to the United States, and extending them had increased the risk of the applicant evading the Belgian authorities.",
"150. The Court notes that the respondent State deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court. The extradition has, at the very least, rendered any finding of a violation of the Convention otiose, as the applicant has been removed to a country which is not a Party to that instrument, where he alleged that he would be exposed to treatment contrary to the Convention.",
"151. The Court considers that none of the arguments put forward by the Belgian Government justified its non-compliance with the interim measure. Although the Government have never concealed from the Court their awkward position vis-à-vis the US authorities and their wish to have the interim measure lifted, at no point did they mention any possible attempts to explain the situation to those authorities or to find an alternative to the applicant’s detention whereby the Belgian authorities could still keep him under surveillance. Furthermore, knowing that the Court had examined all the arguments advanced by the Government’s with a view to persuading it to terminate the measure, including the diplomatic assurances provided by the US authorities, and had rejected them, it was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court.",
"152. The Court also reiterates that the effective exercise of the right of petition requires it to be able, throughout the proceedings before it, to examine the application in accordance with its usual procedure.",
"153. The fact is that in the instant case the applicant is being held in solitary confinement in a prison in the United States, and, as ascertained by his lawyer, is enjoying very little contact with the outside world (see paragraphs 64 to 67 above). He does not seem to have been able to have direct contact with his representative before the Court. These factors are enough for the Court to consider that the Government’s actions have made it more difficult for the applicant to exercise his right of petition and that the exercise of the rights secured under Article 34 of the Convention have therefore been impeded (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 147, 27 March 2008, and Toumi v. Italy, no. 25716/09, § 76, 5 April 2011).",
"154. In the light of the information in its possession, the Court concludes that by deliberately failing to comply with the interim measure indicated in pursuance of Rule 39 of the Rules of Court, the respondent State failed to honour the obligations incumbent on it under Article 34 of the Convention.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"A. Other complaint of a violation of Article 3",
"155. The applicant alleged in substance that his conditions of detention in Belgium had constituted treatment contrary to Article 3 of the Convention. He complained of the constant transfers from one prison to another, the conditions under which the transfers had taken place and the special security measures applied to him during his incarceration. He backed up this complaint with several reports drawn up by psychiatrists pointing to the negative effects of such a situation on his mental health.",
"156. The Government pointed out that the applicant had not brought any judicial action complaining of his conditions of detention and the transfers.",
"157. In the absence of any proceedings before the domestic courts concerning this complaint, the Court considers that it must be dismissed for non-exhaustion of domestic remedies.",
"158. Consequently, this part of the application is inadmissible within the meaning of Article 35 § 1 of the Convention and must be dismissed in accordance with Article 35 § 4.",
"B. Complaint of a violation of Article 6 § 1 of the Convention",
"159. The applicant submitted that he had not had the benefit of a fair trial or the safeguards which should accompany criminal proceedings during the judicial procedure for enforcement of the US arrest warrant. He relied on Article 6 § 1 of the Convention, which provides that:",
"“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”",
"160. The Court reiterates that extradition proceedings do not involve determining an applicant’s civil rights and obligations and do not relate to the merits of any criminal charge against him or her within the meaning of Article 6 § 1 of the Convention (see Raf v. Spain (dec.), no. 53652/00, 21 November 2000; Peñafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I; Cipriani v. Italy (dec.), no. 22142/07, 30 March 2010; and Schuchter, decision cited above). Therefore Article 6 § 1 of the Convention is inapplicable to the impugned extradition proceedings.",
"161. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4.",
"C. Complaint of a violation of Article 4 of Protocol No. 7",
"162. In his initial application, the applicant alleged in substance that his extradition violated Article 4 of Protocol No. 7, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"Protocol No. 7 came into force in respect of Belgium on 1 July 2012.",
"163. The applicant invited the Court to find that the arrest warrant issued on 16 November 2007 by the District Court of the District of Columbia could not have been declared enforceable without violating the ne bis in idem principle. He submitted that an analysis of the criminal file and the decisions given disclosed that all the “overt acts” listed by the US authorities in support of the first charge and repeated in support of the other charges had been mentioned and/or detailed during the investigation conducted in Belgium.",
"164. Even supposing that this part of the application is compatible ratione temporis with the Convention, the Court reiterates its case-law to the effect that Article 4 of Protocol No. 7 does not secure the ne bis in idem principle in respect of prosecutions and convictions in different States (see, among other authorities, Gestra v. Italy (dec.), no. 21072/92, 16 January 1995; Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001; Da Luz Domingues Ferreira v. Belgium (dec.), no. 50049/99, 6 July 2006; and Sarria v. Poland (dec.), no. 45618/09, 18 December 2012).",
"165. At all events, the ministerial decree granting the applicant’s extradition explained that US law drew a clear distinction between the actual offences for which extradition was requested and “overt acts”, which were mere factors presented in support of the charges (see paragraph 31 above). The Conseil d’Etat noted that comparison of all the “overt acts” with the Belgian charges showed that “the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities” (see paragraph 37 above). The Court sees nothing arbitrary or unreasonable in these interpretations and conclusions.",
"166. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, or is at least manifestly ill-founded within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4.",
"D. Complaint of a violation of Article 8 of the Convention",
"167. Lastly, the applicant complained that his extradition to the US constituted an interference with his private and family life in Belgium, in breach of Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"168. The Court notes that the applicant’s extradition raises no issues regarding the criterion that interference must be in accordance with the law and pursue a legitimate aim.",
"169. As to the necessity of the measure, the Court reiterates that it is only in exceptional circumstances that an applicant’s private or family life in a Contracting State can outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, § 29, 26 January 2010, and Babar Ahmad and Others, cited above, § 252).",
"170. In the present case the applicant submitted that he had been separated from his partner, who lived in Belgium and whom he wished to marry. In the Court’s view, that does not constitute an exceptional circumstance preventing the applicant’s extradition. Despite the great geographical distance between Belgium and the United States and the resultant limitation on contacts between the applicant and his partner should he be convicted and remain in prison, the Court must take into account the gravity of the offences for which the applicant is being prosecuted in the United States. It considers that the public interest in extraditing the applicant may be seen as weighing more heavily in terms of all the interests involved. For this reason, and in view of Belgium’s interest in honouring its commitments to the United States – without prejudice to its obligation to comply with the other provisions of the Convention, particularly Articles 3 and 34 – the Court considers that the applicant’s extradition was not in breach of Article 8 of the Convention.",
"171. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and must be dismissed in accordance with Article 35 § 4.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"172. Article 41 of the Convention provides as follows:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"173. The applicant claimed EUR 1,000,000 in respect of the damage which he had suffered owing to his extradition in breach of the Convention. He stated that this sum covered both pecuniary and non-pecuniary damage. Where pecuniary damage was concerned, he explained that since he was incarcerated in the United States he needed substantial financial resources in order to pay for the services of a legal team capable of defending him.",
"174. The Government considered this amount grossly excessive, observing that care had to be taken, in the applicant’s case, to ensure that any major compensatory sums did not lead to financing the international terrorism in which he was still involved owing to his numerous contacts with radical Islamist movements.",
"175. In the absence of evidence enabling it to assess whether the alleged pecuniary damage has been proved and to calculate the sums claimed to compensate for such damage, the Court dismisses the applicant’s claims in this respect.",
"176. On the other hand the Court considers that the applicant has suffered non-pecuniary damage owing to his extradition to the United States. Ruling on an equitable basis in accordance with Article 41 of the Convention, it awards him EUR 60,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"177. The applicant also claimed reimbursement of the costs and expenses incurred for his defence before the Belgian courts and before the Court to a total of EUR 51,350. A first bill of costs mentions a sum of EUR 23,900 for the proceedings before the domestic courts and EUR 7,400 for the applicant’s defence before the Court, calculated on the basis of an hourly rate of EUR 100. The amounts awarded in respect of legal assistance, that is to say a total of EUR 9,550, must be deducted from those sums. The remaining costs were incurred by mailing and typing expenses. A second bill of costs was drawn up for the domestic proceedings conducted on the occasion of the applicant’s extradition and the continuation of proceedings before the Court, to a total of EUR 15,990.",
"178. According to the Court’s well-established case-law, an applicant is entitled to reimbursement of costs and expenses under Article 41 only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, they are only recoverable to the extent that they relate to the violation found (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, ECHR 2011, and Creangă v. Romania [GC], no. 29226/03, § 130, 23 February 2012). In this connection the Court reiterates that the applicant’s claims were only partially successful before it.",
"179. Making its own estimate on the basis of the information available, the Court considers it reasonable to award the applicant EUR 30,000 to cover all costs and expenses.",
"C. Default interest",
"180. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
227 | Lucky Dev v. Sweden | 27 November 2014 | In 2004 the tax authorities instituted proceedings against the applicant in respect of her income tax and VAT returns for 2002 and ordered her to pay additional tax and surcharges. The applicant was also prosecuted for bookkeeping and tax offences arising out of the same set of tax returns. Although she was convicted of the bookkeeping offence, she was acquitted of the tax offence. The tax proceedings continued for a further nine and a half months after the date her acquittal became final. The applicant complained that she had been tried and punished twice for the same offence. | The Court held that there had been a violation of Article 4 of Protocol no. 7, finding that the applicant had been tried again for a tax offence for which she had already been finally acquitted as the tax proceedings against her had not been terminated and the tax surcharges not quashed, even when criminal proceedings against her for a related tax offence had become final. | Right not to be tried or punished twice (the non bis in idem | The definition of bis | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1961 and lives in Hässelby, Sweden.",
"A. Tax proceedings",
"6. By a decision of 1 June 2004 the Tax Agency ( Skatteverket ), noting that the applicant ran two restaurants together with her husband, Mr Shibendra Dev (who also lodged an application before the Court; no. 7362/10), found that they should each declare half of the proceeds and the costs of that business. As the applicant, in her tax return, had not declared all her income and had, moreover, not declared it in the correct manner, the Agency revised upwards her income for 2002 (i.e. the taxation year 2003), finding her liable to pay tax on undeclared business income ( inkomst av näringsverksamhet ) amounting to 764,945 Swedish kronor (SEK; approximately 83,000 euros (EUR)). It also increased her liability to value-added tax ( mervärdesskatt; “VAT”) for 2002 by SEK 379,365 (approximately EUR 41,000). Finally, as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the business ’ s deficient accounting, the Agency ordered her to pay tax surcharges ( skattetillägg ), amounting to 40% and 20%, respectively, of the increased income tax and VAT.",
"7. Following the applicant ’ s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it.",
"8. On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court ( länsrätten ) in Stockholm and the Administrative Court of Appeal ( kammarrätten ) in Stockholm upheld the Tax Agency ’ s decision.",
"9. By a decision of 20 October 2009 the Supreme Administrative Court ( Regeringsrätten ) refused leave to appeal.",
"B. Criminal proceedings",
"10. Criminal proceedings were initiated against the applicant on 5 August 2005 in regard to the above conduct.",
"11. By a judgment of 16 December 2008 the Stockholm District Court ( tingsrätt ) convicted the applicant of an aggravated bookkeeping offence ( grovt bokföringsbrott ). She was given a suspended sentence and ordered to perform 160 hours of community service. The offence concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the public prosecutor ’ s claim that the applicant was guilty also of an aggravated tax offence ( grovt skattebrott ), the court considered that it could not be ruled out that, as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return, she had been unaware that her tax return contained false information. Thus, it had not been shown that she had intended to give incorrect information, for which reason the indictment was dismissed in this respect.",
"12. The applicant did not appeal against the District Court ’ s judgment, which consequently acquired legal force on 8 January 2009."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Provisions on taxes and tax surcharges",
"13. The rules on taxes and tax surcharges relevant to the present case were primarily laid down in, as far as income tax was concerned, the Tax Assessment Act ( Taxeringslagen, 1990:324) and, with respect to VAT, the Tax Payment Act ( Skattebetalningslagen, 1997:483). Both laws have since been replaced by the Tax Procedure Act ( Skatteförfarandelagen; 2011:1244).",
"14. A tax surcharge could – and still can – be imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (Chapter 5, section 1 of the Tax Assessment Act, and Chapter 15, section 1 of the Tax Payment Act) or if, following a discretionary assessment, the Tax Agency decides not to rely on the tax return (Chapter 5, section 2, and Chapter 15, section 2, respectively). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the Tax Agency cannot base its tax assessment on it or if he or she has not filed a tax return despite the obligation to do so. In certain circumstances, the tax surcharges may be exempted.",
"B. Criminal law provisions",
"1. Tax offences",
"15. A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information, thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her, is criminally liable under sections 2-4 of the Tax Offences Act ( Skattebrottslagen, 1971:69). The possible sentence ranges from a fine for a tax misdemeanour ( skatteförseelse ) to imprisonment for a maximum of six years for an aggravated tax offence. Section 5 provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so ( vårdslös skatteuppgift ) may be sentenced to a fine or a maximum of one year in prison. The term “incorrect information” in the Tax Offences Act is considered to have the same meaning as in the above provisions on tax surcharges (Government Bill 2010/11:165, p. 1110).",
"2. Bookkeeping offences",
"16. A person who intentionally or by negligence disregards bookkeeping obligations under the Accountancy Act ( Bokföringslagen, 1999:1078) by, inter alia, failing to enter business events in the books or save relevant documentation or by giving incorrect information in the books is convicted for a bookkeeping offence under Chapter 11, section 5 of the Penal Code ( Brottsbalken ) if, as a consequence thereof, the running of the business or its financial result or status cannot be assessed mainly on the basis of the books. A bookkeeping offence carries a prison sentence of no more than two years or, if the offence is of a minor character, a fine or imprisonment of up to six months. If the offence is deemed aggravated, the offender is sentenced to imprisonment between six months and four years.",
"C. Tax surcharges and tax offences and the Convention in Swedish case-law",
"17. In a judgment of 29 November 2000 the Supreme Court considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (published in Nytt juridiskt arkiv (NJA) 2000, p. 622). Having noted that, under internal Swedish law, a surcharge is not considered a criminal penalty and does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the Court ’ s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention presupposed that the initial conviction or acquittal had been delivered in accordance with the penal procedure of the State. Therefore the principle did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied. This view was confirmed in later judgments delivered by the Supreme Court.",
"18. On 17 September 2009 the Supreme Administrative Court examined the reverse situation, that is, where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence (judgment published in Regeringsrättens årsbok (RÅ) 2009, ref. 94). In assessing whether there was a violation of the prohibition on double punishment under Article 4 of Protocol No. 7 to the Convention, the court referred to the fact that the relevant Swedish provisions aimed at ensuring that the combined sanctions – criminal conviction and imposition of tax surcharges – were in reasonable proportion to the conduct for which the individual had been found liable. It further noted that the Swedish legal system contained the special feature of separate general courts and administrative courts. In the court ’ s opinion, Article 4 of Protocol No. 7 had to be interpreted in the light of such special features in the national legal systems. While acknowledging that the European Court ’ s recent judgments in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, judgment of 10 February 2009, ECHR 2009) and Ruotsalainen v. Finland (no. 13079/03, judgment of 16 June 2009) suggested a change in the Strasbourg case-law, the Supreme Administrative Court noted that they did not relate to the Swedish legal system and concluded that this system, allowing for both a conviction for a tax offence and an imposition of tax surcharges, was in conformity with the Convention.",
"19. By a decision of 31 March 2010 the Supreme Court examined the issue anew (NJA 2010, p. 168). It found again, by a majority of 3 votes to 2, that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7. The court considered that, following Sergey Zolotukhin v. Russia (cited above) and later judgments concerning the issue, it could be excluded that the European Court would find that proceedings concerning sanctions for the submission of identical statements would involve different “offences” because of the differing subjective prerequisites for the imposition of tax surcharges and the conviction for tax offences; instead, it was now clear that the question of whether two proceedings concerned the same offence had to be examined on the basis of the circumstances of the case. If the later proceedings concerned identical or essentially the same facts as the earlier proceedings, it was a matter of proceedings concerning the same offence. However, the Supreme Court noted that the Strasbourg case-law left some room for several punishments for the same offence that could be decided by separate organs at different times and mentioned by way of example, inter alia, the conviction for a traffic offence and the resultant withdrawal of the offender ’ s driving licence. The Supreme Court further found that the invalidation of a Swedish system regulated by domestic law with reference to the Convention required that either the Convention itself or the European Court ’ s jurisprudence provided clear support for that conclusion and considered that neither Article 4 of Protocol No. 7 nor the jurisprudence provided such support in the matter at hand.",
"20. By a plenary decision of 11 June 2013 (NJA 2013, p. 502) the Supreme Court overturned its previous conclusions. In line with its 2010 decision, the court held that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and the relevant proceedings thus concern the same offence within the meaning of Article 4 of Protocol No. 7. However, where the court in 2010 had found that the invalidation of the Swedish system required clear support in the Convention itself or in Strasbourg case-law, the court now noted that the judgment of the European Court of Justice in the case of Åkerberg Fransson (26 February 2013, case no. C-617/10) already prohibited double proceedings and punishments with respect to VAT. As the Swedish system had thereby been partially invalidated, the legal and practical consequences of further changes were not so radical as to require the intervention of the legislature. The court also took into account that no legislative amendments had been made despite the developments in Strasbourg case-law since 2009 and that it would be inexpedient and difficult to apply different rules on similar contraventions within a system meant to be coherent. Consequently, the court held that there was sufficient support for concluding that the Swedish system of tax surcharges and tax offences was incompatible with Article 4 of Protocol No. 7. This conclusion applied not only to VAT, but also to income tax, employer ’ s contributions and similar payments.",
"The Supreme Court further found that the protection under Swedish law against double proceedings and punishments was valid also in cases where the state exacted personal liability on an individual for tax surcharges imposed on a legal person. Having regard to the strong and systematic connection in Swedish law between the principles of res judicata and lis pendens, the court also held, although the Court ’ s jurisprudence was unclear on this point, that ongoing, not finalised proceedings on tax surcharges precluded a criminal indictment concerning the same factual circumstances. The procedural hindrance against an indictment materialised when the Tax Agency took its decision to impose surcharges.",
"However, whereas the imposition of tax surcharges and the conviction for a tax offence based on the same factual circumstances concerned the same offence and were thus prohibited, the situation was different when the criminal conviction concerned a bookkeeping offence. According to the Supreme Court, which had regard to the case-law of the Court, the concrete factual circumstances forming the basis of a bookkeeping offence could normally not be considered inextricably linked to the factual circumstances leading to the imposition of tax surcharges. In addition to the breach of bookkeeping obligations under the Accountancy Act, the imposition of a tax surcharge involved a further factual element, namely the submission of incorrect information in a tax return.",
"In the case at hand, which involved the imposition of tax surcharges against an individual in November 2009 and the criminal indictment of him in June 2010 for, inter alia, aggravated tax offences and an aggravated bookkeeping offence, the Supreme Court quashed the appealed judgment of the Court of Appeal in so far as it concerned the tax offence relating to his personal income tax and dismissed the indictment in that respect. However, nothing prevented the examination of the bookkeeping offence or the tax offences concerning VAT and employer ’ s contributions. In the latter respect, the conclusion was due to the tax surcharges relating to VAT and employer ’ s contributions having been imposed on the appellant ’ s limited liability company and not on him personally.",
"21. In a further decision, taken on 16 July 2013 (NJA 2013, p. 746), the Supreme Court examined the question whether a former defendant could be granted a re-opening of criminal proceedings ( resning ) under Chapter 58, section 2 of the Code of Judicial Procedure ( Rättegångsbalken ) if he or she had been convicted of an offence under the Tax Offences Act in a manner incompatible with Article 4 of Protocol No. 7, as interpreted by the decision of 11 June 2013. The court concluded that, on the basis of the Convention, in particular Article 13, a Swedish court may decide, in certain situations, that a case is to be re-opened notwithstanding the special conditions specified in Chapter 58, section 2. The court also took the position that the incompatibility of Swedish legislation regarding sanctions for tax-related offences with Article 4 of Protocol No. 7 had arisen by virtue of the Sergey Zolotukhin judgment (cited above), thus on 10 February 2009. The Supreme Court ’ s decision led to criminal proceedings being re-opened in respect of an individual ’ s conviction for an offence under the Tax Offences Act. As a result, the possibility of being granted a re-opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from 10 February 2009.",
"22. On 25 July 2013 the Supreme Court took another decision of relevance (NJA 2013, p. 780). It stated therein that, if criminal proceedings have commenced before the Tax Agency has decided to impose tax surcharges, the prohibition against ne bis in idem cannot result in a criminal judgment that has become final being re-opened and quashed. Instead, it is the second set of proceedings to be commenced – the tax proceedings involving surcharges – that are contrary to the law. The violation of the right not to be tried or punished twice for the same offence is therefore in this situation a matter for the administrative courts.",
"23. By a plenary judgment of 29 October 2013 (HFD 2013 ref. 71), the Supreme Administrative Court (now Högsta förvaltningsdomstolen ) reversed the position taken in its judgment of 17 September 2009 and confirmed in a judgment of 21 December 2010 (RÅ 2010 ref. 117). Agreeing with the conclusions drawn by the Supreme Court, the Supreme Administrative Court found that the same principles should apply when the order of the tax and criminal proceedings is different, that is, when the tax proceedings are commenced later. Accordingly, a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information.",
"In the case at hand, where the individual had been indicted in February 2005 and surcharges had been imposed by the Tax Agency in April 2005, the Supreme Administrative Court concluded that the latter decision violated Article 4 of Protocol No. 7. The appeal made against the appellate court ’ s judgment on tax surcharges was accordingly granted and the surcharges set aside.",
"24. The Supreme Administrative Court has since examined several petitions for the re-opening of tax proceedings in which tax surcharges had been imposed. In a decision of 2 December 2013 (cases nos. 5850-13 and 5851-13) it rejected the petition, stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that, accordingly, no violation of the prohibition against double proceedings had occurred. In a judgment of 5 June 2014 (cases nos. 1112-14 and 1113-14) it granted a re-opening, noting that, pursuant to the Supreme Court ’ s decision of 16 July 2013, the applicant would have had a right of re-opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand, which was the reverse, should not be treated differently. The Supreme Administrative Court accordingly re-opened the tax proceedings and quashed the tax surcharges in question. The latter case had already been examined by the Supreme Administrative Court as part of the original tax proceedings in December 2010 – prior to the recent developments in Swedish case-law – and had then been considered not to involve a breach of Article 4 of Protocol No. 7.",
"25. In a judgment of 19 June 2014 (cases nos. 7110-13 and 7111-13) the Supreme Administrative Court examined a different situation where tax surcharges had been imposed on a person by a decision of the Tax Agency in May 2011, upheld by the County Administrative Court in February 2012. During the subsequent examination before the Administrative Court of Appeal, the person in question was, in separate criminal proceedings, indicted for a tax offence but acquitted thereof by a judgment of the District Court in April 2013 which soon afterwards acquired legal force. As a consequence, the Administrative Court of Appeal, in September 2013, quashed the surcharges that had been imposed. The Supreme Administrative Court agreed with this course of action, noting that the Court had established in several judgments (including Nykänen v. Finland, no. 11828/11, 20 May 2014) that, in the event that one of two concurrent sets of proceedings becomes final, Article 4 of Protocol No. 7 required that the other set of proceedings be discontinued. The Supreme Administrative Court ’ s judgment was delivered in ordinary proceedings which had not involved any re-opening. Furthermore, all the decisions and judgments in the case were delivered after the Sergey Zolotukhin judgment.",
"26. Following the above judicial changes, the Prosecutor-General ( Riksåklagaren ) and the Economic Crime Authority ( Ekobrotts-myndigheten ) decided to examine all tax cases where there may have been double punishments in accordance with the conclusions by the two supreme courts. Whenever the conditions were met, the prosecutor would file a petition for the criminal proceedings to be re-opened, provided that the individual agreed to this course of action and had not already sought a re-opening him- or herself. The undertaking, expected to be finalised by mid-March 2014, was to cover all cases ending with a judgment, an order of summary punishment ( strafföreläggande ) or a decision not to prosecute ( åtalsunderlåtelse ) since 10 February 2009.",
"On 25 April 2014 the Swedish newspaper Dagens Nyheter, basing itself on information provided by the Economic Crime Authority, reported that close to 3,000 cases concerning tax offences had been examined. Out of more than 110 individuals who were serving prison sentences, 42 had been released. Those who had not been released had been convicted also for other crimes than tax offences. A further number of persons who were about to start serving prison sentences did not have to do so. 800 individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re-opening of proceedings and, so far, 541 of them had accepted and 128 cases had been re-opened. In some re-opened cases the convictions had been quashed in their entirety; in others, involving several offences, the proceedings had to be repeated.",
"D. Provisions on monetary compensation",
"27. Section 4 of the Act on Compensation for Deprivation of Liberty and Other Coercive Measures ( Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder; 1998:714) stipulates that a person who has served a prison sentence is entitled to compensation if, following an appeal or a re-opening of proceedings, he or she is acquitted or given a less severe sentence or the judgment containing the conviction is quashed. Under section 7 of that Act, compensation is awarded for costs, loss of income, interference in business activities and suffering. Normally, in accordance with the practice of the Chancellor of Justice ( Justitiekanslern ), compensation for suffering is set at a rate of SEK 30,000 (approximately EUR 3,300) for the first month, SEK 20,000 (EUR 2,200) for each additional month up to and including the sixth month and SEK 15,000 (EUR 1,600) per month after that. Certain circumstances can lead to a higher rate of compensation. This is primarily the case if the suspicions have concerned a particularly serious crime or if the matter has attracted extensive media attention.",
"28. An action for damages can also be based on the Tort Liability Act ( Skadeståndslagen, 1972:207). Under Chapter 3, section 2 of that Act, compensation is awarded for damage caused by fault or negligence on the part of a public authority. Requests can be lodged with the Chancellor of Justice. If dissatisfied with the Chancellor ’ s decision, the individual has the option of bringing an action for damages against the State in the general courts. He or she may also institute such proceedings directly without having made a request to the Chancellor.",
"29. In addition, the Supreme Court has developed case-law which provides that, in order to provide redress for victims of Convention violations, compensation may be awarded without direct support in Swedish law. Based on this case-law, the Chancellor of Justice has awarded compensation in many cases following requests from individuals. The Court has had regard to this development and has concluded that, following a Supreme Court judgment of 3 December 2009 (NJA 2009 N 70), there is an accessible and effective remedy of general applicability, capable of affording redress in respect of alleged violations of the Convention (see, for example, Eriksson v. Sweden, no. 60437/08, §§ 48-52, 12 April 2012, and Marinkovic v. Sweden (dec.), no. 43570/10, § 43, 10 December 2013, and – in regard to the domestic case-law developments – the latter decision, §§ 21-31).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"30. The applicant complained that, through the imposition of tax surcharges and the trial for a tax offence and a bookkeeping offence, of which she was convicted of the latter, she had been tried and punished twice for the same offence. She invoked Article 4 of Protocol No. 7 to the Convention, the relevant parts of which read as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"... ”",
"31. The Government contested that argument.",
"A. Admissibility",
"1. The parties ’ submissions",
"(a) The Government",
"32. The Government pointed out that the applicant had not appealed against the District Court ’ s judgment of 16 December 2008 in the criminal proceedings and asserted that she had therefore failed to exhaust domestic remedies. In this connection, they further drew the Court ’ s attention to the fact that she had not raised any objection related to the principle of ne bis in idem, not even in substance, in her appeal to the Supreme Administrative Court in the tax proceedings or in any other part of the national proceedings.",
"33. Furthermore, in the Government ’ s opinion, the application was manifestly ill-founded as the last set of proceedings against the applicant, namely the criminal proceedings relating to an aggravated bookkeeping offence and a tax offence, became finally adjudicated on 8 January 2009 and thus one month before the Court ’ s judgment in the case of Sergey Zolotukhin (cited above). Prior to this judgment, the imposition of tax surcharges and a conviction for tax fraud had been found not to violate the principle of ne bis in idem; rather, such a complaint had been declared inadmissible as manifestly ill-founded in the case of Rosenquist v. Sweden (no. 60619/00, 14 September 2004).",
"34. Finally, the Government contended that, in so far as the bookkeeping offence was concerned, the two sets of proceedings were neither identical nor substantially the same. The tax surcharges imposed and the conviction for a bookkeeping offence did not refer to the same offence. This part of the complaint under Article 4 of Protocol No. 7 should thus be declared inadmissible as being manifestly ill-founded.",
"(b) The applicant",
"35. The applicant asserted that she had exhausted domestic remedies. She pointed out that, as she had been acquitted of the tax offence by the District Court, she could not have appealed against the court ’ s judgment in that respect. In regard to the Government ’ s submission that she had not raised any objection related to the principle of ne bis in idem in the tax proceedings, she maintained that this had been unnecessary as the courts are supposed to know the law. In any event, given established Swedish case ‑ law at the time, as confirmed by the judgment of the Supreme Administrative Court of 17 September 2009, delivered before its decision to refuse leave to appeal in the applicant ’ s case, it would have been fruitless for her to invoke the principle of ne bis in idem.",
"36. The applicant further contended that, while the Sergey Zolotukhin judgment (cited above) had aimed at harmonising Strasbourg case-law on the issue of ne bis in idem, it had not changed the legal situation. Furthermore, even if it had, the change had not necessarily taken place at the time of delivery of the judgment as the factual circumstances of the case had occurred several years before that delivery. In this connection, she also pointed out that the proceedings against her had continued until 20 October 2009 when the Supreme Administrative Court refused leave to appeal.",
"37. Moreover, the applicant maintained her position that her conviction for a bookkeeping offence was based on substantially the same facts as the decision to impose surcharges on her. In this respect, she noted that the Supreme Court had in its decision of 11 June 2013 (see paragraph 20 above) stated that the fact that tax surcharges had been imposed on an individual “normally” did not hinder prosecution and conviction of him or her for a bookkeeping offence. It was thus unclear under what circumstances there could be such a hindrance in a case concerning a bookkeeping offence.",
"2. The Court ’ s assessment",
"38. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity –, that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).",
"39. The only remedies which should be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).",
"40. Turning to the circumstances of the present case, it is first to be noted that tax surcharges were imposed on the applicant by the Tax Agency on 1 June 2004 and that criminal proceedings were initiated against her on 5 August 2005. Subsequently, the applicant was tried in two parallel proceedings, in accordance with Swedish law and established practice. Independently of the fact that the applicant may have been ready to accept the criminal conviction for the bookkeeping offence and therefore chose not to appeal against the District Court ’ s judgment, such an appeal could not effectively address the alleged breach of Article 4 of Protocol No. 7. Similarly, given the clear national case-law, which did not change until June 2013, even if the applicant had expressly invoked the principle of ne bis in idem in her appeals in the tax proceedings, she would have had no prospects of success with such an objection. Furthermore, the applicant ’ s case does not appear to fall within the scope of the new remedy created by the changes in national case-law as from June 2013, because the second set of proceedings – that is, the criminal proceedings, which commenced later in time – was concluded on 8 January 2009 when the District Court ’ s judgment acquired legal force and thus before 10 February 2009, the date of the Sergey Zolotukhin judgment. In conclusion, the applicant did not fail to exhaust the domestic remedies available to her.",
"41. For these reasons, the present complaint is not inadmissible for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.",
"42. The Government also submitted two objections purporting that the complaint was manifestly ill-founded. The applicant contested this.",
"43. The Court finds that these objections should be examined on the merits. The present complaint must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"44. Referring, inter alia, to the judgments in Sergey Zolotukhin v. Russia and Ruotsalainen v. Finland (both cited above), the applicant submitted that the two proceedings conducted against her and the punishments imposed (the tax surcharges and the criminal conviction for a bookkeeping offence) were criminal in nature and based on identical or substantially the same facts and were thus in breach of the principle of ne bis in idem. As regards the “bis” part of that term, she argued that, whereas Strasbourg case-law left some room for multiple punishments for the same offence being decided by separate organs at different times, a fundamental prerequisite for this was that the later proceedings and punishments did not involve a complete and renewed examination of the offence. In contrast to Swedish cases concerning traffic offences, where the authority imposing the second sanction – the withdrawal of a driving licence – did not make a renewed examination of the offence but was bound by the conviction decided by the general court, the situation was different in tax-related cases, where the criminal and administrative courts were not bound by each other ’ s judgments but made separate and complete examinations of the offence in question. Thus, in order not to violate Article 4 of Protocol No. 7, the second set of proceedings would have to be terminated or annulled as soon as the first set of proceedings had been finalised. Concern for the specific structure of a national system was arguably not a reason to find otherwise, in particular since it had been possible for Sweden to amend its system and bring it in conformity with Article 4 of Protocol No. 7.",
"45. The applicant asserted that the second set of proceedings against her should have been terminated or annulled when the first set of proceedings had been finalised and the matter had become res judicata. She further submitted that the Court ’ s jurisprudence was not unequivocal as to whether Article 4 of Protocol No. 7 also prohibited dual pending proceedings, that is, whether it ruled out situations of lis pendens. She maintained that, if charges were tried in two parallel sets of proceedings, they would be compatible with that provision only if the judgments were delivered at the same time.",
"46. Finally, in the applicant ’ s view, her conviction for a bookkeeping offence was based on substantially the same facts as the decision to impose tax surcharges on her. Consequently, also this part of her criminal conviction was in breach of Article 4 of Protocol No. 7. She maintained that the same incomplete information that had been accounted for in the bookkeeping had later been presented in the tax return. According to her, the grounds for liability for the bookkeeping offence had been nothing else than the omission to account for the exact income accrued; the same income had been withheld in the tax return, leading to the imposition of tax surcharges.",
"(b) The Government",
"47. Having regard to the Court ’ s case-law in Swedish tax-related cases, the Government acknowledged that the imposition of tax surcharges involved a “criminal charge” and that the proceedings concerning the surcharges were thus criminal in nature. They further did not dispute that the facts underlying that imposition and the indictment for a tax offence in the present case were substantially the same for the purposes of Article 4 of Protocol No. 7. However, while the judgment in Sergey Zolotukhin had established that the element of “idem” was referring to the factual circumstances of the case and not to the legal requisites, the Court ’ s case-law was allegedly not clear when it came to the issue of “bis”. In several cases, it had been taken into account that two proceedings had a sufficiently close connection in substance and in time. Moreover, Article 4 of Protocol No. 7 did not seem to contain any general prohibition against parallel proceedings.",
"48. The Government further argued that regard should be had to the structure of the national system, as in the present situation where both the general and the administrative courts, with their accumulated skills and expertise, were examining the issues in question. The criminal and administrative proceedings were allegedly co-ordinated and it was foreseeable for an individual that a serious case of submission of incorrect information to the Tax Agency would normally lead to both the imposition of tax surcharges and prosecution for a tax offence. In the present case, the proceedings had been closely connected and conducted in parallel since the criminal proceedings against the applicant had been initiated at a time when no final decision had been taken in regard to the tax surcharges.",
"49. Moreover, as they had argued in regard to the admissibility of the present complaint (see paragraphs 33 and 34 above), the Government submitted that it revealed no violation of Article 4 of Protocol No. 7. Firstly, the second set of proceedings commenced against the applicant, that is, the criminal proceedings, had been finalised before the judgment in the case of Sergey Zolotukhin (cited above), thus at a time when the Swedish system was considered as not violating the principle of ne bis in idem, according to the 2004 decision in Rosenquist v. Sweden (cited above). Secondly, in so far as the conviction for a bookkeeping offence was concerned, it did not refer to an offence that was identical or substantially the same as the tax surcharges.",
"2. The Court ’ s assessment",
"(a) The application of the Court ’ s jurisprudence to the facts of the present case",
"50. The Court will first deal with the Government ’ s submission that the complaint revealed no violation of Article 4 of Protocol No. 7 as the criminal proceedings had been finalised a month before the Sergey Zolotukhin judgment (cited above) and thus at a time when the Court ’ s case-law indicated that the Swedish system was in conformity with this provision. In this regard, the Court would point out that the Zolotukhin case was introduced with the Court in April 2003 and concerned events that had taken place in 2002 and 2003. Accordingly, in so far as the Court changed or modified its approach on issues concerning ne bis in idem when it delivered its judgment in February 2009, it did so in relation to factual circumstances which, by then, were six to seven years old. Generally, if events in the past are to be judged according to jurisprudence prevailing at the time when the events occurred, virtually no change in case-law would be possible. While the Court acknowledges that, at the time of the criminal proceedings against the applicant, there had been an earlier decision relating to double proceedings in Swedish tax matters which concluded that a complaint concerning similar circumstances was manifestly ill-founded ( Rosenquist, cited above), the present case must nevertheless be determined with regard to the case-law existing at the time of the Court ’ s examination. In any event, bearing in mind that Article 4 of Protocol No. 7 prohibits the repetition of proceedings after the date on which a first set of proceedings has been finally examined, it should be reiterated that the tax proceedings continued until 20 October 2009, well beyond the date of delivery of the judgment in the Zolotukhin case.",
"(b) Whether the imposition of tax surcharges was criminal in nature",
"51. The Court has found in several judgments concerning Sweden that the imposition of tax surcharges involves the determination of a “criminal charge” within the meaning of Article 6 of the Convention and that that provision is therefore applicable to tax proceedings in so far as they concern tax surcharges (see, for instance, Janosevic v. Sweden, no. 34619/97, §§ 64 ‑ 71, ECHR 2002-VII). Moreover, the notion of “penalty” does not have different meanings under different provisions of the Convention ( Göktan v. France, no. 33402/96, § 48, ECHR 2002-V). Accordingly, in the decision on admissibility in the case of Manasson v. Sweden (no. 41265/98, 8 April 2003), it was concluded that proceedings involving tax surcharges were “criminal” not only for the purposes of Article 6 of the Convention but also for the purposes of Article 4 of Protocol No. 7. Accordingly, noting that the parties do not dispute this, the Court concludes that both sets of proceedings in the present case were “criminal” for the purposes of Article 4 of Protocol No. 7.",
"(c) Whether the criminal offences for which the applicant was prosecuted were the same as those for which the tax surcharges were imposed on her ( idem )",
"52. The Court acknowledged in the case of Sergey Zolotukhin v. Russia (cited above, §§ 78-84) the existence of several approaches to the question whether the offences for which an applicant was prosecuted were the same. Finding that this situation created legal uncertainty, the Court went on to provide a harmonised interpretation of the notion of the “same offence” – the idem element of the ne bis in idem principle – for the purposes of Article 4 of Protocol No. 7. It considered that an approach which emphasised the legal characterisation of the offences in question was too restrictive on the rights of the individual and risked undermining the guarantee enshrined in that provision. Accordingly, it took the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same. The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and which are inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings.",
"53. In the criminal proceedings in the present case, the applicant was indicted for an aggravated tax offence and an aggravated bookkeeping offence. The District Court acquitted her of the former offence but convicted her of the latter. Both parties submitted that the facts underlying the indictment for the tax offence were at least substantially the same as those leading to the imposition of tax surcharges. The Government contended that there was no such congruence in so far as the bookkeeping offence was concerned.",
"54. In so far as the tax offence is concerned, the Court agrees with the parties. The applicant ’ s indictment and the imposition of tax surcharges were based on the same failure to declare business proceeds and VAT. Moreover, the tax proceedings and the criminal proceedings concerned the same period of time and essentially the same amount of evaded taxes. Consequently, in this respect, the idem element of the ne bis in idem principle is present.",
"55. However, the situation is different with regard to the bookkeeping offence. As has been observed by the Court on previous occasions (see Manasson v. Sweden (dec.), cited above, at pp. 22-23, and Carlberg v. Sweden, no. 9631/04, §§ 69-70, 27 January 2009 ) the obligation of a businessperson to enter correct figures in the books is an obligation per se, which is not dependent on the use of bookkeeping material for the determination of tax liability. In other words, the applicant, while not having fulfilled the legal bookkeeping requirements, could later have complied with the duty to supply the Tax Agency with sufficient and accurate information by, for instance, correcting the information contained in the books or by submitting other material which could adequately form the basis of a tax assessment. Accordingly, the applicant ’ s submission of the incorrect bookkeeping material to the agency in support of the claims and statements made in her tax return and her failure to provide the agency with other reliable documentation on which it could base its tax assessment constituted important additional facts in the tax proceedings which did not form part of her conviction for a bookkeeping offence. In these circumstances, the two offences in question were sufficiently separate to conclude that the applicant was not punished twice for the same offence. Thus, the applicant ’ s trial and conviction for an aggravated bookkeeping offence do not disclose any failure to comply with the requirements of Article 4 of Protocol No. 7.",
"(d) Whether there was a final decision",
"56. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision. According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well entrenched in the Court ’ s case-law (see, for example, Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004-VIII). Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired. On the other hand, extraordinary remedies such as a request for re-opening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion. Although these remedies represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used. It is important to point out that Article 4 of Protocol No. 7 does not preclude the re-opening of the proceedings, as stated clearly by the second paragraph of Article 4 (see Sergey Zolotukhin v. Russia, cited above, §§ 107-108, with further references ).",
"57. In the present case, there was a final decision on 16 December 2008 when the District Court, inter alia, acquitted the applicant of the charges relating to a tax offence. As the applicant did not lodge an appeal against that judgment, it acquired legal force on 8 January 2009. Thus, she was finally acquitted of the tax offence on the latter date.",
"(e) Whether there was a duplication of proceedings ( bis )",
"58. Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be tried twice (see Franz Fischer v. Austria, no. 37950/97, § 29, 29 May 2001). Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The provision contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Sergey Zolotukhin v. Russia, cited above, § 110, with further references ).",
"59. As is clear from the above, further criminal proceedings against an individual are prohibited when a decision concerning the same offence is final; Article 4 of Protocol No. 7 does not, however, preclude that several concurrent sets of proceedings are conducted before that final decision has been issued. In such a situation it cannot be said that the individual is prosecuted several times “for an offence for which he has already been finally acquitted or convicted” (see Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX (extracts)). There is no issue under the Convention when, in a situation of two parallel sets of proceedings, the second set of proceedings is discontinued when the first set of proceedings has become final (see Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002-IX (extracts)). However, when no such discontinuation occurs, the Court has found a violation (see Tomasović v. Croatia, no. 53785/09, §§ 30-32, 18 October 2011; and Muslija v. Bosnia and Herzegovina, no. 32042/11, § 37, 14 January 2014 ).",
"60. Accordingly, the Court would emphasise that Article 4 of Protocol No. 7 does not provide protection against lis pendens. In the Swedish context, simultaneous tax proceedings determining tax surcharges and criminal proceedings examining a corresponding tax offence would thus not be incompatible with Article 4 of Protocol No. 7. A violation of this provision would occur, however, if one set of proceedings continued after the date on which the other set of proceedings was concluded with a final decision. That final decision would require that the other set of proceedings be discontinued. The Court notes that the Swedish supreme courts have concluded, having regard to Swedish legal tradition, that also ongoing, not finalised proceedings preclude the commencement of other proceedings concerning the same offence and have taken the view that the procedural hindrance materialises when the Tax Agency decides to impose tax surcharges or when a criminal indictment is brought against an individual, whichever comes first (see paragraphs 20 and 23 above). However, this guarantee against multiple proceedings cannot be derived from Article 4 of Protocol No. 7.",
"61. Notwithstanding the existence of a final decision, the Court has found in some cases (see R.T. v. Switzerland (dec.), no. 31982/96, 30 May 2000; and Nilsson v. Sweden (dec.), no. 73661/01, 13 December 2005) that although different sanctions (suspended prison sentences and withdrawal of driving licences) concerning the same matter (drunken driving) have been imposed by different authorities in different proceedings, there has been a sufficiently close connection between them, in substance and in time. The conclusion in those cases was that the individuals were not tried or punished again for an offence for which they had already been finally convicted and that there was thus no repetition of the proceedings.",
"62. Turning to the facts of the present case, it is true that both the applicant ’ s indictment for a tax offence and the tax surcharges imposed on her form part of the actions taken and sanctions imposed under Swedish law for the failure to provide accurate information in a tax return and that the two actions were foreseeable. However, they were examined by different authorities and courts without the proceedings being connected; both sets of proceedings followed their own separate course and they became final at different times. Moreover, the Supreme Administrative Court did not take into account the fact that the applicant had been acquitted of the tax offence when it refused leave to appeal and thereby made the imposition of tax surcharges final. Thus, in accordance with the Swedish system as it stood at the relevant time, the applicant ’ s conduct as well as her criminal guilt under the Tax Offences Act and her liability to pay tax surcharges under the relevant tax legislation were determined in proceedings that were wholly independent of each other. It cannot be said that there was a close connection, in substance and in time, between the criminal proceedings and the tax proceedings. This contrasts with the Court ’ s earlier cases R.T. v. Switzerland and Nilsson v. Sweden (cited above) where the decisions on withdrawal of a driving licence were directly based on an expected or final conviction for a traffic offence and thus did not contain a separate examination of the offence or conduct at issue (see further Nykänen v. Finland, cited above, § 51).",
"63. Accordingly, the present case concerns two parallel and separate sets of proceedings of which the tax proceedings commenced on 1 June 2004 and were finalised on 20 October 2009 and the criminal proceedings were initiated on 5 August 2005 and became final on 8 January 2009. The two proceedings were thus pending concurrently for almost three and a half years. This duplication of proceedings did not involve a breach of Article 4 of Protocol No. 7. However, the tax proceedings were not terminated and the tax surcharges were not quashed after the criminal proceedings had become final but continued for a further nine and a half months until 20 October 2009. Therefore, the applicant was tried “again” for an offence for which she had already been finally acquitted.",
"64. For these reasons, there has been a violation of Article 4 of Protocol No. 7 to the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"65. The applicant complained that she had not had a fair hearing in the tax proceedings and that she had not been presumed innocent. She relied on Article 6 §§ 1 and 2 of the Convention, the relevant parts of which provide the following:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal established by law. ...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”",
"66. The applicant alleged that where, as in the present case, the tax liability had been determined through a discretionary assessment, the Tax Agency only had to make it probable ( sannolikt ) that the tax could not be adequately fixed based on the information supplied by the individual. In reality, therefore, the level of proof required for the Tax Agency ’ s imposition of tax surcharges was merely “probable”. Given that tax surcharges corresponded to a penal sanction, this level of proof was too low; to comply with the requirements of Article 6 it should rather be “beyond reasonable doubt”.",
"67. The Court has examined similar complaints in previous Swedish cases on tax-related matters (see, for instance, Janosevic, cited above, §§ 99 ‑ 104, and Carlberg, cited above, §§ 56-57). It has concluded that the Swedish system operates with a presumption – which is acceptable in principle, if applied reasonably proportionate to the aim – that inaccuracies found during a tax assessment are due to an inexcusable act attributed to the taxpayer and that it is not manifestly unreasonable to impose tax surcharges as a penalty for that act. The individual is not left without means of defence. He or she may lodge a challenge against the Tax Agency ’ s tax assessment in court which, if successful, will have an automatic effect on the surcharges. He or she may also put forward grounds for a reduction or exemption of the surcharges themselves. Furthermore, regard must be had to the financial interests of the State in tax matters. A system of taxation principally based on information supplied by the taxpayer would not function properly without some form of sanction against the provision of incorrect or incomplete information, imposed according to standardised rules. In the Court ’ s view, provided that the courts make a nuanced assessment in the individual case as to the grounds for imposing as well as exempting the surcharges, the fact that the level of proof required for the imposition of surcharges is the same as the level required for the fixing of the tax itself does not involve a breach of Article 6.",
"68. Moreover, there is no indication on the facts of the present case that the applicant did not have a fair hearing in the tax proceedings.",
"69. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"70. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"71. The applicant claimed EUR 2,000 in respect of non-pecuniary damage.",
"72. The Government contended that the finding of a violation constituted sufficient reparation for the applicant. Should the Court find that some monetary compensation was to be awarded, the amount should not exceed EUR 1,500.",
"73. The Court finds that it is justified to award the applicant compensation for the violation found. It considers that the amount claimed is reasonable and accordingly awards her EUR 2,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"74. The applicant did not make any claim for costs and expenses. Consequently, no award is made under this head.",
"C. Default interest",
"75. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
228 | Nikitin v. Russia | 20 July 2004 | The applicant, a former navy officer, joined an environmental project of a Norwegian NGO to work on a report entitled “The Russian Northern Fleet. Sources of Radioactive Contamination”. Criminal proceedings on suspicion of treason were subsequently instituted against him. Tried for treason through espionage and aggravated disclosure of an official secret, he was acquitted .in December 1999. In April 2000 the Supreme Court upheld the acquittal, which became final. In May 2000 the Prosecutor General lodged a request with the Presidium of the Supreme Court to review the case in supervisory proceedings. The Presidium dismissed that request and upheld the acquittal. The applicant alleged in particular that supervisory review proceedings conducted after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. | The Court noted that, in the event that supervisory review of the acquittal had been granted, a new decision that would have been “final” could have resulted. Nevertheless, given the extraordinary nature of a supervisory review appeal and the problems of legal certainty that a quashing of a judgment in such proceedings could create, the Court assumed that the judgment of the Supreme Court upholding the applicant’s acquittal had been the “final decision” for the purposes of this provision. In the present case, the applicant had not been “tried again” in the proceedings before the Presidium, nor had he been “liable to be tried again”, as these proceedings were limited to the question whether or not to grant the request for review. As the Presidium was not empowered to make a new determination on the merits, it appeared that the potential for a resumption of the proceedings in this case was too remote or indirect to constitute a “liability” within the meaning of this Article. Moreover, had the request been granted and proceedings resumed, the ultimate effect of supervisory review would have been to annul all previous decisions and to determine a criminal charge in a new decision, which would not have represented a duplication of proceedings. Hence, supervisory review could be regarded as an attempt to reopen proceedings, which was permitted under the second paragraph of Article 4 of Protocol No. 7, and not an attempted “second trial”. The Court therefore held that there had been no violation of Article 4 of Protocol No. 7. | Right not to be tried or punished twice (the non bis in idem | The definition of bis | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The applicant was born in 1952 and lives in St Petersburg.",
"8. In February 1995 the applicant, a former naval officer, joined an environmental project conducted by Bellona, a Norwegian non-governmental organisation, to work on a report entitled “The Russian Northern Fleet – Sources of Radioactive Contamination” (“the report”).",
"9. On 5 October 1995 Bellona ’ s Murmansk office was searched by the Federal Security Service ( ФСБ РФ – “the FSB”). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, since the draft report allegedly contained information, classified as officially secret, concerning accidents on Russian nuclear submarines.",
"10. On 20 October 1998 the applicant ’ s trial on a charge of treason through espionage and a charge of aggravated disclosure of an official secret began before St Petersburg City Court. After four days of hearings, the case was remitted for further investigation on 29 October 1998. The court considered that the indictment was vague, which impaired the applicant ’ s defence and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such, and that it did not contain a “proper and complete” expert evaluation of possible public sources of the information in question or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public sources and to take other steps to complete the investigation.",
"11. On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for determination by a court and that there was no need for further investigation.",
"12. On 4 February 1999 the order for further investigation was upheld by the Supreme Court of the Russian Federation ( “ the Supreme Court ” ).",
"13. On 23 November 1999 the St Petersburg City Court resumed the applicant ’ s trial on the same charges.",
"14. On 29 December 1999 the St Petersburg City Court acquitted the applicant on all the charges, having found that the applicant had been prosecuted on the basis of secret and retroactive decrees.",
"15. The prosecution appealed.",
"16. On 17 April 2000 the Supreme Court upheld the acquittal. The court found that the charges were based on secret and retroactive decrees which were incompatible with the Constitution. The acquittal thus became final.",
"17. On 30 May 2000 the Procurator General filed a request with the Presidium of the Supreme Court to review the case in supervisory proceedings ( протест на приговор, вступивший в законную силу ). He challenged the judgment on the grounds of wrongful application of the law governing official secrets, the vagueness of the indictment – which had led to procedural prejudice against the applicant – and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed information had originated from public sources. He called for a reassessment of the applicable law and of the facts and evidence in the case file, and for the case ’ s remittal for fresh investigation.",
"18. On 13 September 2000 the Presidium of the Supreme Court dismissed the Procurator General ’ s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and shortcomings, it found that the prosecution could not rely on them in calling for a remittal, as it had been entirely within the prosecution ’ s control to redress them at an earlier stage in the proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as those relied on in the request to quash the acquittal. It observed that on 29 October 1998 the court had expressly instructed the investigating authority, inter alia, to conduct a study of information in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources.",
"19. On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant ’ s challenge to the laws which allowed supervisory review of a final acquittal.",
"20. In its ruling of the same date, the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings.",
"21. The Constitutional Court ’ s judgment stated, inter alia :",
"“ ... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"It follows ... that, subject to the above requirements, the national legislation may provide for a system by which a case may be reopened and a final judgment be quashed, and may specify where, depending on the case, a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply.",
"Any exemption from the general prohibition on resuming proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances, where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and those of the victims of crime. In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case, an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms.",
"3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review, given that the judgment concerned is already binding and determinative of the individual ’ s guilt and sentence.",
"However, the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960 ] go beyond these limits. When establishing a procedure for the review of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In failing to do so, [the legislature] misapplied the criteria which derive from [the Constitution] and Article 4 of Protocol No. 7 to the Convention for the quashing of final judgments in criminal cases ...",
"Furthermore, [ the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court ’ s jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative. It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of its being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ... ”"
] | [
"II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS",
"A. Applicable legislation",
"22. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure ( Уголовно - процессуальный кодекс РСФСР ) in force at the material time allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code ) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90 ). However, similar rules apply to both procedures (Article 388).",
"1. Date on which a judgment becomes effective",
"23. Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the time-limit for appeal has expired.",
"2. Grounds for supervisory review and reopening of a case",
"Article 379 Grounds for setting aside judgments which have become effective",
"“ The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments ( which have not taken effect ) on appeal ] ... ”",
"Article 342 Grounds for quashing or varying judgments [on appeal]",
"“ The grounds for quashing or varying a judgment on appeal are as follows:",
"(i) prejudicial or incomplete investigation or pre-trial or court examination;",
"(ii) inconsistency between the facts of the case and the conclusions reached by the court;",
"(iii) a grave violation of procedural law;",
"(iv) misapplication of [substantive] law;",
"(v) discrepancy between the sentence and the seriousness of the offence or the convicted person ’ s personality. ”",
"Article 384 Grounds for reopening cases due to new circumstances",
"“ Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances.",
"The grounds for reopening a criminal case are as follows:",
"(i) with regard to a judgment which has become effective, the establishment of false witness testimony or false expert opinion; forgery of evidence, investigation records, court records or other documents; or an indisputably erroneous translation which has entailed the pronouncement of an unfounded or unlawful judgment;",
"(ii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by judges when examining the case;",
"(iii) with regard to a judgment which has become effective, the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution;",
"(iv) other circumstances, unknown to the court at the time when the case was examined, which, alone or combined with other previously established facts, prove a convicted person ’ s innocence or the commission by him or her of an offence which is more or less serious than that of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated. ”",
"3. Authorised officials",
"24. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review.",
"4. Limitation period",
"25. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the date on which the acquittal took effect.",
"5. The effect of a supervisory review on acquittals",
"26. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board ( the Presidium ) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review.",
"27. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first - instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments.",
"28. Article 380 § § 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant ’ s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination.",
"29. On 1 July 2002 a new Code of Criminal Procedure came into force. Under Article 405, the application of supervisory review is limited to those cases where it does not involve changes that would be detrimental to the convicted person. Acquittals and decisions to discontinue the proceedings may not be the subject of a supervisory review.",
"B. Relevant materials",
"30. On 19 January 2000, at the 694 th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. The recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there existed adequate possibilities to re - examine the case, including the reopening of proceedings, in instances where the Court had found a violation of the Convention.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"31. The applicant contended that the supervisory review proceedings which took place after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He alleged that, at the least, he was liable to be tried again on the same charges, since the very fact of the Procurator General ’ s lodging a request for supervisory review created the potential for a new prosecution. He relied on Article 4 of Protocol No. 7 to the Convention, the relevant parts of which provide:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"... ”",
"A. The parties ’ submissions",
"32. The Government considered that, for the purposes of Article 4 of Protocol No. 7, the supervisory review proceedings did not constitute a second trial. They contended that the domestic law at the material time did not permit the supervisory instance to convict the applicant, but only to quash the previous judgments and to remit the case for fresh examination in adversarial proceedings. In support of their position, they referred to the Constitutional Court ’ s ruling of 17 July 2002 in the applicant ’ s case. The Government submitted that the applicant ’ s acquittal could not be said to have been invalidated or suspended at any time, given that the Procurator General ’ s request was dismissed by the Presidium.",
"33. The Government further pointed out that, following the recent change in the legislation, final acquittals could no longer be challenged by way of supervisory review, and other judgments could not be challenged by way of supervisory review if they would be detrimental to a convicted person.",
"34. The applicant contested the Government ’ s position and submitted that, contrary to the non bis in idem principle, the Procurator General ’ s request had made him liable to be tried again for an offence of which he had been finally acquitted. Although the outcome remained unchanged, he had effectively been prosecuted twice for the same offence. He claimed that the supervisory review was not justified as an exceptional reopening ‑ permitted by the second paragraph of Article 4 of Protocol No. 7 ‑ because the Presidium had established no fundamental defect in previous proceedings which would require a re -examination of the case.",
"B. The Court ’ s assessment",
"35. The Court notes that the protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. It reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see, among other authorities, Gradinger v. Austria, judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53). The Court further notes that the repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7. In Oliveira v. Switzerland (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), the fact that the penalties in the two sets of proceedings were not cumulative was relevant to the finding that there was no violation of the provision where two sets of proceedings were brought in respect of a single act ( p. 1998, § 27).",
"36. Turning to the supervisory review of an acquittal conducted in circumstances such as the present case, the Court will first determine what elements, if any, of Article 4 of Protocol No. 7 are to be found in such proceedings. For this purpose, it will have regard to the following aspects :",
"– whether there had been a “final” decision before the supervisory instance intervened, or whether the supervisory review was an integral part of the ordinary procedure and itself provided a final decision;",
"– whether the applicant was “tried again” in the proceedings before the Presidium; and",
"– whether the applicant became “liable to be tried again” by virtue of the Procurator General ’ s request.",
"Finally, the Court will consider whether, in the circumstances of the case, the supervisory review could in principle have given rise to any form of duplication of the criminal proceedings, contrary to the protection afforded by Article 4 of Protocol No. 7.",
"1. Whether the applicant had been “ finally acquitted” prior to the supervisory review",
"37. According to the explanatory report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”.",
"38. The Court notes that the procedural law at the time allowed certain officials to challenge a judgment which had taken effect. The grounds for supervisory review were the same as for lodging an ordinary appeal. With regard to acquittals, the request for supervisory review could be lodged within one year of the judgment ’ s taking effect. Assuming that the Presidium granted the Procurator General ’ s request and that the proceedings were relaunched, the ensuing ruling would still constitute the only decision in the applicant ’ s criminal case, with no other decision remaining concurrently in force, and that decision would be “final”. Thus, it appears that the domestic legal system in Russia at the time did not regard decisions such as the acquittal in the present case as “final” until the time-limit for making an application for supervisory review had expired. On that basis, the decision by the Presidium of the Supreme Court on 13 September 2000 not to accept the case for supervisory review would be the “final” decision in the case. On such an interpretation, Article 4 of Protocol No. 7 would have no application whatsoever in the present case, as all the decisions before the Court related to the same single set of proceedings.",
"39. However, the Court reiterates that a supervisory request for annulment of a final judgment is a form of extraordinary appeal in that it is not directly accessible to the defendant in a criminal case, and its application depends on the discretion of authorised officials. The Court has, for example, not accepted that supervisory review is an effective domestic remedy in either the civil or the criminal contexts ( see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999, and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II ), and it has found that the quashing of a judgment on supervisory review can create problems as to the legal certainty to be afforded to the initial judgment (see Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII, and Ryabykh v. Russia, no. 52854/99, §§ 56-58, ECHR 2003-IX ). The Court will therefore assume in the following paragraphs that the appeal judgment of 17 April 2000, by which the applicant ’ s acquittal became final on that same date, was the “final decision” for the purposes of Article 4 of Protocol No. 7.",
"2. Whether the applicant was “ tried again ” in the proceedings before the Presidium",
"40. The Court observes that the Procurator General ’ s request for supervisory review of the acquittal was examined by the Presidium. Its determination was limited, at that stage, to the question whether to grant the request for supervisory review. In the circumstances of the present case, the Presidium did not accept the application for review, and the final decision remained that of 17 April 2000.",
"41. It follows that the applicant was not “tried again ” within the meaning of Article 4 § 1 of Protocol No. 7 in the proceedings by which the Presidium of the Supreme Court rejected the Procurator General ’ s request for supervisory review of the applicant ’ s acquittal.",
"3. Whether the applicant was “ liable to be tried again ”",
"42. The Court has further considered whether the applicant was “liable to be tried again ”, as he alleged. It notes that, had the request been granted, the Presidium would have been required, by Article 380 of the Code of Criminal Procedure in force at the time, to choose one of the options set out in paragraph 27 above. Importantly, the Presidium was not empowered to make a new determination on the merits in the same proceedings, but merely to decide whether or not to grant the Procurator General ’ s request.",
"43. It appears therefore that the potential for resumption of proceedings in this case would have been too remote or indirect to constitute “ liability ” for the purposes of Article 4 § 1 of Protocol No. 7.",
"44. Although the elements discussed in paragraphs 40 to 43 above are in themselves sufficient to demonstrate that supervisory review in this case did not lead to a violation of Article 4 of Protocol No. 7, the Court notes that there exists a substantive, and thus more important, reason to reach the same conclusion. It considers that the crucial point in this case is that supervisory review could not in any event have given rise to a duplication of criminal proceedings, within the meaning of Article 4 § 1 of Protocol No. 7, for the following reasons.",
"45. The Court observes that Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings.",
"46. The Court notes that the Russian legislation in force at the material time permitted a criminal case in which a final decision had been given to be reopened on the grounds of new or newly discovered evidence or a fundamental defect (Articles 384-90 of the Code of Criminal Procedure). This procedure obviously falls within the scope of Article 4 § 2 of Protocol No. 7. However, the Court notes that, in addition, a system also existed which allowed the review of a case on the grounds of a judicial error concerning points of law and procedure (supervisory review, which is governed by Articles 371-83 of the Code of Criminal Procedure ). The subject matter of such proceedings remained the same criminal charge and the validity of its previous determination. If the request was granted and the proceedings were resumed for further consideration, the ultimate effect of supervisory review would be to annul all decisions previously taken by courts and to determine the criminal charge in a new decision. To this extent, the effect of supervisory review is the same as reopening, because both constitute a form of continuation of the previous proceedings. The Court therefore concludes that for the purposes of the non bis in idem principle supervisory review may be regarded as a special type of reopening falling within the scope of Article 4 § 2 of Protocol No. 7.",
"47. The applicant ’ s argument that the supervisory review was unnecessary and amounted to an abuse of process is not relevant to the question of compliance with Article 4 of Protocol No. 7: the manner in which the power was exercised is relative to the overall fairness of criminal proceedings, but cannot be decisive for the purpose of identifying the procedure as a “ reopening ” as opposed to a “second trial”. On the facts of the present case, the proceedings aimed at securing a supervisory review were an attempt to have the proceedings reopened rather than an attempted “second trial”.",
"48. Finally, the Court notes that the conformity with the requirement of lawfulness under Article 4 § 2 of Protocol No. 7 is undisputed in the present case.",
"49. The Court concludes that the applicant was not liable to be tried or punished again within the meaning of Article 4 § 1 of Protocol No. 7 to the Convention, and that accordingly there has been no violation of that provision.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"50. The applicant maintained that the supervisory review proceedings conducted after his final acquittal constituted a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"A. The parties ’ submissions",
"51. In their post-admissibility submissions, the Government stated that the supervisory review proceedings did not constitute a new examination of the applicant ’ s criminal charge because the request to quash the acquittal lodged by the Procurator General had been dismissed by the Presidium of the Supreme Court without examining the merits. They informed the Court that, just as Article 380 § 2 of the Code of Criminal Procedure prohibited the Presidium from increasing a sentence or changing a legal classification to a more serious one without remitting the case for new examination, the Presidium itself was unable to replace an acquittal with a conviction while simultaneously granting the request for reopening. They also claimed that, since the supervisory review proceedings had no adverse impact on the applicant ’ s final acquittal, they could not have constituted a violation of the applicant ’ s right to a fair hearing within the meaning of Article 6 § 1 of the Convention.",
"52. The Government pointed out that the supervisory review in the present case had been conducted in accordance with the procedure prescribed by law. In particular, the Procurator General ’ s request had been lodged within one year of the acquittal taking effect.",
"53. The applicant disputed those submissions and maintained that the very possibility of challenging the final and enforceable acquittal had violated his right to a fair trial. He stated that, although the supervisory review had complied with the formal requirements imposed by law at the material time, it had not been necessary. He claimed that, in the circumstances of the case, the Procurator General ’ s call for supervisory review proceedings had clearly been an abuse of process and incompatible with the Convention principles.",
"B. The Court ’ s assessment",
"54. The Court has found above that the supervisory review in this case was compatible with the non bis in idem principle enshrined in Article 4 of Protocol No. 7, which is itself one aspect of a fair trial. The mere fact that the institution of supervisory review as applied in the present case was compatible with Article 4 of Protocol No. 7 is not, however, sufficient to establish compliance with Article 6 of the Convention. The Court must determine its compatibility with Article 6 independently of its conclusion under Article 4 of Protocol No. 7.",
"55. In particular, the Court reiterates that it has previously held that the institution of supervisory review can give rise to problems of legal certainty, as judgments in civil cases remained open to review indefinitely, on relatively minor grounds (see Brumărescu and Ryabykh, both cited above). The position regarding criminal cases is somewhat different, at least in so far as acquittals are concerned, as a review could only be requested during a period of one year following the date of the acquittal in question.",
"56. Moreover, the Court observes that the requirements of legal certainty are not absolute. In criminal cases, they must be assessed in the light of, for example, Article 4 § 2 of Protocol No. 7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings, which could affect the outcome of the case. The possibility of re-examining or reopening cases was also considered by the Committee of Ministers as a guarantee of restitution, particularly in the context of the execution of the Court ’ s judgments. In its Recommendation No. R (2000) 2 on the re - examination or reopening of certain cases at the domestic level following judgments of the European Court of Human Rights, it urged member States to ensure that their domestic legal systems provided for a procedure whereby a case could be re - examined or reopened.",
"57. The mere possibility of reopening a criminal case is therefore prima facie compatible with the Convention, including the guarantees of Article 6. However, certain special circumstances of the case may reveal that the actual manner in which it was used impaired the very essence of a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice.",
"58. The Court attaches particular weight to the argument that, in the applicant ’ s case, the Presidium was indeed only deciding the question whether the case was to be reopened or not. Had it quashed the acquittal, this would necessarily have entailed a separate set of adversarial proceedings on the merits before the competent courts. The decision by the Presidium thus marked a procedural step which was no more than a precondition to a new determination of the criminal charge. The Court notes that the Presidium of the Supreme Court dismissed the Procurator General ’ s request, having found that it relied on defects which it had been entirely within the prosecution ’ s control to redress before, not after, the final judgment. The Procurator General ’ s request could itself be criticised as being arbitrary and an abuse of process. However, it had no decisive impact on the fairness of the procedure for reopening as a whole, which was primarily a matter for the Presidium ’ s deliberation (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 -II ). Accordingly, the arbitrariness of the Procurator General ’ s request for a reopening could not be, and was not, prejudicial for the determination of the criminal charges in the present case.",
"59. The Court concludes that the authorities conducting the supervisory review in the present case did not fail to strike a fair balance between the interests of the applicant and the need to ensure the proper administration of justice.",
"60. As to the proceedings before the Presidium of the Supreme Court, their outcome was favourable to the applicant and he cannot therefore claim to be a victim of a violation of his right to a fair hearing in respect of those proceedings. Moreover, according to the established case-law of the Convention organs, Article 6 does not apply to proceedings concerning a failed request to reopen a case. Only the new proceedings, after the reopening has been granted, can be regarded as concerning the determination of a criminal charge (see, inter alia, X v. Austria, no. 7761 / 77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, p. 171 at p. 174, and Ruiz Mateos and Others v. Spain, no. 24469/94, Commission decision of 2 December 1994, DR 79 -B, p. 141).",
"61. Accordingly, the Court finds no violation of Article 6 § 1 of the Convention."
] |
229 | W.A. v. Switzerland | 2 November 2021 | This case concerned the ordering of preventive detention in respect of the applicant – a man who had serious psychiatric issues – after he had served a 20-year sentence for two homicides. The applicant complained in particular that he had been punished twice for the same crimes. | The Court held that there had been a violation of Article 4 of Protocol No. 7. It found in essence that by this detention, ordered in a reopening procedure in which there had not been any new evidence concerning the nature of the offence or the extent of the applicant’s guilt, he had been punished twice for the same offences. | Right not to be tried or punished twice (the non bis in idem | The definition of bis | [
"2. The applicant was born in 1960 and is currently detained in Regensdorf Prison. He was represented by Mr L. Erni, a lawyer practising in Zurich.",
"3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"The applicant’s conviction AND SENTENCE AND THE REOPENING OF THE PROCEEDINGS",
"5. By a judgment of 6/12 May 1993, as amended on 4 July 1995 following a remittal, the Zurich Jury Court ( Geschworenengericht ) convicted the applicant, inter alia, of murder and of intentional manslaughter and sentenced him to twenty years’ imprisonment. The court found that the applicant had murdered a man in a particularly violent manner in 1983. Owing to his personality disorder and his alcohol intoxication, as diagnosed by psychiatric expert G., his capacity to appreciate the wrongfulness of the act had been substantially diminished. Furthermore, in 1990, the applicant, acting again with substantially diminished criminal responsibility, had induced his then partner to strangle an acquaintance in their flat; no reason for the offence could be established. He had subsequently dismembered the woman’s corpse.",
"6. The court further decided not to order the applicant’s preventive detention under Article 43 § 1, sub-paragraph 2, of the Criminal Code (see paragraph 20 below). Having regard to the fact that preventive detention in practice rarely lasted more than five years, it considered that the aim of protecting society from the applicant, who was very dangerous as a result of his abnormal mental state which the expert had considered difficult to treat, could be better attained by the execution of a long term of imprisonment.",
"7. The applicant served his sentence until 8 October 2010. Thereafter, he was placed in detention on remand pending a decision on the Public Prosecution Office’s application lodged in 2009 for the applicant’s subsequent preventive detention under Article 65 § 2 of the Criminal Code, which had entered into force in 2007 (see paragraph 23 below).",
"8. On 2 March 2012 the Federal Court, contrary to the lower courts, found that there were new facts permitting a reopening of the proceedings to the detriment of the applicant under Article 65 § 2 of the Criminal Code. A new report issued in May 2009 by psychiatric expert P., using new analytic methods which had not yet existed in the 1990s, had concluded that the applicant had not been addicted to alcohol at the time of his offences, but had suffered from a dissocial personality disorder and from psychopathy, which could not be treated and led to a very high risk that the applicant would commit further violent offences. These new facts had not, and could not have been, known to the Jury Court when convicting the applicant. The proceedings were subsequently reopened.",
"The proceedings at issue",
"9. In the reopened proceedings, on 15 August 2013 the Zurich District Court ordered the applicant’s subsequent preventive detention under Article 65 § 2 read in conjunction with Article 64 § 1 (b) of the Criminal Code and section 2 § 1 (a) of the transitional provisions of the 13 December 2002 amendment to the Criminal Code read in conjunction with 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code (see paragraphs 20-21 and 23-24 below).",
"10. Having regard to a new report drawn up by psychiatric expert R. in June 2013, as well as the report drawn up by expert P. in 2009 (see paragraph 8 above), it found that the requirements for the preventive detention of the applicant had been met at the time of the applicant’s conviction in 1993 and were also currently met. The applicant, who had committed two capital offences, had suffered and was still suffering from a serious mental disorder, notably a serious dissocial personality disorder and psychopathy. There was a very high risk that the applicant would commit further serious violent offences owing to that disorder if released. A psychiatric treatment under Article 59 of the Criminal Code (see paragraphs 19 and 21 below) had little, if any, prospects of success.",
"11. After the Zurich Court of Appeal had dismissed the applicant’s appeal on 16 July 2014, the Federal Court, on 16 December 2015, equally dismissed the applicant’s further appeal.",
"12. As for the compliance of the retrospective application of measures such as the order for a person’s subsequent preventive detention under Article 65 § 2 of the Criminal Code with Article 7 § 1 of the Convention the Federal Court found that the prohibition on retrospective punishment applied to orders for preventive detention under Articles 64-65 of the Criminal Code. It argued that the order of preventive detention and the imposition of a penalty were similar both in their punishing effect and in their execution. Accordingly, the principle of “nulla poena sine lege” laid down in Article 1 of the Criminal Code (see paragraph 19 below) expressly covered both penalties and measures.",
"13. Consequently, the retrospective application of preventive detention measures to perpetrators who committed an offence, or were sentenced, prior to the entry into force of the new provisions of the Criminal Code in 2007 was only permitted if the new law was not stricter than the law applicable at the time of the offence. However, Article 65 § 2 read in conjunction with Article 64 § 1 and 64a § 1 of the Criminal Code did not lay down a heavier sanction as regards the order for, and the release from, preventive detention than the law applicable at the time of the offence.",
"14. Furthermore, Article 65 § 2 of the Criminal Code permitted a reopening of the proceedings to the convicted person’s detriment. Likewise, Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure (see paragraph 26 below) which had been applicable at the time of the applicant’s conviction, interpreted correctly (and other than the Court of Appeal had done), had permitted a reopening of the proceedings to the convicted person’s detriment if there were new facts or evidence. It was irrelevant that the Zurich Supreme Court (see paragraph 27 below), as well as the doctrine, had interpreted Article 443 § 2 of that Code as not applying to convicted persons, but only to acquitted ones. It had thus been possible already under the old law to quash a final judgment to the convicted person’s detriment owing to new considerable facts and evidence and to amend the judgment by the order of subsequent preventive detention. It was uncontested that both at the time of the applicant’s conviction and at present, the conditions for the applicant’s preventive detention (Article 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code and Article 64 of its current version) were met. Therefore, the subsequent order of preventive detention did not constitute a heavier penalty than the one applicable at the time of the offence.",
"15. For the same reasons, Article 4 of Protocol No. 7, enshrining the ne bis in idem principle, had not been breached. The requirements for a reopening of the case under Article 4 § 2 of Protocol No. 7 had been met. There were new facts which the sentencing court had not known and could not have known at the time and which showed that the requirements for preventive detention under Article 43 § 1 of the old version of the Criminal Code and Article 64 of its new version had been met already at the time of the conviction. There was no double punishment for the same offences as the initial judgment of the sentencing court had been quashed following the reopening of the proceedings.",
"16. The order for the applicant’s preventive detention further had not violated Article 5 § 1 of the Convention. It had been justified under sub ‑ paragraph (a) of that provision as detention “after conviction”. The reopening of the proceedings owing to new facts with the aim to impose a heavier sanction led to the finality of the initial judgment being set aside. By applying the rules on reopening proceedings (Article 410 of the Swiss Code of Criminal Procedure, see paragraph 25 below), the imposition of subsequent preventive detention became part of the initial judgment and thus had a sufficient causal connection with the criminal conviction contained therein.",
"17. It could therefore remain open whether the applicant’s preventive detention could also be based on sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. In any event, medical expertise had confirmed that the applicant suffered from a serious mental disorder as a result of which he posed a very high risk to the life and limb of others. In view of the seriousness of the applicant’s illness and the risk he posed his detention was necessary.",
"18. As regards the conditions of the applicant’s detention, the applicant kept being detained in Pöschwies Prison in Regensdorf after having served his term of imprisonment. He had neither completed any therapy while he served his prison sentence as he had continuously refused any therapeutic measures nor does he appear to have undergone therapy afterwards."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"Provisions of the Criminal Code",
"19. Under Article 1 of the Criminal Code, a penalty ( Strafe ) or a measure ( Massnahme ) may only be imposed for an act which the law expressly defines as an offence. Penalties comprise prison sentences and fines (see Articles 34 et seq. of the Criminal Code) whereas measures notably comprise institutional therapeutic treatment (see Articles 59 et seq. of the Criminal Code) and preventive detention (see Articles 64 et seq. of the Criminal Code).",
"20. The relevant provision on preventive detention of the former Criminal Code of 21 December 1937, as in force at the time of the applicant’s offences and conviction and until 31 December 2006, was worded as follows:",
"Article 43 (Measures concerning offenders with mental disorders)",
"“1. Where the mental state of an offender who, by reason of that state, has committed an act punishable by imprisonment under this Code requires medical treatment or special care intended to remove or reduce the risk that the offender might commit other such punishable acts, the court may order that he be sent to a hospital or an asylum. It may order outpatient treatment if the offender does not represent a danger to others.",
"If, on account of his mental state, the offender poses a severe threat to public safety and such a measure is necessary to prevent a danger to others, the court shall order his preventive detention. The detention shall take place in an appropriate institution.",
"The court shall deliver its judgment on the basis of an expert opinion concerning the offender’s physical and mental condition, and the necessity of preventive detention, treatment or care.",
"2. If the court orders (...) preventive detention, it suspends the execution of a term of imprisonment imposed. ...",
"4. The competent authority decides to lift the measure if the ground for ordering it ceased to exist. ...",
"5. The court decides (...) whether and in how far penalties which were suspended at the moment of discharge from an institution (...) shall still be executed. ...",
"The duration of a deprivation of liberty by the execution of the measure in an institution is to be deducted from the length of a term of imprisonment which had been suspended when the measure had been ordered. ...”",
"21. On 1 January 2007 an amended version of the Criminal Code entered into force. The relevant provisions on preventive detention provide as follows:",
"Article 64 (Preventive detention: requirements and execution)",
"“1. The court shall order preventive detention if the offender has committed premeditated murder, intentional homicide, serious assault, rape, robbery, hostage-taking, arson, endangering life or any other offence carrying a maximum custodial sentence of at least five years by which he has caused or intended to cause serious harm to the physical, psychological or sexual integrity of another, and if:",
"(a) on account of the offender’s personality traits, the circumstances of the offence and his personal history, there is serious cause to fear that he might commit further similar offences; or",
"(b) on account of a serious chronic or recurrent mental disorder linked to the offence, there is serious cause to fear that the offender might commit further similar offences and a measure under Article 59 appears to have no prospect of success. ...",
"2. The execution of a term of imprisonment precedes preventive detention. ...”",
"22. Article 64a § 1 of the amended Criminal Code provides that the offender is to be released from preventive detention and probation is to be granted once it can be expected that he or she will not commit further offences warranting preventive detention on release. Under Article 64b § 1 (a) of the Criminal Code, the competent authority examines, either on request or ex officio, at least once per year, and for the first time after two years, if and when the offender can be released from preventive detention under Article 64a § 1.",
"23. Furthermore, Article 65 was newly introduced into the Criminal Code on 1 January 2007 and provides:",
"Article 65 (Amendment of the sanction)",
"“1. If, before or during the execution of a custodial sentence or of preventive detention within the meaning of Article 64 § 1, an offender fulfils the requirements for an institutional therapeutic treatment, the court may order such a measure subsequently. The court with jurisdiction shall be the one that imposed the sentence or ordered the preventive detention. The execution of the remainder of the sentence shall be suspended.",
"2. If, during the execution of a custodial sentence, new facts or evidence come to light to the effect that the offender satisfies the requirements for preventive detention and that such requirements were already satisfied at the time of the conviction but could not have been known to the court, the court may order preventive detention subsequently. Jurisdiction and procedure shall be determined by the rules on reopening of proceedings.”",
"24. Section 2 of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, which entered into force on 1 January 2007, in so far as relevant, provides as follows:",
"“2. Imposition and execution of measures",
"(1) The provisions of the new law on measures (Articles 56-65) and on their execution (...) shall also apply to the perpetrators of acts committed or tried before those provisions come into force. However:",
"(a) The subsequent ordering of preventive detention under Article 65 § 2 shall be permitted only if such detention would also have been possible on the basis of Article 42 or Article 43 § 1, second sub-paragraph, of the former law; ...”",
"Provisions of the Code of Criminal Procedure",
"25. The Swiss Code of Criminal Procedure of 5 October 2007 replaced the cantonal Codes of Criminal Procedure on 1 January 2011. The relevant provision of the Swiss Code governing the admissibility of, and grounds for, a request to reopen proceedings provides:",
"Article 410",
"“Anyone who is adversely affected by a legally binding final judgment, ... may request that the proceedings be reopened if:",
"(a) new facts which had existed at the time of the decision, or new evidence have come to light which may lead to an acquittal, a considerably reduced or more severe penalty for the convicted person or the conviction of an acquitted person; ...”",
"26. The relevant provision of the Canton of Zurich’s Code of Criminal Procedure, on the reopening of proceedings to the detriment of an acquitted or convicted person, as in force until 31 December 2010, provided as follows:",
"Article 443",
"“The proceedings are reopened to the detriment of a person who was acquitted or convicted by a final decision:",
"(1) if, by an offence ..., for instance corruption or false testimony, the previous criminal proceedings had been influenced to the accused’s advantage;",
"(2) if the acquitted person made a credible confession in or outside court or if other facts or evidence were discovered which alone would be sufficient for the accused’s conviction.”",
"27. According to the Zurich Supreme Court, under Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure the reopening of proceedings to the detriment of an accused owing to new facts or evidence, having regard to the wording of that provision, was only possible in respect of an acquitted person, not in respect of a convicted person (see judgment of 14 October 1986, Blätter für Zürcherische Rechtsprechung [ZR] 86/1987, pp. 20-23, and judgment of 14 August 2000, ZR 100/2001, pp. 22-25).",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"28. The applicant complained that his subsequent preventive detention violated his right to liberty as provided in Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"...",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”",
"Admissibility",
"29. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"30. The applicant argued that his subsequent preventive detention had not complied with Article 5 § 1. In particular, it had not been covered by sub-paragraph (a) of that provision for lack of a causal link between his initial conviction and his detention. His subsequent detention had been ordered in 2013 by the Zurich District Court, more than 20 years after the Jury Court’s judgment in 1993/1995 and some three years after he had served his full sentence imposed in that judgment and thus after a considerable lapse of time. There had not been any new facts regarding his dangerousness which could create a link between his initial conviction and his subsequent detention.",
"31. The Government argued that the order for the applicant’s subsequent preventive detention had complied with Article 5 § 1. The order constituted a correction of the initial judgment of the Jury Court to the applicant’s detriment under Article 65 § 2 of the Criminal Code. As an order for the applicant’s preventive detention would already have been possible at the time of the applicant’s conviction, there remained a sufficient causal connection between his conviction in 1993/1995 and his subsequent detention ordered in 2013, for the purposes of sub-paragraph (a) of Article 5 § 1. Furthermore, the applicant suffered from a mental disorder, for the purposes of sub-paragraph (e) of Article 5 § 1, as confirmed by two psychiatric experts, namely P. in May 2009 and R. in June 2013 (see paragraphs 8 and 10 above).",
"The Court’s assessment",
"(a) Relevant principles",
"(i) Article 5 § 1 (a)",
"32. The Court has held in its case-law that the word “conviction” for the purposes of Article 5 § 1 (a), having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving the deprivation of liberty (see Del Río Prada v. Spain [GC], no. 42750/09, § 123, ECHR 2013, and Ruslan Yakovenko v. Ukraine, no. 5425/11, § 49, ECHR 2015).",
"33. Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from, “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the two ( M. v. Germany, no. 19359/04, § 88, ECHR 2009, and Del Río Prada, cited above, § 124, with further references).",
"34. In cases of preventive detention which had been ordered subsequently under German law, the Court has clarified that it is only the judgment of a sentencing court finding a person guilty of an offence which meets the requirements of a “conviction” for the purposes of the said provision. By contrast, a judgment ordering a person’s preventive detention subsequently in relation to a previous offence which that person had already been sentenced for does not satisfy the requirement of a “conviction” for the purposes of Article 5 § 1 (a) as it no longer involves a finding that the person is guilty of a (new) offence. Therefore, if in the sentencing court’s judgment, no order for the preventive detention of the offender was made, that judgment did not cover any preventive detention ordered subsequently and there was thus no sufficient causal connection between the applicant’s “conviction”, for the purposes of Article 5 § 1 (a), and his subsequent preventive detention (compare, inter alia, Haidn v. Germany, no. 6587/04, §§ 84-88, 13 January 2011; B v. Germany, no. 61272/09, §§ 72-76, 19 April 2012; S. v. Germany, no. 3300/10, §§ 85-90, 28 June 2012; and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 144, 4 December 2018).",
"35. In Kadusic v. Switzerland (no. 43977/13, 9 January 2018), which concerned a subsequent order of an institutional therapeutic measure under Swiss law, the Court was in principle prepared to accept that the order for an institutional measure amounted to a correction of the original judgment following the discovery of relevant new circumstances and that the fact that the measure was ordered in the context of proceedings for the review of a penalty imposed in a previous judgment may constitute a causal link between the initial conviction and the measure in issue, as required by the relevant case-law of the Court concerning sub-paragraph (a) of Article 5 § 1 ( ibid., § 50). However, in the circumstances of that case, the Court found that the detention which followed the (new) judgment in the review proceedings lacked a sufficient causal connection with the initial conviction for being incompatible with its aims. The Court considered that the measure in question, which had been imposed a considerable period after the applicant’s initial conviction, had not been based on a sufficiently recent expert report and that the applicant had been detained in an institution unsuited to his mental disorders ( ibid., §§ 53-60).",
"(ii) Article 5 § 1 (e)",
"36. As regards the deprivation of liberty of persons suffering from mental disorders, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see, among many other authorities, Ilnseher, cited above, § 127; Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019; and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 135, 1 June 2021).",
"37. The “lawfulness” of detention further requires that that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if it takes place in a hospital, clinic or other appropriate institution authorised for that purpose (see Ilnseher, cited above, § 134; Rooman, cited above, §§ 190 and 193; and Stanev v. Bulgaria [GC], no. 36760/06, § 147, ECHR 2012). Furthermore, the Court has had occasion to state that this rule applies even where the illness or condition is not curable or where the person concerned is not amenable to treatment (see Rooman, cited above, § 190).",
"38. The Court would further recall in that context that a lack of appropriate medical care for persons in custody is even capable of engaging a State’s responsibility under Article 3, notably in the case of detainees with mental disorders who are more vulnerable than ordinary detainees (compare Rooman, cited above, §§ 145-146, with further references).",
"(b) Application of the principles to the present case",
"39. The Court is called upon to determine, first, whether, in the light of the above principles, the applicant’s subsequent preventive detention at issue was justified under sub-paragraph (a) of Article 5 § 1, as the Government had argued in line with the findings of the Federal Court, as detention “after conviction”. It observes at the outset that only the judgment of the Zurich Jury Court of 1993/1995, as confirmed on appeal, in which it had been established that the applicant was guilty, in particular, of having committed two capital offences, and was sentenced to twenty years’ imprisonment, could provide a basis of the applicant’s preventive detention for the purposes of Article 5 § 1 (a). By contrast, the order made by the Zurich District Court on 15 August 2013, and confirmed on appeal, for the applicant’s subsequent detention, did not itself constitute a “conviction” as required under Article 5 § 1 (a) as it did not involve the establishment of a (new) offence and a finding of guilt thereof.",
"40. The Court further notes that the sentencing court’s judgment of 1993/1995 and the judgment ordering the applicant’s subsequent preventive detention in 2013 are linked as a result of the application of the rules on the reopening of proceedings (see Article 65 § 2 of the Criminal Code, at paragraph 23 above). According to the Federal Court, the application of these rules led to the order of subsequent preventive detention becoming part of the initial judgment of the sentencing court (see paragraph 16 above).",
"41. In determining whether, in these circumstances, there had been a sufficient causal connection between the applicant’s “conviction” by the Zurich Jury Court in 1993/1995 and his subsequent preventive detention, the Court recalls that it had been prepared to accept in the case of Kadusic (concerning an order for an institutional measure) that the fact that a measure was ordered in the context of proceedings for the review of a penalty imposed in a previous judgment may constitute a causal link between the initial conviction and the measure in question (see paragraph 37 above).",
"42. The Court reiterates that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Mihalache v. Romania [GC], no. 54012/10, § 92, 8 July 2019, with further references). It notes that the Convention system accepts that the finality of a criminal court’s judgment can be set aside and the judgment be amended to the convicted person’s detriment in accordance with the national law of a Convention State in exceptional cases, notably if there is evidence of new or newly discovered facts which could affect the outcome of the case (compare Article 4 § 2 of Protocol No. 7 to the Convention). However, where a State relies on such a procedure in order to create a causal link between an initial, final conviction of a person in a judgment which did not impose the deprivation of liberty in question and the subsequent imposition of a new, additional deprivation of liberty, the Court can only accept the existence of such a causal link where the initial criminal proceedings are truly “reopened” following the discovery of new facts or evidence which are so significant as to potentially affect the “outcome of the case”. A “reopening” usually means that the initial judgment of the criminal court is annulled and the criminal charge is determined anew in a fresh decision (compare Nikitin v. Russia, no. 50178/99, §§ 45-46, ECHR 2004 ‑ VIII, and Xheraj v. Albania, no. 37959/02, § 73, 29 July 2008).",
"43. The Court observes that in the present case, the commission by the applicant of the capital offences he had been found guilty of in 1993/1995 has not been re-assessed or re-established in the reopened proceedings at issue. Nor has the term of 20 years’ imprisonment imposed in 1993/1995 –and which the applicant has fully served – been re-examined. In line with the requirements of Article 65 § 2 of the Criminal Code, the domestic courts only examined whether the requirements for an additional preventive detention of the applicant were met and had already been met at the time of his conviction without this having been known to the sentencing court.",
"44. The Court considers that in these circumstances, no fresh determination of a criminal charge in a new decision is made in the reopened proceedings at issue. The proceedings de facto amount to the imposition of an additional sanction aimed at protecting society for an offence which the applicant has previously been convicted of, without there being new elements affecting the nature of the offence or the extent of the applicant’s guilt (compare also the facts at issue in the Court’s Grand Chamber judgment in Ilnseher, cited above, § 144).",
"45. In these circumstances, the preventive detention was incompatible with the aims of the applicant’s initial conviction. The Court therefore cannot accept that the reopening procedure in question created a causal link between the initial conviction and the subsequent preventive detention. As the applicant’s “conviction” in 1993/1995 did not comprise a preventive detention order, there was consequently no causal link between that conviction and the applicant’s subsequent preventive detention, for the purposes of Article 5 § 1 (a) and his detention was thus not justified under that provision.",
"46. As to whether the applicant’s subsequent preventive detention could be justified under Article 5 § 1 (e), the Court agrees with the Government that the applicant was a person “of unsound mind” for the purposes of that provision. It notes, in particular, that in the proceedings at issue, the domestic courts established that the applicant suffered from a serious personality disorder and psychopathy and that, owing to that condition, there was a very high risk that he would commit further serious violent offences if released (see paragraph 10 above). However, preventive detention is usually executed in a similar manner as a term of imprisonment (compare paragraph 12 above) and the applicant has indeed been detained in an ordinary prison. Therefore, the applicant has not been detained in an institution suitable for the detention of mental health patients. The Court recalls that the placement of a person detained as a mental health patient in an appropriate institution for such patients is required even if the condition of the person concerned proved not to be amenable to treatment (see paragraph 37 above). The applicant’s detention was thus not “lawful” for the purposes of Article 5 § 1 (e).",
"47. The Court further takes the view – and this is uncontested by the parties – that none of the other sub-paragraphs of Article 5 § 1 can serve to justify the applicant’s detention at issue.",
"48. There has accordingly been a violation of Article 5 § 1 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION",
"49. The applicant complained that the order for his subsequent preventive detention had breached the prohibition on retrospective punishment laid down in Article 7 § 1 of the Convention, which reads as follows:",
"“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”",
"Admissibility",
"50. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"51. The applicant argued that the order for his subsequent preventive detention, a penalty, breached the prohibition on retrospective punishment under Article 7 § 1. At the time of the Jury Court’s judgment against him, it had not yet been possible to order preventive detention retrospectively. Under the clear wording of Article 443 of the Canton of Zurich’s Code of Criminal Procedure, as interpreted by the then alone competent Zurich Supreme Court (see paragraph 27 above), a revision of a judgment to the detriment of the accused owing to new facts or evidence was only possible against an acquitted person, not against a convicted person as himself. Therefore, the order for his subsequent detention constituted an additional, and heavier penalty as the penalty he risked incurring at the time of his conviction.",
"52. The Government submitted that the order for the applicant’s subsequent preventive detention had not breached Article 7 § 1. As the Federal Court had confirmed, that measure was a “penalty” for the purposes of Article 7 § 1 as it was very similar to a penalty and was executed in a similar manner. However, no heavier penalty had been imposed on the applicant than the one applicable at the time of his offence. Under Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure, the Jury Court’s judgment could already be revised to the applicant’s detriment at the time of his conviction in 1993/1995, as the Federal Court had found in its first interpretation of this provision in the judgment in the applicant’s case, in line with part of the doctrine. Article 65 § 2 of the Criminal Code equally authorised a revision to the applicant’s detriment. The conditions for the applicant’s preventive detention had been met both under the law in force at the time of the applicant’s conviction (Article 43 § 1, sub ‑ paragraph 2, of the Criminal Code) and under the current Article 65 § 2 of the Criminal Code.",
"The Court’s assessment",
"(a) Relevant principles",
"53. As for the autonomous concept of “penalty” in Article 7 § 1, the Court refers to the principles summarised, inter alia, in M. v. Germany (cited above, § 120); Del Río Prada (cited above, §§ 81-82); and Ilnseher (cited above, § 203).",
"54. The Court has pointed out that when speaking of “law” (« droit» ) Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Del Río Prada, cited above, § 91, and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 154, ECHR 2015). Those qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries (see Del Río Prada, cited above, § 91, and Jidic v. Romania, no. 45776/16, § 79, 18 February 2020).",
"55. As for the imposition of a “heavier” penalty “than the one that was applicable at the time the criminal offence was committed”, the Court found notably in the case of K. v. Germany (no. 61827/09, 7 June 2012) in respect of retrospective, or subsequent, preventive detention under German law that it amounted to such a “heavier” sanction imposed with retrospective effect. It found that at the time of that applicant’s offences, it had not been possible to place the applicant in preventive detention by a retrospective order, made after his conviction by the sentencing court – which, in any event, had not ordered his preventive detention – had become final. The provision on which that applicant’s subsequent preventive detention had been based had only been inserted into the Criminal Code after the applicant’s offences (see ibid., §§ 84-86).",
"56. In the case of Kadusic (cited above), a case concerning a subsequent order of an institutional therapeutic measure following the reopening of proceedings under Swiss law on the basis of Article 65 of the Criminal Code, which entered into force after the commission of the applicant’s offences, the Court concluded that there had been no retrospective imposition of a heavier penalty. The Court observed that that applicant had not provided any convincing reasons to cast doubt on the Government’s assertion that by ordering an institutional therapeutic measure following the reopening, the domestic courts had not imposed a heavier penalty than the one that would already have been applicable at the time of the criminal courts’ decisions, when Article 43 § 1, sub-paragraph 2, of the Criminal Code, would have permitted the applicant’s preventive detention. Nor had the applicant maintained that a review of the original decision would not have been possible under the former legislation, which at the time was formed by cantonal law ( ibid., §§ 71-76).",
"(b) Application of the principles to the present case",
"57. The Court agrees that the applicant’s preventive detention, given notably its imposition by the criminal courts by reference to a conviction for a criminal offence, its characterisation as being similar to a penalty under domestic law (see paragraphs 12 and 19 above) and the fact that it entails deprivation of liberty of indefinite duration executed in prison, in which the applicant does not appear to undergo any therapy (see paragraph 18 above), is to be classified as a “penalty” for the purposes of Article 7 § 1.",
"58. In determining whether the applicant’s subsequent preventive detention at issue constituted a “heavier” penalty “than the one that was applicable at the time the criminal offence was committed”, the Court observes at the outset that at the time of the applicant’s offences, it had not been possible to place him in preventive detention by a retrospective order, made after his conviction by the sentencing court in 1993/1995 – which, in any event, had not ordered his preventive detention – had become final. Article 65 § 2 read in conjunction with Article 64 § 1 (b) of the Criminal Code, on which the applicant’s subsequent preventive detention had been based, had only been inserted into the Criminal Code on 1 January 2007, after the applicant’s offences committed notably in 1983 and 1990. The Court notes in addition that, at the time of the applicant’s offences, preventive detention ordered in a sentencing court’s judgment was executed prior to a term of imprisonment ordered in the same judgment (Article 43 § 2 of the former Criminal Code, see paragraph 20 above). Once preventive detention was terminated as the reasons for such detention no longer prevailed (Article 43 § 4 of the said Code), the execution of the additional term of imprisonment was either equally ended or the duration of preventive detention was at least deducted from the term of imprisonment which was still to be served (Article 43 § 5 of the said Code). In contrast, under the new, amended version of the Criminal Code (Article 64 § 2, see paragraph 21 above), a term of imprisonment was executed prior to a preventive detention order made in the same judgment and the person concerned was thus liable to be detained for a longer period of time.",
"59. These findings must lead the Court to conclude that a “heavier” penalty was imposed on the applicant retrospectively.",
"60. Consequently, the subsequent order for the applicant’s preventive detention amounted to a retrospective imposition of a heavier penalty. There has accordingly been a violation of Article 7 § 1 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 4 of PROTOCOL No. 7 TO THE CONVENTION",
"61. The applicant complained that the order for his subsequent preventive detention also violated Article 4 of Protocol No. 7 to the Convention, which enshrines the ne bis in idem principle and which, in so far as relevant, reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. ...”",
"Admissibility",
"62. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"63. The applicant submitted that the order for his subsequent preventive detention had breached his right under Article 4 § 1 of Protocol No. 7 not to be punished twice for an offence for which he had already been finally convicted. The requirements of paragraph 2 of that provision had not been met. There had not been any new facts. At the moment of his conviction, the Jury Court had already been aware of his dangerousness, but had refrained from ordering his preventive detention only because of the practice of its execution at the time. A change in this practice was not, however, a new fact authorising a reopening of the case. Likewise, the findings of expert P. did not constitute new facts for the purposes of Article 4 § 2 of Protocol No. 7.",
"64. In the Government’s submission, Article 4 of Protocol No. 7 had been complied with. The case against the applicant had been reopened in accordance with paragraph 2 of that provision owing to new facts. The assessment of the applicant’s health and dangerousness in expert P.’s psychiatric report had been based on new scientific knowledge which had not yet existed at the time of the Jury Court’s judgment. The sentencing Jury Court had neither been aware, nor could it have been aware, of the exact nature of the applicant’s mental disorder, a dissocial personality disorder. Furthermore, it had not known, and could not have known, that the applicant was particularly dangerous not as a result of an excessive consumption of alcohol, as expert G. heard by the Jury Court had found, and which he might refrain from, but as a result of a permanent personality disorder.",
"The Court’s assessment",
"(a) Relevant principles",
"65. Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters. As the Court has stated on many occasions, the requirements of legal certainty are not absolute, and in criminal cases, they must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits Contracting States to reopen a case where new facts emerge, or where a fundamental defect is detected in the proceedings (see Mihalache, cited above, § 129).",
"66. Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, subject to the following strict conditions: the decision to reopen the case must be justified by the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings which could affect the outcome of the case. Those conditions are alternative and not cumulative (ibid., §§ 128 and 130, 8 July 2019, with further references).",
"67. The Court has accepted that there has been a “reopening”, or resumption of the initial trial in exceptional circumstances, which is provided for in Article 4 § 2 of Prot. No. 7, as opposed to a “second trial”, which is prohibited by Article 4 § 1 of that Protocol, where the procedure in question led to the initial judgment of the criminal court being annulled and the criminal charge being determined anew in a fresh decision (compare Nikitin, cited above, §§ 45-46, and Xheraj, cited above, § 73).",
"68. According to the Court’s case-law, circumstances relating to the case which exist during the trial, but remain hidden from the judge, and become known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new”. Moreover, the term “new or newly discovered facts” includes new evidence relating to previously existing facts (ibid., § 131).",
"69. Lastly, in all cases, the grounds justifying the reopening of proceedings must, according to Article 4 § 2 of Protocol No. 7 in fine, be such as to “affect the outcome of the case” either in favour of the person or to his or her detriment (ibid., § 133 in fine ).",
"(b) Application of the principles to the present case",
"70. The Court considers that the applicant had been finally convicted, for the purposes of Article 4 § 1 of Prot. No. 7, notably of two capital offences by the Zurich Jury Court in 1993/1995 prior to the proceedings here at issue, in which the Swiss criminal courts imposed another punishment, namely subsequent preventive detention, in relation to the same offences.",
"71. The Federal Court found, and the Government argued, that this sanction had been imposed following the reopening of the trial in exceptional circumstances, in accordance with the requirements of Article 4 § 2 of Protocol No. 7. The Court observes that this provision accepts a “reopening” of the case owing to new or newly discovered facts which are so significant as to potentially affect the “outcome of the case”. Accordingly, a “reopening”, for the purposes of Article 4 § 2 of Protocol No. 7, usually leads to the initial judgment of the criminal court being annulled and the criminal charge being determined anew in a fresh decision. However, as found above (see paragraphs 42-45), the reopening at issue in the present case did not require any new elements affecting the nature of the offences committed by the applicant or the extent of his guilt and no fresh determination of a criminal charge in a new decision was, or was to, be made. Accordingly, the Court concludes that the applicant’s case was not reopened, for the purposes of Article 4 § 2 of Protocol No. 7.",
"72. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"73. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"74. The applicant requested 100,000 Swiss francs (CHF) per year of detention since 18 October 2010, when he should have been released from prison, in respect of non-pecuniary damage suffered as a result of his detention in breach of the Convention.",
"75. The Government considered that, if the Court found that the applicant had been detained in breach of the Convention, a total sum of 40,000 euros (EUR) would be justified in compensation for non-pecuniary damage.",
"76. The Court, having regard to the fact that it found violations of Articles 5 § 1 and 7 § 1 of the Convention and Article 4 § 1 of Protocol No. 7 as a result of the proceedings in which the applicant’s subsequent preventive detention had been ordered, and in so far as the applicant’s detention was based on that order (and not on subsequent judicial review decisions regarding that detention), awards the applicant EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.",
"Costs and expenses",
"77. The applicant also claimed a total of CHF 18,525.80 for the costs and expenses incurred in the proceedings before the Court. These comprised CHF 16,435.80 (including value-added tax (VAT)) for lawyer’s costs and expenses and CHF 2,090 for the costs of the translation of his observations into English.",
"78. The Government considered a sum of EUR 2,700 for lawyer’s costs and expenses incurred in the proceedings before the Court as sufficient, given that the questions before the Court had already been raised and addressed in the proceedings before the domestic courts.",
"79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.",
"Default interest",
"80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
230 | Marguš v. Croatia | 27 may 2014 (Grand chamber) | This case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he had been convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act. | The Court held that Article 4 of Protocol No. 7 was not applicable in respect of the charges relating to the offences which had been the subject of proceedings against the applicant terminated in 1997 in application of the General Amnesty Act. It noted in particular that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable and found that by bringing a new indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention and consistent with the recommendations of various international bodies. | Right not to be tried or punished twice (the non bis in idem | The definition of bis | [
"I. THE CIRCUMSTANCES OF THE CASE",
"12. The applicant was born in 1961 and is currently serving a prison sentence in Lepoglava State Prison.",
"A. The first set of criminal proceedings against the applicant (no. K ‑ 4/97)",
"13. On 19 December 1991 the Osijek Police Department lodged a criminal complaint against the applicant and five other persons with the Osijek County Court, alleging that the applicant, a member of the Croatian army, had killed several civilians.",
"14. On 20 April 1993 the Osijek Military Prosecutor indicted the applicant before the Osijek County Court on charges of murder, inflicting grievous bodily harm, causing a risk to life and assets, and theft. The relevant part of the indictment reads :",
"“ The first accused, Fred Marguš",
"1. On 20 November 1991 at about 7 a.m. in Čepin ... fired four times at S.B. with an automatic gun ... as a result of which S.B. died;",
"...",
"2. At the same time and place as under (1) ... fired several times at V.B. with an automatic gun ... as a result of which V.B. died;",
"...",
"3. On 10 December 1991 took N.V. to the ‘ Vrbik ’ forest between Čepin and Ivanovac ... and fired at him twice with an automatic gun ... as a result of which N.V. died;",
"...",
"4. At the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died;",
"...",
"6. On 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage;",
"...",
"7. On 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...;",
"...",
"8. On 1 August 1991 at 3.30 p.m. in Čepin ... fired at R.C., causing him slight bodily injury and then ... kicked V.Ž ... causing him grievous bodily injury ... and also kicked R.C. ... causing him further slight bodily injuries ...;",
"...",
"9. Between 26 September and 5 October 1991 in Čepin ... stole several guns and bullets ...;",
"...”",
"He was further charged with appropriating several tractors and other machines belonging to other persons.",
"15. On 25 January 1996 the Osijek Deputy Military Prosecutor dropped the charges under counts 3, 4, 6, 7 and 9 of the indictment as well as the charges of appropriating goods belonging to others. A new count was added, by which the applicant was charged with having fired, on 20 November 1991 at about 7 a.m. in Čepin, at a child, Sl.B ., causing him grievous bodily injury. The former count 8 of the indictment thus became count 4.",
"16. On 24 September 1996 the General Amnesty Act was enacted. It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in Croatia between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including the crime of genocide (see paragraph 2 7 below).",
"17. On 24 June 1997 the Osijek County Court, sitting as a panel presided over by Judge M.K., terminated the proceedings pursuant to the General Amnesty Act. The relevant part of this ruling reads:",
"“The Osijek County Court ... on 24 June 1997 has decided as follows: the criminal proceedings against the accused Fred Marguš on two charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the Osijek County State Attorney ’ s Office ... on 10 February 1997 are to be concluded under section 1(1) and (3) and section 2(2) of the General Amnesty Act.",
"...",
"Reasoning",
"The indictment of the Osijek Military State Attorney ’ s Office no. Kt-1/93 of 20 April 1993 charged Fred Marguš with three offences of aggravated murder under Article 35 § 1 of the Criminal Code; one offence of aggravated murder under Article 35 § 2(2) of the Criminal Code; two criminal offences of causing a risk to life and assets ... under Article 153 § 1 of the Criminal Code; one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code; one criminal offence of theft of weapons or other fighting equipment under Article 223 §§ 1 and 2 of the Criminal Code; and one criminal offence of aggravated theft under Article 131 § 2 of the Criminal Code ...",
"The above indictment was significantly altered at a hearing held on 25 January 1996 before the Osijek Military Court, when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and the legal classification of some of the offences.",
"Thus, the accused Fred Marguš was indicted for two offences of murder under Article 34 § 1 of the Criminal Code, one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code and one criminal offence of causing a risk to life and assets ... under Article 146 § 1 of the Criminal Code ...",
"After the military courts had been abolished, the case file was forwarded to the Osijek County State Attorney ’ s Office, which took over the prosecution on the same charges and asked that the proceedings be continued before the Osijek County Court. The latter forwarded the case file to a three-judge panel in the context of application of the General Amnesty Act.",
"After considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the General Amnesty Act have been met and that the accused is not excluded from amnesty.",
"The above-mentioned Act provides for a general amnesty in respect of criminal offences committed during the aggression, armed rebellion or armed conflicts .... in the Republic of Croatia. The general amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996.",
"The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes, and certain criminal offences listed in section 3 of the General Amnesty Act. It also excludes the perpetrators of other criminal offences under the Criminal Code ... which were not committed during the aggression, armed rebellion or armed conflicts and which are not connected with the aggression, armed rebellion or armed conflicts in Croatia.",
"The accused, Fred Marguš, is indicted for three criminal offences committed in Čepin on 20 November 1991 and one criminal offence committed in Čepin on 1 August 1991.",
"The first three of these offences concern the most difficult period and the time of the most serious attacks on Osijek and Eastern Croatia immediately after the fall of Vukovar, and the time of the most severe battles for Laslovo. In those battles, the accused distinguished himself as a combatant, showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of the Third Battalion of the 106th Brigade of the Croatian army, who was his superior officer at that time.",
"In the critical period concerning the first three criminal offences, the accused was acting in his capacity as a member of the Croatian army; in that most difficult period, acting as commander of a unit, he tried to prevent the fall of a settlement into enemy hands, when there was an immediate danger of this happening. The fourth criminal offence was committed on 1 August 199 1, when the accused was acting in his capacity as an on-duty member of the Reserve Forces in Čepin and was dressed in military camouflage uniform and using military weapons.",
"...",
"The actions of the accused, in view of the time and place of the events in issue, were closely connected with the aggression, armed rebellion and armed conflicts in Croatia, and were carried out during the period referred to in the General Amnesty Act.",
"...",
"Against this background, this court finds that all the statutory conditions for application of the General Amnesty Act have been met ...”",
"18. On an unspecified date the State Attorney lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with the Supreme Court, asking it to establish that section 3(2) of the General Amnesty Act had been violated.",
"19. On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above ruling of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant parts of the Supreme Court ’ s ruling read:",
"“...",
"Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and trial for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflicts ... in Croatia. Under paragraph 3 of the same section the amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. ...",
"For the correct interpretation of these provisions – apart from the general condition that the criminal offence in question had to have been committed in the period between 17 August 1990 and 23 August 1996 (which has been met in the present case) – there must exist a direct and significant connection between the criminal offence and the aggression, armed rebellion or armed conflicts. This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it. Therefore, the above provisions have to be interpreted in a sensible manner, with the necessary caution, so that the amnesty does not become a contradiction of itself and call into question the purpose for which the Act in question was enacted. Hence, the expression ‘ in connection with the aggression, armed rebellion or armed conflicts ’ used in the General Amnesty Act, which does not specifically define the nature of that connection, has to be interpreted to mean that the connection must be direct and significant.",
"...",
"Part of the factual description of the criminal offences with which the accused Fred Marguš is charged ... which suggests some connection with the aggression against the Republic of Croatia or armed rebellion and armed conflicts in Croatia, relates to the arrival of the victims of these offences – S.B., V.B. and the minor Sl.B. – in Čepin, together with their neighbours, after they had all fled the village of Ivanovac on account of the attack by the so-called ‘ Y[ ugoslav ] P[ eoples ’ ] A[ rmy ] ’. It should be stressed that it is not in dispute that the accused Fred Marguš was a member of the Croatian army. However, these circumstances are not such as to amount to a direct link with the aggression, armed rebellion or armed conflicts in Croatia which is required for the General Amnesty Act to apply.",
"The factual description of the criminal offences under count 4 of the indictment states that the accused committed these acts as a member of the Reserve Forces in Čepin, after his tour of duty had terminated. This characteristic in itself does not represent a significant link between the criminal offences and the war because, were this to be the case, the amnesty would encompass all criminal offences committed between 27 August 1990 and 23 August 1996 by members of the Croatian army or the enemy units (save for those specifically listed in section 3(1) of the General Amnesty Act); this was certainly not the intention of the legislature.",
"Finally, the accused ’ s war career, described in detail in the impugned ruling, cannot be a criterion for application of the General Amnesty Act ...",
"The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression, armed rebellion or armed conflicts in Croatia, or that they were committed in connection with them.",
"...”",
"B. The second set of criminal proceedings against the applicant (no. K-33/06)",
"20. On 26 April 2006 the Osijek County State Attorney ’ s Office indicted the applicant on charges of war crimes against the civilian population. The proceedings were conducted by a three-judge panel of the Osijek County Court, including Judge M.K. During the entire proceedings the applicant was represented by a lawyer.",
"21. A concluding hearing was held on 19 March 2007 in the presence of, inter alia, the applicant and his defence lawyer. The applicant was removed from the courtroom during the closing arguments of the parties. The applicant ’ s lawyer remained in the courtroom and presented his closing arguments. The relevant part of the written record of that hearing reads as follows:",
"“The President of the panel notes that the accused Marguš interrupted the Osijek County Deputy State Attorney ( ‘ the Deputy State Attorney ’ ) in his closing arguments and was warned by the panel to calm down; the second time he interrupted the Deputy State Attorney he was warned orally.",
"After the President of the panel warned the accused Marguš orally, the latter continued to comment on the closing arguments of the Deputy State Attorney. The panel therefore decides, and the president of the panel orders, that the accused Marguš be removed from the courtroom until the pronouncement of the judgment.",
"...”",
"22. The applicant was subsequently removed from the courtroom and the Deputy State Attorney, the lawyers for the victims, the defence lawyers and one of the accused gave their closing arguments.",
"23. The pronouncement of the judgment was scheduled for 21 March 2007 and the hearing was concluded. The applicant was present at the pronouncement of the judgment. He was found guilty as charged and sentenced to fourteen years ’ imprisonment. The relevant part of the judgment reads as follows:",
"“...",
"The accused Fred Marguš ...",
"and",
"the accused T.D. ...",
"are guilty [in that]",
"in the period between 20 and 25 November 1991 in Čepin and its surroundings, contrary to Article 3 § 1 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 4 §§ 1 and 2(a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People ’ s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, Fred Marguš, in his capacity as the commander of Unit 2 in the 3rd Corps of the 130th brigade of the Croatian army, and the accused T.D., as a member of the same Unit under the command of Fred Marguš, [acted as follows] with the intention of killing Serb civilians;",
"the accused Fred Marguš",
"(a) on 20 November 1991 at about 8 a.m. in Čepin, recognised V.B. and S.B. who were standing ... in front of the Fire Brigade Headquarters in Ivanovac and were fleeing their village because of the attacks by the Yugoslav People ’ s Army, ... fired at them with an automatic gun ... which caused S.B. to sustain a gunshot wound to the head ... and neck as a result of which S.B. immediately died, while V.B. was wounded and fell to the ground. The accused then drove away and soon afterwards came back, and, seeing that V.B. was still alive and accompanied by his nine-year-old son Sl.B. and ... his wife M.B., again fired the automatic gun at them, and thus shot V.B. twice in the head ... twice in the arm ... as a result of which V.B. soon died while Sl.B. was shot in the leg ... which amounted to grievous bodily harm;",
"(b) in the period between 22 and 24 November 1991 in Čepin, arrested N.V. and Ne.V ., threatening them with firearms, appropriated their Golf vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and, together with the members of his Unit ... beat and insulted them, asked them about their alleged hostile activity and possession of a radio set, and during that time prevented other members of the Unit from helping them ... after which he took them out of Čepin to a forest ... where they were shot with several bullets from firearms ... as a result of which N.V. ... and Ne.V. died;",
"(c) on 23 November 1991 at about 1.30 p.m. at the coach terminal in Čepin, arrested S.G. and D.G. and their relative Lj.G. and drove them to a house ... tied their hands behind their backs and, together with the late T.B., interrogated them about their alleged hostile activity and in the evening, while they were still tied up, drove them out of Čepin ... where he shot them ... as a result of which they died;",
"the accused Fred Marguš and T.D. [acting] together",
"(d) on 25 November 1991 at about 1 p.m. in Čepin, on seeing S.P. driving his Golf vehicle ... stopped him at the request of Fred Marguš ... ... and drove him to a field ... where ... Fred Marguš ordered T.D. to shoot S.P., [an order] which T.D. obeyed, shooting S.P. once ... after which Fred Marguš shot him several times with an automatic gun ... as a result of which S.P. ... died and Fred Marguš appropriated his vehicle.",
"...”",
"24. The applicant ’ s conviction was upheld by the Supreme Court on 19 September 2007 and his sentence was increased to fifteen years ’ imprisonment. The relevant part of the judgment by the Supreme Court reads as follows:",
"“Under Article 36 § 1(5) of the Code of Criminal Procedure (CCP), a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a ruling of a lower court or if he participated in adopting the impugned ruling.",
"It is true that Judge M.K. participated in the proceedings in which the impugned judgment was adopted. He was the President of a panel of the Osijek County Court which adopted the ruling ... of 24 June 1997 by which the proceedings against the accused Fred Marguš were terminated under section 1(1) and (3) and section 2(2) of the General Amnesty Act ...",
"Even though both sets of proceedings were instituted against the same accused, it was not the same case. The judge in question participated in two different cases before the Osijek County Court against the same accused. In the case in which the present appeal has been lodged, Judge M.K. did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy.",
"...",
"The accused incorrectly argued that the first-instance court had acted contrary to Article 346 § 4 and Article 347 §§ 1 and 4 of the CCP when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments. Thus, he claimed, he had been prevented from giving his closing arguments. Furthermore, he had not been informed about the conduct of the hearing in his absence, and the decision to remove him from the courtroom had not been adopted by the trial panel.",
"Contrary to the allegations of the accused, the written record of the hearing held on 19 March 2007 shows that the accused Fred Marguš interrupted the [Osijek] County Deputy State Attorney in his closing arguments and was twice warned by the President of the trial panel. Since he continued with the same behaviour, the trial panel decided to remove him from the courtroom ...",
"Such action by the trial court is in conformity with Article 300 § 2 of the CCP. The accused Fred Marguš started to disturb order in the courtroom during the closing arguments of the [Osijek County Deputy] State Attorney and persisted in doing so, after which he was removed from the courtroom by a decision of the trial panel. He was again present in the courtroom when judgment was pronounced on 21 March 2007.",
"Since the trial court complied fully with Article 300 § 2 of the CCP, the accused ’ s appeal is unfounded. In the case in issue there has been no violation of the defence rights, and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment.",
"...",
"The accused Fred Marguš further argues ... that the impugned judgment violated the ne bis in idem principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ...",
"...",
"It is true that criminal proceedings were conducted before the Osijek County Court under the number K-4/97 against the accused Fred Marguš in respect of, inter alia, four criminal offences ... of murder ... committed against S.B., V.B., N.V. and Ne.V, as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final ruling of the Osijek County Court no. Kv - 99/97 (K-4/97) of 24 June 1997 on the basis of the General Amnesty Act ...",
"Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before the Osijek County Court under the number K - 4/97, namely the deaths of S.B., V.B., N.V. and Ne.V. and the grievous bodily injury of Sl.B ., are also part of the factual background [to the criminal offences assessed] in the proceedings in which the impugned judgment has been adopted, the offences [tried in the two sets of criminal proceedings in issue] are not the same.",
"Comparison between the factual background [to the criminal offences assessed] in both sets of proceedings shows that they are not identical. The factual background [to the offences referred to] in the impugned judgment contains a further criminal element, significantly wider in scope than the one forming the basis for the proceedings conducted before the Osijek County Court under the number K-4/97. [In the present case] the accused Fred Marguš is charged with violation of the rules of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, in that, in the period between 20 and 25 November 1991, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People ’ s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, and in violation of the rules of international law, he killed and tortured civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the assets of the civilian population. The above acts constitute a criminal offence against the values protected by international law, namely a war crime against the civilian population under Article 120 § 1 of the Criminal Code.",
"Since the factual background to the criminal offence in issue, and its legal classification, differ from those which were the subject of the earlier proceedings, such that the scope of the charges against the accused Fred Marguš is significantly wider and different from the previous case (case-file no. K-4/97), the matter is not res judicata ...”",
"25. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 30 September 2009. The Constitutional Court endorsed the views of the Supreme Court.",
"I. The United Nations Human Rights Committee",
"1. General Comment No. 20, Article 7 (Forty-fourth session, 1992)",
"48. The United Nations Human Rights Committee noted in 1992 in its General Comment No. 20 on Article 7 of the International Covenant that some States had granted amnesty in respect of acts of torture. It went on to state that “[a] mnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible”.",
"2. Concluding observations, Lebanon, 1 April 1997",
"49. Paragraph 12 reads as follows:",
"“12. The Committee notes with concern the amnesty granted to civilian and military personnel for human rights violations they may have committed against civilians during the civil war. Such a sweeping amnesty may prevent the appropriate investigation and punishment of the perpetrators of past human rights violations, undermine efforts to establish respect for human rights, and constitute an impediment to efforts undertaken to consolidate democracy.”",
"3. Concluding observations, Croatia, 30 April 2001",
"50. Paragraph 11 reads as follows:",
"“The Committee is concerned with the implications of the Amnesty Law. While that law specifically states that the amnesty does not apply to war crimes, the term ‘ war crimes ’ is not defined and there is a danger that the law will be applied so as to grant impunity to persons accused of serious human rights violations. The Committee regrets that it was not provided with information on the cases in which the Amnesty Law has been interpreted and applied by the courts.",
"The State party should ensure that in practice the Amnesty Law is not applied or utilized for granting impunity to persons accused of serious human rights violations. ”",
"4. General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004",
"“18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7).",
"Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility.",
"...”",
"J. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [5]",
"51. The relevant parts of this Convention provide:",
"Article 4",
"“1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.",
"2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”",
"Article 7",
"“1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.",
"... ”",
"Article 12",
"“Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”",
"Article 13",
"“Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.”",
"Article 14",
"“1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.",
"2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.”",
"K. The United Nations Commission on Human Rights",
"52. The relevant parts of the resolutions on impunity read:",
"1. Resolution 2002/79, 25 April 2002, and Resolution 2003/72, 25 April 2003",
"“The Commission on Human Rights,",
"...",
"2. Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law;",
"... ”",
"2. Resolution 2004/72, 21 April 2004",
"“The Commission on Human Rights,",
"...",
"3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities;",
"... ”",
"3. Resolution 2005/81, 21 April 2005",
"“The Commission on Human Rights,",
"...",
"3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities, and recognizes as well the Secretary-General ’ s conclusion that United Nations ‑ endorsed peace agreements can never promise amnesties for genocide, crimes against humanity, war crimes, or gross violations of human rights;",
"...”",
"L. The European Parliament",
"Resolution A3-0056/93, 12 March 1993",
"53. The relevant text of the Resolution on human rights in the world and Community human rights policy for the years 1991 to 1992 reads:",
"“The European Parliament,",
"...",
"7. Believes that the problem of impunity ... can take the form of amnesty, immunity, extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims;",
"8. Affirms that there should be no question of impunity for those responsible for war crimes in the former Yugoslavia ...”",
"M. The United Nations Special Rapporteur on Torture",
"Fifth report, UN Doc. E/CN.4/1998/38, 24 December 1997",
"54. In 1998, in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment, in particular, torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur of the United Nations Commission on Human Rights stated with respect to the Draft Statute for an International Criminal Court:",
"“228. In this connection, the Special Rapporteur is aware of suggestions according to which nationally granted amnesties could be introduced as a bar to the proposed court [ ‘ s ] jurisdiction. He considers any such move subversive not just of the project at hand, but of international legality in general. It would gravely undermine the purpose of the proposed court, by permitting States to legislate their nationals out of the jurisdiction of the court. It would undermine international legality, because it is axiomatic that States may not invoke their own law to avoid their obligations under international law. Since international law requires States to penalize the types of crime contemplated in the draft statute of the court in general, and torture in particular, and to bring perpetrators to justice, the amnesties in question are, ipso facto, violations of the concerned States ’ obligations to bring violators to justice. ...”",
"N. International Criminal Tribunal for the former Yugoslavia",
"55. The relevant part of the Furundžija case (judgment of 10 December 1998) reads:",
"“155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘ individuals have international duties which transcend the national obligations of obedience imposed by the individual State. ’ ”",
"O. American Convention on Human Rights [6]",
"56. The relevant part of this Convention reads as follows:",
"Article 1. Obligation to Respect Rights",
"“1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.",
"2. For the purposes of this Convention, ‘ person ’ means every human being.”",
"P. Inter-American Commission on Human Rights",
"1. Case 10.287 (El Salvador), Report No. 26/92 of 24 September 1992",
"57. In 1992, in a report on a case with respect to the Las Hojas massacres in El Salvador in 1983 during which about seventy-four persons were allegedly killed by members of the Salvadoran armed forces with the participation of members of the Civil Defence, and which had led to a petition before the Inter-American Commission on Human Rights, the latter held that:",
"“...",
"The application of [El Salvador ’ s 1987 Law on Amnesty to Achieve National Reconciliation] constitutes a clear violation of the obligation of the Salvadoran Government to investigate and punish the violations of the rights of the Las Hojas victims, and to provide compensation for damages resulting from the violations",
"...",
"The present amnesty law, as applied in these cases, by foreclosing the possibility of judicial relief in cases of murder, inhumane treatment and absence of judicial guarantees, denies the fundamental nature of the most basic human rights. It eliminates perhaps the single most effective means of enforcing such rights, the trial and punishment of offenders. ”",
"2. Report on the situation of human rights in El Salvador, OEA/ Ser.L /V /II.85 Doc. 28 rev. ( 11 February 1994)",
"58. In 1994, in a report on the situation of human rights in El Salvador, the Inter-American Commission on Human Rights stated, with regard to El Salvador ’ s General Amnesty Law for Consolidation of Peace, as follows:",
"“ ... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law [for Consolidation of Peace] passed by El Salvador ’ s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a ‘ reciprocal amnesty ’ without first acknowledging responsibility ...; because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.”",
"3. Case 10.480 (El Salvador), Report No. 1/99 of 27 January 1999",
"59. In 1999, in a report on a case concerning El Salvador ’ s 1993 General Amnesty Law for Consolidation of Peace, the Inter-American Commission on Human Rights stated:",
"“113. The Commission should emphasize that [this law] was applied to serious human rights violations in El Salvador between January 1, 1980, and January 1, 1992, including those examined and established by the Truth Commission. In particular, its effect was extended, among other things, to crimes such as summary executions, torture, and the forced disappearance of persons. Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard, including universal jurisdiction and inapplicability of the statute of limitations. ...",
"...",
"115. The Commission also notes that Article 2 of [this law] was apparently applied to all violations of common Article 3 [of the 1949 Geneva Conventions] and of the [ 1977 Additional ] Protocol II, committed by agents of the State during the armed conflict which took place in El Salvador. ...",
"...",
"123. ... in approving and enforcing the General Amnesty Law, the Salvadoran State violated the right to judicial guarantees enshrined in Article 8(1) of the [1969 American Convention on Human Rights], to the detriment of the surviving victims of torture and of the relatives of ..., who were prevented from obtaining redress in the civil courts; all of this in relation to Article 1(1) of the Convention.",
"...",
"129. ... in promulgating and enforcing the Amnesty Law, El Salvador has violated the right to judicial protection enshrined in Article 25 of the [1969 American Convention on Human Rights], to the detriment of the surviving victims ...”",
"In its conclusions, the Inter-American Commission on Human Rights stated that El Salvador “ ha[d] also violated, with respect to the same persons, common Article 3 of the Four Geneva Conventions of 1949 and Article 4 of the [ 1977 Additional ] Protocol II”. Moreover, in order to safeguard the rights of the victims, it recommended that El Salvador should “if need be, ... annul that law ex- tunc ”.",
"Q. Inter-American Court of Human Rights",
"60. In its judgment in Barrios Altos v. Peru ((merits), judgment of 14 March 2001, Series C No. 75 ) involving the question of the legality of Peruvian amnesty laws, the Inter-American Court of Human Rights stated:",
"“41. This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non- derogable rights recognized by international human rights law.",
"42. The Court, in accordance with the arguments put forward by the Commission and not contested by the State, considers that the amnesty laws adopted by Peru prevented the victims ’ next of kin and the surviving victims in this case from being heard by a judge ...; they violated the right to judicial protection ...; they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the [1969 American Convention on Human Rights], and they obstructed clarification of the facts of this case. Finally, the adoption of self-amnesty laws that are incompatible with the [1969 American Convention on Human Rights] meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the [1969 American Convention on Human Rights].",
"43. The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the [1969 American Convention on Human Rights], the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the [1969 American Convention on Human Rights]. Consequently, States Parties to the [1969 American Convention on Human Rights] which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the [1969 American Convention on Human Rights]. Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of th [ at] Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.",
"44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the [1969 American Convention on Human Rights] have been violated.”",
"In his concurring opinion, Judge Antônio A. Cançado Trindade added:",
"“13. The international responsibility of the State for violations of internationally recognized human rights, – including violations which have taken place by means of the adoption and application of laws of self-amnesty, – and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law, are two faces of the same coin, in the fight against atrocities, impunity, and injustice. It was necessary to wait many years to come to this conclusion, which, if it is possible today, is also due, – may I insist on a point which is very dear to me, – to the awakening of the universal juridical conscience, as the material source par excellence of International Law itself.”",
"61. In Almonacid -Arellano et al. v. Chile (preliminary objections, merits, reparations and costs), judgment of 26 September 2006, Series C No. 154, the Inter-American Court of Human Rights noted:",
"“154. With regard to the ne bis in idem principle, although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i ) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice. A judgment rendered in the foregoing circumstances produces an ‘ apparent ’ or ‘ fraudulent ’ res judicata case. On the other hand, the Court believes that if there appear new facts or evidence that make it possible to ascertain the identity of those responsible for human rights violations or for crimes against humanity, investigations can be reopened, even if the case ended in an acquittal with the authority of a final judgment, since the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle.",
"155. In the instant case, two of the foregoing conditions are met. Firstly, the case was heard by courts which did not uphold the guarantees of jurisdiction, independence and impartiality. Secondly, the application of Decree Law No. 2.191 did actually prevent those allegedly responsible from being brought before the courts and favored impunity for the crime committed against Mr. Almonacid -Arellano. The State cannot, therefore, rely on the ne bis in idem principle to avoid complying with the order of the Court .. .”",
"62. The same approach was followed in La Cantuta v. Peru (merits, reparations and costs), judgment of 29 November 2006, Series C No. 162, the relevant part of which reads as follows:",
"“151. In this connection, the Commission and the representatives have asserted that the State has relied on the concept of double jeopardy to avoid punishing some of the alleged instigators of these crimes; however, double jeopardy does not apply inasmuch as they were prosecuted by a court who had no jurisdiction, was not independent or impartial and failed to meet the requirements for competent jurisdiction. In addition, the State asserted that ‘ involving other people who might be criminally liable is subject to any new conclusions reached by the Ministerio Público [General Attorney ’ s Office] and the Judiciary in investigating the events and meting out punishments ’, and that ‘ the military court ’ s decision to dismiss the case has no legal value for the General Attorney ’ s Office ’ s preliminary investigation. That is, the double jeopardy defense does not apply. ’",
"152. This Court had stated earlier in the Case of Barrios Altos that",
"This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non- derogable rights recognized by international human rights law.",
"153. Specifically, in relation with the concept of double jeopardy, the Court has recently held that the non bis in idem principle is not applicable when the proceeding in which the case has been dismissed or the author of a violation of human rights has been acquitted, in violation of international law, has the effect of discharging the accused from criminal liability, or when the proceeding has not been conducted independently or impartially pursuant to the due process of law. A judgment issued in the circumstances described above only provides ‘ fictitious ’ or ‘ fraudulent ’ grounds for double jeopardy.",
"154. Therefore, in its complaint against the alleged instigators of the crimes ..., who were discharged by the military courts, the Procuraduría Ad Hoc (Ad Hoc Prosecutor ’ s Office) deemed it inadmissible to consider the order for dismissal of the case issued by the military judges in the course of a proceeding aimed at granting impunity as a legal obstacle for conducting prosecutions or as a final judgment, since the judges had no jurisdiction and were not impartial, and thus the order may not provide grounds for double jeopardy.”",
"63. In Anzualdo Castro v. Peru (preliminary objection, merits, reparations and costs), judgment of 22 September 2009, Series C No. 202, the Inter-American Court of Human Rights reiterated that:",
"“182. ... [T]he State must remove all obstacles, both factual and legal, that hinder the effective investigation into the facts and the development of the corresponding legal proceedings, and use all available means to expedite such investigations and proceedings, in order to ensure the non-repetition of facts such as these. Specially, this is a case of forced disappearance that occurred within a context of a systematic practice or pattern of disappearances perpetrated by state agents; therefore, the State shall not be able to argue or apply a law or domestic legal provision, present or future, to fail to comply with the decision of the Court to investigate and, if applicable, criminally punish th [ ose ] responsible for the facts. For this reason and as ordered by this Tribunal since the delivery of the Judgment in the case of Barrios Altos v. Peru, the State can no longer apply amnesty laws, which lack legal effects, present or future ..., or rely on concepts such as the statute of limitations on criminal actions, res judicata principle and the double jeopardy safeguard or resort to any other measure designated to eliminate responsibility in order to escape from its duty to investigate and punish th [ ose ] responsible.”",
"64. In Gelman v. Uruguay ( (merits and reparations), judgment of 24 February 2011, Series C No. 221 ), the Inter-American Court analysed at length the position under international law with regard to amnesties granted for grave breaches of fundamental human rights. In so far as relevant, the judgment reads as follows:",
"“184. The obligation to investigate human rights violations falls within the positive measures that States must adopt in order to ensure the rights recognized in the Convention and is an obligation of means rather than of results, which must be assumed by the State as [a] legal obligation and not as a mere formality preordained to be ineffective that depends upon the procedural initiative of the victims or their next of kin, or upon the production of evidence by private parties.",
"...",
"189. The mentioned international obligation to prosecute, and if criminal responsibility is determined, punish the perpetrators of the human rights violations, is encompassed in the obligation to respect rights enshrined in Article 1(1) of the American Convention and implies the right of the States Parties to organize all of the governmental apparatus, and in general, all of the structures through which the exercise of public power is expressed, in a way such that they are capable of legally guaranteeing the free and full exercise of human rights.",
"190. As part of this obligation, the States must prevent, investigate, and punish all violations of the rights recognized in the Convention, and seek, in addition, the reestablishment, if possible, of the violated right and, where necessary, repair the damage caused by the violation of human rights.",
"191. If the State ’ s apparatus functions in a way that assures the matter remains with impunity, and it does not restore, in as much as is possible, the victim ’ s rights, it can be ascertained that the State has not complied with the obligation to guarantee the free and full exercise of those persons within its jurisdiction.",
"...",
"195. Amnesties or similar forms have been one of the obstacles alleged by some States in the investigation, and where applicable, punishment of those responsible for serious human rights violations. This Court, the Inter-American Commission on Human Rights, the organs of the United Nations, and other universal and regional organs for the protection of human rights have ruled on the non-compatibility of amnesty laws related to serious human rights violations with international law and the international obligations of States.",
"196. As it has been decided prior, this Court has ruled on the non-compatibility of amnesties with the American Convention in cases of serious human rights violations related to Peru ( Barrios Altos and La Cantuta ), Chile ( Almonacid Arellano et al. ), and Brazil ( Gomes Lund et al. ).",
"197. In the Inter-American System of Human Rights, of which Uruguay forms part by a sovereign decision, the rulings on the non-compatibility of amnesty laws with conventional obligations of States when dealing with serious human rights violations are many. In addition to the decisions noted by this Court, the Inter-American Commission has concluded, in the present case and in others related to Argentina, Chile, El Salvador, Haití, Perú and Uruguay its contradiction with international law. The Inter-American Commission recalled that it:",
"has ruled on numerous occasions in key cases wherein it has had the opportunity to express its point of view and crystallize its doctrine in regard to the application of amnesty laws, establishing that said laws violate various provisions of both the American Declaration as well as the Convention ’ and that ‘ [t] hese decisions which coincide with the standards of other international bodies on human rights regarding amnesties, have declared in a uniform manner that both the amnesty laws as well as other comparable legislative measures that impede or finalize the investigation and judgment of agents of [a] State that could be responsible for serious violations of the American Declaration or Convention, violate multiple provisions of said instruments.",
"198. In the Universal forum, in its report to the Security Council, entitled The rule of law and transitional justice in societies that suffer or have suffered conflicts, the Secretary General of the United Nations noted that:",
"‘ [ ... ] the peace agreements approved by the United Nations cannot promise amnesty for crimes of genocide, war, or crimes against humanity, or serious infractions of human rights [ ... ]. ’",
"199. In the same sense, the United Nations High Commissioner for Human Rights concluded that amnesties and other analogous measures contribute to impunity and constitute an obstacle to the right to the truth in that they block an investigation of the facts on the merits and that they are, therefore, incompatible with the obligations incumbent on States given various sources of international law. More so, in regards to the false dilemma between peace and reconciliation, on the one hand, and justice on the other, it stated that:",
"‘ [t]he amnesties that exempt from criminal sanction those responsible for atrocious crimes in the hope of securing peace have often failed to achieve their aim and have instead emboldened their beneficiaries to commit further crimes. Conversely, peace agreements have been reached without amnesty provisions in some situations where amnesty had been said to be a necessary condition of peace and where many had feared that indictments would prolong the conflict. ’",
"200. In line with the aforementioned, the Special Rapporteur of the United Nations on the issue of impunity, stated that:",
"‘ [t]he perpetrators of the violations cannot benefit from the amnesty while the victims are unable to obtain justice by means of an effective remedy. This would lack legal effect in regard to the actions of the victims relating to the right to reparation. ’",
"201. The General Assembly of the United Nations established in Article 18 of the Declaration on the Protection of all Persons from Enforced Disappearance that ‘ persons who have or are alleged to have committed [enforced disappearance] shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. ’",
"202. The World Conference on Human Rights which took place in Vienna in 1993, in its Declaration and Program of Action, emphasized that States ‘ should derogate legislation that favors the impunity of those responsible for serious human rights violations, [ ... ] punish the violations, ’ highlighting that in those cases States are obligated first to prevent them, and once they have occurred, to prosecute the perpetrators of the facts.",
"203. The Working Group on Enforced or Involuntary Disappearances of the United Nations has handled, on various occasions, the matter of amnesties in cases of enforced disappearances. In its General Comments regarding Article 18 of the Declaration on the Protection of All Persons Against Enforced Disappearance, it noted that it considers amnesty laws to be contrary to the provisions of the Declaration, even when it has been approved in referendum or by another similar type of consultation process, if directly or indirectly, due to its application or implementation, it terminates the State ’ s obligation to investigate, prosecute, and punish those responsible for the disappearances, if it hides the names of those who perpetrated said acts, or if it exonerates them.",
"204. In addition, the same Working Group stated its concern that in situations of post-conflict, amnesty laws are promulgated or other measures adopted that have impunity as a consequence, and it reminded States that:",
"in combating disappearances, effective preventive measures are crucial. Among them, it highlights [ ... ] bringing to justice all persons accused of having committed acts of enforced disappearance, ensuring that they are tried only by competent civilian courts, and that they do not benefit from any special amnesty law or other similar measures likely to provide exemption from criminal proceedings or sanctions, and providing redress and adequate compensation to victims and their families.",
"205. Also in the universal forum, the bodies of human rights protection established by treaties have maintained the same standards concerning the prohibition of amnesties that prevent the investigation and punishment of those who commit serious human rights crimes. The Human Rights Committee, in its General Comment 31, stated that States should assure that those guilty of infractions recognized as crimes in international law or in national legislation, among others—torture and other acts of cruel, inhumane, or degrading treatment, summary deprivations of life, and arbitrary detention, and enforced disappearances—appear before the justice system and not attempt to exempt the perpetrators of their legal responsibility, as has occurred with certain amnesty laws.",
"206. The Human Rights Committee ruled on the matter in the proceedings of individual petitions and in its country reports, noting in the case of Hugo Rodríguez v. Uruguay, that it cannot accept the posture of a State of not being obligated to investigate human rights violations committed during a prior regime given an amnesty law, and it reaffirmed that amnesty laws in regard to serious human rights violations are incompatible with the aforementioned International Covenant of Civil and Political Rights, reiterating that they contribute to the creation of an atmosphere of impunity that can undermine upon the democratic order and bring about other serious human rights violations.",
"...",
"209. Also in the universal forum, in another branch of international law – that is international criminal law, amnesties or similar norms have been considered inadmissible. The International Criminal Tribunal for the former Yugoslavia, in a case related to torture, considered that it would not make sense to sustain on the one hand the statute of limitations on the serious human rights violations, and on the other hand to authorize State measures that authorize or condone, or amnesty laws that absolve its perpetrators. Similarly, the Special Court for Sierra Leone considered that the amnesty laws of said country were not applicable to serious international crimes. This universal tendency has been consolidated through the incorporation of the mentioned standard in the development of the statutes of the special tribunals recently created within the United Nations. In this sense, both the United Nations Agreement with the Republic of Lebanon and the Kingdom of Cambodia, as well as the Statutes that create the Special Tribunal for Lebanon, the Special Court for Sierra Leone, and the Extraordinary Chambers of the Courts of Cambodia, have included in their texts, clauses that indicate that the amnesties that are conceded shall not constitute an impediment to the processing of those responsible for crimes that are within the scope of the jurisdiction of said tribunals.",
"210. Likewise, in an interpretation of Article 6-5 of the Protocol II Additional to the Geneva Convention on International Humanitarian Law, the ICRC stated that amnesties cannot protect perpetrators of war crimes:",
"[w]hen it adopted paragraph 5 of Article 6 of Additional Protocol II, the USSR declared, in the reasoning of its opinion, that it could not be interpreted in such a way that it allow war criminals or other persons guilty of crimes against humanity to escape severe punishment. The ICRC agrees with this interpretation. An amnesty would also be inconsistent with the rule requiring States to investigate and prosecute those suspected of committing war crimes in non - international armed conflicts ( ... ).",
"211. This norm of International Humanitarian Law and interpretation of Article 6-5 of the Protocol has been adopted by the Inter-American Commission on Human Rights and the Human Rights Committee of the United Nations.",
"212. The illegality of the amnesties related to serious violations of human rights vis-à-vis international law have been affirmed by the courts and organs of all the regional systems for the protection of human rights.",
"213. In the European System, the European Court of Human Rights considered that it is of the highest importance, in what pertains to an effective remedy, that the criminal procedures which refer to crimes, such as torture, that imply serious violations of human rights, not be obstructed by statute of limitations or allow amnesties or pardons in this regard. In other cases, it highlighted that when an agent of the State is accused of crimes violating the rights of Article [2] in the European Convention (Right to life), the criminal proceedings and judgment should not be obstructed, and the granting of amnesty is not permitted.",
"214. The African Commission on Human and Peoples ’ Rights considered that amnesty laws cannot protect the State that adopts them from complying with their international obligations, and noted, in addition, that in prohibiting the prosecution of perpetrators of serious human rights violations via the granting of amnesty, the States not only promote impunity, but also close off the possibility that said abuses be investigated and that the victims of said crimes have an effective remedy in order to obtain reparation.",
"...",
"F. Amnesty laws and the Jurisprudence of this Court.",
"225. This Court has established that ‘ amnesty provisions, the statute of limitation provisions, and the establishment of exclusions of responsibility that are intended to prevent the investigation and punish those responsible for serious violations to human rights such as torture, summary, extrajudicial, or arbitrary executions, and enforced disappearance are not admissible, all of which are prohibited for contravening irrevocable rights recognized by International Law of Human Rights. ’",
"226. In this sense, amnesty laws are, in cases of serious violations of human rights, expressly incompatible with the letter and spirit of the Pact of San José, given that they violate the provisions of Articles 1(1) and 2, that is, in that they impede the investigation and punishment of those responsible for serious human rights violations and, consequently, impede access to victims and their families to the truth of what happened and to the corresponding reparation, thereby hindering the full, timely, and effective rule of justice in the relevant cases. This, in turn, favors impunity and arbitrariness and also seriously affects the rule of law, reason for which, in light of International Law, they have been declared to have no legal effect.",
"227. In particular, amnesty laws affect the international obligation of the State in regard to the investigation and punishment of serious human rights violations because they prevent the next of kin from being heard before a judge, pursuant to that indicated in Article 8(1) of the American Convention, thereby violating the right to judicial protection enshrined in Article 25 of the Convention precisely for the failure to investigate, persecute, capture, prosecute, and punish those responsible for the facts, thereby failing to comply with Article 1(1) of the Convention.",
"228. Under the general obligations enshrined in Article 1(1) and 2 of the American Convention, the States Parties have the obligation to take measures of all kinds to assure that no one is taken from the judicial protection and the exercise of their right to a simple and effective remedy, in the terms of Articles 8 and 25 of the Convention, and once the American Convention has been ratified, it corresponds to the State to adopt all the measures to revoke the legal provisions that may contradict said treaty as established in Article 2 thereof, such as those that prevent the investigation of serious human rights violations given that it leads to the defenselessness of victims and the perpetuation of impunity and prevents the next of kin from knowing the truth regarding the facts.",
"229. The incompatibility with the Convention includes amnesties of serious human rights violations and is not limited to those which are denominated, ‘ self-amnesties, ’ and the Court, more than the adoption process and the authority which issued the Amnesty Law, heads to its ratio legis : to leave unpunished serious violations committed in international law. The incompatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect in what regards the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention.",
"G. The investigation of the facts and the Uruguayan Expiry Law.",
"...",
"240. ... in applying the provisions of the Expiry Law (which, [to] all inten [ ts and] purposes constitutes an amnesty law) and thereby impeding the investigation of the facts and the identification, prosecution, and possible punishment of the possible perpetrators of continued and permanent injuries such as those caused by enforced disappearance, the State fails to comply with its obligation to adapt its domestic law enshrined in Article 2 of the Convention.”",
"65. In Gomes Lund et al. (“ Guerrilha do Araguaia”) v. Brazil ( (preliminary objections, merits, reparations and costs), judgment of 24 November 2010, Series C No. 219 ) the Inter-American Court again strongly opposed the granting of amnesties for grave breaches of fundamental human rights. After relying on the same international law standard as in the above-cited Gelman case, it held, in so far as relevant, as follows :",
"“ 171. As is evident from the content of the preceding paragraphs, all of the international organs for the protection of human rights and several high courts of the region that have had the opportunity to rule on the scope of amnesty laws regarding serious human rights violations and their compatibility with international obligations of States that issue them, have noted that these amnesty laws impact the international obligation of the State to investigate and punish said violations.",
"172. This Court has previously ruled on the matter and has not found legal basis to part from its constant jurisprudence that, moreover, coincides with that which is unanimously established in international law and the precedent of the organs of the universal and regional systems of protection of human rights. In this sense, regarding the present case, the Court reiterates that ‘ amnesty provisions, the statute of limitation provisions, and the establishment of exclusions of responsibility that are intended to prevent the investigation and punishment of those responsible for serious violations to human rights such as torture, summary, extrajudicial, or arbitrary executions, and enforced disappearance are not admissible, all of which are prohibited for contravening irrevocable rights recognized by International Law of Human Rights. ’",
"...",
"17 5. In regard to the that argued by the parties [ ‘ arguments] regarding whether the case deals with an amnesty, self-amnesty, or ‘ political agreement, ’ the Court notes, as is evident from the criteria stated in the present case ( supra para. 171), that the non- compatibility with the Convention includes amnesties of serious human rights violations and is not limited to those which are denominated, ‘ self-amnesties. ’ Likewise, as has been stated prior, the Court, more than the adoption process and the authority which issued the Amnesty Law, heads to its ratio legis : to leave unpunished serious violations in international law committed by the military regime. The non-compatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect as they breach the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention.",
"17 6. This Court has established in its jurisprudence that it is conscious that the domestic authorities are subject to the rule of law, and as such, are obligated to apply the provisions in force of the legal code. However, when a State is a Party to an international treaty such as the American Convention, all of its organs, including its judges, are also subject to it, wherein they are obligated to ensure that the effects of the provisions of the Convention are not reduced by the application of norms that are contrary to the purpose and end goal and that from the onset lack legal effect. The Judicial Power, in this sense, is internationally obligated to exercise ‘ control of conventionality ’ ex officio between the domestic norms and the American Convention, evidently in the framework of its respective jurisdiction and the appropriate procedural regulations. In this task, the Judicial Power must take into account not only the treaty, but also the interpretation that the Inter-American Court, as the final interpreter of the American Convention, has given it. ”",
"66. More recently, in the case of The Massacres of El Mozote and Nearby Places v. El Salvador ((merits, reparations and costs), judgment of 25 October 2012, Series C No. 252) the Inter-American Court, in so far as relevant for the present case, held as follows (footnotes omitted) :",
"“ 283. In the cases of Gomes Lund v. Brazil and Gelman v. Uruguay, decided by this Court within the sphere of its jurisdictional competence, the Court has already described and developed at length how this Court, the Inter-American Commission on Human Rights, the organs of the United Nations, other regional organizations for the protection of human rights, and other courts of international criminal law have ruled on the incompatibility of amnesty laws in relation to grave human rights violations with international law and the international obligations of States. This is because amnesties or similar mechanisms have been one of the obstacles cited by States in order not to comply with their obligation to investigate, prosecute and punish, as appropriate, those responsible for grave human rights violations. Also, several States Parties of the Organization of American States, through their highest courts of justice, have incorporated the said standards, observing their international obligations in good faith. Consequently, for purposes of this case, the Court reiterates the inadmissibility of ‘ amnesty provisions, provisions on prescription, and the establishment of exclusions of responsibility that seek to prevent the investigation and punishment of those responsible for grave human rights violations such as torture, summary, extrajudicial or arbitrary execution, and forced disappearance, all of which are prohibited because they violate non- derogable rights recognized by international human rights law. ’",
"284. However, contrary to the cases examined previously by this Court, the instant case deals with a general amnesty law that relates to acts committed in the context of an internal armed conflict. Therefore, the Court finds it pertinent, when analyzing the compatibility of the Law of General Amnesty for the Consolidation of Peace with the international obligations arising from the American Convention and its application to the case of the Massacres of El Mozote and Nearby Places, to do so also in light of the provisions of Protocol II Additional to the 1949 Geneva Conventions, as well as of the specific terms in which it was agreed to end hostilities, which put an end to the conflict in El Salvador and, in particular, of Chapter I ( ‘ Armed Forces ’ ), section 5 ( ‘ End to impunity ’ ), of the Peace Accord of January 16, 1992.",
"285. According to the international humanitarian law applicable to these situations, the enactment of amnesty laws on the conclusion of hostilities in non-international armed conflicts are sometimes justified to pave the way to a return to peace. In fact, article 6(5) of Protocol II Additional to the 1949 Geneva Conventions establishes that:",
"At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.",
"286. However, this norm is not absolute, because, under international humanitarian law, States also have an obligation to investigate and prosecute war crimes. Consequently, ‘ persons suspected or accused of having committed war crimes, or who have been convicted of this ’ cannot be covered by an amnesty. Consequently, it may be understood that article 6(5) of Additional Protocol II refers to extensive amnesties in relation to those who have taken part in the non-international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts, such as those of the instant case, that can be categorized as war crimes, and even crimes against humanity. ”",
"R. Extraordinary Chambers in the Courts of Cambodia",
"67. The Extraordinary Chambers in the Courts of Cambodia, in the Decision on Ieng Sary ’ s Appeal against the Closing Order (case no. 002/19 09-2007-ECCC/OCIJ (PTC75) of 11 April 2011), discussing the effects of the amnesty on prosecution, stated:",
"“199. The crimes charged in the Closing Order, namely genocide, crimes against humanity, grave breaches of the Geneva Conventions, and homicide, torture and religious persecution as national crimes, are not criminalised under the 1994 Law and would therefore continue to be prosecuted under existing law, be it domestic or international criminal law, even if perpetrated by alleged members of the Democratic Kampuchea group.",
"...",
"201. The interpretation of the Decree proposed by the Co-Lawyers for Ieng Sary, which would grant Ieng Sary an amnesty for all crimes committed during the Khmer Rouge era, including all crimes charged in the Closing Order, not only departs from the text of the Decree, read in conjunction with the 1994 Law, but is also inconsistent with the international obligations of Cambodia. Insofar as genocide, torture and grave breaches of the Geneva Conventions are concerned, the grant of an amnesty, without any prosecution and punishment, would infringe upon Cambodia ’ s treaty obligations to prosecute and punish the authors of such crimes, as set out in the Genocide Convention, the Convention Against Torture and the Geneva Conventions. Cambodia, which has ratified the ICCPR, also had and continues to have an obligation to ensure that victims of crimes against humanity which, by definition, cause serious violations of human rights, were and are afforded an effective remedy. This obligation would generally require the State to prosecute and punish the authors of violations. The grant of an amnesty, which implies abolition and forgetfulness of the offence for crimes against humanity, would not have conformed with Cambodia ’ s obligation under the ICCPR to prosecute and punish authors of serious violations of human rights or otherwise provide an effective remedy to the victims. As there is no indication that the King (and others involved) intended not to respect the international obligations of Cambodia when adopting the Decree, the interpretation of this document proposed by the Co-Lawyers is found to be without merit.”",
"S. Special Court for Sierra Leone",
"68. On 13 March 2004 the Appeals Chamber of the Special Court for Sierra Leone, in Cases Nos. SCSL-2004-15- AR72( E) and SCSL-2004-16-AR72(E), adopted its Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, in which it observed the following:",
"“82. The submission by the Prosecution that there is a ‘ crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law ’ is amply supported by materials placed before this Court. The opinion of both amici curiae that it has crystallised may not be entirely correct, but that is no reason why this court in forming its own opinion should ignore the strength of their argument and the weight of materials they place before the Court. It is accepted that such a norm is developing under international law. Counsel for Kallon submitted that there is, as yet, no universal acceptance that amnesties are unlawful under international law, but, as amply pointed out by Professor Orentlicher, there are several treaties requiring prosecution for such crimes. These include the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the four Geneva conventions. There are also quite a number of resolutions of the UN General Assembly and the Security Council reaffirming a state obligation to prosecute or bring to justice. Redress has appended to its written submissions materials which include relevant conclusions of the Committee against torture, findings of the Human Rights Commission, and relevant judgments of the Inter-American Court.",
"...",
"84. Even if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Relevant law",
"26. The relevant part of the Croatian Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows :",
"Article 31",
"“ ...",
"2. No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law.",
"Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph 2 of this Article and the grounds for reopening.",
".. .”",
"27. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows:",
"Article 300",
"“ 1. Where the accused ... disturbs order at a hearing or does not comply with the orders of the presiding judge, the latter shall warn the accused ... The panel may order that the accused be removed from the courtroom ...",
"2. The panel may order that the accused be removed from the courtroom for a limited time. Where the accused again disturbs order [he or she may be removed from the courtroom] until the end of the presentation of evidence. Before the closure of the presentation of evidence the presiding judge shall summon the accused and inform him about the conduct of the trial. If the accused continues to disturb order and insults the dignity of the court, the panel may again order that he be removed from the courtroom. In that case the trial shall be concluded in the accused ’ s absence and the presiding judge or another member of the panel shall inform him or her about the judgment adopted, in the presence of a typist.",
"...”",
"Article 350 (former Article 336)",
"“ 1. A judgment may refer only to the accused and the offence which are the subject of the indictment as initially submitted or as altered at the hearing.",
"2. The court is not bound by the prosecutor ’ s legal classification of the offence.” [1]",
"Types of judgments",
"Article 352",
"“ 1. A judgment shall dismiss the charges, acquit the accused or find him or her guilty.",
"... ”",
"Article 354",
"“ A judgment acquitting the accused shall be adopted when :",
"(1) the offence with which the accused is charged is not a criminal offence under the law;",
"(2) there are circumstances that exclude the accused ’ s guilt;",
"(3) it has not been proved that the accused committed the criminal offence with which he or she is charged .”",
"Article 355",
"“1. A judgment finding the accused guilty shall contain the following details :",
"(1) the offence of which the accused is found guilty, stating the facts and circumstances constituting the specific ingredients of a given criminal offence as well as those on which the application of a specific provision of the Criminal Code depends;",
"(2) the statutory name and description of the criminal offence and the provisions of the Criminal Code which have been applied;",
"(3) the sentence to be applied or whether, under the provisions of the Criminal Code, a sentence is not to be applied or imprisonment is to be substituted by community service;",
"(4) any decision on suspended sentence;",
"(5) any decision on security measures and confiscation of material gains;",
"...",
"(7) the decision on costs and on any civil claim and whether a final judgment is to be published in the media.",
"... ”",
"Article 367",
"“ 1. A grave breach of criminal procedure shall be found to exist where",
"...",
"(3) a hearing has been held without a person whose presence is obligatory under the law ...",
"...”",
"Reopening of proceedings",
"Article 401",
"“Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person, only in the circumstances and under the conditions set out in this Code.”",
"Article 406",
"“ 1. Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused:",
"...",
"(5) where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges.",
"... ”",
"Article 408",
"“ 1. The court competent to decide upon a request for the reopening of the proceedings is the one which adjudicated the case at first instance ...",
"2. The request for reopening shall contain the statutory basis for reopening and evidence supporting the request ...",
"... ”",
"Request for the protection of legality",
"Article 418",
"“ 1. The State Attorney may lodge a request for the protection of legality against final judicial decisions and court proceedings preceding such decisions in which a law has been violated.",
"2. The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated.",
"... ”",
"Article 419",
"“ 1. The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality.",
"... ”",
"Article 420",
"“ 1. When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney.",
"... ”",
"Article 422",
"“ ...",
"2. Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.”",
"28. Under the Criminal Code ( Kazeni zakon, Offcial Gazette nos. 53/1991, 39/1992 and 91/1992) the circumstances excluding an individual ’ s guilt are lack of accountability ( neubrojivost ), error in law or error in fact.",
"29. The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu ) reads as follows:",
"Section 1",
"“This Act grants general amnesty from criminal prosecution and trial to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.",
"No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.",
"Amnesty from criminal prosecution and trial shall apply to offences committed between 17 August 1990 and 23 August 1996.”",
"Section 2",
"“No criminal prosecution or trial proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act.",
"Where a criminal prosecution has already commenced it shall be discontinued and where trial proceedings have been instituted a court shall issue a ruling terminating the proceedings of its own motion.",
"Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”",
"Section 3",
"“No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law which have the character of war crimes, namely the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of the cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law.",
"No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.",
"...”",
"Section 4",
"“A State Attorney may not lodge an appeal against a court decision under section 2 of this Act where the court granted amnesty in favour of the perpetrator of a criminal offence covered by this Act on the basis of the legal classification given to the offence by a State Attorney.”",
"B. Relevant practice",
"1. Practice of the Constitutional Court",
"30. In its decision no. U-III/543/1999 of 26 November 2008 the Constitutional Court held, in so far as relevant, as follows:",
"“6. The question before the Constitutional Court is whether there was a second trial concerning an event constituting the offence for which the General Amnesty Act was applied, and thus whether the proceedings concerned a ‘ same offence ’ in respect of which, under Article 31 § 2 of the Constitution, it is not possible to institute a new, separate and unrelated set of proceedings. Such proceedings would infringe [the principle of] legal certainty and permit multiple sanctions to be imposed for one and the same conduct which may be the subject of only one criminal sanction. In answering this question, the Constitutional Court should examine two issues: (a) the similarity between the descriptions of the events constituting the offences with which the appellant was charged in the first and second set of proceedings, in order to verify whether the decision on the application of amnesty and the final conviction in the subsequent proceedings concern the same subject, that is, the same ‘ criminal quantity ’, irrespective of whether they concern the same historical events; and after that ... (b) whether the case in issue concerns a situation in which it was not possible to bring fresh charges in relation to the facts already adjudicated in the first decisions of the courts (applying the amnesty), but in which, under Article 31 § 3 of the Constitution, it was possible to seek the reopening of the proceedings as provided for by the relevant law. Article 406 § 1 (5) of the Code of Criminal Procedure allows for the reopening of proceedings which were terminated by a final judgment dismissing the charges, where ‘ it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges ’.",
"6.1. The Constitutional Court can examine the similarity between the descriptions of the events constituting the offences only by reference to the normative standards. In so doing it is bound, just like the lower courts, by the constituent elements of the offences, irrespective of their legal classification. The descriptions of the events forming the basis for the charges in the judgment of the Bjelovar Military Court (no. K-85/95-24) and the Supreme Court (no. IKž-257/96), and the impugned judgments of the Sisak County Court (no. K-108/97) and the Supreme Court (no. I Kž-211/1998-3), undoubtedly suggest that they concern the same events, which were merely given different legal classifications. All the relevant facts had been established by the Bjelovar Military Court (which finally terminated the proceedings) and no other new facts were established in the subsequent proceedings before the Sisak County Court. The only difference in the description of the charges was in the time of the commission of the offences, which does not suggest that the events were different but rather that the courts were unable to establish the exact time of the offences. As regards the identical nature of the events, it is also relevant to note that the Supreme Court emphasised in the impugned judgment that the events were the same, so there is no doubt about this aspect.",
"6.2. In the impugned judgment the Supreme Court held that the conduct in issue constituted not only the offence of armed rebellion under Article 235 § 1 of the Criminal Code of the Republic of Croatia, in respect of which the judgment dismissing the charges was adopted, but also the offence of war crimes against the civilian population under Article 120 §§ 1 and 2 of the Basic Criminal Code of the Republic of Croatia, the offence of which [the appellant] was later convicted. It follows from this reasoning of the Supreme Court that the same conduct constituted the elements of two offences and that the situation was one of a single act constituting various offences.",
"6.3. The Constitutional Court finds that in the impugned judgment the Supreme Court erred in finding that the same perpetrator, after a final judgment had been adopted in respect of a single act constituting one offence, could be tried again in the new set of proceedings for the same act constituting another offence. Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s classification of the offence. The Bjelovar Military Court, if it considered that the facts underlying the charges constituted the offence of war crimes against the civilian population under Article 120 § 1 of the Basic Criminal Code of the Republic of Croatia, should therefore have found that it had no competence to determine the case (because it had no competence to try war crimes), and should have forwarded the case to the competent court, which could have convicted [the appellant] of the offence of war crimes against the civilian population, in respect of which no amnesty could be applied. Since the Bjelovar Military Court did not act in such a manner, it follows that, owing to the final nature of its judgment, the decision dismissing the charges became res judicata. The subsequent conviction in this case is a violation of the ne bis in idem rule, irrespective of the fact that the operative part of the first judgment did not concern ‘ the merits ’, sometimes understood simply as a resolution of the question whether the accused committed the offence or not. The formal distinction between an acquittal and a judgment dismissing the charges cannot be the only criterion for the resolution of the question whether a new and unrelated set of criminal proceedings may be instituted in respect of the same ‘ criminal quantity ’ : although it is contained in the judgment dismissing the charges, the decision on the application of amnesty, in the legal sense, creates the same legal consequences as an acquittal, and in both judgments a factual issue remains unproven.",
"6.4. Therefore the Constitutional Court cannot accept the reasoning of the Supreme Court ’ s judgment no. I Kž-211/1998-3 of 1 April 1999, according to which the judgment or ruling on the discontinuance of the proceedings for the offence of armed rebellion concerning the same event does not exclude the possibility of a subsequent prosecution and conviction for the offence of war crimes against the civilian population on the ground that the latter offence endangers not only the values of the Republic of Croatia but also humanity in general and international law. In any event, the Supreme Court later departed from that position in case no. I Kž-8/00-3 of 18 September 2002, finding that the judgment dismissing the charges ‘ without any doubt concerns the same event, in terms of the time, place and manner of commission; the event was simply given a different classification in the impugned judgment than in the ruling of the Zagreb Military Court ’. It also stated the following: ‘ When, as in the case in issue, the criminal proceedings have been discontinued in respect of the offence under Article 244 § 2 of the Criminal Code of the Republic of Croatia, and where the actions ... are identical to those of which [the accused] was found guilty in the impugned judgment ... under the ne bis in idem principle provided for in Article 32 § 2 of the Constitution, new criminal proceedings cannot be instituted because the matter has been adjudicated. ’",
"... ”",
"31. Constitutional Court decision no. U-III-791/1997 of 14 March 2001 referred to a situation where the criminal proceedings against the accused had been terminated under the General Amnesty Act. Its relevant parts read as follows :",
"“16. The provision of the Constitution which excludes the possibility of an accused being tried again for an offence of which he or she has already been ‘ finally acquitted or convicted in accordance with the law ’ refers exclusively to a situation where a judgment has been adopted in criminal proceedings which acquits the accused or finds him or her guilty of the charges brought against him or her in the indictment.",
"...",
"19. ... a ruling which does not finally acquit the accused but terminates the criminal proceedings cannot form the basis for application of the constitutional provisions concerning the prohibition on being tried or punished again ... ”",
"2. Practice of the Supreme Court",
"32. The relevant part of ruling no. I Kž-533/00-3 of 11 December 2001 reads as follows :",
"“Under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and it was therefore empowered to decide upon a different criminal offence since that offence is more favourable [ to the accused] ... ”",
"33. The relevant part of ruling no. I Kž 257/02-5 of 12 October 2005 reads as follows :",
"“Since under Article 336 § 2 of the Code of Criminal Procedure the court is not bound by the prosecutor ’ s legal classification of the offence, and given that the possible sentence for the criminal offence of incitement to abuse of authority in financial affairs under Article 292 § 2 is more lenient than the possible sentence for the criminal offence under Article 337 § 4 of the Criminal Code, the first - instance court was empowered to classify the acts in question as the criminal offence under Article 292 § 2 of the Criminal Code ... ”",
"34. The relevant part of ruling no. I Kž 657/10-3 of 27 October 2010 reads as follows :",
"“Even though the first - instance court correctly stated that a court is not bound by the prosecutor ’ s legal classification of the offence, the terms of the indictment were nevertheless exceeded because the first - instance court put the accused in a less favourable position by convicting him of two criminal offences instead of one ... ”",
"III. RELEVANT INTERNATIONAL LAW MATERIALS",
"A. The Vienna Convention of 1969 on the Law of Treaties",
"35. The relevant part of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides:",
"Section 3. Interpretation of treaties",
"Article 31 General rule of interpretation",
"“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.",
"2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:",
"(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;",
"(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.",
"3. There shall be taken into account, together with the context:",
"(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;",
"(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;",
"(c) any relevant rules of international law applicable in the relations between the parties.",
"4. A special meaning shall be given to a term if it is established that the parties so intended.”",
"Article 32 Supplementary means of interpretation",
"“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:",
"(a) leaves the meaning ambiguous or obscure; or",
"(b) leads to a result which is manifestly absurd or unreasonable.”",
"Article 33 Interpretation of treaties authenticated in two or more languages",
"“1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.",
"2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.",
"3. The terms of the treaty are presumed to have the same meaning in each authentic text.",
"4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”",
"B. The Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols",
"36. The relevant part of common Article 3 of the Geneva Conventions of 1949 reads:",
"Article 3",
"“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:",
"(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.",
"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons",
"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;",
"(b) taking of hostages;",
"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;",
"(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.",
"...”",
"37. The relevant parts of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949 – hereinafter “the First Geneva Convention”) read:",
"Chapter IX. Repression of Abuses and Infractions",
"Article 49",
"“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.",
"Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ’ case.",
"...”",
"Article 50",
"“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”",
"38. Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention.",
"39. Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention.",
"40. Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949) contain the same text as Articles 49 and 50 of the First Geneva Convention.",
"41. The relevant part of the Additional Protocol (II) to the Geneva Conventions, relating to the Protection of Victims of Non-International Armed Conflicts (Geneva, 8 June 1977) reads:",
"Article 4",
"“1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.",
"2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:",
"(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; ...”",
"Article 6",
"“ ...",
"5. At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”",
"Article 13",
"“1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.",
"2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.",
"3. Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in hostilities.”",
"C. Convention on the Prevention and Punishment of the Crime of Genocide [2]",
"42. The relevant parts of this Convention read as follows:",
"Article 1",
"“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”",
"Article 4",
"“Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”",
"Article 5",
"“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.”",
"D. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity [3]",
"43. The relevant part of this Convention reads as follows:",
"Article I",
"“No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:",
"(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 ( I ) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the ‘ grave breaches ’ enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;",
"(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.”",
"Article II",
"“If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.”",
"Article III",
"“The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.”",
"Article IV",
"“The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and II of this Convention and that, where they exist, such limitations shall be abolished.”",
"E. Rome Statute of the International Criminal Court",
"44. Article 20 of the Statute reads:",
"Ne bis in idem",
"“1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.",
"2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.",
"3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:",
"(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or",
"(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”",
"F. Customary Rules of International Humanitarian Law",
"45. Mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, the International Committee of the Red Cross (ICRC) presented in 2005 a Study on Customary International Humanitarian Law [4] (J.-M. Henckaerts and L. Doswald -Beck (eds.), Customary International Humanitarian Law, 2 Volumes, Cambridge University Press & ICRC, 2005). This Study contains a list of customary rules of international humanitarian law. Rule 159, which refers to non ‑ international armed conflicts, reads:",
"“At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.”",
"G. United Nations Security Council",
"Resolution on the situation in Croatia, 1120 (1997), 14 July 1997",
"46. The relevant part of the Resolution reads:",
"“The Security Council,",
"...",
"7. Urges the Government of the Republic of Croatia to eliminate ambiguities in implementation of the Amnesty Law, and to implement it fairly and objectively in accordance with international standards, in particular by concluding all investigations of crimes covered by the amnesty and undertaking an immediate and comprehensive review with United Nations and local Serb participation of all charges outstanding against individuals for serious violations of international humanitarian law which are not covered by the amnesty in order to end proceedings against all individuals against whom there is insufficient evidence;",
"... ”",
"H. The International Covenant on Civil and Political Rights",
"47. Article 7 of the International Covenant on Civil and Political Rights (ICCR) 1966 provides:",
"“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 6 § § 1 AND 3 OF THE CONVENTION",
"69. The applicant complained that the same judge had participated both in the proceedings terminated in 1997 and in those in which he had been found guilty in 2007. He further complained that he had been deprived of the right to give his closing arguments. He relied on Article 6 §§ 1 and 3 of the Convention, the relevant parts of which read as follows:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"...”",
"A. The Chamber ’ s conclusions",
"70. The Chamber observed that in both sets of criminal proceedings at issue judge M.K. had taken part at the first-instance stage. In the first set of proceedings the facts of the case had not been assessed, nor had the question of the applicant ’ s guilt been examined, and judge M.K. had not expressed an opinion on any aspect of the merits of the case.",
"71. Therefore, in the Chamber ’ s view, there was no indication of any lack of impartiality on the part of judge M.K.",
"72. As to the removal of the applicant from the courtroom, the Chamber held that, given that he had twice been warned not to interrupt the closing arguments presented by the prosecution and that his defence lawyer had remained in the courtroom and presented his closing arguments, the applicant ’ s removal had not violated his right to defend himself in person.",
"B. The parties ’ submissions to the Grand Chamber",
"1. The applicant",
"73. The applicant argued that judge M.K., who had first adopted a ruling terminating the criminal proceedings against him on the basis of the General Amnesty Act and had then also participated in the criminal proceedings in which the applicant had been convicted of some of the same acts, could not be seen as impartial.",
"74. The applicant argued that after the hearing held on 19 March 2007 had been going on for several hours he had, owing to his mental illness and diabetes, been unable to control his reactions. However, there had been no physician present at the hearing to monitor his condition. While the State Attorney was presenting his closing arguments the applicant had said something incomprehensible, but had not insulted or interrupted the State Attorney. Contrary to the Government ’ s contention, he had not been warned twice by the presiding judge before being removed from the courtroom. He had not been asked back to the courtroom when his turn to present his closing arguments had come. The fact that his defence counsel had been able to present his closing arguments could not remedy the fact that the applicant himself had not been able to do so. The accused in criminal proceedings might confess or show remorse, which could be judged as mitigating factors, and a defence lawyer could not replace the accused in that respect. The trial court should have had the opportunity to hear his closing arguments from him in person.",
"2. The Government",
"75. The Government agreed that judge M.K. had participated in both sets of criminal proceedings against the applicant. As to the issue of subjective impartiality, the Government contended that the applicant had not adduced any evidence capable of rebutting the presumption of impartiality in respect of judge M.K.",
"76. As to the objective test of impartiality, the Government submitted that in the first set of proceedings neither the facts of the case nor the merits of the murder charges against the applicant had been assessed. Thus, judge M.K. had not in those proceedings expressed any opinion as to the applicant ’ s actions which could have prejudged his conduct in the second set of proceedings. Furthermore, the first set of proceedings had ended favourably for the applicant. Only in the second set of proceedings had a judgment been adopted on the merits involving an assessment of the facts of the case and the applicant ’ s guilt. In both sets of proceedings judge M.K. had participated only at first instance, and he had had no input regarding the examination of either of the cases at the appeal stage.",
"77. The Government submitted that the applicant had been informed of the charges and evidence against him. He had been represented by a legal ‑ aid defence lawyer throughout the proceedings, and whenever he had objected to the manner in which a lawyer was approaching the case the lawyer had been changed. The applicant and his lawyer had had ample opportunity to prepare his defence and to communicate confidentially. They had both been present at all the hearings and had had every opportunity to respond to the prosecution arguments.",
"78. As to the concluding hearing, the Government submitted that the applicant and his defence counsel had both been present at the beginning of the hearing. However, during the hearing the applicant had continually cursed and shouted. The presiding judge had warned him twice, and only when that had yielded no results had he ordered that the applicant be removed from the courtroom.",
"79. The removal of the applicant from the courtroom had thus been a measure of last resort by the presiding judge, designed to preserve order in the courtroom.",
"80. Had the applicant wanted to confess or show remorse, he had had ample opportunity to do so during the trial.",
"81. By the time the applicant had been removed from the courtroom all the evidence had already been presented.",
"82. Lastly, the applicant ’ s defence counsel had remained in the courtroom and had presented his closing arguments.",
"83. Against the above background, the Government argued that the applicant ’ s right to defend himself in person and through legal assistance had not been impaired.",
"C. The Grand Chamber ’ s assessment",
"1. Impartiality of judge M.K.",
"84. The Chamber ’ s assessment, in so far as relevant, reads as follows :",
"“ 43. The Court reiterates that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Gautrin and Others v. France, § 58, 20 May 1998, Reports of Judgments and Decisions 1998-III).",
"44. As regards the subjective test, the Court first notes that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein v. Switzerland, no. 33958/96, § 43, ECHR 2000-XII). In the instant case, the Court is not convinced that there is sufficient evidence to establish that any personal bias was shown by judge M.K. when he sat as a member of the Osijek County Court which found the applicant guilty of war crimes against the civilian population and sentenced him to fourteen years ’ imprisonment.",
"45. As regards the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise justified doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Wettstein, cited above, § 44; and Micallef v. Malta, no. 17056/06, § 74, 15 January 2008). In this respect even appearances may be of a certain importance or, in other words, ‘ justice must not only be done, it must also be seen to be done ’ (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86; Mežnarić v. Croatia, no. 71615/01, § 32, 15 July 2005; and Micallef, cited above, § 75).",
"46. As to the present case, the Court notes that judge M.K. indeed participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06. The charges against the applicant in these two sets of proceedings overlapped to a certain extent (see § 66 below).",
"47. The Court further notes that both sets of proceedings were conducted at first instance, that is to say, at the trial stage. The first set of proceedings was terminated on the basis of the General Amnesty Act, since the trial court found that the charges against the applicant fell within the scope of the general amnesty. In those proceedings the facts of the case were not assessed, nor was the question of the applicant ’ s guilt examined. Thus, judge M.K. did not express an opinion on any aspect of the merits of the case.”",
"85. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality (see Hauschildt v. Denmark, 24 May 1989, § 50, Series A no. 154, and Romero Martin v. Spain ( dec. ), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria, 16 July 1971, Series A no. 13, § 97; Diennet v. France, 26 September 1995, Series A no. 325 ‑ A, § 38; and Vaillant v. France, no. 30609/04, §§ 29-35, 18 December 2008, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland, 10 June 1996, §§ 35-36, Reports of Judgments and Decisions 1996 ‑ III, concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy ( dec. ), no. 63226/00, 14 June 2001, and Ferrantelli and Santangelo v. Italy, 7 August 1996, § 59, Reports 1996 ‑ III, concerning the situation of judges having participated in proceedings against co-offenders).",
"86. No ground for legitimate suspicion of a lack of impartiality can be discerned in the fact that the same judge participates in adopting a decision at first instance and then in fresh proceedings when that decision is quashed and the case is returned to the same judge for re-consideration. It cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside a judicial decision is bound to send the case back to a differently composed panel (see Ringeisen, cited above, § 97).",
"87. In the present case the first decision was not set aside and the case remitted for retrial following an ordinary appeal; instead, a fresh indictment was brought against the applicant on some of the same charges. However, the Court considers that the principles set out in paragraph 85 are equally valid with regard to the situation which arose in the applicant ’ s case. The mere fact that judge M.K. participated both in the criminal proceedings conducted before the Osijek County Court under case number K-4/97 and in the criminal proceedings conducted against the applicant before the same court under case number K ‑ 33/06 should not in itself be seen as incompatible with the requirement of impartiality under Article 6 of the Convention. What is more, in the present case judge M.K. did not adopt a judgment in the first set of proceedings finding the applicant guilty or innocent and no evidence relevant for the determination of these issues was ever assessed (see paragraph 17 above). Judge M.K. was solely concerned with ascertaining whether the conditions for the application of the General Amnesty Act obtained in the applicant ’ s case.",
"88. The Court considers that in these circumstances there were no ascertainable facts which could give rise to any justified doubt as to M.K. ’ s impartiality, nor did the applicant have any legitimate reason to fear this.",
"89. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 6 § 1 of the Convention as regards the question of the impartiality of judge M.K.",
"2. Removal of the applicant from the courtroom",
"90. The Chamber made the following assessment of the applicant ’ s complaint :",
"“ 50. The Court firstly observes that its task is not to resolve the dispute between the parties as to whether the Osijek County Court acted in accordance with the relevant provisions of the Croatian Code of Criminal Procedure when it removed the applicant from the courtroom during the concluding hearing. The Court ’ s task is rather to make an assessment as to whether, from the Convention point of view, the applicant ’ s defence rights were respected to a degree which satisfies the guarantees of a fair trial under Article 6 of the Convention. In this connection the Court reiterates at the outset that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (see, among other authorities, Balliu v. Albania, no. 74727/01, § 25, 16 June 2005). On the whole, the Court is called upon to examine whether the criminal proceedings against the applicant, in their entirety, were fair (see, among other authorities, Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275, § 38; S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002-V; and Vanyan v. Russia, no. 53203/99, § 63-68, 15 December 2005).",
"51. The Court accepts that the closing arguments are an important stage of the trial, where the parties have their only opportunity to orally present their view of the entire case and all the evidence presented at trial and to give their assessment of the result of the trial. However, where the accused disturbs order in the courtroom the trial court cannot be expected to remain passive and to allow such behaviour. It is a normal duty of the trial panel to maintain order in the courtroom and the rules envisaged for that purpose apply equally to all present, including the accused.",
"52. In the present case the applicant was twice warned not to interrupt the closing arguments presented by the Osijek County Deputy State Attorney. Only afterwards, since he failed to comply, he was removed from the courtroom. However, his defence lawyer remained in the courtroom and presented his closing arguments. Therefore, the applicant was not prevented from making use of the opportunity to have the final view of the case given by his defence. In that connection the Court also notes that the applicant, who was legally represented throughout the proceedings, had ample opportunity to develop his defence strategy and to discuss with his defence lawyer the points for the closing arguments in advance of the concluding hearing.",
"53. Against this background, and viewing the proceedings as a whole, the Court considers that the removal of the applicant from the courtroom during the final hearing did not prejudice the applicant ’ s defence rights to a degree incompatible with the requirements of a fair trial.",
"54. Therefore, the Court considers that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention in this regard.”",
"91. The Grand Chamber endorses the Chamber ’ s reasons and finds that there has been no violation of Article 6 § § 1 and 3 (c) of the Convention as regards the applicant ’ s removal from the courtroom.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"92. The applicant complained that the criminal offences which had been the subject of the proceedings terminated in 1997 and those of which he had been found guilty in 2007 were the same. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"A. Compatibility ratione temporis",
"1. The Chamber ’ s conclusions",
"93. In its judgment of 13 November 2012 the Chamber found that the complaint under Article 4 of Protocol No. 7 to the Convention was compatible ratione temporis with the Convention. It held as follows:",
"“ 58. The Court notes that the first set of criminal proceedings against the applicant did indeed end prior to the entry into force of the Convention in respect of Croatia. However, the second set of criminal proceedings in which the applicant was found guilty of war crimes against the civilian population was conducted and concluded after 5 November 1997, when Croatia ratified the Convention. The right not to be tried or punished twice cannot be excluded in respect of proceedings conducted before ratification where the person concerned was convicted of the same offence after ratification of the Convention. The mere fact that the first set of proceedings was concluded prior to that date cannot therefore preclude the Court from having temporal jurisdiction in the present case.”",
"2. The parties ’ submissions to the Grand Chamber",
"94. The Government submitted that the ruling granting the applicant amnesty had been adopted on 24 June 1997 and had been served on him on 2 July 1997, whereas the Convention had come into force in respect of Croatia on 5 November 1997. Therefore, the ruling in question lay outside the Court ’ s temporal jurisdiction.",
"95. The applicant made no submissions in that regard.",
"3. The Grand Chamber ’ s assessment",
"96. The ruling granting the applicant amnesty was adopted on 24 June 1997, whereas the Convention come into force in respect of Croatia on 5 November 1997 and Protocol No. 7 on 1 February 1998. Therefore, the issue of the Court ’ s competence ratione temporis has to be addressed.",
"97. The Grand Chamber endorses the findings of the Chamber as to the compatibility ratione temporis with the Convention of the applicant ’ s complaint under Article 4 of Protocol No. 7. It further points to the Commission ’ s reasoning in the case of Gradinger v. Austria ( 19 May 1994, opinion of the Commission, §§ 67-69, Series A no. 328-C ) :",
"“ 67. The Commission recalls that, in accordance with the generally recognised rules of international law, the Convention and its Protocols are binding on the Contracting Parties only in respect of facts occurring after the entry into force of the Convention or the Protocol in respect of that party.",
"68. It is the nature of the right enunciated in Article 4 of Protocol No. 7 that two sets of proceedings must have taken place: a first set, in which the person concerned was ‘ finally acquitted or convicted ’, and thereafter a further set, in which a person was ‘ liable to be tried or convicted again ’ within the same jurisdiction.",
"69. The Commission further recalls that, in determining the fairness of proceedings, it is entitled to look at events prior to the entry into force of the Convention in respect of a State where the findings of those earlier events are incorporated in a judgment which is given after such entry into force ( see X v. Portugal, no. 9453/81, Commission decision of 13 December 1982, DR 31, p. 204. at p. 209). The essential element in Article 4 of Protocol No. 7 is the liability to be tried or punished ‘ again ’. The first set of proceedings merely provides the background against which the second set is to be determined. In the present case, the Commission finds that, provided the final decision in the second set of proceedings falls after the entry into force of Protocol No. 7, it may deal with the complaint ratione temporis. As Protocol No. 7 entered into force on 1 November 1988 and on 30 June 1989 Austria made a declaration under Article 7 § 2 of that Protocol which did not exclude retroactive effect ( see X v. France, no. 958 7/81, Commission decision of 13 December 1982, DR 29, p. 228, at p. 238), and the final decision of the Administrative Court is dated 29 March 1989, the Commission finds that it is not prevented ratione temporis from examining this aspect of the case.”",
"98. Accordingly, the Grand Chamber sees no reason to depart from the Chamber ’ s conclusion that the Government ’ s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must be dismissed.",
"B. Applicability of Article 4 of Protocol No. 7",
"1. The Chamber ’ s conclusions",
"99. The Chamber concluded, firstly, that the offences for which the applicant had been tried in the first and second set of proceedings had been the same. It left open the question whether the ruling granting the applicant amnesty could be seen as a final conviction or acquittal for the purposes of Article 4 of Protocol No. 7 and proceeded to examine the complaint on the merits under the exceptions contained in paragraph 2 of Article 4 of Protocol No. 7. The Chamber agreed with the conclusions of the Supreme Court to the effect that the General Amnesty Act had been erroneously applied in the applicant ’ s case and found that the granting of amnesty in respect of acts that amounted to war crimes committed by the applicant represented a “fundamental defect” in those proceedings, which made it permissible for the applicant to be retried.",
"2. The parties ’ submissions to the Grand Chamber",
"(a) The applicant",
"100. The applicant argued that the offences in the two sets of criminal proceedings against him had been factually the same and that the classification of the offences as war crimes in the second set of proceedings could not alter the fact that the charges were substantively identical.",
"101. He further contended that a ruling granting amnesty to the accused was a final decision which precluded a retrial.",
"(b) The Government",
"102. In their written observations the Government argued that in the first set of proceedings the Osijek County Court had applied the General Amnesty Act without establishing the facts of the case and without deciding on the applicant ’ s guilt. The ruling thus adopted had never given an answer to the question whether the applicant had committed the crimes he had been charged with, nor had it examined the charges in the indictment. Therefore, that ruling did not have the quality of res judicata (see paragraph 33 of the Government ’ s observations ). However, they went on to state that it did fulfil all the requirements of res judicata and could be considered as a final acquittal or conviction within the meaning of Article 4 of Protocol No. 7. ( see the Government ’ s observations, paragraph 37).",
"103. The Government further contended, relying extensively on the Chamber ’ s findings, that no amnesty could be granted in respect of war crimes and that the granting of an amnesty had amounted to a fundamental defect in the proceedings.",
"104. After the first set of proceedings had been discontinued new facts had emerged, namely that the victims had been arrested and tortured before being killed. These new elements had been sufficient for the acts in issue to be classified as war crimes against the civilian population and not as “ordinary” murders.",
"105. The General Amnesty Act had been enacted with the purpose of meeting Croatia ’ s international commitments arising from the Agreement on the Normalization of Relations between the Federal Republic of Yugoslavia and the Republic of Croatia (23 August 1996), and its primary aim had been to promote reconciliation in Croatian society at a time of ongoing war. It explicitly excluded its application to war crimes.",
"106. In the applicant ’ s case the General Amnesty Act had been applied contrary to its purpose as well as contrary to Croatia ’ s international obligations, including those under Articles 2 and 3 of the Convention.",
"107. As to the procedures followed by the national authorities, the Government maintained that the proceedings against the applicant had been fair, without advancing any arguments as to whether the procedures were in accordance with the provisions of the Code of Criminal Procedure.",
"(c) The third-party interveners",
"108. The group of academic experts maintained that no multilateral treaty expressly prohibited the granting of amnesties for international crimes. The interpretation of the International Committee of the Red Cross (ICRC) of Article 6 § 5 of the second Additional Protocol to the Geneva Conventions suggested that States might not grant amnesty to persons suspected of, accused of or sentenced for war crimes. However, an analysis of the travaux préparatoires of that Article showed that the only States which had referred to the question of perpetrators of international crimes, the former USSR and some of its satellite States, had linked that issue to that of foreign mercenaries. It was curious that the ICRC had interpreted Article 6 § 5 as excluding only war criminals and not perpetrators of other international crimes from its ambit, since the statements of the former USSR on which the ICRC relied had specifically provided for the prosecution of perpetrators of crimes against humanity and crimes against peace. It was difficult to see what arguments would justify the exclusion of war criminals but not of perpetrators of genocide and crimes against humanity from the potential scope of application of an amnesty. Furthermore, the ICRC referred to instances of non-international conflicts such as those in South Africa, Afghanistan, Sudan and Tajikistan. However, the amnesties associated with those conflicts had all included at least one international crime.",
"109. The interveners pointed to the difficulties in negotiating treaty clauses dealing with amnesty ( they referred to the 1998 Rome conference on the establishment of the International Criminal Court (ICC); the negotiations of the International Convention for the Protection of All Persons from Enforced Disappearance; and the 2012 Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels). The difficulties confirmed the lack of any consensus among States on that issue.",
"110. The interveners relied on a line of legal doctrine on amnesties [7] which argued that since the Second World War States had increasingly relied on amnesty laws. Although the number of new amnesty laws excluding international crimes had increased, so too had the number of amnesties including such crimes. Amnesties were the most frequently used form of transitional justice. The use of amnesties within peace accords between 1980 and 2006 had remained relatively stable.",
"111. Even though several international and regional courts had adopted the view that amnesties granted for international crimes were prohibited by international law, their authority was weakened by inconsistencies in those judicial pronouncements as to the extent of the prohibition and the crimes it covered. For example, while the Inter -American Court of Human Rights had adopted the position in the above-cited Barrios Altos case that all amnesty provisions were inadmissible because they were intended to prevent the investigation and punishment of those responsible for human rights violations, the President of that court and four other judges, in The Massacres of El Mozote and Nearby Places (cited above), had nuanced that position by accepting that even where gross violations of human rights were in issue, the requirement to prosecute was not absolute and had to be balanced against the requirements of peace and reconciliation in post-war situations.",
"112. Furthermore, a number of national Supreme Courts had upheld their countries ’ amnesty laws because such laws contributed to the achievement of peace, democracy and reconciliation. The interveners cited the following examples: the finding of the Spanish Supreme Court in the trial of Judge Garzón in February 2012; the ruling of the Ugandan Constitutional Court upholding the constitutionality of the 2000 Amnesty Act; the Brazilian Supreme Court ’ s ruling of April 2010 refusing to revoke the 1979 Amnesty Law; and the ruling of the South African Constitutional Court in the AZAPO case upholding the constitutionality of the Promotion of National Unity and Reconciliation Act of 1995 which provided for a broad application of amnesty.",
"113. The interveners accepted that the granting of amnesties might in certain instances lead to impunity for those responsible for the violation of fundamental human rights and thus undermine attempts to safeguard such rights. However, strong policy reasons supported acknowledging the possibility of the granting of amnesties where they represented the only way out of violent dictatorships and interminable conflicts. The interveners pleaded against a total ban on amnesties and for a more nuanced approach in addressing the issue of granting amnesties.",
"3. The Grand Chamber ’ s assessment",
"(a) Whether the offences for which the applicant was prosecuted were the same",
"114. In Sergey Zolotukhin v. Russia, the Court took the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same ([GC], no. 14939/03, § 82, ECHR 2009).",
"115. In the present case the applicant was accused in both sets of proceedings of the following:",
"(a) killing S.B. and V.B. and seriously wounding Sl.B. on 20 November 1991;",
"(b) killing N.V. and Ne.V. on 10 December 1991.",
"116. Therefore, in so far as both sets of proceedings concerned the above charges, the applicant was prosecuted twice for the same offences.",
"(b) The nature of the decisions adopted in the first set of proceedings",
"117. There are two distinct situations as regards the charges brought against the applicant in the first set of proceedings which were also preferred against him in the second set of proceedings.",
"118. Firstly, on 25 January 1996 the prosecutor withdrew the charges concerning the alleged killing of N.V. and Ne.V. on 10 December 1991 (see paragraphs 120 -21 below).",
"119. Secondly, the proceedings in respect of the alleged killing of S.B. and V.B. and the serious wounding of Sl.B. on 20 November 1991 were terminated by a ruling adopted by the Osijek County Court on 24 June 1997 on the basis of the General Amnesty Act (see paragraphs 122 et seq. below).",
"( i ) The withdrawal of charges by the prosecutor",
"120. The Court has already held that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that therefore Article 4 of Protocol No. 7 finds no application in that situation (see Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006).",
"121. Thus, the discontinuance of the proceedings by the prosecutor concerning the killing of N.V. and Ne.V. does not fall under Article 4 of Protocol No. 7 to the Convention. It follows that this part of the complaint is incompatible ratione materiae.",
"( ii ) The discontinuance of the proceedings under the General Amnesty Act",
"122. As regards the remaining charges ( the killing of V.B. and S.B. and the serious wounding of Sl.B .), the first set of criminal proceedings against the applicant was terminated on the basis of the General Amnesty Act.",
"123. The Court shall start its assessment as regards the ruling of 24 June 1997 by establishing whether Article 4 of Protocol No. 7 applies at all in the specific circumstances of the present case, where the applicant was granted unconditional amnesty in respect of acts which amounted to grave breaches of fundamental human rights.",
"( α ) The position under the Convention",
"124. The Court notes that the allegations in the criminal proceedings against the applicant included the killing and serious wounding of civilians and thus involved their right to life protected under Article 2 of the Convention and, arguably, their rights under Article 3 of the Convention. In this connection the Court reiterates that Articles 2 and 3 rank as the most fundamental provisions in the Convention. They enshrine some of the basic values of the democratic societies making up the Council of Europe (see, among many other authorities, Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports 1997-VI, and Solomou and Others v. Turkey, no. 36832/97, § 63, 24 June 2008).",
"125. The obligations to protect the right to life under Article 2 of the Convention and to ensure protection against ill-treatment under Article 3 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also require by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I) or ill-treated (see, for example, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of the perpetrators.",
"126. The Court has already held that, where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; Okkalı v. Turkey, no. 52067/99, § 76, ECHR 2006 -XII; and Yeşil and Sevim v. Turkey, no. 34738/04, § 38, 5 June 2007). It has considered in particular that the national authorities should not give the impression that they are willing to allow such treatment to go unpunished (see Egmez v. Cyprus, no. 30873/96, § 71, ECHR 2000-XII, and Turan Cakir v. Belgium, no. 44256/06, § 69, 10 March 2009). In its decision in the case of Ould Dah v. France (( dec. ), no. 13113/03, ECHR 2009) the Court held, referring also to the United Nations Human Rights Committee and the International Criminal Tribunal for the former Yugoslavia, that an amnesty was generally incompatible with the duty incumbent on States to investigate acts such as torture and that the obligation to prosecute criminals should not therefore be undermined by granting impunity to the perpetrator in the form of an amnesty law that might be considered contrary to international law.",
"127. The obligation of States to prosecute acts such as torture and intentional killings is thus well established in the Court ’ s case-law. The Court ’ s case-law affirms that granting amnesty in respect of the killing and ill-treatment of civilians would run contrary to the State ’ s obligations under Articles 2 and 3 of the Convention since it would hamper the investigation of such acts and necessarily lead to impunity for those responsible. Such a result would diminish the purpose of the protection guaranteed under Articles 2 and 3 of the Convention and render illusory the guarantees in respect of an individual ’ s right to life and the right not to be ill-treated. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others, cited above, § 146).",
"128. While the present case does not concern alleged violations of Articles 2 and 3 of the Convention, but of Article 4 of Protocol No. 7, the Court reiterates that the Convention and its Protocols must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between their various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, ECHR 2012). Therefore, the guarantees under Article 4 of Protocol No. 7 and States ’ obligations under Articles 2 and 3 of the Convention should be regarded as parts of a whole.",
"( β ) The position under international law",
"129. The Court should take into account developments in international law in this area. The Convention and its Protocols cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law of which they form part. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008; Rantsev v. Cyprus and Russia, no. 25965/04, §§ 273-74, ECHR 2010; and Nada v. Switzerland [GC], no. 10593/08, § 169, ECHR 2012 ).",
"130. The Court notes the Chamber ’ s observations to the effect that “ [ g ] ranting amnesty in respect of ‘ international crimes ’ – which include crimes against humanity, war crimes and genocide – is increasingly considered to be prohibited by international law” and that “ [ t ] his understanding is drawn from customary rules of international humanitarian law, human rights treaties, as well as the decisions of international and regional courts and developing State practice, as there has been a growing tendency for international, regional and national courts to overturn general amnesties enacted by Governments”.",
"131. It should be observed that so far no international treaty explicitly prohibits the granting of amnesty in respect of grave breaches of fundamental human rights. While Article 6 § 5 of the second Additional Protocol to the Geneva Conventions, relating to the protection of victims of non-international conflicts, provides that “ [a] t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict ... ”, the interpretation of the Inter-American Court of Human Rights of that provision excludes its application in respect of the perpetrators of war crimes and crimes against humanity (see paragraph 66 above, judgment in The Massacres of El Mozote and Nearby Places, § 286). The basis for such a conclusion, according to the Inter-American Court of Human Rights, is found in the obligations of the States under international law to investigate and prosecute war crimes. The Inter-American Court found that therefore “persons suspected or accused of having committed war crimes cannot be covered by an amnesty ”. The same obligation to investigate and prosecute exists as regards grave breaches of fundamental human rights and therefore the amnesties envisaged under Article 6 § 5 of the second Additional Protocol to the Geneva Conventions are likewise not applicable to such acts.",
"132. The possibility for a State to grant an amnesty in respect of grave breaches of human rights may be circumscribed by treaties to which the State is a party. There are several international conventions that provide for a duty to prosecute crimes defined therein (see the Geneva Conventions of 1949 for the Protection of Victims of Armed Conflicts and their Additional Protocols, in particular common Article 3 of the Geneva Conventions; Articles 49 and 50 of the Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Articles 50 and 51 of the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Articles 129 and 130 of the Convention (III) relative to the Treatment of Prisoners of War; and Articles 146 and 147 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War. See also Articles 4 and 13 of the Additional Protocol (II) to the Geneva Conventions (1977), relating to the Protection of Victims of Non-International Armed Conflicts; Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide; and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ).",
"133. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity proscribes statutory limitations in respect of crimes against humanity and war crimes.",
"134. Various international bodies have issued resolutions, recommendations and comments concerning impunity and the granting of amnesty in respect of grave breaches of human rights, generally agreeing that amnesties should not be granted to those who have committed such violations of human rights and international humanitarian law (see paragraphs 45, 47-49, 51-53 and 56-58 above).",
"135. In their judgments, several international courts have held that amnesties are inadmissible when they are intended to prevent the investigation and punishment of those responsible for grave human rights violations or acts constituting crimes under international law (see paragraphs 5 4 and 5 9 - 6 8 above).",
"136. Although the wording of Article 4 of Protocol No. 7 restricts its application to the national level, it should be noted that the scope of some international instruments extends to retrial in a second State or before an international tribunal. For instance, Article 20 of the Rome Statute of the International Criminal Court contains an explicit exception to the ne bis in idem principle as it allows for prosecution where a person has already been acquitted in respect of the crime of genocide, crimes against humanity or war crimes if the purpose of the proceedings before the other court was to shield the person concerned from criminal responsibility for crimes within the jurisdiction of the International Criminal Court.",
"137. The Court notes the interveners ’ argument that there is no agreement among States at the international level when it comes to a ban on granting amnesties without exception for grave breaches of fundamental human rights, including those covered by Articles 2 and 3 of the Convention. The view was expressed that the granting of amnesties as a tool in ending prolonged conflicts may lead to positive outcomes (see the interveners ’ submissions summarised in paragraphs 1 08- 13 above).",
"138. The Court also notes the jurisprudence of the Inter-American Court of Human Rights, notably the above - cited cases of Barrios Altos, Gomes Lund et al. , Gelman and The Massacres of El Mozote and Nearby Places, where that court took a firmer stance and, relying on its previous findings, as well as those of the Inter-American Commission on Human Rights, the organs of the United Nations and other universal and regional organs for the protection of human rights, found that no amnesties were acceptable in connection with grave breaches of fundamental human rights since any such amnesty would seriously undermine the States ’ duty to investigate and punish the perpetrators of such acts (see Gelman, § 195, and Gomes Lund et al. , § 171, both cited above ). It emphasised that such amnesties contravene irrevocable rights recognised by international human rights law (see Gomes Lund et al. , § 171 ).",
"( γ ) The Court ’ s conclusion",
"139. In the present case the applicant was granted amnesty for acts which amounted to grave breaches of fundamental human rights such as the intentional killing of civilians and inflicting grave bodily injury on a child, and the County Court ’ s reasoning referred to the applicant ’ s merits as a military officer. A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/ or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.",
"140. The Court considers that by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of the above-mentioned international mechanisms and instruments.",
"141. Against the above background, the Court concludes that Article 4 of Protocol No. 7 to the Convention is not applicable in the circumstances of the present case."
] |
231 | Gradinger v. Austria | 23 October 1995 | In January 1987, while driving his car, the applicant caused an accident which led to the death of a cyclist. At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre. The applicant maintained in particular that, by fining him pursuant to the Road Traffic Act, the district authority and the regional government had punished him in respect of facts that were identical with those on the basis of which the Regional Court had decided that he did not have a case to answer under the Criminal Code. | The Court noted in particular that, according to the Regional Court, the aggravating circumstance referred to in Article 81 of the Criminal Code, namely a blood alcohol level of 0.8 grams per litre or higher, was not made out with regard to the applicant. On the other hand, the administrative authorities found, in order to bring the applicant's case within the ambit of section 5 of the Road Traffic Act, that that alcohol level had been attained. The Court was fully aware that the provisions in question differed not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose. It further observed that the offence provided for in section 5 of the Road Traffic Act represented only one aspect of the offence punished under Article 81 of the Criminal Code. Nevertheless, both impugned decisions were based on the same conduct. Accordingly, the Court held that there had been a violation of Article 4 of Protocol No. 7. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. CIRCUMSTANCES OF THE CASE",
"6. Mr Gradinger is an Austrian citizen who lives at St Pölten ( Lower Austria ).",
"7. On 1 January 1987 at about 4 a.m., while driving his car, he caused an accident which led to the death of a cyclist.",
"At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre.",
"8. On 15 May 1987 the St Pölten Regional Court ( Landesgericht ) convicted him of causing death by negligence ( fahrlässige Tötung ) and sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with 100 days' imprisonment in default of payment (Article 80 of the Criminal Code ( Strafgesetzbuch ) - see paragraph 13 below).",
"According to the applicant, an expert, Dr Psick, had stated at his trial that in view of the shortness of the interval between the last drink the applicant had had and the collision, he could not have absorbed an amount of alcohol exceeding the prescribed limit.",
"In the judgment, as set out in the court record ( Protokolls - und Urteilsvermerk ), it was held that the applicant had indeed been drinking before the accident but not to such an extent as to be caught by Article 81 para. 2 of the Criminal Code, which prescribed a heavier penalty for causing death by negligence while under the influence of drink (see paragraph 14 below).",
"9. On 16 July 1987 the St Pölten district authority ( Bezirkshauptmannschaft ) issued a \"sentence order\" ( Straferkenntnis ) imposing on Mr Gradinger a fine of ATS 12,000, with two weeks' imprisonment in default, for driving under the influence of drink. It made this order pursuant to sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 ( Straßenverkehrsordnung - see paragraphs 15 and 16 below) and on the basis of a different medical report, of 5 February 1987, according to which, in view of the time that had elapsed between the collision and the taking of the blood specimen, Mr Gradinger's blood alcohol level when the accident had occurred must have been at least 0.95 grams per litre.",
"10. The applicant appealed to the Lower Austria regional government (Amt der Landesregierung ), which dismissed his appeal on 27 July 1988 on the basis of a further expert opinion, of 16 June 1988, to the effect that the blood alcohol level had been 0.9 grams per litre.",
"11. On 11 October 1988 the Constitutional Court ( Verfassungsgerichtshof ) declined to accept for adjudication an appeal by the applicant, on the ground that it did not have sufficient prospects of success.",
"12. A further appeal, to the Administrative Court, was dismissed as ill-founded on 29 March 1989. It was held that the regional authorities had not in any way misconstrued the law in finding that at the material time Mr Gradinger had been under the influence of drink for the purposes of section 5(1) of the Road Traffic Act. That finding had been based on an expert opinion of 16 June 1988 in which it had been assumed that all the alcohol consumed by the applicant had passed into his bloodstream by the time of the accident, a point which Mr Gradinger had not contested. He was therefore wrong in asserting that the expert report had not analysed the effects of the last drink he had had before the accident.",
"Furthermore, the authorities had acted in accordance with the law in appointing an official expert ( Amtssachverständiger ) rather than a sworn court expert ( gerichtlich beeideter Sachverständiger ) to report on Mr Gradinger's blood alcohol level. In the case under consideration there had been no special factor to justify their doing otherwise. Nor, contrary to the applicant's assertions, had they appointed as expert the person already called upon at first instance by the district authority (see paragraph 9 above).",
"As for Article 14 para. 7 of the International Covenant on Civil and Political Rights, embodying the \"non bis in idem\" principle, this was not directly applicable in the Austrian legal system. Accordingly, the authorities had not misconstrued the law by punishing the applicant after a criminal court had acquitted him (see paragraph 8 above).",
"III. AUSTRIA 'S RESERVATIONS",
"28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:",
"\"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution.\"",
"29. The instrument of ratification of Protocol No. 7 (P7) deposited by the Austrian Government on 14 May 1986 contains, inter alia, the following declaration:",
"\"Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal proceedings in the sense of the Austrian Code of Criminal Procedure.\""
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Substantive law",
"1. The Criminal Code",
"13. By Article 80 of the Criminal Code ( Strafgesetzbuch ):",
"\"It shall be an offence, punishable with up to one year's imprisonment, for any person to cause the death of another by negligence.\"",
"14. Article 81 para. 2 of the Criminal Code provides:",
"\"It shall be an offence, punishable with up to three years' imprisonment, for any person to cause the death of another by negligence",
"1. ...",
"2. after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state.\"",
"Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be \"intoxicated\" for the purposes of Article 81 para. 2 of the Criminal Code ( Foregger/Serini, Kurzkommentar zum Strafgesetzbuch, 4th edition, 1988, p. 217).",
"2. The Road Traffic Act",
"15. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests.",
"16. Since 1 May 1986 section 99(1)(a) of the Act has provided:",
"\"It shall be an administrative offence ( Verwaltungsübertretung ), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person:",
"(a) to drive ... a vehicle when under the influence of drink ...\"",
"17. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 28 below), section 7 of the Traffic Police Act 1947 ( Straßenpolizeigesetz ) provided: \"Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic.\"",
"B. Procedure",
"18. Article 90 para. 1 of the Federal Constitution ( Bundes-Verfassungsgesetz ) provides:",
"\"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law.\"",
"1. Proceedings in the Constitutional Court",
"19. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application ( Beschwerde ) is made to it, has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the Constitution or has applied regulations ( Verordnung ) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.",
"Article 144 para. 2 provides:",
"\"Up to the time of the hearing the Constitutional Court may by means of a decision ( Beschluß ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133.\"",
"2. Proceedings in the Administrative Court",
"20. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.",
"21. Section 35(1) of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) provides:",
"\"Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality.\"",
"22. Section 39(1) provides, in particular, that at the end of the preliminary proceedings ( Vorverfahren ) the Administrative Court must hold a hearing where the applicant makes a request to that effect.",
"Section 39(2) reads as follows:",
"\"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where",
"1. the proceedings must be stayed (section 33) or the application dismissed (section 34);",
"2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));",
"3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));",
"4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;",
"5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;",
"6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further.\"",
"Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.",
"23. Section 41(1) of the Administrative Court Act provides:",
"\"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary.\"",
"24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.",
"By section 42(2),",
"\"The Administrative Court shall quash the impugned decision if it is unlawful",
"1. by reason of its content, [or]",
"2. because the respondent authority lacked jurisdiction, [or]",
"3. on account of a breach of procedural rules, in that",
"(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or",
"(b) the facts require further investigation on an important point, or",
"(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority.\"",
"25. If the Administrative Court quashes the impugned decision, \"the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law ( Rechtsanschauung )\" (section 63(1)).",
"26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:",
"\"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die ( bloß ) nachprüfende Kontrolle ) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation.\"",
"3. The \"independent administrative tribunals\"",
"27. Pursuant to Article 129 of the Federal Constitution, administrative courts called \"independent administrative tribunals\" ( Unabhängige Verwaltungssenate ) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( Verwaltungsübertretungen ).",
"PROCEEDINGS BEFORE THE COMMISSION",
"30. Mr Gradinger applied to the Commission on 22 May 1989. Relying on Article 6 (art. 6) of the Convention, he complained that he had been convicted, contrary to the \"non bis in idem\" principle, by an administrative authority which, furthermore, could not be considered an \"independent and impartial tribunal\" and had called on the services of its own experts. At the hearing he also alleged a violation of Article 6 para. 2 (art. 6-2), which enshrined the presumption of innocence.",
"31. On 10 May 1993 the Commission rejected the complaint relating to Article 6 para. 2 (art. 6-2) for failure to comply with the six-month rule (Article 26 read in conjunction with Article 27 para. 3 of the Convention) (art. 26+27-3) and declared the remainder of the application (no. 15963/90) admissible.",
"In its report of 19 May 1994 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention (right to an independent and impartial tribunal) and Article 4 of Protocol No. 7 (P7-4); it also expressed the view that no separate issue arose under Article 6 para. 1 (art. 6-1) regarding the lack of a hearing in the Administrative Court (unanimously). The full text of the Commission's opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [4].",
"FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT",
"32. In their memorial the Government asked the Court",
"\"1. to find that Article 6 (art. 6) is not applicable in the case at issue; alternatively,",
"2. to find that there was no violation of Article 6 (art. 6) in connection with the administrative criminal proceedings underlying the present application;",
"3. to declare the application in respect of the concerns raised under Article 4 of Protocol No. 7 (P7-4) incompatible ratione temporis with the Convention pursuant to Article 27 para. 2 (art. 27-2); or alternatively,",
"4. to find that Article 4 of Protocol No. 7 (P7-4) to the Convention was not infringed in the administrative criminal proceedings underlying the application\".",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION",
"33. The applicant complained of a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides:",
"\"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...\"",
"He had, he maintained, been denied the right to a \"tribunal\" and to a hearing before such a body.",
"A. Applicability of Article 6 para. 1 (art. 6-1)",
"1. Whether there was a \"criminal charge\"",
"34. In Mr Gradinger's submission, the administrative criminal offence of which he was accused gave rise to a \"criminal charge\". This was not disputed by the Government.",
"35. In order to determine whether an offence qualifies as \"criminal\" for the purposes of the Convention, it is first necessary to ascertain whether or not the provision (art. 6-1) defining the offence belongs, in the legal system of the respondent State, to criminal law; next the \"very nature of the offence\" and the degree of severity of the penalty risked must be considered (see, among other authorities, the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 18, para. 50, and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, pp. 15-17, paras. 31-34).",
"36. Like the Commission, the Court notes that, although the offences in issue and the procedures followed in the case fall within the administrative sphere, they are nevertheless criminal in nature. This is moreover reflected in the terminology employed. Thus Austrian law refers to administrative offences ( Verwaltungsstraftaten ) and administrative criminal procedure ( Verwaltungsstrafverfahren ). In addition, the fine imposed on the applicant was accompanied by an order for his committal to prison in the event of his defaulting on payment (see paragraph 16 above).",
"These considerations are sufficient to establish that the offence of which the applicant was accused may be classified as \"criminal\" for the purposes of the Convention. It follows that Article 6 (art. 6) applies.",
"2. Austria 's reservation in respect of Article 5 (art. 5) of the Convention",
"37. According to the Government, the procedure in question was covered by Austria 's reservation in respect of Article 5 (art. 5) of the Convention. There could be no doubt that by the reference in that reservation to \"measures for the deprivation of liberty\" the Austrian Government had meant to include proceedings resulting in such measures. Any other construction would not only lack coherence; it would also run counter to the authorities' intention, which had been to remove from the scope of the Convention the whole administrative system, including the substantive and procedural provisions of administrative criminal law. That would be so even in a case where, as in this instance, the accused was merely fined, in so far as default on payment of that fine would entail committal to prison.",
"Admittedly, the Road Traffic Act 1960 was not one of the four laws designated in the reservation. However, one of those laws, the Administrative Criminal Justice Act, stated in section 10 that, except as otherwise provided, the general administrative laws were to determine the nature and severity of sanctions. It mattered little in this respect that section 5 of the Road Traffic Act, which was applied in the present case, had been enacted after the reservation had been deposited, because that provision merely clarified the substance of an existing obligation laid down in section 7 of the Traffic Police Act 1947 (see paragraph 17 above).",
"38. The applicant argued that the reservation could not apply in the present case. In the first place, it failed to satisfy the requirements of Article 64 (art. 64) of the Convention, which provides:",
"\"1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision (art. 64). Reservations of a general character shall not be permitted under this Article (art. 64).",
"2. Any reservation made under this Article (art. 64) shall contain a brief statement of the law concerned.\"",
"Secondly, on a strict construction, its wording precluded extending its scope to the procedural sphere, which was in issue here.",
"39. The Court points out that in the Chorherr v. Austria judgment of 25 August 1993 it held that Austria's reservation in respect of Article 5 (art. 5) of the Convention was compatible with Article 64 (art. 64) (Series A no. 266-B, p. 35, para. 21). It therefore remains only to ascertain whether the provisions (art. 5, art. 64) applied in the present case are covered by that reservation. They differ in certain essential respects from those in issue in the Chorherr case.",
"The Court notes that Mr Gradinger based his complaints on Article 6 (art. 6) of the Convention, whereas the wording of the reservation invoked by the Government mentions only Article 5 (art. 5) and makes express reference solely to measures for the deprivation of liberty. Moreover, the reservation only comes into play where both substantive and procedural provisions of one or more of the four specific laws indicated in it have been applied. Here, however, the substantive provisions of a different Act, the Road Traffic Act 1960, were applied.",
"These considerations are a sufficient basis for concluding that the reservation in question does not apply in the instant case.",
"B. Compliance with Article 6 para. 1 (art. 6-1)",
"1. Access to a tribunal",
"40. Mr Gradinger contended that none of the bodies that had dealt with his case in the proceedings in issue could be regarded as a \"tribunal\" within the meaning of Article 6 para. 1 (art. 6-1). This was true not only of the administrative authorities, but also of the Constitutional Court, whose review was confined to constitutional issues, and above all of the Administrative Court. The latter was bound by the administrative authorities' findings of fact, except where there was a procedural defect within the meaning of section 42(2), sub-paragraph 3, of the Administrative Court Act (see paragraph 24 above). It was therefore not empowered to take evidence itself, or to establish the facts, or to take cognisance of new matters. Moreover, in the event of its quashing an administrative measure, it was not entitled to substitute its own decision for that of the authority concerned, but had always to remit the case to that authority. In short, its review was confined exclusively to questions of law and therefore could not be regarded as equivalent to that of a body with full jurisdiction.",
"41. The Government contested this view, whereas the Commission accepted it.",
"42. The Court reiterates that decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 para. 1 (art. 6-1) of the Convention - as is the case in this instance with the district authority and the regional government (see paragraphs 9 and 10 above) - must be subject to subsequent control by a \"judicial body that has full jurisdiction\" (see, inter alia and mutatis mutandis, the following judgments: Albert and Le Compte v. Belgium of 10 February 1983, Series A no. 58, p. 16, para. 29; Öztürk, previously cited, pp. 21-22, para. 56; and Fischer v. Austria of 26 April 1995, Series A no. 312, p. 17, para. 28).",
"43. The Constitutional Court is not such a body. In the present case it could look at the impugned proceedings only from the point of view of their conformity with the Constitution, and this did not enable it to examine all the relevant facts. It accordingly lacked the powers required under Article 6 para. 1 (art. 6-1).",
"44. The powers of the Administrative Court must be assessed in the light of the fact that the court in this case was sitting in proceedings that were of a criminal nature for the purposes of the Convention. It follows that when the compatibility of those powers with Article 6 para. 1 (art. 6-1) is being gauged, regard must be had to the complaints raised in that court by the applicant as well as to the defining characteristics of a \"judicial body that has full jurisdiction\". These include the power to quash in all respects, on questions of fact and law, the decision of the body below. As the Administrative Court lacks that power, it cannot be regarded as a \"tribunal\" within the meaning of the Convention. Moreover, in a judgment of 14 October 1987 the Constitutional Court held that in respect of criminal penalties not covered by the reservation in respect of Article 5 (art. 5), the limited review carried out by the Administrative Court or the Constitutional Court was insufficient (see paragraph 26 above).",
"45. It follows that the applicant did not have access to a \"tribunal\". There has accordingly been a violation of Article 6 para. 1 (art. 6-1) on this point.",
"2. Lack of a hearing and failure to take evidence from witnesses",
"46. Mr Gradinger further criticised the Administrative Court for failing to hold a hearing or take evidence from witnesses.",
"47. Having regard to the conclusion set out in paragraph 45 above, the Court does not consider it necessary to examine these complaints.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 (P7-4)",
"48. The applicant maintained in addition that, by fining him pursuant to section 5 of the Road Traffic Act, the district authority and the regional government had punished him in respect of facts that were identical with those on the basis of which the Regional Court had decided that he did not have a case to answer under Article 81 para. 2 of the Criminal Code. As both these provisions in substance prohibited driving a vehicle with a blood alcohol level of 0.8 grams per litre or higher, there had been a breach of Article 4 of Protocol No. 7 (P7-4), which provides:",
"\"1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions (P7-4) of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article (P7-4) shall be made under Article 15 (art. 15) of the Convention.\"",
"A. The reservation in respect of Article 4 (P7-4)",
"49. The Government argued that the provision (P7-4) relied on by the applicant could not be invoked in the instant case because Austria 's declaration limited its scope exclusively to \"criminal proceedings in the sense of the Austrian Code of Criminal Procedure\" (see paragraph 29 above), thereby excluding administrative or disciplinary proceedings.",
"50. Like the Commission, the Court considers that the \"declaration\" is to be regarded as a reservation within the meaning of Article 64 (art. 64) of the Convention (see, mutatis mutandis, the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 24, para. 49). Indeed, the Government did not dispute this.",
"It is therefore necessary to determine whether the declaration satisfies the requirements of that provision (art. 64).",
"51. The Court notes at the outset that there is no \"brief statement\" of the law which is said not to conform to Articles 3 and 4 of Protocol No. 7 (P7-3, P7-4). Admittedly, it can be inferred from the wording of the \"declaration\" that Austria intended all proceedings that were not \"criminal proceedings in the sense of the Austrian Code of Criminal Procedure\" to be excluded from the scope of Articles 3 and 4 (P7-3, P7-4); the Government rightly drew attention to this. Nevertheless, with a description of this nature, which is not exhaustive, the \"declaration\" does not afford to a sufficient degree \"a guarantee ... that [it] does not go beyond the provisions expressly excluded\" by Austria (see, as the most recent authority, the Chorherr judgment previously cited, p. 34, para. 20). Accordingly, the declaration does not satisfy the requirements of Article 64 para. 2 (art. 64-2).",
"This conclusion is a sufficient basis for finding the \"declaration\" invalid, without its being necessary also to examine whether the other requirements of Article 64 (art. 64) were complied with.",
"B. Applicability ratione temporis of Article 4 (P7-4)",
"52. The Government contended further that Article 4 of Protocol No. 7 (P7-4) was inapplicable ratione temporis. Under section 1(2) of the Administrative Criminal Justice Act ( Verwaltungsstrafgesetz ), the sanction imposed depended on the law in force when the offence was committed or when the first-instance decision was delivered, if that was more favourable to the accused. In the present case the relevant dates were respectively 1 January and 16 July 1987, whereas Protocol No. 7 (P7) had not entered into force until 1 November 1988. The fact that the Administrative Court had given judgment after that date, on 29 March 1989, made no difference, because it too was required to rule on the basis of the law applicable when the offence was committed or when the first-instance decision was delivered.",
"53. Like the Commission, the Court observes that the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. That provision (P7-4) does not therefore apply before new proceedings have been opened. In the present case, inasmuch as the new proceedings reached their conclusion in a decision later in date than the entry into force of Protocol No. 7 (P7), namely the Administrative Court 's judgment of 29 March 1989, the conditions for applicability ratione temporis are satisfied.",
"C. Compliance with Article 4 (P7-4)",
"54. In reply to Mr Gradinger's arguments (see paragraph 48 above), which the Commission endorsed in substance, the Government affirmed that Article 4 of Protocol No. 7 (P7-4) did not preclude applying the two provisions in issue consecutively. The latter were different in nature and pursued different aims: whereas Article 81 para. 2 of the Criminal Code punished homicide committed while under the influence of drink, section 5 of the Road Traffic Act punished the mere fact of driving a vehicle while intoxicated. The former was designed to penalise acts that cause death and threaten public safety, the latter to ensure a smooth flow of traffic.",
"55. The Court notes that, according to the St Pölten Regional Court, the aggravating circumstance referred to in Article 81 para. 2 of the Criminal Code, namely a blood alcohol level of 0.8 grams per litre or higher, was not made out with regard to the applicant. On the other hand, the administrative authorities found, in order to bring the applicant's case within the ambit of section 5 of the Road Traffic Act, that that alcohol level had been attained. The Court is fully aware that the provisions in question differ not only as regards the designation of the offences but also, more importantly, as regards their nature and purpose. It further observes that the offence provided for in section 5 of the Road Traffic Act represents only one aspect of the offence punished under Article 81 para. 2 of the Criminal Code. Nevertheless, both impugned decisions were based on the same conduct. Accordingly, there has been a breach of Article 4 of Protocol No. 7 (P7-4).",
"III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION",
"56. Under Article 50 (art. 50) of the Convention,",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"57. Mr Gradinger claimed the sum of ATS 293,130 for the costs and expenses incurred in the proceedings in the national courts and then before the Convention institutions.",
"58. The Government expressed the view that only the proceedings in the Administrative Court - which had given rise to the alleged violations - and those in Strasbourg could be taken into account. They also contested the quantum of the costs, but they were prepared to reimburse a total of ATS 100,000.",
"59. The Delegate of the Commission left the matter of just satisfaction to the discretion of the Court.",
"60. Making an assessment on an equitable basis, having regard to the information in its possession and its case-law, the Court awards Mr Gradinger ATS 150,000."
] |
232 | Oliveira v. Switzerland | 30 July 1998 | The applicant in this case was successively convicted by a police magistrate for failing to control her vehicle and by a District Court for negligently causing physical injury in respect of a road-traffic accident. In her submission, the fact that the same incident had led to her conviction firstly for failing to control her vehicle and subsequently for negligently causing physical injury had constituted a breach of Article 4 of Protocol No. 7. | The Court noted that this was a typical example of a single act constituting various offences (concours idéal d’infractions). The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. In such cases, the greater penalty will usually absorb the lesser one. In the applicant’s case, the Court held that there had been no violation of Article 4 of Protocol No. 7, since that provision prohibits people being tried twice for the same offence whereas in cases concerning a single act constituting various offences one criminal act constitutes two separate offences. The Court added that it would admittedly have been more consistent with the principles governing the proper administration of justice for sentence in respect of both offences, which resulted from the same criminal act, to have been passed by the same court in a single set of proceedings. The fact that that procedure was not followed in the applicant’s case was, however, irrelevant as regards compliance with Article 4 of Protocol No. 7 since that provision does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts, especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater. The instant case was therefore distinguishable from the case of Gradinger (see above), in which two different courts came to inconsistent findings on the applicant’s blood alcohol level. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. the CIRCUMSTANCES OF THE CASE",
"6. Mrs Oliveira, a Portuguese citizen, was born in 1967 and currently lives in Zürich (Switzerland).",
"7. On 15 December 1990, while she was driving on a road covered with ice and snow in Zürich, her car veered onto the other side of the road hitting one car and then colliding with a second driven by M., who sustained serious injuries.",
"8. On 19 March 1991 the Zürich police magistrate’s office ( Polizeirichteramt ) sent the file to the district attorney’s office ( Bezirksanwaltschaft ) for further investigation as to whether the applicant had negligently inflicted serious physical injury contrary to Article 125 § 2 of the Swiss Criminal Code (see paragraph 16 below).",
"9. On 5 April 1991 the Zürich District Office ( Statthalteramt ) sent the file to the district attorney’s office for further investigations as to whether any offences had been committed under the Federal Road Traffic Act (see paragraph 17 below).",
"10. On 3 June 1991 the district attorney’s office returned the case file concerning the party injured in the accident to the police magistrate’s office. It contained a medical certificate stating that the injuries were serious. On 12 August 1991 the police magistrate found that there was no case for the injured party to answer ( Einstellungs-Verfügung ). On 13 August 1991 he convicted the applicant of an offence under sections 31 and 32 of the Federal Road Traffic Act of failing to control her vehicle, as she had not adapted her speed to the road conditions ( Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die Strassenverhältnisse ) and sentenced her to a fine of 200 Swiss francs (CHF). He found in particular that on 15 December 1990 the road had been covered with ice and snow and that the applicant's car had veered onto the other side of the road hitting one car before colliding with a second.",
"11. On 25 January 1993 the district attorney’s office issued a penal order ( Strafbefehl ) fining Mrs Oliveira CHF 2,000 for negligently causing physical injury contrary to Article 125 of the Swiss Criminal Code in respect of the injuries sustained by M. as a result of the collision between his vehicle and the applicant’s.",
"12. The applicant challenged that order in the Zürich District Court ( Bezirksgericht ), which on 11 March 1993 reduced the fine to CHF 1,500. It held in particular:",
"“The police magistrate who imposed the fine ( Bussenverfügung ) referred to by the applicant had to examine the situation within the context of proceedings concerning a minor criminal offence ( Übertretungsstrafverfahren ), so that by virtue of the non bis in idem principle there is no doubt that no further prosecution for a minor criminal offence can be brought on the basis of the same incident. However, the fact that investigations in this type of proceedings are summary and limited in scope means that offenders on whom only a fine has been imposed may, if a more thorough investigation is needed in view of legal or factual considerations, also be prosecuted on the same facts for a serious crime or other major offence. In such cases, the original decision and sentence are quashed.”",
"The court went on to quash the CHF 200 fine imposed on 13 August 1991 and said that any part of that fine that had already been paid was to be deducted from the fine it was imposing, the latter fine thus being reduced to CHF 1,300.",
"13. The applicant appealed to the Zürich Court of Appeal ( Obergericht ), which on 7 October 1993 dismissed the appeal holding, inter alia :",
"“It is necessary to consider what conclusions are to be drawn from the police magistrate’s error regarding the question in issue. It is clear that in his decision of 13 August 1991 he made a finding only in respect of the applicant’s failure to control the vehicle, but not in respect of the resulting physical injuries suffered by the victim… However, in determining whether the Highway Code had been followed, the police magistrate had the power and duty to consider all the facts before him and to rule on them exhaustively under the criminal law; his failure to remit the case file, even though possibly serious physical injuries had been caused by negligence, does not necessarily mean that the decision of the police magistrate is invalid – that decision stands. It has not been submitted, and does not appear from the file, that the decision in issue contains serious defects requiring that it be quashed in its entirety in any event.”",
"The Court of Appeal subsequently upheld the decision to deduct CHF 200 from the CHF 1,500 fine, considering that the applicant ought not to be punished more severely than she would have been if both offences had been dealt with together in a single set of proceedings.",
"14. Mrs Oliveira appealed against that decision on grounds of nullity ( Nichtigkeitsbeschwerden ) to the Court of Cassation ( Kassationsgericht ) of the Canton of Zürich and to the Federal Court. On 27 April 1994 the Court of Cassation declined to consider her appeal.",
"15. The applicant then filed a public-law appeal with the Federal Court against that decision.",
"On 17 August 1994, the Federal Court dismissed both the applicant's public-law appeal and her appeal on grounds of nullity. In its latter decision the Federal Court held that it had to be assumed that when on 13 August 1991 the police magistrate had imposed a fine on Mrs Oliveira, he had been unaware that M. had sustained serious injuries, as otherwise he would have had no jurisdiction to impose a fine and would have had to return the file to the district attorney’s office. The Federal Court concluded that the District Court had nevertheless avoided the effects of punishing an offender twice for the same offence by taking into account the CHF 200 fine imposed by the police magistrate when “determining the amount of the new fine” ( bei der Bemessung der neuen Busse )."
] | [
"ii. relevant domestic law",
"16. Article 125 of the Swiss Criminal Code provides:",
"“1. Anyone who negligently causes damage to the physical integrity or health of another shall, on a complaint, be liable to imprisonment or a fine.",
"2. If the injury is serious, the offender shall be prosecuted even in the absence of a complaint.”",
"17. Subsection 31(1) of the Federal Road Traffic Act provides, inter alia, that drivers shall remain in control of their vehicles at all times so as to fulfil their obligations to drive carefully. Under section 32, drivers must adapt the vehicle's speed to conditions.",
"PROCEEDINGS BEFORE THE COMMISSION",
"18. Mrs Oliveira applied to the Commission on 22 October 1994. She complained of a breach of Article 4 of Protocol No. 7.",
"19. The Commission declared the application (no. 25711/94) admissible on 13 January 1997. In its report of 1 July 1997 (Article 31), it expressed the opinion that there had been a violation of that provision (twenty-four votes to eight). The full text of the Commission’s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"20. In their memorial, the Government invited the Court to hold that there had been no violation of Article 4 of Protocol No. 7 in the instant case.",
"21. In her memorial, the applicant requested the Court",
"“1. To find that judgments delivered in criminal proceedings under the sovereign authority of the Swiss Confederation by the single judge at the Zürich District Court, by the Court of Appeal, by the Court of Cassation of the Canton of Zürich and by the Swiss Federal Court have infringed, to the applicant’s detriment, provisions of the European Convention on Human Rights, in particular Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, and that accordingly the respondent Government have failed to fulfil their obligation to comply with the provisions of the Convention.",
"2. To order the respondent Government, pursuant to Article 50 of the Convention taken together with Rule 52 § 1 of Rules of Court B, to pay the applicant just satisfaction in the sum of 60,340 Swiss francs.”",
"AS TO THE LAW",
"alleged VIOLATION OF ARTICLE 4 OF Protocol No. 7",
"22. In the applicant's submission, the fact that the same incident had led to her conviction firstly for failing to control her vehicle and subsequently for negligently causing physical injury constituted a breach of Article 4 of Protocol No. 7, which provides:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"In its judgment of 7 October 1993 the Court of Appeal had noted that the police magistrate knew that the accident victim had suffered serious injuries, in respect of which he had no jurisdiction. He had nonetheless given a ruling without remitting the case file to the district attorney’s office. The police magistrate had therefore decided the case in full knowledge of the relevant facts and in that regard it did not really matter why he had chosen not to impose a heavier penalty on the applicant. Even if he had erred in his assessment of the facts and the penalty called for, it was unacceptable that the applicant should be made to suffer the consequences by being convicted twice in respect of the same incident. Neither the police magistrate’s decision nor the fine he had imposed had been set aside by the higher courts, which had also punished the applicant. In short, there had been a breach of the non bis in idem principle.",
"23. The Government submitted that the limits within which Article 4 of Protocol No. 7 had been conceived could not be drawn so as categorically to exclude all possibility of the same set of facts being considered in two separate sets of proceedings. In any event, the case was distinguishable in three respects from that of Gradinger v. Austria (see the judgment of 23 October 1995, Series A no. 328-C): ( i ) there had been no inconsistency in the two relevant authorities’ assessment of the facts, (ii) as the jurisdiction of the first authority (the police magistrate) was limited he would not have been able to consider all the aspects of the offending conduct and, (iii) the applicant had not been put at any disadvantage as a result of there being separate proceedings.",
"Under Swiss law, the police magistrate’s jurisdiction did not extend to serious offences ( crimes and délits ), which were the responsibility of the district attorney’s office ( Bezirksanwaltschaft ) and the public prosecutor's office ( Staatsanwaltschaft ). The non bis in idem principle could not therefore apply in respect of a matter over which the police magistrate had no jurisdiction. The fact that he had nonetheless given a ruling was in all probability due to a misunderstanding between him and the district attorney in that, when the latter had sent the former the case file concerning a possible prosecution of the person injured in the accident, the police magistrate had taken it to be the file concerning the applicant. Whatever the position, Mrs Oliveira had not been prejudiced by his decision as the amount of the first fine had been deducted from the second. However, it would not be right either for the applicant to benefit in the name of the non bis in idem principle from that procedural error.",
"24. Relying on the Gradinger judgment cited above, the Commission accepted in substance the applicant’s argument. It noted that the basis for Mrs Oliveira’s two convictions had been that her car had veered onto the other side of the road hitting one car and then colliding with a second, whose driver had sustained serious injuries. The injuries had not been a separate element, but an integral part of the conduct by which they had finally been caused. Moreover, a defendant could not be deprived of the protection against a reopening of his case merely because his conviction had been based on a procedural defect.",
"25. The Court notes that the convictions in issue concerned an accident caused by the applicant on 15 December 1990. She had been driving on a road covered with ice and snow when her car veered onto the other side of the road hitting one car and then colliding with a second, whose driver sustained serious injuries. Mrs Oliveira was firstly ordered to pay a 200 Swiss franc (CHF) fine by the police magistrate for failing to control her vehicle as she had not adapted her speed to the road conditions (see paragraph 10 above). Subsequently, the Zürich District Court and then the Zürich Court of Appeal imposed a CHF 1,500 fine (from which, however, was deducted the amount of the initial fine) for negligently causing physical injury (see paragraphs 11–12 above).",
"26. That is a typical example of a single act constituting various offences ( concours idéal d’infractions ). The characteristic feature of this notion is that a single criminal act is split up into two separate offences, in this case the failure to control the vehicle and the negligent causing of physical injury. In such cases, the greater penalty will usually absorb the lesser one.",
"There is nothing in that situation which infringes Article 4 of Protocol No. 7 since that provision prohibits people being tried twice for the same offence whereas in cases concerning a single act constituting various offences ( concours idéal d’infractions ) one criminal act constitutes two separate offences.",
"27. It would admittedly have been more consistent with the principles governing the proper administration of justice for sentence in respect of both offences, which resulted from the same criminal act, to have been passed by the same court in a single set of proceedings. Indeed, it appears that that is what ought to have occurred in the instant case as the police magistrate should, in view of the fact that the serious injuries sustained by the injured party were outside his jurisdiction, have sent the case file to the district attorney for him to rule on both offences together (see paragraph 10 above). The fact that that procedure was not followed in Mrs Oliveira’s case is, however, irrelevant as regards compliance with Article 4 of Protocol No. 7 since that provision does not preclude separate offences, even if they are all part of a single criminal act, being tried by different courts, especially where, as in the present case, the penalties were not cumulative, the lesser being absorbed by the greater.",
"28. The instant case is therefore distinguishable from the case of Gradinger cited above, in which two different courts came to inconsistent findings on the applicant’s blood alcohol level.",
"29. In conclusion, there has been no violation of Article 4 of Protocol No. 7."
] |
233 | Franz Fischer v. Austria | 29 May 2001 | The applicant fatally injured a cyclist while driving under the influence of alcohol. The District Administrative Authority imposed a fine in respect of several road traffic offences, including driving under the influence of alcohol. Subsequently, the Regional Court convicted the applicant of causing death by negligence with the aggravating circumstance of being intoxicated through the consumption of alcohol. It sentenced him to 6 months' imprisonment. | In this case the Court reiterated that the mere fact that a single act constituted more than one offence was not contrary to Article 4 of Protocol No. 7. However, there are cases where one act appears at first sight to constitute more than one offence, but closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others. Thus, where different offences based on one act are prosecuted consecutively, the Court has to examine whether or not such offences have the same essential elements. The question whether or not the non bis in idem principle is violated concerns the relationship between the two offences at issue and does not depend on the order in which the respective proceedings are conducted. In the present case, the Court noted that the applicant had been tried and punished twice on the basis of one act, since the administrative offence of drunken driving and the special circumstances applying under the Criminal Code did not differ in their essential elements. Moreover, the Court was not convinced that the case had been resolved by the reduction of the prison sentence by one month, since that reduction could not alter the fact that the applicant had been tried twice for essentially the same offence and the fact that both convictions stood. The Court therefore held that there had been a violation of Article 4 of Protocol No. 7 in respect of the applicant. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. On 6 June 1996, the applicant, whilst driving under the influence of drink, knocked down a cyclist who was fatally injured. After hitting the cyclist, the applicant drove off without stopping to give assistance and only gave himself up to the police later that night.",
"8. On 13 December 1996, the St. Pölten District Administrative Authority ( Bezirkshauptmannschaft ), finding the applicant guilty of a number of road traffic offences, ordered him to pay a fine of 22,010 Austrian schillings (ATS) with twenty days ’ imprisonment in default. This sentence included a fine of ATS 9,000 with nine days ’ imprisonment in default imposed for driving under the influence of drink, contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act 1960 ( Straßenver kehrsordnung ).",
"9. On 18 March 1997 the St. Pölten Regional Court ( Landesgericht ) convicted the applicant under Article 81 § 2 of the Criminal Code ( Strafgesetzbuch ) of causing death by negligence “after allowing himself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which exclude[d] his responsibility ...”, and sentenced him to six months ’ imprisonment.",
"10. The applicant ’ s appeal against conviction and sentence was dismissed by the Vienna Court of Appeal ( Oberlandesgericht ) on 24 June 1997. The applicant argued that, in the light of the Court ’ s Gradinger v. Austria judgment (23 October 1995, Series A no. 328-C), the decision of the Regional Court should be quashed. The Court of Appeal recognised that the double conviction violated Article 4 of Protocol No. 7 to the Convention. However, it found that, in spite of the Gradinger case, Austrian law remained unchanged. It distinguished the Gradinger judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings, whereas in the present case, the order was reversed. The Court of Appeal explained that the double punishment was possible because there was no provision of Austrian law which provided for a principle of “subsidiarity” between the administrative and the criminal proceedings in the present circumstances. It concluded that this could not hinder the criminal proceedings which had a much wider scope. The applicant ’ s conviction was therefore upheld.",
"11. On 19 May 1999 the sentence of six months ’ imprisonment imposed on the applicant was reduced to five months by virtue of the Federal President ’ s prerogative of pardons."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Road Traffic Act",
"12. Section 5 (1) of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively.",
"13. Section 99 of the 1960 Act, so far as relevant, provided at the material time, that:",
"“(1) It shall be an administrative offence ( Verwaltungsűbertretung ), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks ’ imprisonment, for any person:",
"(a) to drive a vehicle when under the influence of drink ...",
"(6) An administrative offence is not committed where: ...",
"(c) facts constituting an offence under sub-sections (2), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .”",
"14. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts.",
"The Constitutional Court noted that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court ’ s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities.",
"Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts ’ constant case-law under section 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7.",
"B. The Criminal Code",
"15. Under Article 80 of the Criminal Code, it is an offence, punishable by up to one year ’ s imprisonment, to cause death by negligence. Where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased to up to three years ’ imprisonment.",
"16. Article 81 § 2 applies where a person commits the offence",
"“after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state”.",
"By virtue of an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Article 81 § 2.",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"17. The Government contended that the matter has been resolved as the applicant ’ s prison term was reduced by one month (see paragraph 11 above). They argued that a reduction of thirty days ’ imprisonment corresponded to sixty day rates of ATS 150 each and thus could be equated to the fine of ATS 9,000 paid in the administrative criminal proceedings.",
"18. The applicant objected, arguing that the reduction of sentence cannot dispel the fact that he has been tried and convicted twice of driving under the influence of drink. Moreover, it was the practice of the criminal courts to impose unconditional prison terms when the special circumstances of Article 81 § 2 of the Criminal Code applied whereas, in cases of causing death by negligence without this special circumstance, the courts regularly only imposed prison terms suspended on probation, or fines.",
"19. The Court considers that the parties ’ arguments are closely linked to the well- foundedness of the applicant ’ s complaint and will, therefore, join the Government ’ s preliminary plea to the merits.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION",
"20. The applicant alleged a violation of Article 4 of Protocol No. 7 which, so far as relevant provides as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”",
"The applicant contended that he was punished twice for driving under the influence of drink, first by the District Administrative Authority under sections 5 (1) and 99 (1)(a) of the Road Traffic Act and, secondly, by the Regional Court, which found that the special circumstance of section 81 § 2 of the Criminal Code applied. In the applicant ’ s view, the conviction by the criminal courts in its entirety, or at least the fact that the conviction was not limited to Article 80 of the Criminal Code, but also extended to Article 81 § 2, infringed Article 4 of Protocol No. 7. The applicant maintained that the present case was not comparable to the Oliveira v. Switzerland case (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V) as in that case the criminal courts had quashed the fine imposed by the police magistrate and stated that, if the fine had already been paid, it was to be deducted from the second fine. However, in his case two sentences were actually imposed.",
"21. The Government asserted that the Court, in its Gradinger judgment took the “same conduct” as the criterion for determining the “offence” within the meaning of Article 4 of Protocol No. 7. In its Oliveira judgment, however, the Court adopted a different approach by taking the legal qualification of the underlying facts as the criterion for establishing the identity of the “offence” without taking account of the overlapping factual elements of the case. In the Government ’ s view, the present application, like the Oliveira case, concerns a typical example of a single act constituting various offences, i.e. a case where one criminal act constitutes two separate offences, namely driving under the influence of drink and causing death by negligence in the special circumstances of Article 81 § 2 of the Criminal Code. The Government accepted that the present case differed from the Oliveira case in that, under Swiss law, both offences should have been tried by the same authority, and the lesser penalty was absorbed by the greater. However, none of these aspects was considered to be decisive. Finally, unlike the Gradinger case, the authorities in the present application did not come to a different assessment of the facts. In sum, there has been no breach of Article 4 of Protocol No. 7.",
"22. The Court recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see the Gradinger judgment cited above, p. 65, § 53).",
"23. As the Government pointed out, the Court ’ s approach in the Gradinger and Oliveira judgments in order to determine whether the respective applicants were tried or punished again “for an offence for which [they had] already been finally acquitted or convicted” appears somewhat contradictory. The Court recalls that in each case two sets of proceedings arose out of one traffic accident. In the Gradinger case, the applicant was first convicted by the criminal courts for causing death by negligence, but acquitted of the special element under Article 81 § 2 of “allowing himself to become intoxicated”, where there was an irrebuttable presumption of intoxication with a blood alcohol level of 0.8 grams per litre. He was then convicted by the administrative authorities of driving “a vehicle under the influence of drink” contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act, where the influence of drink is deemed present with a blood alcohol level of 0.8 grams per litre.",
"In the Oliveira case, the applicant was first convicted by the police magistrate for failing to control her vehicle as she had not adapted her speed to the road conditions. Subsequently, she was convicted by the criminal courts of causing physical injury by negligence.",
"24. In the Gradinger case the Court, while emphasising that the offences at issue differed in nature and aim, found a violation of Article 4 of Protocol No. 7 as both decisions were based on the same conduct (ibid., §§ 54-55). In the Oliveira case it found no violation of this provision, considering that it presented a typical example of a single act constituting various offences ( concours idéal d ’ infractions ) which did not infringe Article 4 of Protocol No. 7, since that provision only prohibited people being tried twice for the same offence (see the Oliveira judgment, previously cited, p. 1998, § 26).",
"25. The Court observes that the wording of Article 4 of Protocol No. 7 does not refer to “the same offence” but rather to trial and punishment “again” for an offence for which the applicant has already been finally acquitted or convicted. Thus, while it is true that the mere fact that a single act constitutes more than one offence is not contrary to this Article, the Court must not limit itself to finding that an applicant was, on the basis of one act, tried or punished for nominally different offences. The Court, like the Austrian Constitutional Court, notes that there are cases where one act, at first sight, appears to constitute more than one offence, whereas a closer examination shows that only one offence should be prosecuted because it encompasses all the wrongs contained in the others (see paragraph 14 above). An obvious example would be an act which constitutes two offences, one of which contains precisely the same elements as the other plus an additional one. There may be other cases where the offences only slightly overlap. Thus, where different offences based on one act are prosecuted consecutively, one after the final decision of the other, the Court has to examine whether or not such offences have the same essential elements.",
"26. This view is supported by the decision in the case of Ponsetti and Chesnel v. France (nos. 36855/97 and 41731/98 ECHR 1999 ‑ VI, [14.9.99]), relating to separate convictions for two tax offences arising out of the failure to submit a tax declaration, where the respondent Government also argued that this was an example of one act constituting more than one offence. Nevertheless, the Court examined whether the offences in question differed in their essential elements.",
"27. It can also be argued that this is what distinguishes the Gradinger case from the Oliveira case. In the Gradinger case the essential elements of the administrative offence of drunken driving did not differ from those constituting the special circumstances of Article 81 § 2 of the Criminal Code, namely driving a vehicle while having a blood alcohol level of 0.8 grams per litre or more. However, there was no such obvious overlap of the essential elements of the offences at issue in the Oliveira case.",
"28. In the present case, the applicant was first convicted by the administrative authority for drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act. In subsequent criminal proceedings he was convicted of causing death by negligence with the special element under Article 81 § 2 of the Criminal Code of “allowing himself to become intoxicated”. The Court notes that there are two differences between the Gradinger case and the present: the proceedings were conducted in reverse order and there was no inconsistency between the factual assessment of the administrative authority and the criminal courts, as both found that the applicant had a blood alcohol level above 0.8 grams per litre.",
"29. However, the Court considers that these differences are not decisive. As said above, the question whether or not the non bis in idem principle is violated concerns the relationship between the two offences at issue and can, therefore, not depend on the order in which the respective proceedings are conducted. As regards the fact that Mr Gradinger was acquitted of the special element under Article 81 § 2 of the Criminal Code but convicted of drunken driving, whereas the present applicant was convicted of both offences, the Court repeats that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be tried twice. What is decisive in the present case is that, on the basis of one act, the applicant was tried and punished twice, since the administrative offence of drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act, and the special circumstances under Article 81 § 2 of the Criminal Code, as interpreted by the courts, do not differ in their essential elements.",
"30. The Court is not convinced by the Government ’ s argument that the case was resolved due to the reduction of the applicant ’ s prison term by one month, being equivalent to the fine paid in the administrative proceedings. The reduction of the prison term by virtue of the Federal President ’ s prerogative of pardons cannot alter the above finding that the applicant was tried twice for essentially the same offence, and the fact that both his convictions stand.",
"The Court therefore rejects the Government ’ s preliminary objection based on the same argument.",
"31. Finally, the Court observes that, in a case like the present, the Contracting State remains free to regulate which of the two offences shall be prosecuted. It further notes that the legal situation in Austria has changed following the Constitutional Court ’ s judgment of 5 December 1996, so that nowadays the administrative offence of drunken driving under sections 5 (1) and 99 (1)(a) of the Road Traffic Act will not be pursued if the facts also reveal the special elements of the offence under Article 81 § 2 of the Criminal Code.",
"However, at the material time, the applicant was tried and punished for both offences containing the same essential elements.",
"32. There has, thus, been a violation of Article 4 of Protocol No. 7.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"33. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"34. The applicant claimed ATS 100,000 for non-pecuniary damage arguing that, without the special circumstances of Article 81 § 2 of the Criminal Code, he would not have been sentenced to an unconditional term of imprisonment.",
"35. The Government objected, stating that there is no causal link between the applicant ’ s imprisonment and the alleged breach of Article 4 of Protocol No. 7, as the alleged breach could equally have been avoided by making the administrative offence subsidiary to the offence falling within the competence of the criminal courts. They pointed out that this has been the legal situation pertaining since the Constitutional Court ’ s judgment of 5 December1996.",
"36. The Court agrees that there is no causal link between the violation found and the damage claimed by the applicant. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction as regards any non-pecuniary damage the applicant may have sustained. Thus, it makes no award under this head.",
"B. Costs and expenses",
"37. The applicant claimed ATS 43,532 for the costs incurred in the domestic proceedings and ATS 25,110 for the costs incurred in the Convention proceedings. Further, arguing that if the Court found a violation of Article 4 of Protocol No. 7 the proceedings before the criminal courts would have to be reopened, he requested ATS 15,000 for these future proceedings.",
"38. The Government accepted the applicant ’ s costs claim for the domestic and Convention proceedings. However, they objected to the claim for the costs of possible future proceedings.",
"39. The Court, having regard to the Government ’ s position, awards the costs incurred in the domestic and Convention proceedings in full, thus granting the applicant ATS 68,642 under this head.",
"It cannot, however, award costs which the applicant has not yet incurred.",
"C. Default interest",
"40. According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum."
] |
234 | Sergey Zolotukhin v. Russia | 10 February 2009 (Grand Chamber) | In January 2002 the applicant was arrested for bringing his girlfriend into a military compound without authorisation. A district court found him guilty of “minor disorderly acts” under the Code of Administrative Offences and sentenced him to three days’ detention. Subsequently, criminal proceedings were brought against him, under Article 213 § 2 (b) of the Criminal Code, concerning his disorderly conduct before the police report was drawn up and, under Articles 318 and 319 of the Criminal Code, concerning his threatening and insulting behaviour during and after the drafting of that report. In December 2002 the same district court found the applicant guilty of the charges under Article 319 of the Criminal Code. He was, however, acquitted of the charges under Article 213 as the court found that his guilt had not been proven to the standard required in criminal proceedings. The applicant was sentenced to five years and six months’ imprisonment in a correctional colony and ordered to follow treatment for alcoholism. He complained that, after having already served three days’ detention for disorderly conduct as a result of administrative proceedings against him, he was detained and tried again for the same offence in criminal proceedings. | As to the existence of a “criminal charge” in the applicant’s case, the Grand Chamber took the view that although the proceedings instituted against the applicant before the District Court in January 2002 were classified as administrative in national law, they were to be equated with criminal proceedings on account, in particular, of the nature of the offence and the severity of the penalty. Then, as to whether the offences were the same, the Grand Chamber noted that it had adopted a variety of approaches in the past, placing the emphasis either on identity of the facts irrespective of their legal characterisation, on the legal classification, accepting that the same facts could give rise to different offences, or on the existence or otherwise of essential elements common to both offences. Taking the view that the existence of these different approaches was a source of legal uncertainty which was incompatible with the fundamental right guaranteed by Article 4 of Protocol No. 7, the Grand Chamber decided to define in detail what was to be understood by the term “same offence” for the purposes of the Convention. After examining the scope of the right not to be tried and punished twice as set forth in other international instruments, it stated that Article 4 of Protocol No. 7 should be construed as prohibiting the prosecution or trial of an individual for a second offence in so far as it arose from identical facts or facts that were “substantially” the same as those underlying the first offence. This guarantee came into play where a new set of proceedings was instituted after the previous acquittal or conviction had acquired the force of res judicata. In the instant case the Grand Chamber considered that the facts underlying the two sets of administrative and criminal proceedings against the applicant differed in only one element, namely the threat to use violence against a police officer, and should therefore be regarded as substantially the same. Lastly, as to whether there had been a duplication of proceedings, the Grand Chamber found that the judgment in the “administrative” proceedings sentencing the applicant to three days’ detention amounted to a final decision, as no ordinary appeal lay against it in domestic law. The Court further stressed that the fact that the applicant had been acquitted in the criminal proceedings had no bearing on his claim that he had been prosecuted twice for the same offence, nor did it deprive him of his victim status, as he had been acquitted not on account of the breach of his rights under Article 4 of Protocol No. 7, but solely on the ground of insufficient evidence against him. In the present case, the Court concluded that the proceedings instituted against the applicant under Article 213 § 2 (b) of the Criminal Code concerned essentially the same offence as that of which he had already been convicted under the Code of Administrative Offences, and that he had therefore been the victim of a breach of Article 4 of Protocol No. 7. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"11. The applicant was born in 1966 and lives in Voronezh.",
"A. The events of 4 January 2002",
"12. The events, as described by the parties and related in the relevant documents, unfolded on that day in the following manner.",
"13. On the morning of 4 January 2002 the applicant was taken to police station no. 9 of the Department of the Interior in the Leninskiy district of Voronezh (“the police station”) for the purpose of establishing how he had managed to take his girlfriend Ms P. into a restricted military compound.",
"14. At the police station the applicant was firstly taken to the office of the passport service. He was drunk and verbally abusive towards the passport desk employee Ms Y. and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him. After pushing Captain S. and attempting to leave, he was handcuffed. The police officers considered that the applicant ’ s conduct amounted to the administrative offence of minor disorderly acts.",
"15. The applicant was taken to the office of Major K., the head of the police station. Major K. drafted a report on the applicant ’ s disorderly conduct which read as follows:",
"“ This report has been drawn up by Major K. , head of police station no. 9, Voronezh ‑ 45, to record the fact that on 4 January 2002 at 9.45 a.m. Mr Zolotukhin, who had been brought to police station no. 9 with Ms P. , whom he had taken into the closed military compound unlawfully, uttered obscenities at police officers and the head of [unreadable], did not respond to reprimands, ignored requests by police officers to end the breach of public order, attempted to escape from police premises and was handcuffed, that is to say, he committed the administrative offences set out in Articles 158 and 165 of the RSFSR Code of Administrative Offences. ”",
"16. Captain S. and Lieutenant-Colonel N. were also present in the office while Major K. was drafting the report. The applicant became verbally abusive towards Major K. and threatened him with physical violence. He again attempted to leave and kicked over a chair.",
"17. After the report was completed the applicant was placed in a car to be taken to the Gribanovskiy district police station (ROVD ). The driver Mr L., Major K., Lieutenant-Colonel N. and Ms P. rode in the same car. On the way, the applicant continued to swear at Major K. and threatened to kill him for bringing administrative proceedings against him.",
"B. Administrative conviction of the applicant",
"18. On 4 January 2002 the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code of Administrative Offences of the Russian Soviet Federative Republic (RSFSR), on the following grounds :",
"“Zolotukhin swore in a public place and did not respond to reprimands.”",
"19. The applicant was sentenced to three days ’ administrative detention. The judgment indicated that the sentence was not amenable to appeal and was immediately effective.",
"C. Criminal prosecution of the applicant",
"20. On 23 January 2002 a criminal case was opened against the applicant on suspicion of his having committed “disorderly acts, including resisting a public official dealing with a breach of public order” – an offence under Article 213 § 2 (b) of the Criminal Code of the Russian Federation – on 4 January 2002 at the police station. On the following day, the applicant was taken into custody. On 1 February 2002 two further sets of proceedings were instituted against the applicant on other charges.",
"21. On 5 April 2002 the applicant was formally indicted. The relevant parts of the charge sheet read as follows:",
"“ On the morning of 4 January 2002 Mr Zolotukhin was taken to police station no. 9 in the Leninskiy district of Voronezh, for elucidation of the circumstances in which his acquaintance Ms P. had entered the territory of the closed military compound Voronezh-45. In the passport office at police station no. 9 Mr Zolotukhin, who was inebriated, flagrantly breached public order, expressing a clear lack of respect for the community, and began loudly uttering obscenities at those present in the passport office, namely Ms Y. , a passport official in the housing department of military unit 25852, and Captain S. , head of the road traffic department in police station no. 9; in particular, he threatened the latter, in his capacity as a police officer performing official duties, with physical reprisals. Mr Zolotukhin did not respond to Captain S. ’ s lawful requests to end the breach of public order; he attempted to leave the premises of the passport office, actively resisted attempts to prevent his disorderly conduct, provided resistance to Captain S. , pushing him and pulling out of his reach, and prevented the passport office from operating normally.",
"Hence, through his intentional actions Mr Zolotukhin engaged in disorderly acts, that is to say, a flagrant breach of public order expressing clear disrespect towards the community, combined with a threat to use violence, and resisting a public official dealing with a breach of public order; the above amounts to the offence set out in Article 213 § 2 ( b ) of the Criminal Code.",
"As a result of his disorderly behaviour, Mr Zolotukhin was taken to the office of Major K. , head of police station no. 9, Leninskiy district, Voronezh, who was present in his official capacity, so that an administrative offence report could be drawn up. [Major] K., in performance of his official duties, began drafting an administrative offence report concerning Mr Zolotukhin, under Articles 158 and 165 of the RSFSR Code of Administrative Offences. Mr Zolotukhin, seeing that an administrative offence report was being drawn up concerning him, began publicly to insult [Major] K. , uttering obscenities at him in his capacity as a police officer, in the presence of Lieutenant-Colonel N. , assistant commander of military unit 14254, and Captain S., head of the road traffic department in police station no. 9, thus intentionally attacking the honour and dignity of a police officer. Mr Zolotukhin deliberately ignored Major K. ’ s repeated requests to end the breach of public order and insulting behaviour. Mr Zolotukhin then attempted to leave the office of the head of the police station without permission and kicked over a chair, while continuing to direct obscenities at Major K. and to threaten him with physical reprisals.",
"Hence, Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties, that is to say, he committed the offence set out in Article 319 of the Criminal Code.",
"After the administrative offence report had been drawn up in respect of Mr Zolotukhin, he and Ms P. were placed in a vehicle to be taken to the Gribanovskiy district police station in the Voronezh region. In the car, in the presence of Ms P. , Lieutenant ‑ Colonel N. , assistant commander of military unit 14254, and the driver [Mr] L. , Mr Zolotukhin continued intentionally to attack the honour and dignity of Major K. , who was performing his official duties, uttering obscenities at him in his capacity as a police officer and thus publicly insulting him; he then publicly threatened to kill Major K. , the head of police station no. 9, for bringing administrative proceedings against him.",
"Hence, by his intentional actions, Mr Zolotukhin threatened to use violence against a public official in connection with the latter ’ s performance of his official duties, that is to say, he committed the crime set out in Article 318 § 1 of the Criminal Code.",
"22. On 2 December 2002 the Gribanovskiy District Court delivered its judgment. As regards the offence under Article 213 § 2 of the Criminal Code, the District Court acquitted the applicant for the following reasons :",
"“ On the morning of 4 January 2002 in ... police station no. 9 [the applicant], in an inebriated state, swore at ... Ms Y. and Captain S., threatening to kill the latter. He refused to comply with a lawful request by Captain S. , ... behaved aggressively, pushed [Captain] S. and attempted to leave. Having examined the evidence produced at the trial, the court considers that [the applicant ’ s] guilt has not been established. On 4 January 2002 [the applicant] was subjected to three days ’ administrative detention for the same actions [characterised] under Articles 158 and 165 of the Code of Administrative Offences. No appeal was lodged against the judicial decision, nor was it quashed. The court considers that there is no indication of a criminal offence under Article 213 § 2 ( b ) in the defendant ’ s actions and acquits him of this charge.”",
"23. The District Court further found the applicant guilty of insulting a State official under Article 319 of the Criminal Code. It established that the applicant had sworn at Major K. and threatened him while the latter had been drafting the report on the administrative offences under Articles 158 and 165 of the RSFSR Code of Administrative Offences in his office at the police station. Major K. ’ s statements to that effect were corroborated by depositions from Captain S. , Lieutenant ‑ Colonel N. and Ms Y ., who had also been present in Major K. ’ s office.",
"24. Finally, the District Court found the applicant guilty of threatening violence against a public official under Article 318 § 1 of the Criminal Code. On the basis of the statements by Major K. , Lieutenant - Colonel N. and the applicant ’ s girlfriend it found that, after the administrative offence report had been finalised, the applicant and his girlfriend had been taken by car to the Gribanovskiy district police station. In the car, the applicant had continued to swear at Major K. He had also spat at him and said that, once released, he would kill him and abscond. Major K. had perceived the threat as real because the applicant had a history of abusive and violent behaviour.",
"25. On 15 April 2003 the Voronezh Regional Court, in summary fashion, upheld the judgment on appeal."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"26. The Russian Constitution provides that “no one may be convicted twice for the same offence ” (Article 50 § 1).",
"27. The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court, investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings (Article 27 §§ 4 and 5).",
"28. Article 158 of the RSFSR Code of Administrative Offences (in force at the material time) read as follows:",
"Article 158 Minor disorderly acts",
"“Minor disorderly acts, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach public order and peace, shall be punishable by a fine of between ten and fifteen months ’ minimum wages or by one to two months ’ correctional work combined with the withholding of twenty per cent of the offender ’ s wages, or – if, in the circumstances of the case and having regard to the offender ’ s character, these measures are not deemed to be adequate – by up to fifteen days ’ administrative detention.”",
"29. The Criminal Code of the Russian Federation (version in force at the material time), in so far as relevant, read as follows :",
"Article 213 Disorderly acts",
"“1. Disorderly acts, that is, serious breaches of public order or flagrant displays of disrespect towards the community, combined with the use of violence towards individuals or the threat to use violence or destroy or damage the property of others, shall be punishable ... by up to two years ’ deprivation of liberty.",
"2. The same acts, if committed",
"...",
"(b) while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ...",
"– shall be punishable by between 180 and 240 hours ’ mandatory work or by one to two years ’ correctional work or up to five years ’ deprivation of liberty .”",
"Article 318 § 1 Use of violence against a public official",
"“ The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty ... ”",
"Article 319 Insulting a public official",
"“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between 50 and 100 months ’ minimum wages, ... 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.”",
"30. In Resolution no. 4 of 27 June 1978 (with subsequent amendments), the Plenary Supreme Court ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant, but his or her actions were socially dangerous enough to be considered a crime, criminal proceedings should be brought against him or her under Article 206 of the RSFSR Criminal Code (replaced by Article 213 of the Russian Criminal Code after 1 January 1997) ( § 5). In Resolution no. 5 of 24 December 1991 (with subsequent amendments), the Plenary Supreme Court held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively, in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts (§ 20).",
"III. RELEVANT AND COMPARATIVE INTERNATIONAL LAW",
"A. United Nations Covenant on Civil and Political Rights",
"31. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights provides as follows:",
"“ No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. ”",
"B. Statute of the International Criminal Court",
"32. Article 20 of the Statute of the International Criminal Court provides as follows:",
"“1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.",
"2. No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court.",
"3. No person who has been tried by another court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court :",
"(a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or",
"(b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”",
"C. The European Union and the Schengen Agreement",
"33. Article 50 of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Strasbourg on 12 December 2007 (OJ 14.12.2007, C 303/1), reads as follows:",
"“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”",
"34. Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (“the CISA”) provides as follows:",
"“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”",
"35. The Court of Justice of the European Union (“the CJEU ”) has recognised the non bis in idem principle as a fundamental principle of Community law ( Limburgse Vinyl Maatschappij NV (LVM) and Others v. Commission of the European Communities, Joined Cases C-238/99 P, C ‑ 24 4/99 P, C - 245/99 P, C-247/99 P, C- 2 50/99 P to C-252/99 P and C ‑ 254/99 P, § 59, 15 October 2002 ):",
"“ ... the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4 § 1 of Protocol No. 7 to the ECHR [the Convention], precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision. ”",
"36. In the area of competition law the CJEU applied the following approach to testing compliance with the non bis in idem principle ( Aalborg Portland A/S and Others v. Commission of the European Communities, Joined Cases C-204/00 P, C- 205/00 P, C- 211 /00 P, C ‑ 213/00 P, C- 217/00 P and C- 219/00 P, § 338, 7 January 2004 ):",
"“ As regards observance of the principle ne bis in idem, the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.”",
"37. The CJEU ’ s case-law on police and judicial cooperation in criminal matters is based on a different interpretation of “ idem ” ( Leopold Henri Van Esbroeck, Case C-436/04, 9 March 2006 ):",
"“27. In the first place, however, the wording of Article 54 of the CISA, ‘ the same acts ’, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification.",
"28. It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle. Unlike Article 54 of the CISA, Article 14 § 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms use the term ‘ offence ’, which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties.",
"...",
"30. There is a necessary implication in the ne bis in idem principle, enshrined in that Article, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ([ Case C-385/01 ] Gözütok and Brügge [ [2003] ECR I-1345 ], paragraph 33).",
"31. It follows that the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA.",
"32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another.",
"33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement ( Gözütok and Brügge, paragraph 38, and Case C-469/03 Miraglia [2005] ECR I-2009, paragraph 32).",
"34. As pointed out by the Advocate General in point 45 of his Opinion, that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a member State, he may travel within the Schengen territory without fear of prosecution in another member State on the basis that the legal system of that member State treats the act concerned as a separate offence.",
"35. Because there is no harmonisation of national criminal laws, a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States.",
"36. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.",
"...",
"38. ... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject matter.”",
"38. The CJEU confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle ( Norma Kraaijenbrink, Case C-367/05, 18 July 2007 ):",
"“26. ... it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck, paragraph 36; Case C-467/04 Gasparini and Others [2006] ECR I-9199, paragraph 54; and Case C-150/05 Van Straaten [2006] ECR I-9327, paragraph 48).",
"27. In order to assess whether such a set of concrete circumstances exists, the competent national courts must determine whether the material acts in the two proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (see, to that effect, Van Esbroeck, paragraph 38; Gasparini and Others, paragraph 56; and Van Straaten, paragraph 52).",
"28. It follows that the starting - point for assessing the notion of ‘ same acts ’ within the meaning of Article 54 of the CISA is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of the two Contracting States as a whole. Thus, Article 54 of the CISA can become applicable only where the court dealing with the second criminal prosecution finds that the material acts, by being linked in time, in space and by their subject matter, make up an inseparable whole.",
"29. On the other hand, if the material acts do not make up such an inseparable whole, the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘ same acts ’ within the meaning of Article 54 of the CISA.",
"30. As the Commission of the European Communities in particular pointed out, a subjective link between acts which gave rise to criminal proceedings in two different Contracting States does not necessarily mean that there is an objective link between the material acts in question which, consequently, could be distinguished in time and space and by their nature.",
"...",
"32. ... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in the two Contracting States is such that it is possible to find that they are ‘ the same acts ’ within the meaning of Article 54 of the CISA.",
"...",
"36. In the light of the foregoing, the answer to the first question must therefore be that Article 54 of the CISA is to be interpreted as meaning that :",
"– the relevant criterion for the purposes of the application of that Article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;",
"– different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘ the same acts ’ within the meaning of Article 54 of the CISA merely because the competent national court finds that those acts are linked together by the same criminal intention;",
"– it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant criterion, to find that they are ‘ the same acts ’ within the meaning of Article 54 of the CISA.”",
"D. American Convention on Human Rights",
"39. Article 8 § 4 of the American Convention on Human Rights reads as follows:",
"“An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.”",
"40. The Inter-American Court of Human Rights gave the following interpretation of that provision ( Loayza - Tamayo v. Peru, 17 September 1997, Series C No. 33, § 66 ) :",
"“ This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14 § 7), which refers to the same ‘ crime ’ ), the American Convention uses the expression ‘ the same cause ’, which is a much broader term in the victim ’ s favour. ”",
"E. Supreme Court of the United States",
"41. In the United States the double-jeopardy rule arises out of the Fifth Amendment to the Constitution, the relevant clause of which reads:",
"“ ... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ... ”",
"42. In the case of Blockburger v. United States, 284 U.S. 299 (1932), in which the defendant had sold drugs not in the original package and without a written order of the purchaser, and where the sale had been characterised as two statutory offences, the Supreme Court adopted the following interpretation:",
"“Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one.",
"...",
"Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not ... [T]his court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘ A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other ’ .”",
"43. In the case of Grady v. Corbin, 495 U.S. 508 (1990), which concerned “vehicular homicide” by the defendant Mr Corbin, the Supreme Court developed a different approach:",
"“ ... [A] technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials. This case similarly demonstrates the limitations of the Blockburger analysis. If Blockburger constituted the entire double - jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for homicide. The State could improve its presentation of proof with each trial, assessing which witnesses gave the most persuasive testimony, which documents had the greatest impact, which opening and closing arguments most persuaded the jurors. Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense.",
"Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the double -jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. ... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct ... [A] State cannot avoid the dictates of the double -jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ... ”",
"44. Nevertheless, in the case of United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court returned to the Blockburger test:",
"“ The double -jeopardy clause ’ s protection attaches in non - summary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double - jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the ‘ same elements ’ or ‘ Blockburger ’ test. ... That test inquires whether each offense contains an element not contained in the other; if not, they are the ‘ same offense ’ within the clause ’ s meaning, and double jeopardy bars subsequent punishment or prosecution. ...",
"Although prosecution [in the present case] would undoubtedly be barred by the Grady ‘ same - conduct ’ test, Grady must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion. ... Moreover, the Grady rule has already proved unstable in application, see United States v. Felix, 503 U.S. ... Although the Court does not lightly reconsider precedent, it has never felt constrained to follow prior decisions that are unworkable or badly reasoned. ”",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"45. Before the Grand Chamber the Government raised for the first time the objection of non-exhaustion of domestic remedies. They maintained that the applicant had not appealed against his administrative conviction or the decision to institute criminal proceedings.",
"46. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Prokopovich v. Russia, no. 58255/00, § 29, ECHR 2004-XI, with further references). At the admissibility stage the Government did not raise any objection concerning the exhaustion of domestic remedies. Consequently, the Government are estopped from raising a preliminary objection of non ‑ exhaustion of domestic remedies at the present stage of the proceedings. The Government ’ s objection must therefore be dismissed.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"47. The applicant complained under Article 4 of Protocol No. 7 that, after he had already served three days ’ detention for disorderly acts committed on 4 January 2002, he had been tried again for the same offence. Article 4 of Protocol No. 7 provides as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention. ”",
"A. Whether the first sanction was criminal in nature",
"48. The Court observes that on 4 January 2002 the applicant was found guilty in proceedings conducted under the Code of Administrative Offences which were regarded as “ administrative ” rather than “criminal” according to the Russian legal classification. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7.",
"1. The Chamber ’ s conclusion",
"49. The Chamber, having regard to the maximum fifteen-day penalty which the offence under Article 158 of the Code of Administrative Offences carried and the three-day term of detention which the applicant had actually served, considered that the finding of guilt in the proceedings conducted on 4 January 2002 amounted to a “criminal” conviction within the meaning of Article 4 of Protocol No. 7.",
"2. The parties ’ submissions",
"(a) The applicant",
"50. The applicant submitted that his conviction of an offence under Article 158 of the Code of Administrative Offences satisfied the criteria set out in the Court ’ s jurisprudence on interpretation of the notion of “criminal charge”. He pointed out that it was the potential penalty – in his case, fifteen days ’ imprisonment – rather than the actual penalty imposed which was the decisive element for classification of an offence as “criminal” (he referred to the cases of Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22, and Lauko v. Slovakia, 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI). He recalled that he had been handcuffed in order to be brought before a judge, found guilty on the same day and sentenced to three days ’ imprisonment with immediate effect.",
"(b) The Government",
"51. The Government accepted that the applicant ’ s conviction on 4 January 2002 had been “criminal” in nature.",
"3. The Court ’ s assessment",
"52. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see, most recently, Storbråten v. Norway (dec.), no. 12277/04, 1 February 2007, with further references ). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden ( dec .), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports 1998 ‑ VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ XIII ).",
"53. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others, cited above), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Jussila v. Finland [GC], no. 73053/01, § § 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § § 82-86, ECHR 2003 ‑ X ).",
"54. In the domestic legal classification the offence of “minor disorderly acts” under Article 158 of the Code of Administrative Offences was characterised as an “administrative” one. Nevertheless, the Court reiterates that it has previously found that the sphere defined in the Russian and other similar legal systems as “administrative” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure (see Menesheva v. Russia, no. 59261/00, § 96, ECHR 2006 ‑ III; Galstyan v. Armenia, no. 26986/03, § 57, 15 November 2007; and Ziliberberg v. Moldova, no. 61821/00, § § 32-35, 1 February 2005 ).",
"55. By its nature, the inclusion of the offence of “minor disorderly acts” in the Code of Administrative Offences served to guarantee the protection of human dignity and public order, values and interests which normally fall within the sphere of protection of criminal law. The corresponding provision of the Code was directed towards all citizens rather than towards a group possessing a special status. The reference to the “minor” nature of the acts does not, in itself, exclude its classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors, cited above, § 104). Finally, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105).",
"56. As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (ibid., § 120). The Court observes that Article 158 of the Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty and that the applicant was eventually sentenced to serve three days ’ deprivation of liberty. As the Court has confirmed on many occasions, in a society subscribing to the rule of law, where the penalty liable to be and actually imposed on an applicant involves the loss of liberty, there is a presumption that the charges against the applicant are “ criminal ”, a presumption which can be rebutted entirely exceptionally, and only if the deprivation of liberty cannot be considered “appreciably detrimental” given their nature, duration or manner of execution (see Engel and Others, § 82, and Ezeh and Connors, § 126, both cited above). In the present case the Court does not discern any such exceptional circumstances.",
"57. In the light of the above considerations the Court concludes, as did the Chamber, that the nature of the offence of “minor disorderly acts”, together with the severity of the penalty, were such as to bring the applicant ’ s conviction on 4 January 2002 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"B. Whether the offences for which the applicant was prosecuted were the same ( idem )",
"58. Article 4 of Protocol No. 7 establishes the guarantee that no one shall be tried or punished for an offence of which he or she has already been finally convicted or acquitted. Given the multitude of charges levelled against the applicant in criminal proceedings, the Court considers it necessary to determine at the outset whether any criminal offence the applicant was charged with was essentially similar to the administrative offence of which he was convicted.",
"1. The Chamber ’ s conclusion",
"59. The Chamber found that, as regards the applicant ’ s conviction under Articles 318 and 319 of the Criminal Code for insulting and threatening violence against public officials, this part of the conviction had been based on acts separate from and subsequent in time to those on which his conviction of “disorderly acts” had been founded. On the other hand, the charge of “disorderly acts” under Article 213 of the Criminal Code brought against the applicant had referred to the same facts as those forming the basis for his conviction under Article 158 of the Code of Administrative Offences. Given that the offence of “minor disorderly acts” as defined in Article 158 and that of “disorderly acts” under Article 213 had the same essential elements, namely disturbance of public order, the Chamber concluded that the applicant had been prosecuted for an offence of which he had already been convicted previously.",
"2. The parties ’ submissions",
"(a) The applicant",
"60. The applicant submitted that where different offences were prosecuted consecutively as the result of a single act, the key question was whether or not the offences had the “same essential elements”. In the Court ’ s jurisprudence, separate offences were distinguished, using the “same essential elements” test, in five circumstances. Firstly, where the conduct attributed to the applicant was not the same with regard to the two offences (as in Manasson, cited above). Secondly, where the offences themselves had different essential aspects (as in Schutte v. Austria, no. 18015/03, 26 July 2007, where the Criminal Code referred to the use of dangerous threat or force against official authority, while the Road Traffic Act merely punished a failure to stop for the purpose of a traffic check). Thirdly, where an essential condition as to the nature of the defendant ’ s guilt was required for one offence but did not apply to the other (such as proof of intent or neglect, as in Rosenquist, cited above, or proof of wilful failure, as in Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI ). Fourthly, if the purpose of the measures was different (for example, prevention and deterrence as opposed to retribution, as in Mjelde v. Norway (dec.), no. 11143/04, 1 February 2007 ). Fifthly, where the sanctions concerned two distinct legal entities (as in Isaksen v. Norway (dec.), no. 13596/02, 2 October 2003 ).",
"61. With regard to the instant case, the applicant pointed out that he had been charged in criminal proceedings under Article 213 of the Criminal Code for his actions on the morning of 4 January 2002, for which he had already been subjected to an administrative penalty. In his submission, the offences for which he had been prosecuted under Article 213 of the Criminal Code and Article 158 of the Code of Administrative Offences respectively contained the same essential elements, both factual and legal.",
"62. In the applicant ’ s view, both sets of proceedings against him had concerned the same facts, that is, swearing at the policemen, breaching public order, refusing to submit to police orders and trying to leave the police station on the morning of 4 January 2002. Their factual identity was borne out by the description of the applicant ’ s actions in the administrative offence report of 4 January 2002 and the bill of indictment of 19 April 2002.",
"63. As to the characterisation which could be given to those facts in law, the prosecution of the applicant ’ s actions was possible either under Article 158 of the Code of Administrative Offences or under Article 213 of the Criminal Code. Although the actus reus of the two offences was not precisely the same, they both had the same essential elements. The notion of “flagrant displays of disrespect towards the community” under Article 213 essentially encompassed “utterance of obscenities [and] offensive behaviour towards others” under Article 158. The applicant referred to the jurisprudence of the Russian Supreme Court, which had held since 1978 that one act could constitute either an administrative offence of “minor disorderly acts” or a crime of “disorderly acts” but never both (see paragraph 30 above). Consequently, the possibility of a single act constituting various offences ( concours ideal d ’ infractions ) was excluded in the present case.",
"(b) The Government",
"64. The Government maintained that the applicant had committed two offences which were distinct from both a factual and legal point of view.",
"65. On the facts, the Government claimed that the prosecution of the applicant for the crime of “disorderly acts” under Article 213 § 2 of the Criminal Code had referred to his verbal assaults on Captain S. and Major K. while the latter was preparing an administrative offence report, that is, after the administrative offence had already been committed. According to the Government, given the requirements that the administrative proceedings be conducted “speedily” and within a “reasonable time”, the domestic authorities had been unable to prosecute those actions on the part of the applicant immediately as they had been occupied with bringing the applicant before a judge. The institution of criminal proceedings had necessitated additional time and the completion of specific procedural acts. In the Government ’ s view, the present case was similar in terms of its factual circumstances to the cases of Schutte (cited above) and Asci v. Austria ( ( dec. ), no. 4483/02, ECHR 2006 ‑ XV ).",
"66. As to the legal characterisation, the Government acknowledged that both the administrative offence of “minor disorderly acts” and the crime of “disorderly acts” protected the same legal interest, that of public order. However, the two offences differed in their actus reus, the seriousness of the breach of public order and also the severity of the penalty. The administrative offence was less serious than the crime since it covered merely a deviation from established social and moral norms, whereas the crime implied the use of violence and resistance against a public official. The Government pointed out that not only were “minor disorderly acts” punishable by a shorter term of imprisonment, but the conditions of administrative detention were also better than they would be in a prison where convicted criminals served their sentences. There was therefore no identity of the offences.",
"(c) The third party",
"67. The third party argued that the French word “ infraction ” and the English word “offence” had a twofold origin : firstly in the actual, concrete malicious act that created public disorder, and secondly in the legal classification of the offence, that is, the description in a legal rule of conduct which was liable to a penalty. The lay meaning of “ infraction ” or “offence” related to the offender ’ s conduct. That confusion was maintained by the instruments of international law, which in fact used both expressions (“offences” and “facts ” ). This explained why “offence” had been translated as “ les mêmes faits ” in the French version of the Convention Implementing the Schengen Agreement signed in 1990.",
"68. In the third party ’ s opinion, the ambiguity surrounding the terms “ infraction ” and “offence” created confusion within the Convention institutions. Whereas the Commission, in the case of Raninen v. Finland (no. 20972/92, Commission decision of 7 March 1996, Decisions and Reports 87-A, p. 17 ), and the Court in the case of Gradinger v. Austria ( 23 October 1995, Series A no. 328 ‑ C) used the word “offence” to describe the applicant ’ s conduct, the judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports 1998 ‑ V) signalled a new departure, whereby the Court accepted that different courts could adjudicate on “separate offences, even if they [were] all part of a single criminal act”. Hence, the “offence” concept construed as conduct had begun to give way to an approach which the authors of Protocol No. 7 had not foreseen.",
"69. The third party criticised the Court ’ s case-law for its unpredictability and legal uncertainty and urged the Court to adopt a more consistent approach. In its opinion, the approach consisting in defining “ idem ” on the basis of the “same facts” was a much safer method for the individual than that based on legal identity. The adoption of the “same facts” approach would enhance the credibility of the Court ’ s case-law concerning an inalienable right which must never be subject to national discretionary powers.",
"3. The Court ’ s assessment",
"(a) Summary of the existing approaches",
"70. The body of case-law that has been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrates the existence of several approaches to the question whether the offences for which an applicant was prosecuted were the same.",
"71. The first approach, which focuses on the “same conduct” on the applicant ’ s part irrespective of the classification in law given to that conduct ( idem factum ), is exemplified in the Gradinger judgment. In that case Mr Gradinger had been criminally convicted of causing death by negligence and also fined in administrative proceedings for driving under the influence of alcohol. The Court found that although the designation, nature and purpose of the two offences were different, there had been a breach of Article 4 of Protocol No. 7 in so far as both decisions had been based on the same conduct by the applicant (see Gradinger, cited above, § 55).",
"72. The second approach also proceeds from the premise that the conduct by the defendant which gave rise to prosecution is the same, but posits that the same conduct may constitute several offences ( concours idéal d ’ infractions ) which may be tried in separate proceedings. That approach was developed by the Court in the case of Oliveira (cited above), in which the applicant had been convicted first of failing to control her vehicle and subsequently of negligently causing physical injury. Her car had veered onto the other side of the road, hitting one car and then colliding with a second, whose driver had sustained serious injuries. The Court found that the facts of the case were a typical example of a single act constituting various offences, whereas Article 4 of Protocol No. 7 only prohibited people from being tried twice for the same offence. In the Court ’ s view, although it would have been more consistent with the principle of the proper administration of justice if the sentence in respect of both offences had been passed by the same court in a single set of proceedings, the fact that two sets of proceedings were at issue in the case in question was not decisive. The fact that separate offences, even where they were all part of a single criminal act, were tried by different courts did not give rise to a breach of Article 4 of Protocol No. 7, especially where the penalties were not cumulative (see Oliveira, cited above, § § 25-29). In the subsequent case of Göktan the Court also held that there had been no violation of Article 4 of Protocol No. 7 because the same criminal conduct of which the applicant had been convicted constituted two separate offences: a crime of dealing in illegally imported drugs and a customs offence of failing to pay the customs fine (see Göktan, cited above, § 50). This approach was also employed in the cases of Gauthier v. France ( ( dec. ), no. 61178/00, 24 June 2003) and Öngün v. Turkey ( ( dec. ), no. 15737/02, 10 October 2006).",
"73. The third approach puts the emphasis on the “essential elements” of the two offences. In Franz Fischer v. Austria ( no. 37950/97, 29 May 2001 ), the Court confirmed that Article 4 of Protocol No. 7 tolerated prosecution for several offences arising out of a single criminal act ( concours idéal d ’ infractions ). However, since it would be incompatible with this provision if an applicant could be tried or punished again for offences which were merely “nominally different”, the Court held that it should additionally examine whether or not such offences had the same “essential elements”. As in Mr Fischer ’ s case the administrative offence of drunken driving and the crime of causing death by negligence while “allowing himself to be intoxicated” had the same “essential elements”, the Court found a violation of Article 4 of Protocol No. 7. It also pointed out that had the two offences for which the person concerned was prosecuted only overlapped slightly, there would have been no reason to hold that the defendant could not be prosecuted for each of them in turn. The same approach was followed in the case of W.F. v. Austria ( no. 38275/97, 30 May 2002 ) and Sailer v. Austria ( no. 38237/97, 6 June 2002), both of which were based on a similar set of circumstances.",
"74. Since the introduction of the concept of “essential elements”, the Court has frequently referred to it in the follow-up cases. In Manasson the “essential element” distinguishing the taxation-law contravention from the criminal-law offence was found to be “the applicant ’ s reliance on the incorrect information contained in the books when submitting his tax returns” (see Manasson, cited above). Similarly, in Bachmaier, the Court noted that the special aggravating element of drunken driving had been established only in one set of proceedings (see Bachmaier v. Austria (dec.), no. 77413/01, 2 September 2004).",
"75. In a series of cases involving tax-related offences, two taxation offences were found to differ in their criminal intent and purpose (see Rosenquist, cited above). The same two distinctions were found to be relevant in the cases of Storbråten and Haarvig, both cited above.",
"76. A different set of “essential elements” featured in the Court ’ s analysis in two Austrian cases. In Hauser-Sporn it held that the offence of abandoning a victim and the offence of failing to inform the police about an accident differed in their criminal intent and also concerned different acts and omissions (see Hauser-Sporn v. Austria, no. 37301/03, § § 43-46, 7 December 2006 ). In Schutte the “essential element” of one offence was the use of dangerous threat or force as a means of resisting the exercise of official authority, whereas the other concerned a simple omission in the context of road safety, namely the failure to stop at the request of the police (see Schutte, cited above, § 42).",
"77. Finally, in its most recent decision on the subject the Court determined that the two offences in question had different “essential elements” in that they were distinguishable in terms of their gravity and consequences, the social value being protected and the criminal intent (see Garretta v. France (dec.), no. 2529/04, 4 March 2008).",
"(b) Harmonisation of the approach to be taken",
"78. The Court considers that the existence of a variety of approaches to ascertain whether the offence for which an applicant has been prosecuted is indeed the same as the one of which he or she was already finally convicted or acquitted engenders legal uncertainty incompatible with a fundamental right, namely the right not to be prosecuted twice for the same offence. It is against this background that the Court is now called upon to provide a harmonised interpretation of the notion of the “same offence” – the idem element of the non bis in idem principle – for the purposes of Article 4 of Protocol No. 7. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007 ‑ II ).",
"79. An analysis of the international instruments incorporating the non bis in idem principle in one or another form reveals the variety of terms in which it is couched. Thus, Article 4 of Protocol No. 7 to the Convention, Article 14 § 7 of the United Nations Covenant on Civil and Political Rights and Article 50 of the Charter of Fundamental Rights of the European Union refer to the “[same] offence” (“ [même] infraction ” ), the American Convention on Human Rights speaks of the “ same cause” (“ mêmes faits ”), the Convention Implementing the Schengen Agreement prohibits prosecution for the “same acts” (“ mêmes faits ”), and the Statute of the International Criminal Court employs the term “ [same] conduct” ( “ [mêmes] actes constitutifs ”). The difference between the terms “same acts” or “same cause” (“ mêmes faits ”) on the one hand and the term “ [same] offence” (“ [même] infraction ”) on the other was held by the Court of Justice of the European Union and the Inter-American Court of Human Rights to be an important element in favour of adopting the approach based strictly on the identity of the material acts and rejecting the legal classification of such acts as irrelevant. In so finding, both tribunals emphasised that such an approach would favour the perpetrator, who would know that, once he had been found guilty and served his sentence or had been acquitted, he need not fear further prosecution for the same act (see paragraphs 37 and 40 above).",
"80. The Court considers that the use of the word “offence” in the text of Article 4 of Protocol No. 7 cannot justify adhering to a more restrictive approach. It reiterates that the Convention must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 ‑ VI ). The provisions of an international treaty such as the Convention must be construed in the light of their object and purpose and also in accordance with the principle of effectiveness (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005 ‑ I ).",
"81. The Court further notes that the approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual, for if the Court limits itself to finding that the person was prosecuted for offences having a different legal classification it risks undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention (compare Franz Fischer, cited above, § 25).",
"82. Accordingly, the Court takes the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same.",
"83. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court ’ s view, such statements of fact are an appropriate starting - point for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (compare paragraph 110 below).",
"84. The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings.",
"(c) Application of this approach to the present case",
"85. The Court will begin its analysis of the circumstances in the instant case by reviewing the sequence of events that occurred on 4 January 2002 and the charges brought against the applicant.",
"86. Early in the morning the applicant ’ s girlfriend was discovered within the military compound and they were both taken to police station no. 9 in order to furnish explanations. No proceedings were brought in respect of the applicant ’ s girlfriend ’ s unlawful entry into the compound.",
"87. Once at the police station, the applicant began to shout at Ms Y. and Captain S. and pushed the latter. He then attempted to leave but was stopped and handcuffed. The police officers decided that the applicant ’ s insolent behaviour amounted to an administrative offence.",
"88. The applicant was then taken to the office of Major K., who started drafting a report on the administrative offence. Captain S. and another officer were also present. The applicant continued to behave improperly and swore at Major K.",
"89. After the report had been completed, the policemen put the applicant in a car to take him to the Gribanovskiy district police station. En route the applicant continued to swear at Major K. – who was riding in the same car – and threatened to kill him.",
"90. As regards the proceedings brought against the applicant, the Court observes, firstly, that on 4 January 2002 the District Court convicted the applicant of an offence of “minor disorderly acts” under Article 158 of the Code of Administrative Offences. Although the District Court ’ s judgment contained only one sentence relevant to the establishment of the facts and did not mention any evidence, it may be reasonably assumed that it was based on the administrative offence report which had been compiled by the police and submitted to the District Court (see paragraph 15 above). It transpires that the applicant was found guilty in the administrative proceedings of swearing at police employees and breaching public order shortly after his arrival at police station no. 9.",
"91. In the subsequent criminal proceedings the applicant was indicted on three charges in relation to the events of 4 January 2002 (see the charge sheet cited in paragraph 21 above). Firstly, he was charged with “disorderly acts” under Article 213 of the Criminal Code for swearing at Ms Y. and Captain S. and breaching public order in the immediate aftermath of his arrival at police station no. 9. Secondly, he was charged with insulting a public official under Article 319 of the Criminal Code for swearing at Major K. in his office while the latter was drafting the administrative offence report. Thirdly, he was charged with threatening violence against a public official under Article 318 of the Criminal Code for threatening to kill Major K. when en route to the Gribanovskiy district police station.",
"92. This recapitulation of the events and charges demonstrates that in the first episode the applicant swore at Ms Y. and Captain S. on the premises of the passport office, whereas in the second and third episodes he insulted Major K., first in his office and then in the car, and threatened him with violence. Hence, there was no temporal or spatial unity between the three episodes. It follows that although in essence the applicant ’ s conduct was substantially similar during the entire day of 4 January 2002 – in that he continued to be verbally abusive towards various officials – it was not a continuous act but rather different manifestations of the same conduct shown on a number of distinct occasions (compare Raninen, cited above).",
"93. As to the second and third episodes involving Major K., the charges against the applicant were raised for the first and only time in the criminal proceedings. It cannot therefore be said that he was tried again for an offence of which he had already been finally acquitted or convicted. Accordingly, no issue arises under Article 4 of Protocol No. 7 in respect of his prosecution under Articles 319 and 318 of the Criminal Code.",
"94. The situation is, however, different with regard to the disorderly conduct in respect of which the applicant was first convicted in the administrative proceedings under Article 158 of the Code of Administrative Offences and subsequently prosecuted under Article 213 of the Criminal Code. Since the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was convicted and those of the offence with which he was charged were identical or substantially the same.",
"95. The definition of the offence of “minor disorderly acts” under Article 158 referred to three types of prohibited conduct: “utterance of obscenities in public”, “offensive behaviour towards others” and “other acts that breach public order”. Each of these elements was in itself sufficient for a finding of guilt. Of these, the District Court took account of two elements: uttering obscenities and failure to respond to reprimands, which could be interpreted as a form of “acts that breach public order”.",
"96. In the ensuing criminal proceedings the applicant was charged under Article 213 § 2 (b) of the Criminal Code. This charge required the prosecution to prove that the defendant had (a) seriously breached public order or displayed flagrant disrespect towards the community; (b) used violence or threatened the use of violence; and (c) resisted a public official. The prosecution ’ s case was that the applicant had uttered obscenities at Ms Y. and Captain S. and had also pushed the latter and threatened him with physical violence. It is not the Court ’ s task to decide whether each of these elements was properly substantiated because, as it has been noted above, a conviction in the second proceedings is not a required element in order for the guarantee of Article 4 of Protocol No. 7 to apply, it being sufficient for the applicant to have been liable to be tried and/or to have actually been tried on these charges.",
"97. The facts that gave rise to the administrative charge against the applicant related to a breach of public order in the form of swearing at the police officials Ms Y. and Captain S. and pushing the latter. The same facts formed the central element of the charge under Article 213 of the Criminal Code, according to which the applicant had breached public order by uttering obscenities, threatening Captain S. with violence and providing resistance to him. Thus, the facts in the two sets of proceedings differed in only one element, namely the threat of violence, which had not been mentioned in the first proceedings. Accordingly, the Court finds that the criminal charge under Article 213 § 2 (b) embraced the facts of the offence under Article 158 of the Code of Administrative Offences in their entirety and that, conversely, the offence of “minor disorderly acts” did not contain any elements not contained in the offence of “disorderly acts ”. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. As the Court has emphasised above, the facts of the two offences serve as its sole point of comparison, and the Government ’ s argument that they were distinct on account of the seriousness of the penalty they entailed is therefore of no relevance for its inquiry.",
"C. Whether there was a duplication of proceedings ( bis )",
"1. The Chamber ’ s conclusion",
"98. The Chamber reiterated that Article 4 of Protocol No. 7 was not confined to the right not to be punished twice but extended to the right not to be prosecuted or tried twice. It held that the Government ’ s argument that the applicant had eventually been acquitted in the criminal proceedings on the charge of disorderly acts had no bearing on his claim that he had been prosecuted and tried on that charge for a second time.",
"99. The Chamber emphasised that the criminal proceedings against the applicant had been instituted and conducted by the same police department and tried by the same judge. It found that the Russian authorities had permitted the criminal proceedings to be conducted in full knowledge of the applicant ’ s previous administrative conviction of the same offence.",
"100. Finally, the Chamber found that the violation of the non bis in idem principle had not been the reason for the applicant ’ s acquittal. The acquittal had been founded on a substantive ground, namely the fact that the prosecution had not proved the applicant ’ s guilt to the standard of proof required in criminal as distinct from administrative proceedings.",
"2. The parties ’ submissions",
"(a) The applicant",
"101. The applicant submitted that Article 4 of Protocol No. 7 applied not only to cases where a defendant was convicted twice, but also to cases where a defendant was prosecuted twice, regardless of whether there had been a conviction. He recalled that in the case of Gradinger that provision had applied even though the applicant had been convicted of one offence and acquitted of the other. Similarly, he had been prosecuted, tried and eventually acquitted of the offence of “disorderly acts”, although he had been convicted previously of an offence of “minor disorderly acts” which had the same essential elements. In his view, that situation amounted to a breach of the non bis in idem principle.",
"102. The applicant further maintained that his case was different from that of Ščiukina v. Lithuania ( ( dec. ), no. 19251/02, 5 December 2006), where the domestic courts had explicitly acknowledged that there had been a violation of the non bis in idem principle and had referred to the possibility of having the previous administrative conviction erased. By contrast, in the instant case a mere reference to the administrative proceedings against the applicant in the judgment of 2 December 2002 could not be interpreted as an acknowledgement of a violation of the applicant ’ s right not to be tried twice. No mention of the non bis in idem principle had been made in the judgment, whether as a norm of the Constitution, of international human rights law or of the Code of Criminal Procedure. As a matter of Russian law, the applicant could not benefit from that principle anyway, as the guarantee against duplication of proceedings was applicable only to “crimes”, whereas the applicant had been convicted of an offence classified as administrative. The applicant had been acquitted not because of the repetitive nature of the prosecution, but because of the lack of evidence to prove his guilt.",
"103. The applicant expressed his disquiet at the approach established in the case of Zigarella v. Italy ( ( dec. ), no. 48154/99, Reports 2002 -IX ), whereby, in the absence of any damage proved by the applicant, Article 4 of Protocol No. 7 would be breached only if the new proceedings were brought in the knowledge that the defendant had already been tried in previous proceedings. He maintained that it was improbable that the proceedings could be instituted without the knowledge of the State, as it was always the arm of the State which instigated criminal proceedings. In any event, the applicant ’ s factual situation had differed from that obtaining in Zigarella since the Russian authorities had conducted proceedings against him for more than fourteen months in full knowledge of his previous conviction.",
"(b) The Government",
"104. The Government claimed for the first time before the Grand Chamber that the applicant could have appealed against his administrative conviction to a higher court. The time-limit for appeal was set at ten days and could be extended at the request of a party. The applicant had not appealed against the administrative conviction and it had not become “final” within the meaning of Article 4 of Protocol No. 7.",
"105. In the proceedings before the Chamber, the Government maintained that the District Court had acquitted the applicant of the charge of disorderly acts under Article 213 § 2 of the Criminal Code and thereby remedied an earlier violation of the applicant ’ s rights committed by the investigation. As the second set of proceedings had ended in the applicant ’ s acquittal on the charge of disorderly acts, there had been no repetition of proceedings. The Government did not repeat this argument before the Grand Chamber.",
"(c) The third party",
"106. The third party criticised the Court ’ s decision in the Zigarella case which, in its view, introduced a new criterion of applicability which had not existed in the original text of Article 4 of Protocol No. 7, namely the supposed purpose of the provision, to the effect that only new prosecutions that had been initiated intentionally flouted the non bis in idem rule. The third party urged the Court to abandon that additional criterion as it might prove hazardous for the future.",
"3. The Court ’ s assessment",
"(a) Whether there was a “final” decision",
"107. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision (see Franz Fischer, cited above, § 22, and Gradinger, cited above, § 53). According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well entrenched in the Court ’ s case-law (see, for example, Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004 ‑ VIII, and Horciag v. Romania (dec.), no. 70982/01, 15 March 2005).",
"108. Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired. On the other hand, extraordinary remedies such as a request for the reopening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion (see Nikitin, cited above, § 39). Although these remedies represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used. It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4.",
"109. In the instant case the administrative judgment of 4 January 2002 was printed on a standard form which indicated that no appeal lay against it and that it took immediate effect (see paragraph 19 above). However, even assuming that it was amenable to an appeal within ten days of its delivery as the Government claimed, it acquired the force of res judicata after the expiry of that time-limit. No further ordinary remedies were available to the parties. The administrative judgment was therefore “final” within the autonomous meaning of the Convention term by 15 January 2002, while the criminal proceedings began on 23 January 2002.",
"(b) Whether the applicant ’ s acquittal prevents application of the guarantees of Article 4 of Protocol No. 7",
"110. Like the Chamber, the Court reiterates that Article 4 of Protocol No. 7 is not confined to the right not to be punished twice but extends to the right not to be prosecuted or tried twice (see Franz Fischer, cited above, § 29). Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin, cited above, § 36).",
"111. The applicant in the present case was finally convicted of minor disorderly acts and served the penalty imposed on him. He was afterwards charged with disorderly acts and remanded in custody. The proceedings continued for more than ten months, during which time the applicant had to participate in the investigation and stand trial. Accordingly, the fact that he was eventually acquitted of that charge has no bearing on his claim that he was prosecuted and tried on that charge for a second time. For that reason the Grand Chamber, like the Chamber, finds without merit the Government ’ s contention that there had been no repetition of the proceedings because the applicant had eventually been acquitted of the charge under Article 213 § 2 of the Criminal Code.",
"(c) Whether the acquittal deprived the applicant of his victim status",
"112. Finally, the Court will examine the Government ’ s alternative argument that the applicant ’ s acquittal of the charge under Article 213 § 2 of the Criminal Code had deprived him of his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7.",
"113. The Court notes that it has previously found that the way in which the domestic authorities dealt with the two sets of proceedings may be relevant for determination of the applicant ’ s status as a “victim” of the alleged violation of Article 4 of Protocol No. 7 in accordance with the consistent criteria established in its case-law. Thus, in the Zigarella case (cited above) the domestic authorities conducted two sets of proceedings against the applicant concurrently. Following delivery of a “final” judgment in the first proceedings, the second proceedings were terminated on the ground that their conduct was in breach of the non bis in idem principle. The Court accepted that the authorities had explicitly acknowledged a violation and, by discontinuing the second set of proceedings, had offered adequate redress. The applicant therefore lost his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7.",
"114. The Court elaborated on this approach in the Falkner case, in which it found that it must be possible for the national authorities to remedy situations such as the one obtaining in that case, in which the first proceedings had been conducted by an administrative authority lacking jurisdiction in the matter. As the authority had subsequently acknowledged its error, discontinued the proceedings and reimbursed the fine, the applicant could no longer claim to be affected by the outcome of those proceedings (see Falkner v. Austria (dec.), no. 6072/02, 30 September 2004 ).",
"115. The Court therefore accepts that in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the non bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the second set of proceedings and effacing its effects, the Court may regard the applicant as having lost his status as a “victim”. Were it otherwise it would be impossible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level and the concept of subsidiarity would lose much of its usefulness.",
"116. Turning to the facts of the present case, the Court finds no indication that the Russian authorities at any point in the proceedings acknowledged a breach of the non bis in idem principle. The applicant ’ s acquittal under Article 213 § 2 of the Criminal Code was not based on the fact that he had been tried for the same actions under the Code of Administrative Offences. The reference to the administrative proceedings of 4 January 2002 in the text of the judgment of 2 December 2002 was merely a statement that those proceedings had taken place. On the other hand, it emerges clearly from the text of the judgment that the District Court had examined the evidence against the applicant and found that it failed to meet the criminal standard of proof. Accordingly, his acquittal was founded on a substantive rather than a procedural ground.",
"117. The failure of the domestic court to acknowledge a breach of the non bis in idem principle distinguishes the instant case from the Ščiukina case (cited above), where the Supreme Court of Lithuania had expressly acknowledged a violation of this principle by reference to the provisions of the Lithuanian Constitution and Code of Criminal Procedure.",
"118. In the Russian legal system, however, the prohibition on repetition of proceedings is restricted to the criminal justice sphere. Under the Code of Criminal Procedure, a previous conviction for an essentially similar administrative offence does not constitute a ground for discontinuing the criminal proceedings (see paragraph 27 above). Similarly, the Russian Constitution only protects an individual against a second conviction for the same “crime” (see paragraph 26 above). Hence, unlike in the Ščiukina case, the Russian courts do not have at their disposal legal provisions which would allow them to avoid a repetition of proceedings in a situation where the defendant is on trial for an offence of which he or she has already been finally convicted or acquitted under the Code of Administrative Offences.",
"119. In the light of the above considerations, the Court finds that the applicant ’ s acquittal of the charge under Article 213 § 2 of the Criminal Code did not deprive him of his status as a “victim” of the alleged violation of Article 4 of Protocol No. 7.",
"D. Summary of findings and conclusion",
"120. The Court has found above that the applicant was convicted of “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of this term. After his conviction became “final”, several criminal charges were raised against him. Of those, a majority referred to the applicant ’ s conduct at different times or in different locations. However, the charge of “disorderly acts” referred to precisely the same conduct as the previous conviction of “minor disorderly acts” and also encompassed substantially the same facts.",
"121. In the light of the foregoing, the Court considers that the proceedings instituted against the applicant under Article 213 § 2 (b) of the Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under Article 158 of the Code of Administrative Offences.",
"122. There has therefore been a violation of Article 4 of Protocol No. 7.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"123. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"124. In the proceedings before the Chamber, the applicant left determination of the amount of compensation for non-pecuniary damage to the Court ’ s discretion. The Chamber awarded him 1,500 euros (EUR).",
"125. The applicant was not requested to submit a new claim for just satisfaction in the proceedings before the Grand Chamber.",
"126. The Court sees no reason to depart from the Chamber ’ s assessment, made as it was on an equitable basis. Accordingly, it awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"127. In the proceedings before the Chamber, the applicant claimed 12,700 Russian roubles for the work of two lawyers in the domestic proceedings, EUR 500 for 10 hours ’ work by his representative Mr Koroteyev and 300 pounds sterling (GBP) for 3 hours ’ work by Mr Leach in the Strasbourg proceedings, and GBP 138.10 for translation costs.",
"The Chamber awarded him EUR 1,000 in respect of costs and expenses, plus any tax chargeable on that amount.",
"128. The applicant claimed an additional EUR 1,724.70 and GBP 4,946 in respect of the proceedings under Article 43 of the Convention. These amounts were broken down into EUR 1,380 for 23 hours ’ work by Mr Koroteyev, GBP 4,017 for 40 hours and 10 minutes ’ work by Mr Leach, EUR 344.70 and GBP 159 for their travel and accommodation expenses in Strasbourg, and the remaining GBP 770 for administrative and translation expenses.",
"129. The Government submitted that the claims “contradict[ed] the principle of necessity and reasonableness of costs and expenses”. They also alleged that the administrative and translation expenses had not been sufficiently detailed.",
"130. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports of Judgments and Decisions 1998-II).",
"131. In the present case the Court notes that the applicant was represented by Mr Koroteyev and Mr Leach from the outset of the proceedings before it. It is satisfied that the rates and the hours claimed are reasonable and that the expenses were actually incurred by the applicant ’ s representatives. On the basis of the material produced before it, the Court awards the applicant EUR 9,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, the award to be paid into the representatives ’ bank account in the United Kingdom as identified by the applicant.",
"C. Default interest",
"132. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
235 | Ruotsalainen v. Finland | 16 June 2009 | The applicant was running his van on fuel that was more leniently taxed than the diesel oil he should have been using, without paying the extra tax. He was fined the equivalent of about 120 euros for petty tax fraud, through a summary penal order. In subsequent administrative proceedings he was ordered to pay about 15,000 euros, corresponding to the difference between the tax he actually paid and the tax he should have paid, multiplied by three because he had failed to inform the competent authorities. He appealed against that decision, but to no avail. The applicant complained that he had been punished twice for the same motor vehicle fuel tax offence. | The Court held that had been a violation of Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention. It firstly noted that both sanctions imposed on the applicant had been criminal in nature: the first set of proceedings having been criminal according to the Finnish legal classification; and, the subsequent set of proceedings, although classified as part of the fiscal regime and therefore administrative, could not just be considered compensatory given that the difference in tax charge had been trebled as a means to punish and deter re-offending, which were characteristic features of a criminal penalty. Furthermore, the facts behind both sets of proceedings against the applicant had essentially been the same: they both concerned the use of more leniently taxed fuel than diesel oil. The only difference had been the notion of intent in the first set of proceedings. In sum, the second sanction had arisen from the same facts as the former and there had therefore been a duplication of proceedings. Nor did the second set of proceedings contain any exceptions, such as new evidence or facts or a fundamental defect in the previous proceedings which could affect the outcome of the case, as envisaged by the second paragraph of Article 4 of Protocol No. 7. | Taxation and the European Convention on Human Rights | Right not to be tried or punished twice (Article 4 of Protocol No. 7) | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969 and lives in Lapinlahti.",
"6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van.",
"7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia :",
"“Misdemeanour, modus operandi:",
"Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero, tilläggsskatt ).",
"Footnote: he had filled the tank himself.”",
"The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act ( laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001.",
"8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration ( ajoneuvohallintokeskus, fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act ( laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount.",
"9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention.",
"10. On 10 October 2001 the National Board of Taxes ( verohallitus, skattestyrelsen ) rejected the application for a reduction of the fee. It reasoned:",
"“No special reasons provided for by law to grant a reduction have been put forward.”",
"11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay.",
"12. On 28 August 2002 the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), having received the observations of the Tax Ombudsman ( veroasiamies, skatteombudet ) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned:",
"“Section 4 of the Fuel Fee Act provides that a fuel fee ( polttoainemaksu, bränsleavgift ) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount.",
"The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle.",
"The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu.",
"The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention.",
"Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.”",
"13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied.",
"14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7.",
"15. On 26 February 2003 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) refused leave to appeal."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"16. The Finnish system relating to the use as motor fuel of more leniently taxed oil than diesel oil is based on two main elements. First, the owners or users of motor vehicles are obliged to give prior notice to the authorities of their intention to use such fuel as motor fuel, and to pay additional tax (section 20 of the Motor Vehicle Tax Act, which has since been repealed) and/or a fuel fee (section 1 of the Fuel Fee Act as amended by Act no. 234/1998). Second, the authorities ensure compliance with those conditions by means of road checks. Tax evasion or attempted tax evasion was punishable under the Penal Code and failure to comply with the notification obligation was punishable as a motor vehicle tax offence (section 33 of the Motor Vehicle Tax Act).",
"17. The Fuel Fee Act’s provisions of interest for the present case read:",
"“Section 2 - Fuel fee",
"A vehicle referred to in section 1 shall be subject to a fuel fee as a tax corresponding to fuel tax if a more leniently taxed fuel than diesel oil is used in the vehicle. A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported. A fuel fee shall, however, be collected if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act (Act no. 948/82). A vehicle in respect of which a notification within the meaning of section 20 of the Motor Vehicle Tax Act has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax.",
"Section 3 - Notification obligation",
"If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section 1, the owner or holder of the vehicle shall be obliged to notify the Vehicle Administration of such use before using it. In respect of a vehicle imported to Finland, the notification may also be given to the customs authorities.",
"Section 4 - Imposition of a fuel fee",
"A fuel fee shall be collected for the number of days on which, according to a notification, a more leniently taxed fuel than diesel oil is used in a motor vehicle.",
"If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given, a fuel fee shall be collected for the number of days on which the vehicle has been continuously located in Finland prior to the use, but not for more than 20 days at a time. If a fuel fee has been imposed on the vehicle, the time shall be counted from the first day following the previous tax period at the earliest. If the date of importing the vehicle to Finland cannot be established, the fuel fee shall be collected for a minimum of 10 days.",
"Section 5 – The amount of the fuel fee",
"The fuel fee for a pickup van is FIM 1,500 [equivalent to EUR 252.28] per diem. ...",
"Section 6 - Increase of the fuel fee",
"If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification under section 3 has been given, the fuel fee collected shall be three times the normal amount.",
"Section 7 - Party liable for payment",
"The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle. If another person holds the vehicle permanently in his or her possession, the fuel fee shall be collected from this holder. ...",
"...",
"Section 9 - Establishing the use of fuel",
"The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil. A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle.",
"...",
"Section 15 - Tax relief and respite of payment",
"For particularly weighty reasons the Ministry of Finance may, on application and on conditions set by the Ministry, grant exemption from the payment of a fuel fee, penal interest or arrears, and interest due because of deferral of payment.",
"The National Board of Taxes shall make a decision on the application referred to in subsection 1 if the sum whose removal or return is requested does not exceed FIM 300,000 [equivalent to EUR 16,818.79]. The Ministry of Finance may, however, take the case up for decision if it is of particular significance.",
"The National Board of Taxes may, on application, defer the payment of a fuel fee. The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such deferral. The Ministry of Finance may take a case concerning deferral of payment up for decision. In such cases, the Ministry shall determine the conditions of deferral in its decision concerning the application.",
"A decision made by virtue of this section shall not be subject to appeal.",
"Section 16 - Penal provisions",
"Illegal evasion of a fuel fee, and attempted evasion thereof, are punishable under Chapter 29, Articles 1-3, of the Penal Code.”",
"18. According to the Government Bill for the enactment of the Fuel Fee Act and amendment of section 6 of the Excise Duty on Fuels Act and section 16 of the Motor Vehicle Tax Act (no. HE 329/1992), the fuel fee is intended to correspond to the fuel tax which would have accrued if diesel oil had been used as fuel in the vehicle.",
"19. Government Bills nos. HE 329/1992 vp and HE 234/1998 vp note that section 4 of the Fuel Fee Act is based on the presumption that the same fuel is used in the vehicle continuously. Since it is usually impossible to provide evidence of the type of fuel used in the vehicle before it is observed by the authorities, or to provide evidence of the extent to which the vehicle has been used, the imposition of the fuel fee has to be based on the time during which the vehicle has been used in Finland. For reasons of equity, however, the period is restricted to 20 days at a time.",
"20. With regard to section 15, the Government submitted that in most cases where a tax appeal is pending the National Board of Taxes refuses tax relief. This also concerns the application of section 15 of the Fuel Fee Act. If an application for tax modification has been rejected for this or another reason, the applicant may, notwithstanding the existing decision, file a new modification application with the same authority after the decision on taxation has become final. The Government did not refer to any such decision.",
"21. The Fuel Fee Act in force at the relevant time was replaced by a new Fuel Fee Act (Act no. 1280/2003, with effect from 1 January 2004, which was not therefore applicable to the present case). Section 3 provides that a fuel fee is imposed for the purpose of preventing the use of a fuel which gives rise to the imposition of a fuel fee, and that the use in vehicles of a fuel which gives rise to the imposition of a fuel fee is prohibited. Section 9 lays down the sums of the fuel fees imposed on different types of cars. Section 10 provides that if a notification has not been made to the competent authority, the fuel fee shall be increased by 30% at most. The fuel fee may also be increased by 50% at most if the use of the fuel which gives rise to imposing the fuel fee is repeated, or doubled at most if the use of the fuel which gives rise to imposing the fuel fee is particularly aggravated.",
"22. The Government Bill for the enactment of the new Fuel Fee Act (HE 112/2003, p. 7) noted that the use of more leniently taxed fuel led to the issuing of a fuel fee debit and an additional motor vehicle tax and that the aim of this was effectively to prevent the use of fuel other than fuel intended for traffic. Formally, the use of more leniently taxed fuel was not forbidden, but it was subject to fairly severe financial sanctions. The basic structure of the Fuel Fee Act and the Motor Vehicle Tax Act was identical to, for example, the Penal Code, which does not specifically forbid certain unwanted acts but only provides for the consequences of such acts. The only difference was that the sanction applicable to the use of fuels was an administrative sanction collected as a tax. The basic aim of the provisions on additional tax and fuel fee is well established in Finland. The provisions are well-known among motorists and the consequence is that, compared with other countries, more leniently taxed fuel is hardly ever used in road traffic in Finland. The Government Bill considered that the high level of the fuel fee was necessary with regard to the preventive effect of the sanctions system.",
"23. Chapter 29, Articles 1-3, of the Penal Code provide:",
"“Article 1 - Tax fraud (Act no. 1228/1997)",
"A person who",
"(1) gives a taxation authority false information on a fact that influences the assessment of tax,",
"(2) files a tax return concealing a fact that influences the assessment of tax,",
"(3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or",
"(4) acts otherwise fraudulently,",
"and thereby causes or attempts to cause a tax not to be assessed, a tax to be assessed too low or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for at most two years.",
"Article 2 - Aggravated tax fraud (Act no. 769/1990)",
"If in the tax fraud",
"(1) considerable financial benefit is sought or",
"(2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for at least four months and at most four years.",
"Article 3 - Petty tax fraud (Act no. 769/1990)",
"(1) If the tax fraud, when assessed as a whole, with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence, is to be deemed petty, the offender shall be sentenced for petty tax fraud to a fine.",
"(2) If a punitive tax increase is deemed a sufficient sanction, the report of, or prosecution or punishment for, petty tax fraud may be waived.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"24. The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been punished twice for the same offence.",
"Article 4 of Protocol No. 7 to the Convention reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"25. The Government contested that argument.",
"A. Admissibility",
"26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"27. The applicant argued that what was in issue was one single offence or violation of a single object of legal protection. The principal purpose of the fuel fee was to ensure that more leniently taxed fuel than diesel oil was not used in diesel vehicles. The fuel fee alone had no fiscal purpose. He could have used a more leniently taxed fuel by notifying the authorities of such use and by paying a daily fee amounting to some EUR 252. However, it had not been possible to drive the pickup van during a single day such a distance as to make the use of such fuel financially viable. The result of the failure to give prior notice had been that the applicant had been considered to have used more leniently taxed fuel for a period of twenty days although his statement that the use involved one fill-up of the fuel tank had not been proved wrong. The consequences were out of all proportion and unreasonable taking into consideration even the absolute benefit sought through the offence, that is, the difference in price between fuel taxed as diesel oil and more leniently taxed fuel, the reprehensibility and unique nature of the act, the financial position and actions of the offender and other circumstances. The applicant’s application for exemption from payment of the fuel fee or a decrease thereof had been unsuccessful. Although the increased fuel fee was characterised as an administrative sanction, it should be equated with a criminal sanction.",
"28. The applicant considered that the prohibition on the use of more leniently taxed fuel had technically been in existence even prior to the entry into force in 2004 of the new Fuel Fee Act. The legislation provided for a high fuel fee so as to render the actual use of such fuel impossible. In practice, few notifications were made of the use of more leniently taxed fuel oil in cars and vans. A prohibition on the use of light fuel oil had not even been proposed in the Government Bill for the enactment of the new Fuel Fee Act. It was only added to the Bill during consideration in the Finance Committee (report no. 37/2003 vp). This demonstrated that the State had long held that the notification procedure including sanctions was sufficient to prevent the use of more leniently taxed fuel in diesel vehicles. The applicant took the view that the essential elements of the punishable offence were identical in the provision on petty tax fraud and in the Fuel Fee Act. Likewise, the administrative fuel fee and the penal sanction resulting from petty tax fraud were imposed for one and the same act. Under the wording of sections 3-4 and 6 of the Fuel Fee Act, the fuel fee was imposed for failure to observe the notification obligation. According to the essential elements of tax evasion in the Penal Code, a person who for the purpose of avoiding tax fails to observe a duty pertaining to taxation or influencing the assessment of tax shall be sentenced for tax fraud. The use of the more leniently taxed fuel would have been permissible subject to payment of a daily fee. The increased fuel fee was imposed for failure to submit a prior notification. It was for precisely the same reason, that is failure to observe the notification obligation, that the fine had been imposed. The fuel fee had thus not been imposed because the use of more leniently taxed fuel was prohibited as such. The fact of the fuel fee being imposed irrespective of intent or negligence only served to underscore the citizens’ need for judicial relief and it did not change the essentially criminal nature of the fuel fee. The Fuel Fee Act and the Penal Code had the same structure, a stand which was also taken in the Government Bill for the enactment of the new Fuel Fee Act.",
"29. The applicant submitted that he had been punished for petty tax fraud on the ground that he had failed to give notification in advance. In practice, the owner or holder of a vehicle cannot be unaware of the type of fuel used in that vehicle. In theory, the fuel tank of a vehicle could be filled with more leniently taxed fuel during unauthorised use. Any occurrence of such a scenario would again only underscore the need of citizens for judicial relief. In the case of Västberga Taxi Aktiebolag and Vulic v. Sweden, no. 36985/97, 23 July 2002) the Court held that the question of whether a tax or tax surcharge could be converted into a prison sentence was not decisive for the classification of an offence as “criminal”. The characterisation in Finland of the current fuel fee as an administrative sanction and the fact that appeals against it were examined by an administrative court had no relevance to the case.",
"30. The applicant argued that his case was distinguishable from the case of Ponsetti and Chesnel v. France (dec.) (nos. 36855/97 and 41731/98, ECHR 1999 ‑ VI), which involved failure to file tax returns, whereas the present case involved failure to file prior notification. In the former case the tax consequence was based on accounts, that is, the amount of tax actually evaded. In the present case, the amount of tax actually evaded had not been established but it seemed indisputable that the fuel fee significantly exceeded the amount of tax actually evaded. In the case of Ponsetti and Chesnel, interest on arrears and tax surcharge amounted to 40-80%. In the present case, the tax was increased by 300%. The former case involved chronic and repeated failure whereas the present case involved a single instance of failure of short duration. In the former case, the essential elements of tax fraud differed from those of failure to file tax returns in a timely fashion, whereas in the present case the essential elements of tax fraud and failure to notify were the same. Moreover, the acts in the present case were congruous.",
"31. The Government submitted that the aim of the Fuel Fee Act in force at the relevant time was to ensure that the State would in all circumstances, in respect of diesel vehicles, obtain at least the same amount of tax that accrued from the use of diesel oil instead of the generally available and more leniently taxed light fuel oil. The primary purpose of the legislation was to ensure the use of diesel oil in diesel vehicles. At that time, the legislation did not contain any formal prohibition on the use of more leniently taxed fuel and therefore it was necessary to make the use of such fuel financially less advantageous than the use of diesel oil. This was ensured by providing for a high flat-rate tax (the fuel fee). Although the use of a more leniently taxed fuel was not prohibited, anyone who used such fuel was obliged to give prior notification. The fee was imposed irrespective of whether the person in question defaulted on the notification obligation intentionally or through carelessness since this guaranteed the State’s tax income irrespective of how the conduct of the tax payer was assessed. The amount of the fuel fee depended solely on the vehicle type. Failure to comply with the notification obligation resulted in the fuel fee being collected threefold. Furthermore, a fuel fee could only be reduced in individual cases for particular reasons. Although the increased fuel fee had the nature of an administrative sanction, its main objective was to collect tax revenue and to safeguard the operation of the fuel taxation system. According to the new Fuel Fee Act, the fuel fee was, unlike before, a sanction for a violation of a prohibition laid down in the Act. However, the purpose of the fee remained unchanged, that is, to ensure the proper accrual of tax revenue.",
"32. The Government submitted that petty tax fraud was an offence under the Penal Code punishable in criminal proceedings by a fine (the amount of the day-fine being dependent on the income and assets of the person concerned). Failure to pay a fine resulted in its being converted to a prison sentence. The increased fuel fee was not a penal sanction but an administrative one, imposed in an administrative procedure and could not, therefore, be equated to a determination of a criminal charge against the applicant. This was also reflected in the new Fuel Fee Act, which contained an express prohibition on the of use light fuel oil. This change to the legislation resulted from the judgment of the European Court of Justice of 27 November 2003 concerning Finland (Case C-185/00: Commission of the European Communities v. Republic of Finland ) in which the European Court of Justice deemed that Community legislation obliged Finland to amend its legislation so as to ensure, more efficiently than before, that fuels were used in compliance with fuel directives (see Council Directive 92/81/EEC on the harmonisation of the structures of excise duties on mineral oils and Council Directive 92/82/EEC on the approximation of the rates of excise duties on mineral oils, both replaced by Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity ). As to the applicant’s view that the prohibition on the use of more leniently taxed fuel had technically been in existence also before the amendment, the Government submitted that it was indeed true that the rate of the fuel fee was so high that its payment was disadvantageous even if the person concerned only had to pay the basic amount. However, in the above-mentioned judgment it had been found that Finland had failed to fulfil its obligations under Community law. Thus, the prohibition on the use of more leniently taxed fuel and the fact that the sanction for using the wrong fuel was severe, have been found to constitute different legal issues. As to the applicant’s submission that the State had long held that the notification procedure inclusive of sanctions was sufficient to prevent the use of more leniently taxed fuel in diesel vehicles, the Government submitted that this was true, and that this fact had also been relied on before the European Court of Justice. However, it did not render the fuel fee a criminal law sanction nor a sanction of a comparable nature, as its aim was specifically to ensure the accrual of tax revenue, primarily by ensuring the use of taxable diesel oil in vehicles and secondarily by corresponding at least to the tax difference between the different fuels.",
"33. The Government argued that although the increased fuel fee could be considered quite substantial, the essential elements of the acts leading to its imposition on the one hand and to punishment for petty tax fraud on the other differed significantly from each other and did not constitute one and the same act on the following grounds. Firstly, the administrative fuel fee was imposed for using a fuel that was taxed more leniently than diesel oil whereas the criminal sanction for petty tax fraud was imposed for illegal evasion of the fuel fee, the punishable act being failure to comply with the notification obligation laid down in the Fuel Fee Act. Thus, the administrative fuel fee and the criminal sanction for petty tax fraud were imposed for different acts. Secondly, the sanction provided for in the Penal Code always necessitated intent or at least negligence, and petty tax fraud was always intentional and thus essentially involved a subjective element. By contrast, the fuel fee was imposed, irrespective of the degree of intent, on the basis of the mere objective fact that the fuel system of a vehicle contained the wrong fuel. Thirdly, the purpose of the criminal sanction for tax fraud was to constitute a punishment and to express moral reproach for a certain act. The fuel fee did not have a similar purpose of punishment or reproach. It was only intended to ensure the accrual of tax revenue, primarily by ensuring the use of taxable diesel oil in vehicles and secondarily by corresponding at least to the tax difference between the different fuels. Moreover, the higher fuel fee was not intended to be a punishment, but only to ensure that vehicle users gave prior notification if they wanted to use a more leniently taxed fuel. Fourthly, the fuel fee system in force at the relevant time also differed from a punishment in that it made it legally possible for vehicle owners to choose to use a tax-free fuel, to notify the authorities of this and to pay the fuel fee, an option which was not open in respect of acts regulated by criminal law. Fifthly, only a perpetrator or an accomplice comparable with the perpetrator could be sentenced to a sanction under criminal law. Emphasis should be put on the fact that owners or holders of a vehicle had to pay the fuel fee irrespective of whether they used the fuel concerned. Sixthly, an unpaid fine could be converted to imprisonment whereas an unpaid fuel fee could not. Seventhly, criminal cases were examined by general courts whereas cases concerning fuel fees were examined in an administrative procedure, like tax cases, and finally through an appeal to an administrative court.",
"34. The Government argued that the present case was similar to the case of Ponsetti and Chesnel (cited above) in that the constitutive elements of tax fraud and those of failure to file tax returns within the prescribed period (“the fiscal offence”) were different. The cases were also similar in that tax fraud included the element of “wilfulness” whereas the “fiscal offence” was possible on solely objective grounds. On the other hand, when compared to the aforementioned case, it could be noted that in respect of the fuel fee in the present case, the acts underlying the sanctions were even more clearly composed of different elements than the acts giving rise to a tax penalty, as the fuel fee could, on the conditions mentioned in the foregoing, be imposed even if there had been no intention of tax evasion.",
"35. Should the Court find it necessary to examine whether any of the exceptions mentioned in Article 4 § 2 of Protocol No. 7 would have been applicable to the said procedures, the Government took the view that none of these exceptions was applicable to the present case.",
"36. As to the applicant’s view that the structure of the Fuel Fee Act and the Penal Code was the same, it was true that at the relevant time, the Fuel Fee Act did not contain a prohibition on the use of more leniently taxed fuel, in the same way as the Penal Code did not explicitly prohibit the commission of acts that were punishable under it. This common feature was also referred to in the Government Bill (112/2003) for the enactment of the new Fuel Fee Act. However, the purpose of the reference was only to indicate that the fuel fee must be considered an effective means of ensuring the collection of fuel tax or of a corresponding amount of taxes, irrespective of whether the fuel fee was based on a prohibition of use. A further reason for the inclusion of the aforementioned comparison of the Fuel Fee Act with the Penal Code was the case pending before the European Court of Justice. The purpose was only to indicate that the objectives of legislation may be achieved even if not based on a prohibition. Thus, the applicant’s quotation was irrelevant in relation to the present case.",
"37. The Government argued that, had the applicant notified the use, the question of tax fraud could not have been raised since there would have been no tax evasion. Thus, the applicant’s conduct would not have been reprehensible as required for the application of criminal law sanctions. At the relevant time, it was in accordance with the law to pay the fuel fee and then start using more leniently taxed fuel. Whether this was financially viable was an entirely different issue.",
"38. The Government reiterated that the administrative fuel fee and the criminal sanction for petty tax fraud were not imposed for similar acts. The fuel fee was imposed for using a fuel that was taxed more leniently than diesel oil. The criminal sanction, by contrast, was imposed for illegal evasion of the fuel fee, the punishable act being the failure to comply with the notification obligation laid down in the Fuel Fee Act. The fact that a criminal sanction could only be imposed on a person who had committed a criminal act, and that the fuel fee was imposed on the owner or holder of the vehicle, was an essential difference between administrative and criminal sanctions. The applicant’s allegation to the effect that in practice the owner or holder of a vehicle cannot be unaware of the type of fuel used in that vehicle, was not true, for example in respect of vehicles owned by employer companies. Furthermore, whether the owner or holder of the vehicle was aware of the type of fuel had essentially different relevance in administrative and criminal proceedings.",
"39. As to the fact that in the case of Ponsetti and Chesnel the tax consequence imposed was based on tax actually evaded, which was not the case in the present application, the Government submitted that this difference was due to differences in the applicable forms of taxation. The fuel fee was not dependent on income and nor could the amounts of fuel used in individual vehicles be taken into account in the imposition of the fee, for practical reasons.",
"40. The Government further emphasised that the duration of the reprehensible conduct should not be of relevance considering, in particular, that there could be no evidence of what type of fuel had been used in the vehicle at times other than the moment when the person concerned was caught using the wrong type of fuel.",
"2. The Court’s assessment",
"A. Whether the sanctions were criminal in nature",
"41. The aim of Article 4 § 1 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. In the case under consideration two measures were imposed on the applicant in two separate and consecutive sets of proceedings. On 26 February 2001 the applicant was fined in summary penal order proceedings and on 17 September 2001 the applicant was issued with a fuel fee debit in administrative proceedings.",
"42. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see, most recently, Storbråten v. Norway (dec.), no. 12277/04, ECHR 2007 ‑ ... (extracts), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007; Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Manasson v. Sweden (dec.), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports of Judgments and Decisions 1998 ‑ VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ ...).",
"43. The Court’s established case-law sets out three criteria, commonly known as the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003 ‑ X). The relative lack of seriousness of the penalty cannot divest an offence of its inherently criminal character (see Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, § 54, and Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, § 55). This does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, as recent authorities, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ ..., and Ezeh and Connors, cited above, § 82-86).",
"44. As noted above, first, the applicant was fined in summary penal order proceedings because he had used more leniently taxed fuel than diesel oil in the tank of his vehicle, which constituted petty tax fraud. The proceedings were “criminal” according to the Finnish legal classification. Those proceedings were “criminal” also for the purposes of Article 4 of Protocol No. 7 and consequently the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”. The guarantee of Article 4 of Protocol No. 7 comes into play where a new set of proceedings is instituted after the previous acquittal or conviction has acquired the force of res judicata. In this case, the applicant did not appeal against the summary penal order, which therefore became res judicata.",
"45. Subsequently, the applicant was issued with a fuel fee debit in administrative proceedings. Turning to the first of the Engel criteria, it is apparent that the fuel fee debit was not classified as criminal but as part of the fiscal regime (see paragraph 12 above). This is however not decisive. In this connection, the Court has previously found that the sphere defined in the Finnish legal system as “administrative” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure (see Jussila v. Finland [GC], cited above, § 38).",
"46. The second criterion, the nature of the offence, is the more important. The Court observes that the relevant provision of the Fuel Fee Act was directed towards all citizens rather than towards a group possessing a special status. The applicant was liable in his capacity as owner or user of a diesel engine vehicle. As to the Government’s argument that the fuel fee debit was intended as pecuniary compensation for damage, the Court is however not so convinced in the circumstances of the present case. It may well be that the fuel fee imposed corresponded to the damage caused, namely loss of revenue. It is however to be noted that the fuel fee collected was trebled. This must in the Court’s view be seen as a punishment to deter re-offending, recognised as a characteristic feature of criminal penalties (see Ezeh, §§ 102 and 105). It may therefore be concluded that the fuel fee debit was imposed by a rule whose purpose was not only compensatory but also deterrent and punitive. The Court considers that this establishes the criminal nature of the offence.",
"47. In the light of the above considerations the Court concludes that the nature of the offence was such as to bring the issuing of the fuel fee debit on 17 September 2001 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"B. Whether the latter sanction arose from the same facts as the former and whether there was a duplication of proceedings",
"48. In the case of Sergey Zolotukhin v. Russia [GC] (no. 14939/03, §§ 70-78, 10 February 2009) the Court observed that the body of case-law that had been accumulated throughout the history of application of Article 4 of Protocol No. 7 by the Court demonstrated the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. Seeking to put an end to this legal uncertainty the Court decided to provide a harmonised interpretation of the notion of the “same offences” – the idem element of the non bis in idem principle.",
"49. In the aforementioned case (§ 82) the Court took the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same.",
"50. Turning to the present case, the Court will examine whether the subsequent issuing of the fuel fee debit arose from the same facts as the fine ( idem ) and whether there was a duplication of proceedings ( bis ). The Court notes that the statement of the facts in the decisions by which the “penal procedures” were concluded are an appropriate starting point for its determination of the issue of whether the facts in both proceedings were identical or substantially the same. The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked in time and space.",
"51. The Court will begin its analysis of the circumstances in the instant case by reviewing the events of 17 January 2001 and the fine imposed and the fuel fee levied on the applicant. On 26 February 2001 the applicant was fined under Chapter 29, Article 3, of the Penal Code and sections 20 and 33 of the Motor Vehicle Tax Act for petty tax fraud or, more precisely, a motor vehicle tax offence. Although the summary penal order contained only two sentences relevant to the establishment of the facts, it transpires that the fine was issued on the ground that he had used a more leniently taxed fuel than diesel oil in the tank of his van without having paid due additional tax and that he had filled the tank himself (see paragraph 7 above).",
"52. In the subsequent administrative proceedings the applicant was issued with a fuel fee debit on the ground that his pickup van had been noted to have been used during the year 2001 with fuel more leniently taxed than diesel oil. As he had failed to inform the Vehicle Administration or the Customs of the use in advance, the fuel fee collected was to be trebled. The decision also noted that the applicant had conceded that he had used the wrong fuel in his vehicle.",
"53. This recapitulation of the events and sanctions demonstrates that since the same conduct on the part of the same defendant and within the same time frame is in issue, the Court is required to verify whether the facts of the offence for which the applicant was fined and those of the offence by reason of which he was issued with a fuel fee debit were identical or substantially the same.",
"54. The definition of the offences of “tax fraud” and “petty tax fraud” under Chapter 29, Articles 1 and 3, of the Penal Code referred to various types of prohibited conduct (see paragraph 23 above). Each of these elements was in itself sufficient for a finding of guilt. The police must be considered to have based the summary penal order on the fact that the applicant had “otherwise acted fraudulently” and thereby caused or attempted to cause a tax not to be assessed. It was also considered essential that the applicant had filled the tank himself.",
"55. In the ensuing administrative proceedings the applicant was issued with a fuel fee debit on the ground that his car had been run on more leniently taxed fuel than diesel oil. The fuel fee debit was trebled on the ground that the applicant had not given prior notice of this fact. Although the Administrative Court’s decision noted that the applicant had admitted having used the wrong fuel, the imposition of the fuel fee debit did not require intent on the part of the user of the wrong fuel.",
"56. To sum up, the facts that gave rise to the summary penal order against the applicant related to the fact that he had used more leniently taxed fuel than diesel oil in his pickup van without having paid additional tax for the use. The fuel fee debit was imposed because the applicant’s pickup van had been run on more leniently taxed fuel than diesel oil and it was then trebled because he had not given prior notice of this fact. This latter factor has above been considered to have amounted to a punishment to deter re-offending. Thus, the facts in the two sets of proceedings hardly differ albeit there was the requirement of intent in the first set of proceedings. The facts of the two offences must, the Court considers, therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. As the Court has held, the facts of the two offences serve as its sole point of comparison (see Sergey Zolotukhin v. Russia [GC], cited above, § 97). Lastly, the Court notes that the latter proceedings did not fall within the exceptions envisaged by the second paragraph of the said provision.",
"57. The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"58. The applicant complained that the failure to comply with the non bis in idem rule also amounted to a violation of Article 6 of the Convention.",
"59. The Court notes that that principle is embodied solely in Article 4 of Protocol No. 7; the other provisions of the Convention do not guarantee compliance with it either expressly or implicitly (see Ponsetti and Chesnel v. France (dec.), cited above). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"60. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"61. Under the head of pecuniary damage the applicant requested that the fuel fee, inclusive of increases and consequences for default, be voided in full and that he be reimbursed for any payments made inclusive of interest and arrears. He did not specify any amounts. Under the head of non-pecuniary damage the applicant claimed EUR 15,000 for suffering and distress. This amount represented EUR 3,000 for each year subsequent to the imposition of the fuel fee.",
"62. The Government considered that the costs relating to the fine amounting to FIM 729 (EUR 121) could be reimbursed and that the applicant should be awarded reasonable compensation for non-pecuniary damage not exceeding EUR 1,000.",
"63. The Court notes that the applicant has not claimed reimbursement of the fine amounting to EUR 121. Nor has he shown that he has paid the trebled fuel fee and it therefore rejects this claim. On the other hand, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"64. The applicant claimed EUR 13,733.60 for the costs and expenses incurred before the Court.",
"65. The Government considered the total of 46.6 hours’ work (at a rate of EUR 200 plus VAT per hour) excessive. Also, the applicant had not submitted any invoice concerning the costs of translations. The award under this head should not exceed EUR 4,500 (inclusive of VAT).",
"66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession, the above criteria and the legal aid granted by the Council of Europe, the Court considers it reasonable to award the sum of EUR 8,000 (inclusive of VAT) for the proceedings before the Court.",
"C. Default interest",
"67. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
236 | Tsonyo Tsonev v. Bulgaria | 14 January 2010 | This case concerned in particular the applicant’s complaint that the central element of charges brought against him for breaching public order – following an incident in which he broke down the door of a flat and beat up the occupant – were essentially the same as for which he had already been fined in administrative proceedings. | The Court observed that the applicant had been fined in proceedings regarded under domestic law as administrative rather than criminal. However, the offence for which the applicant had been fined fell within the sphere protected by criminal law, given that it had the characteristic features attaching to criminal offences, as it aimed to punish and deter socially unacceptable conduct. The Court further noted that the same facts – breaking into someone’s apartment and beating a person up – had been at the centre both of the fine imposed by the mayor and the charges brought by the prosecution. As it had not been appealed, the fine had become final. The domestic courts had not terminated the subsequent criminal proceedings, given that the Supreme Court had consistently ruled that criminal proceedings could be opened against persons already punished in administrative proceedings. Accordingly, the Court held that there had been a violation of Article 4 of Protocol No. 7, finding that the applicant had been convicted – separately in administrative and criminal proceedings – for the same conduct, the same facts and the same offence. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1977 and lives in Gabrovo. At the relevant time he was unemployed.",
"6. At about 9 p.m. on 11 November 1999 the applicant and Mr D.M., after having consumed alcohol, went to the flat of Mr G.I., apparently with the intention of recovering certain items which Mr D.M. ’ s former girlfriend had left there. A violent incident ensued and the police, who were called by neighbours, arrested the applicant and Mr D.M.",
"7. On 12 November 1999 a police officer drew up a report describing the applicant ’ s conduct on the previous evening. On the basis of this report, in a decision of 19 November 1999 the mayor of Gabrovo found the applicant guilty of breaching section 2(1) of municipal by-law no. 3 (see paragraph 25 below) and fined him 50 Bulgarian levs (BGN). The mayor explained that, while drunk, the applicant had broken down the door of Mr G.I. ’ s flat and had beaten him up. These actions had constituted a breach of public order and an expression of manifest disregard towards society, contrary to the above - mentioned provision. The decision, which specified that it was subject to judicial review within seven days after being served on the offender, was not served on the applicant, whose address was unknown. It was put in the file and considered as constructively served under section 58(2) of the 1969 Administrative Offences and Penalties Act ( see paragraph 28 below). The applicant did not learn about it within the time ‑ limit for seeking judicial review and the decision became final.",
"8. Some time later the prosecution authorities charged the applicant with inflicting “ intermediate ” bodily harm on Mr G.I., contrary to Article 129 § 1 of the 1968 Criminal Code, and breaking into his home, contrary to Article 170 § 2 of that Code (see paragraphs 18 and 19 below). They alleged that he had acted in concert with Mr D.M.",
"9. The applicant ’ s trial took place before the Gabrovo District Court between 9.30 a.m. and 12.40 p.m. on 1 December 2000 and between 1.30 p.m. and 4 p.m. on 14 November 2001. He was represented by two lawyers. It is unclear whether they were retained by him or appointed by the court. The court heard the two co ‑ accused, three experts and five witnesses. It admitted numerous documents in evidence and heard the parties ’ closing argument.",
"10. In a judgment of 14 November 2001 the Gabrovo District Court found the applicant guilty of inflicting “ intermediate ” bodily harm on Mr G.I. It found him not guilty of committing this offence in concert with others and not guilty of entering another ’ s home by force. It sentenced him to eighteen months ’ imprisonment. The court found that Mr D.M. alone had broken down the door of Mr G.I. ’ s flat and that the applicant had entered the flat after him. The court further found that in the ensuing scuffle the applicant had broken two of Mr G.I. ’ s teeth, which amounted to “ intermediate ” bodily harm, but at the same time held that in committing this act the applicant had not acted in concert with Mr D.M., because the latter had not hit Mr G.I. in the head.",
"11. The applicant appealed to the Gabrovo Regional Court. He drafted the appeal himself. Mr D.M. did not appeal.",
"12. The Gabrovo Regional Court held a hearing on the morning of 2 April 2002. The counsel previously appointed by the court for the applicant did not show up and new counsel was thus appointed. The applicant said that the new counsel was acquainted with his arguments and the case, and that he agreed to be defended by her. The record of the hearing says that the newly appointed counsel took half an hour to acquaint herself with the file; according to the applicant, she only had ten minutes to do so, because, as shown by the record, the hearing started at 10 a.m. and finished at 10.10 a.m.",
"13. In her closing speech, counsel for the applicant argued that it was not certain whether he had hit Mr G.I. in the head. Even if that had been so, he had done so in self ‑ defence, because Mr G.I. had tried to shoot him with a gas pistol and he had panicked. It was furthermore unclear whether the blows allegedly administered by the applicant could result in the type of injuries sustained by Mr G.I. The experts ’ statements on this point had not been properly recorded. Counsel later filed a memorial previously drawn up by the applicant.",
"14. In a judgment of 9 April 2002 the Gabrovo Regional Court upheld the lower court ’ s judgment. It found that it had assessed the evidence properly and had established the facts correctly, and went on to say that there was no indication that the applicant had acted in self ‑ defence.",
"15. On 23 April 2002 the applicant appealed on points of law, again drafting the appeal himself. On 26 August 2002 he asked the Supreme Court of Cassation to appoint counsel for him. He relied on Article 70 § 1 (7) of the 1974 Code of Criminal Procedure (see paragraph 20 below) and asserted that he had no legal knowledge and could not afford to retain counsel, whereas the interests of justice required that he be legally represented because he risked imprisonment.",
"16. In a letter of 9 September 2002 the president of the Second Criminal Division of the Supreme Court of Cassation advised the applicant that it was not possible to appoint counsel for him, as the prerequisites of Article 70 of the 1974 Code of Criminal Procedure were not met.",
"17. The Supreme Court of Cassation held a hearing on 14 October 2002. The applicant acted pro se. The prosecution argued that his appeal should be dismissed. On 22 October 2002 the Supreme Court of Cassation, which had the power to quash, vary or reverse the lower court ’ s judgment, decided to uphold it. It found that the lower court had properly established the facts, had fully examined all relevant issues, and had not breached the rules of procedure."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The 1968 Criminal Code",
"18. Article 129 § 1 of the 1968 Criminal Code makes it an offence to inflict “ intermediate ” bodily harm on another. Article 129 § 2 defines “ intermediate ” bodily harm as, among other things, the knocking out of teeth whose loss makes chewing or speaking more difficult.",
"19. By Article 170 § 1 of the Code, it is an offence to enter another person ’ s home using force, threats, dexterity, abuse of power, or special technical devices. Article 170 § 2 provides that the offence is aggravated if it has been committed at night or by an armed individual.",
"B. The 1974 Code of Criminal Procedure",
"1. Court ‑ appointed counsel",
"20. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed situations in which the appointment of counsel for the accused was mandatory : ( i ) the accused was a minor; (ii) the accused suffered from a disability preventing him or her from defending himself or herself in person; (iii) the accused was charged with an offence punishable by more than ten years ’ imprisonment; (iv) the accused did not speak Bulgarian; (v) another accused who had diverging interests had already retained counsel; or (vi) the case was heard in the absence of the accused. On 1 January 2000 a new point ( 7 ) was added. It was part of a comprehensive overhaul of the Code intended to bring it in line with the Convention, based on Article 6 § 3 (c), and it provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required.",
"21. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure. The text of its Article 94 § 1 (9) matches exactly that of Article 70 § 1 (7) of the 1974 Code. Article 94 § 1 (7) provides that the participation of counsel in the proceedings before the Supreme Court of Cassation is compulsory. Where the participation of counsel is compulsory, the competent authority has to appoint counsel when not retained by the accused (Article 94 §§ 2 and 3).",
"2. Adjournment of a hearing in the event of counsel ’ s failure to appear",
"22. Article 269 § 2 (3) of the 1974 Code provided that a hearing had to be adjourned if counsel for the accused failed to appear and if such counsel could not be replaced without causing prejudice to the accused ’ s defence.",
"23. In 1997 the text was amended, providing that an adjournment was only necessary where the case could not proceed without the accused being legally represented. In a decision of 14 April 1998 ( решение № 9 от 14 април 1998 г. по к. д. № 6 от 1998 г. обн ., ДВ, бр. 45 от 21 април 1998 г. ) the Constitutional Court declared the amendment unconstitutional, finding that it made it possible to hold hearings in which the accused would not be legally represented and that this would certainly prejudice the defence. It was true that certain limitations on the rights of the defence were permissible under the Constitution in the interest of the proper administration of justice. However, this particular limitation was disproportionate, because it made it harder to ascertain the truth and put the accused at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms.",
"3. Bars to the institution of criminal proceedings",
"24. Article 21 § 1 (6) of the 1974 Code (whose text has been copied almost verbatim into Article 24 § 1 (6) of the 2005 Code) provided that criminal proceedings could not be opened or had to be discontinued if in respect of the same person and in respect of the same offence there existed a final judgment or decision. The former Supreme Court – in a binding interpretative decision –, and later the Supreme Court of Cassation, have construed this provision as not barring the opening of criminal proceedings in respect of persons who have already been punished in administrative proceedings ( тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/ 19 60 г., ОСНК на ВС; реш. № 348 от 29 май 1998 г. по н. д. № 180/ 19 98 г., ВКС, II н. о.; и реш. № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о. ).",
"C. By ‑ law no. 3 for safeguarding public order on the territory of the municipality of Gabrovo",
"25. By ‑ law no. 3 for safeguarding public order on the territory of the municipality of Gabrovo ( Наредба № 3 за опазване на обществения ред на територията на габровската община, приета с решение № 50, протокол № 10 от 26 март 1992 г. ) was adopted by the Gabrovo Municipal Council on 26 March 1992 pursuant to section 22 (1) of the 1991 Local Self ‑ Government and Local Administration Act, which, as worded at the material time, empowered municipal councils to make by ‑ laws concerning local issues. Section 2(1) of the by ‑ law provided that citizens were prohibited from committing acts which breached public order and expressed manifest disregard towards society. Section 27(1) provided that violations of the by-law were punishable with a fine of up to BGN 50. Under section 30 of the by ‑ law, the procedure for establishing such violations and their punishment was governed by the 1969 Administrative Offences and Penalties Act.",
"D. The 1969 Administrative Offences and Penalties Act",
"26. Section 2(3) of the 1969 Administrative Offences and Penalties Act provides that municipal councils may, in issuing by ‑ laws, determine the elements of administrative offences and provide for penalties among those envisaged by the Local Self ‑ Government and Local Administration Act of 1991. Under section 22(2) of that Act, as in force at the material time, the breach of a municipal by-law was punishable with a fine of up to 500 Bulgarian levs.",
"27. The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. It defines them, in section 6, as acts or omissions which run counter to the established order, have been committed wilfully and are punishable with administrative penalties. Section 11 provides that, absent specific provisions in the Act, the 1968 Criminal Code governs all questions concerning mens rea, capacity, exculpating circumstances, complicity, preparation and attempts.",
"28. Under section 58(1), a decision imposing an administrative penalty must be served on the offender. If, however, the offender cannot be found at the address he specified and his new address is unknown, a note to this effect is made on the decision and it is considered as served on the date of the note (section 58(2)). The decision may be challenged by way of judicial review (section 59(1)) within seven days after it has been served (section 59(2)). Under section 64, decisions imposing administrative penalties become final when ( i ) they are not subject to review, (ii) have not been challenged within the statutory time ‑ limit, or (iii) have been challenged but have been upheld or varied by the competent court.",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION",
"29. The applicant raised several complaints under Article 6 of the Convention in relation to the criminal proceedings against him. He firstly alleged that the Gabrovo Regional Court had appointed counsel for him with such short notice before the hearing that she had been unable to defend him effectively. He secondly complained that the Supreme Court of Cassation had refused to appoint counsel for him. Lastly, he alleged that the courts which had examined his case had erred in assessing the evidence and in establishing the facts.",
"30. The Court considers that these complaints fall to be examined under Article 6 of the Convention, which, in as far as relevant, provides :",
"“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require [.]”",
"31. The Government did not submit observations, but stated that the application was inadmissible and manifestly ill ‑ founded.",
"32. The applicant submitted that the Supreme Court of Cassation ’ s refusal to appoint counsel for him had amounted to a breach of Article 6 § 3 (c) of the Convention and Article 70 of the 1974 Code of Criminal Procedure. This was further shown by the fact that under Article 94 of the 2005 Code of Criminal Procedure the participation of counsel was compulsory for cases heard by the Supreme Court of Cassation.",
"A. Admissibility",
"33. The Court considers that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The late appointment of counsel in the proceedings before the Gabrovo Regional Court",
"34. It is clear that the Gabrovo Regional Court had appointed counsel for the applicant in good time before the hearing, and that the failure of that counsel to appear made it necessary to appoint a new one on the day of the hearing (see paragraph 12 above). The point in issue is whether and to what extent this situation impacted negatively on the fairness of the proceedings against the applicant, because the rights of those charged with a criminal offence to adequate time and facilities for the preparation of their defence and to effective legal assistance are elements, among others, of the concept of a fair trial (see Goddi v. Italy, 9 April 1984, § 28, Series A no. 76; Twalib v. Greece, 9 June 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV; Mattick v. Germany ( dec. ), no. 62116/00, ECHR 2005 ‑ VII; and Padalov v. Bulgaria, no. 54784/00, § 41, 10 August 2006 ).",
"35. However, the Court does not consider it necessary to pursue that point. It observes that the applicant explicitly stated that the new counsel was acquainted with the case and his arguments and that he agreed to be defended by her. It also notes that neither the applicant nor his counsel sought an adjournment in order for the counsel to be able to prepare more thoroughly for the hearing (see paragraph 12 above). The Court must therefore determine, in the first place, whether the applicant waived the rights described in the preceding paragraph.",
"36. Neither the letter nor the spirit of Article 6 prevent a person from waiving the guarantees of a fair trial, but such waiver must be established in an unequivocal manner, be attended by minimum safeguards commensurate with its importance, and not run counter to any important public interest (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII ). The Court finds no reason of public policy to prevent accused persons from waiving their right to additional time for the preparation of their defence. This is because the question of time depends primarily on the assessment of the persons concerned; different counsel need different amounts of time to prepare for a case. In the instant case, instead of seeking an adjournment, as possible (see paragraphs 22 and 23 above), the applicant explicitly stated that his new counsel was familiar with his case and that he agreed to be defended by her (see paragraph 12 above). There is no indication that this declaration was tainted by constraint. Thus, it was the applicant ’ s choice to proceed with the case, and the Gabrovo Regional Court cannot be criticised for not giving his counsel more time to prepare. While the authorities responsible for appointing counsel have to ensure that they are capable of effectively defending the accused (see Mills v. the United Kingdom ( dec. ), no. 35685/97, 5 December 2000 ), national judges must also strike a balance between the need to ensure that the accused have enough time to prepare and the need to ensure that a trial progresses in a reasonably expeditious way (see Naviede v. the United Kingdom ( dec. ), no. 38072/97, 7 September 1999 ). In this connection, it cannot be overlooked that in her closing speech the applicant ’ s counsel was able to raise a number of arguments in his defence (see paragraph 13 above), which serves to confirm the applicant ’ s statement that she was familiar with his case.",
"37. There has therefore been no violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention.",
"2. The Supreme Court of Cassation ’ s refusal to appoint counsel for the applicant",
"38. The right of those charged with criminal offences to free legal assistance is also an element, among others, of the concept of a fair trial in criminal proceedings. It is subject to two conditions : the persons concerned must lack sufficient means to pay for legal assistance, and the interests of justice must require that they be granted such assistance (see, among other authorities, Pham Hoang v. France, 25 September 1992, § 39, Series A no. 243 ).",
"39. The Court notes the difficulties in assessing at this stage whether the applicant lacked sufficient means to pay for legal assistance in connection with his representation before the Supreme Court of Cassation. There are, however, indications which suggest that this was so. First, counsel had been appointed for him in the proceedings before the lower court (see paragraph 12 above), in all probability under the new point 7 of Article 70 § 1 of the 1974 Code of Criminal Procedure, because at that juncture, in the absence of an appeal by his co ‑ accused (see paragraph 11 above), none of the other hypotheses where counsel was mandatory were present (see paragraph 20 above). Second, the applicant expressly asserted that he could not afford to retain counsel (see paragraph 15 above), whereas in rejecting his request the Supreme Court of Cassation did not address this assertion, confining its reasoning to the general statement that the prerequisites of the above ‑ mentioned Article 70 were not met (see paragraph 16 above and contrast Caresana v. the United Kingdom ( dec. ), no. 31541/96, 29 August 2000 ). In the light of these facts and in view of the absence of clear indications to the contrary, the Court is satisfied that the applicant lacked sufficient means to pay for his legal representation in the cassation proceedings (see, mutatis mutandis, Twalib, cited above, § 51).",
"40. As to whether the interests of justice required that the applicant receive free legal assistance, the Court observes that in the lower courts he was found guilty and sentenced to eighteen months imprisonment (see paragraphs 10 and 14 above). Given that where deprivation of liberty is at stake, those interests in principle call for such assistance (see Benham v. the United Kingdom, 10 June 1996, § 61, Reports 1996 ‑ III, and, more recently, Shabelnik v. Ukraine, no. 16404/03, § 58, 19 February 2009 ), there can be little doubt that they required that it be granted to the applicant for the purposes of his appeal on points of law. An additional factor was the complexity of the cassation procedure ( see Pham Hoang, § 40 in fine, and Twalib, § 53, both cited above ); indeed, at present Article 94 § 1 (7) of the 2005 Code of Criminal Procedure requires the participation of counsel in the proceedings before the Supreme Court of Cassation in all cases (see paragraph 21 above). Lastly, it cannot be overlooked that a qualified lawyer would have been able to clarify the grounds adduced by the applicant in his appeal and effectively counter the pleadings of the public prosecutor at the hearing (see Artico v. Italy, 13 May 1980, § 34 in fine, Series A no. 37, and Pakelli v. Germany, 25 April 1983, § § 37 ‑ 39, Series A no. 64 ), thus ensuring respect for the principle of equality of arms.",
"41. In view of the foregoing, the Court concludes that there has been a violation of Article 6 § § 1 and 3 (c) of the Convention.",
"3. The manner in which the courts assessed the evidence and established the facts",
"42. The Court observes that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), as it is not a court of appeal from these courts (see, among many other authorities, Cornelis v. the Netherlands ( dec. ), no. 994/03, ECHR 2004 ‑ V (extracts)). However, in view of its conclusion in paragraph 41 above, it finds it unnecessary to examine this complaint (see Seliverstov v. Russia, no. 19692/02, § 25, 25 September 2008 ).",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"43. The applicant complained that he had been tried and convicted for the offence for which he had already been fined by the mayor. He relied on Article 4 of Protocol No. 7 to the Convention, which, in so far as relevant, provides:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. ...”",
"44. The Government did not submit observations, but stated that the application was inadmissible and manifestly ill ‑ founded.",
"45. The applicant said that he was convinced that he had been punished twice in respect of the same conduct, but left it to the Court to determine whether this amounted to a breach of the above provision.",
"A. Admissibility",
"46. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Whether the first sanction was criminal in nature",
"47. On 19 November 1999 the applicant was fined in proceedings conducted under the 1969 Administrative Offences and Penalties Act and regarded as “administrative” rather than “criminal” under the domestic legal classification (see paragraphs 7 and 27 above). It must therefore be determined whether these proceedings concerned a “ criminal ” matter within the meaning of Article 4 of Protocol No. 7. The relevant principles for making this determination have recently been summarised in paragraphs 52 and 53 of the Court ’ s judgment in the case of Sergey Zolotukhin v. Russia ( [GC], no. 14939/03, ECHR 2009 ‑ ...).",
"48. As in that case, the Court starts with the observation that the sphere labelled in some legal systems as “administrative” embraces certain offences which have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid ., § 54, with further references ).",
"49. It further notes that the offence of a breach of public order and an expression of manifest disregard towards society in section 2(1) of by ‑ law no. 3 (see paragraphs 25 ‑ 27 above) served to guarantee the protection of human dignity and public order, being values and interests which normally fall within the sphere of protection of the criminal law. It was directed towards all individuals rather than just a group having special status, and its primary aims were punishment and deterrence, which are recognised as characteristic features of criminal penalties (see Lauko v. Slovakia, 2 September 1998, § 58, Reports 1998 ‑ VI; Kadubec v. Slovakia, 2 September 1998, § 52, Reports 1998 ‑ VI; and Sergey Zolotukhin, cited above, § 55). The fact that it was not punishable by imprisonment is not decisive (see Öztürk v. Germany, 21 February 1984, § § 53 and 54, Series A no. 73; Lauko, cited above, § 58; and Kadubec, cited above, § 52 ). The nature of the offence and the nature and degree of severity of the penalty are alternative and not cumulative criteria, it being sufficient that the offence in question is by its nature criminal from the point of view of the Convention (see Lutz v. Germany, 25 August 1987, § 55, Series A no. 123; Kadubec, cited above, § 52 in fine; and Lauko, cited above, § 56).",
"50. The nature of the offence for which the applicant was fined by the mayor was therefore such as to bring it within the ambit of the expression “penal procedure” used in Article 4 of Protocol No. 7.",
"2. Whether the offences for which the applicant was fined and then prosecuted were the same",
"51. The relevant test has recently been clarified in paragraphs 78 to 84 of the Court ’ s judgment in the case of Sergey Zolotukhin (cited above). Under this test, the Court must disregard the legal characterisation of the offences in domestic law and take their facts as its sole point of comparison.",
"52. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to a breach of public order constituted by his breaking down the door of Mr G.I. ’ s flat and beating him up (see paragraph 7 above). The same facts formed the central element of the charges under Article 129 § 1 and Article 170 § 2 of the 1968 Criminal Code, according to which the applicant had inflicted “ intermediate ” bodily harm on Mr G.I. and broken into his home (see paragraphs 8, 18 and 19 above). The criminal charges therefore embraced the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.",
"3. Whether there was a duplication of proceedings",
"53. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references).",
"54. In the instant case, the fine imposed by the mayor was subject to judicial review within seven days. However, as the applicant ’ s address was unknown, the mayor ’ s decision was constructively served on him by being put in the file, with the result that the time ‑ limit started running on 19 November 1999 and expired seven days later (see paragraphs 7 and 28 above). After its expiry this decision became final, and no further ordinary remedies were available to the applicant. The administrative “conviction” therefore became “final” for the purposes of Article 4 of Protocol No. 7 before the institution of the criminal proceedings against the applicant.",
"55. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the applicant was acquitted of the charge of entering another ’ s home by force (see paragraph 10 above) has no bearing on his claim that he was prosecuted and tried on that charge for a second time. Nor did this acquittal deprive the applicant of his victim status, as it was not based on the fact that he had been fined for the same actions under by ‑ law no. 3, but on the criminal court ’ s assessment of the evidence and its findings of fact (ibid., §§ 112 ‑ 16). Indeed, it was not open to the courts to terminate the criminal proceedings against him on account of his earlier punishment in administrative proceedings, as, according to a binding interpretative decision of the former Supreme Court and the constant case ‑ law of the Supreme Court of Cassation, the prohibition on repetition of proceedings does not apply to administrative proceedings (see paragraph 24 above and, mutatis mutandis, Sergey Zolotukhin, cited above, § 118).",
"4. Conclusion",
"56. The applicant was “ convicted ” in administrative proceedings which are to be assimilated to “ criminal proceedings ” within the autonomous Convention meaning of this term. After this “ conviction ” became final, criminal charges were laid against him which referred to the same conduct as that punished in the administrative proceedings and encompassed substantially the same facts. The criminal proceedings against the applicant thus concerned essentially the same offence as that of which he had already been “ convicted ” by a final decision of the mayor.",
"57. There has therefore been a violation of Article 4 of Protocol No. 7.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"58. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"59. The applicant claimed 7,000 euros (EUR) in respect of non ‑ pecuniary damage.",
"60. The Government did not comment on the applicant ’ s claim.",
"61. The Court is of the view that the applicant must be considered to have suffered some non-pecuniary damage as a result of the breach of his right to effective legal assistance and his right not to be tried or punished again for the same offence. Ruling on an equitable basis, as required under Article 41, it awards him EUR 3, 0 00, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"62. The applicant sought the reimbursement of the expenses which he had incurred for the proceedings before the Court. He did not quantify them and did not submit any documents in support of his claim.",
"63. The Government did not comment on the applicant ’ s claim.",
"64. According to the Court ’ s case ‑ law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulate that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. In the present case, noting that the applicant has failed to produce any documents in support of his claim, the Court does not make any award under this head.",
"C. Default interest",
"65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
237 | Khmel v. Russia | 12 December 2013 | Taken to a police station on suspicion of drunk driving, the applicant – a member of a regional parliament – refused to give his name, behaved in an unruly manner and would not leave the building when asked to do so. Administrative proceedings were brought against him and he was found guilty of various offences, including refusing to take an alcohol test and committing minor disorderly acts. He was fined 1,500 Russian roubles (RUB). Later he was also found guilty in criminal proceedings of threatening and insulting a public official on the day he taken to the police station, and fined RUB 7,500. The administrative and criminal judgments against him were upheld on appeal. The applicant complained in particular that the bringing of both the administrative and criminal proceedings against him had amounted to double jeopardy. | The Court held that had been a violation of Article 4 of Protocol No. 7. It found that the applicant had been convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which were to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1960 and lives in Murmansk. At the material time the applicant was an elected member of the Murmansk regional legislature ( the “ Murmansk Duma”).",
"A. The applicant ’ s apprehension and subsequent events",
"5. At about 1.30 p.m. on 27 April 2003, some police officers stopped the applicant on suspicion of drunk driving and took him to the Severomorsk police station. At the station the applicant became agitated, verbally abusing police officers, grabbing them by the clothing and hitting them. He was then handcuffed.",
"6. As the applicant initially refused to give his name, police officers searched his clothing and found an identity card showing him to be a member of the Murmansk Duma. The applicant confirmed that he was a member of the regional legislature. His handcuffs were removed. The chief of the police station, who was away from the station at the time, phoned the duty officer and instructed him to invite the applicant to take an alcohol test and, should he refuse, to prepare a report on his refusal and arrange for his release. The applicant refused to make any statements and continued to behave in an unruly manner, pulling at the officers ’ clothing and throwing his shoes at them. The police officers repeatedly asked the applicant to leave the station but he refused to go unless the mayor and the chairman of the Murmansk Duma came to see him.",
"7. At 2.30 p.m. the police chief arrived and invited everyone into his office. The applicant verbally abused him and the other police officers, claiming that his arrest had been politically motivated. He again refused to take an alcohol test.",
"8. In connection with the applicant ’ s “inadequate behaviour”, the police chief decided to record the applicant ’ s actions on video. To that end, he got in touch with a cameraman from the Murman State television and radio broadcasting company ( ГТРК « Мурман » ) and asked him to come to the station with his camera. A few minutes later the cameraman arrived and started filming in the police chief ’ s office. The applicant repeated on camera the same allegations he had made earlier against the police and refused to take an alcohol test. The police chief again told him that he was free to leave but the applicant instead sat at the duty officer ’ s desk, taking out a drawer and throwing its contents onto the floor. Some of the events were captured on camera by the cameraman, who remained at the police station until 4.30 p.m.",
"9. At 5.30 p.m. a presenter and a cameraman from Northern Fleet television ( телевидение Северного Флота ) arrived at the station. Upon receiving an official authorisation from the police chief, they started filming the applicant, who was still sitting at the desk dishevelled, without shoes on and with his feet on the table, making calls on his mobile phone. The television crew interviewed the police chief and asked the applicant to make a statement but he declined. They stayed at the station for approximately forty minutes.",
"10. The applicant ’ s assistant then arrived and called an ambulance for him. However, when it turned up, the applicant refused to get in it with the doctor to go to the town hospital. The Murmansk regional prosecutor, who arrived at about 7.30 p.m., formally informed the applicant that he was free to go and that he could leave immediately. After the applicant refused to leave and ignored further warnings against him if he did not do so, he was escorted out by two police officers.",
"11. The following day, Murman included in its news programme extracts from the footage filmed at the police station. The same extracts were broadcast by the Blits, TV-21 and North-West Broadcasting television companies.",
"12. Following a medical examination on 30 April 2003, the applicant was diagnosed as having sustained minor bodily injuries, including bruises and scratches on his face and body. He requested the Murmansk regional prosecutor to institute criminal proceedings against the police officers for ill-treatment and abuse of power. Having investigated the above events, on 7 May 2003 the prosecutor rejected the applicant ’ s request. The decision was upheld on 24 May 2004 by the Severomorsk Town Court as well-founded. The applicant did not challenge that judgment before the Regional Court.",
"13. On 20 May 2003 the regional prosecutor appeared before the Murmansk Duma to deliver the results of the investigation into the applicant ’ s allegations of ill-treatment. He offered to show the footage filmed at the police station on 27 April 2003. Some members refused to watch the videotape but others agreed to it being shown. They watched the videotape in the private office of one member of parliament.",
"B. Civil proceedings concerning the broadcasting of the footage",
"14. On an unspecified date the applicant lodged a civil claim against the Severomorsk police chief, the Murmansk regional prosecutor, the State-owned television company Murman and the Blitz, TV-21 and North-West Broadcasting companies, seeking to have the videotaping and subsequent broadcasts declared unlawful and claiming compensation in respect of non-pecuniary damage as a result of the interference with his private life.",
"15. On 11 November 2003 the Pervomayskiy District Court of Murmansk rejected the claim. The court found that the broadcasting of the footage could not be attributed to the police chief. The latter confirmed that he had invited the cameraman to the station after the applicant had introduced himself; however, he had not ordered the footage to be broadcast. He also confirmed that the applicant had not realised that he was being filmed as he had been under the influence of alcohol. The court decided that the filming was justified under section 11(15) of the Police Act, as the applicant had refused to produce his identity documents. The court also stated that the footage had not concerned the applicant ’ s private life but the offences he had committed.",
"16. The court further found that Murman had acted in compliance with section 38 of the Mass Media Act, which provided for the right of citizens to receive information about the activity of public officials. The court also referred to section 50 of the same Act in so far as it allowed the dissemination of that type of material under special circumstances; however, it found that the film had not been disseminated. During the proceedings the applicant withdrew his claim against North-West Broadcasting, and the court found that Blitz and TV-21 could not be held liable by virtue of section 57(6) of the Mass Media Act as they had simply reproduced the footage broadcast by Murman.",
"17. The court also found that the regional prosecutor had lawfully reported to the Murmansk Duma members, on 20 May 2003, about the findings of the inquiry into the applicant ’ s allegations of ill-treatment. In so doing, he did not breach any legal provision, so the plaintiff had no cause of action against him.",
"18. The applicant appealed against that judgment. He challenged, in particular, the court ’ s finding that the videotaping had been justified under section 11(15) of the Police Act. The defendants confirmed during the trial that they had obtained the applicant ’ s identity documents immediately after his arrest and that it would not have been necessary to film him for identification purposes. The applicant also stated that his right to respect for his private life had been violated as the footage had been broadcast without his consent.",
"19. On 24 March 2004 the Murmansk Regional Court upheld the judgment summarily.",
"C. Administrative proceedings against the applicant",
"20. On 27 April 2003 police officers filed with Severomorsk Town Court the administrative offence reports, according to which the applicant had committed offences under Articles 12.26 (“Driver ’ s refusal to take an alcohol test”), 19.3 (“Persistent refusal to obey lawful police orders”) and 20.1 (“ Minor disorderly acts ”) of the Code of Administrative Offences.",
"21. On 14 May 2003 the Town Court found the applicant guilty of the above-mentioned offences and fined him 1,500 Russian roubles (RUB). With respect to the latter charge of minor disorderly acts, the Town Court gave the following description of the offence:",
"“On 27 April 2003, at about 2 p.m. Mr Khmel, being in a public place – the premises of the Severomorsk police station – in the presence of police officers and other members of the public, uttered obscenities and disregarded repeated demands by the police officers to stop his unlawful behaviour, thereby committing minor disorderly acts ...",
"His behaviour demonstrated an obvious disrespect for people in positions of authority in the performance of their duties, which has been confirmed by the police officers K., S., U., P., G. and M. ”",
"The Town Court made findings of fact on the basis of the written statements by the police officers and other witnesses and the administrative offences reports of 27 April 2003. Its judgment did not mention any video footage.",
"22. On 27 May 2003 the Murmansk Regional Court upheld the judgment, rejecting an appeal by the applicant on procedural grounds.",
"D. Criminal proceedings against the applicant",
"23. As the applicant was a member of the Murmansk Duma, in accordance with a special procedure set out in the Code of Criminal Procedure, on 16 July 2003 the Murmansk regional prosecutor requested the Murmansk Regional Court to determine whether there was any indication that the applicant had committed offences punishable under Article 318 § 1 (threatening violence against a public official) and Article 319 (insulting a public official) of the Criminal Code.",
"24. On 19 November 2003 the Regional Court concluded that the applicant ’ s behaviour had contained elements of the above -mentioned offences and allowed criminal proceedings against him to be instituted.",
"25. In the course of the proceedings the applicant was represented by a lawyer of his own choosing, S. During the five days of the trial S. was ill and the court replaced him with lawyers A. and L. without having obtained the applicant ’ s consent.",
"26. On 8 August 2005 the Severomorsk Town Court convicted the applicant of threatening violence against a public official ( Article 318 § 1) and insulting a public official (Article 319). The evidence before the court included the statements by the victims and the witnesses, the footage recorded at the police station on 27 April 2003 and administrative offences reports.",
"27. The Town Court fined the applicant RUB 7,500 under Article 319 but exempted him from criminal liability under that provision as the charges had become time-barred. Under Article 318 § 1 the applicant was fined RUB 30,000. The relevant parts of the judgment read as follows:",
"“ On 27 April 2003 ... while at the police station, Mr Khmel ... uttered many obscenities to [the police officers] P. and S. ... repeatedly asked to leave the police station, Mr Khmel responded with obscene insults to the duty officer M. ... Mr Khmel kicked the officer T. twice in the stomach, causing him visible pain, then pulled at his epaulette and tore it off. This action was accompanied by obscene insults towards T., undermining his honour and dignity as a person in a position of authority ... Talking to the police chief, K., in his office in the presence of his subordinate officers, Mr Khmel, ... insulted and humiliated him, uttering obscenities which caused damage to his dignity and honour and undermined his authority ... When the road traffic officer G. again requested Mr Khmel to take an alcohol test, Mr Khmel uttered obscenities to him ... ”",
"28. On 29 September 2005 the Murmansk Regional Court upheld the judgment on appeal."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Code of Administrative Offences of the Russian Federation",
"29. The relevant provisions of the Code of Administrative Offences (in force at the material time) read as follows :",
"Article 12.26 : Driver ’ s refusal to take an alcohol test",
"“ Refusal by a driver of a lawful demand of a police officer to take an alcohol test shall result in a driving ban of between eighteen months and two years. “",
"Article 19.3 : Persistent refusal to obey lawful police orders",
"“ Failure to obey a lawful order or demand by a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five and ten months ’ minimum wage or by up to fifteen days ’ administrative detention. ”",
"Article 20.1 : Minor disorderly acts",
"“ 1. A disorderly act, that is to say, a breach of public order in the form of an open disregard for the public accompanied by uttering obscenities in public places, abusively pestering people or destroying or damaging other people ’ s property, shall be punishable by a fine equivalent to between five and ten months ’ minimum wages or by up to fifteen days ’ administrative detention. ”",
"B. Criminal Code of the Russian Federation",
"30. The relevant provisions of the Criminal Code ( as in force at the material time) read as follows:",
"Article 318 : Use of violence against a public official",
"“1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his or her relatives in connection with the performance of his or her duties shall be punishable by a fine equivalent to between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty...”",
"Article 319 : Insulting a public official",
"“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between fifty and 100 months ’ minimum wages ..., 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.”",
"C. The Police Act (Law no. 1026-I of 18 April 1991)",
"31. The relevant provisions of the Police Act, in force at the material time, read as follows:",
"Section 11 : Rights of the police",
"“ In the performance of their duties, the police shall have the following rights:",
"...",
"(14) to keep legally established registers of persons, legal entities, objects and facts and to use the data from the registers; to use IT systems, video and audio recording, film and photo equipment, as well as other technical devices, for documenting their activities;",
"(15) to make ... film and video - recordings ... of suspects and accused persons who are under administrative arrest and of those in respect of whom there are grounds to institute administrative proceedings ... if it is impossible to identify them ...",
"(16) to carry out operational and search measures in accordance with federal law ... ”",
"D. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995)",
"32. The Act contains an exhaustive list of operational-search measures. It includes, in particular, observation (section 6 § 6) and specifies that the operational-search activities may be carried out with the use of video- and audio-recording (section 6, third paragraph ).",
"33. The operational-search activities may only be carried out, in particular, if there is a pending criminal case (section 7 § 1) or if there are indications of an offence being planned, committed or having been committed but the information is insufficient for an immediate taking of a decision on the institution of criminal proceedings (section 7 § 2 (1)).",
"34. In its decision no. 86-O of 14 July 1998, the Constitutional Court of the Russian Federation found as follows:",
"“Section 6 [of the Operational-Search Activities Act] only lists the types of operational-search measures but does not determine the form or conditions in which they should be carried out. Operational-search measures, including observation, may only be carried out ... in the circumstances listed in section 7 [of the Act]. It follows, this federal law does not allow [the authorities] to collect, to store, to use or to disseminate information on the private life of the individual who is being investigated unless it is linked to detecting, preventing, curtailing or solving crimes, detecting or identifying perpetrators or other lawful objectives ... Moreover, paragraph 4 of part 7 of section 5 [of the Act] prohibits the operational-search bodies and their officials from disseminating the information concerning the private and family life or the dignity and reputation of citizens, which they had obtained as a result of operational-search measures, without the citizens ’ consent ... ”",
"E. The Mass Media Act ( Law no. 2124-I of 27 December 1991 )",
"35. The relevant provisions of the Mass Media Act read as follows:",
"Section 38 : The right to information",
"“ Through mass media, private citizens shall have the right to receive accurate information about the activities of State bodies and organisations, public associations and their officials. ”",
"Section 50 : Covert recording",
"“ The dissemination of reports and materials prepared with the use of hidden audio and video-recording, photography and cinematography shall be allowed in the following cases:",
"( 1) if it does not infringe citizen ’ s constitutional rights and freedoms;",
"( 2) if it is necessary to protect the public interest and if measures have been taken to prevent possible identification of third parties;",
"( 3) if the recording is demonstrably in accordance with a decision of a court of law. ”",
"Section 57 : Absolution from responsibility",
"“ The editorial office, editor-in-chief and journalist shall bear no responsibility for the dissemination of information that ... tarnishes the honour and dignity of private citizens ... or infringes the rights and lawful interests of individuals ... :",
"( 6) if this information is the literal reproduction of reports and materials or of extracts thereof disseminated by another mass medium which can be ascertained and called to account for a particular breach of the legislation of the Russian Federation on mass media. ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"36. The applicant complained that the unlawful filming of him at the police station and broadcasting of that footage on television had breached his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"37. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Submissions by the parties",
"38. The Government submitted that a person who had committed offences or crimes should envisage various restrictions on his or her rights, including the right to respect for private life. After the applicant had committed a breach of public order, caused damage to the honour and dignity of the authorities and been escorted to the police station, his private life had been brought into the public domain. The video - recording had been made openly, the applicant had been aware that he was being filmed for television and had not objected to it. In fact, he had asked for the media to be brought to the police station. The Government further claimed that the applicant had been filmed in accordance with the law, with a view to securing evidence of his unlawful behaviour and establishing his identity as an offender. The Murman television company had acted lawfully, because under the relevant legislation it was permitted to seek and obtain information on any subject and to broadcast reliable information about the behaviour of a State official. The TV-21 and Blits television companies had merely rebroadcast the footage filmed by Murman. The Government contended that neither the sending of the videotape by the police chief to the public prosecutor ’ s office nor its circulation for screening to the members of the regional Duma had amounted to “dissemination of information”.",
"39. The applicant pointed out that, prior to his conviction in administrative and criminal proceedings ( on 27 May 2003 and 29 September 2005 respectively ), he should have been presumed innocent at the time the video - recording had been made and broadcast. He had not agreed to being filmed and the cameraman had given evidence in the civil proceedings that, at the request of the police chief, part of the footage had been filmed covertly. The applicant emphasised that the broadcasting of the footage had not been in the public interest but had solely been intended to tarnish his reputation. It could not have been necessary for the purposes of identifying him because his identity had already been established by the time the cameraman had arrived. Moreover, the police officers had not used their own equipment to film him and had instead invited a television cameraman who had happened to be a friend of the police chief.",
"2. The Court ’ s assessment",
"(a) Existence of an interference",
"40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or image. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image including the right to refuse publication thereof ( see Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § § 95-96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I, and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI).",
"41. The Court has held on various occasions that the recording of video in the law-enforcement context or the release of the applicants ’ photographs by police authorities to the media disclosed an interference with their right to respect for private life. In the above -mentioned Khuzhin and Sciacca cases, the police made the applicants ’ photographs from the official file available to the press without their consent. In Peck v. the United Kingdom (no. 44647/98, § § 62-63, ECHR 2003 ‑ I ), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on surveillance television cameras was found to be a serious interference with the applicant ’ s private life, notwithstanding that he was in a public place at the time. In a case where the police regulated the security camera in the custody suite of a police station so that it could take clear footage of the applicant and later showed the video to witnesses and during the trial in a public court room, the Court noted that the ploy adopted by the police went beyond the normal or expected use of this type of camera and the recording of such footage amounted to the processing or collecting of personal data about the applicant. Noting that the footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be made, the Court considered that the recording and use of the video disclosed an interference with the applicant ’ s right to respect for private life (see Perry v. the United Kingdom, no. 63737/00, § § 39-43, ECHR 2003 ‑ IX ).",
"42. In the instant case, the applicant was recorded on video while he was at the Severomorsk police station and part of that footage was broadcast on regional television the following day. The Court observes that the applicant consistently denied – in the proceedings before the domestic courts and before the Court – that he had agreed to being filmed. The Government were unable to produce any evidence of the applicant ’ s consent either to being recorded on video – especially given that the recording was partly carried out covertly – or to having the footage broadcast on television.",
"43. The parties did not dispute that the cameraman from Murman and subsequently the crew of Northern Fleet had arrived at the police station upon the invitation of the police chief with the purpose of capturing the applicant ’ s behaviour on camera. In their submissions, the Government indicated that the police chief had given the media an “official authorisation” to film the applicant. He did not impose any conditions on how the footage would subsequently be used. It follows that a State official had borne direct responsibility for granting the media access to the applicant ’ s image and enabling them to retain the footage and use it for their own purposes, including broadcasting it on public television.",
"44. In these circumstances and in the light of its above-cited case-law (see, in particular, the Peck and Perry judgments ), the Court finds that the decision of the police chief to invite the television crews and to allow them to record the applicant ’ s image inside the police station and to take the tapes with them, without any restriction on their subsequent use, amounted to an interference with the applicant ’ s right to respect for private life which was attributable to the State. Whether that interference could be considered justified in the particular circumstances of the case will be the subject of its analysis below.",
"(b) Justification for the interference",
"45. The Court reiterates that, in order to be justified under Article 8 of the Convention, an interference with the applicant ’ s right to respect for private life must be “in accordance with the law”, pursue one or more of the legitimate aims contemplated in paragraph 2 of this Article and be “necessary in a democratic society”.",
"46. The first requirement of paragraph 2 of Article 8 is that the interference should be “in accordance with the law”. On the facts, the Court notes that the police detained the applicant and brought him to the station on suspicion that he had attempted to drive a car under the influence of alcohol. The applicant could have dispelled the suspicion by taking an alcohol test but he vehemently refused to do so. Instead of showing goodwill and co-operating with the police, he turned disorderly and violent against the officers, abusing them verbally, pulling at their uniforms, disrupting the work of the station and wreaking havoc on the equipment. The Court nevertheless emphasises that, no matter how unacceptable or provocative the applicant ’ s behaviour was, the police officers should have firmly stood guard as custodians of the law and their actions required a solid legal basis.",
"47. The Russian courts in the civil proceedings and the Government in their observations before the Court cited section 11(15) of the Police Act as a justification for the police chief ’ s decision to invite television cameras and to have the applicant recorded on video. Section 11(15) of the Police Act granted the police the right to take fingerprints or to film individuals if it was impossible to identify them (see paragraph 31 above). The Court fails to see how that provision could be applicable in the instant case, where the applicant ’ s identity had been established shortly after he had arrived at the police station, when an officer had searched his clothing and found his professional identity card and the applicant had confirmed his name and occupation (see paragraph 6 above). For the first time in the proceedings before the Court the Government also invoked section 11 (14) of the Police Act concerning the police ’ s power to keep various legally established registers. Their submissions were, however, confined to quoting the text of this provision, without explaining to what extent it could be relevant in the circumstances of the present case which did not concern the recording of the applicant ’ s image for the purposes of any such register.",
"48. The Government also claimed that the recording was intended to secure evidence of the applicant ’ s unlawful behaviour. The Court notes, on the facts, that at the time the applicant was filmed, he had neither been formally detained nor charged with any offence, administrative or otherwise, and that no proceedings had been initiated against him. The Government did not cite any provision of Russian law which would have allowed the police to collect evidence prior to the institution of any kind of proceedings and in the absence of any procedural decision to that effect. As matters transpired, the video-recording was not included in evidence in the administrative proceedings and was not mentioned in the judgment (see paragraph 21 above). It is nevertheless not inconceivable that the filming was performed in accordance with the Operational-Search Activities Act which allowed the police to carry out “observation” of individuals who were suspected of being in the process of committing criminal offences, using audio and video equipment (see paragraphs 32 and 33 above). This could be legally done, even if a decision on the institution of criminal proceedings were to be taken at a later stage rather than immediately (ibid.)",
"49. In any event, the interference in this case was not limited to the recording of the applicant ’ s image, but also included making the footage available to the media, without restricting its subsequent use. Assuming that the footage was obtained in the framework of the operational-search activities, the same Operational-Search Activities Act expressly prohibited police officers from disseminating such information without the consent of the individual concerned. The Russian Constitutional Court reinforced that prohibition by pointing out that the information may only be used for the purposes of law enforcement, such as crime detection or prevention or identification of perpetrators (see paragraph 34 above). It follows that, in the absence of the applicant ’ s consent, the release of the video recording to the regional television was in flagrant breach of the domestic law.",
"50. Finally, as regards the Government ’ s reliance on the Media Act, the Court reiterates that in the present case it is not concerned with the lawfulness of the actions of television companies but with the legal basis for the actions of the police which was conspicuously lacking.",
"51. The Court reiterates that, where it has been shown that an interference was not in accordance with the law, it is not necessary to investigate whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 129, 13 January 2009; Sciacca, cited above, § 30, and Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006).",
"52. There has therefore been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"53. The applicant complained under Article 7 of the Convention that his conviction, first in administrative proceedings and later in criminal proceedings, amounted to double jeopardy. The Court considers that this complaint falls to be examined from the standpoint of Article 4 of Protocol No. 7 to the Convention which provides, in the relevant part, as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ”",
"A. Admissibility",
"54. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Submissions by the parties",
"55. The Government evaluated the facts of the case and concluded that the applicant had been found criminally liable in respect of acts that had been committed in a different place and time from those that had formed the basis of his administrative conviction. In addition, those offences had been different in terms of how dangerous to the public they were. The Government maintained that there had been no violation of Article 4 of Protocol No. 7.",
"56. The applicant argued that the time period during which the offences defined in Article 19.3 and 20.1 of the Code of Administrative Offences and Article 318 and 319 of the Criminal Code had been committed was the same, and that it had lasted from the moment he had arrived at the police station ( 2 p.m. ) until his departure at 7.30 p.m. Furthermore, it appeared from the domestic judgments that both the administrative and criminal offences had targeted the same police officers T., U., K., S., M. and others who had been granted victim status in the criminal proceedings. Finally, the actus reus of the above offences largely overlapped and the criminal offences did not contain any elements that had not been previously examined in the administrative proceedings. The applicant emphasised that the judge who had examined the administrative charges against him had had legal grounds to discontinue those proceedings and to refer the matter to a public prosecutor if she had considered that there were indications of a criminal offence; however, she had not chosen to do so which meant, by converse implication, that the applicant ’ s acts had not amounted to a criminal offence. Her determination of the case was therefore binding on the other public authorities.",
"2. The Court ’ s assessment",
"57. The applicant alleged a violation of the non bis in idem principle, that is to say the guarantee against the duplication of proceedings in connection with the same offence. The Court notes that the events of 27 April 2003 gave rise to two separate sets of proceedings against the applicant: in the first round of proceedings he was found guilty under the Code of Administrative Offences and ordered to pay a fine, and in the second set of proceedings he was found guilty under the Criminal Code and ordered to pay a larger fine. The Court accordingly has to examine three issues: whether the first proceedings were criminal in nature; whether the offences for which the applicant was prosecuted were the same ( idem ), and whether there was a duplication of proceedings ( bis ).",
"(a) Whether the first proceedings were criminal in nature",
"58. By the Town Court ’ s judgment of 14 May 2003, as upheld on appeal by the Regional Court on 27 May 2003, the applicant was found guilty of offences which were classified as “administrative” under domestic law. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem for the purposes of Article 4 § 1 of Protocol No. 7. Otherwise, the application of that provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” within the meaning of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, with further references ).",
"59. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22 ), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. That, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, with further references ).",
"60. As regards the classification of the offences under domestic law, the Court notes that under Articles 12.26, 19.3 and 20.1 of the Code of Administrative Offences, they were all characterised as “ administrative ” ones. As indicated above, however, the classification under domestic law is not decisive. The Court indeed recalls that the sphere defined in the Russian legal system as “ administrative ” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid., § 54, with further references).",
"61. With respect to the nature of the offences, the Court notes that the applicant was found guilty of three administrative offences: refusing to take an alcohol test, persistently refusing to obey lawful police orders and committing minor disorderly acts. However, since there was no allegation of a repetition of proceedings in respect of the first offence, the Court will focus its examination on the second and third offences. The aim of those two offences was to guarantee the protection of human dignity and public order, that is to say, the values and interests which normally fall within the sphere of protection of criminal law (compare with Sergey Zolotukhin, cited above, § 55, and Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI ). The Court reiterates that the reference to the “minor” nature of the acts did not, in itself, preclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003 ‑ X ).",
"62. The Court further recalls that the degree of severity of the measure is determined by reference to the maximum potential penalty for which the relevant law provides (see Sergey Zolotukhin, cited above, § 56). The Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty in respect of those two offences. That the applicant was eventually ordered to pay a fine does not diminish the importance of the fact that his liberty was initially at stake ( see Ezeh, cited above, § 120).",
"63. In conclusion, the general character of the offences of “persistent refusal to obey lawful police orders ” and “minor disorderly acts”, together with the severity of the potential penalty, were sufficient to bring the applicant ’ s conviction for those offences within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"(b) Whether the offences for which the applicant was prosecuted were the same ( idem )",
"64. The Court will next examine whether the applicant was prosecuted for the same offences. The applicable test has recently been clarified in the Sergey Zolotukhin judgment (cited above, §§ 78-84). The Court held that it must disregard the legal characterisation of the offences in domestic law and take the underlying factual circumstances as its focal point of comparison.",
"65. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to his unruly behaviour at the Severomorsk police station on 27 April 2003. The judgment of 14 May 2003 stated that he had uttered obscenities and been disrespectful to the police officers K., S., U., P., G. and M. The same facts formed the central element of the criminal charges against the applicant and the judgment of 8 August 2005 referred to the same behaviour (“uttered obscenities”, “ caused damage to his dignity and undermined his authority”) that had taken place on the same day at the same police station, with the same police officers having been recognised as victims and cross-examined during the trial. The criminal charges therefore encompassed the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.",
"(c) Whether there was a duplication of proceedings ( bis )",
"66. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of that provision if it has acquired the force of res judicata. This is the case when the decision is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references).",
"67. In the instant case the Town Court ’ s decision on the administrative offences was upheld on appeal and became “final” on 27 May 2003, two months before the regional prosecutor requested the Regional Court to authorise the institution of criminal proceedings against the applicant.",
"68. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the recovery of the fine imposed under Article 319 of the Criminal Code became time-barred has no bearing on the applicant ’ s allegation that he was prosecuted, tried and convicted of that charge for a second time. Accordingly, the Court considers that there was a duplication of proceedings.",
"(d) Conclusion",
"69. The Court has found that the applicant was convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed.",
"70. There has accordingly been a violation of Article 4 of Protocol No. 7.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"71. The applicant also complained under Articles 3 and 5 of the Convention that he had been unlawfully arrested and ill-treated at the police station on 27 April 2003. Since his application was only lodged on 18 April 2004, that is to say almost a year later, this part of the application is obviously out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.",
"72. Lastly, the applicant complained under Articles 6 and 13 of the Convention of certain procedural irregularities in the criminal proceedings against him. The Court has examined those complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"73. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"74. The applicant claimed 115,000 Russian roubles (RUB) – the equivalent of 2,580 euros (EUR) on the date of the submission of his claims – in respect of pecuniary damage, which comprised the legal fees paid to his defence team in the criminal proceedings and the fine of RUB 30,000. He further claimed RUB 250,000 (EUR 5,610) in respect of non-pecuniary damage.",
"75. The Government submitted that they were under no obligation to reimburse the fine because it had been lawfully imposed on the applicant. They considered that the amount of non-pecuniary damage was unreasonable.",
"76. The Court considers that the applicant incurred both pecuniary and non-pecuniary damage in connection with the duplication of proceedings against him and the broadcasting of the footage filmed at the police station. Accordingly, it awards him an aggregate amount of EUR 5,000 in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable.",
"B. Costs and expenses",
"77. The applicant also claimed EUR 450 for costs and expenses incurred before the Court.",
"78. The Government did not comment on this part of the claims.",
"79. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 450 for the proceedings before it, plus any tax that may be chargeable to the applicant.",
"C. Default interest",
"80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
238 | Khmel v. Russia | 12 December 2013 | At the time of the facts, the applicant was a member of the Murmansk regional legislature. He was taken to a police station on suspicion of drunk driving. He refused to give his name, behaved in an unruly manner and would not leave the building when asked to do so. The police chief invited television crews to the station, and that afternoon the applicant was filmed whilst in a dishevelled state and acting inappropriately. Some of the footage was broadcast on public television the next day. Administrative and criminal proceedings were later brought against him for his actions on the day he was filmed. The applicant complained in particular of the filming of him at the police station and the broadcasting of the footage, which he claimed to be unlawful. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, as in the absence of the applicant’s consent, the release of the video recording to the regional television had been in flagrant breach of the domestic law. The interference with the applicant’s right to respect for private life was therefore not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. | Right to the protection of one’s image | Persons arrested or under criminal prosecution | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1960 and lives in Murmansk. At the material time the applicant was an elected member of the Murmansk regional legislature ( the “ Murmansk Duma”).",
"A. The applicant ’ s apprehension and subsequent events",
"5. At about 1.30 p.m. on 27 April 2003, some police officers stopped the applicant on suspicion of drunk driving and took him to the Severomorsk police station. At the station the applicant became agitated, verbally abusing police officers, grabbing them by the clothing and hitting them. He was then handcuffed.",
"6. As the applicant initially refused to give his name, police officers searched his clothing and found an identity card showing him to be a member of the Murmansk Duma. The applicant confirmed that he was a member of the regional legislature. His handcuffs were removed. The chief of the police station, who was away from the station at the time, phoned the duty officer and instructed him to invite the applicant to take an alcohol test and, should he refuse, to prepare a report on his refusal and arrange for his release. The applicant refused to make any statements and continued to behave in an unruly manner, pulling at the officers ’ clothing and throwing his shoes at them. The police officers repeatedly asked the applicant to leave the station but he refused to go unless the mayor and the chairman of the Murmansk Duma came to see him.",
"7. At 2.30 p.m. the police chief arrived and invited everyone into his office. The applicant verbally abused him and the other police officers, claiming that his arrest had been politically motivated. He again refused to take an alcohol test.",
"8. In connection with the applicant ’ s “inadequate behaviour”, the police chief decided to record the applicant ’ s actions on video. To that end, he got in touch with a cameraman from the Murman State television and radio broadcasting company ( ГТРК « Мурман » ) and asked him to come to the station with his camera. A few minutes later the cameraman arrived and started filming in the police chief ’ s office. The applicant repeated on camera the same allegations he had made earlier against the police and refused to take an alcohol test. The police chief again told him that he was free to leave but the applicant instead sat at the duty officer ’ s desk, taking out a drawer and throwing its contents onto the floor. Some of the events were captured on camera by the cameraman, who remained at the police station until 4.30 p.m.",
"9. At 5.30 p.m. a presenter and a cameraman from Northern Fleet television ( телевидение Северного Флота ) arrived at the station. Upon receiving an official authorisation from the police chief, they started filming the applicant, who was still sitting at the desk dishevelled, without shoes on and with his feet on the table, making calls on his mobile phone. The television crew interviewed the police chief and asked the applicant to make a statement but he declined. They stayed at the station for approximately forty minutes.",
"10. The applicant ’ s assistant then arrived and called an ambulance for him. However, when it turned up, the applicant refused to get in it with the doctor to go to the town hospital. The Murmansk regional prosecutor, who arrived at about 7.30 p.m., formally informed the applicant that he was free to go and that he could leave immediately. After the applicant refused to leave and ignored further warnings against him if he did not do so, he was escorted out by two police officers.",
"11. The following day, Murman included in its news programme extracts from the footage filmed at the police station. The same extracts were broadcast by the Blits, TV-21 and North-West Broadcasting television companies.",
"12. Following a medical examination on 30 April 2003, the applicant was diagnosed as having sustained minor bodily injuries, including bruises and scratches on his face and body. He requested the Murmansk regional prosecutor to institute criminal proceedings against the police officers for ill-treatment and abuse of power. Having investigated the above events, on 7 May 2003 the prosecutor rejected the applicant ’ s request. The decision was upheld on 24 May 2004 by the Severomorsk Town Court as well-founded. The applicant did not challenge that judgment before the Regional Court.",
"13. On 20 May 2003 the regional prosecutor appeared before the Murmansk Duma to deliver the results of the investigation into the applicant ’ s allegations of ill-treatment. He offered to show the footage filmed at the police station on 27 April 2003. Some members refused to watch the videotape but others agreed to it being shown. They watched the videotape in the private office of one member of parliament.",
"B. Civil proceedings concerning the broadcasting of the footage",
"14. On an unspecified date the applicant lodged a civil claim against the Severomorsk police chief, the Murmansk regional prosecutor, the State-owned television company Murman and the Blitz, TV-21 and North-West Broadcasting companies, seeking to have the videotaping and subsequent broadcasts declared unlawful and claiming compensation in respect of non-pecuniary damage as a result of the interference with his private life.",
"15. On 11 November 2003 the Pervomayskiy District Court of Murmansk rejected the claim. The court found that the broadcasting of the footage could not be attributed to the police chief. The latter confirmed that he had invited the cameraman to the station after the applicant had introduced himself; however, he had not ordered the footage to be broadcast. He also confirmed that the applicant had not realised that he was being filmed as he had been under the influence of alcohol. The court decided that the filming was justified under section 11(15) of the Police Act, as the applicant had refused to produce his identity documents. The court also stated that the footage had not concerned the applicant ’ s private life but the offences he had committed.",
"16. The court further found that Murman had acted in compliance with section 38 of the Mass Media Act, which provided for the right of citizens to receive information about the activity of public officials. The court also referred to section 50 of the same Act in so far as it allowed the dissemination of that type of material under special circumstances; however, it found that the film had not been disseminated. During the proceedings the applicant withdrew his claim against North-West Broadcasting, and the court found that Blitz and TV-21 could not be held liable by virtue of section 57(6) of the Mass Media Act as they had simply reproduced the footage broadcast by Murman.",
"17. The court also found that the regional prosecutor had lawfully reported to the Murmansk Duma members, on 20 May 2003, about the findings of the inquiry into the applicant ’ s allegations of ill-treatment. In so doing, he did not breach any legal provision, so the plaintiff had no cause of action against him.",
"18. The applicant appealed against that judgment. He challenged, in particular, the court ’ s finding that the videotaping had been justified under section 11(15) of the Police Act. The defendants confirmed during the trial that they had obtained the applicant ’ s identity documents immediately after his arrest and that it would not have been necessary to film him for identification purposes. The applicant also stated that his right to respect for his private life had been violated as the footage had been broadcast without his consent.",
"19. On 24 March 2004 the Murmansk Regional Court upheld the judgment summarily.",
"C. Administrative proceedings against the applicant",
"20. On 27 April 2003 police officers filed with Severomorsk Town Court the administrative offence reports, according to which the applicant had committed offences under Articles 12.26 (“Driver ’ s refusal to take an alcohol test”), 19.3 (“Persistent refusal to obey lawful police orders”) and 20.1 (“ Minor disorderly acts ”) of the Code of Administrative Offences.",
"21. On 14 May 2003 the Town Court found the applicant guilty of the above-mentioned offences and fined him 1,500 Russian roubles (RUB). With respect to the latter charge of minor disorderly acts, the Town Court gave the following description of the offence:",
"“On 27 April 2003, at about 2 p.m. Mr Khmel, being in a public place – the premises of the Severomorsk police station – in the presence of police officers and other members of the public, uttered obscenities and disregarded repeated demands by the police officers to stop his unlawful behaviour, thereby committing minor disorderly acts ...",
"His behaviour demonstrated an obvious disrespect for people in positions of authority in the performance of their duties, which has been confirmed by the police officers K., S., U., P., G. and M. ”",
"The Town Court made findings of fact on the basis of the written statements by the police officers and other witnesses and the administrative offences reports of 27 April 2003. Its judgment did not mention any video footage.",
"22. On 27 May 2003 the Murmansk Regional Court upheld the judgment, rejecting an appeal by the applicant on procedural grounds.",
"D. Criminal proceedings against the applicant",
"23. As the applicant was a member of the Murmansk Duma, in accordance with a special procedure set out in the Code of Criminal Procedure, on 16 July 2003 the Murmansk regional prosecutor requested the Murmansk Regional Court to determine whether there was any indication that the applicant had committed offences punishable under Article 318 § 1 (threatening violence against a public official) and Article 319 (insulting a public official) of the Criminal Code.",
"24. On 19 November 2003 the Regional Court concluded that the applicant ’ s behaviour had contained elements of the above -mentioned offences and allowed criminal proceedings against him to be instituted.",
"25. In the course of the proceedings the applicant was represented by a lawyer of his own choosing, S. During the five days of the trial S. was ill and the court replaced him with lawyers A. and L. without having obtained the applicant ’ s consent.",
"26. On 8 August 2005 the Severomorsk Town Court convicted the applicant of threatening violence against a public official ( Article 318 § 1) and insulting a public official (Article 319). The evidence before the court included the statements by the victims and the witnesses, the footage recorded at the police station on 27 April 2003 and administrative offences reports.",
"27. The Town Court fined the applicant RUB 7,500 under Article 319 but exempted him from criminal liability under that provision as the charges had become time-barred. Under Article 318 § 1 the applicant was fined RUB 30,000. The relevant parts of the judgment read as follows:",
"“ On 27 April 2003 ... while at the police station, Mr Khmel ... uttered many obscenities to [the police officers] P. and S. ... repeatedly asked to leave the police station, Mr Khmel responded with obscene insults to the duty officer M. ... Mr Khmel kicked the officer T. twice in the stomach, causing him visible pain, then pulled at his epaulette and tore it off. This action was accompanied by obscene insults towards T., undermining his honour and dignity as a person in a position of authority ... Talking to the police chief, K., in his office in the presence of his subordinate officers, Mr Khmel, ... insulted and humiliated him, uttering obscenities which caused damage to his dignity and honour and undermined his authority ... When the road traffic officer G. again requested Mr Khmel to take an alcohol test, Mr Khmel uttered obscenities to him ... ”",
"28. On 29 September 2005 the Murmansk Regional Court upheld the judgment on appeal."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Code of Administrative Offences of the Russian Federation",
"29. The relevant provisions of the Code of Administrative Offences (in force at the material time) read as follows :",
"Article 12.26 : Driver ’ s refusal to take an alcohol test",
"“ Refusal by a driver of a lawful demand of a police officer to take an alcohol test shall result in a driving ban of between eighteen months and two years. “",
"Article 19.3 : Persistent refusal to obey lawful police orders",
"“ Failure to obey a lawful order or demand by a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five and ten months ’ minimum wage or by up to fifteen days ’ administrative detention. ”",
"Article 20.1 : Minor disorderly acts",
"“ 1. A disorderly act, that is to say, a breach of public order in the form of an open disregard for the public accompanied by uttering obscenities in public places, abusively pestering people or destroying or damaging other people ’ s property, shall be punishable by a fine equivalent to between five and ten months ’ minimum wages or by up to fifteen days ’ administrative detention. ”",
"B. Criminal Code of the Russian Federation",
"30. The relevant provisions of the Criminal Code ( as in force at the material time) read as follows:",
"Article 318 : Use of violence against a public official",
"“1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his or her relatives in connection with the performance of his or her duties shall be punishable by a fine equivalent to between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty...”",
"Article 319 : Insulting a public official",
"“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between fifty and 100 months ’ minimum wages ..., 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.”",
"C. The Police Act (Law no. 1026-I of 18 April 1991)",
"31. The relevant provisions of the Police Act, in force at the material time, read as follows:",
"Section 11 : Rights of the police",
"“ In the performance of their duties, the police shall have the following rights:",
"...",
"(14) to keep legally established registers of persons, legal entities, objects and facts and to use the data from the registers; to use IT systems, video and audio recording, film and photo equipment, as well as other technical devices, for documenting their activities;",
"(15) to make ... film and video - recordings ... of suspects and accused persons who are under administrative arrest and of those in respect of whom there are grounds to institute administrative proceedings ... if it is impossible to identify them ...",
"(16) to carry out operational and search measures in accordance with federal law ... ”",
"D. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995)",
"32. The Act contains an exhaustive list of operational-search measures. It includes, in particular, observation (section 6 § 6) and specifies that the operational-search activities may be carried out with the use of video- and audio-recording (section 6, third paragraph ).",
"33. The operational-search activities may only be carried out, in particular, if there is a pending criminal case (section 7 § 1) or if there are indications of an offence being planned, committed or having been committed but the information is insufficient for an immediate taking of a decision on the institution of criminal proceedings (section 7 § 2 (1)).",
"34. In its decision no. 86-O of 14 July 1998, the Constitutional Court of the Russian Federation found as follows:",
"“Section 6 [of the Operational-Search Activities Act] only lists the types of operational-search measures but does not determine the form or conditions in which they should be carried out. Operational-search measures, including observation, may only be carried out ... in the circumstances listed in section 7 [of the Act]. It follows, this federal law does not allow [the authorities] to collect, to store, to use or to disseminate information on the private life of the individual who is being investigated unless it is linked to detecting, preventing, curtailing or solving crimes, detecting or identifying perpetrators or other lawful objectives ... Moreover, paragraph 4 of part 7 of section 5 [of the Act] prohibits the operational-search bodies and their officials from disseminating the information concerning the private and family life or the dignity and reputation of citizens, which they had obtained as a result of operational-search measures, without the citizens ’ consent ... ”",
"E. The Mass Media Act ( Law no. 2124-I of 27 December 1991 )",
"35. The relevant provisions of the Mass Media Act read as follows:",
"Section 38 : The right to information",
"“ Through mass media, private citizens shall have the right to receive accurate information about the activities of State bodies and organisations, public associations and their officials. ”",
"Section 50 : Covert recording",
"“ The dissemination of reports and materials prepared with the use of hidden audio and video-recording, photography and cinematography shall be allowed in the following cases:",
"( 1) if it does not infringe citizen ’ s constitutional rights and freedoms;",
"( 2) if it is necessary to protect the public interest and if measures have been taken to prevent possible identification of third parties;",
"( 3) if the recording is demonstrably in accordance with a decision of a court of law. ”",
"Section 57 : Absolution from responsibility",
"“ The editorial office, editor-in-chief and journalist shall bear no responsibility for the dissemination of information that ... tarnishes the honour and dignity of private citizens ... or infringes the rights and lawful interests of individuals ... :",
"( 6) if this information is the literal reproduction of reports and materials or of extracts thereof disseminated by another mass medium which can be ascertained and called to account for a particular breach of the legislation of the Russian Federation on mass media. ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"36. The applicant complained that the unlawful filming of him at the police station and broadcasting of that footage on television had breached his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"37. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Submissions by the parties",
"38. The Government submitted that a person who had committed offences or crimes should envisage various restrictions on his or her rights, including the right to respect for private life. After the applicant had committed a breach of public order, caused damage to the honour and dignity of the authorities and been escorted to the police station, his private life had been brought into the public domain. The video - recording had been made openly, the applicant had been aware that he was being filmed for television and had not objected to it. In fact, he had asked for the media to be brought to the police station. The Government further claimed that the applicant had been filmed in accordance with the law, with a view to securing evidence of his unlawful behaviour and establishing his identity as an offender. The Murman television company had acted lawfully, because under the relevant legislation it was permitted to seek and obtain information on any subject and to broadcast reliable information about the behaviour of a State official. The TV-21 and Blits television companies had merely rebroadcast the footage filmed by Murman. The Government contended that neither the sending of the videotape by the police chief to the public prosecutor ’ s office nor its circulation for screening to the members of the regional Duma had amounted to “dissemination of information”.",
"39. The applicant pointed out that, prior to his conviction in administrative and criminal proceedings ( on 27 May 2003 and 29 September 2005 respectively ), he should have been presumed innocent at the time the video - recording had been made and broadcast. He had not agreed to being filmed and the cameraman had given evidence in the civil proceedings that, at the request of the police chief, part of the footage had been filmed covertly. The applicant emphasised that the broadcasting of the footage had not been in the public interest but had solely been intended to tarnish his reputation. It could not have been necessary for the purposes of identifying him because his identity had already been established by the time the cameraman had arrived. Moreover, the police officers had not used their own equipment to film him and had instead invited a television cameraman who had happened to be a friend of the police chief.",
"2. The Court ’ s assessment",
"(a) Existence of an interference",
"40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or image. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image including the right to refuse publication thereof ( see Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § § 95-96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I, and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI).",
"41. The Court has held on various occasions that the recording of video in the law-enforcement context or the release of the applicants ’ photographs by police authorities to the media disclosed an interference with their right to respect for private life. In the above -mentioned Khuzhin and Sciacca cases, the police made the applicants ’ photographs from the official file available to the press without their consent. In Peck v. the United Kingdom (no. 44647/98, § § 62-63, ECHR 2003 ‑ I ), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on surveillance television cameras was found to be a serious interference with the applicant ’ s private life, notwithstanding that he was in a public place at the time. In a case where the police regulated the security camera in the custody suite of a police station so that it could take clear footage of the applicant and later showed the video to witnesses and during the trial in a public court room, the Court noted that the ploy adopted by the police went beyond the normal or expected use of this type of camera and the recording of such footage amounted to the processing or collecting of personal data about the applicant. Noting that the footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be made, the Court considered that the recording and use of the video disclosed an interference with the applicant ’ s right to respect for private life (see Perry v. the United Kingdom, no. 63737/00, § § 39-43, ECHR 2003 ‑ IX ).",
"42. In the instant case, the applicant was recorded on video while he was at the Severomorsk police station and part of that footage was broadcast on regional television the following day. The Court observes that the applicant consistently denied – in the proceedings before the domestic courts and before the Court – that he had agreed to being filmed. The Government were unable to produce any evidence of the applicant ’ s consent either to being recorded on video – especially given that the recording was partly carried out covertly – or to having the footage broadcast on television.",
"43. The parties did not dispute that the cameraman from Murman and subsequently the crew of Northern Fleet had arrived at the police station upon the invitation of the police chief with the purpose of capturing the applicant ’ s behaviour on camera. In their submissions, the Government indicated that the police chief had given the media an “official authorisation” to film the applicant. He did not impose any conditions on how the footage would subsequently be used. It follows that a State official had borne direct responsibility for granting the media access to the applicant ’ s image and enabling them to retain the footage and use it for their own purposes, including broadcasting it on public television.",
"44. In these circumstances and in the light of its above-cited case-law (see, in particular, the Peck and Perry judgments ), the Court finds that the decision of the police chief to invite the television crews and to allow them to record the applicant ’ s image inside the police station and to take the tapes with them, without any restriction on their subsequent use, amounted to an interference with the applicant ’ s right to respect for private life which was attributable to the State. Whether that interference could be considered justified in the particular circumstances of the case will be the subject of its analysis below.",
"(b) Justification for the interference",
"45. The Court reiterates that, in order to be justified under Article 8 of the Convention, an interference with the applicant ’ s right to respect for private life must be “in accordance with the law”, pursue one or more of the legitimate aims contemplated in paragraph 2 of this Article and be “necessary in a democratic society”.",
"46. The first requirement of paragraph 2 of Article 8 is that the interference should be “in accordance with the law”. On the facts, the Court notes that the police detained the applicant and brought him to the station on suspicion that he had attempted to drive a car under the influence of alcohol. The applicant could have dispelled the suspicion by taking an alcohol test but he vehemently refused to do so. Instead of showing goodwill and co-operating with the police, he turned disorderly and violent against the officers, abusing them verbally, pulling at their uniforms, disrupting the work of the station and wreaking havoc on the equipment. The Court nevertheless emphasises that, no matter how unacceptable or provocative the applicant ’ s behaviour was, the police officers should have firmly stood guard as custodians of the law and their actions required a solid legal basis.",
"47. The Russian courts in the civil proceedings and the Government in their observations before the Court cited section 11(15) of the Police Act as a justification for the police chief ’ s decision to invite television cameras and to have the applicant recorded on video. Section 11(15) of the Police Act granted the police the right to take fingerprints or to film individuals if it was impossible to identify them (see paragraph 31 above). The Court fails to see how that provision could be applicable in the instant case, where the applicant ’ s identity had been established shortly after he had arrived at the police station, when an officer had searched his clothing and found his professional identity card and the applicant had confirmed his name and occupation (see paragraph 6 above). For the first time in the proceedings before the Court the Government also invoked section 11 (14) of the Police Act concerning the police ’ s power to keep various legally established registers. Their submissions were, however, confined to quoting the text of this provision, without explaining to what extent it could be relevant in the circumstances of the present case which did not concern the recording of the applicant ’ s image for the purposes of any such register.",
"48. The Government also claimed that the recording was intended to secure evidence of the applicant ’ s unlawful behaviour. The Court notes, on the facts, that at the time the applicant was filmed, he had neither been formally detained nor charged with any offence, administrative or otherwise, and that no proceedings had been initiated against him. The Government did not cite any provision of Russian law which would have allowed the police to collect evidence prior to the institution of any kind of proceedings and in the absence of any procedural decision to that effect. As matters transpired, the video-recording was not included in evidence in the administrative proceedings and was not mentioned in the judgment (see paragraph 21 above). It is nevertheless not inconceivable that the filming was performed in accordance with the Operational-Search Activities Act which allowed the police to carry out “observation” of individuals who were suspected of being in the process of committing criminal offences, using audio and video equipment (see paragraphs 32 and 33 above). This could be legally done, even if a decision on the institution of criminal proceedings were to be taken at a later stage rather than immediately (ibid.)",
"49. In any event, the interference in this case was not limited to the recording of the applicant ’ s image, but also included making the footage available to the media, without restricting its subsequent use. Assuming that the footage was obtained in the framework of the operational-search activities, the same Operational-Search Activities Act expressly prohibited police officers from disseminating such information without the consent of the individual concerned. The Russian Constitutional Court reinforced that prohibition by pointing out that the information may only be used for the purposes of law enforcement, such as crime detection or prevention or identification of perpetrators (see paragraph 34 above). It follows that, in the absence of the applicant ’ s consent, the release of the video recording to the regional television was in flagrant breach of the domestic law.",
"50. Finally, as regards the Government ’ s reliance on the Media Act, the Court reiterates that in the present case it is not concerned with the lawfulness of the actions of television companies but with the legal basis for the actions of the police which was conspicuously lacking.",
"51. The Court reiterates that, where it has been shown that an interference was not in accordance with the law, it is not necessary to investigate whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 129, 13 January 2009; Sciacca, cited above, § 30, and Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006).",
"52. There has therefore been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"53. The applicant complained under Article 7 of the Convention that his conviction, first in administrative proceedings and later in criminal proceedings, amounted to double jeopardy. The Court considers that this complaint falls to be examined from the standpoint of Article 4 of Protocol No. 7 to the Convention which provides, in the relevant part, as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ”",
"A. Admissibility",
"54. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Submissions by the parties",
"55. The Government evaluated the facts of the case and concluded that the applicant had been found criminally liable in respect of acts that had been committed in a different place and time from those that had formed the basis of his administrative conviction. In addition, those offences had been different in terms of how dangerous to the public they were. The Government maintained that there had been no violation of Article 4 of Protocol No. 7.",
"56. The applicant argued that the time period during which the offences defined in Article 19.3 and 20.1 of the Code of Administrative Offences and Article 318 and 319 of the Criminal Code had been committed was the same, and that it had lasted from the moment he had arrived at the police station ( 2 p.m. ) until his departure at 7.30 p.m. Furthermore, it appeared from the domestic judgments that both the administrative and criminal offences had targeted the same police officers T., U., K., S., M. and others who had been granted victim status in the criminal proceedings. Finally, the actus reus of the above offences largely overlapped and the criminal offences did not contain any elements that had not been previously examined in the administrative proceedings. The applicant emphasised that the judge who had examined the administrative charges against him had had legal grounds to discontinue those proceedings and to refer the matter to a public prosecutor if she had considered that there were indications of a criminal offence; however, she had not chosen to do so which meant, by converse implication, that the applicant ’ s acts had not amounted to a criminal offence. Her determination of the case was therefore binding on the other public authorities.",
"2. The Court ’ s assessment",
"57. The applicant alleged a violation of the non bis in idem principle, that is to say the guarantee against the duplication of proceedings in connection with the same offence. The Court notes that the events of 27 April 2003 gave rise to two separate sets of proceedings against the applicant: in the first round of proceedings he was found guilty under the Code of Administrative Offences and ordered to pay a fine, and in the second set of proceedings he was found guilty under the Criminal Code and ordered to pay a larger fine. The Court accordingly has to examine three issues: whether the first proceedings were criminal in nature; whether the offences for which the applicant was prosecuted were the same ( idem ), and whether there was a duplication of proceedings ( bis ).",
"(a) Whether the first proceedings were criminal in nature",
"58. By the Town Court ’ s judgment of 14 May 2003, as upheld on appeal by the Regional Court on 27 May 2003, the applicant was found guilty of offences which were classified as “administrative” under domestic law. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem for the purposes of Article 4 § 1 of Protocol No. 7. Otherwise, the application of that provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” within the meaning of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, with further references ).",
"59. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22 ), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. That, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, with further references ).",
"60. As regards the classification of the offences under domestic law, the Court notes that under Articles 12.26, 19.3 and 20.1 of the Code of Administrative Offences, they were all characterised as “ administrative ” ones. As indicated above, however, the classification under domestic law is not decisive. The Court indeed recalls that the sphere defined in the Russian legal system as “ administrative ” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid., § 54, with further references).",
"61. With respect to the nature of the offences, the Court notes that the applicant was found guilty of three administrative offences: refusing to take an alcohol test, persistently refusing to obey lawful police orders and committing minor disorderly acts. However, since there was no allegation of a repetition of proceedings in respect of the first offence, the Court will focus its examination on the second and third offences. The aim of those two offences was to guarantee the protection of human dignity and public order, that is to say, the values and interests which normally fall within the sphere of protection of criminal law (compare with Sergey Zolotukhin, cited above, § 55, and Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI ). The Court reiterates that the reference to the “minor” nature of the acts did not, in itself, preclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003 ‑ X ).",
"62. The Court further recalls that the degree of severity of the measure is determined by reference to the maximum potential penalty for which the relevant law provides (see Sergey Zolotukhin, cited above, § 56). The Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty in respect of those two offences. That the applicant was eventually ordered to pay a fine does not diminish the importance of the fact that his liberty was initially at stake ( see Ezeh, cited above, § 120).",
"63. In conclusion, the general character of the offences of “persistent refusal to obey lawful police orders ” and “minor disorderly acts”, together with the severity of the potential penalty, were sufficient to bring the applicant ’ s conviction for those offences within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"(b) Whether the offences for which the applicant was prosecuted were the same ( idem )",
"64. The Court will next examine whether the applicant was prosecuted for the same offences. The applicable test has recently been clarified in the Sergey Zolotukhin judgment (cited above, §§ 78-84). The Court held that it must disregard the legal characterisation of the offences in domestic law and take the underlying factual circumstances as its focal point of comparison.",
"65. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to his unruly behaviour at the Severomorsk police station on 27 April 2003. The judgment of 14 May 2003 stated that he had uttered obscenities and been disrespectful to the police officers K., S., U., P., G. and M. The same facts formed the central element of the criminal charges against the applicant and the judgment of 8 August 2005 referred to the same behaviour (“uttered obscenities”, “ caused damage to his dignity and undermined his authority”) that had taken place on the same day at the same police station, with the same police officers having been recognised as victims and cross-examined during the trial. The criminal charges therefore encompassed the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.",
"(c) Whether there was a duplication of proceedings ( bis )",
"66. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of that provision if it has acquired the force of res judicata. This is the case when the decision is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references).",
"67. In the instant case the Town Court ’ s decision on the administrative offences was upheld on appeal and became “final” on 27 May 2003, two months before the regional prosecutor requested the Regional Court to authorise the institution of criminal proceedings against the applicant.",
"68. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the recovery of the fine imposed under Article 319 of the Criminal Code became time-barred has no bearing on the applicant ’ s allegation that he was prosecuted, tried and convicted of that charge for a second time. Accordingly, the Court considers that there was a duplication of proceedings.",
"(d) Conclusion",
"69. The Court has found that the applicant was convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed.",
"70. There has accordingly been a violation of Article 4 of Protocol No. 7.",
"III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"71. The applicant also complained under Articles 3 and 5 of the Convention that he had been unlawfully arrested and ill-treated at the police station on 27 April 2003. Since his application was only lodged on 18 April 2004, that is to say almost a year later, this part of the application is obviously out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.",
"72. Lastly, the applicant complained under Articles 6 and 13 of the Convention of certain procedural irregularities in the criminal proceedings against him. The Court has examined those complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"73. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"74. The applicant claimed 115,000 Russian roubles (RUB) – the equivalent of 2,580 euros (EUR) on the date of the submission of his claims – in respect of pecuniary damage, which comprised the legal fees paid to his defence team in the criminal proceedings and the fine of RUB 30,000. He further claimed RUB 250,000 (EUR 5,610) in respect of non-pecuniary damage.",
"75. The Government submitted that they were under no obligation to reimburse the fine because it had been lawfully imposed on the applicant. They considered that the amount of non-pecuniary damage was unreasonable.",
"76. The Court considers that the applicant incurred both pecuniary and non-pecuniary damage in connection with the duplication of proceedings against him and the broadcasting of the footage filmed at the police station. Accordingly, it awards him an aggregate amount of EUR 5,000 in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable.",
"B. Costs and expenses",
"77. The applicant also claimed EUR 450 for costs and expenses incurred before the Court.",
"78. The Government did not comment on this part of the claims.",
"79. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 450 for the proceedings before it, plus any tax that may be chargeable to the applicant.",
"C. Default interest",
"80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
239 | Muslija v. Bosnia and Herzegovina | 14 January 2014 | In August 2004, a Minor Offences Court convicted the applicant of affray, finding that at about 6.40pm on 12 February 2003 he entered the flat of his former wife, slapped her in the face and punched her in the body. He was ordered to pay a fine of 150 convertible marks (BAM). In January 2008 a Municipal Court found the applicant guilty of grievous bodily harm, finding that at about 7pm on 12 February 2003 he entered the flat of his former wife, grabbed her by the throat and hit her several times. He was given a prison sentence, but this was later converted into a fine of BAM 9,000. The applicant unsuccessfully appealed to the Constitutional Court about his two convictions. He complained that he had been tried and punished twice in respect of the same incident. | The Court held that had been a violation of Article 4 of Protocol No. 7. It found that the applicant was “convicted” in minor-offences proceedings which were to be assimilated to “criminal proceedings” within the autonomous Convention meaning of this term. After this “conviction” became final, he was found guilty of a criminal offence which related to the same conduct as that punished in the minor-offences proceedings and encompassed substantially the same facts. The Constitutional Court failed to apply the principles established in the Sergey Zolotukhin case (see above) and thus to correct the applicant’s situation. The Court therefore considered that the proceedings instituted against the applicant under the 1998 Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under the Public Order Act 2000. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969 and lives in Sarajevo.",
"A. Conviction of a minor offence",
"6. On 13 February 2003 the Kakanj police lodged a request for minor-offences proceedings to be instituted against the applicant in the Kakanj Minor Offences Court (“the Minor Offences Court”).",
"7. In a decision of 16 August 2004 the Minor Offences Court found that, at about 6.40 p.m. on 12 February 2003, the applicant had physically attacked his former wife, M.P., at her flat in Kakanj. The applicant hit M.P. in the head several times and proceeded to punch her about the body in the presence of their minor children. He was found guilty of a minor offence against public order (affray ) under section 3(1)(2 ) of the Public Order Act 2000, for which he was fined 150 convertible marks (BAM) [1]. The relevant part of the decision reads:",
"“Defendant Muslija Adnan ... is guilty in that at about 6.40 p.m. on 12 February 2003, in Rudi Čajevac street in Kakanj, entering uninvited the hallway of the flat [ of his former wife ] ... he grabbed M. by the throat ... and then, in the presence of their minor children ... slapped M. ’ s face several times and continued to punch her about the body while threatening to take the children away from her. ”",
"8. On 19 October 2004 the Zenica Cantonal Minor Offences Court upheld that decision and it became final.",
"9. On 3 August 2006 the applicant paid the fine.",
"B. Conviction of a criminal offence",
"10. On 18 September 2003 the Cantonal Prosecutor lodged an indictment against the applicant with the Kakanj Municipal Court (“the Municipal Court”) for causing grievous bodily harm to M.P.",
"11. On 9 January 2008 the Municipal Court found the applicant guilty of the criminal offence of grievous bodily harm under Article 177 §§ 1 and 2 of the Criminal Code 1998, and sentenced him to three months ’ imprisonment. In passing the sentence, the court took into account various mitigating circumstances, such as the lapse of time and the fact that the applicant had not reoffended, that he was the father of three minor children, had no previous convictions, and was unemployed. The court regarded the fact that the incident took place in the presence of the applicant ’ s and M.P. ’ s minor children as an aggravating circumstance. The relevant part of the decision reads:",
"“Defendant Muslija Adnan ... is guilty because",
"at about 7 p.m. on 12 February 2003 in Rudi Čajevac street, Kakanj, he entered the flat of his former wife, M.P. ... and grabbed her by the throat, hit her with his fist several times in the head, stomach and face, thereby causing her grievous bodily harm: a fractured lower jaw ... and a number of lighter injuries ... ”",
"12. On 7 April 2008 the Zenica Cantonal Court upheld that judgment.",
"13. At the applicant ’ s request, the prison sentence was subsequently converted to a fine in the amount of BAM 9,000. On 22 March 2011 the applicant paid the fine.",
"C. Proceedings before the Constitutional Court",
"14. On 4 June 2008 the applicant lodged a constitutional appeal complaining that the ne bis in idem principle had been breached.",
"15. On 11 January 2011 the Constitutional Court of Bosnia and Herzegovina rejected his appeal. It held that the applicant had been found guilty of a minor offence against public order (affray ) in the minor-offences proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. Although both decisions were based on the same incident, the offences were different in nature and purpose."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"16. Section 3(1)(2) of the Public Order Act 2000 ( Zakon o javnom redu i miru Zeničko-dobojskog kantona, Official Gazette of the Zenica-Doboj Canton nos. 8/00, 15/03, 11/07 and 8/08) provides that anyone who disturbs the peace in a public place by participating in a fight, or by verbally or physically attacking another person, is committing a minor offence against public order (affray). Under section 6(1) affray attracted a fine of BAM 200 - 500 or imprisonment for a period not exceeding sixty days. As of 15 July 2007, affray attracts a fine only of BAM 200 - 500.",
"17. Article 48 § 2 of the Criminal Code 1998 ( Krivični zakon Federacije Bosne i Hercegovine, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 43/98, 2/99, 15/99, 29/00 and 59/02), which was in force until 1 August 2003, provided, inter alia, that a fine imposed for a minor offence would be deducted from a sentence imposed in the criminal proceedings (BAM 50 equals 1 day in prison) if the criminal offence contained the same elements as the minor offence.",
"Article 177 § 1 of the Code provided that anyone who inflicted grievous bodily harm on another or impaired another ’ s health would be sentenced to imprisonment for a term of no less than six months and not exceeding five years. If that act was committed against a parent of a common child, it was punishable by a term of imprisonment of no less than one year and not exceeding five years (Article 177 § 2). The competent court could impose a sanction below the prescribed minimum in the event that there were mitigating circumstances (Article 41 § 2 ).",
"18. On 30 March 2012, the Constitutional Court, sitting in a plenary session, found a violation of the ne bis in idem principle in a case almost identical to the present one (see decisions no. AP 133/09 ). In its reasoning the court directly relied on this Court ’ s case-law established in Sergey Zolotukhin v. Russia ( [GC], no. 14939/03, ECHR 2009) and Maresti v. Croatia (no. 55759/07, 25 June 2009).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"19. The applicant complained that he had been tried and punished twice for the same offence in respect of an incident that had occurred at about 6.40 p.m. on 12 February 2003 in the flat of his former wife. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"20. The Government contested that argument.",
"A. Admissibility",
"21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"22. The applicant argued that in both the minor-offences proceedings and the criminal proceedings he had been found guilty in respect of the same incident and the same facts and that, irrespective of the different classification of the two offences under domestic law, this had violated his right not to be tried and punished twice for the same offence.",
"23. The Government argued that the applicant ’ s conduct during the incident of 12 February 2003 had constituted two different offences with essentially different elements and that the applicant had therefore been convicted in two different sets of proceedings by two different courts. In the minor-offences proceedings, he had been found guilty of disturbing public order and peace because he had verbally and physically attacked his former wife in the presence of their minor children and neighbours. The purpose of the sanction in those proceedings had been to protect the well-being of citizens and to safeguard public order and the peace in a broader sense. Moreover, the penalty imposed in the minor-offences proceedings was not severe enough for an offence that was serious enough to be qualified as criminal in nature: the Minor Offences Court imposed a minimal fine of BAM 150 on the applicant.",
"The criminal proceedings, on the other hand, concerned the consequence of the applicant ’ s actions: grievous bodily harm inflicted on M.P., of which the Minor Offences Court had not been aware. The assault itself could not be seen as a minor offence, so it was dealt with in criminal proceedings. Inflicting grievous bodily harm could not be seen as identical to the offence of disturbing public order and the peace, for which the applicant was punished in the proceedings before the Minor Offences Court.",
"2. The Court ’ s assessment",
"(a) Whether the first penalty was criminal in nature",
"24. The Court observes that on 16 August 2004 the applicant was found guilty in proceedings conducted under the Public Order Act 2000 and fined BAM 150. Under the legal classification in Bosnia and Herzegovina it is not entirely clear whether “minor offences” are to be regarded as “criminal”. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7.",
"25. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results that are incompatible with the object and purpose of the Convention (see, for example, Storbråten v. Norway (dec.), no. 12277/04, ECHR 2007 ‑ ... ( extracts), with further references ). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ ...; and Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007).",
"26. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X, and Jussila v. Finland [GC], no. 73 053/01, §§ 30-31, ECHR 2006 ‑ ... ).",
"27. The domestic legal classification of the offence at issue was a “ minor offence ” under section 3(1)(2 ) of the Public Order Act 2000 (see paragraph 16 above). Nevertheless, the Court has previously found that certain offences have a criminal connotation even though they are regarded under relevant domestic law as too trivial to be governed by criminal law and procedure (see Ziliberberg v. Moldova, no. 61821/00, §§ 32-35, 1 February 2005; Menesheva v. Russia, no. 59261/00, § 96, ECHR 2006 ‑ ...; and Maresti, cited above, § 58 ).",
"28. The purpose of including the offence at issue in the Public Order Act 2000 was to guarantee the protection of human dignity and public order – values and interests that normally fall within the sphere of protection of criminal law. The relevant provision of the Act was directed towards all citizens, rather than towards a group with a special status. Any reference to the “minor” nature of the acts does not, in itself, exclude its classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh, cited above, § 104). Lastly, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105).",
"29. As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination, but it cannot diminish the importance of what was initially at stake (ibid., § 120). The Court observes that at the relevant time, section 6(1) of the Public Order Act 2000 provided for sixty days ’ imprisonment as the maximum penalty, even if the applicant was eventually sentenced to a fine in the amount of BAM 150.",
"30. It is a common feature of all criminal-law systems that some criminal offences are liable to fines while others entail deprivation of liberty. In the present case, the prison sentence imposed on the applicant in the criminal proceedings was eventually converted to a fine in the amount of BAM 9,000. The two criteria, the nature of the offence and the nature and degree of severity of the penalty, are alternative and not necessarily cumulative. It is sufficient that the offence in question is by its nature criminal from the point of view of the Convention (see Lauko v. Slovakia, 2 September 1998, § 56, Reports of Judgments and Decisions 1998 ‑ VI; Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; and Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 49, 14 January 2010).",
"31. In the light of the above considerations, the Court concludes that the nature of the offence in question was such as to bring the applicant ’ s conviction of 16 August 2004 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"(b) Whether the offences for which the applicant was prosecuted were the same ( idem )",
"32. In the case of Sergey Zolotukhin v. Russia ( cited above, §§ 70-78 ), the Court observed that the body of case-law that it had accumulated throughout the history of application of Article 4 of Protocol No. 7 demonstrated the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. Seeking to put an end to this legal uncertainty, the Court decided to provide a harmonised interpretation of the notion of the “same offences” – the idem element of the ne bis in idem principle.",
"33. In the Sergey Zolotukhin case (§ 82) the Court took the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same.",
"34. Turning to the present case, the Court notes that in both the minor-offences proceedings and the criminal proceedings the applicant was found guilty of the same conduct towards the same victim and within the same time frame (see paragraphs 7 and 11 above). In 2011 the Constitutional Court rejected his appeal applying the pre- Zolotukhin case-law. Its approach had since evolved (see paragraph 18 above). The Court further notes that the definition of the minor offence under section 3(1)(2 ) of the Public Order Act 2000 does not, as such, include inflicting bodily harm, whereas that element is crucial for the criminal offence of inflicting grievous bodily harm under Article 177 of the 1998 Criminal Code. However, in its decision, the Minor Offences Court expressly stated that the applicant was guilty of, inter alia, slapping M.P. and of punching her about her entire body. The physical attack on M.P. thus constituted an element of the minor offence of which the applicant was found guilty (in this connection, see Maresti, cited above, § 63). In the criminal proceedings before the Municipal Court the applicant was again found guilty of, inter alia, hitting M.P. The events described in the decisions adopted in both sets of proceedings took place at about 6.40 p.m. on 12 February 2003 in M.P. ’ s flat in Kakanj. It is obvious that both decisions concerned exactly the same event and the same acts, regardless of the fact that the decision of the Municipal Court stated that the event took place at about 7 p.m.",
"35. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7.",
"(c) Whether there was a duplication of proceedings ( bis )",
"36. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references).",
"37. In the present case, the Minor Offences Court delivered its decision on 16 August 2004 and it became final on 19 October 2004. The criminal proceedings were instituted on 18 September 2003 while the minor-offences proceedings were still pending. Thus the two proceedings were conducted concurrently. At the time the minor-offences conviction became final and required the force of res iudicata, the criminal proceedings were pending before the first-instance court. In these circumstances, the Court considers that the Municipal Court should have terminated the criminal proceedings following the delivery of a “final” decision in the first proceedings (see, Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002 ‑ IX (extracts) and Sergey Zolotukhin, cited above, § 115 ). Furthemore, when deciding the applicant ’ s appeal the Constitutional Court failed to bring its case-law in line with this Court ’ s approach taken in the Zolotukhin case.",
"(d) Conclusion",
"38. The applicant was “convicted” in minor-offences proceedings which are to be assimilated to “criminal proceedings” within the autonomous Convention meaning of this term. After this “conviction” became final, he was found guilty of a criminal offence which related to the same conduct as that punished in the minor-offences proceedings and encompassed substantially the same facts. The Constitutional Court failed to apply the principles established in the Zolotukhin case and thus to correct the applicant ’ s situation.",
"39. In the light of the foregoing, the Court considers that the proceedings instituted against the applicant under Article 177 § 1 of the 1998 Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under section 3(1)(2 ) of the Public Order Act 2000.",
"40. There has therefore been a violation of Article 4 of Protocol No. 7.",
"II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"41. The Court has examined the other complaints submitted by the applicant under Articles 6 and 14 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"42. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"43. The applicant claimed 1,200 euros (EUR) in respect of non-pecuniary damage.",
"44. The Government considered the amount claimed unjustified.",
"45. In the circumstances of the present case the Court considers that a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction.",
"B. Costs and expenses",
"46. The applicant also claimed EUR 1,163 for the costs and expenses incurred before this Court.",
"47. The Government considered the amounts claimed unjustified.",
"48. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the requested sum of EUR 1,163 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to him on this amount.",
"C. Default interest",
"49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
240 | Grande Stevens and Others v. Italy | 4 March 2014 (Grand chamber) | The applicants were two companies and their chairman, together with the authorised representative of one of the companies, and a lawyer who had advised them. The case concerned their appeal against the administrative penalty imposed on them by the Italian Companies and Stock Exchange Commission (“Consob4”) and the criminal proceedings to which they were subject after having been accused of market manipulation in the context of a financial operation involving the car manufacturer FIAT. The applicants complained, inter alia, that criminal proceedings had been brought against them in respect of events for which they had already received an administrative penalty. The Italian Government submitted that Italy had made a declaration to the effect that Articles 2 to 4 of Protocol No. 7 applied only to offences, proceedings and decisions classified as criminal under Italian law, which was not the case for the offences proscribed by Consob. | First the Court noted that the reservation made by Italy did not contain “a brief statement of the law concerned”, contrary to the requirements of Article 57 of the Convention. A reservation which did not refer to, or mention, those specific provisions of the domestic legal order which exclude offences or procedures from the scope of Article 4 of Protocol No. 7 did not afford to a sufficient degree the guarantee that they did not go beyond the provision expressly excluded by the contracting State. Consequently, the Court found that the reservation relied upon by Italy did not meet the requirements of Article 57 and was accordingly invalid. As to the merits, the Court concluded, under Article 6 (right to a fair trial) of the Convention, that there were indeed grounds for considering that the procedure before Consob concerned “a criminal charge”. Equally, the sentences imposed by Consob and partly reduced by the court of appeal had become final in June 2009, when the Court of Cassation had delivered its judgments. Accordingly, the applicants ought to have been considered as having already been convicted by a final judgment. In spite of that, the new criminal proceedings which had been brought against them in the meantime were maintained, and resulted in judgments at first and second instance. In addition, proceedings before Consob and the criminal courts concerned the same conduct by the same persons on the same date. It followed that the new proceedings concerning a second “offence” originated in identical events to those which had been the subject-matter of the first and final conviction, which in itself amounted to a violation of Article 4 of Protocol No. 7. It was therefore for Italy to ensure that the new criminal proceedings brought against the applicants in violation of this provision, and which were still pending, according to the most recent information received, against the third and fifth applicants, were closed as rapidly as possible and without adverse consequences for the applicants. Article 4 of Protocol No. 7 in the case of Häkkä, where it considered that the applicant had a real possibility to prevent double jeopardy by first seeking rectification and then appealing against the taxation decisions. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. A list of the applicant parties is appended.",
"A. The context of the case",
"6. At the relevant time Mr Gianluigi Gabetti was the chairman of the two applicant companies and Mr Virgilio Marrone was the authorised representative ( procuratore ) of the applicant company Giovanni Agnelli & C. s.a.a.",
"7. On 26 July 2002 the public limited company FIAT ( Fabbrica Italiana Automobili Torino ) signed a financing agreement ( prestito convertendo ) with eight banks. That contract was due to expire on 20 September 2005 and stipulated that, should FIAT fail to reimburse the loan, the banks could offset their claim by subscribing to an increase in the company ’ s capital. Thus, the banks would have obtained 28% of FIAT ’ s share capital, while the holdings of the public limited company IFIL Investments (which subsequently, on 20 February 2009, became Exor s.p.a ., the name by which it will be referred to hereafter) would have decreased from 30.06% to about 22%.",
"8. Mr Gabetti wished to obtain legal advice on the best way to ensure that Exor remained the controlling shareholder in FIAT, and to this end he contacted a lawyer specialising in company law, Mr Grande Stevens. He considered that one possibility would be to renegotiate an equity swap (that is, a contract allowing a share ’ s performance to be exchanged against an interest rate, without having to advance money), dated 26 April 2005 and based on approximately 90 million FIAT shares, concluded by Exor with an English merchant bank, Merrill Lynch International Ltd, which was due to expire on 26 December 2006. In Mr Grande Stevens ’ s opinion, this would be one way to prevent the launch of a takeover bid with regard to the FIAT shares.",
"9. Without mentioning Merrill Lynch International Ltd for fear of breaching his duty of confidentiality, on 12 August 2005 Mr Grande Stevens asked the National Companies and Stock Exchange Commission ( Commissione Nazionale per le Società e la Borsa – “the CONSOB”, which in the Italian legal system, has the task, inter alia, of protecting investors and ensuring the transparency and development of the stock markets) whether, in the scenario he envisaged, a takeover bid could be avoided. At the same time Mr Grande Stevens began making enquires with Merrill Lynch International Ltd about the possibility of amending the equity swap contract.",
"10. On 23 August 2005 the CONSOB asked Exor and Giovanni Agnelli to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks, any new fact concerning FIAT and anything that might explain the market fluctuations in FIAT shares.",
"11. Mr Marrone alleges that he was on leave on that date. He had informed Mr Grande Stevens of the CONSOB ’ s request and had sent him a copy of it. Mr Marrone submits that he was not involved in drafting the press releases described in paragraphs 13 and 14 below.",
"12. Mr Gabetti submits that on 23 August 2005 he was in hospital in the United States. He had received a draft press release and had contacted Mr Grande Stevens by telephone; the lawyer had confirmed to him that, given the significant number of elements that remained uncertain, renegotiation of the equity swap contract could not be considered as a relevant and currently available option. In those circumstances, Mr Gabetti approved the draft press release.",
"13. The press release issued in response [to the CONSOB ’ s query], approved by Mr Grande Stevens, merely indicated that Exor had “neither instituted nor examined initiatives with regard to the expiry of the financing contract” and that it wished “to remain FIAT ’ s reference shareholder”. No mention was made of the possible renegotiation of the equity swap contract with Merrill Lynch International Ltd, which, in the absence of a clear factual and legal basis, the applicants considered merely as one possible future scenario.",
"14. The Giovanni Agnelli Company confirmed Exor ’ s press release.",
"15. From 30 August to 15 September 2005 Mr Grande Stevens continued his negotiations with Merrill Lynch International Ltd, exploring the options for amending the equity swap contract.",
"16. On 14 September 2005, in the course of an Agnelli family meeting, it was decided that the draft text being studied by Mr Grande Stevens ought to be submitted for approval by the Exor board of management. On the same day, the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable Exor to acquire FIAT shares.",
"17. On 15 September 2005, in execution of the decisions taken by their respective boards of management, Exor and Merrill Lynch International Ltd concluded the agreement on amending the equity swap contract.",
"18. On 17 September 2005, in response to the question posed to it by Mr Grande Stevens on 12 August 2005 (see paragraph 9 above), the CONSOB indicated that, in the scenario envisaged, there was no obligation to launch a takeover bid.",
"19. On 20 September 2005 FIAT increased its share capital; the new shares were acquired by the eight banks in compensation for the sums owed to them. On the same date the agreement amending the equity swap contract took effect. In consequence, Exor continued to hold a 30% stake in FIAT.",
"B. The proceedings before the CONSOB",
"20. On 20 February 2006 the CONSOB ’ s Markets and Economic Opinions Division – Insider Trading Office ( Divisione mercati e consulenza economica – ufficio Insider Trading – hereafter the “IT Office”) accused the applicants of breaching Article 187 ter § 1 of Legislative Decree no. 58 of 24 February 1998. That article, entitled “Market Manipulation”, provides:",
"“Without prejudice to criminal penalties where the conduct amounts to an offence, any person who, through means of information, including Internet or any other means, disseminates false or misleading information, news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from 20,000 to 5,000,000 euros (EUR).” [1]",
"21. According to the IT Office, the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of 24 August 2005 were issued, and accordingly it was abnormal that they had contained no mention of it. The applicants were invited to submit their defence.",
"22. The IT Office then transmitted the file to the CONSOB ’ s Administrative Sanctions Directorate ( ufficio sanzioni amministrative – hereafter, “the Directorate”), accompanied by a report ( relazione istruttoria ) dated 13 September 2006, which set out the evidence against the accused and their arguments in reply. According to that report, the arguments submitted in their defence by the applicants were not such as to enable the file to be closed.",
"23. The Directorate communicated this report to the applicants and invited them to submit in writing, within a thirty-day period that would expire on 23 October 2006, those arguments that they considered necessary for their defence. In the meantime, the IT Office continued to examine the applicants ’ case, by obtaining oral statements and analysing the documents received on 7 July 2006 from Merrill Lynch International Ltd. On 19 October 2006 it transmitted a “supplementary note” to the Directorate in which it stated that the new documents examined by it were not such as to alter its conclusions. On 26 October 2006 the applicants received a copy of the supplementary note of 19 October 2006 and its appendices; they were given a further thirty-day deadline within which to submit any comments.",
"24. Without communicating it to the applicants, the Directorate presented its report (dated 19 January 2007 and containing its conclusions) to the Commission – the CONSOB proper –, that is, to the body responsible for deciding on possible penalties. At the relevant time the Commission was made up of a chairman and four members, appointed by the President of the Republic on a proposal ( su proposta ) from the President of the Council of Ministers. Their term of office was for five years and could be renewed only once.",
"25. By resolution no. 15760 of 9 February 2007, the CONSOB imposed the following administrative fines on the applicants:",
"- EUR 5,000,000 in respect of Mr Gabetti,",
"- EUR 3,000,000 in respect of Mr Grande Stevens,",
"- EUR 500,000 in respect of Mr Marrone,",
"- EUR 4,500,000 in respect of the company Exor,",
"- EUR 3,000,000 in respect of the company Giovanni Agnelli.",
"26. Mr Gabetti, Mr Grande Stevens and Mr Marrone were banned from administering, managing or supervising listed companies for periods of six, four and two months respectively.",
"27. The CONSOB held, in particular, that the file showed that on 24 August 2005, date of the impugned press releases, the plans to maintain a 30% stake in FIAT ’ s capital on the basis of renegotiation of the equity swap contract with Merrill Lynch International Ltd had already been studied and were being put in place. It followed that the press releases falsely represented ( rappresentazione falsa ) the situation at the time. The CONSOB also emphasised the positions held by the persons concerned, the “objective gravity” of the offence and the existence of malicious intent.",
"C. Application to the appeal court to have the penalties set aside",
"28. The applicants applied to the Turin Court of Appeal seeking to have these penalties set aside. They alleged, inter alia, that the CONSOB ’ s rules were illegal, since, contrary to the requirements of Article 187 septies of Legislative Decree no. 58 of 1998 (see paragraph 57 below), they did not comply with the principle of an adversarial examination of the case.",
"29. Mr Grande Stevens further noted that the CONSOB had accused and punished him for being involved in publication of the press release of 24 August 2005 as the executive director of Exor. Before the CONSOB, he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for the Agnelli group. Before the appeal court, Mr Grande Stevens maintained that, since he was not an executive director, he could not have taken part in the decision to publish the impugned press release. In pleadings of 25 September 2007, Mr Grande Stevens requested that, should the appeal court consider the documents placed in the case file to be insufficient or unusable, it summon witnesses for questioning “on the facts set out in the above-mentioned documents”. He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence. In pleadings of the same date, Mr Marrone named two witnesses whose statements would prove that he had not taken part in drafting the press releases, and stated that the appeal court could, if necessary ( ove occorresse ), question them.",
"30. In judgments deposited with the registry on 23 January 2008, the Turin Court of Appeal reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants, as follows:",
"- EUR 600,000 in respect of Giovanni Agnelli s.a.a .;",
"- EUR 1,000,000 in respect of Exor s.p.a .;",
"- EUR 1,200,000 in respect of Mr Gabetti.",
"The heading of the judgments delivered in respect of Mr Gabetti, Mr Marrone and Exor S.p.a. indicated that the court of appeal had met in private ( riunita in camera di consiglio ). The “procedure” part of the judgments issued in respect of Mr Grande Stevens and Giovanni Agnelli & C. S.a.s. mentioned that the parties had been summoned to the deliberations ( disposta la comparizione delle parti in camera di consiglio ).",
"31. The length of the ban on assuming responsibility for the administration, management or supervision of companies listed on the stock exchange was reduced from six to four months in respect of Mr Gabetti.",
"32. The court of appeal dismissed the applicants ’ other complaints in their entirety. It noted, inter alia, that even after the file had been transmitted to the Directorate, the IT Office had been entitled to continue its investigative activities, as the 210-day deadline provided for the CONSOB ’ s deliberations had not been binding. Furthermore, the adversarial principle was complied with if, as in the present case, those charged had been informed of the new evidence obtained by the IT Office and had had an opportunity to submit their replies.",
"33. The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by Article 187 ter of Legislative Decree no. 58 of 1998 and reported the case to the prosecuting authorities, alleging that the criminal offence described in Article 185 § 1 of the same decree had been committed. Under the terms of this provision,",
"“Anyone who disseminates false information, carries out simulated transactions or uses other ploys ( artifizi ) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by between one and six years ’ imprisonment and a fine of 20,000 to 5,000,000 euros.”",
"34. According to the court of appeal, those two provisions had as their subject-matter the same conduct (the “dissemination of false information”) and pursued the same aim (to prevent market manipulation), but differed with regard to the situation of risk alleged to have been generated by this conduct: in respect of Article 187 ter, it was sufficient in itself to have given false or misleading indications concerning financial instruments, while Article 185 further required that that information had been such as to trigger a significant change in the price of the instruments in question. As the Constitutional Court had indicated in its order no. 409 of 12 November 1991, it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties. In addition, Article 14 of Directive 2003/6/EC (see paragraph 60 below), which invited the member States of the European Union to apply administrative sanctions against persons responsible for manipulating the market, contained in turn the phrase “without prejudice to the right of Member States to impose criminal sanctions”.",
"35. On the merits, the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB (namely, that this plan already existed one month prior to 24 August 2005) had been reasonable in the light of the established facts and the conduct of the persons concerned.",
"36. As to Mr Grande Stevens, it was true that he was not an executive director of Exor s.p.a. Nonetheless, the administrative offence punishable under Article 187 ter of Legislative Decree no. 58 of 1998 could be committed by “anyone”, and therefore by a person in any capacity whatsoever; Mr Grande Stevens had indeed participated in the decision-making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies.",
"D. Appeal on points of law",
"37. The applicants appealed on points of law. In the third and fourth grounds of their points of appeal, they alleged, inter alia, that there had been a breach of the principles of a fair hearing, enshrined in Article 111 of the Constitution, because, in particular: the investigative phase of the CONSOB proceedings had not been adversarial in nature; there had been a failure to transmit the Directorate ’ s report to the accused; in the applicants ’ view, it had been impossible to file pleadings with or be heard in person by the Commission; the IT Office had continued its investigation and transmitted a supplementary note after expiry of the time-limit set for that purpose.",
"38. By judgments of 23 June 2009, the text of which was deposited with the registry on 30 September 2009, the Court of Cassation dismissed their appeals on points of law. It considered, in particular, that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB, noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions. The fact that the applicants had not been questioned and that they had not received the Directorate ’ s conclusions had not been in breach of that principle, since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings, and not to proceedings to impose administrative sanctions.",
"E. The criminal proceedings against the applicants",
"39. Under Legislative Decree no. 58 of 1998, the applicants ’ impugned conduct could be the subject-matter not only of an administrative sanction, imposed by the CONSOB, but also of the criminal penalties provided for in Article 185 § 1, cited in paragraph 33 above.",
"40. On 7 November 2008 the applicants were committed for trial before the Turin District Court. They were accused of having stated, in the press releases of 24 August 2005, that Exor wished to remain FIAT ’ s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract, although the agreement amending the equity swap had already been examined and concluded, information that had been withheld in order to avoid a probable fall in the FIAT share price.",
"41. CONSOB applied to be joined to the proceedings as a civil party, a possibility open to it under Article 187 undecies of Legislative Decree no. 58 of 1998.",
"42. After 30 September 2009, the date on which the judgment dismissing the applicants ’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry (see paragraph 38 above), the applicants requested that the criminal proceedings against them be discontinued, by virtue of the non bis in idem rule. In particular, at the hearing of 7 January 2010, they argued that the relevant provisions of Legislative Decree no. 58 of 1998 and Article 649 of the Code of Criminal Procedure (“the CCP” - see paragraph 59 below) were unconstitutional, on account of their alleged incompatibility with Article 4 of Protocol No. 7.",
"43. The representative of the prosecuting authorities opposed this objection, alleging that “double proceedings” (administrative and criminal) were imposed by Article 14 of Directive 2003/6/EC of 28 January 2003 (see paragraph 60 below), which the Italian legislature had transposed by enacting Articles 185 and 187 ter of Legislative Decree no. 58 of 1998.",
"44. The Turin District Court did not immediately rule on the ancillary question of constitutionality raised by the defence. It ordered an expert report describing the fluctuations in FIAT shares between December 2004 and April 2005 and evaluating the effects of the press releases of 24 August 2005 and the information made public on 15 September 2005.",
"45. By a judgment of 21 December 2010, the text of which was deposited with the registry on 18 March 2011, the Turin District Court acquitted Mr Marrone on the ground that he had not been involved in the publication of the press releases, and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets. It noted that the fact that the press releases contained false information had already been punished by the administrative body. In the court ’ s view, the applicants ’ impugned conduct had, probably, been aimed at concealing the renegotiation of the equity swap contract from the CONSOB, and not at increasing FIAT ’ s share price.",
"46. The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill-founded. It noted that Italian law (section 9 of Law no. 689 of 1981) prohibited “double proceedings” ( doppio giudizio ), criminal and administrative, in respect of the “same act”. However, Articles 185 and 187 ter of Legislative Decree no. 58 of 1998 did not punish the same act: only the criminal provision (Article 185) required that the conduct be such as to cause a significant change in the value of financial instruments (it referred to judgment no. 15199 of the Court of Cassation (Sixth Section), of 16 March 2006). In addition, application of the criminal provision required the existence of malicious intent, while the administrative provision was applicable as soon as culpable conduct was established. Moreover, the criminal proceedings which had followed the imposition of the financial penalty provided for by Article 187 ter of Legislative Decree no. 58 of 1998 were authorised by Article 14 of Directive 2003/6/EC.",
"47. As to the case-law of the Court cited by the applicants ( Gradinger v. Austria (23 October 1995, Series A no. 328-C), Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009 ), Maresti v. Croatia (no. 55759/07, 25 June 2009) and Ruotsalainen v. Finland (no. 13079/03, 16 June 2009)), it was not relevant to this case, since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or (as in the Ruotsalainen case) were for a sum higher than the criminal fine.",
"48. The public prosecutor ’ s office appealed on points of law, alleging that the offence with which the applicants had been charged was one “of danger” ( reato di pericolo ) and not “of damage” ( reato di danno ). It could therefore be committed even in the absence of damage having been sustained by the shareholders.",
"49. On 20 June 2012 the Court of Cassation allowed in part the prosecuting authorities ’ appeal on points of law and quashed the acquittal of the companies Giovanni Agnelli and Exor, and those of Mr Grande Stevens and Mr Gabetti. However, it upheld the acquittal of Mr Marrone, given that he had not taken part in the impugned conduct.",
"50. By a judgment of 28 February 2013, the Turin Court of Appeal convicted Mr Gabetti and Mr Grande Stevens of the offence set out in Article 185 § 1 of Legislative Decree no. 58 of 1998, considering it highly probable that, had the false information included in the press release of 24 August 2005 not been issued, the value of FIAT ’ s shares would have fallen much more sharply. However, it acquitted the companies Exor and Giovanni Agnelli, holding that no criminal acts could be imputed to them.",
"51. The court of appeal held that there was no appearance of a violation of the ne bis in idem principle, thus endorsing the main thrust of the Turin District Court ’ s reasoning.",
"52. According to the information provided by the Government on 7 June 2013, Mr Gabetti and Mr Grande Stevens appealed on points of law against that judgment, and the proceedings were still pending at that date. In their appeals, these two applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of Article 649 of the Code of Criminal Procedure.",
"..."
] | [
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"87. The applicants alleged that the proceedings before the CONSOB had not been fair, and complained that that body lacked impartiality and independence.",
"They relied on Article 6 of the Convention, the relevant parts of which read:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"... ”",
"88. The Government contested the applicants ’ position.",
"A. Admissibility",
"1. Whether Article 6 of the Convention applies in its criminal head",
"(a) The parties ’ submissions",
"i. The Government",
"89. The Government contended that the proceedings before the CONSOB did not relate to a “criminal charge” against the applicants. They noted that the offence prescribed by Article 187 ter of Legislative Decree no. 58 of 1998 was clearly classified as “administrative” under both domestic and European law; [the corresponding penalty] could be imposed by an administrative body at the close of administrative proceedings.",
"90. As to the nature of the offence, it included any conduct, even that of mere negligence, which was likely to provide erroneous signals or information to investors, without it being necessary that this be likely to trigger a significant change in the financial markets. It protected investors against any potential risk that might influence their choices and thus referred to interests other than those usually protected by criminal law. Finally, the sanctions that could be imposed affected only the assets of the person concerned and/or his ability to exercise managerial functions, and under no circumstances could they lead to a custodial sentence, even in the event of non-payment. They were not mentioned in an individual ’ s criminal record and usually concerned professional operators in the financial system rather than the population as a whole.",
"91. Moreover, the amount of the fines had been proportionate to the guilty party ’ s resources and financial strength; the present case concerned a financial operation which was aimed at gaining control of one of the largest vehicle manufactures in the world, and had cost more than EUR 500,000,000. In addition, the fines, the possible confiscation of the assets used to commit the office and the prohibition on exercising managerial functions were essentially intended to restore market confidence and reassure investors, by targeting the elements which had made it possible for the administrative offence to be committed (on this point, they also referred to the aims pursued by Directive 2003/6/EC). They were intended to make reparation and compensate for financial damage, and to prevent the guilty party from benefiting from the illegal activities. Furthermore, in the case of Spector Photo Group ( Spector Photo Group NV v Commissie voor het Bank, Financie -en Assurantiewezen, C-45/08., 23 December 2009), the European Court of Justice (ECJ) had accepted the coexistence, in this sector, of administrative and criminal sanctions.",
"ii. The applicants",
"92. The applicants considered that although they were classified as “administrative” in domestic law, the sanctions imposed by the CONSOB ought to be considered as “criminal”, in the autonomous meaning of this concept in the Court ’ s case-law. The ECJ ’ s judgment in the case of Spector Photo Group, cited by the Government, did not take the opposite line, but merely stated that if a Member State had introduced the possibility of a criminal financial sanction, it was not necessary, for the purposes of assessing whether the administrative sanction was effective, proportionate and dissuasive, to take account of the level of that sanction. Moreover, in its judgment of 26 February 2013 in case C-617/10 ( Åklagaren v. Hans Åkerberg Fransson ), the ECJ had confirmed the following principles: (a) the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter; (b) Article 50 of the Charter (guaranteeing the ne bis in idem principle) presupposes that the measures which are adopted against a defendant are of a criminal nature; (c) for the purpose of assessing whether tax penalties are criminal in nature, it is necessary to consider the legal classification of the offence under national law, the very nature of the offence, and the degree of severity of the penalty that the person concerned is liable to incur.",
"93. In the present case, the seriousness of the sanctions was clear, since the maximum sum that could be imposed was EUR 5,000,000. This primary sanction was supplemented by secondary penalties, such as temporary loss of entitlement (of up to three years) to hold administrative, managerial or supervisory roles in listed companies, temporary suspension (of up to three years) from professional bodies, and confiscation of the proceeds of the office and the assets used to commit it. Referring to the Court ’ s case-law in this area (in particular Dubus S.A. v. France, no. 5242/04, 11 June 2009; Messier v. France, no. 25041/07, 30 June 2001; and Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, 27 September 2011), the applicants concluded that Article 6 was applicable in its criminal limb.",
"(b) The Court ’ s assessment",
"94. The Court reiterates its established case-law that, in determining the existence of a “criminal charge”, it is necessary to have regard to three factors: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” ( see Jussila v. Finland [GC], no. 73053/01, §§ 30 and 31, ECHR 2006-XIII, and Zaicevs v. Latvia, no. 65022/01, § 31, ECHR 2007-IX (extracts)).",
"95. In the present case, the Court first observes that the market manipulations with which the applicants were accused did not constitute a criminal offence in Italian law. Such conduct was in effect punished by a penalty which was classified as “administrative” by Article 187 ter § 1 of Legislative Decree no. 58 of 1998 (see paragraph 20 above). However, this was not decisive for the purposes of the applicability of Article 6 of the Convention in its criminal head, as the indications furnished by the domestic law have only a relative value (see Öztürk v. Germany, 21 February 1984, § 52, Series A no. 73, and Menarini Diagnostics S.r.l. , cited above, § 39).",
"96. As to the nature of the offence, it appears that the provisions which the applicants were accused of breaching were intended to guarantee the integrity of the financial markets and to maintain public confidence in the security of transactions. The Court reiterates that the CONSOB, an independent administrative body, has the task of protecting investors and ensuring the effectiveness, transparency and development of the stock markets (see paragraph 9 above). These are general interests of society, usually protected by criminal law (see, mutatis mutandis, Menarini Diagnostics S.r.l. , cited above, § 40; see also Société Stenuit v. France, report of the European Commission of Human Rights, 30 May 1991, § 62, Series A no. 232 ‑ A). In addition, the Court considers that the fines imposed were essentially intended to punish, in order to prevent repeat offending. They had therefore been based on rules whose purpose was both deterrent, namely to dissuade the applicants from resuming the activity in question, and punitive, since they punished unlawful conduct (see, mutatis mutandis, Jussila, cited above, § 38). Thus, they were not solely intended, as the Government claimed (see paragraph 91 above), to repair damage of a financial nature. In this respect, it should be noted that the penalties were imposed by the CONSOB on the basis of the gravity of the impugned conduct, and not of the harm caused to investors.",
"97. As to the nature and severity of the penalty which was “likely to be imposed” on the applicants (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003-X), the Court, like the Government (see paragraph 90 above), notes that the fines in question could not be replaced by a custodial sentence in the event of non ‑ payment (see, a contrario, Anghel v. Romania, no. 28183/03, § 52, 4 October 2007). However, the fine which the CONSOB was entitled to impose could go up to EUR 5,000,000 (see paragraph 20 above), and this ordinary maximum amount could, in certain circumstances, be tripled or fixed at ten times the proceeds or profit obtained through the unlawful conduct (see paragraph 53 above). Imposition of the above-mentioned pecuniary administrative sanctions entails the temporary loss of their honour for the representatives of the companies involved, and, if the latter are listed on the stock exchange, their representatives are temporarily forbidden from administering, managing or supervising listed companies for periods ranging from two months to three years. The CONSOB may also prohibit listed companies, management companies and auditing companies from engaging the services of the offender, for a maximum period of three years, and request professional associations to suspend, on a temporary basis, the individual ’ s right to carry out his or her professional activity (see paragraph 54 above). Lastly, the imposition of financial administrative sanctions entails confiscation of the proceeds or profits of the unlawful conduct and of the assets which made it possible (see paragraph 56 above).",
"98. It is true that in the present case the maximum penalties were not imposed, the Turin Court of Appeal having reduced some of the fines imposed by the CONSOB (see paragraph 30 above), and no confiscations having been ordered. However, the criminal connotation of proceedings depends on the degree of severity of the penalty to which the person concerned is a priori liable (see Engel and Others, cited above, § 82), and not the severity of the penalty ultimately imposed (see Dubus S.A., cited above, § 37). Furthermore, in the present case the applicants had ultimately received fines ranging from EUR 500,000 to 3,000,000, and Mr Gabetti, Mr Grande Stevens and Mr Marrone had been prohibited from administering, managing or supervising listed companies for periods ranging from two to four months (see paragraphs 25 - 26 and 30 - 31 above). This last penalty was such as to compromise the integrity of the persons concerned (see, mutatis mutandis, Dubus S.A., loc. ult. cit. ), and, given their amount, the fines were of undeniable severity and had significant financial implications for the applicants.",
"99. In the light of the above, and taking account of the severity of the fines imposed and of those to which the applicants were liable, the Court considers that the penalties in question, though their severity, were criminal in nature (see, mutatis mutandis, Öztürk, cited above, § 54, and, a contrario, Inocêncio v. Portugal ( dec. ), no. 43862/98, ECHR 2001 ‑ I).",
"100. Moreover, the Court also reiterates that, with regard to certain French administrative authorities which have jurisdiction in economic and financial law and enjoy sentencing powers, it has held that the criminal limb of Article 6 applied, in particular, with regard to the Disciplinary Offences (Budget and Finance) Court ( Guisset v. France, no. 33933/96, § 59, ECHR 2000 ‑ IX), the Financial Markets Board ( Didier v. France ( dec. ), no. 58188/00, 27 August 2002), the Competition Commission ( Lilly France S.A. v. France ( dec. ), no. 53892/00, 3 December 2002), the sanctions committee of the financial market supervisory authorities ( Messier v. France ( dec. ), no. 25041/07, 19 May 2009), and the Banking Commission ( Dubus S.A., cited above, § 38). The same finding was made in respect of the Italian regulatory authority responsible for competition and the market (the AGCM – Autorità Garante della Concorrenza e del Mercato; see Menarini Diagnostics S.r.l. , cited above, § 44).",
"101. After noting and giving due weight to the various aspects of the case, the Court considers that the fines imposed on the applicants were criminal in nature, with the result that Article 6 § 1 is applicable in this case under its criminal head (see, mutatis mutandis, Menarini Diagnostics S.r.l. , loc. ult. cit. ).",
"...",
"B. Merits",
"1. Whether the proceedings before the CONSOB were fair",
"(a) The parties ’ submissions",
"i. The applicants",
"106. The applicants alleged that the proceedings before the CONSOB had been essentially in written form, that no public hearing had been scheduled and that the rights of the defence were not respected. The Court of Cassation itself had acknowledged that the guarantees of a fair trial and protection of the rights of the defence (Articles 111 and 24 of the Constitution) did not apply to administrative proceedings (see paragraph 38 above).",
"107. The applicants submitted that CONSOB Resolutions no. 12697 of 2 August 2000 and no. 15086 of 21 June 2005 had de facto eliminated the principle of adversarial proceedings, which was, however, a requirement under Article187 septies of Legislative Decree no. 58 of 1998 ... As in the present case, those resolutions permitted non-communication to the defendant of the Directorate ’ s conclusions, which then formed the basis of the decision taken by the Commission; in addition, the latter did not receive the pleadings submitted by the defendants during the investigation phase. Furthermore, the Commission ruled without hearing the defendants and without a public hearing, a fact which, in the present case, had prevented the applicants from addressing the Commission directly and from defending themselves in relation to the Directorate ’ s findings. Those findings had been important evidence, and familiarity with them would have enabled the applicants to detect inconsistencies in the investigation or to obtain relevant information for their defence. The Commission held only an internal meeting, in the course of which the sole individual questioned had been a civil servant from the IT Office (that is, from the body responsible for the “charge”). The applicants were not invited to the meeting and had not even been able to obtain a copy of its minutes.",
"108. The applicants also claimed that they had not been informed in good time of the new documents on which the IT Office ’ s supplementary note had been based (see paragraph 23 above) and had not had the time and facilities necessary to defend themselves in relation to it. Those documents were allegedly brought to their attention at a late stage.",
"109. The applicants considered that the proceedings before the CONSOB did not guarantee a real separation between the investigative and decision-making phases, which, they alleged, was in breach of the principle of equality of arms. The investigation was indeed entirely subject to the power to give instructions enjoyed by the CONSOB ’ s chairman, who had responsibility for a large number of investigative measures, including the wording of the accusation or accusations.",
"110. They submitted that, in the present case, the investigative activity had been unilateral and based on witness statements made in the absence of the accused or their counsel, who had not had an opportunity to question those witnesses or to be present when the various investigative measures were carried out. The applicants had been able to submit their respective pleadings only in writing.",
"ii. The Government",
"111. The Government argued that the CONSOB ’ s IT Office had appended to its report all of the documents from the investigation, and thus also the defence pleadings submitted by the applicants. They also emphasised that the applicants had been given a thirty-day period in which to submit any observations on the IT Office ’ s supplementary note of 19 October 2006, and that the applicants had submitted those observations on 24 November 2006 without making any complaint as to the limited time available to them. Furthermore, the applicants had never requested that witnesses be summoned and questioned; in the normal course of events, their presence served no purpose in the proceedings before the CONSOB, these being based on the acquisition of technical information and data. The technical nature of the offences justified the decision to resort to essentially written proceedings.",
"112. Bearing in mind the “administrative” nature of the proceedings before the CONSOB, the Government argued that their fairness could not be challenged on the sole ground that they had been conducted entirely in writing. As administrative proceedings were not referred to in Article 6 of the Convention, the principles of a fair hearing could only be applied to them mutatis mutandis. The impugned proceedings had indeed been promoted by a concern to ensure respect for the rights of the defence, the adversarial principle and the principle that the accusation should correspond to the act that is punished. The applicants had had access to the investigation file, and the investigation and the decision-making process had been separated – the first stage had been under the jurisdiction of the IT Office and the Administrative Sanctions Directorate, while the second stage had been entrusted to the CONSOB ’ s Commission.",
"113. In this connection, the Government emphasised that the letter accusing the applicants of a violation of Article 187 ter § 1 of Legislative Decree no. 58 of 1998 had not been signed by the CONSOB ’ s chairman, but by the head of the markets and economic opinions division and by the director-general of institutional activities.",
"114. Once proceedings in respect of an offence had been opened, the persons concerned could exercise their defence rights by presenting written observations or by asking to be heard, first by the relevant office then by the Administrative Sanctions Directorate. Thus, as in the present case, such persons had an opportunity to submit observations concerning the elements constituting the offence and any other relevant circumstance, prior to examination of their case. The investigation took place in two stages (the first before the IT Office, the other before the Directorate), and the Office ’ s report was transmitted not only to the Directorate, but also to the defendants, who could then submit to the Directorate their defence in relation to its content. The fact that the latter ’ s conclusions had not been transmitted to the accused and that they were not heard in person by the Commission had no effect on the fairness of the proceedings.",
"115. The Government pointed out that even in judicial proceedings the accused was not entitled to discuss the penalty during the decision-making phase. Moreover, the maximum severity of those penalties was determined by the law, which also indicted the criteria to be respected in order to ensure that they were proportionate to the severity of the offences committed. Lastly, as the combined divisions of the Court of Cassation had acknowledged in judgment no. 20935 of 2009, Article 187 septies of Legislative Decree no. 58 of 1998 (governing the rights of the defence in the context of proceedings before the CONSOB) had been introduced into the Italian legal system specifically to ensure compliance with the requirements of the Convention.",
"(b) The Court ’ s assessment",
"116. The Court is prepared to accept that, as the Government have emphasised, the proceedings before the CONSOB provided the accused with an opportunity to submit evidence in their defence. The accusation drawn up by the IT Office was indeed communicated to the applicants, who were invited to defend themselves (see paragraphs 20 and 21 above). The applicants were also informed of the IT Office ’ s report and supplementary note, and were given thirty days to submit any observations concerning the latter document (see paragraph 23 above). This deadline does not seem patently insufficient and the applicants did not ask for it to be extended.",
"117. Nonetheless, as the Government have acknowledged (see paragraph 114 above), the report containing the Directorate ’ s conclusions, which was then to be used as the basis for the Commission ’ s decision, was not communicated to the applicants, who were therefore unable to defend themselves in relation to the document ultimately submitted by the CONSOB ’ s investigative bodies to the body responsible for ruling on the merits of the accusations. Further, the applicants did not have an opportunity to question or have questioned those persons who may have been heard by the IT Office.",
"118. The Court also notes that the proceedings before the CONSOB were essentially written and that the applicants were unable to take part in the only meeting held by the commission, to which they were not invited. This is not disputed by the Government. In this connection, the Court reiterates that an oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1 (see Jussila, cited above, § 40).",
"119. However, the obligation to hold a hearing is admittedly not absolute (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A) and there may be proceedings in which an oral hearing may not be required, for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties ’ submissions and other written materials (see, for example, Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pursiheimo v. Finland ( dec. ), no. 57795/00, 25 November 2003; Jussila, cited above, § 41; and Suhadolc v. Slovenia ( dec. ), no. 57655/08, 17 May 2011, in which the Court held that the lack of a public oral hearing created no appearance of a violation of Article 6 of the Convention, in a case concerning driving in excess of the speed limit and driving under the influence of alcohol, where the evidence against the accused had been obtained using technical devices).",
"120. While the requirements of a fair hearing are the strictest in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly “criminal charges” of differing weight (see Jussila, cited above, § 43).",
"121. It must also be said that the fact that proceedings are of considerable personal significance to the applicant is not decisive for the necessity of a hearing (see Pirinen v. Finland ( dec. ), no. 32447/02, 16 May 2006). Nevertheless, refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005, and Jussila, cited above, § 42).",
"122. As to the present case, the Court considers that a public hearing, open and accessible to the applicants, was necessary. In this connection, the Court notes that the facts were contested, especially with regard to the state of progress in the negotiations with Merrill Lynch International Ltd, and that, quite apart from their financial severity, the penalties which some of the applicants were liable to incur carried, as previously noted (see paragraphs ..., 97 and 98 above), a significant degree of stigma, and were likely to adversely affect the professional honour and reputation of the persons concerned.",
"123. In the light of the foregoing, the Court considers that the proceedings before the CONSOB did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing which would have allowed for an oral confrontation.",
"2. Whether the CONSOB was an independent and impartial tribunal",
"(a) The parties ’ submissions",
"i. The applicants",
"124. The applicants alleged that, on account of its structure and the powers enjoyed by its chairman, the CONSOB was not an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention.",
"125. They emphasised that the investigation phase in their case was carried out by the IT Office and by the Administrative Sanctions Directorate. Yet the CONSOB ’ s chairman was called upon to supervise that phase before chairing the Commission proper, in other words the body responsible for imposing the penalties. There was therefore no clear separation between the investigation and the decision-making stages, and this dual role fulfilled by the chairman could create objectively justified doubts as to his impartiality. The same was true with regard to the other members of the Commission, who had learned of the facts only through the chairman and solely on the basis of the version given by the Directorate, to which the defence pleadings submitted by the accused had not been joined. Lastly, the bodies responsible for the investigation had not been independent in relation to the CONSOB ’ s senior hierarchy.",
"126. Under CONSOB Resolution no. 15087 of 21 June 2005, the chairman was at the summit of the Commission: he applied penalties, supervised the preliminary investigation and authorised the use of investigative powers. He could order inspections or other investigative measures, and in consequence he could not be considered as a “neutral” and impartial judge.",
"ii. The Government",
"127. The Government noted that the CONSOB was made up of a chairman and four members, selected from independent persons who had specific skills and appropriate moral qualities. At the relevant time its members were elected for a period of five years and their term of office could be renewed only once. During their term of office, those members were not permitted to exercise any other professional or business activities or to hold any other public office.",
"128. The CONSOB was independent from any other authority and, in particular, from the executive. It could use its budget autonomously and adopt resolutions concerning the career and conditions of employment of its staff. The decision-making body (the Commission) was separate from the investigative bodies (the Office and the Directorate).",
"129. Although he was responsible for supervising the various offices and had certain powers of initiative during the investigation (in particular he could authorise inspections and ask that various investigative measures be carried out, such as obtaining data on telephone communications and seizing property), the CONSOB ’ s chairman could never interfere in the investigations concerning a given case, which were carried out by the relevant office and by the Directorate. Nor, conversely, did the department and the Directorate play any role in adoption of the final decision. The CONSOB ’ s chairman was responsible for supervising the general criteria which the offices had to comply with in carrying out investigations. He could not take part in assessing the merits of a case on the basis of the evidence obtained, or influence the results of the investigation. His or her duties were comparable to that of the president of a court.",
"130. The power to open misconduct proceedings and to bring charges lay exclusively with the head of the relevant division, who acted in complete independence and with full discretion. As to the inspections, these were investigative measures intended to obtain information. They were assessed in turn by the relevant offices. Indeed, in the present case, the chairman of the CONSOB had neither authorised the inspections nor asked that investigative measures be taken. The final decision on a seizure of property – which had not been ordered in the present case – lay with the Commission, and required a favourable opinion from the prosecutor ’ s office, issued at the request of the CONSOB ’ s chairman. In any event, it was an interim measure aimed at guaranteeing the solvency of defendants or depriving them of assets used to commit offences. The decision on seizure of property in no way prejudged the decisions concerning the merits of the accusations or the penalties. Even in the context of judicial proceedings, it was accepted that a procedural decision which did not imply any judgment on a suspect ’ s guilt or innocence (such as, for example, an order to remand a person in custody) did not amount to a ground for subsequent doubts as to the impartiality of the court which had issued it.",
"131. Lastly, the Government noted that in the present case, there had been no conflict of interests between the CONSOB ’ s staff, the members of the Commission and the applicants.",
"(b) The Court ’ s assessment",
"132. The Court reiterates its well-established case-law to the effect that, in order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 190, ECHR 2003-VI).",
"133. Having regard to the manner and conditions of appointment of the members of the CONSOB, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, Court considers that there is no reason to doubt the CONSOB ’ s independence with regard to any other power or authority, and especially with regard to the executive. In this respect, it endorses the Government ’ s observations regarding the CONSOB ’ s autonomy and the safeguards surrounding the appointment of its members (see paragraphs 127 and 128 above).",
"134. The Court further reiterates the general principles governing the steps to assess the impartiality of a “tribunal”, which are set out, inter alia, in the following judgments: Padovani v. Italy, 26 February 1993, § 20, Series A no. 257-B; Thomann v. Switzerland, 10 June 1996, § 30, Reports of Judgments and Decisions 1996-III; Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII; Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000 ‑ XII; Morel v. France, no. 34130/96, § 42, ECHR 2000-VI; and Cianetti v. Italy, no. 55634/00, § 37, 22 April 2004.",
"135. As regards the subjective aspect of the CONSOB ’ s impartiality, the Court notes that nothing in the present case pointed to any prejudice or bias on the part of its members. The mere fact that they took decisions against the applicants cannot in itself cast doubt on their impartiality (see, mutatis mutandis, Previti v. Italy ( dec. ), no. 1845/08, § 53, 12 February 2013). It follows that the Court cannot but presume the personal impartiality of the CONSOB ’ s members, including its chairman.",
"136. As to the objective impartiality, the Court notes that the CONSOB ’ s regulations provide for a certain separation between the investigative entities and the entity with responsibility for determining whether an offence had been committed and imposing penalties. In particular, the accusation is drawn up by the IT Office, which also carries out the investigations; the results are then summarised in the Directorate ’ s report, which contains conclusions and proposed penalties. The final decision on imposing penalties lies solely with the Commission.",
"137. It is nevertheless the case that the IT Office, the Directorate and the Commission are merely branches of the same administrative body, acting under the authority and supervision of a single chairman. In the Court ’ s opinion, this amounts to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions is not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention (see, in particular and mutatis mutandis, Piersack v. Belgium, 1 October 1982, §§ 30-32, Series A no. 53, and De Cubber v. Belgium, 26 October 1984, §§ 24-30, Series A no. 86, in which the Court concluded that the “tribunal” had lacked objective impartiality, in the first case on the ground that an assize court had been presided over by a judge who had previously acted as head of the section of the Brussels public prosecutor ’ s department which had been responsible for dealing with the accused ’ s case; and, in the second, on account of the successive exercise of the functions of investigating judge and trial judge by one and the same person in one and the same case).",
"3. Whether the applicants had had access to a court with full jurisdiction",
"138. The above findings concerning the CONSOB ’ s lack of objective impartiality and the fact that the proceedings before it did not comply with the principles of a fair hearing are not, however, sufficient to warrant the conclusion that there has been a violation of Article 6 in this case. In this connection, the Court observes that the penalties complained of by the applicants were not imposed by a court at the close of adversarial judicial proceedings, but by an administrative authority, namely the CONSOB. While entrusting the prosecution and punishment of similar minor offences to such authorities is not inconsistent with the Convention, the person concerned must have an opportunity to challenge any decision made against him or her before a tribunal which offers the guarantees of Article 6 (see Kadubec v. Slovakia, 2 September 1998, § 57, Reports 1998-VI; Čanády v. Slovakia, no. 53371/99, § 31, 16 November 2004; and Menarini Diagnostics S.r.l. , cited above, § 58 ).",
"139. Therefore, in administrative proceedings, the obligation to comply with Article 6 of the Convention does not preclude a “penalty” being imposed by an administrative authority in the first instance. For this to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements of Article 6 § 1 of the Convention must be subject to subsequent control by a judicial body that has full jurisdiction (see Schmautzer, Umlauft, Gradinger, Pramstaller, Palaoro and Pfarrmeier v. Austria, judgments of 23 October 1995, §§ 34, 37, 42 and 39, 41 and 38 respectively, Series A nos. 328 A-C and 329 A ‑ C). The characteristics of a judicial body with full jurisdiction include the power to quash in all respects, on questions of fact and law, the decision of the body below. It must have jurisdiction to examine all questions of fact and law relevant to the dispute before it (see Chevrol v. France, no. 49636/99, § 77, ECHR 2003-III; Silvester ’ s Horeca Service v. Belgium, no. 47650/99, § 27, 4 March 2004; and Menarini Diagnostics S.r.l. , cited above, § 59 ).",
"140. In the present case, the applicants had the possibility, which they used, of challenging the penalties imposed by the CONSOB before the Turin Court of Appeal and then to appeal on points of law against the judgments delivered by the latter court. It remains to be established whether those two courts were “judicial bodies with full jurisdiction” within the meaning of the Court ’ s case-law.",
"(a) The parties ’ submissions",
"i. The applicants",
"141. According to the applicants, the subsequent proceedings before the Turin Court of Appeal and the Court of Cassation had not remedied the shortcomings in the proceedings before the CONSOB. Although the court of appeal could be considered a judicial body with full jurisdiction, the fact remained that its hearings had not been held in public. Yet a derogation from the principle that hearings should be held in public could be considered justifiable only in exceptional circumstances (they referred, in particular, to Vernes v. France, no. 30183/06, § 30, 20 January 2011).",
"142. The applicants contended, in particular, that the proceedings before the court of appeal had not been ordinary proceedings, but special proceedings in which the hearing had taken place in private. In support of their claims, they submitted declarations signed by the administrative director of the Registry of the First Civil Division of the Turin Court of Appeal, stating that the hearings in their case had been held in private. During those hearings, only the counsel for the accused had been present; the applicants had not been summoned, and the court of appeal had questioned neither the accused nor any witnesses. It had carried out no investigations, and had merely endorsed the evidence gathered by the CONSOB. Admittedly, the Government had submitted statements from the President of the First Section of the Court of Appeal, claiming that the hearings in question had in reality indeed been held in public (see paragraph 145 below). It was nonetheless the case that those statements could not contradict the content of public documents, such as the judgments delivered by the court of appeal, which indicated that the parties had been summoned to a private hearing and which attested the facts which they recorded until forgery was proved. Yet the Government had not brought proceedings for forgery and, in any event, the President of the First Section of the Court of Appeal had merely passed on the content of statements made by others, without recounting any event of which he had had direct knowledge.",
"143. It was true that a public hearing had been held before the Court of Cassation. However, the latter was not a body with full jurisdiction, since it did not deal with the merits of the case and was not called upon to express an opinion on the merits of the accusation or the relevance and cogency of the evidence. It had therefore dismissed all of the arguments submitted by the applicants in order to challenge the manner in which the CONSOB or the court of appeal had assessed the evidence.",
"ii. The Government",
"144. The Government noted that the applicants had had access to oral and public proceedings before the Turin Court of Appeal, which had re-examined on the merits all of the evidence and information gathered by the CONSOB with regard to the particular circumstances of the impugned conduct, thus enabling it to assess the proportionality of the penalties. The court of appeal enjoyed very wide powers with regard to the taking of evidence, even of its own motion, and could have set aside or amended the CONSOB ’ s decision. The applicants could have requested that witnesses be questioned, or could have asked to be heard in person; yet they had submitted no requests to that effect. At the close of the judicial proceedings, the court of appeal had altered the CONSOB ’ s assessment, and had reduced the penalties imposed on three of the five applicants.",
"145. The Government submitted that the applicants ’ claim that their case had not been examined in a public hearing before the Turin Court of Appeal was false. Pursuant to section 23 of Law no. 689 of 1981, all of the hearings held before that court were open to the public. As to the statements signed by the Administrative Director of the Registry of the First Section of the Court of Appeal and submitted by the applicants (see paragraph 142 above), the Government argued that they did not reflect the reality of the situation. In counter-argument, they produced five statements signed by the President of the First Section of the Turin Court of Appeal and by the Administrative Director of the same Section, stating that, in the five sets of proceedings concerning the applicants and challenging the penalties imposed by the CONSOB, only the hearings concerning the urgent measures ( sub procedimento cautelare ) had been held in private, all of the other hearings having been public. In those statements, dated 6 September 2013, the President of the First Section of the Court of Appeal indicated that, at the relevant time, he had not been assigned to that body (he had taken up his duties on 1 March 2013), but that he had been able to reconstitute the sequence of events by examining the registers and case files, and on the basis of information provided directly by the staff of the registry and by the judges who had dealt with the cases in question. In particular, the applicants ’ cases had been added to the list of non-contentious cases ( registro volontaria giurisdizione ). Further, Law no. 62 of 18 April 2005 stated that proceedings in respect of Article 187 of Legislative Decree no. 58 of 1998 were to be held in accordance with the conditions laid down in section 23 of Law no. 689 of 1981 (which did not provide for the holding of a hearing in private). Although the applicants ’ cases had remained on the list of non-contentious cases, the procedure followed had been that required by Law no. 62 of 2005.",
"146. On the basis of those statements, the Government claimed that on 6 March 2007 the applicants had requested that execution of the CONSOB ’ s decision be stayed (Article 187 septies § 5 of Legislative Decree no. 58 of 1998). In the context of these sub-proceedings for the application of urgent measures, a hearing had been held on 28 March 2007; it had been held in private, as provided for by Articles 283 and 351 of the Code of Civil Procedure. A hearing on the merits had subsequently been held on 11 July 2007; in accordance with section 23 of Law no. 689 of 1981, that hearing was held in public. Furthermore, two of the judgments issued by the court of appeal (specifically those against Mr Marrone and the company Giovanni Agnelli S.a.s .) referred to “the public hearing” set for 11 July 2007. The following hearings on the merits of the cases (namely those of 7 November and 5 December 2007) were also public.",
"147. The Government also emphasised that the applicants had had the opportunity to appeal on points of law, and that the case was then referred to the combined divisions. Before those divisions, there was an oral and public procedure, which fully complied with the rights of the defence, and which concerned both the interpretation and application of the substantive and procedural law ( errores in iudicando and in procedendo ) and the coherence and adequacy of the reasons put forward by the court of appeal. The Government referred, in particular, to the case of Menarini Diagnostics S.r.l. (judgment cited above), in which the Court concluded that there had been no violation of Article 6 § 1 of the Convention, noting that the review of the contested administrative penalty by the administrative court and the Consiglio di Stato had indeed been conducted by courts with full jurisdiction to examine all aspects of the case. In the Government ’ s opinion, there was all the more reason to reach the same conclusion in the present case, where the powers of the court of appeal had been wider than those of the administrative court and the Consiglio di Stato.",
"(b) The Court ’ s assessment",
"148. The Court notes at the outset that there is nothing in the present case to cast doubt on the independence and impartiality of the Turin Court of Appeal. Indeed, the applicants do not contest it.",
"149. The Court further observes that the court of appeal had jurisdiction to rule, in respect of both law and fact, on whether the offence set out in Article 187 ter of Legislative Decree no. 58 of 1998 had been committed, and was authorised to set aside the decision taken by the CONSOB. It was also called upon to assess the proportionality of the imposed penalties to the seriousness of the alleged conduct. In fact, it reduced the amount of the fines and the length of the ban on exercising their profession imposed on certain of the applicants (see paragraphs 30 and 31 above) and examined their various factual or legal allegations (see paragraphs 32 ‑ 36 above). Thus, its jurisdiction was not merely confined to reviewing lawfulness.",
"150. It is true that the applicants complained about the fact that the court of appeal did not question witnesses (see paragraph 142 above). However, they did not indicate any procedural rule which would have prevented such questioning. In addition, the request for questioning of witnesses, made by Mr Grande Stevens in his pleadings of 25 September 2007, did not indicate either the names of the persons whom he wished to have summoned, or the events about which they were to provide evidence. In addition, that request was made on a purely hypothetical basis, for examination only if the court of appeal held that the documents already included in the case file were insufficient or unusable. This also holds in respect of the request made by Mr Marrone, who raised the possibility of questioning the witnesses from whose statements he quoted only “if necessary” (see paragraph 29 above). In any event, before the Court the applicants have not identified the witnesses whom the court of appeal allegedly refused to question and the reasons why their evidence would have been decisive for the outcome of the case. They have not therefore substantiated their complaint under Article 6 § 3 (d) of the Convention.",
"151. In the light of the above considerations, the Court considers that the Turin Court of Appeal was indeed a “body with full jurisdiction” within the meaning of its case-law (see, mutatis mutandis, Menarini Diagnostics S.r.l. , cited above, §§ 60-67). The applicants themselves do not seem to contest this (see paragraph 141 above).",
"152. It remains to be established whether the hearings on the merits held before the Turin Court of Appeal were public, a factual matter on which the parties ’ submissions differ (see paragraphs 142 and 145 - 146 above). In this connection, the Court cannot but reiterate its conclusions concerning the necessity, in the present case, of a public hearing (see paragraph 122 above).",
"153. The Court notes that the parties submitted contradictory documents with regard to the manner in which the disputed hearings were conducted; according to the written statements from the Administrative Director of the Registry of the Turin Court of Appeal, submitted by the applicants, those hearings were held in private, although – according to the written statements of the President of the Court of Appeal, submitted by the Government – only the hearings which concerned the urgent measures were held in private, all of the other hearings having been public. The Court is hardly in a position to state which of these two versions is correct. Whatever the case, faced with these two versions, both of which are plausible and which come from competent but opposing sources, the Court considers that it should not depart from the content of the official documents in the proceedings. As the applicants have righty emphasised (see paragraph 142 above), the judgments delivered by the court of appeal indicate that it met in private or that the parties had been summoned to deliberations held in private (see paragraph 30 in fine above).",
"154. On the basis of these references, the Court accordingly concludes that no public hearing was held before the Turin Court of Appeal.",
"155. It is true that a public hearing was held before the Court of Cassation. However, the latter did not have jurisdiction to examine the merits of the case, to establish the facts and to assess the evidence; indeed, the Government do no contest this. It could not therefore be considered as a court with full jurisdiction within the meaning of the Court ’ s case-law.",
"4. The applicants ’ other allegations",
"156. The applicants also claimed that the press releases of 24 August 2005 contained truthful information and that their conviction in spite of the defence evidence included in the file resulted from a “presumption of guilt” against them. In their opinion, they had been under no obligation in those press releases to describe mere plans or hypothetical agreements which had not yet been finalised. Moreover, the CONSOB ’ s published instructions specified that information for possible dissemination to the public ought to be tied to real circumstances or a specific event, and not to mere hypotheses as to future and possible actions, which were not of interest for the markets. Yet, at the date on which the press releases were disseminated, no tangible initiative had been undertaken by the applicant companies in relation to expiry of the convertible loan. At the relevant time the envisaged scenario was uncertain, since it was still subject to approval by Merrill Lynch International Ltd and the possibility that there would be no obligation to launch a takeover bid. A CONSOB official had participated in drawing up one of the press releases, and the text in question had received the CONSOB ’ s prior agreement.",
"157. Despite that, the applicants considered that the CONSOB had drawn up its accusations on the basis of the arbitrary presumption that the agreement amending the equity swap contract had been concluded prior to 24August 2005, in spite of the absence of any written or oral evidence to corroborate that presumption. According to the applicants, they had been convicted without any evidence to that effect.",
"158. The Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V), and that, as a rule, it is for the national courts to assess the evidence before them (see Pacifico v. Italy ( dec. ), no. 17995/08, § 62, 20 November 2012). Yet the Court has examined the decisions of the national courts that are contested by the applicants without discerning any signs of arbitrariness that would reveal a denial of justice or a manifest abuse (see, a contrario, De Moor v. Belgium, 23 June 1994, § 55 in fine, Series A no. 292 ‑ A, and Barać and Others v. Montenegro, no. 47974/06, § 32, 13 December 2011).",
"159. The Court also reiterates that the principle of the presumption of innocence requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence sufficient to convict him (see, inter alia, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; John Murray v. the United Kingdom, 8 February 1996, § 54, Reports 1996 ‑ I; and Telfner v. Austria, no. 33501/96, § 15, 20 March 2001).",
"160. In the present case, the judgment convicting the applicants was delivered on the basis of inferences held to be strong, clear and concordant, submitted by the IT Office, and which indicated that at the time of issuing the press releases of 24 August 2005, the agreement amending the equity swap had been concluded or was about to be concluded. In these circumstances, no appearance of a violation of the principle of the presumption of innocence can be found (see, mutatis mutandis, Previti v. Italy ( dec. ), no. 45291/06, § 250, 8 December 2009).",
"6. Conclusion",
"161. In the light of the above considerations, the Court considers that, although the proceedings before the CONSOB did not met the requirements of fairness and objective impartiality set out in Article 6 of the Convention, the applicants ’ case was subsequently reviewed by an independent and impartial body with full powers, specifically the Turin Court of Appeal. However, the latter did not hold a public hearing, which, in the present case, amounted to a violation of Article 6 § 1 of the Convention.",
"...",
"V. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7",
"202. The applicants submitted that there had been a violation of the ne bis in idem principle, as guaranteed by Article 4 of Protocol No. 7.",
"That provision reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"203. The Government contested that argument.",
"A. Admissibility",
"1. Reservation by Italy in respect of Article 4 of Protocol No. 7",
"204. The Government noted that Italy had made a declaration to the effect that Articles 2 to 4 of Protocol No. 7 applied only to offences, procedures and decisions classified as criminal under Italian law. Yet Italian law did not classify the offences penalised by the CONSOB as criminal in nature. Furthermore, Italy ’ s declaration was similar to those made by other States (in particular, Germany, France and Portugal).",
"205. The applicants responded that Article 4 of Protocol No. 7, to which no derogation is permitted under Article 15 of the Convention, concerned a right falling within European public order. In their opinion, the declaration made by Italy when depositing the instrument of ratification of Protocol No. 7 did not have the scope of a reservation within the meaning of Article 57 of the Convention, which did not permit reservations of a general character. In addition, the declaration in question was not attached to “a law” in force at the time it was prepared and did not contain “a brief statement” of that law. The declaration did therefore have any impact on Italy ’ s obligations.",
"206. The Court observes that the Government have alleged that a reservation has been made regarding the application of Articles 2 to 4 of Protocol No. 7 (see paragraph 204 above). Apart from the applicability of the reservation, the Court has to examine its validity. In other words, it must determine whether the reservation satisfies the requirements of Article 57 of the Convention (see Eisenstecken v. Austria, no. 29477/95, § 28, ECHR 2000-X).",
"That provision reads as follows:",
"“1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article.",
"2. Any reservation made under this article shall contain a brief statement of the law concerned.”",
"207. The Court reiterates that, in order to be valid, a reservation must satisfy the following conditions: (1) it must be made at the time the Convention is signed or ratified; (2) it must relate to specific laws in force at the time of ratification; (3) it must not be a reservation of a general character; (4) it must contain a brief statement of the law concerned (see Põder and Others v. Estonia ( dec. ), no. 67723/01, ECHR 2005 ‑ VIII, and Liepājnieks v. Latvia ( dec. ), no. 37586/06, § 45, 2 November 2010).",
"208. The Court has had occasion to specific that Article 57 § 1 of the Convention requires “precision and clarity” from the Contracting States, and that in requiring that a reservation is to contain a brief statement of the law concerned, this provision is not a “purely formal requirement” but sets out “a condition of substance which constitutes an evidential factor and contributes to legal certainty” (see Belilos v. Switzerland, 29 April 1988, §§ 55 and 59, Series A no. 132; Weber v. Switzerland, 22 May 1990, § 38, Series A no. 177; and Eisenstecken, cited above, § 24).",
"209. By “reservation of a general character” in Article 57 is meant, in particular, a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. The wording of the declaration must enable the scope of the Contracting State ’ s undertaking to be ascertained, in particular as to which categories of dispute are included, and must not lend itself to different interpretations (see Belilos, cited above, § 55).",
"210. In the present case, the Court notes that the reservation in question does not contain a “brief statement” of the law or laws which were allegedly incompatible with Article 4 of Protocol No. 7. It can be inferred from the wording of the reservation that Italy intended to exclude from the scope of that provision all offences and proceedings which were not classified as “criminal” under Italian law. However, a reservation which does not refer to or mention those specific provision of the Italian legal order which exclude offences or proceedings from the scope of Article 4 of Protocol No. 7 does not afford to a sufficient degree a guarantee that [it] does not go beyond the provision expressly excluded by the Contracting State (see, mutatis mutandis, Chorherr v. Austria, 25 August 1993, § 20, Series A no. 266 ‑ B; Gradinger v. Austria, 23 October 1995, § 51, Series A no. 328 ‑ C; and Eisenstecken, cited above, § 29; see also, in contrast, Kozlova and Smirnova v. Latvia ( dec. ), no. 57381/00, ECHR 2001 ‑ XI ). In this respect, the Court reiterates that even significant practical difficulties in indicating and describing all of the provisions concerned by the reservation cannot justify a failure to comply with the conditions set out in Article 57 of the Convention (see Liepājnieks, decision cited above, § 54 ).",
"211. Consequently, the reservation relied on by Italy does not meet the requirements of Article 57 § 2 of the Convention. This conclusion is a sufficient basis for finding the reservation invalid, without it being necessary to examine further whether there has been compliance with the other requirements of Article 57 (see, mutatis mutandis, Eisenstecken, cited above, § 30).",
"...",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicants",
"213. The applicants pointed out that they had been subjected to a criminal penalty following the proceedings before the CONSOB, and that they had been subjected to criminal proceedings for the same facts.",
"214. As to the issue of whether the proceedings before the CONSOB and the criminal proceedings concerned the same “offence”, the applicants pointed to the principles laid down by the Grand Chamber in the case of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, 10 February 2009), in which the Court concluded that it is prohibited to prosecute a person for a second “offence” in so far as it arose from identical facts or facts which were substantially the same. In their opinion, this had clearly been the case in their respect.",
"In this connection, the applicants stated that although the ECJ had admittedly specified that Article 50 of the Charter of Fundamental Rights did not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of value ‑ added tax, a tax penalty and a criminal penalty, this was on condition that the first penalty was not criminal in nature (see Åklagaren v. Hans Åkerberg Fransson, judgment cited above, point 1 of the operative provisions); in their opinion, however, this condition was absent in the present case, since, whatever their formal classification in Italian law, the penalties imposed by the CONSOB were indeed criminal in nature within the meaning of the Court ’ s case-law.",
"(b) The Government",
"215. Referring to the arguments developed under Article 6 of the Convention, the Government submitted, firstly, that the proceedings before the CONSOB did not concern a “criminal charge” and that the CONSOB ’ s decision had not been “criminal” in nature.",
"216. Moreover, European Union law had explicitly authorised the use of a double penalty (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Such use was part of the constitutional traditions common to the Member States, particularly in areas such as taxation, environmental policies and public safety. In the light of this, and of the fact that some States had not ratified Protocol No. 7 or had made declarations in respect of it, it was possible to affirm that the Convention did not guarantee the principle of ne bis in idem in the same manner as was the case for other fundamental principles. Accordingly, it was not correct to consider that the imposition of a final administrative penalty prevented the bringing of a criminal prosecution. In this connection, the Government referred to the opinion expressed before the ECJ by the Advocate General in his conclusions of 12 June 2012 in the above-cited case of Åklagaren v. Hans Åkerberg Fransson.",
"217. In any event, the pending criminal proceedings against the applicants did not concern the same offence as that which had been punished by the CONSOB. There was a clear distinction between the offences set out in Articles 187 ter and 185 respectively of Legislative Decree no. 58 of 1998, since only the second required the existence of malicious intent (mere negligence not being sufficient) and of the possibility that the false or misleading information disseminated could trigger a significant shift in the financial markets. Moreover, only the criminal procedure could result in the imposition of punishments involving a custodial sentence. The Government referred to the case of R.T. v. Switzerland (( dec. ), no. 31982/96, 30 May 2000), in which the Court stated that the imposition of penalties by two different bodies (one administrative, the other criminal) had not been incompatible with Article 4 of Protocol No. 7. In this regard, the fact that one and the same conduct could breach both Article 187 ter and Article 185 of Legislative Decree no. 58 of 1998 was not relevant, since the case concerned a typical example of a single act constituting various offences, the characteristic feature of this notion being that a single criminal act was split up into two separate offences (they referred to Oliveira v. Switzerland, no. 25711/94, § 26, 30 July 1998; Goktan v. France, no. 33402/96, § 50, 2 July 2002; Gauthier v. France ( dec. ), no. 61178/00, 24 June 2003; and Ongun v. Turkey ( dec. ), no. 15737/02, 10 October 2006).",
"218. Lastly, it was to be noted that, in order to ensure the proportionality of the penalty to the accusations, the criminal court was able to take into account the prior imposition of an administrative penalty and to reduce the criminal penalty. In particular, the amount of the administrative fine was deducted from the criminal financial penalty (Article 187 terdecies of Legislative Decree no. 58 of 1998) and assets already seized in the context of the administrative proceedings could not be confiscated.",
"2. The Court ’ s assessment",
"219. The Court reiterates that in the case of Sergey Zolotukhin (cited above, § 82), the Grand Chamber specified that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from facts which are substantially the same.",
"220. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of accusations levelled against the applicant in the new proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. In the Court ’ s view, such statements of fact are an appropriate starting point for its determination of the issue whether the facts in both proceedings were identical or substantially the same.",
"It is irrelevant which parts of the new accusations are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83 ).",
"221. The Court ’ s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84).",
"222. Applying those principles to the case at hand, the Court notes, firstly, that it has just concluded, under Article 6 of the Convention, that there existed valid grounds for considering that the procedure before the CONSOB involved a “criminal charge” against the applicants (see paragraph 101 above) and also observes that the sentences imposed by the CONSOB and partly reduced by the court of appeal constituted res judicata on 23 June 2009, when the judgments of the Court of Cassation were delivered (see paragraph 38 above). From that date, the applicants ought therefore to be considered as having been “already finally convicted of an offence” for the purposes of Article 4 of Protocol No. 7.",
"223. Despite this, the new set of criminal proceedings which had been brought against them in the meantime (see paragraphs 39 - 40 above) were not closed and resulted in judgments being delivered at first and second instance.",
"224. It remains to be ascertained whether those new proceedings were based on facts which were substantially the same as those which had been the subject of the final conviction. In this regard, the Court notes that, contrary to what the Government seem to be asserting (see paragraph 217 above), it follows from the principles set out in the case of Sergey Zolotukhin, cited above, that the question to be answered is not whether or not the elements of the offences set out in Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 are identical, but whether the offences with which the applicants were charged before the CONSOB and before the criminal courts concerned the same conduct.",
"225. Before the CONSOB, the applicants were essentially accused of having failed to mention in the press releases of 24 August 2005 the plan to renegotiate the equity swap contract with Merrill Lynch International Ltd, although that plan already existed and was at an advanced stage of preparation (see paragraphs 20 and 21 above). They were subsequently punished for this by the CONSOB and by the Turin Court of Appeal (see paragraphs 27 and 35 above).",
"226. Before the criminal courts, the applicants were accused of having stated, in those same press releases, that Exor had neither instituted nor examined initiatives concerning the expiry of the financing agreement, although the agreement amending the equity swap had already been examined and concluded, information that was kept secret in order to avoid a probable fall in the FIAT share price (see paragraph 40 above).",
"227. In the Court ’ s opinion, these proceedings clearly concerned the same conduct by the same persons on the same date. Moreover, the Turin Court of Appeal itself, in its judgments of 23 January 2008, admitted that Articles 187 ter and 185 § 1 of Legislative Decree No. 58 of 1998 concerned the same conduct, namely the dissemination of false information (see paragraph 34 above). It follows that the new set of proceedings concerned a second “offence” originating in identical acts to those which had been the subject-matter of the first, and final, conviction.",
"228. This finding is sufficient to conclude that there has been a breach of Article 4 of Protocol No. 7.",
"229. Moreover, in so far as the Government submit that European Union law has explicitly authorised the use of a double penalty (administrative and criminal) in the context of combatting unlawful conduct on the financial markets (see paragraph 216 above), the Court, while specifying that its task is not to interpret the case-law of the ECJ, notes that in its judgment of 23 December 2009 in the case of Spector Photo Group, the ECJ indicated that Article 14 of Directive no. 2003/6 does not oblige the Member States to provide for criminal sanctions against authors of insider dealing, but merely states that those States are required to ensure that administrative sanctions are imposed against the persons responsible where there has been a failure to comply with the provisions adopted in implementation of that directive. It also drew the States ’ attention to the fact that such administrative sanctions may, for the purposes of the application of the Convention, be qualified as criminal sanctions (see paragraph 61 above). Further, in its Åklagaren v. Hans Åkerberg Fransson judgment, on the subject of value-added tax, the ECJ stated that, under the ne bis in idem principle, a State can only impose a double penalty (fiscal and criminal) in respect of the same facts if the first penalty is not criminal in nature (see paragraph 92 above).",
"VI. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION",
"230. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"231. The relevant parts of Article 46 of the Convention read as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...",
"A. Indication of general and individual measures",
"1. General principles",
"232. Any judgment in which the Court finds a breach imposes on the respondent State a legal obligation under Article 46 of the Convention to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004 ‑ I; Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 ‑ II; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004 ‑ VII).",
"233. The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see, inter alia, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B).",
"234. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In certain cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate a specific measure (see, for example, Assanidze, cited above, §§ 202 and 203; Alexanian v. Russia, no. 46468/06, § 240, 22 December 2008; Fatullayev v. Azerbaijan, no. 40984/07, §§ 176 and 177, 22 April 2010; and Oleksandr Volkov v. Ukraine, no. 21722/11, § 208, 9 January 2013 ).",
"2. Application of these principles in the present case",
"235. In the particular circumstances of the present case, the Court does not consider it necessary to indicate general measures that the State ought to adopt for the execution of the present judgment.",
"236. In contrast, as regards individual measures, the Court considers that in the present case the nature of the violation found is such as to leave no real choice as to the measures required to remedy it.",
"237. In these conditions, having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 4 of Protocol No. 7 (see paragraph 228 above), the Court considers that the respondent State must ensure that the new set of criminal proceedings brought against the applicants in violation of that provision and which, according to the most recent information received, are still pending, are closed as rapidly as possible and without adverse consequences for the applicants (see, mutatis mutandis, Assanidze, cited above, § 203, and Oleksandr Volkov, cited above, § 208).",
"..."
] |
241 | Boman v. Finland | 17 February 2015 | Early in 2010 the applicant was charged with causing a serious traffic hazard and operating a vehicle without a licence. The prosecutor requested that he be banned from driving based on the charge of causing a serious traffic hazard. The District Court convicted the applicant in April 2010, and duly sentenced him to a fine and a driving ban up until 4 September 2010. In May 2010 the police imposed a new two month driving ban on the applicant, to start on 5 September, for driving a vehicle without a licence. The applicant complained that he had been subjected to two sets of criminal proceedings and two punishments for an offence derived from one set of facts. | The Court considered that the second driving ban issued by the police in the administrative proceedings was to be regarded as criminal for the purposes of Article 4 of Protocol No. 7. It further found that the two impugned sets of proceedings constituted a single set of concrete factual circumstances arising from identical facts or facts which were substantially the same. It also noted that the applicant’s conviction had become “final”, within the autonomous meaning given to the term by the Convention. Lastly, regarding the question whether there had been a duplication of proceedings, the Court noted in particular that the two proceedings, namely the criminal proceedings against the applicant and the proceedings to impose a driving ban, were intrinsically linked together, in substance and in time, to consider that these measures against the applicant took place within a single set of proceedings for the purpose of Article 4 of Protocol No. 7. The Court therefore held that there had been no violation of Article 4 of Protocol No. 7, finding that the applicant had not been convicted twice for the same matter in two separate sets of proceedings. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1992 and lives in Jomala.",
"A. Criminal proceedings against the applicant",
"6. On 26 March 2010 the applicant was charged with, inter alia, causing a serious traffic hazard ( törkeä liikenneturvallisuuden vaarantaminen, grovt äventyrande av trafiksäkerheten ) and operating a vehicle without a licence ( ajoneuvon kuljettaminen oikeudetta, olovlig körning ), both acts having been committed on 5 February 2010. The prosecutor requested that, in relation to the charge of causing a serious traffic hazard, a driving ban be imposed.",
"7. On 22 April 2010 the District Court ( käräjäoikeus, tingsrätten ) convicted the applicant as charged and sentenced him to 75 day- fines, amounting to 450 euros (EUR). A driving ban was also imposed until 4 September 2010 on the basis of section 44 of the Driving Licence Act of the Province of Åland.",
"8. No appeal was made against the judgment and it became final.",
"B. Administrative proceedings",
"9. On 28 May 2010 the police imposed a new driving ban on the applicant from 5 September to 4 November 2010 on the basis of section 46 §§ 1 (c) and 3 of the Driving Licence Act of the Province of Åland. In their decision the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licence and that the District Court had convicted him for this by final judgment on 22 April 2010.",
"10. By letter dated 22 June 2010 the applicant appealed to the Åland Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), claiming that he had been tried and convicted twice in the same matter. He referred to Article 4 of Protocol No. 7 to the Convention.",
"11. On 20 July 2010 the Åland Administrative Court rejected the applicant ’ s appeal and upheld the driving ban. The court found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Therefore, the applicant was not punished twice for the same offence and his rights protected by Article 4 of Protocol No. 7 to the Convention were not violated.",
"12. By letter dated 12 August 2010 the applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), reiterating the grounds of appeal already presented before the Administrative Court. He stressed that both the criminal and the administrative proceedings had related to the same facts which had taken place on 5 February 2010.",
"13. On 19 January 2011 the Supreme Administrative Court upheld the Administrative Court ’ s decision. It found that the District Court had imposed the driving ban for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. Article 4 of Protocol No. 7 to the Convention had therefore not been violated. The decision was not unanimous and one of the judges expressed a dissenting opinion. In her opinion, it was not to be ruled out that a driving ban constituted a criminal sanction. Referring to the case Zolotukhin v. Russia, she considered that after the applicant ’ s final conviction by the District Court, a new driving ban based on the same facts on the basis of which he had already been convicted could no longer be imposed. Therefore, she would have quashed the police decision as well as the Administrative Court ’ s decision."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"14. Section 44 of the Driving Licence Act of the Province of Åland ( körkortslagen för landskapet Åland; Act no. 79/1991, as modified by Act no. 29/2004 ) reads as follows:",
"“ Anyone who is found to have made himself or herself guilty of causing a serious traffic hazard, of drunken driving or of aggravated drunken driving while operating a motor vehicle shall have a driving ban imposed by a court of law. However, if the driver is not sentenced to a punishment for the act, the court may waive imposing a driving ban.",
"The driving ban referred to in subsection 1 may be imposed for a maximum period of five years. The decision of the court shall specify the last day of validity of the driving ban. The decision shall be enforced despite any appeal.",
"In determining the time of validity of the driving ban, account shall be taken of the impact of the ban on the recipient ’ s subsistence and other circumstances. The time for which a driving ban or a temporary driving ban has been imposed on the driving licence holder in an administrative procedure shall be deducted from the time of validity of the driving ban imposed by the court. If, thereafter, no time remains, the driving ban shall expire on the day when the decision is delivered or issued.",
"When the driving ban is imposed, the driving licence holder must leave the licence with the police. If the driving licence holder refuses to leave the licence, it shall be taken from him or her. The driving licence holder shall regain the right to operate vehicles requiring a driving licence when the licence is returned to him or her. If the police have not taken possession of the licence, the driving licence holder shall regain the right to operate vehicles requiring a driving licence when a new licence is delivered.",
"Anyone on whom a driving ban has been imposed under the provisions of subsection 1 shall, during the validity of the driving ban, have no right to drive a vehicle requiring a driving licence, to take driver training under Chapter 2 of this Act or to train drivers under Chapter 3 of this Act. ”",
"15. Section 46 of the same Act provides the following:",
"“ The police shall impose a driving ban on a driving licence holder if the latter",
"a) no longer fulfils the preconditions for obtaining a driving licence;",
"b) has failed to present a medical certificate within a prescribed time or to pass a new test ordered for him or her;",
"c) when operating a motor vehicle, has made himself or herself guilty of an act not referred to in Section 45 which is punishable under the Traffic Offence Act of the Province of Åland ( Act no. 28/2004) and indicates serious disregard for traffic safety, or has made himself or herself guilty of operating a vehicle without a licence; ( Act no. 29/2004)",
"d) three times within one year or four times within two years or, as a holder of a driving licence with a trial period, twice within one year has made himself or herself guilty of an act punishable under sections 2, 7 and 11 of the Traffic Offence Act of the Province of Åland ( Act no. 28/2004), with the exception of acts punishable by a petty fine other than speeding offences, or guilty of a detector offence referred to in the Act on Applying, in the Province of Åland, the Act Prohibiting Devices that Hamper Traffic Supervision ( Act no. 11/2003), or guilty of an offence against the Act of the Province of Åland on Vocational Competence of Lorry and Bus Drivers; ( Act no. 86/2008)",
"e) has operated a vehicle despite a valid driving ban; ( Act no. 36/1993) or",
"f) has been sentenced for drunken driving abroad or has made himself or herself guilty of such an act abroad.",
"The driving ban referred to in subsection 1, paragraphs a and b, shall be valid for an indefinite period.",
"The driving ban referred to in subsection 1, paragraphs c, d, e and f, shall be valid for the maximum period of six months. In cases referred to in these paragraphs the police may, instead of imposing a driving ban, order that the driving licence holder must take a driving test again. ( Act no. 38/1993)",
"Anyone on whom a driving ban has been imposed under the provisions of subsection 1, paragraph c, except on the basis of operating a vehicle without a licence, has the right to have his or her matter reviewed by a court of law if he or she refers the matter to the court within a week from the date of being informed about the decision. In the case of such a referral the court shall, without delay, inform the police about the pendency of the matter. In such cases the police shall, without delay, return the driving licence. If the court holds that the driving ban is justified, it shall determine how long the ban is to be valid. However, the period of validity must not exceed the original period determined by the police. The court may not declare the driving ban conditional. ( Act no. 5/2004) ”",
"16. The Supreme Administrative Court has considered in its case-law ( KHO :2009:60 ) that under Finnish law a driving ban was both an administrative security measure as well as a criminal sanction. In that case, after the imposition of a driving ban by the police, the District Court had delivered a final judgment by which the charges against the applicant had been dropped. As the applicant was not found guilty of the sole act on the basis of which the driving ban had been imposed by the police, there was no basis for imposing the driving ban and it had to be quashed.",
"III. RELEVANT SWEDISH PRACTICE",
"17. After the delivery of the Court ’ s judgments in cases Nykänen and Glantz (see Nykänen v. Finland, no. 11828/11, § 52, 20 May 2014; and Glantz v. Finland, no. 37394/11, § 62, 20 May 2014 ), the Swedish Supreme Administrative Court found in its judgment of 11 December 2014 (no. 1833-14 ) that the Swedish practice had been accepted by the Court. The court found that it was clear that a withdrawal of a driving license on the basis of a conviction or other equivalent decision concerning a traffic offence was not considered as new criminal proceedings. This situation differed from that of tax surcharges and criminal proceedings for tax fraud for the same incorrect information and did not therefore violate against the ne bis idem principle in Article 4 § 1 of Protocol No. 7 to the Convention.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION",
"18. The applicant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried and convicted twice in the same matter. Both the District Court and the police had imposed a driving ban for driving a vehicle without a licence on the basis of the same facts. Even though the District Court ’ s judgment had become final on 22 April 2010, the police had imposed a new driving ban on 28 May 2010.",
"19. Article 4 of Protocol No. 7 to the Convention reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"20. The Government contested that argument.",
"A. Admissibility",
"21. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"22. The applicant argued that it was an indisputable fact that he had been subject to two sets of criminal proceedings and to two punishments for an offence that had been derived from identical facts, that was, driving a car on 5 February 2010. The so - called administrative driving ban fell within the notion of punishment within the meaning of Article 4 of Protocol No. 7 of the Convention. The preparatory works referred to by the Government had nothing to do with the relevant Act enacted by the Åland Islands ’ parliament.",
"23. The applicant noted that the main purpose of the driving ban was punitive. In the case Nilsson v. Sweden the Court had found that a driving ban constituted a punishment within the meaning of the Convention. Moreover, in its judgment the District Court had called the driving ban an “other criminal sanction”. The relevant domestic law distinguished between situations where a driving ban was to be decided by a court and where it was to be decided by the police. It was for the courts to handle the most “serious” cases and for the police to handle the rest.",
"24. The applicant pointed out that he had been sentenced for five different offences of which four had been based on the same circumstances and facts, namely driving a car on 5 February 2010. As a punishment he had received a fine and a driving ban. The facts of the two offences had to be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7 of the Convention. The recapitulation of the events and sanctions demonstrated that the applicant ’ s same conduct within the same timeframe was at stake. The prosecutor had requested a driving ban only under count one. However, the District Court was not bound by this request. From the District Court ’ s judgment it was not possible to see exactly for which offence the driving ban had been imposed. The police also referred in their decision to the offences for which the applicant had been sentenced by the District Court. After the District Court judgment had gained legal force, the applicant should have been entitled to rely on the fact that he could not, and would not, be subjected to further punishments or criminal proceedings based on the same facts.",
"(b) The Government",
"25. The Government noted that, in their view, it was of no significance to the present case whether the administrative driving ban was held to fall within the notion of a “penal procedure” within the meaning of Article 4 of Protocol No. 7 to the Convention or not. The District Court and the police had not based the bans on the same facts.",
"26. The Government observed that, in the Ålandic system, a court of law decided on a driving ban for some offences while the police did so for the others. The legislation in that respect was very clear. It could not be presumed that this systemic structure as such amounted to a situation where the imposition of driving licence sanctions partly in criminal proceedings and partly by the police violated Article 4 of Protocol No. 7 of the Convention. In the relevant travaux préparatoires, a driving ban was described as a driving licence sanction that could be imposed in addition to a criminal sanction. It was a securing measure, directed at the right to drive motor vehicles in order to prevent drivers from driving when they were considered to lack the capacity to do so. The purpose of the driving ban was to improve road safety.",
"27. The Government noted that the prosecutor, on the one hand, had required in his indictment a driving ban expressly and only under count one, concerning the applicant ’ s having caused a serious traffic hazard. The police, on the other hand, had based the driving ban only on the applicant ’ s having operated a vehicle without a licence. In their decision, the police had taken into account the earlier driving ban imposed by the police on the applicant on 22 January 2009 for operating a vehicle without a licence. The new driving ban would not have exceeded two months without the existence of an earlier ban. The applicant was not therefore tried, sentenced or punished twice as the driving ban based on his operating a vehicle without a licence had been imposed in proceedings other than those leading to other sanctions. Referring to the case Nilsson v. Sweden, the Government argued that this course of conduct did not amount to initiating new proceedings but was, in terms of substance and time, connected with the criminal proceedings where the imputation and imposition of sanctions otherwise took place. There was thus no violation of Article 4 of Protocol No. 7 of the Convention.",
"2. The Court ’ s assessment",
"(a) Whether the proceedings were criminal in nature?",
"28. The Court notes first of all that it is clear that the criminal proceedings against the applicant before the District Court were criminal in nature.",
"29. As to the criminal nature of a driving ban, the Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see for example Storbråten v. Norway ( dec. ), no. 12277/04, ECHR 2007 ‑ ... ( extracts ), with further references). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Haarvig v. Norway ( dec. ), no. 11187/05, 11 December 2007; Rosenquist v. Sweden ( dec. ), no. 60619/00, 14 September 2004; Manasson v. Sweden ( dec. ), no. 41265/98, 8 April 2003; Göktan v. France, no. 33402/96, § 48, ECHR 2002-V; Malige v. France, 23 September 1998, § 35, Reports of Judgments and Decisions 1998 ‑ VII; and Nilsson v. Sweden ( dec. ), no. 73661/01, ECHR 2005 ‑ XIII).",
"30. The Court ’ s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not rule out a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Jussila v. Finland [GC], no. 73053/01, § § 30-31, ECHR 2006 ‑ XIV; and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X).",
"31. The Court has taken a stand on the criminal nature of a driving ban in several cases, either in the context of Article 6 or in the context of Article 4 of Protocol No. 7. In the case Escoubet v. Belgium, the Court found in the context of Article 6 of the Convention that the temporary withdrawal of the applicant ’ s driving licence for six days, before the commencement of any proceedings, on account of a suspected drink -driving offence did not concern a criminal charge (see Escoubet v. Belgium [GC], no. 26780/95, § 38, ECHR 1999 ‑ VII ). A similar approach was followed in the case Mulot v. France. In that case the applicant ’ s driving licence was temporarily withdrawn by a prefect for six months for safety reasons before the commencement of any court proceedings (see Mulot v. France ( dec. ), no. 37211/97, 14 December 1999). Also in the case Hangl v. Austria, the driving ban imposed by the police authorities for two weeks was considered to be of a preventive nature and not of criminal character (see Hangl v. Austria ( dec. ), no. 38716/97, 20 March 2001 ). However, in the case Nilsson v. Sweden (cited above), the Court found that although under Swedish law the withdrawal of a driving licence had traditionally been regarded as an administrative measure designed to preserve road safety, withdrawal on the ground of a criminal conviction constituted a “criminal” matter for the purpose of Article 4 of Protocol No. 7. What was more, in the view of the Court, the severity of the measure – suspension of the applicant ’ s driving licence for 18 months – was in itself so significant, regardless of the context of his criminal conviction, that it could ordinarily be viewed as a criminal sanction.",
"32. In the present case, the Court notes that the second driving ban was issued by the police for two months for reasons of road safety. This decision was taken by the police in the administrative proceedings after the criminal proceedings against the applicant had become final. The first driving ban had already been imposed by the District Court during the criminal proceedings. Following the line of interpretation adopted in Nilsson v. Sweden and taking into account the applicant ’ s situation, the Court considers that the second driving ban issued by the police in the administrative proceedings is to be regarded as criminal for the purposes of Article 4 of Protocol No. 7 to the Convention. The parties also seem to make this presumption.",
"(b) Whether the offences for which the applicant was prosecuted were the same ( idem )?",
"33. The Court acknowledged in the case of Sergey Zolotukhin v. Russia (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, §§ 81-84, ECHR 2009) the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. The Court presented an overview of the existing three different approaches to this question. It found that the existence of a variety of approaches engendered legal uncertainty incompatible with the fundamental right not to be prosecuted twice for the same offence. It was against this background that the Court provided in that case a harmonised interpretation of the notion of the “same offence” for the purposes of Article 4 of Protocol No. 7. In the Zolotukhin case the Court thus found that an approach which emphasised the legal characterisation of the two offences was too restrictive on the rights of the individual. If the Court limited itself to finding that a person was prosecuted for offences having a different legal classification, it risked undermining the guarantee enshrined in Article 4 of Protocol No. 7 rather than rendering it practical and effective as required by the Convention. Accordingly, the Court took the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same. It was therefore important to focus on those facts which constituted a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which had to be demonstrated in order to secure a conviction or institute criminal proceedings.",
"34. In the present case the parties disagree on whether the criminal proceedings against the applicant, on the one hand, and the proceedings imposing the second driving ban, on the other hand, arose from the same facts. The Court notes that, in the criminal proceedings, the applicant was charged with, inter alia, causing a serious traffic hazard and operating a vehicle without a licence, both acts having been committed on 5 February 2010. The District Court convicted the applicant as charged and sentenced him to day- fines. The District Court imposed the first driving ban on the applicant for causing a serious traffic hazard whereas the police had imposed it for operating a vehicle without a licence. In their decision concerning the imposition of the second driving ban, the police referred to the fact that on 5 February 2010 the applicant had been driving a vehicle without a licence and that the District Court had convicted him for this by final judgment.",
"35. The Court considers that both sets of proceedings arose from the same facts, namely from the applicant ’ s driving on 5 February 2010. There is no other set of facts which could have constituted the basis for the police ’ s decision to impose the second driving ban. On the contrary, the police specifically relied in its decision on the events of 5 February 2010 and referred to the fact that the applicant had been convicted for these events by the District Court by a final judgment. The Court therefore considers that the two impugned sets of proceedings constituted a single set of concrete factual circumstances arising from identical facts or facts which were substantially the same.",
"(c) Whether there was a final decision?",
"36. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision (see Franz Fischer v. Austria, no. 37950/97, § 22, 29 May 2001; Gradinger v. Austria, 23 October 1995, § 53, Series A no. 328 ‑ C; and Sergey Zolotukhin v. Russia [GC], cited above, § 107 ). According to the Explanatory Report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘ if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them ’ ”. This approach is well entrenched in the Court ’ s case-law (see, for example, Nikitin v. Russia, no. 50178/99, § 37, ECHR 2004 ‑ VIII; and Horciag v. Romania ( dec. ), no. 70982/01, 15 March 2005).",
"37. Decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 of Protocol No. 7 as long as the time-limit for lodging such an appeal has not expired. On the other hand, extraordinary remedies such as a request for reopening of the proceedings or an application for extension of the expired time-limit are not taken into account for the purposes of determining whether the proceedings have reached a final conclusion (see Nikitin v. Russia, cited above, § 39). Although these remedies represent a continuation of the first set of proceedings, the “final” nature of the decision does not depend on their being used. It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4.",
"38. In the present case the applicant did not appeal against the District Court judgment of 22 April 2010. The applicant thus permitted the time ‑ limit to expire without exhausting the ordinary remedies. His conviction therefore became “final”, within the autonomous meaning given to the term by the Convention, on 22 April 2010.",
"(d) Whether there was a duplication of proceedings ( bis )?",
"39. The Court reiterates that Article 4 of Protocol No. 7 prohibits the repetition of criminal proceedings that have been concluded by a “final” decision. Article 4 of Protocol No. 7 is not only confined to the right not to be punished twice but extends also to the right not to be prosecuted or tried twice (see Franz Fischer v. Austria, cited above, § 29). Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. Article 4 of Protocol No. 7 applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. The Court reiterates that Article 4 of Protocol No. 7 contains three distinct guarantees and provides that no one shall be (i) liable to be tried, (ii) tried or (iii) punished for the same offence (see Nikitin v. Russia, cited above, § 36).",
"40. The Court notes that Article 4 of Protocol No. 7 clearly prohibits consecutive proceedings if the first set of proceedings has already become final at the moment when the second set of proceedings is initiated (see for example Sergey Zolotukhin v. Russia [GC], cited above).",
"41. As concerns parallel proceedings, Article 4 of Protocol No. 7 does not prohibit several concurrent sets of proceedings. In such a situation it cannot be said that an applicant is prosecuted several times “for an offence for which he has already been finally acquitted or convicted” (see Garaudy v. France ( dec. ), no. 65831/01, ECHR 2003 ‑ IX (extracts)). There is no problem from the Convention point of view either when, in a situation of two parallel sets of proceedings, the second set of proceedings is discontinued after the first set of proceedings has become final (see Zigarella v. Italy ( dec. ), no. 48154/99, ECHR 2002 ‑ IX (extracts)). However, when no such discontinuation occurs, the Court has found a violation (see Tomasović v. Croatia, cited above, § 31; Muslija v. Bosnia and Herzegovina, no. 32042/11, § 37, 14 January 2014; Nykänen v. Finland, cited above, § 52; and Glantz v. Finland, cited above, § 62 ).",
"42. However, the Court has also found in its previous case-law (see R.T. v. Switzerland ( dec. ), no. 31982/96, 30 May 2000; and Nilsson v. Sweden, ( cited above ) ) that although different sanctions (suspended prison sentences and withdrawal of driving licences) concerning the same matter (drunken driving) have been imposed by different authorities in different proceedings, there has been a sufficiently close connection between them, in substance and in time. In those cases the Court found that the applicants were not tried or punished again for an offence for which they had already been finally convicted in breach of Article 4 § 1 of Protocol No. 7 to the Convention and that there was thus no repetition of the proceedings.",
"43. Turning to the present case and regarding whether there was repetition in breach of Article 4 § 1 of Protocol No. 7 to the Convention, the Court notes that both the use of criminal proceedings and the imposition of a driving ban by the police in the administrative proceedings form part of the sanctions under both Finnish and Ålandic law for traffic offences. A driving ban is considered to be both an administrative security measure as well as a criminal sanction. Even if the different sanctions are imposed by two different authorities in different proceedings, there is nevertheless a unity between them, in substance and in time. This is illustrated by the fact that, according to the wording of the relevant legislation, namely section 46 § 1 (c) of the Driving Licence Act of the Province of Åland, the imposition of a driving ban on the basis of that provision presupposes that a person has already been found guilty of a traffic offence or of operating a vehicle without a licence. In the present case, the police decision, shortly after the judgment in the criminal proceedings, to impose the second driving ban was directly based on the applicant ’ s final conviction by the District Court for traffic offences and thus did not contain a separate examination of the offence or conduct at issue by the police. Therefore, it must be said that, under the Ålandic system, the two proceedings, namely the criminal proceedings against the applicant and the proceedings to impose a driving ban, were intrinsically linked together, in substance and in time, to consider that these measures against the applicant took place within a single set of proceedings for the purpose of Article 4 of Protocol No. 7 to the Convention. In conclusion, the Court finds that the applicant was not convicted twice for the same matter in two separate sets of proceedings.",
"44. Accordingly, there has been no violation of Article 4 of Protocol No. 7 to the Convention."
] |
242 | Igor Tarasov v. Ukraine | 16 June 2016 | This case concerned administrative and criminal proceedings brought against the applicant following an altercation in a bar. The applicant complained in particular about being tried and punished twice for the same offence. | The Court held that there had been a violation of Article 4 of Protocol No. 7, finding that both sets of proceedings were criminal and that the Ukrainian authorities had duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle non bis in idem. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1957 and lives in Sevastopol.",
"6. At about 5 a.m. on 26 January 2002 the applicant had a fight in a local bar during which injuries were sustained by bar staff and damage was caused to property in the bar. The police arrived to handle the matter. They took the applicant and his companion, I., to the police station. The applicant was arrested for an administrative offence of “minor disorderly acts ” provided for in Article 173 of the Code of Administrative Offences.",
"A. Conviction for an administrative offence",
"7. On 28 January 2002 the Nakhimovskyy District Court of Sevastopol (“the District Court”) found the applicant guilty of the above offence and sentenced him to five days ’ administrative detention. The court set out the following grounds for the conviction:",
"“ ... At about 5 a.m. on 26 January 2002 Tarasov, being drunk in the [ L .N. ] bar located at ... used obscene language about the bar staff, grabbed and swung a wooden chair leg, threatened physical violence, ignored the remarks addressed to him, and thereby breached the public order and peace of the citizens. In other words, he engaged in minor disorderly acts. ... ”",
"8. The judgment was not open to appeal and became final.",
"B. Criminal proceedings against the applicant",
"9. On 29 January 2002 the investigator of Nakhimosvkyy District Police Department of Sevastopol instituted criminal proceedings against the applicant and I. for disorderly acts in the bar on 26 January 2002. At a certain point an additional charge against the applicant was included in the case in relation to the injuries which he had allegedly caused to his wife in a separate incident.",
"10. On 14 October 2003 the District Court adopted the judgment in the criminal case. It also resolved a civil dispute lodged by the victims within the criminal proceedings. With respect to the applicant, the District Court convicted him of two offences : the offence provided for in Article 122 § 1 of the Criminal Code ( “ intentional infliction of medium-severity bodily injuries ” ) and the offence provided for in Article 296 § 4 of the Criminal Code ( “ disorderly acts ” with aggravating circumstances).",
"11. As regards the first crime the District Court found it established that on 13 August 2001 the applicant had beaten his wife, intentionally causing injuries of medium severity.",
"12. As to the second crime, the District Court established that at about 4.30 a.m. on 26 January 2002 the applicant and his accomplice I., both drunk and armed with wooden chair legs, entered the L.N. bar where they committed a serious breach of public order. In describing the applicant ’ s conduct, the court stated that the latter, using obscene language, approached a table occupied by N., B., and K. ( bar employees ) and, using the wooden chair leg, inflicted minor bodily injuries on N. and K. The applicant also hit N. on the head with a bottle. Further, the applicant hit a table, which was covered with dishes, using the wooden chair leg, he then broke a mop and threw a beer bottle at the wall, thus causing damage to property. The applicant then went up to a waitress, M., kicked her in the hip and slapped her in the face.",
"13. In its judgment the District Court cited statements of the victims and some indirect evidence to support these factual findings. In particular, it referred to the statements of N., B., K., and M ., who had submitted that the applicant had shouted obscenities, threatened physical violence, inflicted the above - mentioned injuries and caused damage to property, and that B. had tried to calm him down.",
"14. The District Court classified the applicant ’ s acts under Article 296 § 4 of the Criminal Code as the offence of “disorderly acts ” committed with the use of an instrument constructed beforehand to inflict bodily injuries ( the wooden chair leg). It sentenced the applicant to three years ’ imprisonment for the two crimes taken together, combined with mandatory medical treatment in prison. The District Court also considered the applicant ’ s objection that he had earlier been convicted of an administrative offence as regards the same events of 26 January 2002. That argument was dismissed by the court on the ground that the applicant had previously been convicted under the Code of Administrative Offences and had received an administrative penalty, which was a different type of legal responsibility; accordingly, the administrative case did not constitute any obstacle to the criminal proceedings.",
"15. On 20 July 2004 the Sevastopol Court of Appeal upheld the applicant ’ s conviction, having amended the judgment of the District Court as regards the medical treatment of the applicant and his civil liability. On 27 January 2005 the Supreme Court dismissed, in the absence of the applicant, his appeal on points of law. The applicant was informed of the Supreme Court decision by the letter sent to him on 21 May 2005. The applicant ’ s allegation that he had been tried and punished twice for the same offence was dismissed by both courts as unfounded."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Constitution of 28 June 1996",
"16. Article 61 of the Constitution provides the following:",
"“No one shall have to bear legal responsibility of the same type for the same offence twice.",
"The legal responsibility of a person is of an individual character.”",
"B. Administrative Offences Code of Ukraine of 7 December 1984",
"17. Article 173 of the Code, as worded at the material time, provided as follows:",
"“Article 173. Minor disorderly acts ( дрібне хуліганство )",
"Minor disorderly acts, that is use of obscene language in a public place, offensive behaviour towards others, and other similar acts that breach public order and the peace of citizens,",
"shall be punishable by a fine of between three and seven times the minimum tax-free monthly income or by from one to two months ’ correctional work combined with the withholding of twenty percent of the offender ’ s wages, or – if, in the circumstances of the case and having regard to the offender ’ s character, these measures are not deemed to be sufficient – by up to fifteen days ’ administrative detention ( адміністративний арешт ).”",
"C. Criminal Code of Ukraine of 5 April 2001",
"18. Article 296 of the Code provides as follows:",
"“Article 296. Disorderly acts (хуліганство)",
"1. Disorderly acts, namely serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punishable ...",
"4. The acts, which are provided by the first ... paragraph of this Article, if committed with the use of ... an instrument adjusted specifically or constructed beforehand to inflict bodily injuries,",
"shall be punishable by imprisonment for a period of from three to seven years.”",
"D. Code of Criminal Procedure of 28 December 1960 (in force at the relevant time)",
"19. The Code provided that criminal proceedings had to be discontinued if there existed a final judgment in relation to the same charge, or a final court resolution or ruling terminating the proceedings on the same ground, or an effective decision of an inquiry officer, investigator or prosecutor terminating the proceedings in relation to the same charge, or an effective decision of the inquiring officer, investigator or prosecutor refusing to open criminal proceedings in relation to the same fact (Article 6 §§ 9-11).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"20. The applicant complained that he had been tried and punished twice for the same acts. He relied on Article 4 of Protocol No. 7, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"A. Admissibility",
"21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"22. The applicant maintained his complaint, arguing that he had been unlawfully tried and punished twice for the same offence.",
"23. Having regard to the severity of the sanction, the Government acknowledged that the administrative proceedings were criminal for the purpose of Article 4 of Protocol No. 7. They submitted that both sets of proceedings concerned the applicant ’ s conduct on 26 January 2002 in the same place. However, the facts that gave rise to administrative proceedings concerned the breach of public order on account of use of obscene language, swinging the wooden chair leg and threats of physical violence. In contrast, the facts that formed the essential element of the criminal charge concerned infliction of bodily injuries and damage to property. For these reasons the Government maintained that the applicant had not been punished twice for the same offence.",
"2. The Court ’ s assessment",
"(a) Whether the first set of proceedings was criminal in nature",
"24. The legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Nykänen v. Finland, no. 11828/11, § 38, 20 May 2014, with further references).",
"25. The Court notes that the administrative offence at issue involved a possible sanction of detention up to fifteen days. Having regard to the nature and severity of the sanction, the Court considers that those proceedings were criminal for the purpose of Article 6 (see Galstyan v. Armenia, no. 26986/03, §§ 58-60, 15 November 2007, and Luchaninova v. Ukraine, no. 16347/02, § 39, 9 June 2011). Consequently, they fell within the ambit of “penal procedure” within the meaning of Article 4 of Protocol No. 7.",
"(b) Whether the offences for which the applicant was prosecuted were the same ( idem )?",
"26. In the case of Sergey Zolotukhin v. Russia (no. 14939/03, ECHR 2009) the Court reviewed the existing approaches to the interpretation of the principle ne bis in idem and concluded that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (ibid., § 82). It was therefore important to focus on those facts which constituted a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which had to be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).",
"27. Turning to the present case, the Court notes that both sets of domestic proceedings dealt with the applicant ’ s conduct in the same place and within the same time span. The facts which gave rise to the first conviction for “ minor disorderly acts ” amounted to his (a) using obscene language about bar staff, (b) grabbing and swinging a wooden chair leg, (c) threatening physical violence, and (d) ignoring remarks addressed to him.",
"28. As to the second conviction for “ disorderly acts ”, it disclosed new relevant facts which were not mentioned in the first case : the infliction of injuries on bar staff and causing damage to bar property. The Court notes that these new elements originated from the same continuous conduct which was only partially described in the first conviction. In particular, it transpires from the second conviction that the applicant not only “ grabbed ” and “ swung ” the wooden chair leg, but used that object to inflict certain injuries on bar staff and to cause damage to property. It follows that the first conviction referred to some of the applicant ’ s movements which were made within a wider continuous action embraced by the same criminal intent of the applicant. Such extraction of movements from the wider context appears to be artificial, especially when the applicant was taken from the bar by the police who had the opportunity to properly and immediately assess the case at the scene of the crime.",
"29. As regards the other factual elements which were used to secure the applicant ’ s first conviction, the Court notes that the second conviction also referred to the fact that the applicant had been using obscene language, and this constituted a part of the applicant ’ s culpable conduct in the second case. In support of its factual findings, the court cited the victims ’ statements, which indicated that the applicant had threatened physical violence and B. had tried to calm him down. This corresponds to the respective parts of the facts which were used for the first conviction.",
"30. The Court therefore finds that the facts giving rise to both the applicant ’ s convictions were inextricably linked, and that the domestic courts ’ assessment in the second set of proceedings embraced substantially the same facts which had been examined in the first set of proceedings (compare Sergey Zolotukhin, cited above, § 97).",
"(c) Whether there was a duplication of proceedings ( bis )?",
"31. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4.",
"32. In the present case the first set of proceedings was terminated on 28 January 2002, when the District Court found the applicant guilty of the minor disorderly acts. That judgment was not open to appeal and was final. The second set of proceedings was instituted on 29 January 2002 and concluded on 27 January 2005, in other words after the judgment in the first set of proceedings had become final. It is remarkable that the trial court did not find the second proceedings problematic in terms of the principle ne bis in idem, dismissing the applicant ’ s argument in this respect on the ground that the first case dealt with a different type of legal responsibility. This reply was commensurate with the applicable procedural rules of domestic law providing no ground for discontinuing criminal proceedings if there had been a previous conviction for an essentially similar administrative offence (see paragraph 19 above). However, in Convention terms both sets of proceedings were criminal for the reasons set out above and it follows that the domestic authorities duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle ne bis in idem.",
"33. The Court holds therefore that there has been a violation of Article 4 of Protocol No. 7.",
"II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"34. The applicant further complained of other violations of his rights under the Convention. In particular, he alleged that the length of criminal proceedings was not compatible with the requirements of Article 6 § 1 of the Convention and that the conditions of his detention were contrary to Article 3 of the Convention.",
"35. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"36. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"37. The applicant claimed 995,000 Ukrainian hryvnias (“UAH”) in respect of pecuniary damage and UAH 4,000,000 in respect of non ‑ pecuniary damage.",
"38. The Government submitted that the claims were unfounded.",
"39. The Court finds no causal link between the violation found and the pecuniary damage claimed. As regards the non-pecuniary damage, the Court considers that in the circumstances of the present case a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction.",
"B. Costs and expenses",
"40. The applicant also claimed 5,000 for the costs and expenses incurred before the Court.",
"41. The Government submitted that the claim was not supported by evidence and had to be dismissed as unsubstantiated.",
"42. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case it has not been shown that the amount claimed had been incurred by the applicant. The Court therefore dismisses the claim."
] |
243 | Ramda v. France | 19 December 2017 | The applicant, an Algerian national, was extradited from the United Kingdom to France on charges related to a series of terrorist attacks in 1995 in France. He was first tried and convicted by a criminal court (tribunal correctionnel) on charges concerning his participation in a group aimed at preparing terrorist attacks. He was subsequently tried and convicted by an assize court (cour d’assises) on charges of complicity to commit a series of particular crimes such as murder and attempted murder. He complained in particular about a violation of the ne bis in idem principle owing to his criminal conviction despite his previous final conviction by the ordinary criminal courts. | The Court held that there had been no violation of Article 4 of Protocol No. 7, finding that the applicant had not been prosecuted or convicted in the framework of the criminal proceedings for facts which had been substantially the same as those of which he had been finally convicted under the prior summary proceedings. The Court also reiterated that it was legitimate for the Contracting States to take a firm stance against persons involved in terrorist acts, which it could in no way condone, and that the crimes of complicity in murder and attempted murder of which the applicant had been convicted amounted to serious violations of the fundamental rights under Article 2 (right to life) of the Convention, in respect of which States are required to pursue and punish the perpetrators, subject to compliance with the procedural guarantees of the persons concerned, as was the situation for the applicant in the present case. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969 and is currently detained in Lannemezan Prison.",
"A. Background to the case",
"6. The applicant was a member of the Islamic Salvation Front ( Front Islamique du Salut – “the FIS ” ) and left Algeria prior to the dissolution of that political group by a judgment of the Algiers Administrative Court dated 19 March 1992. After spending some time in Pakistan he entered the United Kingdom in January 1993 using the false name of Elias Serbis. On 26 February 1993 he applied for political asylum in that country, claiming to have been forced to leave Algeria because of his membership of the FIS. His application was refused on 10 August 1994.",
"7. On 25 July, 17 and 26 August, 3, 4 and 7 September and 6 and 17 October 1995 eight terrorist attacks were carried out in France.",
"8. Although no organisation explicitly claimed responsibility, certain factors, such as the existence of virulent press statements against France and the mode of operation of the attacks, pointed to the involvement of the Armed Islamic Group ( Groupement Islamique Armé – “the GIA ” ).",
"9. In the course of the judicial investigation aimed at identifying the perpetrators, telephone tapping operations carried out on public payphones used by a certain B.B. led to a number of persons being arrested and to the search being focused on the United Kingdom and an individual named Elyes (also known as Elyesse or Eliass ). The sources of these names or pseudonyms were a telephone conversation of 1 November concerning Elyes and the Western Union bank, a search of B.B. ’ s home during which a document was found showing that a sum of money had been transferred to B.B. from that bank on 16 October 1995, and the decoding of a list of telephone numbers found on B.B. ’ s person and at his home and featuring three numbers in England preceded by the name “ Elyesse ” or “ Eliass ”. B.B., who was arrested on 1 November 1995, also directly implicated “ Ylies ”, claiming that he had funded the campaign of attacks from London and had been kept informed of their progress.",
"10. On 3 November 1995 the French National Surveillance Directorate informed the investigators that the individual known as “ Elyes, Ilyes, Lyes, Iliesse, Eliass or Elyasse ”, whom B.B. had identified as having funded the attacks, might be the applicant. The latter, who was living in London, was suspected of being one of the leaders of the GIA in the United Kingdom, in particular because of his involvement with the publication Al Ansar (or Al Ansaar ) which the GIA used as a mouthpiece abroad.",
"11. The investigations carried out in London established that the applicant had a home there and had a set of keys to a second London address, which served as the offices of the magazine Al Ansar and as a meeting place for all the persons involved in publishing and distributing it. On the premises the investigators found, among other items, the following: contracts for three mobile phones in the names of three of the applicants ’ acquaintances and corresponding to the numbers identified at the home of B.B., who had rung the numbers before and after each attack; a receipt for the rental of a post - office box in the name of Fares ELIASS with the applicant ’ s fingerprints on it; letters and statements from the FIS; a statement saying that only the GIA was entitled to conduct the jihad; a letter from the GIA to the French President calling on him to convert to Islam; a letter commenting on the attacks carried out in France; copies of press articles on anti-terrorism mentioning the names of judges and members of the intelligence service; a piece of paper on which “ Notre Dame 33 ‑ 1 ‑ 43 ‑ 54-46-12 ” was written, corresponding to the telephone number of the Western Union branch at 4 rue du Cloître Notre Dame in Paris; and a receipt dated 21 July 1995 issued by a branch of Thomas Cook in London for a sum of 5,000 pounds sterling (GBP).",
"12. The applicant was arrested and placed in police custody from 4 to 7 November 1995 under the Prevention of Terrorism Act.",
"13. On 7 November 1995 the applicant was detained pending extradition under the terms of an international arrest warrant issued on the same day in connection with the investigation into the attack carried out on 6 October 1995 close to the Maison Blanche metro station.",
"14. Three further international arrest warrants were issued concerning the applicant: on 24 November 1995 in relation to the attack of 17 October at the Gare d ’ Orsay station; on 29 January 1996 in the case concerning a conspiracy to prepare terrorist attacks; and on 16 January 2001 in relation to the attack carried out on 25 July 1995 at the Saint-Michel suburban rail station.",
"15. The applicant lodged habeas corpus applications which were dismissed in June 1997 and in 2001. On 8 October 2001 the British Home Secretary ordered his removal to France, but that order was quashed by the High Court, Queen ’ s Bench Division, on 27 June 2002.",
"16. On 6 April 2005 the Home Secretary signed a fresh order for the applicant ’ s extradition in the light of the assurances provided by the French authorities concerning the safeguards of a fair and impartial trial in France. On 14 October 2005 the High Court dismissed an appeal by the applicant.",
"17. On 1 December 2005 the applicant was handed over to the French authorities and was remanded in custody the following day.",
"B. The proceedings before the criminal courts ( procédure correctionnelle )",
"18. By an order of 5 February 1999 the applicant was committed for trial in the Paris Criminal Court for involvement – in France and in England, from an unspecified date until 4 November 1995 – in an association or conspiracy formed with a view to the preparation, in the form of one or more material acts, of one of the terrorist acts in question. The investigating judge stated, in particular, as follows :",
"“ - [the applicant] was responsible for distributing the journal Al Ansar, a propaganda outlet of the Armed Islamic Group;",
"- ... was involved on this account in disseminating propaganda for that organisation, which is banned in France;",
"- ... was the main contact person in Europe for [D.Z.], alias Abou Abderhamane Amine, in organising and carrying out the GIA ’ s activities in Europe;",
"- ... was tasked with sending money to GIA members still in France to enable them to fund and carry out attacks;",
"- ... was in contact with numerous persons involved in and convicted of criminal conspiracy with a view to a terrorist enterprise .”",
"19. In a judgment of 29 March 2006 accompanied by over thirty pages of reasoning, the Criminal Court first of all set out the facts with regard to the “political/religious background ”, the emergence of the FIS and then the GIA, the “background to the attacks” in 1995 – which it listed and described as attributable in all likelihood to the GIA – and the “context surrounding Rachid Ramda ”.",
"20. Ruling on the criminal charges, the court began by examining the case against the applicant. It found that it could be established with certainty, on the basis of precise and concurring physical evidence, that the applicant had indeed used various false names and aliases which had come up in the course of the investigations, a fact the court described as “beyond doubt and indisputable”. With regard to the GIA ’ s funding the court, having noted the prosecution ’ s claims that the applicant had funded the GIA groups which carried out the attacks in France during the second half of 1995, examined the factual evidence in the case file at length and in detail. It observed in particular that, according to one witness who was a GIA member, the organisation ’ s groups had different specialisations depending on their location, with the London group being responsible for sending funds. The court further noted that the applicant had transferred GBP 5,000 on 16 October 1995, two days before the attack of 17 October 1995. This was established by the statements of the British police officers tasked with keeping the applicant under surveillance and of the staff of the Western Union branch where the transfer had been made, and also by the discovery of the applicant ’ s fingerprints on the transfer slip kept by the Western Union branch. The court also observed that one of the perpetrators of the attacks, B.B., had stated that the money used in preparing the various attacks had always been supplied by the applicant from London. The court inferred that the facts as a whole “demonstrate[d] that Rachid Ramda was indeed responsible for funding terrorist groups on French soil”. Furthermore, in response to the public prosecutor ’ s submissions concerning the applicant ’ s role in disseminating GIA propaganda, the first-instance court also considered the various items of factual evidence before it, and in particular the wealth of correspondence and propaganda documents relating to the GIA ’ s views and actions that had been found during the searches of the various premises used by the applicant, as well as the statements by a GIA member confirming the applicant ’ s role as a member of the team publishing the magazine Al Ansar, which was the GIA outlet used in particular to claim responsibility for attacks. It also noted the presence at the applicant ’ s home of pamphlets promoting terrorism and killing with specific reference to France. The court concluded that the applicant had played a part in disseminating GIA propaganda and ideas.",
"21. Turning next to the applicant ’ s involvement in a criminal conspiracy in connection with a terrorist enterprise, the court found this offence to have been made out, as the investigation had shown that several groups located in the Lyons area, in Paris and in Lille had been behind the 1995 attacks. All the members had either been directly involved or had played an indirect role by aiding and abetting and providing resources, and all of them were either known activists or claimed to be activists within the GIA. The court found that the applicant ’ s contacts with the various members of these networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the court set out, among other findings, the facts showing the existence of links to eight members of three groups forming a support network for the GIA.",
"22. Accordingly, the Criminal Court found the applicant guilty of criminal conspiracy in connection with a terrorist enterprise, on the basis of Articles 450-1 and 421-1 of the Criminal Code. It sentenced him to ten years ’ imprisonment and ordered his permanent exclusion from French territory. The court cited as reasons for imposing the prison sentence the fact that “by providing funding and issuing propaganda on behalf of the GIA, Rachid RAMDA not only enabled the attacks to be carried out but acted as a propagandist, potentially attracting new members to strengthen the networks spread over several European countries”. It further cited the fact that “his double talk reveal[ ed ] both his bad faith and his complete lack of regret or remorse”. The court awarded one euro (EUR) in damages to the association SOS Attentats, which had joined the proceedings as a civil party.",
"23. In a final judgment of 18 December 2006 the Paris Court of Appeal upheld that judgment. While referring expressly to the statement of facts as established in the judgment, it devoted some thirty pages to analysing the charges against the applicant, giving reasons. First of all, the Court of Appeal gave further details concerning the evolution and operation of the GIA. It also specified that the case before it concerned “the series of attacks carried out in France in the summer and autumn of 1995”, and that “the facts of the case at hand concern [ ed ] the preparation of the attacks and the actions enabling the attacks, which started in France in July 1995, to be carried out”. The Court of Appeal went on to list the eight attacks carried out between 25 July and 17 October 1995. With particular reference to the evidence of the existence of an information hub based in London which the applicant had allegedly managed, it found this to be established on the basis of the telephone calls made on the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris ‑ Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean-Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack.",
"24. The Court of Appeal also emphasised the existence of several items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities. These included the fact that the applicant had sent funds from England on 16 October 1995 under the false name of Philippe Hervier, which had been received by B.B. at the Rivoli branch of the Rivaud bank under the false name of A. Benabbas, and which matched an entry in A.T. ’ s accounts book marked “36,800 francs, Lyseo ” and B.B. ’ s statements; the payment by the applicant of GBP 5,000 and 50,000 French francs (FRF), as shown by an entry in A.T. ’ s accounts book which mentioned funds sent by “ Walid ”, a false name used by the applicant or the first name of one of his acquaintances who could be contacted in order to reach him; statements from several individuals concerning services offered in return for payment, fundraising, the sending of substantial sums of money, a transfer of EUR 4,000 to M. and the existence of a receipt for GBP 100.",
"25. Lastly, the Court of Appeal noted a series of facts demonstrating, firstly, that the applicant had been “the main contact person ... in organising and carrying out the GIA ’ s activities in Europe”, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London ( press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been “the GIA ’ s main propaganda agent outside Algeria”, with “his role on the magazine Al Ansaar ” (particularly in the light of documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post - office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of “the London cell which revolved around [him and which] also served as a rallying point for young recruits passing through”, as demonstrated by the personal histories of four of them; and fourthly, that he had been a leader with “a strategic role in the GIA ’ s external organisation”, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide.",
"26. The Court of Appeal echoed the reasons given by the Criminal Court and added that there was sufficient evidence in the case to demonstrate that the applicant had been contacted regularly in order to be kept informed of events, that he had been responsible for funding GIA operations in Europe, that he had acted as a conduit for the GIA ’ s military command and as a propaganda agent for that organisation, especially through the magazine Al Ansar, that he had given shelter to fugitives passing through London and had sometimes been called upon to coordinate the GIA ’ s external activities. The Court of Appeal therefore concluded as follows:",
"“The Court of Appeal, like the first-instance court, therefore finds it established that the GIA created ‘ an external structure ’ in Europe designed to enable it to pursue its goal of overthrowing the Algerian regime, including by attacking institutions and people in countries that supported or were deemed to support that regime, by setting up networks in Belgium and France in particular which provided support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens (accommodation and false identity papers) to fighters who were fleeing the maquis or had arrived to carry out attacks, organised and coordinated by a cell in London in charge of fundraising and using funds acquired lawfully or unlawfully.",
"... [ the applicant ] knowingly played a decisive role, by means of the material acts referred to by the Criminal Court and by this court above, in the achievement of the GIA ’ s goal, participating from London in the implementation of the group ’ s external structure, and played a vital role within the organisation whose aim was to prepare, assist in and carry out the attacks which took place.”",
"27. In a judgment of 14 March 2007 the Court of Cassation dismissed an appeal on points of law by the applicant.",
"C. The proceedings before the assize courts ( procédure criminelle )",
"28. In a judgment of 13 February 2001 the Investigation Division of the Paris Court of Appeal indicted B.B., S.A.B. and the applicant for the attack of 17 October 1995 and committed them for trial before the Paris special Assize Court. The applicant was charged with aiding and abetting the crimes of attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection principally or incidentally with a terrorist enterprise, and with the related offence of a breach of the explosives legislation in connection with a terrorist enterprise.",
"29. On 3 August and 27 November 2001 the Investigation Division of the Paris Court of Appeal upheld the orders issued by the Paris investigating judge on 27 April (concerning the attack of 25 July 1995) and 13 July 2001 (concerning the attack of 6 October 1995) for the indictment of the applicant and B.B. and their committal for trial before the special Assize Court. The applicant faced trial for aiding and abetting the crimes of murder, attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing death, mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection with a terrorist enterprise, and for the related offence of a breach of the explosives legislation in connection with a terrorist enterprise.",
"30. These three judgments of the Investigation Division specified that the applicant had aided and abetted by: transmitting instructions from the GIA ordering attacks with explosives and providing B.B. with instructions on manufacturing; relaying to the GIA leadership operational information provided by the perpetrators of the attacks; providing the perpetrators with the funds needed not just to manufacture the explosive devices but also to make all the logistical arrangements for preparing and carrying out the attacks. The judgments of 13 February and 3 August 2001 added the fact that the funds had also been intended, if necessary, to enable the perpetrators based in France to flee.",
"31. In these judgments the judges noted in particular the following facts in relation to the applicant. The three mobile phones used by the applicant had received calls from B.B. on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1885 at 3.50 p.m. (Paris time) for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer of FRF 38,000 from an English branch of Western Union, and the checks carried out established that the applicant had gone into a Londis shop in Wembley containing a Western Union office at 2.34 p.m. on 16 October 1995 and had re-emerged at 3.26 p.m. (London time); the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil - Essonnes used by A.T. written on the back, and an entry had been made in the credit column of B.B. ’ s accounts for the sum of “5,000 pounds sterling from [W.], converted at a rate of 7.5% ”; a sum of GBP 6,945 had been sent on 20 July 1995; between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint ‑ Michel suburban rail station; and a letter from British Telecom had been found, addressed to “ Walid ” at 122 Hamlet Gardens, the applicant ’ s address. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest.",
"32. In its judgment of 13 February 2001 concerning the attack of 17 October 1995 the Investigation Division observed in particular that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995. It compared these calls with the statements made by B.B. and a further accomplice, who had been planning an attack on Lille city market, according to which they had reported to the applicant on preparations for the operations, and in particular for the attack of 17 October 1995. The Investigation Division also noted that the applicant had made a transfer of FRF 36,800 from London the day before that attack – as shown by the fact that his fingerprints had been found on the transfer slip in the Western Union office in London – which had been received by B.B. in Paris on the same day. The link between that transfer and the attack of 17 October 1995 had also been established by B.B. ’ s statements and by a call made to the applicant ’ s mobile phone the same day, after the money had been received.",
"33. In its judgment of 3 August 2001 relating more specifically to the attack of 2 5 July 1995, the Investigation Division stressed that the applicant ’ s English mobile phone had been called two days before that attack from a public payphone in Paris close to B.B. ’ s home from which other calls had been made, including a call to a mobile phone belonging to a member of the French GIA network, made one minute before the applicant was called. Furthermore, the day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Above all, the Investigation Division noted that the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995.",
"34. Lastly, in its judgment of 27 November 2001 the Investigation Division also noted that it was clear from these different elements that the applicant had sent funds to the perpetrators of the attacks, not just in relation to the campaign of attacks as a whole but also for use directly in carrying out the attack of 6 October 1995. With regard to the latter, it noted that the instructions issued by the GIA concerning the campaigns, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had also funded all the operational arrangements put in place in France in order to ensure the success of the attacks, and that the recipients had been required to report to him on how the money had been used. A number of telephone calls had established that the applicant had been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995, which had been followed by a telephone call on 8 October 1995 telling the applicant that everything had gone well on 6 October.",
"35. On 26 October 2007 the Paris special Assize Court, composed of seven professional judges, found the applicant guilty as charged in connection with the three attacks. It sentenced him to life imprisonment with a minimum term of twenty-two years. The applicant appealed on 29 October 2007.",
"36. The appeal proceedings before the Paris special Assize Court, this time composed of nine professional judges, took place from 16 September to 13 October 2009. One hundred and ninety-six individuals joined the proceedings as civil parties, as did the RATP (the Paris public-transport operator), the SNCF (the French national rail company), the Guarantee Fund for victims of terrorist acts and other crimes, the Government Law Officer and the association SOS Attentats.",
"37. At the hearing of 16 September 2009 counsel for the applicant made submissions requesting the termination of the proceedings and a finding that the prosecution was null and void, on the basis of the ne bis in idem principle. Citing Article 4 of Protocol No. 7 and the judgment in Sergey Zolotukhin v. Russia, delivered by the Grand Chamber of the Court on 10 February 2009, they argued that the material acts which the Assize Court was called on to examine were the same as those of which the applicant had previously been convicted by the Paris Court of Appeal in its final judgment of 18 December 2006. In counsel ’ s view, the material acts alleged in the Assize Court proceedings, namely the transfer of funds to the perpetrators of the attacks, the transmission of instructions to the same perpetrators, and the monitoring of the preparation and carrying -out of the attacks, had also been alleged in the Criminal Court proceedings.",
"38. In an interlocutory judgment of 17 September 2009 the special Assize Court dismissed the objection regarding a breach of the ne bis in idem principle, finding as follows:",
"“Although Rachid RAMDA ’ s defence counsel correctly points out that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘ offence ’ in so far as it arises from identical facts or facts which are substantially the same, the following factors need to be taken into consideration in the present case:",
"- The facts on which the criminal courts based their finding that Rachid RAMDA was guilty, while they related to criminal acts dealt with in the current set of proceedings, were by no means confined to them. In finding the offence of criminal conspiracy to be made out – a separate offence that is provided for and punishable under Article 450-1 of the Criminal Code – the courts considered all the elements apt to substantiate the accused ’ s involvement in the conspiracy, which was aimed at organising, developing and ensuring the continuation of a movement that was bent on imposing its cause, in particular by using clandestine methods and material and intellectual resources (recruitment of and regular contact with activists, dissemination of information on the GIA ’ s activities and views, fundraising, seeking donations of weapons and various items of equipment, etc.), without necessarily pursuing the sole objective of carrying out the attacks that are the subject of the proceedings.",
"- The facts to be considered by this court differ substantially from the earlier ones in that they relate to criminal conduct aimed at the achievement of one-off objectives which were determined with precision and were not inextricably linked, and which were driven by a specific motivation consisting in particular in providing others, in full knowledge of the situation, with the means of deliberately harming human life or individuals ’ physical or mental integrity by the use of explosives.",
"- In these circumstances the finding that Rachid RAMDA was guilty and his conviction by the Paris Court of Appeal cannot lead the Assize Court to find that his prosecution has lapsed and to declare the criminal proceedings against him null and void.",
"- It is thus the task of the Assize Court, on conclusion of the proceedings and in the light thereof, to rule, by answering the questions raised before it, as to whether or not Rachid RAMDA is guilty of aiding and abetting as charged ... ”",
"39. In an interlocutory judgment of 24 September 2009 the special Assize Court of Appeal deferred its decision on a request for further information and eventually rejected the request in a further interlocutory judgment of 8 October 2009.",
"40. Sixty-three questions concerning the applicant alone were put to the special Assize Court of Appeal. Twenty-six related to the circumstances surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The questions gave precise details of the various alleged acts and where and when they had been committed, and listed the names of dozens of victims of killings and attempted killings, mutilation or permanent disability, injuries resulting in unfitness for work of up to eight days or more, and victims of damage to their property. The answer to sixty-one of the questions was “yes ”, by a majority (some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “ devoid of purpose ”. Besides details regarding the places and dates concerned in each instance, as well as the indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The parties did not comment on these questions.",
"41. An affirmative answer was given to the questions whether the applicant had knowingly assisted in the manufacture or possession of explosive devices and in issuing instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and whether he had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995.",
"42. In a judgment of 13 October 2009 the special Assize Court of Appeal found the applicant guilty and sentenced him to life imprisonment with a minimum term of twenty-two years, and ordered his permanent exclusion from French territory. It adjourned the civil hearing for a later date. The applicant appealed on points of law.",
"43. On 15 June 2011 the Court of Cassation dismissed the applicant ’ s appeal on points of law. Regarding his ground of appeal to the effect that no reasons had been given for the finding of guilt, based in particular on Article 6 of the Convention, it found as follows:",
"“Firstly, the impugned questions, which were put in accordance with the law, established in all aspects the acts of aiding and abetting of which Mr Ramda was found guilty.",
"Secondly, the judgment convicting Mr Ramda included the answers which the judges comprising the special Assize Court of Appeal gave immediately after the oral proceedings, on the basis of their personal conviction and by a majority following a secret vote, to the questions concerning his guilt which were put to them in accordance with the operative provisions of the committal orders and were the subject of adversarial argument.",
"Accordingly, and given that steps were taken to ensure the prior investigation of the charges contained in the indictment, the free exercise of the rights of the defence, and the public and adversarial nature of the proceedings, the requirements laid down by the statutory and Convention provisions relied on were satisfied. ”",
"44. As to the ground of appeal concerning a breach of the ne bis in idem principle on account of the applicant ’ s final conviction by the Paris Court of Appeal on 18 December 2006 on the basis of identical facts, the Court of Cassation held that criminal conspiracy was a separate offence from the crimes prepared or committed by its members and also from the offences characterised by certain material acts that embodied it.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"49. The applicant complained that no reasons had been given for the judgment delivered by the special Assize Court. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"50. The Government contested that argument.",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a) The applicant",
"52. The applicant stated at the outset that personal conviction, which was not the same as arbitrariness or intuition, must be based on a free assessment of the evidence. It found support in the free admissibility of evidence and not in the absence of evidence. Accordingly, if the defence adduced cogent evidence during the trial it had to be informed, if it was to understand and accept the verdict, of the main reasons why the Assize Court had found the accused to be guilty.",
"53. Of the sixty-three questions read out at the hearing, twenty-eight had concerned the applicant personally. The applicant added that twelve questions had related to the attack of 25 July 1995, nine to the attack of 6 October 1995 and a further nine to the attack of 17 October 1995. The applicant submitted that these twenty-eight questions had been drafted in the abstract by the president following the hearings and had not contained any factual reference or any reasoning regarding the charge of aiding and abetting. The manner in which they were drafted had left him unaware as to why the answer had been “yes” in each case despite the fact that he had denied any personal involvement in the three attacks.",
"54. The applicant stated in particular that certain factual elements which he disputed prevented him from understanding the reasons for his conviction. In his submission, as it had become clear at the trial that there were shortcomings in the investigation as well as inaccuracies and uncertainty as to his personal involvement, he was unable to understand the reasons for his conviction on the basis of a combined reading of the indictments and the twenty-eight questions.",
"55. He further submitted that the violation of Article 6 was even more evident since the verdict had not been given by a lay jury, but by a jury made up exclusively of professional judges, who were required to indicate with sufficient clarity the grounds on which their decisions were based. The professional judges making up an assize court bench had to give reasons for their decisions, just as they did in cases before the ordinary criminal courts; that obligation was unquestionably one of the requirements of a fair trial in the modern age.",
"( b) The Government",
"56. The Government referred first of all to the Court ’ s case-law concerning assize courts with a lay jury, while observing that the issue of the absence of reasons for a decision given in criminal proceedings in France by a jury of professional judges was being raised for the first time before the Court. The Constitutional Council, in its ruling of 3 September 1986 on the special composition of the assize courts in terrorism cases ( dec. no. 86-213), had found that the exception made in the formation of the assize court was limited in nature, that the difference in treatment was designed to circumvent the risk of pressure or threats to which lay jurors might be subjected, and that an assize court sitting in a special composition of professional judges satisfied the requirements of independence and impartiality. Furthermore, the accused benefited from the same information and the same safeguards as before the ordinary assize courts, including the possibility of appealing since the enactment of Law no. 2000-516 of 15 June 2000.",
"57. The Government emphasised that Law no. 2011-939 of 10 August 2011, which had made it compulsory, as of 1 January 2012, for assize court judgments to be accompanied by reasons, also applied to judgments of the special assize courts.",
"58. The Government therefore submitted that the procedural safeguards had enabled the applicant to understand the decision in his case and that the proceedings had complied with the Convention requirements. They noted in particular that the applicant had been the only defendant in the appeal proceedings, and that the indictments had been read out in full, as had the questions put at first instance, the answers to those questions and the judgment convicting him. The oral proceedings had lasted from 16 September to 13 October 2009 and the charges had been the subject of adversarial argument; the applicant had given evidence and had been able to defend his case by debating each item of evidence. The Government observed that no fewer than sixty-three questions had been put and that the affirmative answers had confirmed the three judgments committing the applicant for trial and the criminal conviction handed down at first instance. In particular, it had been open to the applicant to request that the questions be rephrased or that one or more additional questions be asked.",
"2. The Court ’ s assessment",
"59. The Court reiterates that, while the Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict ( see Taxquet v. Belgium [GC], no. 926/05, § 89, ECHR 2010; Agnelet v. France, no. 61198/08, § 56, 10 January 2013; and Lhermitte v. Belgium [GC], no. 34238/09, § 66, ECHR 2016), in proceedings conducted before professional judges, the accused ’ s understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases the national courts must indicate with sufficient clarity the grounds on which they base their decisions (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252, and Taxquet, cited above, § 91). Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. However, even for professional judges the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A, and Taxquet, cited above, § 91). While courts are not obliged to give a detailed answer to every argument raised (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288), it must be clear from the decision that the essential issues of the case have been addressed ( see Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ).",
"60. The Court also reiterates that, in any event, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see Taxquet, cited above, § 90, and Lhermitte, cited above, § 67). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society ( see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007 ‑ I; and Taxquet, cited above).",
"61. Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court ’ s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty ( see Taxquet, cited above, § 93). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based and sufficiently offsetting the fact that no reasons are given for the jury ’ s answers. Regard must also be had to any avenues of appeal open to the accused (see Papon v. France ( dec. ), no. 54210/00, ECHR 2001-XII; Taxquet, cited above, § 69; and Lhermitte, cited above, § 68). In this regard the Court must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies ( see Taxquet, cited above, § 93; Lhermitte, cited above, § 69; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 126, ECHR 2017).",
"62. The Court notes that although the present case concerns an assize court it is distinguishable from comparable cases brought before it in the past in that the court in question did not sit with a lay jury, but in a special composition made up exclusively of professional judges. Accordingly, irrespective of the terminology used, the issue of the absence of reasons does not arise in the context of the involvement of a lay jury.",
"63. The fact remains that no reasons were given for the Assize Court of Appeal judgment of 13 October 2009, just as was the case with judgments of the assize courts sitting with a lay jury prior to the enactment of Law no. 2011-939 of 10 August 2011 (see Agnelet, cited above; Oulahcene v. France, no. 44446/10, 10 January 2013; Fraumens v. France, no. 30010/10, 10 January 2013; Legillon v. France, no. 53406/10, 10 January 2013; Voica v. France, no. 60995/09, 10 January 2013; and Matis v. France ( dec. ), no. 43699/13, 6 October 2015), which also applied to special assize courts.",
"64. Consequently, while stressing that in proceedings before professional judges the domestic courts must indicate with sufficient clarity the grounds on which they base their decisions, the Court reiterates that the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see paragraph 59 above). It therefore considers it relevant, in view of the specific features of these proceedings – which are broadly similar to proceedings involving a lay jury – to examine the applicant ’ s complaint in the light of the principles established in its judgment in Taxquet (cited above; see also Agnelet, Oulahcene, Fraumens, Legillon and Voica, all cited above, and Lhermitte, cited above ).",
"65. The Court observes at the outset that all defendants in French criminal proceedings, like the applicant, are provided with certain information and afforded certain safeguards: the indictment, or the judgment of the investigation division in the case of an appeal, is read out in full by the clerk at the trial in the assize court; the charges are read out and are then the subject of adversarial argument, each item of evidence being examined and the accused being assisted by counsel; the judges and jury withdraw to deliberate immediately after the oral proceedings have ended and the questions have been read out, without having access to the case file; accordingly, their decision can only be based on the evidence examined by the parties during the trial. Furthermore, the decisions of the assize courts are subject to review by an enlarged assize court of appeal, made up of nine judges compared with seven at first instance in the case of a special assize court (see, in particular, Agnelet, cited above, § 63).",
"66. With regard to the combined impact of the indictment and the questions to the Assize Court in the present case, the Court notes firstly that the applicant was not the only accused and that the case was a complex one.",
"67. Furthermore, the three judgments committing the applicant for trial had a limited impact since they were delivered before the oral proceedings, which formed the crucial part of the trial. The Court nevertheless notes that each of these judgments concerned a different attack and that the reasoning was particularly thorough with regard to the charges, setting out the events in a very detailed manner. Moreover, the accused had already had an opportunity during the first-instance proceedings to assess the charges against him in depth and to put forward a defence. Besides the fact that the judgments committing the applicant for trial continued to form the basis for the charges against him in the Assize Court of Appeal proceedings, the oral proceedings at first instance had afforded him a more detailed insight into the charges against him and the grounds on which he was liable to be convicted on appeal.",
"68. A total of sixty-three questions were asked concerning the applicant, of which twenty-six related to the events surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The answer was “yes ”, by a majority, in the case of sixty-one of them ( some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “devoid of purpose” (see paragraph 40 above). The Court notes in particular that, besides details of the places and dates concerned in each instance and an indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The Court considers that, owing to their number and precision, these questions formed a framework on which to base the verdict ( see, mutatis mutandis, Papon v. France (no. 2) ( dec. ), no. 54210/00, ECHR 2001 ‑ XII). It further notes that, while the applicant objected to the manner in which they were drafted (see paragraph 53 above), he did not seek either to amend them or to ask other questions (see, mutatis mutandis, Lhermitte, cited above, § 79).",
"69. Accordingly, in the light of the combined examination of the three judgments committing the applicant for trial, which were particularly thoroughly reasoned, the oral proceedings to which he had access both at first instance and on appeal, and the numerous and precise questions put to the Assize Court, the applicant could not claim to have been unaware of the reasons for his conviction.",
"70. In sum, the Court considers that in the instant case the applicant was afforded sufficient safeguards enabling him to understand why he was found guilty (compare, mutatis mutandis, Legillon, cited above, § 67; Voica, cited above, § 53; and Bodein v. France, no. 40014/10, § 42, 13 November 2014). The Court nevertheless welcomes the fact that the reforms introduced since the material time, with the enactment of Law no. 2011-939 of 10 August 2011 requiring a “statement of reasons form” to be drawn up (see Legillon, § 68; Voica, § 54; and Bodein, § 43, all cited above), also applies to special assize courts (see paragraph 63 above).",
"71. It follows that there has been no violation of Article 6 § 1 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.. 7",
"72. The applicant contended that he had been prosecuted and convicted twice for identical facts, in view of his final conviction by the Paris Court of Appeal on 18 December 2006. He relied on Article 4 of Protocol No. 7, which provides:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"73. The Government contested that argument.",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a) The applicant",
"75. The applicant maintained that it was clear from the Court ’ s case-law that the facts to be assessed should be understood to refer to the behaviour or conduct of which he had been accused before the criminal courts and subsequently before the assize courts. In his view, the criminal acts referred to in the Investigation Division ’ s judgments were encompassed in the facts on the basis of which he was finally convicted by the Paris Court of Appeal on 18 December 2006.",
"76. In his application and his observations in reply to those of the Government, the applicant raised arguments regarding the funding operations and telephone calls. In particular, with regard first of all to the attack of 25 July 1995, he stressed that the transfer of a sum of GBP 5,000 referred to in the judgment of 3 August 2001 was also taken into consideration in the Paris Court of Appeal judgment of 18 December 2006. In the applicant ’ s view, the transfer of the sum of GBP 6,945 referred to in the Investigation Division ’ s judgment of 3 August 2001 should be regarded as being encompassed in the facts of the judgment of 18 December 2006, which had taken into account all the material acts committed by the applicant in connection with his role in funding the preparations for the attacks.",
"77. As to the telephone calls of 24 July 1995 referred to in the judgment of 3 August 2001 committing the applicant for trial, but not mentioned in the judgment of 18 December 2006, the applicant noted that in the latter judgment the Paris Court of Appeal had convicted him specifically on account of his role as coordinator of the GIA ’ s external activities, finding that the existence of an information hub in London which he had allegedly managed was demonstrated by the correlation between the telephone calls and the attacks. The calls of 24 July were thus inextricably linked to the calls made by the applicant in his role as coordinator of the various attacks.",
"78. The same was true of the calls of 26 September and 22 October 1995 referred to by the Government. Although they were not mentioned in the judgment of 18 December 2006, the applicant maintained that they were inextricably linked to the other calls.",
"( b) The Government",
"79. In the Government ’ s submission, the applicant had not been convicted on the basis of the same facts since he had been charged with separate offences, the elements of which were different. The facts in respect of which the applicant had been sentenced to ten years ’ imprisonment by the Paris Court of Appeal on 18 December 2006 were not identical, or substantially the same, as those for which the special Assize Court of Appeal sentenced him to life imprisonment on 13 October 2009. In particular, the Paris Court of Appeal had examined the applicant ’ s involvement in the conspiracy, whereas the special Assize Court had tried him on charges of aiding and abetting the attacks of 25 July, 6 October and 17 October 1995. In the Government ’ s view, the facts were therefore different in the two sets of proceedings. In the criminal court proceedings, the applicant had been charged with membership of a terrorist group, whereas the special Assize Court had tried him for specific acts consisting of aiding and abetting the carrying-out of terrorist attacks. Moreover, each of the sentences passed was deemed to cover the concurrent offences, subject to the statutory limit applicable to each one.",
"80. In the alternative, if the Court were to consider that the facts should be understood to mean the behaviour or conduct with which the applicant had been charged by the criminal courts and subsequently by the assize courts, the Government submitted that these were likewise not identical or substantially the same. For instance, the judgment of 18 December 2006 had not mentioned certain facts that were taken into consideration subsequently.",
"2. The Court ’ s assessment",
"( a) General principles",
"81. The Court reiterates that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, ECHR 2016).",
"82. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. Such statements of fact are an appropriate starting-point for the Court ’ s determination of the issue whether the facts in both proceedings were identical or substantially the same. It is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83).",
"83. The Court ’ s inquiry should therefore focus on the facts set out in these statements, which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84).",
"84. In so doing, the Court must determine whether the new proceedings arose from facts which were substantially the same as those which had been the subject of the final conviction (see Sergey Zolotukhin, cited above, § 82; see also Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 224, 4 March 2014, and Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 68, 30 April 2015). In its judgment in A and B v. Norway, which concerned the conduct of mixed proceedings (that is, criminal and administrative), the Court reaffirmed this approach, noting that it represented the most significant contribution of the Sergey Zolotukhin judgment, cited above (see A and B v. Norway, cited above, § 108).",
"( b) Application of the above-mentioned principles to the present case",
"85. The Court notes at the outset that the judgment of the Paris Court of Appeal of 18 December 2006, convicting the applicant following criminal proceedings, became final on 14 March 2007 when his appeal on points of law was dismissed (see paragraph 27 above). From that point onwards, therefore, the applicant was to be considered as having already been finally convicted of an offence for the purposes of Article 4 of Protocol No. 7.",
"86. The proceedings coming within the jurisdiction of the assize courts, which reflected the procedural choice made by the judicial authorities and gave rise to the judgments of February, August and November 2001 committing the applicant for trial, and which resulted in the applicant ’ s conviction by the special Assize Court on 26 October 2007 and on 13 October 2009, were not discontinued.",
"87. The Court notes that, contrary to what the Government appeared to assert (see paragraph 79 above), it is clear from the principles set forth in Sergey Zolotukhin, cited above, that the issue to be determined is not whether the elements of the offences with which the applicant was charged in the proceedings before the criminal courts and those before the assize courts were or were not identical, but whether the facts at issue in the two sets of proceedings referred to the same conduct. Where the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was initially convicted, and those of the offence for which proceedings continued, were identical or substantially the same (see Sergey Zolotukhin, cited above, § 94).",
"88. As regards the proceedings in the criminal courts, the Court notes that the Criminal Court took care to present the facts in detail in its judgment of 29 March 2006. After setting the case in context and assessing the evidence against the applicant (see paragraphs 19-20 above), it found that his involvement in a criminal conspiracy in connection with a terrorist enterprise was established, as the judicial investigation had shown that several terrorist groups were based in the Lyons region, in Paris and in Lille and that the applicant ’ s contacts with the various members of these GIA support networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the Criminal Court set out the facts demonstrating the applicant ’ s links to eight members of these groups and found that by providing funding and issuing propaganda on behalf of the GIA, the applicant had helped to strengthen the networks spread over several European countries (see paragraphs 21-22 above).",
"89. The Court further notes that in its judgment of 18 December 2006 the Paris Court of Appeal gave reasons explaining its approach. It began by giving details of the telephone calls demonstrating the existence of an information hub in London which was allegedly managed by the applicant. Hence, it referred to the calls made the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris-Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean ‑ Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack ( see paragraph 23 above ). The Court notes that the Paris Court of Appeal went on to list the items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities in France. It referred to the funds sent by the applicant on 16 October 1995 under a false name and received by B.B.; the payment by the applicant of GBP 5,000 and FRF 50,000; and statements from several individuals concerning services offered in return for payment, fundraising and money transfers (see paragraph 24 above). The Court of Appeal also referred to a series of facts demonstrating, firstly, that the applicant had been the main contact person in organising and carrying out the GIA ’ s activities in Europe, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London (press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been the GIA ’ s main propaganda agent outside Algeria (in view of his role on the magazine Al Ansar as established by documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post-office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of the London cell which also served as a rallying point for young recruits passing through; and fourthly, that he had been a leader with a strategic role in the GIA ’ s external organisation, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide (see paragraph 25 above).",
"90. Lastly, the Court notes that the Court of Appeal cited as reasons for its judgment the decisive role knowingly played by the applicant in the external structure set up in Europe by the GIA with the aim of overthrowing the Algerian regime. This involved creating networks in Belgium and France in particular in order to provide support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens to fighters who were fleeing the Algerian maquis or had arrived to carry out attacks (see paragraph 26 above).",
"91. As regards the assize court proceedings, the Court notes that the Investigation Division of the Paris Court of Appeal, in three judgments of 13 February, 3 August and 27 November 2001, committed the applicant for trial before the Paris Assize Court on charges of aiding and abetting the crimes committed during the attacks of 25 July and 6 and 17 October 1995 (see paragraphs 28-29 above). It observes that these judgments, which in this instance concerned specific criminal conduct aimed at the achievement of precise objectives represented by each of the attacks carried out in Paris on 25 July and 6 and 17 October 1995, set out the factual evidence forming the basis for the applicant ’ s prosecution and his committal for trial before the Assize Court. In particular, the applicant was charged, in relation to these three attacks, with transmitting instructions from the GIA ordering the attacks to be carried out with explosives and relaying to the GIA leadership operational information provided by the perpetrators of the attacks, and with issuing instructions for making the explosive devices to his accomplices in Paris, while procuring for them the funds needed to manufacture the explosives and make all the logistical arrangements for preparing and carrying out these particular attacks (see paragraph 30 above).",
"92. The Court observes that the Investigation Division ’ s judgments listed the following specific facts in particular. The three mobile phones used by the applicant had received calls from B.B., one of the main organisers in Paris and one of the perpetrators of the attacks, on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1995 for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer for FRF 38,000; the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged in London at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil-Essonnes used by one of the perpetrators of the attacks written on the back, and an entry had been made in the credit column of B.B. ’ s accounts; a sum of GBP 6,945 had been sent on 20 July 1995; and between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint-Michel suburban rail station. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest (see paragraph 31 above).",
"93. The Court also notes that the Investigation Division emphasised certain factual elements specific to the different attacks. For instance, in its judgment of 13 February 2001 concerning the attack of 17 October 1995 it stressed the fact that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995, in order to report to the applicant on the preparations under way. The Investigation Division also highlighted the fact that the transfer of FRF 36,800 made from London the day before the attack of 17 October 1995 was directly linked to that attack (see paragraph 32 above). In its judgment of 3 August 2001 concerning the attack of 25 July 1995, the Investigation Division stressed that a call had been made to the applicant ’ s English mobile phone two days before the attack from a public payphone in Paris close to B.B. ’ s home which had also been used to contact another GIA member in France. The day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Furthermore, the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995 (see paragraph 33 above). Finally, in its judgment of 27 November 2001 concerning the attack of 6 October 1995, the Investigation Division noted that the instructions issued by the GIA concerning the campaign of attacks, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had been required to account for the use of the sums he had provided and had also been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995 by means of a telephone call of 8 October 1995 (see paragraph 34 above). The Assize Court went on to find that he had knowingly assisted in the manufacture or possession of explosive devices and issued instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995 (see paragraph 41 above).",
"94. Having thus compared the judgment of 18 December 2006 in which the Paris Court of Appeal convicted the applicant and the three judgments of the Investigation Division of 13 February, 3 August and 27 November 2001 committing him for trial before the special Assize Court, the Court notes that these decisions were based on numerous and detailed facts that were distinct from each other. In particular, it considers that although the transfer of GBP 5,000 referred to by the applicant (see paragraph 76 above) was mentioned both in the Court of Appeal judgment and in the judgments of the Investigation Division, that circumstance does not amount to a decisive similarity. As to the transfer of a sum of GBP 6,945 and the telephone calls on which the applicant relied, the Court observes – as did the applicant himself – that none of these features in both the Court of Appeal judgment convicting him and any of the Investigation Division ’ s judgments committing him for trial. On this point, it is not persuaded by the applicant ’ s claims that the transfer of funds should be regarded as being encompassed in the facts of the judgment of 18 December 2006 and that the telephone calls were inextricably linked to other calls dealt with in that judgment (see paragraphs 76 to 78 above). In any event, irrespective of these aspects referred to by the applicant in his observations, it appears that the three judgments delivered in 2001 committing the applicant for trial not only disregarded numerous factual elements raised in the criminal court proceedings, but above all concerned conduct and were based on facts that had not been referred to in the first set of proceedings.",
"95. The Court therefore concludes that the applicant was not prosecuted or convicted in the assize court proceedings on the basis of facts that were substantially the same as those that were the subject of his final conviction by the criminal courts.",
"96. Lastly, the Court reiterates that it is legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see, in particular, A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009; Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008; and Daoudi v. France, no. 19576/08, § 65, 3 December 2009). Moreover, the applicant was convicted by the Assize Court not just on the basis of facts that differed from those for which he had been convicted in the first set of proceedings, but also for the crimes of aiding and abetting murder and attempted murder. The Court emphasises that these offences constitute serious violations of fundamental rights under Article 2 of the Convention, whose perpetrators States are required to prosecute and punish (see, mutatis mutandis, Marguš v. Croatia [GC], no. 4455/10, §§ 127-28, ECHR 2014 (extracts) ), provided that the procedural guarantees of the persons concerned are complied with (compare, in particular and mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 252, ECHR 2016), as they were in the applicant ’ s case.",
"97. In the light of the foregoing, the Court considers that there has been no violation of Article 4 of Protocol No. 7 to the Convention."
] |
244 | Ramda v. France | 19 December 2017 | The applicant, an Algerian national, was extradited from the United Kingdom to France on charges related to a series of terrorist attacks in 1995 in France. He complained about an alleged error in the reasoning of the judgment delivered by a special bench of the Assize Court of Appeal which convicted him. He also complained about a violation of the ne bis in idem principle owing to his criminal conviction despite his previous final conviction by the ordinary criminal courts. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention. It found in particular that the applicant in the present case had benefited from sufficient safeguards to enable him to understand his conviction by the special bench of the Assize Court of Appeal, considering that in view of the combined consideration of the three closely reasoned committal orders, the debates during the hearings of the applicant, as well as the many detailed questions put to the Assize Court, he could not claim not to know the reasons for his conviction. The Court also held that there had been no violation of Article 4 (right not to be tried or punished twice) of Protocol No. 7 to the Convention, finding that the applicant had not been prosecuted or convicted in the framework of the criminal proceedings for facts which had been substantially the same as those of which he had been finally convicted under the prior summary proceedings. The Court reiterated in particular that it was legitimate for the Contracting States to take a firm stance against persons involved in terrorist acts, which it could in no way condone, and that the crimes of complicity in murder and attempted murder of which the applicant had been convicted amounted to serious violations of the fundamental rights under Article 2 (right to life) of the Convention, in respect of which States are required to pursue and punish the perpetrators, subject to compliance with the procedural guarantees of the persons concerned, as was the situation for the applicant in the present case. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969 and is currently detained in Lannemezan Prison.",
"A. Background to the case",
"6. The applicant was a member of the Islamic Salvation Front ( Front Islamique du Salut – “the FIS ” ) and left Algeria prior to the dissolution of that political group by a judgment of the Algiers Administrative Court dated 19 March 1992. After spending some time in Pakistan he entered the United Kingdom in January 1993 using the false name of Elias Serbis. On 26 February 1993 he applied for political asylum in that country, claiming to have been forced to leave Algeria because of his membership of the FIS. His application was refused on 10 August 1994.",
"7. On 25 July, 17 and 26 August, 3, 4 and 7 September and 6 and 17 October 1995 eight terrorist attacks were carried out in France.",
"8. Although no organisation explicitly claimed responsibility, certain factors, such as the existence of virulent press statements against France and the mode of operation of the attacks, pointed to the involvement of the Armed Islamic Group ( Groupement Islamique Armé – “the GIA ” ).",
"9. In the course of the judicial investigation aimed at identifying the perpetrators, telephone tapping operations carried out on public payphones used by a certain B.B. led to a number of persons being arrested and to the search being focused on the United Kingdom and an individual named Elyes (also known as Elyesse or Eliass ). The sources of these names or pseudonyms were a telephone conversation of 1 November concerning Elyes and the Western Union bank, a search of B.B. ’ s home during which a document was found showing that a sum of money had been transferred to B.B. from that bank on 16 October 1995, and the decoding of a list of telephone numbers found on B.B. ’ s person and at his home and featuring three numbers in England preceded by the name “ Elyesse ” or “ Eliass ”. B.B., who was arrested on 1 November 1995, also directly implicated “ Ylies ”, claiming that he had funded the campaign of attacks from London and had been kept informed of their progress.",
"10. On 3 November 1995 the French National Surveillance Directorate informed the investigators that the individual known as “ Elyes, Ilyes, Lyes, Iliesse, Eliass or Elyasse ”, whom B.B. had identified as having funded the attacks, might be the applicant. The latter, who was living in London, was suspected of being one of the leaders of the GIA in the United Kingdom, in particular because of his involvement with the publication Al Ansar (or Al Ansaar ) which the GIA used as a mouthpiece abroad.",
"11. The investigations carried out in London established that the applicant had a home there and had a set of keys to a second London address, which served as the offices of the magazine Al Ansar and as a meeting place for all the persons involved in publishing and distributing it. On the premises the investigators found, among other items, the following: contracts for three mobile phones in the names of three of the applicants ’ acquaintances and corresponding to the numbers identified at the home of B.B., who had rung the numbers before and after each attack; a receipt for the rental of a post - office box in the name of Fares ELIASS with the applicant ’ s fingerprints on it; letters and statements from the FIS; a statement saying that only the GIA was entitled to conduct the jihad; a letter from the GIA to the French President calling on him to convert to Islam; a letter commenting on the attacks carried out in France; copies of press articles on anti-terrorism mentioning the names of judges and members of the intelligence service; a piece of paper on which “ Notre Dame 33 ‑ 1 ‑ 43 ‑ 54-46-12 ” was written, corresponding to the telephone number of the Western Union branch at 4 rue du Cloître Notre Dame in Paris; and a receipt dated 21 July 1995 issued by a branch of Thomas Cook in London for a sum of 5,000 pounds sterling (GBP).",
"12. The applicant was arrested and placed in police custody from 4 to 7 November 1995 under the Prevention of Terrorism Act.",
"13. On 7 November 1995 the applicant was detained pending extradition under the terms of an international arrest warrant issued on the same day in connection with the investigation into the attack carried out on 6 October 1995 close to the Maison Blanche metro station.",
"14. Three further international arrest warrants were issued concerning the applicant: on 24 November 1995 in relation to the attack of 17 October at the Gare d ’ Orsay station; on 29 January 1996 in the case concerning a conspiracy to prepare terrorist attacks; and on 16 January 2001 in relation to the attack carried out on 25 July 1995 at the Saint-Michel suburban rail station.",
"15. The applicant lodged habeas corpus applications which were dismissed in June 1997 and in 2001. On 8 October 2001 the British Home Secretary ordered his removal to France, but that order was quashed by the High Court, Queen ’ s Bench Division, on 27 June 2002.",
"16. On 6 April 2005 the Home Secretary signed a fresh order for the applicant ’ s extradition in the light of the assurances provided by the French authorities concerning the safeguards of a fair and impartial trial in France. On 14 October 2005 the High Court dismissed an appeal by the applicant.",
"17. On 1 December 2005 the applicant was handed over to the French authorities and was remanded in custody the following day.",
"B. The proceedings before the criminal courts ( procédure correctionnelle )",
"18. By an order of 5 February 1999 the applicant was committed for trial in the Paris Criminal Court for involvement – in France and in England, from an unspecified date until 4 November 1995 – in an association or conspiracy formed with a view to the preparation, in the form of one or more material acts, of one of the terrorist acts in question. The investigating judge stated, in particular, as follows :",
"“ - [the applicant] was responsible for distributing the journal Al Ansar, a propaganda outlet of the Armed Islamic Group;",
"- ... was involved on this account in disseminating propaganda for that organisation, which is banned in France;",
"- ... was the main contact person in Europe for [D.Z.], alias Abou Abderhamane Amine, in organising and carrying out the GIA ’ s activities in Europe;",
"- ... was tasked with sending money to GIA members still in France to enable them to fund and carry out attacks;",
"- ... was in contact with numerous persons involved in and convicted of criminal conspiracy with a view to a terrorist enterprise .”",
"19. In a judgment of 29 March 2006 accompanied by over thirty pages of reasoning, the Criminal Court first of all set out the facts with regard to the “political/religious background ”, the emergence of the FIS and then the GIA, the “background to the attacks” in 1995 – which it listed and described as attributable in all likelihood to the GIA – and the “context surrounding Rachid Ramda ”.",
"20. Ruling on the criminal charges, the court began by examining the case against the applicant. It found that it could be established with certainty, on the basis of precise and concurring physical evidence, that the applicant had indeed used various false names and aliases which had come up in the course of the investigations, a fact the court described as “beyond doubt and indisputable”. With regard to the GIA ’ s funding the court, having noted the prosecution ’ s claims that the applicant had funded the GIA groups which carried out the attacks in France during the second half of 1995, examined the factual evidence in the case file at length and in detail. It observed in particular that, according to one witness who was a GIA member, the organisation ’ s groups had different specialisations depending on their location, with the London group being responsible for sending funds. The court further noted that the applicant had transferred GBP 5,000 on 16 October 1995, two days before the attack of 17 October 1995. This was established by the statements of the British police officers tasked with keeping the applicant under surveillance and of the staff of the Western Union branch where the transfer had been made, and also by the discovery of the applicant ’ s fingerprints on the transfer slip kept by the Western Union branch. The court also observed that one of the perpetrators of the attacks, B.B., had stated that the money used in preparing the various attacks had always been supplied by the applicant from London. The court inferred that the facts as a whole “demonstrate[d] that Rachid Ramda was indeed responsible for funding terrorist groups on French soil”. Furthermore, in response to the public prosecutor ’ s submissions concerning the applicant ’ s role in disseminating GIA propaganda, the first-instance court also considered the various items of factual evidence before it, and in particular the wealth of correspondence and propaganda documents relating to the GIA ’ s views and actions that had been found during the searches of the various premises used by the applicant, as well as the statements by a GIA member confirming the applicant ’ s role as a member of the team publishing the magazine Al Ansar, which was the GIA outlet used in particular to claim responsibility for attacks. It also noted the presence at the applicant ’ s home of pamphlets promoting terrorism and killing with specific reference to France. The court concluded that the applicant had played a part in disseminating GIA propaganda and ideas.",
"21. Turning next to the applicant ’ s involvement in a criminal conspiracy in connection with a terrorist enterprise, the court found this offence to have been made out, as the investigation had shown that several groups located in the Lyons area, in Paris and in Lille had been behind the 1995 attacks. All the members had either been directly involved or had played an indirect role by aiding and abetting and providing resources, and all of them were either known activists or claimed to be activists within the GIA. The court found that the applicant ’ s contacts with the various members of these networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the court set out, among other findings, the facts showing the existence of links to eight members of three groups forming a support network for the GIA.",
"22. Accordingly, the Criminal Court found the applicant guilty of criminal conspiracy in connection with a terrorist enterprise, on the basis of Articles 450-1 and 421-1 of the Criminal Code. It sentenced him to ten years ’ imprisonment and ordered his permanent exclusion from French territory. The court cited as reasons for imposing the prison sentence the fact that “by providing funding and issuing propaganda on behalf of the GIA, Rachid RAMDA not only enabled the attacks to be carried out but acted as a propagandist, potentially attracting new members to strengthen the networks spread over several European countries”. It further cited the fact that “his double talk reveal[ ed ] both his bad faith and his complete lack of regret or remorse”. The court awarded one euro (EUR) in damages to the association SOS Attentats, which had joined the proceedings as a civil party.",
"23. In a final judgment of 18 December 2006 the Paris Court of Appeal upheld that judgment. While referring expressly to the statement of facts as established in the judgment, it devoted some thirty pages to analysing the charges against the applicant, giving reasons. First of all, the Court of Appeal gave further details concerning the evolution and operation of the GIA. It also specified that the case before it concerned “the series of attacks carried out in France in the summer and autumn of 1995”, and that “the facts of the case at hand concern [ ed ] the preparation of the attacks and the actions enabling the attacks, which started in France in July 1995, to be carried out”. The Court of Appeal went on to list the eight attacks carried out between 25 July and 17 October 1995. With particular reference to the evidence of the existence of an information hub based in London which the applicant had allegedly managed, it found this to be established on the basis of the telephone calls made on the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris ‑ Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean-Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack.",
"24. The Court of Appeal also emphasised the existence of several items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities. These included the fact that the applicant had sent funds from England on 16 October 1995 under the false name of Philippe Hervier, which had been received by B.B. at the Rivoli branch of the Rivaud bank under the false name of A. Benabbas, and which matched an entry in A.T. ’ s accounts book marked “36,800 francs, Lyseo ” and B.B. ’ s statements; the payment by the applicant of GBP 5,000 and 50,000 French francs (FRF), as shown by an entry in A.T. ’ s accounts book which mentioned funds sent by “ Walid ”, a false name used by the applicant or the first name of one of his acquaintances who could be contacted in order to reach him; statements from several individuals concerning services offered in return for payment, fundraising, the sending of substantial sums of money, a transfer of EUR 4,000 to M. and the existence of a receipt for GBP 100.",
"25. Lastly, the Court of Appeal noted a series of facts demonstrating, firstly, that the applicant had been “the main contact person ... in organising and carrying out the GIA ’ s activities in Europe”, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London ( press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been “the GIA ’ s main propaganda agent outside Algeria”, with “his role on the magazine Al Ansaar ” (particularly in the light of documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post - office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of “the London cell which revolved around [him and which] also served as a rallying point for young recruits passing through”, as demonstrated by the personal histories of four of them; and fourthly, that he had been a leader with “a strategic role in the GIA ’ s external organisation”, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide.",
"26. The Court of Appeal echoed the reasons given by the Criminal Court and added that there was sufficient evidence in the case to demonstrate that the applicant had been contacted regularly in order to be kept informed of events, that he had been responsible for funding GIA operations in Europe, that he had acted as a conduit for the GIA ’ s military command and as a propaganda agent for that organisation, especially through the magazine Al Ansar, that he had given shelter to fugitives passing through London and had sometimes been called upon to coordinate the GIA ’ s external activities. The Court of Appeal therefore concluded as follows:",
"“The Court of Appeal, like the first-instance court, therefore finds it established that the GIA created ‘ an external structure ’ in Europe designed to enable it to pursue its goal of overthrowing the Algerian regime, including by attacking institutions and people in countries that supported or were deemed to support that regime, by setting up networks in Belgium and France in particular which provided support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens (accommodation and false identity papers) to fighters who were fleeing the maquis or had arrived to carry out attacks, organised and coordinated by a cell in London in charge of fundraising and using funds acquired lawfully or unlawfully.",
"... [ the applicant ] knowingly played a decisive role, by means of the material acts referred to by the Criminal Court and by this court above, in the achievement of the GIA ’ s goal, participating from London in the implementation of the group ’ s external structure, and played a vital role within the organisation whose aim was to prepare, assist in and carry out the attacks which took place.”",
"27. In a judgment of 14 March 2007 the Court of Cassation dismissed an appeal on points of law by the applicant.",
"C. The proceedings before the assize courts ( procédure criminelle )",
"28. In a judgment of 13 February 2001 the Investigation Division of the Paris Court of Appeal indicted B.B., S.A.B. and the applicant for the attack of 17 October 1995 and committed them for trial before the Paris special Assize Court. The applicant was charged with aiding and abetting the crimes of attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection principally or incidentally with a terrorist enterprise, and with the related offence of a breach of the explosives legislation in connection with a terrorist enterprise.",
"29. On 3 August and 27 November 2001 the Investigation Division of the Paris Court of Appeal upheld the orders issued by the Paris investigating judge on 27 April (concerning the attack of 25 July 1995) and 13 July 2001 (concerning the attack of 6 October 1995) for the indictment of the applicant and B.B. and their committal for trial before the special Assize Court. The applicant faced trial for aiding and abetting the crimes of murder, attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing death, mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection with a terrorist enterprise, and for the related offence of a breach of the explosives legislation in connection with a terrorist enterprise.",
"30. These three judgments of the Investigation Division specified that the applicant had aided and abetted by: transmitting instructions from the GIA ordering attacks with explosives and providing B.B. with instructions on manufacturing; relaying to the GIA leadership operational information provided by the perpetrators of the attacks; providing the perpetrators with the funds needed not just to manufacture the explosive devices but also to make all the logistical arrangements for preparing and carrying out the attacks. The judgments of 13 February and 3 August 2001 added the fact that the funds had also been intended, if necessary, to enable the perpetrators based in France to flee.",
"31. In these judgments the judges noted in particular the following facts in relation to the applicant. The three mobile phones used by the applicant had received calls from B.B. on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1885 at 3.50 p.m. (Paris time) for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer of FRF 38,000 from an English branch of Western Union, and the checks carried out established that the applicant had gone into a Londis shop in Wembley containing a Western Union office at 2.34 p.m. on 16 October 1995 and had re-emerged at 3.26 p.m. (London time); the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil - Essonnes used by A.T. written on the back, and an entry had been made in the credit column of B.B. ’ s accounts for the sum of “5,000 pounds sterling from [W.], converted at a rate of 7.5% ”; a sum of GBP 6,945 had been sent on 20 July 1995; between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint ‑ Michel suburban rail station; and a letter from British Telecom had been found, addressed to “ Walid ” at 122 Hamlet Gardens, the applicant ’ s address. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest.",
"32. In its judgment of 13 February 2001 concerning the attack of 17 October 1995 the Investigation Division observed in particular that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995. It compared these calls with the statements made by B.B. and a further accomplice, who had been planning an attack on Lille city market, according to which they had reported to the applicant on preparations for the operations, and in particular for the attack of 17 October 1995. The Investigation Division also noted that the applicant had made a transfer of FRF 36,800 from London the day before that attack – as shown by the fact that his fingerprints had been found on the transfer slip in the Western Union office in London – which had been received by B.B. in Paris on the same day. The link between that transfer and the attack of 17 October 1995 had also been established by B.B. ’ s statements and by a call made to the applicant ’ s mobile phone the same day, after the money had been received.",
"33. In its judgment of 3 August 2001 relating more specifically to the attack of 2 5 July 1995, the Investigation Division stressed that the applicant ’ s English mobile phone had been called two days before that attack from a public payphone in Paris close to B.B. ’ s home from which other calls had been made, including a call to a mobile phone belonging to a member of the French GIA network, made one minute before the applicant was called. Furthermore, the day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Above all, the Investigation Division noted that the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995.",
"34. Lastly, in its judgment of 27 November 2001 the Investigation Division also noted that it was clear from these different elements that the applicant had sent funds to the perpetrators of the attacks, not just in relation to the campaign of attacks as a whole but also for use directly in carrying out the attack of 6 October 1995. With regard to the latter, it noted that the instructions issued by the GIA concerning the campaigns, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had also funded all the operational arrangements put in place in France in order to ensure the success of the attacks, and that the recipients had been required to report to him on how the money had been used. A number of telephone calls had established that the applicant had been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995, which had been followed by a telephone call on 8 October 1995 telling the applicant that everything had gone well on 6 October.",
"35. On 26 October 2007 the Paris special Assize Court, composed of seven professional judges, found the applicant guilty as charged in connection with the three attacks. It sentenced him to life imprisonment with a minimum term of twenty-two years. The applicant appealed on 29 October 2007.",
"36. The appeal proceedings before the Paris special Assize Court, this time composed of nine professional judges, took place from 16 September to 13 October 2009. One hundred and ninety-six individuals joined the proceedings as civil parties, as did the RATP (the Paris public-transport operator), the SNCF (the French national rail company), the Guarantee Fund for victims of terrorist acts and other crimes, the Government Law Officer and the association SOS Attentats.",
"37. At the hearing of 16 September 2009 counsel for the applicant made submissions requesting the termination of the proceedings and a finding that the prosecution was null and void, on the basis of the ne bis in idem principle. Citing Article 4 of Protocol No. 7 and the judgment in Sergey Zolotukhin v. Russia, delivered by the Grand Chamber of the Court on 10 February 2009, they argued that the material acts which the Assize Court was called on to examine were the same as those of which the applicant had previously been convicted by the Paris Court of Appeal in its final judgment of 18 December 2006. In counsel ’ s view, the material acts alleged in the Assize Court proceedings, namely the transfer of funds to the perpetrators of the attacks, the transmission of instructions to the same perpetrators, and the monitoring of the preparation and carrying -out of the attacks, had also been alleged in the Criminal Court proceedings.",
"38. In an interlocutory judgment of 17 September 2009 the special Assize Court dismissed the objection regarding a breach of the ne bis in idem principle, finding as follows:",
"“Although Rachid RAMDA ’ s defence counsel correctly points out that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘ offence ’ in so far as it arises from identical facts or facts which are substantially the same, the following factors need to be taken into consideration in the present case:",
"- The facts on which the criminal courts based their finding that Rachid RAMDA was guilty, while they related to criminal acts dealt with in the current set of proceedings, were by no means confined to them. In finding the offence of criminal conspiracy to be made out – a separate offence that is provided for and punishable under Article 450-1 of the Criminal Code – the courts considered all the elements apt to substantiate the accused ’ s involvement in the conspiracy, which was aimed at organising, developing and ensuring the continuation of a movement that was bent on imposing its cause, in particular by using clandestine methods and material and intellectual resources (recruitment of and regular contact with activists, dissemination of information on the GIA ’ s activities and views, fundraising, seeking donations of weapons and various items of equipment, etc.), without necessarily pursuing the sole objective of carrying out the attacks that are the subject of the proceedings.",
"- The facts to be considered by this court differ substantially from the earlier ones in that they relate to criminal conduct aimed at the achievement of one-off objectives which were determined with precision and were not inextricably linked, and which were driven by a specific motivation consisting in particular in providing others, in full knowledge of the situation, with the means of deliberately harming human life or individuals ’ physical or mental integrity by the use of explosives.",
"- In these circumstances the finding that Rachid RAMDA was guilty and his conviction by the Paris Court of Appeal cannot lead the Assize Court to find that his prosecution has lapsed and to declare the criminal proceedings against him null and void.",
"- It is thus the task of the Assize Court, on conclusion of the proceedings and in the light thereof, to rule, by answering the questions raised before it, as to whether or not Rachid RAMDA is guilty of aiding and abetting as charged ... ”",
"39. In an interlocutory judgment of 24 September 2009 the special Assize Court of Appeal deferred its decision on a request for further information and eventually rejected the request in a further interlocutory judgment of 8 October 2009.",
"40. Sixty-three questions concerning the applicant alone were put to the special Assize Court of Appeal. Twenty-six related to the circumstances surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The questions gave precise details of the various alleged acts and where and when they had been committed, and listed the names of dozens of victims of killings and attempted killings, mutilation or permanent disability, injuries resulting in unfitness for work of up to eight days or more, and victims of damage to their property. The answer to sixty-one of the questions was “yes ”, by a majority (some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “ devoid of purpose ”. Besides details regarding the places and dates concerned in each instance, as well as the indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The parties did not comment on these questions.",
"41. An affirmative answer was given to the questions whether the applicant had knowingly assisted in the manufacture or possession of explosive devices and in issuing instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and whether he had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995.",
"42. In a judgment of 13 October 2009 the special Assize Court of Appeal found the applicant guilty and sentenced him to life imprisonment with a minimum term of twenty-two years, and ordered his permanent exclusion from French territory. It adjourned the civil hearing for a later date. The applicant appealed on points of law.",
"43. On 15 June 2011 the Court of Cassation dismissed the applicant ’ s appeal on points of law. Regarding his ground of appeal to the effect that no reasons had been given for the finding of guilt, based in particular on Article 6 of the Convention, it found as follows:",
"“Firstly, the impugned questions, which were put in accordance with the law, established in all aspects the acts of aiding and abetting of which Mr Ramda was found guilty.",
"Secondly, the judgment convicting Mr Ramda included the answers which the judges comprising the special Assize Court of Appeal gave immediately after the oral proceedings, on the basis of their personal conviction and by a majority following a secret vote, to the questions concerning his guilt which were put to them in accordance with the operative provisions of the committal orders and were the subject of adversarial argument.",
"Accordingly, and given that steps were taken to ensure the prior investigation of the charges contained in the indictment, the free exercise of the rights of the defence, and the public and adversarial nature of the proceedings, the requirements laid down by the statutory and Convention provisions relied on were satisfied. ”",
"44. As to the ground of appeal concerning a breach of the ne bis in idem principle on account of the applicant ’ s final conviction by the Paris Court of Appeal on 18 December 2006 on the basis of identical facts, the Court of Cassation held that criminal conspiracy was a separate offence from the crimes prepared or committed by its members and also from the offences characterised by certain material acts that embodied it.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"49. The applicant complained that no reasons had been given for the judgment delivered by the special Assize Court. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”",
"50. The Government contested that argument.",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a) The applicant",
"52. The applicant stated at the outset that personal conviction, which was not the same as arbitrariness or intuition, must be based on a free assessment of the evidence. It found support in the free admissibility of evidence and not in the absence of evidence. Accordingly, if the defence adduced cogent evidence during the trial it had to be informed, if it was to understand and accept the verdict, of the main reasons why the Assize Court had found the accused to be guilty.",
"53. Of the sixty-three questions read out at the hearing, twenty-eight had concerned the applicant personally. The applicant added that twelve questions had related to the attack of 25 July 1995, nine to the attack of 6 October 1995 and a further nine to the attack of 17 October 1995. The applicant submitted that these twenty-eight questions had been drafted in the abstract by the president following the hearings and had not contained any factual reference or any reasoning regarding the charge of aiding and abetting. The manner in which they were drafted had left him unaware as to why the answer had been “yes” in each case despite the fact that he had denied any personal involvement in the three attacks.",
"54. The applicant stated in particular that certain factual elements which he disputed prevented him from understanding the reasons for his conviction. In his submission, as it had become clear at the trial that there were shortcomings in the investigation as well as inaccuracies and uncertainty as to his personal involvement, he was unable to understand the reasons for his conviction on the basis of a combined reading of the indictments and the twenty-eight questions.",
"55. He further submitted that the violation of Article 6 was even more evident since the verdict had not been given by a lay jury, but by a jury made up exclusively of professional judges, who were required to indicate with sufficient clarity the grounds on which their decisions were based. The professional judges making up an assize court bench had to give reasons for their decisions, just as they did in cases before the ordinary criminal courts; that obligation was unquestionably one of the requirements of a fair trial in the modern age.",
"( b) The Government",
"56. The Government referred first of all to the Court ’ s case-law concerning assize courts with a lay jury, while observing that the issue of the absence of reasons for a decision given in criminal proceedings in France by a jury of professional judges was being raised for the first time before the Court. The Constitutional Council, in its ruling of 3 September 1986 on the special composition of the assize courts in terrorism cases ( dec. no. 86-213), had found that the exception made in the formation of the assize court was limited in nature, that the difference in treatment was designed to circumvent the risk of pressure or threats to which lay jurors might be subjected, and that an assize court sitting in a special composition of professional judges satisfied the requirements of independence and impartiality. Furthermore, the accused benefited from the same information and the same safeguards as before the ordinary assize courts, including the possibility of appealing since the enactment of Law no. 2000-516 of 15 June 2000.",
"57. The Government emphasised that Law no. 2011-939 of 10 August 2011, which had made it compulsory, as of 1 January 2012, for assize court judgments to be accompanied by reasons, also applied to judgments of the special assize courts.",
"58. The Government therefore submitted that the procedural safeguards had enabled the applicant to understand the decision in his case and that the proceedings had complied with the Convention requirements. They noted in particular that the applicant had been the only defendant in the appeal proceedings, and that the indictments had been read out in full, as had the questions put at first instance, the answers to those questions and the judgment convicting him. The oral proceedings had lasted from 16 September to 13 October 2009 and the charges had been the subject of adversarial argument; the applicant had given evidence and had been able to defend his case by debating each item of evidence. The Government observed that no fewer than sixty-three questions had been put and that the affirmative answers had confirmed the three judgments committing the applicant for trial and the criminal conviction handed down at first instance. In particular, it had been open to the applicant to request that the questions be rephrased or that one or more additional questions be asked.",
"2. The Court ’ s assessment",
"59. The Court reiterates that, while the Convention does not require jurors to give reasons for their decision and Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict ( see Taxquet v. Belgium [GC], no. 926/05, § 89, ECHR 2010; Agnelet v. France, no. 61198/08, § 56, 10 January 2013; and Lhermitte v. Belgium [GC], no. 34238/09, § 66, ECHR 2016), in proceedings conducted before professional judges, the accused ’ s understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases the national courts must indicate with sufficient clarity the grounds on which they base their decisions (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252, and Taxquet, cited above, § 91). Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. However, even for professional judges the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 ‑ A, and Taxquet, cited above, § 91). While courts are not obliged to give a detailed answer to every argument raised (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288), it must be clear from the decision that the essential issues of the case have been addressed ( see Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ).",
"60. The Court also reiterates that, in any event, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see Taxquet, cited above, § 90, and Lhermitte, cited above, § 67). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society ( see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007 ‑ I; and Taxquet, cited above).",
"61. Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court ’ s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty ( see Taxquet, cited above, § 93). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based and sufficiently offsetting the fact that no reasons are given for the jury ’ s answers. Regard must also be had to any avenues of appeal open to the accused (see Papon v. France ( dec. ), no. 54210/00, ECHR 2001-XII; Taxquet, cited above, § 69; and Lhermitte, cited above, § 68). In this regard the Court must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies ( see Taxquet, cited above, § 93; Lhermitte, cited above, § 69; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 126, ECHR 2017).",
"62. The Court notes that although the present case concerns an assize court it is distinguishable from comparable cases brought before it in the past in that the court in question did not sit with a lay jury, but in a special composition made up exclusively of professional judges. Accordingly, irrespective of the terminology used, the issue of the absence of reasons does not arise in the context of the involvement of a lay jury.",
"63. The fact remains that no reasons were given for the Assize Court of Appeal judgment of 13 October 2009, just as was the case with judgments of the assize courts sitting with a lay jury prior to the enactment of Law no. 2011-939 of 10 August 2011 (see Agnelet, cited above; Oulahcene v. France, no. 44446/10, 10 January 2013; Fraumens v. France, no. 30010/10, 10 January 2013; Legillon v. France, no. 53406/10, 10 January 2013; Voica v. France, no. 60995/09, 10 January 2013; and Matis v. France ( dec. ), no. 43699/13, 6 October 2015), which also applied to special assize courts.",
"64. Consequently, while stressing that in proceedings before professional judges the domestic courts must indicate with sufficient clarity the grounds on which they base their decisions, the Court reiterates that the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see paragraph 59 above). It therefore considers it relevant, in view of the specific features of these proceedings – which are broadly similar to proceedings involving a lay jury – to examine the applicant ’ s complaint in the light of the principles established in its judgment in Taxquet (cited above; see also Agnelet, Oulahcene, Fraumens, Legillon and Voica, all cited above, and Lhermitte, cited above ).",
"65. The Court observes at the outset that all defendants in French criminal proceedings, like the applicant, are provided with certain information and afforded certain safeguards: the indictment, or the judgment of the investigation division in the case of an appeal, is read out in full by the clerk at the trial in the assize court; the charges are read out and are then the subject of adversarial argument, each item of evidence being examined and the accused being assisted by counsel; the judges and jury withdraw to deliberate immediately after the oral proceedings have ended and the questions have been read out, without having access to the case file; accordingly, their decision can only be based on the evidence examined by the parties during the trial. Furthermore, the decisions of the assize courts are subject to review by an enlarged assize court of appeal, made up of nine judges compared with seven at first instance in the case of a special assize court (see, in particular, Agnelet, cited above, § 63).",
"66. With regard to the combined impact of the indictment and the questions to the Assize Court in the present case, the Court notes firstly that the applicant was not the only accused and that the case was a complex one.",
"67. Furthermore, the three judgments committing the applicant for trial had a limited impact since they were delivered before the oral proceedings, which formed the crucial part of the trial. The Court nevertheless notes that each of these judgments concerned a different attack and that the reasoning was particularly thorough with regard to the charges, setting out the events in a very detailed manner. Moreover, the accused had already had an opportunity during the first-instance proceedings to assess the charges against him in depth and to put forward a defence. Besides the fact that the judgments committing the applicant for trial continued to form the basis for the charges against him in the Assize Court of Appeal proceedings, the oral proceedings at first instance had afforded him a more detailed insight into the charges against him and the grounds on which he was liable to be convicted on appeal.",
"68. A total of sixty-three questions were asked concerning the applicant, of which twenty-six related to the events surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The answer was “yes ”, by a majority, in the case of sixty-one of them ( some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “devoid of purpose” (see paragraph 40 above). The Court notes in particular that, besides details of the places and dates concerned in each instance and an indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The Court considers that, owing to their number and precision, these questions formed a framework on which to base the verdict ( see, mutatis mutandis, Papon v. France (no. 2) ( dec. ), no. 54210/00, ECHR 2001 ‑ XII). It further notes that, while the applicant objected to the manner in which they were drafted (see paragraph 53 above), he did not seek either to amend them or to ask other questions (see, mutatis mutandis, Lhermitte, cited above, § 79).",
"69. Accordingly, in the light of the combined examination of the three judgments committing the applicant for trial, which were particularly thoroughly reasoned, the oral proceedings to which he had access both at first instance and on appeal, and the numerous and precise questions put to the Assize Court, the applicant could not claim to have been unaware of the reasons for his conviction.",
"70. In sum, the Court considers that in the instant case the applicant was afforded sufficient safeguards enabling him to understand why he was found guilty (compare, mutatis mutandis, Legillon, cited above, § 67; Voica, cited above, § 53; and Bodein v. France, no. 40014/10, § 42, 13 November 2014). The Court nevertheless welcomes the fact that the reforms introduced since the material time, with the enactment of Law no. 2011-939 of 10 August 2011 requiring a “statement of reasons form” to be drawn up (see Legillon, § 68; Voica, § 54; and Bodein, § 43, all cited above), also applies to special assize courts (see paragraph 63 above).",
"71. It follows that there has been no violation of Article 6 § 1 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.. 7",
"72. The applicant contended that he had been prosecuted and convicted twice for identical facts, in view of his final conviction by the Paris Court of Appeal on 18 December 2006. He relied on Article 4 of Protocol No. 7, which provides:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"73. The Government contested that argument.",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a) The applicant",
"75. The applicant maintained that it was clear from the Court ’ s case-law that the facts to be assessed should be understood to refer to the behaviour or conduct of which he had been accused before the criminal courts and subsequently before the assize courts. In his view, the criminal acts referred to in the Investigation Division ’ s judgments were encompassed in the facts on the basis of which he was finally convicted by the Paris Court of Appeal on 18 December 2006.",
"76. In his application and his observations in reply to those of the Government, the applicant raised arguments regarding the funding operations and telephone calls. In particular, with regard first of all to the attack of 25 July 1995, he stressed that the transfer of a sum of GBP 5,000 referred to in the judgment of 3 August 2001 was also taken into consideration in the Paris Court of Appeal judgment of 18 December 2006. In the applicant ’ s view, the transfer of the sum of GBP 6,945 referred to in the Investigation Division ’ s judgment of 3 August 2001 should be regarded as being encompassed in the facts of the judgment of 18 December 2006, which had taken into account all the material acts committed by the applicant in connection with his role in funding the preparations for the attacks.",
"77. As to the telephone calls of 24 July 1995 referred to in the judgment of 3 August 2001 committing the applicant for trial, but not mentioned in the judgment of 18 December 2006, the applicant noted that in the latter judgment the Paris Court of Appeal had convicted him specifically on account of his role as coordinator of the GIA ’ s external activities, finding that the existence of an information hub in London which he had allegedly managed was demonstrated by the correlation between the telephone calls and the attacks. The calls of 24 July were thus inextricably linked to the calls made by the applicant in his role as coordinator of the various attacks.",
"78. The same was true of the calls of 26 September and 22 October 1995 referred to by the Government. Although they were not mentioned in the judgment of 18 December 2006, the applicant maintained that they were inextricably linked to the other calls.",
"( b) The Government",
"79. In the Government ’ s submission, the applicant had not been convicted on the basis of the same facts since he had been charged with separate offences, the elements of which were different. The facts in respect of which the applicant had been sentenced to ten years ’ imprisonment by the Paris Court of Appeal on 18 December 2006 were not identical, or substantially the same, as those for which the special Assize Court of Appeal sentenced him to life imprisonment on 13 October 2009. In particular, the Paris Court of Appeal had examined the applicant ’ s involvement in the conspiracy, whereas the special Assize Court had tried him on charges of aiding and abetting the attacks of 25 July, 6 October and 17 October 1995. In the Government ’ s view, the facts were therefore different in the two sets of proceedings. In the criminal court proceedings, the applicant had been charged with membership of a terrorist group, whereas the special Assize Court had tried him for specific acts consisting of aiding and abetting the carrying-out of terrorist attacks. Moreover, each of the sentences passed was deemed to cover the concurrent offences, subject to the statutory limit applicable to each one.",
"80. In the alternative, if the Court were to consider that the facts should be understood to mean the behaviour or conduct with which the applicant had been charged by the criminal courts and subsequently by the assize courts, the Government submitted that these were likewise not identical or substantially the same. For instance, the judgment of 18 December 2006 had not mentioned certain facts that were taken into consideration subsequently.",
"2. The Court ’ s assessment",
"( a) General principles",
"81. The Court reiterates that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, ECHR 2016).",
"82. The guarantee enshrined in Article 4 of Protocol No. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. At this juncture the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the new proceedings. Normally, these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused. Such statements of fact are an appropriate starting-point for the Court ’ s determination of the issue whether the facts in both proceedings were identical or substantially the same. It is irrelevant which parts of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol No. 7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal (see Sergey Zolotukhin, cited above, § 83).",
"83. The Court ’ s inquiry should therefore focus on the facts set out in these statements, which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (see Sergey Zolotukhin, cited above, § 84).",
"84. In so doing, the Court must determine whether the new proceedings arose from facts which were substantially the same as those which had been the subject of the final conviction (see Sergey Zolotukhin, cited above, § 82; see also Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 224, 4 March 2014, and Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 68, 30 April 2015). In its judgment in A and B v. Norway, which concerned the conduct of mixed proceedings (that is, criminal and administrative), the Court reaffirmed this approach, noting that it represented the most significant contribution of the Sergey Zolotukhin judgment, cited above (see A and B v. Norway, cited above, § 108).",
"( b) Application of the above-mentioned principles to the present case",
"85. The Court notes at the outset that the judgment of the Paris Court of Appeal of 18 December 2006, convicting the applicant following criminal proceedings, became final on 14 March 2007 when his appeal on points of law was dismissed (see paragraph 27 above). From that point onwards, therefore, the applicant was to be considered as having already been finally convicted of an offence for the purposes of Article 4 of Protocol No. 7.",
"86. The proceedings coming within the jurisdiction of the assize courts, which reflected the procedural choice made by the judicial authorities and gave rise to the judgments of February, August and November 2001 committing the applicant for trial, and which resulted in the applicant ’ s conviction by the special Assize Court on 26 October 2007 and on 13 October 2009, were not discontinued.",
"87. The Court notes that, contrary to what the Government appeared to assert (see paragraph 79 above), it is clear from the principles set forth in Sergey Zolotukhin, cited above, that the issue to be determined is not whether the elements of the offences with which the applicant was charged in the proceedings before the criminal courts and those before the assize courts were or were not identical, but whether the facts at issue in the two sets of proceedings referred to the same conduct. Where the same conduct on the part of the same defendant and within the same time frame is at issue, the Court is required to verify whether the facts of the offence of which the applicant was initially convicted, and those of the offence for which proceedings continued, were identical or substantially the same (see Sergey Zolotukhin, cited above, § 94).",
"88. As regards the proceedings in the criminal courts, the Court notes that the Criminal Court took care to present the facts in detail in its judgment of 29 March 2006. After setting the case in context and assessing the evidence against the applicant (see paragraphs 19-20 above), it found that his involvement in a criminal conspiracy in connection with a terrorist enterprise was established, as the judicial investigation had shown that several terrorist groups were based in the Lyons region, in Paris and in Lille and that the applicant ’ s contacts with the various members of these GIA support networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the Criminal Court set out the facts demonstrating the applicant ’ s links to eight members of these groups and found that by providing funding and issuing propaganda on behalf of the GIA, the applicant had helped to strengthen the networks spread over several European countries (see paragraphs 21-22 above).",
"89. The Court further notes that in its judgment of 18 December 2006 the Paris Court of Appeal gave reasons explaining its approach. It began by giving details of the telephone calls demonstrating the existence of an information hub in London which was allegedly managed by the applicant. Hence, it referred to the calls made the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris-Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean ‑ Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack ( see paragraph 23 above ). The Court notes that the Paris Court of Appeal went on to list the items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities in France. It referred to the funds sent by the applicant on 16 October 1995 under a false name and received by B.B.; the payment by the applicant of GBP 5,000 and FRF 50,000; and statements from several individuals concerning services offered in return for payment, fundraising and money transfers (see paragraph 24 above). The Court of Appeal also referred to a series of facts demonstrating, firstly, that the applicant had been the main contact person in organising and carrying out the GIA ’ s activities in Europe, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London (press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been the GIA ’ s main propaganda agent outside Algeria (in view of his role on the magazine Al Ansar as established by documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post-office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of the London cell which also served as a rallying point for young recruits passing through; and fourthly, that he had been a leader with a strategic role in the GIA ’ s external organisation, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide (see paragraph 25 above).",
"90. Lastly, the Court notes that the Court of Appeal cited as reasons for its judgment the decisive role knowingly played by the applicant in the external structure set up in Europe by the GIA with the aim of overthrowing the Algerian regime. This involved creating networks in Belgium and France in particular in order to provide support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens to fighters who were fleeing the Algerian maquis or had arrived to carry out attacks (see paragraph 26 above).",
"91. As regards the assize court proceedings, the Court notes that the Investigation Division of the Paris Court of Appeal, in three judgments of 13 February, 3 August and 27 November 2001, committed the applicant for trial before the Paris Assize Court on charges of aiding and abetting the crimes committed during the attacks of 25 July and 6 and 17 October 1995 (see paragraphs 28-29 above). It observes that these judgments, which in this instance concerned specific criminal conduct aimed at the achievement of precise objectives represented by each of the attacks carried out in Paris on 25 July and 6 and 17 October 1995, set out the factual evidence forming the basis for the applicant ’ s prosecution and his committal for trial before the Assize Court. In particular, the applicant was charged, in relation to these three attacks, with transmitting instructions from the GIA ordering the attacks to be carried out with explosives and relaying to the GIA leadership operational information provided by the perpetrators of the attacks, and with issuing instructions for making the explosive devices to his accomplices in Paris, while procuring for them the funds needed to manufacture the explosives and make all the logistical arrangements for preparing and carrying out these particular attacks (see paragraph 30 above).",
"92. The Court observes that the Investigation Division ’ s judgments listed the following specific facts in particular. The three mobile phones used by the applicant had received calls from B.B., one of the main organisers in Paris and one of the perpetrators of the attacks, on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1995 for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer for FRF 38,000; the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged in London at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil-Essonnes used by one of the perpetrators of the attacks written on the back, and an entry had been made in the credit column of B.B. ’ s accounts; a sum of GBP 6,945 had been sent on 20 July 1995; and between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint-Michel suburban rail station. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest (see paragraph 31 above).",
"93. The Court also notes that the Investigation Division emphasised certain factual elements specific to the different attacks. For instance, in its judgment of 13 February 2001 concerning the attack of 17 October 1995 it stressed the fact that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995, in order to report to the applicant on the preparations under way. The Investigation Division also highlighted the fact that the transfer of FRF 36,800 made from London the day before the attack of 17 October 1995 was directly linked to that attack (see paragraph 32 above). In its judgment of 3 August 2001 concerning the attack of 25 July 1995, the Investigation Division stressed that a call had been made to the applicant ’ s English mobile phone two days before the attack from a public payphone in Paris close to B.B. ’ s home which had also been used to contact another GIA member in France. The day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Furthermore, the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995 (see paragraph 33 above). Finally, in its judgment of 27 November 2001 concerning the attack of 6 October 1995, the Investigation Division noted that the instructions issued by the GIA concerning the campaign of attacks, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had been required to account for the use of the sums he had provided and had also been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995 by means of a telephone call of 8 October 1995 (see paragraph 34 above). The Assize Court went on to find that he had knowingly assisted in the manufacture or possession of explosive devices and issued instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995 (see paragraph 41 above).",
"94. Having thus compared the judgment of 18 December 2006 in which the Paris Court of Appeal convicted the applicant and the three judgments of the Investigation Division of 13 February, 3 August and 27 November 2001 committing him for trial before the special Assize Court, the Court notes that these decisions were based on numerous and detailed facts that were distinct from each other. In particular, it considers that although the transfer of GBP 5,000 referred to by the applicant (see paragraph 76 above) was mentioned both in the Court of Appeal judgment and in the judgments of the Investigation Division, that circumstance does not amount to a decisive similarity. As to the transfer of a sum of GBP 6,945 and the telephone calls on which the applicant relied, the Court observes – as did the applicant himself – that none of these features in both the Court of Appeal judgment convicting him and any of the Investigation Division ’ s judgments committing him for trial. On this point, it is not persuaded by the applicant ’ s claims that the transfer of funds should be regarded as being encompassed in the facts of the judgment of 18 December 2006 and that the telephone calls were inextricably linked to other calls dealt with in that judgment (see paragraphs 76 to 78 above). In any event, irrespective of these aspects referred to by the applicant in his observations, it appears that the three judgments delivered in 2001 committing the applicant for trial not only disregarded numerous factual elements raised in the criminal court proceedings, but above all concerned conduct and were based on facts that had not been referred to in the first set of proceedings.",
"95. The Court therefore concludes that the applicant was not prosecuted or convicted in the assize court proceedings on the basis of facts that were substantially the same as those that were the subject of his final conviction by the criminal courts.",
"96. Lastly, the Court reiterates that it is legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see, in particular, A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009; Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008; and Daoudi v. France, no. 19576/08, § 65, 3 December 2009). Moreover, the applicant was convicted by the Assize Court not just on the basis of facts that differed from those for which he had been convicted in the first set of proceedings, but also for the crimes of aiding and abetting murder and attempted murder. The Court emphasises that these offences constitute serious violations of fundamental rights under Article 2 of the Convention, whose perpetrators States are required to prosecute and punish (see, mutatis mutandis, Marguš v. Croatia [GC], no. 4455/10, §§ 127-28, ECHR 2014 (extracts) ), provided that the procedural guarantees of the persons concerned are complied with (compare, in particular and mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 252, ECHR 2016), as they were in the applicant ’ s case.",
"97. In the light of the foregoing, the Court considers that there has been no violation of Article 4 of Protocol No. 7 to the Convention."
] |
245 | Mihalache v. Romania | 8 July 2019 (Grand Chamber) | The applicant in this case submitted that he had been prosecuted twice for having refused to undergo a blood test in the framework of a police control with a view to determining his alcohol blood level and that the reopening of the proceedings against him had been inconsistent with the criteria set out in Article 4 of Protocol No. 7. | The Court held that there had been a violation of Article 4 of Protocol No. 7, finding that the applicant had been prosecuted twice for the same offence and that the reopening of the proceedings had not been justified. It noted in particular that the applicant had been the subject of an initial set of criminal proceedings, during which the public prosecutor’s office had imposed an administrative fine on him, which became final on expiry of the time-limit set out in Article 2491 of the Code of Criminal Procedure. Subsequently, the higher-ranking prosecutor’s office set aside the lower prosecutor’s decision and committed the applicant for trial. He was sentenced to one year’s imprisonment, suspended. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. The applicant was born in 1975 and lives in Tulnici.",
"9. During the night of 2 to 3 May 2008 the applicant was stopped by the police while driving on the public highway, as a preventive control measure. He underwent a breath test. As the test appeared to be positive, the police officers asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level. The applicant refused.",
"1. Opening of criminal proceedings against the applicant",
"10. In a decision ( rezoluţie ) of 17 July 2008 the public prosecutor ’ s office at the Focşani District Court instituted criminal proceedings against the applicant for refusing to give a biological sample in order to determine his blood alcohol level, an offence provided for and punishable under Article 87 § 5 of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”).",
"11. After being questioned by the public prosecutor, the applicant admitted that he had consumed alcohol and had refused to give a biological sample.",
"12. Evidence was also heard from a witness, G.D.",
"2. Discontinuance of criminal proceedings against the applicant and imposition of an administrative penalty",
"13. In an order of 7 August 2008 based on Article 10 (b 1 ) and Article 11 of the Code of Criminal Procedure (“the CCP”) in conjunction with Article 91 of the Criminal Code, as in force at the material time, the public prosecutor ’ s office discontinued the criminal proceedings against the applicant ( scoaterea de sub urmărire penală ). In accordance with the aforementioned legal provisions, a prosecution could not be brought unless the act committed was serious enough to constitute a criminal offence (see paragraph 33 below). The prosecutor stated the following:",
"“Given that it appears from the criminal case file that in the present case the provisions of Article 10 (b 1 ) of the CCP are applicable, since the act committed does not attain the [degree of] danger to society of a criminal offence, and that the infringement of social values protected by the law was minimal;",
"Having regard to the honesty of the perpetrator ( făptuitor ), to the fact that he was driving on a day when there was little road traffic, to the short distance driven and to the fact that [he] was being prosecuted for the first time;",
"[I HEREBY] ORDER:",
"The discontinuance of the criminal proceedings ( scoaterea de sub urmărire penală ) against the suspect for the acts set out in Article 87 § 5 of Government Emergency Ordinance no. 195/2002 ... and the imposition of an administrative penalty consisting of a fine of 1,000 Romanian lei (RON) [approximately 250 euros (EUR)], to be enforced pursuant to the provisions of Article 441 1 of the CCP in conjunction with Article 442 of the CCP.",
"Court fees of RON 20 [approximately EUR 5] ... are payable by the suspect and will be levied in accordance with [the provisions] of Article 443 CCP.",
"The suspect shall be notified of the decision.”",
"14. The order issued by the public prosecutor ’ s office on 7 August 2008 (see paragraph 13 above) was not challenged by means of a remedy such as an appeal under Article 249 1 of the CCP (see paragraph 34 below).",
"15. There is no indication in the case file of the precise date on which the applicant was notified of the order of 7 August 2008. In any event, he took cognisance of its contents and on 15 August 2008 paid the fine and the court fees. He submitted the receipts confirming payment of those sums as evidence in the criminal proceedings.",
"3. Setting aside by the higher-ranking prosecutor ’ s office of the order discontinuing the criminal proceedings",
"16. In an order of 7 January 2009, relying on Article 270 § 1 and Article 273 § 2 of the CCP as in force at the material time (see paragraph 34 below), the public prosecutor ’ s office at the Vrancea County Court, as the higher-ranking prosecutor ’ s office in relation to the public prosecutor ’ s office at the Focşani District Court, set aside the order of 7 August 2008 (see paragraph 13 above) of its own motion.",
"17. In the order of 7 January 2009 the public prosecutor ’ s office at the Vrancea County Court gave the following reasons:",
"“Following an examination of the evidence on file, it must be concluded that in view of the degree of general and specific danger to society associated with the acts committed, the type of the social values disregarded by the suspect and the specific circumstances in which he committed the acts, the administrative penalty imposed was not justified.",
"The suspect justified his firm refusal to give a biological sample in order to determine his blood alcohol level by the fact that before being stopped by the police he had consumed alcoholic beverages. The statement written by the suspect himself indicated that he had acted in this manner [refusing to give the sample] ‘ because of his intoxicated state ’, a circumstance that emphasises the danger posed to society by the acts and by the suspect himself, who nevertheless was not appropriately punished.",
"The act committed by the suspect entails a high degree of danger to society, which the law itself intended to penalise more severely than other road traffic offences, with the aim of preventing the commission of more serious acts causing physical injury or material damage; because the real reason for refusing to give biological samples is, precisely, the sometimes excessive consumption of alcoholic beverages which may also give rise to criminal liability for other, more serious consequences.",
"The high upper limits and the nature of the criminal penalty (exclusively imprisonment, excluding any kind of fine) highlight the intention of the law to severely punish anyone committing such reprehensible acts. That being the case, the administrative fine imposed on the suspect Erik Aurelian Mihalache does not fulfil the preventive aim pursued by the law.",
"It should be borne in mind that the suspect, who was in a manifestly intoxicated state while driving a motor vehicle, was about to go to a discothèque in the village of Lepsa (a place where alcohol is frequently consumed), and the consequences of his acts could have been even worse than he realises.",
"Having regard to all those circumstances, the imposition of an administrative penalty was unjustified ( nejustificată ). Accordingly, the decision to discontinue proceedings in the case is set aside, and the criminal proceedings [are to be] reopened in order to continue the investigation and prepare the case for trial.",
"Having regard also to the provisions of Article 273 § 2 and Article 270 § 1 (c) of the CCP,",
"[I HEREBY] ORDER",
"1. the setting aside of the decision taken in the present case ...;",
"2. the quashing of the administrative penalty of a 1,000 lei fine imposed on the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002, as well as the order for him to pay court fees of 20 lei to the State;",
"3. the reopening of the criminal proceedings against the suspect Erik Aurelian Mihalache for having committed the offence defined in Article 87 § 5 of Ordinance no. 195/2002 and the continuation of the investigation in accordance with this order;",
"4. the return of the case file to the public prosecutor ’ s office at the Focşani District Court in order to execute [the present order]. ”",
"18. The case file was sent back to the public prosecutor ’ s office with a view to continuing the criminal investigation in respect of the applicant.",
"4. The applicant ’ s committal for trial and criminal conviction",
"19. On 18 February 2009 the applicant was informed of the reopening of the criminal proceedings and questioned about the charges against him. On 19 February 2009 the public prosecutor presented the applicant with the criminal file. The applicant confessed to having committed the acts of which he stood accused, and did not seek to adduce any further evidence.",
"20. The witness G.D. gave a statement.",
"21. In an indictment of 24 March 2009 the public prosecutor ’ s office committed the applicant for trial on charges of refusing to give a biological sample for determining his blood alcohol level. The indictment stated that during the night of 2 to 3 May 2008, at around 1 a.m., the applicant had been stopped by the police while driving on the public highway, as a preventive control measure. As the breath test had appeared to be positive the police officers had asked the applicant to accompany them to a hospital to give a biological sample in order to establish his blood alcohol level, but the applicant had refused to do so. The indictment cited in evidence the report of the discovery of the offence, the applicant ’ s confession, G.D. ’ s witness statement, and the document informing the applicant of the accusations against him and his defence rights.",
"22. In a judgment of 18 November 2009, having assessed the evidence in the file, the Focşani District Court sentenced the applicant to one year ’ s imprisonment, suspended, on the charges set out in the indictment. Analysing the factual circumstances of the case, it held that a shorter sentence than the statutory minimum was sufficient.",
"23. In a judgment of 10 February 2010 the Vrancea County Court dismissed an appeal by the applicant against the aforementioned judgment.",
"24. The applicant lodged an appeal on points of law ( recurs ) against that judgment. He submitted, inter alia, that the referral of his case to the District Court had been incurably null and void because it was in breach of the ne bis in idem principle. He argued that in its order of 7 August 2008 the public prosecutor ’ s office had discontinued the criminal proceedings against him and imposed an administrative fine on him, thus terminating the criminal investigation. Subsequently, the public prosecutor ’ s office at the Vrancea County Court had wrongfully set aside the discontinuance order of its own motion, and no appeal had been lodged against the order of 7 August 2008 under Article 249 1 § 3 of the CCP (see paragraph 14 above and paragraph 34 below).",
"25. In a final judgment of 14 June 2010 the Galați Court of Appeal dismissed the applicant ’ s appeal on points of law against the judgment delivered on appeal and confirmed that it was well-founded. As regards the applicant ’ s plea alleging non-compliance with the ne bis in idem principle, the Court of Appeal held:",
"“Pursuant to Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights, no one may be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"This principle is also set out in the Romanian Code of Criminal Procedure, Article 10 § 1 (j) of which provides that criminal proceedings cannot be instituted or continued where there has been a decision constituting res judicata.",
"Therefore, in order for the defendant to be entitled to rely on a breach of the ne bis in idem principle, a previous set of proceedings must have been concluded with a final judgment entailing a conviction or acquittal.",
"However, the order of 7 August 2008 by which the public prosecutor closed the criminal proceedings cannot be characterised as a judicial decision constituting res judicata, since this is not equivalent to a final judgment ( hotărâre judecătorească ).",
"The public prosecutor ’ s right to resume criminal proceedings where they have been reopened, pursuant to Article 270 § 1 (c) and Article 273 § 1 of the Code of Criminal Procedure, is not subject to any time-limit or to the absence of a complaint against the discontinuance order, such that the reopening of the criminal proceedings against the defendant Erik Aurelian Mihalache on the basis of the order of 7 January 2009 complied with the relevant legal provisions.",
"Noting, on the one hand, that the ne bis in idem principle is immaterial to the present case, and on the other, that the criminal proceedings were resumed and conducted in compliance with the [statutory provisions], the court rejects the defendant ’ s arguments to the effect that the referral of the case to the District Court was incurably null and void.”",
"26. With regard to the applicant ’ s criminal responsibility, the Court of Appeal held that, according to the evidence in the file, the lower courts had correctly determined the facts, their legal classification and the corresponding sentence.",
"5. Other factual information relevant to the case",
"(a) Survey on the application of Article 18 1 of the Criminal Code",
"27. On 17 January 2013 the Prosecutor General of Romania issued a memorandum to all public prosecutors ’ offices across the country asking them to investigate how the provisions of Article 18 1 of the Criminal Code were applied, inter alia, to road traffic offences. The memorandum sought to identify the criteria used by the courts and public prosecutors ’ offices to assess the degree of danger to society associated with a particular act, and referred specifically to the offences set out in Ordinance no. 195/2002. The Prosecutor General also invited the lower-level public prosecutors ’ offices to send him the results of the reviews which they had carried out in 2011 and 2012 and the measures ordered following the reviews. According to the memorandum, the aim of the exercise was to identify the criteria used to justify the application of Article 18 1 of the Criminal Code by the courts and public prosecutors ’ offices.",
"(b) Steps required to be taken by the applicant to secure reimbursement of sums paid by way of execution of the order of 7 August 2008",
"28. On 10 March 2013 the Chief Prosecutor of the Focşani public prosecutor ’ s office requested the tax authorities to reimburse the fine paid by the applicant pursuant to the order of 7 August 2008 (see paragraph 15 above).",
"29. On 3 October 2013 the public prosecutor ’ s office informed the Vrancea Directorate General of Public Finance (“DGFP”) that the amounts paid by the applicant pursuant to the order of 7 August 2008 were to be reimbursed to him. On 4 October 2013 a police officer went to the applicant ’ s home to inform him that he had to submit a request to the Vrancea DGFP in order to secure reimbursement of the amounts paid in respect of the administrative fine and the court fees. The applicant signed the record drawn up on that occasion.",
"30. According to the documents in the file, the applicant has not asked to be reimbursed the sums paid.",
"III. EXPLANATORY REPORT ON PROTOCOL No. 7 TO THE CONVENTION",
"36. The Explanatory Report on Protocol No. 7 was prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe. It explains from the outset that the text of the report itself “does not constitute an instrument providing an authoritative interpretation of the Protocol, although it might be of such a nature as to facilitate the application of the provisions contained therein”.",
"37. The parts of the report of relevance to the present case read as follows:",
"“22. ... According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.",
"...",
"Article 4",
"...",
"27. The words ‘ under the jurisdiction of the same State ’ limit the application of the article to the national level. Several other Council of Europe conventions, including the European Convention on Extradition (1957), the European Convention on the International Validity of Criminal Judgments (1970) and the European Convention on the Transfer of Proceedings in Criminal Matters (1972), govern the application of the principle at international level.",
"...",
"29. The principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. This means that there must have been a final decision as defined above, in paragraph 22.",
"30. A case may, however, be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts, or if it appears that there has been a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his detriment.",
"31. The term ‘ new or newly discovered facts ’ includes new means of proof relating to previously existing facts. Furthermore, this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person.”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Constitution",
"31. Article 132 § 1 of the Constitution, on the status of public prosecutors, reads as follows :",
"“Public prosecutors shall carry out their activity in accordance with the principles of legality, impartiality, and hierarchical supervision under the authority of the Minister of Justice. ”",
"B. Government Emergency Ordinance no. 195/2002",
"32. The relevant provisions of Government Emergency Ordinance no. 195/2002 on road traffic (“Ordinance no. 195/2002”) read as follows:",
"Chapter IGeneral provisionsArticle 1",
"“1. Road traffic involving vehicles, pedestrians and other categories of [road] users, the rights, obligations and responsibilities of natural and legal persons, and the powers of certain public authorities, institutions and organisations, are governed by the provisions of the present emergency ordinance.",
"2. The provisions of this emergency ordinance are designed to ensure a safe traffic flow on public roads, and to protect the lives, physical integrity and health of [road] users or anyone in the vicinity of public roads, [and] to protect the legitimate rights and interests of those persons, of public and private property and of the environment.",
"...",
"5. The provisions of the present emergency ordinance shall be applicable to all [road] users, and to the authorities vested with powers in the spheres of road traffic and safety and environmental protection.”",
"Chapter VIOffences and penaltiesArticle 84",
"“A failure to comply with road traffic provisions that entails all the constituent elements of a criminal offence shall give rise to criminal responsibility and be punished in accordance with this emergency ordinance.”",
"Article 87 § 5",
"“The refusal ... by a driver of a motor vehicle ... to give a biological sample or to submit to a test of exhaled air in order to establish blood alcohol level or the presence of narcotic products or substances or drugs with similar effects, shall be punished by a sentence of between two and seven years ’ imprisonment.”",
"C. The Criminal Code",
"33. The provisions of the Criminal Code in force at the material time which are relevant to the present case were worded as follows:",
"Article 17",
"“A criminal offence is an act which poses a danger to society, is committed with culpable intent ( vinovăţie ) and is provided for by criminal law.",
"Only a criminal offence may constitute grounds for criminal liability .”",
"Article 18",
"“An act posing a danger to society for the purposes of the criminal law shall be understood as any action or inaction which undermines one of the values mentioned in Article 1 and which requires the imposition of a penalty. ”",
"Article 18 1",
"“1. An act punishable by criminal law shall not constitute a criminal offence if, in view of its minimal interference with one of the values safeguarded by criminal law and the manifestly insignificant nature of its specific content, it does not attain the degree of danger to society associated with a criminal offence.",
"2. In determining the degree of danger to society, account must be taken of the manner and means by which the act was committed, the aim pursued, the circumstances in which the act was committed, the result which was produced or could have been produced, and the person and conduct of the perpetrator, if known.",
"3. In the case of such an act, the public prosecutor or the court shall impose one of the administrative penalties provided for in Article 91. ”",
"Article 91",
"“Where a court has recourse to [another form of liability] instead of criminal liability, it shall order one of the following administrative penalties:",
"...",
"(c) a fine of between 10 lei and 1,000 lei.”",
"Article 141",
"“ ‘ Criminal law ’ shall be understood as referring to any criminal provision set forth in laws or decrees.”",
"D. The Code of Criminal Procedure",
"34. The relevant provisions of the CCP as in force at the material time were as follows:",
"Article 10",
"“1. Criminal proceedings cannot be instituted or continued if:",
"...",
"(b 1 ) the act did not attain the degree of danger required to be classified as a criminal offence; ...",
"(g) the offence is statute-barred ...;",
"...",
"(j) [ a prior decision] has become res judicata ...”",
"Article 11",
"“Where one of the cases set out in Article 10 is observed:",
"1. during the criminal proceedings, the public prosecutor, on an application by the prosecuting authority or proprio motu, shall order: ...",
"(b) the discontinuance of the proceedings ( scoaterea de sub urmărire ) in favour of the suspect or accused in the cases set out in Article 10 (a) to (e).",
"...”",
"Article 22 § 1",
"“The final decision given by the criminal court shall constitute res judicata before the civil court adjudicating the civil claim, as regards the existence of the facts, the perpetrator and the latter ’ s guilt.”",
"Article 229 The suspect",
"“The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.”",
"Article 246",
"“1. A copy of the discontinuance order ... shall be transmitted to the ... suspect or accused ....”",
"Article 249",
"“1. Criminal proceedings shall be discontinued ( scoaterea de sub urmărirea penală ) where one of the cases listed in Article 10 (a) to (e) is observed and where there is a suspect or accused person in the case.",
"...",
"3. In the case mentioned in Article 10 (b 1 ), the public prosecutor shall decide by means of an order.”",
"Article 249 1",
"“...",
"3. An order concerning the discontinuance of proceedings on the basis of Article 10 (b 1 ) may be the subject of an appeal ( plîngere ) within twenty days of the date on which the notification provided for in Article 246 has taken place.",
"4. An order imposing an administrative fine shall be enforced on expiry of the term specified in paragraph 3 above or, where an appeal ( plîngere ) has been lodged and dismissed, after the dismissal of that appeal.”",
"Article 262",
"“Where the public prosecutor finds that the statutory provisions ensuring the discovery of the truth have been complied with, that the criminal proceedings have been completed and that the necessary evidence has been lawfully examined, he or she shall, as appropriate:",
"...",
"2. issue an order by which:",
"(a) the criminal proceedings are closed ( clasează ), discontinued ( scoate de sub urmărire ) or terminated ( încetează ) in accordance with the provisions of Article 11.",
"Where the public prosecutor discontinues the proceedings on the basis of Article 10 (b 1 ), he or she shall apply Article 18 1 § 3 of the Criminal Code; ... ”",
"Article 270",
"“1. Criminal proceedings shall be resumed in the event that :",
"...",
"(c) the criminal proceedings have been reopened...”",
"Article 273",
"“1. The public prosecutor may order the reopening of criminal proceedings if, following [a decision] discontinuing the proceedings ( scoaterea de sub urmărirea penală ), it is established that the grounds on which the previous decision was based did not actually exist or no longer exist. ...",
"2. Proceedings shall be reopened following an order by the public prosecutor to that effect.”",
"Article 275",
"“Any person may lodge a complaint in respect of measures and decisions taken during criminal investigation proceedings, if these have harmed his or her legitimate interests ...”",
"Article 278",
"“Complaints against measures or decisions taken by a prosecutor or implemented at the latter ’ s request shall be examined by ... the chief prosecutor in the relevant department ....”",
"Article 278 1",
"“1. Following the dismissal by the prosecutor of a complaint lodged in accordance with Articles 275 to 278 in respect of the discontinuation of a criminal investigation ... through a decision not to prosecute ( neurmărire penală ) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days following notification of the impugned decision, to the judge of the court that would normally have jurisdiction to deal with the case at first instance ...”",
"Article 415",
"“1. Judgments of criminal courts ( hotărîrile instanţelor ) shall be enforceable on the date on which they become final.",
"2. Non-final judgments shall be enforceable [where explicitly provided for by law].”",
"Article 441 1",
"“... [T]he penalty of a fine shall be imposed as laid down in Articles 442 and 443. ”",
"Article 442",
"“The judicial body imposing a fine shall ensure that it is enforced.",
"Judicial fines shall be enforced by sending a copy of the relevant section of the operative part of the judgment imposing the fine to the authority responsible by law for enforcing criminal fines.",
"Judicial fines shall be enforced by the authority mentioned in the previous paragraph.”",
"Article 443",
"“... Where the obligation to pay court fees advanced by the State is imposed by order, it shall be enforced by the public prosecutor, in accordance with ... the provisions of Article 442 § 2.”",
"35. The Government produced examples of case-law to the effect that only court judgments constitute res judicata, and not decisions taken by the public prosecutor before the case is referred to a court, such as, for instance, an order discontinuing criminal proceedings (judgment no. 346 of 30 January 2015 of the High Court of Cassation and Justice and a decision given on 14 November 2017 by the Bucharest Court of Appeal).",
"IV. RELEVANT INTERNATIONAL-LAW MATERIAL",
"38. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights is worded as follows:",
"“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”",
"39. The 1969 Vienna Convention on the Law of Treaties provides:",
"Article 31 General rule of interpretation",
"“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.",
"2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:",
"( a ) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;",
"( b ) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.",
"3. There shall be taken into account, together with the context:",
"( a ) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;",
"( b ) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;",
"( c ) Any relevant rules of international law applicable in the relations between the parties.",
"4. A special meaning shall be given to a term if it is established that the parties so intended.”",
"Article 32 Supplementary means of interpretation",
"“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:",
"( a ) Leaves the meaning ambiguous or obscure; or",
"( b ) Leads to a result which is manifestly absurd or unreasonable.”",
"Article 33 Interpretation of treaties authenticated in two or more languages",
"“1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.",
"2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.",
"3. The terms of the treaty are presumed to have the same meaning in each authentic text.",
"4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”",
"V. EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION",
"40. Article 50 of the Charter of Fundamental Rights of the European Union as adopted on 12 December 2007 provides:",
"“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”",
"41. Article 54 of the Convention implementing the Schengen Agreement (CISA) of 14 June 1985 provides as follows:",
"“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”",
"42. The judgment delivered by the Court of Justice of the European Communities on 11 February 2003 in Hüseyin Gözütok and Klaus Brügge (joined cases C-187/01 and C-385/01, EU:C:2003:87, § 31) states that “(t)he fact that no court is involved in such a procedure and that the decision in which the procedure culminates does not take the form of a judicial decision does not cast doubt on that interpretation”, that is to say does not prevent the application of the ne bis in idem principle.",
"43. In its judgment in Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg of 29 June 2016, the Court of Justice of the European Union (CJEU; (Grand Chamber), ECLI:EU:C:2016:483) explained the concept of a person whose trial has been “finally disposed of” as follows:",
"“34. For a person to be regarded as someone whose trial has been ‘ finally disposed of ’ within the meaning of Article 54 of the CISA, in relation to the acts which he is alleged to have committed, it is necessary, in the first place, that further prosecution has been definitively barred (see, to that effect, judgment of 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 31 and the case-law cited).",
"35. That first condition must be assessed on the basis of the law of the Contracting State in which the criminal-law decision in question has been taken. A decision which does not, under the law of the Contracting State which instituted criminal proceedings against a person, definitively bar further prosecution at national level cannot, in principle, constitute a procedural obstacle to the opening or continuation of criminal proceedings in respect of the same acts against that person in another Contracting State (see, to that effect, judgments of 22 December 2008 in Turanský, C ‑ 491/07, EU:C:2008:768, paragraph 36, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraphs 32 and 36).",
"36. The order for reference indicates that, in the case in the main proceedings, under Polish law the decision of the Kołobrzeg District Public Prosecutor ’ s Office terminating the criminal proceedings precludes any further prosecution in Poland.",
"...",
"38. As regards the fact that ( i ) the decision at issue in the main proceedings was taken by the Kołobrzeg District Public Prosecutor ’ s Office in its capacity as a prosecuting authority and (ii) no penalty was enforced, neither of those factors is decisive for the purpose of ascertaining whether that decision definitively bars prosecution.",
"39. Article 54 of the CISA is also applicable where an authority responsible for administering criminal justice in the national legal system concerned, such as the Kołobrzeg District Public Prosecutor ’ s Office, issues decisions definitively discontinuing criminal proceedings in a Member State, although such decisions are adopted without the involvement of a court and do not take the form of a judicial decision (see, to that effect, judgment of 11 February 2003 in Gözütok and Brügge, C ‑ 187/01 and C ‑ 385/01, EU:C:2003:87, paragraphs 28 and 38).",
"40. As regards the absence of a penalty, the Court observes that it is only where a penalty has been imposed that Article 54 of the CISA lays down the condition that the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting State of origin.",
"41. The reference to a penalty cannot therefore be interpreted in such a way that the application of Article 54 of the CISA is – other than in a case in which a penalty has been imposed – subject to an additional condition.",
"42. In order to determine whether a decision such as that at issue in the main proceedings constitutes a decision finally disposing of the case against a person for the purposes of Article 54 of the CISA, it is necessary, in the second place, to be satisfied that that decision was given after a determination had been made as to the merits of the case (see, to that effect, judgments of 10 March 2005 in Miraglia, C ‑ 469/03, EU:C:2005:156, paragraph 30, and 5 June 2014 in M, C ‑ 398/12, EU:C:2014:1057, paragraph 28).",
"43. It is necessary, for that purpose, to take into account both the objective of the rules of which Article 54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16 October 2014 in Welmory, C ‑ 605/12, EU:C:2014:2298, paragraph 41 and the case-law cited).",
"...",
"47. Therefore, the interpretation of the final nature, for the purposes of Article 54 of the CISA, of a decision in criminal proceedings in a Member State must be undertaken in the light not only of the need to ensure the free movement of persons but also of the need to promote the prevention and combating of crime within the area of freedom, security and justice.",
"48. In view of the foregoing considerations, a decision terminating criminal proceedings, such as the decision in issue before the referring court – which was adopted in a situation in which the prosecuting authority, without a more detailed investigation having been undertaken for the purpose of gathering and examining evidence, did not proceed with the prosecution solely because the accused had refused to give a statement and the victim and a hearsay witness were living in Germany, so that it had not been possible to interview them in the course of the investigation and had therefore not been possible to verify statements made by the victim – does not constitute a decision given after a determination has been made as to the merits of the case.",
"...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"44. The applicant complained that he had been tried and convicted twice in criminal proceedings for the same offence, in breach of Article 4 § 1 of Protocol No. 7. He also submitted that the reopening of the proceedings against him had not been in conformity with the criteria set out in Article 4 § 2. Article 4 of Protocol No. 7 to the Convention provides :",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"45. The Government contested that argument.",
"A. Admissibility",
"46. In the Court ’ s view, the application raises complex issues of fact and Convention law, such that it cannot be rejected on the ground of being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, and must therefore be declared admissible.",
"B. Merits",
"47. The Court reiterates that the guarantee enshrined in Article 4 of Protocol No. 7 occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency.",
"48. The protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. Article 4 of Protocol No. 7 to the Convention enshrines a fundamental right guaranteeing that no one is to be tried or punished in criminal proceedings for an offence of which he or she has already been finally convicted or acquitted (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 (extracts); Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 58, ECHR 2009; Nikitin v. Russia, no. 50178/99, § 35, ECHR 2004-VIII; and Kadušić v. Switzerland, no. 43977/13, § 82, 9 January 2018). The repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7 (see Nikitin, cited above, § 35).",
"49. The Court observes that the wording of the first paragraph of Article 4 of Protocol No. 7 sets out the three components of the ne bis in idem principle: the two sets of proceedings must be “criminal” in nature (1); they must concern the same facts (2); and there must be duplication of the proceedings (3). It will assess each of those components in turn.",
"1. Whether the proceedings giving rise to the order of 7 August 2008 were criminal in nature",
"50. It should be pointed out that by order of 7 August 2008 the public prosecutor ’ s office discontinued the criminal proceedings brought against the applicant for having refused to give a biological sample to establish his blood alcohol level, finding that the acts committed did not constitute an offence under criminal law. However, in the same order, the prosecutor ’ s office imposed on the applicant a penalty designated as “administrative” in the Criminal Code. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7.",
"(a) The parties ’ submissions",
"( i ) The Government",
"51. The Government pointed out that Article 87 § 5 of Ordinance no. 194/2002 came under Romanian criminal law in view of the aim pursued by that provision, the classification of the acts as a criminal offence and the penalty imposed. They submitted that the imposition of an administrative penalty on the applicant had not altered the nature of the proceedings, which had remained criminal in nature, only “borrowing” the penalty from the administrative sphere.",
"(ii) The applicant",
"52. The applicant submitted that the fine imposed by the order of the public prosecutor ’ s office of 7 August 2008 had been “criminal” within the meaning of Article 4 of Protocol No. 7.",
"(b) The Court ’ s assessment",
"53. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the ne bis in idem principle under Article 4 § 1 of Protocol No. 7.",
"54. The Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 § 1 is an autonomous one. Its established case-law sets out three criteria, commonly known as the “ Engel criteria”, to be considered in determining whether or not there was a “criminal charge” ( see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22; A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, and A and B v. Norway, cited above, § 105; see also Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII).",
"55. The Court will examine below whether, in accordance with the aforementioned Engel criteria, the imposition of an administrative fine on the applicant for the offence of which he was accused is covered by the concept of “penal procedure”.",
"( i ) Legal characterisation of the offence under national law",
"56. The Court notes that the offence for which the applicant was prosecuted, that is, his refusal to give a biological sample to establish his blood alcohol level, was punishable under Article 87 § 5 of Ordinance no. 195/2002, as set out in the section on “offences and penalties”, and that they could give rise to a prison sentence. Both parties accepted that these legal provisions formed part of Romanian criminal law.",
"57. The Court further notes the application in the present case of Article 18 1 of the Criminal Code, providing that an act falling under the criminal law did not constitute a criminal offence if it did not attain the requisite level of seriousness, on account of the minimal interference with one of the values safeguarded by criminal law, and its specific content (see paragraph 33 above). In such circumstances, the public prosecutor could decide to discontinue the prosecution and, instead of imposing the criminal penalty provided for in the definition of the offence of which the person had been accused, impose another penalty that was likewise provided for in the Criminal Code but was designated therein as “administrative”.",
"58. In the instant case, by order of 7 August 2008, the public prosecutor ’ s office discontinued the proceedings against the applicant, noting that although his acts fell under the criminal law, they did not amount to a criminal offence, and it imposed an administrative penalty on him. Be that as it may, the characterisation under domestic law is merely a starting-point, and the indications so afforded have only a formal and relative value (see, among many other authorities, Engel and Others, cited above, § 82, and Sergey Zolotukhin, cited above, § 53). The Court will therefore undertake a more detailed analysis of the actual nature of the domestic provision forming the legal basis of the penalty imposed on the applicant and its severity.",
"(ii) Actual nature of the applicable legal provision",
"59. By its very nature, the inclusion in Ordinance no. 195/2002 of the offence of refusing to give a biological sample for determining blood alcohol level pursued aims, as specified in Article 1 § 2 of the Ordinance, such as protecting the life, physical integrity, health and legitimate rights and interests of road users, and protecting public and private property and the environment – values falling within the sphere of protection of the criminal law. The provisions of the Ordinance were applicable, in accordance with Article 1 § 5, to all road users rather than to a group possessing a special status. The penalty laid down for commission of the offence defined in Article 87 § 5 of Ordinance no. 195/2002 was severe – between two and seven years ’ imprisonment – and was aimed at punishing and deterring behaviours liable to undermine the social values safeguarded by law (see paragraph 32 above).",
"60. The Court also considers it important to note that although the acts of which the applicant was accused were not deemed to constitute a criminal offence in the order of 7 August 2008, they nevertheless fell within the scope of a provision of criminal law. The fact that the criminal acts of which the applicant was accused were initially regarded as manifestly insignificant on account of their minimal interference with one of the values safeguarded by criminal law and their specific content does not in itself preclude their classification as “criminal” within the autonomous Convention meaning of the term, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the “ Engel criteria”, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003-X). Moreover, in the second set of proceedings, the same acts were found to constitute a criminal offence. The Court accepts that the legal provision on the basis of which the prosecutor ’ s office prosecuted and punished the applicant by means of the order of 7 August 2008 was criminal in nature.",
"(iii) Degree of severity of the penalty",
"61. As to the degree of severity of the penalty, it is determined by reference to the maximum penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (see Sergey Zolotukhin, cited above, § 56; Grecu v. Romania, no. 75101/01, § 54, 30 November 2006; and Tomasović v. Croatia, no. 53785/09, § 23, 18 October 2011).",
"62. In the present case, Article 87 § 5 of Ordinance no. 195/2002 provided that acts constituting the offence of refusing to give a biological sample for determining blood alcohol level were punishable by a sentence of two to seven years ’ imprisonment. Even though the public prosecutor ’ s office did not consider that the acts in issue constituted an offence for the purposes of criminal law, it was required by law to impose a penalty where the legal basis for discontinuing the proceedings was Article 18 1 of the Criminal Code (see paragraph 33 above). The applicant was fined 1,000 Romanian lei (RON – approximately 250 euros (EUR) at the time) for the acts of which he was accused. That sum corresponded to the maximum fine that could be imposed under Article 91 of the Criminal Code. Although the Criminal Code designates this penalty as “administrative”, the purpose of the fine was not to repair the damage caused by the applicant but to punish him and deter him from committing further criminal acts (compare Ioan Pop v. Romania ( dec. ), no. 40301/04, § 25, 28 June 2011, where the Court found that an administrative fine of approximately EUR 50 imposed on the applicant under Ordinance no. 195/2002 for failing to stop and give way to an official vehicle was “criminal” for the purposes of Article 6 of the Convention; and Sancaklı v. Turkey, no. 1385/07, § 30, 15 May 2018, where the Court found that a fine classified as administrative in Turkish law, amounting to approximately EUR 62, was “criminal” for the purposes of Article 6). Accordingly, although domestic law classifies the fine imposed on the applicant as “administrative”, it has a punitive and deterrent purpose and is therefore akin to a criminal penalty.",
"(iv) Conclusion concerning the nature of the proceedings leading to the order of 7 August 2008",
"63. Having regard to the foregoing, the Court concludes that the nature of the offence for which the applicant was prosecuted and the penalty imposed on him link the proceedings leading to the order of 7 August 2008 to the concept of “penal procedure” for the purposes of Article 4 of Protocol No. 7.",
"64. Moreover, it is beyond doubt that the applicant ’ s suspended sentence of one year ’ s imprisonment, imposed by the Galați Court of Appeal ’ s judgment of 14 June 2010, was a criminal penalty (see paragraph 25 above). Since the proceedings described by the applicant were criminal in nature, the first criterion for the applicability of Article 4 of Protocol No. 7 is fulfilled.",
"2. Whether the applicant was prosecuted twice for the same offence ( idem )",
"(a) The parties ’ submissions",
"( i ) The Government",
"65. The Government did not deny that the offence of which the applicant had been convicted by the Focșani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined in the order of 7 August 2008.",
"(ii) The applicant",
"66. The applicant submitted that the offence of which he had been convicted by the Focşani District Court in its judgment of 18 November 2009 entailed the same facts on the basis of which he had been fined by the public prosecutor ’ s office in its order of 7 August 2008.",
"(b) The Court ’ s assessment",
"67. In Sergey Zolotukhin (cited above, § 82) the Court found that Article 4 of Protocol No. 7 had to be understood as prohibiting prosecution or trial for a second “offence” in so far as it arose from identical facts or facts which were substantially the same. This factual approach has been explicitly reiterated by the Court in subsequent cases (see, for example, Marguš, cited above, § 114; A and B v. Norway, cited above, § 108; and Ramda v. France, no. 78477/11, § 81, 19 December 2017).",
"68. In the present case, the Court notes that, on the basis of the order of 7 August 2008 and the final judgment delivered by the Galați Court of Appeal on 14 June 2010, the applicant was found guilty of having refused to undergo a blood alcohol test during the night of 2 to 3 May 2008, following a preventive control carried out by the traffic police, and was penalised for that offence. That being so, in so far as the two above-mentioned decisions concerned the same facts and the same accusations, the applicant was indeed tried and punished twice for the same offence.",
"3. Whether there was a duplication of proceedings ( bis )",
"(a) The parties ’ submissions",
"( i ) The Government",
"69. The Government submitted that the present case concerned a “single” set of proceedings which had been finally determined by the judgment delivered by the Galați Court of Appeal on 14 June 2010, and not two separate sets of proceedings combining to form a coherent whole.",
"70. In the Government ’ s submission, the prosecutor ’ s order of 7 August 2008 had amounted to a discontinuance of the proceedings and had not been final. Although the order could have been challenged within twenty days of the date on which the applicant had been notified of it, that fact was insufficient to establish whether the order in question had become final. Referring to the decisions given by the Court in the cases of Horciag v. Romania (( dec. ), no. 70982/01, 15 March 2005), and Sundqvist v. Finland (( dec. ), no. 75602/01, 22 November 2005), the Government contended that regard should also be had to the option available under domestic law whereby the higher-ranking prosecutor could order the reopening of the criminal proceedings, an option they regarded as an ordinary remedy within the meaning of the Court ’ s relevant case-law.",
"71. On that subject, the Government submitted first of all that, according to information from certain domestic courts, decisions to discontinue or terminate criminal proceedings were very seldom set aside by either prosecutors or judges. They emphasised that the number of cases in which the prosecutor set aside a decision proprio motu was comparable to the number in which the judge did so acting on a complaint by the interested party against the prosecutor ’ s decision. The similar frequency of the use of both these options indicated that the possibility for the higher-ranking prosecutor to reopen proceedings had to be recognised as having the same legal status as an appeal lodged by the injured party against the prosecutor ’ s decision, namely that of an ordinary remedy. Referring to statistics provided by various domestic public prosecutors ’ offices, the Government explained that the proportion of cases where decisions to discontinue or terminate criminal proceedings were set aside by the public prosecutor or judge was very low, approximately 1%. In the case of intervention by the public prosecutor leading to this outcome, the percentage was even lower, less than 0.5%.",
"72. In the Government ’ s submission, the limited number of cases where the public prosecutor intervened proprio motu could be explained, firstly, by the need to avoid undermining public trust in the quality of the work performed by public prosecutors and, secondly, by the requirement to strike a balance between the aim pursued by setting aside the initial decision and the stability of the legal situations created as a result of the decision. In the instant case the higher-ranking prosecutor had intervened promptly, about five months after the order of 7 August 2008.",
"73. Relying on the Court ’ s case-law (citing Smirnova and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002, and Harutyunyan v. Armenia ( dec. ), no. 34334/04, 7 December 2006), the Government submitted that only decisions determining the merits of a case could constitute res judicata, and that the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal. Under domestic law, only court decisions, and not prosecutors ’ orders, were deemed to constitute res judicata (see paragraphs 34 and 35 above).",
"74. The Government also explained that the enforcement – whether voluntary or not – of a penalty imposed by a prosecutor ’ s order had no bearing on the nature of that order: domestic law did not prescribe that the enforcement of such a penalty precluded the reopening of criminal proceedings. By setting aside an order of that kind, the higher-ranking prosecutor also set aside the penalty.",
"75. The Government submitted that even from the perspective of the case-law of the CJEU, the order of 7 August 2008 did not constitute a “final” decision. Referring to judgments delivered by the CJEU (for example, those delivered on 29 June 2016 and 22 December 2008 respectively in the cases of Kossowski v. Generalstaatwaltschaft Hamburg (C-486/14, EU:C:2016:483), and Vladimir Turanský (C-491/07, EU:C:2008:768)), they explained that for a person to be regarded as someone whose trial had been “finally disposed of”, it was necessary, in the first place, that further prosecution had been “definitively barred”, a question which had to be assessed on the basis of the law of the Contracting State in which the criminal-law decision in issue had been taken. Next, referring to the judgments delivered by the CJEU in Filomeno Mario Miraglia (10 March 2005, C-469/03, EU:C:2005:156); M. (5 June 2014, C-398/12, EU:C:2014:1057); and Kossowski (cited above), the Government noted that the CJEU had ruled that even where, under domestic law, further prosecution had been definitively barred by a decision, that decision only qualified as “final” if it was given after a determination had been made as to the merits of the case. In the present case, the possibility for the public prosecutor ’ s office to issue an order under Article 10 (b 1 ) of the CCP without determining all the aspects of the criminal proceedings (see paragraph 33 above) argued in favour of regarding the prosecutor ’ s order of 7 August 2008 as “not final”. Furthermore, Article 273 § 1 of the CCP had not restricted the reopening of proceedings to exceptional circumstances or made it subject to the discovery of new evidence: reopening could be ordered wherever the higher-ranking prosecutor found that the proceedings had been discontinued on non-existent factual or legal grounds.",
"76. Finally, the Government submitted that even supposing that the public prosecutor ’ s office ’ s order of 7 August 2008 constituted a final decision, the order given by the higher-ranking prosecutor ’ s office on 7 January 2009 had led not to the resumption of the prosecution, but to the reopening of the case for the purposes of Article 4 § 2 of Protocol No. 7. The reopening had been justified by a fundamental defect in the order previously issued. With reference to the Prosecutor General ’ s memorandum of 17 January 2013 (see paragraph 27 above), they explained that the higher-ranking prosecutor ’ s oversight of decisions taken by public prosecutors under his or her authority pursued the aim, inter alia, of standardising the practice of public prosecutors ’ offices, particularly as regards the assessment of the degree of danger to society posed by a road traffic offence. Even though the memorandum in question had been issued after the facts of the present case, it proved that the standardisation of judicial practice had been a constant concern of the judicial authorities. Furthermore, for offences of this kind there was generally no other party with an interest in challenging the prosecutor ’ s decision to discontinue the proceedings. Had the higher-ranking prosecutor not intervened, a decision based on an erroneous assessment could not have been amended.",
"(ii) The applicant",
"77. The applicant submitted that the order of 7 August 2008 by the public prosecutor ’ s office had amounted to a final decision for the purposes of Article 4 of Protocol No. 7. He first of all observed that in his case, unlike in A and B v. Norway (cited above), there had not been two complementary sets of proceedings pursuing different social purposes. In support of that contention he pointed out that in both sets of proceedings he had been prosecuted for the same offence punishable under the same legislation, and that the evidence produced had been the same. The second set of proceedings had unforeseeably overturned the first set after a considerable period of time, thus demonstrating that there had not been two complementary sets of proceedings.",
"78. The applicant further submitted that the prosecutor ’ s order of 7 August 2008 had become final in so far as it had not been challenged within the time-limit set out in Articles 249 1, 278 and 278 1 of the CCP for lodging an appeal, and the fine had consequently been paid. Under domestic law, both the courts and the public prosecutors ’ offices had had jurisdiction to apply Articles 18 1 and 91 of the Criminal Code as in force at the material time. In order to apply those provisions, and above all to impose one of the penalties laid down in Article 91 of the Criminal Code, the authority with jurisdiction had been required to carry out a thorough investigation of the facts of the case and to assess the behaviour of the person concerned. Referring to the judgment delivered by the CJEU in Kossowski v. Generalstaatwaltschaft Hamburg (cited above), the applicant stated that in the present case, in issuing the order of 7 August 2008, the public prosecutor ’ s office had conducted an in-depth investigation: it had interviewed the suspect and a witness and had made its own assessment of the circumstances surrounding the commission of the acts, before deciding on the most appropriate penalty to be imposed in this case. The detailed nature of the investigation meant that the order of 7 August 2008 should be characterised as “final”.",
"79. The applicant added that pursuant to Article 249 1 of the CCP, the fine imposed had been enforceable on expiry of the twenty-day time-limit within which he could, under the CCP, have challenged the order in question. The enforceability – as required by law – of the order on expiry of the time-limit for appeal had rendered the order final, such that after its enforcement the proceedings could no longer have been reopened by the public prosecutor ’ s office on the basis of Article 273 of the CCP.",
"80. Finally, in the applicant ’ s submission, the fact that Article 273 of the CCP as in force at the material time had allowed the higher-ranking public prosecutor ’ s office to reopen criminal proceedings had not constituted an extraordinary remedy for the purposes of the case-law of the Court, but rather a reopening of the case, to be assessed under Article 4 § 2 of Protocol No. 7. The higher-ranking prosecutor ’ s decision of 7 January 2009 had been contrary both to domestic law and to Article 4 § 2 of Protocol No. 7. The applicant argued, in that connection, that the reopening had been based on a different assessment of the circumstances surrounding the commission of the offence and of the appropriateness of the penalty imposed, and not on the finding that the grounds forming the basis of the previous decision had never actually existed or no longer existed – as required by Article 273 of the CCP as in force at the material time – or on the emergence of new facts or a fundamental defect in the previous proceedings, as required by Article 4 § 2 of Protocol No. 7.",
"(b) The Court ’ s assessment",
"81. The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see Sergey Zolotukhin, cited above, § 107, with further references).",
"( i ) Preliminary observations on whether the two sets of proceedings were complementary",
"82. The Court considers it useful first of all to consider whether the facts of the present case point to “dual” sets of proceedings with a sufficiently close connection, given that the issue as to whether a decision is “final” or not is devoid of relevance when there is no real duplication of proceedings but rather a combination of proceedings considered to constitute an integrated whole (see A and B v. Norway, cited above, § 142).",
"83. It observes that in the case of A and B v. Norway (cited above, §§ 126 and 130-34) it reiterated and developed the principle of a “sufficiently close connection in substance and in time” between proceedings: where this connection allows the two sets of proceedings to be treated as forming part of an integrated scheme of sanctions under the domestic law in question, there is no duplication of proceedings but rather a combination of proceedings compatible with Article 4 of Protocol No. 7.",
"84. In the present case, the applicant was prosecuted in “both” sets of proceedings for a single offence punishable by a single legal provision, namely Article 87 § 5 of Ordinance no. 195/2002. The proceedings and the two penalties imposed on the applicant pursued the same general purpose of deterring conduct posing a risk to road safety. The “first” set of proceedings as a whole and the initial part of the “second” set of proceedings were conducted by the same authority, that is to say the public prosecutor ’ s office at the Focşani District Court, and in “both” sets of proceedings the same evidence was produced. In the present case the two penalties imposed on the applicant were not combined: either of the two penalties should have been imposed depending on whether the investigating authorities characterised the facts as constituting a criminal offence. The “two” sets of proceedings took place one after the other and were not conducted simultaneously at any time.",
"85. Having regard to those factors, the Court agrees with the parties and finds that the two sets of proceedings were not combined in an integrated manner such as to form a coherent whole, connecting dual proceedings “sufficiently closely in substance and in time” to be compatible with the “ bis ” criterion under Article 4 of Protocol No. 7 (compare A and B v. Norway, cited above, §§ 112-34, and Jóhannesson and Others v. Iceland, no. 22007/11, §§ 48-49, 18 May 2017).",
"86. In order to determine further whether, in the instant case, there was duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7, the Court will examine whether the prosecutor ’ s order of 7 August 2008 constituted a “final” decision “acquitting or convicting” the applicant. In the affirmative, the Court must establish whether the decision given by the higher-ranking prosecutor on 7 January 2009 was covered by the exception set out in Article 4 § 2 of Protocol No. 7 and therefore amounted to a reopening of the case compatible with Article 4 of Protocol No. 7.",
"(ii) Whether the order of 7 August 2008 constituted a final acquittal or conviction",
"87. The Court notes that the parties disagreed on this point: the Government submitted that the order of 7 August 2008 had merely entailed the discontinuance of the proceedings by the public prosecutor ’ s office, whereas the applicant contended that it had entailed his conviction. Likewise, the applicant argued that the order of 7 August 2008 was a final decision, but the Government disputed this.",
"88. The Court notes that Article 4 of Protocol No. 7 states that the ne bis in idem principle is intended to protect persons who have already been “finally acquitted or convicted”. The explanatory report on Protocol No. 7 states, as regards Article 4, that “[t]he principle established in this provision applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned” (see paragraph 29 of the explanatory report, cited in paragraph 37 above). For a person to qualify for protection under this Article, a final decision is therefore not sufficient; the final decision must also involve the person ’ s acquittal or conviction.",
"89. In the present case, the Court must first of all determine whether the order of 7 August 2008 did indeed constitute an acquittal or conviction. If so, it must ascertain whether the order was a “final” decision for the purposes of Article 4 of Protocol No. 7. In order to answer those questions, it must conduct a broader analysis of Article 4 of Protocol No. 7 in the light of its relevant case-law.",
"90. To that end, it reiterates that as an international treaty, the Convention must be interpreted in the light of the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 118, 8 November 2016). Thus, in accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Johnston and Others v. Ireland, 18 December 1986, § 51, Series A no. 112, and Article 31 § 1 of the Vienna Convention, cited in paragraph 39 above ).",
"91. Furthermore, in order to interpret the provisions of the Convention and the Protocols thereto in the light of their object and purpose, the Court has developed additional means of interpretation through its case-law, namely the principles of autonomous interpretation and evolutive interpretation, and that of the margin of appreciation. These principles require the provisions of the Convention and the Protocols thereto to be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161).",
"92. Regard must also be had to the fact that the context of the provision in question is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, §§ 47-48, ECHR 2005 ‑ X, and Magyar Helsinki Bizottság, cited above, § 120).",
"( α) Concerning the scope of the concepts of “acquittal” and “conviction”",
"93. Before detailing the content of those concepts, the Court deems it useful to consider whether judicial intervention in the proceedings is necessary for a decision to be regarded as an “acquittal” or a “conviction”.",
"– Whether judicial intervention is necessary",
"94. From a study of the two authentic versions – English and French – of Article 4 of Protocol No. 7, the Court notes a difference in the wording of the two texts: the French version of Article 4 of Protocol No. 7 provides that the person concerned must have been “ acquitté ou condamné par un jugement ”, whereas the English version of the same provision states that the person must have been “finally acquitted or convicted”. The French version thus indicates that the acquittal or conviction must stem from a “ jugement ”, whereas the English version does not specify what form the acquittal or conviction should take. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 48, Series A no. 30, and Article 33 § 4 of the Vienna Convention on the Law of Treaties).",
"95. In view of the crucial role played by Article 4 of Protocol No. 7 in the Convention system and the aim of the right which it secures, the use of the word “ jugement ” in the French version of this Article cannot justify a restrictive approach to the concept of a person who has been “acquitted or convicted”. What matters in any given case is that the decision in question has been given by an authority participating in the administration of justice in the national legal system concerned, and that that authority is competent under domestic law to establish and, as appropriate, punish the unlawful behaviour of which the person has been accused. The fact that the decision does not take the form of a judgment cannot call into question the person ’ s acquittal or conviction, since such a procedural and formal aspect cannot have a bearing on the effects of the decision. Indeed, the English version of Article 4 of Protocol No. 7 supports this broad interpretation of the concept. Moreover, the Court has consistently adopted a similar approach in determining the effects of a legal situation, for example in ascertaining whether proceedings defined as administrative under domestic law produced effects requiring them to be classified as “criminal” within the autonomous Convention meaning of the term (see, among many other authorities, A and B v. Norway, cited above, §§ 139 and 148, and Sergey Zolotukhin, cited above, §§ 54-57; see also Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 54, 14 January 2010, where the Court proceeded from the finding that the mayor ’ s decision to impose an administrative fine on the applicant, which had not been challenged in the courts and was enforceable, had constituted a final decision for the purposes of Article 4 of Protocol No. 7).",
"Accordingly, the Court considers that judicial intervention is unnecessary for the existence of a decision.",
"– The content of the concepts of “acquittal” and “conviction”",
"96. To date, the Court has never defined in its case-law the scope of the expression “acquitted or convicted” or set out any general criteria in that regard. Nonetheless, it has held on many occasions that the discontinuance of criminal proceedings by a public prosecutor does not amount to either a conviction or an acquittal, and that Article 4 of Protocol No. 7 is therefore not applicable in such a situation (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above). In Horciag (cited above) the Court stated that “a decision confirming provisional psychiatric detention cannot be treated as an acquittal for the purposes of Article 4 of Protocol No. 7, but concerns a preventive measure not entailing any examination or finding as to the applicant ’ s guilt (see, mutatis mutandis, Escoubet v. Belgium (cited above), and Mulot v. France ( dec. ), no. 37211/97, 14 December 1999)”.",
"97. In order to determine whether a particular decision constitutes an “acquittal” or a “conviction”, the Court has therefore considered the actual content of the decision in issue and assessed its effects on the applicant ’ s situation. Referring to the text of Article 4 of Protocol No. 7, it considers that the deliberate choice of the words “acquitted or convicted” implies that the accused ’ s “criminal” responsibility has been established following an assessment of the circumstances of the case, in other words that there has been a determination as to the merits of the case. In order for such an assessment to take place, it is vital that the authority giving the decision is vested by domestic law with decision-making power enabling it to examine the merits of a case. The authority must then study or evaluate the evidence in the case file and assess the applicant ’ s involvement in one or all of the events prompting the intervention of the investigative bodies, for the purposes of determining whether “criminal” responsibility has been established (see, mutatis mutandis, Allen v. the United Kingdom [GC], no. 25424/09, § 127, ECHR 2013, a case concerning the scope of the presumption of innocence under Article 6 § 2 of the Convention, in which the content, and not the form, of the decision, was the decisive factor for the Court).",
"98. Thus, the finding that there has been an assessment of the circumstances of the case and of the accused ’ s guilt or innocence may be supported by the progress of the proceedings in a given case. Where a criminal investigation has been initiated after an accusation has been brought against the person in question, the victim has been interviewed, the evidence has been gathered and examined by the competent authority, and a reasoned decision has been given on the basis of that evidence, such factors are likely to lead to a finding that there has been a determination as to the merits of the case. Where a penalty has been ordered by the competent authority as a result of the behaviour attributed to the person concerned, it can reasonably be considered that the competent authority had conducted a prior assessment of the circumstances of the case and whether or not the behaviour of the person concerned was lawful.",
"– Considerations specific to the present case",
"99. As regards the circumstances of the present case, the Court observes first of all that in its order of 7 August 2008 the public prosecutor ’ s office at the Focşani District Court discontinued the criminal proceedings against the applicant, while also imposing an administrative penalty on him for the acts he had committed. This was therefore not a simple discontinuance order, in which case Article 4 of Protocol No. 7 to the Convention would no doubt have been inapplicable (see, to that effect, Marguš, cited above, § 120, and Smirnova and Smirnova and Harutyunyan, both cited above).",
"100. In the instant case, under domestic law the public prosecutor ’ s office was called upon to participate in the administration of criminal justice. The prosecutor had jurisdiction to investigate the applicant ’ s alleged actions, questioning a witness and the suspect to that end. Subsequently, he applied the relevant substantive rules laid down in domestic law; he had to assess whether the requirements were fulfilled for characterising the applicant ’ s alleged acts as a criminal offence. On the basis of the evidence produced, the prosecutor carried out his own assessment of all the circumstances of the case, relating both to the applicant individually and to the specific factual situation. After carrying out that assessment, again in accordance with the powers conferred on him under domestic law, the prosecutor decided to discontinue the prosecution, while imposing a penalty on the applicant that had a punitive and deterrent purpose (see paragraphs 11 to 15 above). The penalty imposed became enforceable on the expiry of the time-limit for an appeal by the applicant under domestic law.",
"101. Having regard to the investigation conducted by the prosecutor and to the powers conferred on him under domestic law to determine the case before him, the Court considers that in the present case the prosecutor ’ s assessment concerned both the circumstances and the establishment of the applicant ’ s “criminal” responsibility. Having regard also to the fact that a deterrent and punitive penalty was imposed on the applicant, the order of 7 August 2008 entailed his “conviction”, within the substantive meaning of the term. In view of the effects of the conviction on the applicant ’ s situation, the fact that no court had intervened in his case cannot alter that conclusion.",
"( β) Concerning the “final” nature of the prosecutor ’ s order of 7 August 2008 entailing the applicant ’ s “criminal conviction”",
"– The Court ’ s approach in comparable previous cases and its elaboration for the purposes of the present case",
"102. The Court observes that according to the text of Article 4 of Protocol No. 7, to be afforded the benefit of the ne bis in idem principle the person concerned must have “already been finally acquitted or convicted in accordance with the law and penal procedure of that State”. This Article therefore includes an explicit reference to the law of the State which gave the decision in question.",
"103. The Court further notes that its case-law indicates (see, for example, Nikitin, cited above, § 37; Storbråten, ( dec. ), no. 12277/04, 1 February 2007; Horciag and Sundqvist, all cited above; and Sergey Zolotukhin, cited above, § 107) that in determining what was the “final” decision in cases before it, it has invariably referred to the criterion set forth in the explanatory report on Protocol No. 7, finding that a decision was “final”, whatever its characterisation under domestic law, after the exhaustion of “ordinary” remedies or the expiry of the time-limit laid down in domestic law for their use. Remedies which the Court has designated as “extraordinary” are not taken into account in determining what was the “final” decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, §§ 37-39; Sergey Zolotukhin, cited above, § 108; Sismanidis and Sitaridis v. Greece, nos. 66602/09 and 71879/12, § 42, 9 June 2016; and Šimkus v. Lithuania, no. 41788/11, § 47, 13 June 2017 ). In other words, in performing its scrutiny, the Court has not automatically taken into account the classification used in domestic law in determining whether or not a decision was “final”: it has conducted its own assessment of the “final” nature of a decision with reference to the “ordinary” remedies available to the parties.",
"104. Nevertheless, a reading of certain decisions given by the Court prior to the Sergey Zolotukhin and Marguš judgments (cited above), and more especially the Horciag, Sundqvist and Storbråten decisions (all cited above), might give the impression that the question of the final nature of a decision is exclusively governed by the domestic law of the State concerned (for an assessment of the same Romanian legal framework from the standpoint of Article 6 § 1 of the Convention, concerning length of proceedings, see also Stoianova and Nedelcu v. Romania, nos. 77517/01 and 77722/01, ECHR 2005 ‑ VIII). However, the references to domestic law in those decisions should be interpreted in a more qualified manner and be viewed in their context.",
"105. In Storbråten (cited above) the Court pointed out that regard should be had to domestic law in order to ascertain the “time” when a decision became final. The Court itself determined, in the light of the criterion set out in the explanatory report, what had been the “final” domestic decision, taking into account the procedures existing in domestic law. In that case, domestic law and the application of the criteria set out in the explanatory report led to the same outcome: the decision delivered by the Probate and Bankruptcy Court had become final in the absence of an appeal by the applicant, and thus after the expiry of the time-limit laid down in domestic law for making use of an “ordinary” remedy.",
"106. The cases of Horciag, Sundqvist and Stoianova and Nedelcu (all cited above) differ from the present case. In Horciag the applicant had been the subject of a decision to discontinue proceedings accompanied by a detention order – a preventive measure – and not a penalty. The cases of Sundqvist and Stoianova and Nedelcu centred on simple discontinuance orders, rather than decisions entailing “acquittal” or “conviction”. As previously mentioned (see paragraph 96 above), the discontinuance of criminal proceedings by a public prosecutor does not amount to a conviction or an acquittal.",
"107. At all events, even in Horciag (cited above) the Court sought to establish whether the judgment upholding a provisional psychiatric detention order constituted a final decision, by referring to the rules of domestic law governing that concept. It held, in particular, that “in view of the provisional nature of the detention and of its confirmation by a court, the resumption of the proceedings by the prosecutor ’ s office in accordance with Article 273 of the Code of Criminal Procedure was not precluded, even though the prosecution had previously been discontinued”. Accordingly, in determining whether the judgment confirming the applicant ’ s detention had been final, the Court examined the various concepts laid down in substantive law governing the nature of psychiatric detention and the domestic procedure for ordering such a measure.",
"108. Accordingly, the Court considers that the decisions in Storbråten, Horciag and Sundqvist (all cited above) cannot be construed as requiring the designation of a “final” decision, in cases of acquittals or convictions, exclusively with reference to domestic law. It further notes a common denominator emerging from its case-law in this area as a whole: in each case the Court itself has determined what the “final” domestic decision was with reference to the explanatory report and to various concepts laid down in domestic law.",
"109. The Court reiterates that it consistently relies on the text of the explanatory report on Protocol No. 7 to identify the “final” decision in a particular case (see paragraph 103 above). A reading not only of Article 4 § 1 of Protocol No. 7 but also of paragraph 27 of the explanatory report indicates that the successive use of the expressions “the same State” and “that State” is intended to limit the application of the Article exclusively to the national level and thus to prevent any cross-border application. As regards the word “final”, the report itself provides the “definition” to be used in determining whether a decision is to be considered “final” within the meaning of Article 4 of the Protocol, with reference to an international convention, namely the European Convention on the International Validity of Criminal Judgments (see paragraphs 22 and 29 of the explanatory report, cited in paragraph 37 above). In order to determine whether the decision in question is “final”, the Court must therefore ascertain, as indicated in the explanatory report, whether ordinary remedies were available against the decision or whether the parties have permitted the time-limit to expire without availing themselves of those remedies.",
"110. Consequently, where domestic law required a particular remedy to be used for a decision to be designated as final, the Court has drawn a distinction between “ordinary” and “extraordinary” remedies. In making that distinction, having regard to the specific circumstances of the individual case, the Court has considered such factors as the accessibility of a remedy to parties or the discretion afforded to authorised officials under domestic law as regards the use of a remedy (see, for example, Nikitin, cited above, § 39). Reaffirming the need to ensure observance of the principle of legal certainty, and referring to the difficulties which might arise under Article 4 of Protocol No. 7 where a judicial decision was set aside as a result of an “extraordinary” remedy, the Court has only taken into account “ordinary remedies” in determining the “final” nature of a decision for the purposes of Article 4 of Protocol No. 7 (see Nikitin, cited above, § 39), in the autonomous Convention meaning of the term (see Sergey Zolotukhin, cited above, § 109).",
"111. The Court would therefore highlight the importance it attached more recently, in the case of A and B v. Norway (cited above), to the criterion of the foreseeability of the application of the law as a whole as a condition for accepting that “dual” proceedings form part of an integrated scheme of sanctions under domestic law without giving rise to any duplication of proceedings (“ bis ”) for the purposes of Article 4 of Protocol No. 7 (ibid., §§ 122, 130, 132, 146 and 152). This criterion is likewise wholly relevant to the “final” nature of a decision, as the condition for triggering the application of the safeguard provided for in that Article.",
"112. In that context, the Court is obliged to note that under its well-established case-law, the “lawfulness” requirement set forth in other provisions of the Convention – including the expressions “in accordance with the law”, “prescribed by law” and “provided for by law” appearing in the second paragraph of Articles 8 to 11 of the Convention and in Article 1 of Protocol No. 1, and the expression “under national [emphasis added] or international law” contained in Article 7 – concerns not only the existence of a legal basis in domestic law but also a quality requirement inherent in the autonomous concept of lawfulness; this concept entails conditions regarding the accessibility and foreseeability of the “law”, as well as the requirement to afford a measure of protection against arbitrary interferences by the public authorities with the rights safeguarded by the Convention (see, for example, Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 50 and 64, ECHR 2015, as regards Article 7; Rotaru v. Romania [GC], no. 28341/95, §§ 52-56, ECHR 2000 ‑ V; Bernh Larsen Holding AS and Others v. Norway, no. 24117/08, §§ 123-24 and 134, 14 March 2013; and Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-229, ECHR 2015, as regards Article 8; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012, as regards Article 10; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 114 ‑ 15 and 118, 15 November 2018, as regards Article 11; and Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018, as regards Article 1 of Protocol No. 1; furthermore, as regards Article 5 § 1 of the Convention, see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018, and Hilda Hafsteinsdóttir v. Iceland, , no. 40905/98, § 51, 8 June 2004).",
"113. As noted above, the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; see also Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000-X; Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI; and Stec and Others, cited above, § 48).",
"114. In the light of those considerations, the Court considers that it must, to some extent, interpret the term “final” autonomously where this is justified by sound reasons, as indeed it does when establishing whether the legal characterisation of the offence is covered by the notion of “penal procedure” (see paragraphs 54 et seq. above).",
"115. In order to decide whether a decision is “final” within the meaning of Article 4 of Protocol No. 7, it must be ascertained whether it is subject to an “ordinary remedy”. In establishing the “ordinary” remedies in a particular case, the Court will take domestic law and procedure as its starting-point. Domestic law – both substantive and procedural – must satisfy the principle of legal certainty, which requires both that the scope of a remedy for the purposes of Article 4 of Protocol No. 7 be clearly circumscribed in time and that the procedure for its use be clear for those parties that are permitted to avail themselves of the remedy in question. In other words, for the principle of legal certainty to be satisfied, a principle which is inherent in the right not to be tried or punished twice for the same offence (see Nikitin, cited above, § 39), a remedy must operate in a manner bringing clarity to the point in time when a decision becomes final. In particular, the Court observes in this context that the requirement of a time-limit in order for a remedy to be regarded as “ordinary” is implicit in the wording of the explanatory report itself, which states that a decision is irrevocable where the parties have permitted the “time-limit” to expire without availing themselves of such a remedy. A law conferring an unlimited discretion on one of the parties to make use of a specific remedy or subjecting such a remedy to conditions disclosing a major imbalance between the parties in their ability to avail themselves of it would run counter to the principle of legal certainty (see, mutatis mutandis, Gacon v. France, no. 1092/04, § 34 in fine, 22 May 2008).",
"116. The Convention undoubtedly allows States, in the performance of their function as administrators of justice and guardians of the public interest, to define what, under their domestic law, constitutes a decision by which criminal proceedings are terminated with final effect. Nevertheless, if the Contracting States could determine as they saw fit when a decision was “final” for the purposes of Article 4 of Protocol No. 7, without scrutiny by the Court, the application of that Article would be left to their discretion. A latitude extending so far might lead to results incompatible with the purpose and object of the Convention (see, mutatis mutandis, Engel and Others, cited above, § 81; Öztürk v. Germany, 21 February 1984, § 49, Series A no. 73; and Storbråten, cited above), namely to ensure that no one is tried or punished twice for the same offence. If that right were not accompanied by a safeguard permitting the determination of the “final” decision in a particular case on the basis of objective criteria, it would be very limited in scope. However, the provisions of Article 4 of Protocol No. 7 must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Sergey Zolotukhin, cited above, § 80).",
"– Application of the above principles in the present case",
"117. As regards the facts of the present case, the Court notes first of all that under Romanian legislation, the prosecutor ’ s order of 7 August 2008 imposing a penalty on the applicant while also discontinuing the criminal proceedings could not have constituted res judicata, since that concept only applies to judicial decisions. Similarly, as the order was subject to review by the higher-ranking prosecutor ’ s office, it was not final under domestic law.",
"118. Firstly, at the material time Article 249 1 of the CCP provided that an order by which the public prosecutor ’ s office applied Article 10 (b 1 ) of the CCP and thus imposed a penalty could be challenged within twenty days of the date on which the person concerned was notified of the order. The Court observes that this remedy had a legal basis in domestic law. As regards the quality of the law governing the remedy in question, it should be noted that the text of Article 249 1 was accessible to the applicant, given that it was part of the CCP, which was itself published in the Official Gazette. Article 249 1 clearly stated that where an order discontinuing the proceedings was based on Article 10 (b 1 ) of the CCP, the individual concerned could challenge it by means of an appeal, which had to be lodged within a time-limit established by law. If no appeal had been lodged on expiry of that time-limit, the order became enforceable.",
"119. The Court also notes that the remedy provided for in Article 249 1 of the CCP was directly accessible to the applicant, who could have challenged the penalty within a clearly defined time-limit. If the applicant had seen fit to avail himself of the remedy, it could have led to the reconsideration of the merits of the order and the sanction imposed. Accordingly, the Court considers that this means of challenging the prosecutor ’ s order is akin to an “ordinary” remedy within the meaning of its case-law and that it must be taken into account in determining the “final” decision in the present case.",
"120. Secondly, at the material time, the higher-ranking prosecutor ’ s office had the option of ordering the resumption of proceedings, pursuant to Articles 270 and 273 of the CCP as then in force, after the proceedings had been discontinued, even where the discontinuance order had been based on Article 10 (b 1 ) of the CCP and a penalty had been imposed. Before a decision could be taken to resume the proceedings in the latter scenario, the penalty imposed had to be set aside. This remedy also had a legal basis in domestic law, and Articles 270 and 273 of the CCP were accessible to the applicant, since they were published in the Official Gazette.",
"121. It remains to be determined whether that remedy, whereby the higher-ranking prosecutor ’ s office could set aside the penalty imposed and reopen the proceedings, may be regarded as an “ordinary” remedy satisfying the requirements of legal certainty (see Nikitin, cited above, § 39).",
"122. In this connection, the Court cannot overlook the very specific context of the present case, which relates to a stage in the criminal proceedings prior to the referral of the case to a court. Bearing in mind the principles governing the work of prosecutors ’ offices and their role in the initial stages of criminal proceedings, it is not unreasonable for a higher-ranking prosecutor ’ s office to examine of its own motion, in the context of hierarchical supervision, the merits of decisions taken by a lower-level prosecutor ’ s office.",
"123. The option available to the higher-ranking prosecutor ’ s office involved the re-examination of a particular case on the basis of the same facts and the same evidence as those underlying the initial prosecutor ’ s decision to terminate the criminal proceedings after an assessment of the degree of danger to society posed by the offence, and to impose a penalty classified as administrative under domestic law.",
"124. In the present case, the remedy available to the interested parties and the one available to the higher-ranking prosecutor ’ s office under Articles 270 and 273 of the CCP shared the same aim of challenging the validity of the penalty imposed on the applicant by the initial prosecutor ’ s office on 7 August 2008. As regards the use of remedies pursuing the same aim, the law at the material time laid down different conditions according to their potential users: while the applicant had to avail himself of his remedy within twenty days, the higher-ranking prosecutor ’ s office was not bound by any time-limit for reconsidering the merits of a decision. The Court acknowledges that on account of its powers and role in the proper administration of criminal justice, the prosecutor ’ s office may have been entitled to different conditions in performing its review. Nevertheless, the fact remains that on account of the lack of a time-limit, Romanian law did not regulate with sufficient clarity the manner in which that remedy was to be used, thus creating genuine uncertainty as to the applicant ’ s legal situation (see paragraph 112 above), and that this discrepancy resulted in a major imbalance between the parties in their ability to make use of the remedies in question, of such a nature as to place the applicant in a situation of legal uncertainty (see paragraph 115 in fine above).",
"125. Therefore, the option available under Articles 270 and 273 of the CCP as in force at the material time did not constitute an “ordinary remedy” to be taken into account in determining whether the applicant ’ s conviction on the basis of the order issued by the lower-level prosecutor ’ s office on 7 August 2008 was final “in accordance with the law and penal procedure of [the] State” in question.",
"126. Having regard to the foregoing, the Court considers that only the option set out in Article 249 1 of the CCP as in force at the material time constituted an “ordinary” remedy to be taken into consideration in determining the “final” decision. In the instant case, the prosecutor ’ s order of 7 August 2008 fining the applicant was subject to appeal within twenty days from the date on which the applicant was notified of it. However, the applicant did not see fit to avail himself of the remedy provided for in Article 249 1 of the CCP. Although the date on which he was notified of the order of 7 August 2008 is unknown, he nonetheless took cognisance of it, allowed the twenty-day time-limit laid down in Article 249 1 of the CCP to expire and paid the fine imposed. The applicant had no other ordinary remedy available. Consequently, the order of 7 August 2008 in which a fine was imposed on the applicant had become “final”, within the autonomous Convention meaning of the term, on the expiry of the twenty-day time-limit laid down in Article 249 1 of the CCP, by the time when the higher-ranking prosecutor ’ s office exercised its discretion to reopen the criminal proceedings.",
"(iii) Whether the duplication of the proceedings was contrary to Article 4 of Protocol No. 7",
"127. The Court has found that the applicant was convicted in a final decision based on the order of 7 August 2008. In its order of 7 January 2009 the higher-ranking prosecutor ’ s office set aside the initial prosecutor ’ s order of 7 August 2008 and the penalty imposed. Although the applicant was not punished twice for the same facts – since the initial penalty imposed on him had been set aside and he had the opportunity to secure the reimbursement of the fine – the case nevertheless involved two successive sets of criminal proceedings which concerned the same facts and were thus incompatible, on the face of it, with the first paragraph of Article 4 of Protocol No. 7. Even so, such a duplication of proceedings may be compatible with Article 4 of Protocol No. 7 if the second set of proceedings involves the reopening of a case where this satisfies the requirements linked to the exception provided for in Article 4 § 2 of Protocol No. 7.",
"128. Article 4 of Protocol No. 7 to the Convention draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, a situation referred to in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings (see Nikitin, cited above, § 45, and Kadušić, cited above, § 84). The Committee of Ministers of the Council of Europe has also considered that the possibility of re-examining or reopening a case provides a guarantee of redress, particularly in the context of the execution of the Court ’ s judgments. In its Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, it urged member States to ensure that their national legal systems provided for appropriate procedures for re-examining or reopening cases (see Nikitin, cited above, § 56).",
"129. Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters. As the Court has stated on many occasions, the requirements of legal certainty are not absolute, and in criminal cases, they must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits Contracting States to reopen a case where new facts emerge, or where a fundamental defect is detected in the proceedings (ibid.).",
"( α) Conditions permitting the reopening of a case within the meaning of the exception set out in Article 4 § 2 of Protocol No. 7",
"130. As previously noted (see paragraph 128 above), the reopening of proceedings is possible but is subject to strict conditions: the decision to reopen the case must be justified by the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings which could affect the outcome of the case. Those conditions are alternative and not cumulative.",
"131. The Court has already explained that circumstances relating to the case which exist during the trial, but remain hidden from the judge, and become known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new” (see Bulgakova v. Russia, no. 69524/01, § 39, 18 January 2007, and Vedernikova v. Russia, no. 25580/02, § 30, 12 July 2007 – as regards Article 6). The Court also considers, as is moreover noted in the explanatory report on Protocol No. 7, that the term “new or newly discovered facts” includes new evidence relating to previously existing facts (see paragraph 31 of the explanatory report, cited in paragraph 37 above).",
"132. In some cases, the Court has also found the exception set out in Article 4 § 2 of Protocol No. 7 to be applicable in the event of the reopening of proceedings on account of a “fundamental defect in the previous proceedings”. In the case of Fadin v. Russia (no. 58079/00, § 32, 27 July 2006), for example, it held that the reopening of proceedings on the grounds that the lower-level court had not followed the instructions given to it by the Supreme Court as regards the investigative measures to be carried out had been justified by a fundamental defect in the previous proceedings and was therefore compatible with Article 4 § 2 of Protocol No. 7 (see also Bratyakin v. Russia ( dec. ), no. 72776/01, 9 March 2006, and Goncharovy v. Russia, no. 77989/01, 27 November 2008).",
"133. The case-law referred to above thus indicates that the Court assesses on a case-by-case basis whether the circumstances relied upon by a higher-level authority to reopen proceedings amount to new or newly discovered facts or a fundamental defect in the previous proceedings. The concept of “fundamental defect” within the meaning of Article 4 § 2 of Protocol No. 7 suggests that only a serious violation of a procedural rule severely undermining the integrity of the previous proceedings can serve as the basis for reopening the latter to the detriment of the accused, where he or she has been acquitted of an offence or punished for an offence less serious than that provided for by the applicable law. Consequently, in such cases, a mere reassessment of the evidence on file by the public prosecutor or the higher-level court would not fulfil that criterion. However, as regards situations where an accused has been found guilty and a reopening of proceedings might work to his advantage, the Court points out that paragraph 31 of the explanatory report to Protocol No. 7 (see paragraph 37 above) emphasises that “ this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person”. In such situations, therefore, the nature of the defect must be assessed primarily in order to ascertain whether there has been a violation of the defence rights and therefore an impediment to the proper administration of justice. Lastly, in all cases, the grounds justifying the reopening of proceedings must, according to Article 4 § 2 of Protocol No. 7 in fine, be such as to “affect the outcome of the case” either in favour of the person or to his or her detriment (see, to that effect, paragraph 30 of the explanatory report to Protocol No. 7, cited in paragraph 37 above).",
"( β) Considerations specific to the present case",
"134. Turning to the circumstances of the case, the Court notes that the higher-ranking prosecutor ’ s order and the subsequent proceedings concerned the same accusations as those that had given rise to the proceedings resulting in the order of 7 August 2008, and that their purpose was to review whether that order was well-founded. The higher-ranking prosecutor ’ s order of 7 January 2009 had the effect of entirely setting aside the previous order of 7 August 2008. This was necessary to enable the case file to be returned to the same prosecutor ’ s office, which could then continue the investigation in compliance with the orders issued, that is to say instituting criminal proceedings against the applicant and committing him for trial. Following the institution of fresh proceedings, the applicant stood trial, in the course of which the criminal charges against him were determined in a new, single decision. The present case therefore involves a system permitting the resumption of proceedings, which may be regarded as a special form of reopening for the purposes of Article 4 § 2 of Protocol No. 7 (see Nikitin, cited above, § 46, and Fadin, cited above, § 31).",
"135. It is clear from the order of 7 January 2009 that the reopening concerned the same facts as those forming the subject of the order of 7 August 2008. The higher-ranking prosecutor gave his decision on the basis of the same case file as the initial prosecutor, no new evidence having been adduced and examined. The reopening of the case was therefore not justified by the emergence of new or newly discovered facts, a finding which, moreover, does not appear to be in dispute.",
"136. Conversely, the Government argued that the reopening of the criminal proceedings had been justified by a fundamental defect in the previous proceedings and had been necessary in order to ensure the standardisation of practice concerning the assessment of the seriousness of certain offences (see paragraph 76 above). However, the Court observes that that aspect was not mentioned in the order of 7 January 2009. The Prosecutor General ’ s memorandum, which was published long after the facts, contained no clear indications on how Article 18 1 of the Criminal Code should be interpreted in the context of road traffic offences. In any event, the reason put forward by the Government – the need to harmonise practice in this area – is not covered by the exceptional circumstances referred to in Article 4 § 2 of Protocol No. 7, that is to say, the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings.",
"137. Nevertheless, according to the same order of 7 January 2009, the reopening of the proceedings in the present case was justified by the higher-ranking prosecutor ’ s different assessment of the circumstances, which in his view should have given rise to criminal rather than “administrative” liability on the applicant ’ s part. The higher-ranking prosecutor also referred to the inadequacy of the penalty imposed. A fresh assessment was conducted of the seriousness of the accusations against the applicant and of the penalty imposed; no mention was made of any need to remedy a breach of a procedural rule or a serious omission in the proceedings or in the investigation conducted by the initial public prosecutor ’ s office. But as pointed out above, a [mere] reassessment of the facts in the light of the applicable law does not constitute a “fundamental defect” in the previous proceedings (contrast Fadin, cited above, § 32; Bratyakin, cited above; and Goncharovy, cited above; and see, mutatis mutandis, Savinskiy v. Ukraine, no. 6965/02, § 25, 28 February 2006, and Bujniţa v. Moldova, no. 36492/02, § 23, 16 January 2007).",
"138. Having regard to the foregoing, the Court considers that the reasons given by the higher-ranking prosecutor ’ s office to justify the reopening of the proceedings on the basis of the order of 7 January 2009 are at variance with the strict conditions imposed by Article 4 § 2 of Protocol No. 7. Therefore, the reopening of the proceedings in the instant case was not justified by the exception set out in that provision.",
"4. General conclusion",
"139. The Court finds that the applicant was convicted on the basis of the order of 7 August 2008, which had become final when a further prosecution was triggered by the order of 7 January 2009. Given that none of the situations permitting the combination or reopening of proceedings has been observed in the present case, the Court concludes that the applicant was tried twice for the same offence, in breach of the ne bis in idem principle.",
"There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"140. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"141. In his claim for just satisfaction submitted to the Chamber the applicant sought 15,000 (EUR) in respect of non-pecuniary damage. The Government submitted that any finding of a violation could in itself constitute sufficient redress. In the alternative, they submitted that the amount claimed was speculative and excessive.",
"142. Following the Chamber ’ s relinquishment of jurisdiction to the Grand Chamber, in order to avoid complicated references to the observations previously submitted to the Chamber, the parties were invited to submit fresh observations on the admissibility and the merits of the application by 14 June 2018. Furthermore, the applicant was invited to resubmit his claim for just satisfaction.",
"143. In his observations of 14 June 2018 before the Grand Chamber, the applicant did not make any specific claims for just satisfaction. At the hearing before the Grand Chamber, his representative nevertheless concluded his address by requesting that the applicant “be awarded the sum previously claimed in respect of just satisfaction.”",
"144. Further to those indications, the Government made no comments on the issue of just satisfaction.",
"145. The Court reiterates that that Article 41 empowers it to afford the injured party such satisfaction as appears to be appropriate (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 179, 17 May 2016, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 245, 19 December 2017).",
"146. It observes in this connection that it is beyond doubt that a claim for just satisfaction was duly submitted to the Chamber, within the time allowed, in the course of the procedure following notification of the application (contrast Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017). The Court further notes that although the applicant did not make any fresh claim for just satisfaction within the time allowed in the proceedings before the Grand Chamber, he subsequently referred to his claim before the Chamber. The Government, who had the opportunity to respond to this claim at the hearing, did not object.",
"147. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before it in the present case.",
"148. The Court considers in this regard that a mere finding of a violation is insufficient to compensate the applicant for the sense of injustice and frustration which he must have felt on account of the reopening of the proceedings (see, to similar effect, Jóhannesson and Others, cited above, § 61). Given the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"149. The applicant, who was granted legal aid for the proceedings before the Grand Chamber, had claimed EUR 570 before the Chamber in respect of the costs and expenses incurred before the domestic courts and the Court.",
"150. The Government argued before the Chamber that the costs incurred before the domestic courts had no causal link with the violation of the Convention alleged by the applicant. As regards the costs incurred during the proceedings before the Court, they submitted that they had not been substantiated by relevant documents.",
"151. The Court observes that the applicant was granted legal aid for the costs and expenses incurred in the proceedings before the Grand Chamber. Nonetheless, having regard to the claim submitted to the Chamber, the documents in its possession, its case-law and the fact that the applicant was forced to mount a defence in criminal proceedings which had been instituted and reopened in breach of Article 4 of Protocol No. 7 to the Convention (see Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 244, 4 March 2014), the Court considers it reasonable to award the applicant the sum of EUR 470 to cover costs under all heads.",
"C. Default interest",
"152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
246 | Korneyeva v. Russia | 8 October 2019 | This case concerned the applicant being convicted of two separate offences originating in the similar circumstances of an unauthorised rally. | The Court held that there had been a violation of Article 4 § 1 of Protocol No. 7 in the applicant’s case. It rejected in particular the Russian Government’s argument that the duplication of the proceedings against the applicant had been justified by the distinct areas covered by two different charges. It further found there was an overlap of the facts which were at the basis of each prosecution. Taking account of its own case-law and a ruling of the Plenary of the Supreme Court of Russia in similar circumstances, the Court found that the applicant had been tried and convicted twice for the same offence. Furthermore, under Article 46 (binding force and execution of judgments) of the Convention, noting that it had more than 100 applications dealing with issues that were similar to those in the applicant’s case, the Court found that it remained for Russia, together with the Council of Europe Committee of Ministers, to consider what measures could be appropriate to facilitate the rapid and effective suppression of the malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO (Code of Administrative Offences) cases in a manner compatible with the Court’s approach in this case and ensuring its practical application within the applicable domestic remedies. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1996 and lives in St Petersburg, Russia.",
"6. On 12 June 2017 a protest rally (involving some 1,000 people) was held at the Marsovo Pole in St Petersburg. The applicant was present at the venue with a friend but, according to her, did not take part in the rally (see paragraph 12 below).",
"A. The applicant ’ s arrest and pre-trial proceedings",
"7. According to the applicant, she was deprived of her liberty at 2.10 p.m., when the police and the National Guard surrounded the people gathered at the Marsovo Pole by way of a “ kettling technique”. The applicant was “trapped” within the circle and could not leave.",
"8. The applicant was then apprehended and placed in a bus. At 2.50 p.m. she was escorted to the police station by police officer K., who then compiled an escort record. It indicated that the applicant had been escorted to the police station “ in order to compile an offence record”. The escort record also stated as follows :",
"“[The applicant] was voluntarily present among some 1,000 people, with the aim of publicly expressing her opinion and influencing others in relation to acute political issues of public interest concerning ‘ total intolerance toward corruption ’ ... She was a participant in a public event which had not been approved by the authorities ... Together with other participants standing less than ten metres from her, she uttered the slogans ‘ Putin is a thief ’ or ‘ We are fed up with Putin ’, thereby taking part in a non ‑ notified rally ... Officer S. repeatedly informed the participants, including the applicant, via loudspeaker that [they ] were violating section 6 ( 3 ) of the Public Events Act and ordered them to stop the rally and disperse ... Being afforded no less than five minutes, [the applicant] did not comply with those lawful orders ... ”",
"9. Officer K. also compiled a report ( рапорт ) to his superior officer. This report was worded in a way that was similar to the wording used by Officer K. Nearly identical reports were submitted by Officers A. and S. All three officers were interviewed by another official; the written record of their interviews was worded in terms that were similar or identical to those in the above -mentioned reports.",
"10. A record of offences under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 § 5 (violation by a participant of the procedure for a public event) of the Federal Code of Administrative Offences ( “the CAO ” ) was compiled and the applicant had access to it at 9.55 p.m. Before or after that, a record of administrative arrest was compiled in relation to the offence under Article 19.3 of the CAO, indicating that the arrest had been necessary in order to ensure “the correct and expedient examination of the case ”.",
"11. The applicant spent the night in the police station. It appears that at around 6 p.m. the next day she was taken to the Vasileostrovskiy District Court of St Petersburg. However, a judge adjourned the case. According to a note in the arrest record, the applicant was released at 7.54 p.m. on 13 June 2017.",
"B. Trials on 16 June 2017",
"12. On 16 June 2017 judge K. of the Vasileostrovskiy District Court of St Petersburg examined, in turn, two cases against the applicant. The applicant and her lawyer were present at the trial hearings and made oral submissions to the courts. The applicant pleaded not guilty. According to her, on 12 June 2017 (which was Russia Day, an official holiday) she had been having a walk with a friend at the Marsovo Pole; she had not been in possession of any banners, flags or the like, and had not uttered any slogans; she had seen some people with flags, at a distance from her; she had not heard any order to disperse.",
"13. The trial court dismissed an application lodged by the defence to have a public prosecutor summoned to the hearing in order to support the charge against the applicant.",
"14. By two separate judgments of 16 June 2017 judge K. found the applicant guilty of the offences under Articles 19.3 § 1, and fined her 500 Russian roubles (RUB), and 20.2 § 5 of the CAO and fined her RUB 10,000 (EUR 7 and 140 at the time when the fines were due (29 June 2017)).",
"C. Appeal hearings on 29 June 2017",
"15. The applicant appealed to the St Petersburg City Court. She argued, inter alia, that the alleged disobedience to the order to stop her participation in the rally might be an aggravating circumstance to weigh within the offence under Article 20.2 of the CAO. However, it could not amount to a separate offence, without violating the principle of ne bis in idem. In her appeal relating to Article 20.2 of the CAO, the applicant argued that the overall set of facts held against her in both cases was identical; the offence record for both offences was worded in identical terms, too.",
"16. The applicant also argued that the trial proceedings had been unfair in that her conviction had been based on the pre-trial statements given by the police officers, whereas the defence had been afforded no opportunity to examine them; the trial court had adduced no reasons confirming that the reliance on the written testimony without providing the defence with a possibility of contesting it in open court had been a measure of last resort.",
"17. Both cases were assigned to Judge L. of the City Court. On 29 June 2017 that judge examined the cases in turn. It is, however, unclear in which order the two cases were examined. The appeal court upheld the judgments of 16 June 2017.",
"18. The appeal decision in the case relating to Article 20.2 of the CAO dismissed the ne bis in idem argument, indicating that that Article concerned liability for violating regulations on public events, whereas Article 19.3 of the CAO concerned liability for disobedience to lawful orders from a public official. As to the arguments relating to the refusal to summon the police officers, the appeal court held as follows:",
"“ The trial court took cognisance of the evidence adduced by the defence, namely a photograph and a video recording. Having assessed them, the court rightly concluded that they did not rebut the other evidence and did not plead in favour of the defendant ’ s innocence because they disclosed that the defendant had been present in the group of other people and had been apprehended by the police ...",
"The defence argued that the trial court had relied on the documentary evidence while refusing to summon and examine the police officers ... Those arguments do not disclose a violation of the defendant ’ s right to a fair judgment. It was within the trial judge ’ s competence to determine the scope of evidence that was needed for determining the charge. The trial judge examined all the available evidence; there were no reasons for seeking additional evidence, the available evidence being sufficient for establishing all the relevant circumstances of the case.”",
"19. The appeal decision relating to Article 19.3 of the CAO reads as follows:",
"“There are no grounds to consider that the defendant was tried twice, under Article 20.2 and Article 19.3 of the CAO, for the same actions. Article 20.2 provides for liability in relation to breaching the regulations relating to public events, whereas Article 19.3 of the CAO concerns liability for disobedience to lawful orders from a public official ...",
"As to the arguments relating to the non-compliance with the European Convention on human rights and fundamental freedoms in relation to recourse to the arrest procedure, it is noted that Article 27.1 of the CAO provides for certain measures that could be applied to put an end to an offence, identifying a perpetrator, compiling an offence record, ensuring timely and correct examination of a case, or ensuring execution of a decision taken in that case. Administrative arrest is listed as one such measure ... It follows from the meaning of Article 27.3 § 1 of the CAO that it is possible to use administrative arrest, inter alia, for the purpose of ensuring the correct and expedient examination of a case. Thus, the defendant ’ s administrative arrest was in compliance with the CAO and international law ... ”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Provisions relating to public events",
"20. Section 6(3) of the Public Events Act provides that during the public event its participants must comply with lawful orders of the organisers of the public event, representatives of the competent regional or municipal authorities, and law ‑ enforcement officials; maintain public order and follow the schedule of the public event.",
"21. Section 6(4) of the Act provides that during the public event the participants are not allowed to hide their faces by way of using masks or other means for impeding their identification; to possess firearms or other objects that may be used as weapons; to be intoxicated.",
"B. Provisions relating to double jeopardy",
"22. Pursuant to Article 4.1 § 5 of the CAO, no one must be found administratively liable twice for the “ same administrative offence ”. Under Article 24.5 § 1 proceedings under the CAO should not be initiated or, if initiated, should be discontinued where there is no corpus delicti ( subparagraph 2) or where there is a decision to impose a sentence or to discontinue the proceedings on account of the very same fact of unlawful actions by the same person, in so far as the offence is proscribed by the very same Article ( s ) of the CAO ( subparagraph 7).",
"23. Where there are several records of administrative offences in respect of the same person, each record is submitted to a court to be examined separately. A court issues a separate judgment in respect of each related offence (Article 4.4 § 1 of the CAO and Ruling No. 5 of 24 March 2005 by the Plenary Supreme Court of Russia (paragraph 4(8) ). Where one (in )action on the part of the defendant concerns several offences under different Articles of the CAO and which fall within the jurisdiction of the same court, an administrative sentence is imposed with reference to the strictest statutory penalty. Where there are grounds for imposing a sentence in accordance with the rule set out in Article 4.4 § 2, the cases should be joined and examined in one set of proceedings resulting in a single judgment (paragraph 4(9) of the Ruling).",
"24. Article 19.3 § 1 of the CAO provides that the following conduct is punishable with a fine of from RUB 500 to 1,000 or administrative detention for up to fifteen days : ( i ) non-compliance with a lawful order or request made by a police officer, a military officer, a detention facility officer or a National Guard officer, in connection with the exercise of his or her duties relating to securing public order and public safety; (ii) resistance to those officers in the exercise of their official duties.",
"25. Article 20.2 § 5 of the CAO provides that the following conduct is punishable with a fine of from RUB 10,000 to RUB 20,000 or up to forty hours of community work: violation by a participant in a public event of the established procedure for running ( порядок проведения ) a public event. As specified in paragraph 33 of Ruling No. 28 of 26 June 2018 by the Plenary Supreme Court of Russia, the above -mentioned violation requires the court to establish that the demonstrator did not comply with ( or violated) one of the obligations ( or prohibitions) incumbent on demonstrators under section 6 ( 3 ) and ( 4 ) of the Public Events Act (see paragraphs 20 and 21 above). For instance, one such obligation requires compliance with all legal orders made by the police, military officers or National Guard officers. The Plenary Supreme Court indicated that a demonstrator ’ s non ‑ compliance with such orders or resistance to those officers in the exercise of their official duties in the course of a public event falls within the ambit of an offence under Article 20.2 § 5 of the CAO. “ In this specific context ” this provision is lex specialis vis-à-vis Article 19.3 § 1 of the CAO.",
"26. Applying the above interpretation in a review decision issued under Article 30.12 of the CAO on 29 June 2018 in case no. 78-AD18-5, a judge of the Supreme Court of Russia stated:",
"“[The defendant] was prosecuted on the grounds that as a participant in a non ‑ notified public event, she had not complied with lawful orders of a police officer requiring her to cease her participation in that public event ... In the present case [Article 20.2 § 5 of the CAO] is lex specialis vis-à-vis Article 19.3 § 1 of the CAO ... Thus, the [defendant ’ s] conduct does not constitute corpus delicti under that provision ... At the same time, it is not possible in the present case to reclassify the defendant ’ s actions for the following reasons ... Reclassification from one Article of the CAO to another is possible when the type of object protected by those provisions ( единый родовой объект посягательства ) is the same and where a new sentence would not worsen the position of the defendant ... Articles 19.3 and 20.2 are contained in different Chapters of the CAO. .. and protect different types of objects ... Article 20.2 § 5 provides for a stricter sentence than Article 19.3 § 1 ... Pursuant to Article 4.1 § 5 of the CAO, no one should be found liable more than once for the same administrative offence ... ”",
"C. Administrative arrest",
"27. The Constitutional Court of Russia has ruled that administrative arrest must be effected in compliance with the goals listed in subparagraph (c) of Article 5 § 1, that is it must be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence or if it is reasonably considered necessary to prevent him or her from committing an offence or fleeing after having done so (Ruling No. 9-P of 16 June 2009). For an arrest to be lawful, an assessment must be made of the essential features affecting “lawfulness”, which includes assessment of whether the measure was justified ( обоснованной ) in view of the goals pursued and whether it was necessary and reasonable ( разумной ) in the specific circumstances of the situation in which it was carried out. Administrative arrest is lawful if it can be justified on account of the nature of the offence and is necessary for ensuring the execution of a judgment in an administrative ‑ offence case (Decision No. 1049-O of 2 July 2013 by the Constitutional Court). The assessment of the reasons and grounds listed in the record of administrative arrest ( in so far as it was relevant in the context of a claim for compensation relating to such arrest) includes an assessment of whether arrest was the only possible measure in respect of the defendant (ibid).",
"28. For other relevant provisions of domestic law and judicial practice, see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 66-75, 10 April 2018.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"29. The applicant complained that the administrative escorting and administrative arrest procedures against her had breached Article 5 § 1 of the Convention, the relevant parts of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... ”",
"A. The parties ’ submissions",
"1. The Government",
"30. The Government argued that the applicant had not exhausted domestic remedies by way of instituting “ separate proceedings ”, since the matter of administrative arrest was not inseparably linked to the main court decision in proceedings on the administrative charge. As to the legality of her deprivation of liberty, the Government stated that section 13 of the Police Act of 2011 contained the statutory basis on which the police drew up reports relating to administrative offences under Articles 19.3 and 20.2 of the CAO. Article 27.1 of the CAO was the legal provision empowering the police to take a person to a police station in circumstances where it was necessary in order to put an end to an offence. Article 27.2 of the CAO allowed the police to escort a person to a police station where it was not possible to compile an offence record at the place where the offence had been discovered. The police had had no opportunity to compile a report on the spot because “the place had been full of other participants of the rally”. Moreover, in view of the applicant ’ s active conduct during the rally, the compiling of an offence record on the spot would not have resulted in suppressing the offence. Under Article 27.5 § 3 of the CAO a defendant could be kept for up to forty-eight hours in relation to an offence punishable by detention, such as the offence under Article 19.3 § 1 of the CAO.",
"2. The applicant",
"31. The applicant submitted that the public event had been peaceful and that it participants had behaved in a peaceful manner. She argued that since the police had chosen to place arrestees in buses parked at the rally venue, it had been feasible for them to proceed with the compiling of an offence record on the spot, without waiting until the buses had departed, being full or at the end of the rally. As to the aim of putting an end to an offence, the escort record only referred to the statutory aim of compiling an offence record (see paragraph 8 above). The examination of the case in a correct and expedient manner was indicated as the statutory aim of the applicant ’ s administrative arrest (see paragraph 10 above). However, neither any domestic authority nor the Government before the Court put forward any justification as to why the case had been considered “exceptional” within the meaning of Article 27.3 of the CAO, in order to justify the arrest procedure, in particular after the offence record had been compiled at around 8 p.m. on 12 June 2017. Notably, by that time the rally had been fully dispersed. Overall, the Government ’ s new arguments, first put forward before the Court, could not make up for the lack of reasoning that the domestic authorities should have provided.",
"B. The Court ’ s assessment",
"1. Admissibility",
"32. As to the exhaustion of remedies, the Government have not specified what specific course of action the applicant ought to have taken in 2017 following her conviction and the CAO courts ’ findings relating to the legality of her administrative arrest (see paragraph 19 above) and whether it offered any prospect of success. Thus the Government ’ s argument is dismissed as unsubstantiated.",
"33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"34. The Court notes that recourse to the escort procedure is lawful under Russian law (namely, Article 27.2 § 1 of the CAO) where it was not possible to compile an offence record at the place where the offence had been discovered. None of the documents drawn up at domestic level (for instance, the escort record, the reports by the police officers, the offence record or any judicial decision ) clarify the factual and legal elements which could explain why an offence record could not be drawn up on the spot. The Government ’ s submissions before the Court shed no light on those elements, beyond a reference to the rally venue being “full of other participants” or to the applicant ’ s active conduct during the rally. There is nothing to doubt that the applicant ’ s conduct was peaceful or to contest her submission that the rally was peaceful (compare with Kasparov and Others v. Russia (no. 2), no. 51988/07, § 39, 13 December 2016, and Frumkin v. Russia, no. 74568/12, § 148, 5 January 2016 ). Furthermore, despite the Government ’ s argument before the Court, it is noted that the escort record did not refer to any (arguably, statutory) aim which might have justified under Russian law recourse to the escort procedure for putting an end to any ongoing offence, instead of the primary statutory aim of this procedure, that is for compiling an offence record (see paragraphs 8 and 30 above).",
"35. As to recourse to the arrest procedure after the applicant ’ s arrival at the police station, the Court notes that the aim of compiling an offence record no longer justified, in terms of Russian law, the continued deprivation of liberty once that aim had been achieved. As to the aim of the “timely and correct examination of the case” referred to in the arrest record (see paragraph 10 above), it remains the case that the CAO required the measure to be justified with reference to “exceptional” circumstances. No such circumstances, beyond mere convenience, were adduced at the domestic level or, at the latest, before the Court. Nothing in the file suggests that there was a risk of the applicant reoffending, tampering with evidence, influencing witnesses or fleeing justice, which would plead in favour of her continued detention. Even if those considerations could be considered to constitute an “exceptional case” referred to in Article 27.3 § 1 of the CAO as part of the rationale for avoiding excessive and abusive recourse to the administrative ‑ arrest procedure, there is nothing in the file that could lead the Court to conclude that such considerations had been weighed and justified the applicant ’ s deprivation of liberty after 10 p.m. on 12 June 2017 until her release at around 8 p.m. on 13 June 2017 (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 71-72, 15 November 2018, and Butkevich v. Russia, no. 5865/07, § 123, 13 February 2018; see also S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 77, 22 October 2018 ).",
"36. There has accordingly been a violation of Article 5 § 1 of the Convention, at least, after 2.50 p.m. on 12 June 2017 until the applicant ’ s release around 8 p.m. on 13 June 2017.",
"II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION",
"37. The applicant complained of violations of Article 6 of the Convention in both cases against her, on account of the lack of a prosecuting party at the trial hearings and the restrictions on the defence ’ s ability to contest the adverse written evidence, in particular by way of examining three police officers.",
"38. The relevant parts of Article 6 of the Convention read as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ”",
"39. The Government submitted that the defence had been afforded an opportunity to contest the adverse evidence, as well as to study the case file, lodge applications and put forward a defence.",
"40. The applicant maintained her complaints.",
"A. Admissibility",
"41. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"42. As regards the requirement of objective impartiality, the Court has previously examined this matter and has found a violation of Article 6 § 1 of the Convention on account of the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges (see Karelin v. Russia, no. 926/08, §§ 69-84, 20 September 2016, and Butkevich, §§ 82-84, cited above; see also Mikhaylova v. Ukraine, no. 10644/08, § § 62-67, 6 March 2018). The Court notes that the essential factual and legal elements of the present case and the case of Karelin ( cited above, §§ 59-68) are similar. The factual circumstances or the parties ’ submissions in the present case disclose no reason for the Court to depart from its earlier judgments. There has therefore been a violation of Article 6 § 1 of the Convention on account of the requirement of objective impartiality as regards the trial hearings in two cases against the applicant.",
"43. In view of the above finding in respect of both sets of proceedings and the nature and scope of the findings under Article 4 § 1 of Protocol No. 7 to the Convention below in respect of one set of those proceedings, the Court finds it possible, in the particular context of the present case, to dispense with a separate examination of the merits of the remaining complaints relating to the overall fairness of the proceedings.",
"III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"44. The applicant argued that her conviction for two offences disclosed a violation of Article 4 § 1 of Protocol No. 7 to the Convention, the relevant part of which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ”",
"A. The parties ’ submissions",
"45. The Government argued that the actus reus differed as regards Article 19.3 and Article 20.2 of the CAO: the first one punished disobedience to a lawful order by a public official, the second punished a breach of the established procedure for public events. Moreover, the offences were placed in different chapters of the CAO, the first one under the heading of offences against the rules relating to government, and the second one in relation to preventing disorder and ensuring public safety. In any event, on the facts of the present case the applicant had been charged with different offences: in the first case she had been accused of disobedience to a police order to cease her participation in an unlawful rally, and in the second case she had been charged with participation in that unlawful rally.",
"46. The applicant argued that she had been prosecuted and sentenced twice in relation to the same facts. The wording of the offence record for each case and the adverse reports issued by the police officers and then used in evidence against her had been worded in identical terms. Her position in the present case had been recently confirmed by the Plenary Supreme Court in June 2018 and in at least one follow-up case (see paragraphs 25 and 26 above).",
"B. The Court ’ s assessment",
"1. Admissibility",
"(a) Preliminary considerations",
"47. The applicant was convicted of two offences in two separate sets of proceedings on the same date. On a later date, her appeals were examined consecutively in two separate sets of appeal hearings, as required by the CAO (see paragraphs 17 and 23 above).",
"48. The Court reiterates that the guarantee enshrined in Article 4 § 1 of Protocol No. 7 to the Convention is activated vis-à-vis a new or another prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. Thus, prior to delving into admissibility issues, the Court finds it pertinent to determine the point of such finality, with reference to the applicable Russian law. Judgments “ entered into force” within the meaning of the Russian CAO after expiry of the period for an appeal or following delivery of an appeal decision on the merits of the charge. The applicant appealed and the appellate courts issued decisions on the appeals. Those decisions had the force of res judicata under the CAO, so the issue under Article 4 § 1 of Protocol No. 7 should be determined with reference to them as a starting point in the present case.",
"49. The Court observes that the two sets of proceedings were initiated and then pursued, up to the appeal stage, in parallel. The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person ’ s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, and in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 23, 15 November 2016). However, in the present case, the second set of proceedings continued after the delivery of the appeal decision in the first set of proceedings on 29 June 2017, albeit for a relatively short period (see paragraph 17 above).",
"( b ) Six- month rule",
"50. In so far as it falls within its jurisdiction, the Court will now examine whether the applicant has complied with the six-month rule under Article 35 § 1 of the Convention.",
"51. Article 4 § 1 of Protocol No. 7 to the Convention applies when a final judgment in one of two cases was already obtained (for instance, on account of the delivery of an appeal decision in that case upholding the conviction as a whole or in part, or discontinuing the proceedings), while the proceedings in the second case continue. Thus, a related complaint should be lodged before this Court, at the latest, within six months of the date on which a final judgment has been obtained in the second case or when the applicant first became aware of it.",
"52. In the present case, a final judgment in the first case was obtained on 29 June 2017, immediately prior to the appeal hearing in the second case that resulted in an appeal decision on the same date. The applicant then lodged a complaint before the Court on 21 September 2017. Thus, she has complied with the six-month rule.",
"( c ) Compatibility ratione materiae",
"53. In so far as Article 4 § 1 of Protocol No. 7 to the Convention is concerned, the Court has previously considered, in view of the so-called Engel criteria, that proceedings relating to charges under the CAO, namely those under its Articles 20.2 or 19.3, were “criminal charges” within the meaning of Article 6 § 1 of the Convention (see Navalnyy, cited above, §§ 77-80, with the references cited therein). “Criminal proceedings” for the purposes of Article 4 § 1 of Protocol No. 7 to the Convention are interpreted in the same way (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 107 and 136, 15 November 2016). The Court finds that both sets of proceedings against the applicant were “criminal proceedings” within the meaning of that provision.",
"( d ) Other admissibility criteria and conclusion",
"54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) General principles and the applicable approach",
"55. Article 4 of Protocol No. 7 is understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 ( extracts )).",
"56. States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as non-compliance with road ‑ traffic regulations or non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned (see A and B v. Norway, cited above, § 121). In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice ( ibid., § 12 2 ). The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person ’ s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes ( ibid., § 123).",
"57. Article 4 of Protocol No. 7 does not exclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected ( ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include:",
"- whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved;",
"- whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem );",
"- whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set is also used in the other set;",
"- and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 130-31).",
"(b) Application of the principles in the present case",
"58. Firstly, it has not been argued, and the Court does not find it established, that two sets of proceedings under Articles 20.2 § 5 and 19.3 § 1 of the CAO should be regarded as forming an integrated legal response to the applicant ’ s conduct and, even less, that the conditions mentioned in paragraph 57 have been met. Indeed, the above conclusion is confirmed by the Plenary Supreme Court ’ s approach in which it held that one set of proceedings was a lex specialis vis-à-vis the other one (see paragraph 25 above). Thus, the Court finds it necessary to go further into the issue of the finality of the first set of proceedings and the duplication of prosecution (see by contrast, A and B v. Norway, cited above, § 142).",
"59. The Court notes in this connection that under the Russian CAO, no one must be found administratively liable twice for the same administrative offence. Proceedings under the CAO should not be initiated or, if initiated, should be discontinued where there is no corpus delicti or where a decision is made to impose a sentence or to discontinue the proceedings on account of the same unlawful acts by the same person, in so far as the offence is proscribed by the same Article(s) of the CAO (see paragraph 22 above). The present case concerns prosecution under two different Articles of the CAO.",
"60. The Court has taken note of the position adopted in June 2018 by the Plenary Supreme Court of Russia in relation to dual charges brought under Articles 20.2 § 5 and 19.3 § 1 of the CAO against a demonstrator on account of participation in a public event and non-compliance with a police order to cease such participation (and disperse). Relying on the lex specialis rule, the Supreme Court stated that in this specific context, only prosecution under Article 20.2 § 5 would be lawful under Russian law (see paragraph 25 above). The Plenary Supreme Court did not rely on the ne bis in idem principle in that connection. However, in at least one subsequent decision, a reviewing court relied on the above ruling and also mentioned, albeit without any further detail, the CAO provision relating to the ban on the duplication of prosecution under the CAO (see paragraph 26 above for an example of a case in which conviction was quashed by way of the review procedure under Article 30.12 of the CAO ).",
"61. The Court has taken note of those recent developments in the domestic case-law. It notes, however, that the above legal position was first articulated in June 2018, that is after the appeal decisions in the applicant ’ s cases in June 2017 and after her lodging an application before this Court in September 2017.",
"62. As to the merits of the issue, the Court reiterates that Article 4 § 1 of Protocol No. 7 prohibits the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see A and B v. Norway, cited above, § 108, and Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009 ). The Court has also held that an approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual and risks undermining the guarantee enshrined in Article 4 § 1 of Protocol No. 7 (see Sergey Zolotukhin, cited above, § 81, and Boman v. Finland, no. 41604/11, § 33, 17 February 2015). Accordingly, it cannot accept the Government ’ s argument (see paragraph 45 above) that the duplication of proceedings in the present case was justified by the distinct types or areas of protection pertaining to each offence (see, mutatis mutandis, Šimkus v. Lithuania, no. 41788/11, § 48, 13 June 2017, and Rivard v. Switzerland, no. 21563/12, § 26, 4 October 2016). What matters is that there is an overlap of the facts constituting the basis for the defendant ’ s prosecution in the second set of proceedings with facts that are substantially the same in the first set of proceedings. The Court notes that in each set of proceedings the applicant was accused in relation to participating in an unlawful rally, namely, of ( i ) refusing to comply with a police officer ’ s order to cease her participation in it (Article 19.3 § 1 of the CAO ) and (ii) failing to comply with her statutory obligation under the Public Events Act to comply with police orders, in the present case, the order to cease her participation in the event (Article 20.2 § 5 of the CAO read with section 6(3) of the Public Events Act). As acknowledged in substance by the Plenary Supreme Court, such accusations are intertwined and entailing a conclusion, in terms of Russian law, that only a charge under Article 20.2 § 5 of the CAO was permissible (see paragraph 25 above).",
"63. Having regard to its own case-law under Article 4 § 1 of Protocol No. 7 to the Convention, the Court concludes that the applicant became “liable to be tried or punished again” once a final judgment in one of the two cases had been obtained, in this instance, once the appeal decision in that case had been delivered in relation to the facts that were substantially the same to those at the heart of the first proceedings.",
"64. The Court concludes that the applicant was tried and punished twice for the same “ offence ”.",
"65. There has therefore been a violation of Article 4 § 1 of Protocol No. 7 to the Convention.",
"IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION",
"A. Article 46 of the Convention",
"66. Article 46 of the Convention reads as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”",
"67. Under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if necessary, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, as a recent authority, Navalnyy, cited above, § 182 ).",
"68. As to Article 4 § 1 of Protocol No. 7 to the Convention, the Court notes that there are over one hundred applications pending before it which raise similar issues, mostly, in an identical legal context or in relation to other paragraphs of Articles 19.3 and 20.2 of the CAO or other Articles of the CAO.",
"69. In the present case the Court has found violations of, inter alia, Article 4 § 1 of Protocol No. 7 to the Convention on account of the duplication of prosecution in two sets of proceedings, under Article 20.2 § 5 and Article 19.3 § 1 of the CAO. The Court notes in this connection that unlike the other procedural codes of the Russian Federation, the CAO contains no specific provision setting out grounds and a procedure for re ‑ examining the relevant court decisions (reopening the relevant proceedings) on account of this Court ’ s finding of a violation of the Convention or the Protocols thereto (see also Bukreyev v. Russia [Committee], no. 60646/13, §§ 38-39, 1 October 2019 ). There is nothing before the Court to confirm, to the requisite degree of certainty, that the procedure under Article 30.12 of the CAO, normally applicable for review of final court decisions issued under that Code, may serve that purpose for such “reopening” or “retrial” within the meaning of Article 46 of the Convention, if the applicant requests it. The Court is therefore not satisfied in the present case that there are clear grounds and procedures, as well as a consistent and established practice of applying them, for any such “reopening” or “retrial” under the CAO.",
"70. Nevertheless, it appears that the Plenary Supreme Court ’ s approach in June 2018 about the prosecution to be limited to Article 20.2 § 5 of the CAO is applicable to cases finally decided prior to June 2018 (see paragraph 26 above). It is noted that in the present case, for instance, no review under Article 30.12 of the CAO has been carried out at a regional level and then before the Supreme Court of Russia (if need be), with reference to the Plenary Supreme Court ’ s approach, so that one of the convictions would be set aside and any persisting consequences of the related prosecution and punishment would be eliminated too (for instance, by way of reimbursement of the fine already paid and/or by way of another adequate redress, in particular as regard other types of penalties already served) (see, mutatis mutandis, Sergey Zolotukhin, cited above, § 83; see also paragraph 26 above).",
"71. This being said, as regards cases finally decided domestically prior to June 2018 like the present case, it remains open to the respondent Government to make appropriate use of the available legal avenues which might yield the result mentioned above, namely where it was a conviction under Article 19.3 § 1 of the CAO that gave rise to the ne bis in idem issue.",
"72. More generally, it remains for the respondent Government, together with the Council of Europe Committee of Ministers, to consider what measures may be appropriate to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO cases in a manner compatible with the Court ’ s approach in paragraphs 59, 62 and 63 above and ensuring its practical application within the applicable domestic remedies.",
"B. Article 41 of the Convention",
"73. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"74. The applicant claimed 10,000 euros (EUR) and 1 0, 5 00 roubles (RUB) in respect of non-pecuniary damage and pecuniary damage (on account of the two fines she had paid ) respectively.",
"75. The Government made no specific comment.",
"76. The Court has discerned no causal link between the fines and the only violation under Article 6 of the Convention as established by the Court in the present case (compare Mikhaylova v. Russia, no. 46998/08, § 106, 1 9 November 2015, and Morice v. France [GC], no. 29369/10, § 182, ECHR 2015). As to Article 4 § 1 of Protocol No. 7, since it remains unclear in which order the two sets of appeal proceedings were conducted on 29 June 2017, no causal link has been substantiated in the specific context of the present case between the violation of that Article and any of the fines.",
"77. The Court reiterates that its primary role in respect of applications lodged under Article 34 of the Convention is to render justice in individual cases by way of recognising violations of an injured party ’ s rights and freedoms under the Convention and Protocols thereto and, if necessary, by way of affording just satisfaction (see Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017). A judgment in which the Court finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (ibid. , § 65).",
"78. The Court considers that the finding of a violation is not sufficient to constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered in relation to Articles 5 § 1 and 6 § 1 of the Convention and Article 4 of Protocol No. 7. Having regard to the nature and scope of the violations found and making its assessment on an equitable basis, the Court awards the applicant EUR 3, 2 5 0 in respect of non-pecuniary damage, plus any tax that may be chargeable.",
"2. Costs and expenses",
"79. The applicant claimed EUR 3,750 for the costs and expenses incurred before the domestic authorities and the Court.",
"80. The Government have made no specific comment.",
"81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria (in particular, the straightforward nature of certain issues raised under the Convention ) and in so far as the expenses are related to the violations found by the Court, the Court considers it reasonable to award EUR 2, 5 0 0 covering costs under all heads, to be paid directly to Mr A. D. Peredruk as requested.",
"3. Default interest",
"82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
247 | Bajčić v. Croatia | 8 October 2020 | This case concerned the applicant’s complaint that he had been tried and punished twice for the same driving offence. In particular, he had first been convicted in minor offence proceedings for speeding and later on in criminal proceedings for causing a fatal road accident. He was fined in the first set of proceedings and given a prison sentence in the second. | The Court held that there had been no violation of Article 4 § 1 of Protocol No. 7 in respect of the applicant. It noted in particular that the aims of punishment, whereby different aspects of the same conduct were addressed, ought to be considered as a whole. In the applicant’s case such aims had been realised through two complementary sets of proceedings, which were sufficiently connected in substance and in time to be considered to form part of an integral scheme of sanctions under Croatian law for his failure to comply with road-traffic safety regulations which had, as a result, caused a fatal road accident. The Court therefore found no abuse of the State’s right to impose a punishment in the applicant’s case. Nor could it conclude that the applicant had suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties. | Right not to be tried or punished twice (the non bis in idem | The definition of idem | [
"2. The applicant was born in 1966. He was represented before the Court by Mr G. Marjanović, a lawyer practising in Rijeka.",
"3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.",
"4. At around 11.20 a.m. on 13 October 2004 the applicant, who was driving over the speed limit, caused a road accident in Rijeka in which a person died.",
"5. On 25 November 2004 the Rijeka police requested that minor-offence proceedings be brought against the applicant in the Rijeka Minor Offences Court ( Prekršajni sud u Rijeci ). On 31 July 2006 the court issued a penalty notice ( prekršajni nalog ) finding the applicant guilty. In so far as relevant, the court stated as follows.",
"“[O]n 13 October 2004 at 11.20 a.m. [the applicant] was driving a vehicle ... in the settlement of Draga Brig from the direction of Sv. Kuzan towards Rijeka.",
"[The applicant] reached house no. 73/9 on a section of the road with no pavement, where the road is narrow and visibility reduced owing to the high walls and hedges of the courtyards of the houses alongside and speed is limited to 40 kph by a road sign. The length of the skid marks, which measured 29 metres, helped establish that the speed [reached] had been at least 80 kph. This amounted to exceeding the speed limit by 40 kph at the moment when he spotted a pedestrian, S.M., stepping out onto the road from the courtyard of house no. 73/9. [The applicant] lost control of the vehicle and with its front right side hit the pedestrian and continued to move uncontrollably. After a further 12.5 metres the front right side of the vehicle hit a stone wall by the right edge of the road, after which [the applicant] left the scene of the accident without stopping, or coming to the aid of the victim, or informing the police of the accident or waiting for the arrival of the police. A later inspection of the vehicle showed that it was technically defective in that the tread on the front tyres was worn to below the .TWI [tread wear indicator] recommended by the manufacturer. Thus:",
"1. by driving [a vehicle] in a settlement while exceeding the speed limit by 40 kph, which is contrary to section 53(1) of the Road Traffic Safety Act,",
"[the applicant] committed a minor offence punishable under section 53(5) of the same Act;",
"2. by driving a vehicle [some of] whose equipment was faulty and as a driver in [road] traffic who was acting contrary to section 239(1) of the Road Traffic Safety Act,",
"[the applicant] committed a minor offence punishable under section 239(9) of the same Act;",
"3. by acting contrary to section 176(1)(3) of the Road Traffic Safety Act because he did not stay at the scene of the accident or inform the nearest police station or wait for the arrival of a person authorised to carry out an on-site inspection,",
"[the applicant] committed a minor offence punishable under section 176(3) of the above-mentioned Act.”",
"The applicant was fined 700 Croatian kunas (HRK – approximately 95 euros (EUR)) for exceeding the speed limit, HRK 400 (approximately EUR 55) for driving a defective car and HRK 3,000 (approximately EUR 400) for leaving the scene without informing the police. A six-month driving ban was imposed on him and he had five points added to his driving licence.",
"6. No appeal having been lodged against the Rijeka Minor Offences Court’s penalty notice, that decision became final on 31 July 2006.",
"7. In the meantime, having questioned the applicant and several other witnesses, on 9 June 2005 the Rijeka State Attorney’s Office indicted the applicant on charges under Article 272 of the Criminal Code of causing a fatal road accident on 13 October 2004. The relevant part of the bill of indictment ( optužnica ) reads as follows:",
"“[O]n 13 October 2004 at 11.20 a.m. in the settlement of Draga Brig at house no. 73/9 [the applicant] drove a vehicle ... from the direction of Sveti Kuzma towards Rijeka, ... agreeing to jeopardise the safety of other road users, contrary to section 53(1) of the Road Traffic Safety Act, at a speed of at least 72 kph despite the speed limit being set at 40 kph... lost control of the vehicle and with its front right side hit a pedestrian... S.M., causing her injuries... [and ultimately] death;",
"so that, by violating the regulations on road-traffic safety, he jeopardised traffic causing a car accident in which one person died,",
"by which he committed a criminal offence against the general safety of persons and property and road-traffic safety by causing a road accident under Article 272 §§ 1 and 3 of the Criminal Code...”",
"8. On 21 March 2011 the Rijeka Municipal Court ( Općinski sud u Rijeci ) found the applicant guilty as charged and sentenced him to one year and six months’ imprisonment. The relevant part of the court judgment reads as follows.",
"“[O]n 13 October 2004 at about 11.20 a.m. in the settlement of Draga Brig at house no. 73/9 [the applicant] drove a vehicle ... from the direction of Sveti Kuzma towards Rijeka, at a speed of 69.6 kph, contrary to section 53(1) of the Road Traffic Safety Act, despite the speed limit being set at 40 kph as indicated by a road sign, recklessly thinking that such driving would not put at risk the safety of other road users. It was because of this that, on reaching house no. 73/9 on a section of the road without a pavement, and while braking, he lost control of the vehicle and with its front right side hit a pedestrian, S.M., who had stepped out onto the road from a courtyard ... Owing to this S.M. sustained numerous bodily injuries ... which were classified as particularly serious and resulted in [S.M.’s] death. Thus his reckless conduct, which violated the regulations on road-traffic safety, put [road users] at such a risk that he caused a road accident in which a person died, by which he committed a criminal offence against the general safety of persons and property and road-traffic safety by causing a road accident under Article 272 §§ 1, 2 and 4 of the Criminal Code....",
"Furthermore, [the court] inspected documents in the case file... It also inspected the case file of the Rijeka Minor Offences Court in case no. P-678/05...”",
"9. On 5 September 2012 the Rijeka County Court ( Županijski sud u Rijeci ) upheld the judgment at first instance. In reply to the applicant’s ne bis in idem complaint, the second-instance court held as follows:",
"“[The applicant] challenges the judgment at first instance, claiming that ... the case at hand has been previously adjudicated, since the penalty imposed for the criminal act stems from a judgment of the Minor Offences Court ... However, the breach of traffic regulations in question, which resulted in causing danger in traffic and ultimately a person’s death, is not classified as a minor offence, so [the applicant] could not have been charged in substance with the same facts. The case concerns a different subject of protection from an offence and a different degree of seriousness of a violation, so the [applicant’s] argument that the matter has already been adjudicated cannot be accepted ...”",
"10. On 29 January 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ) rejected the applicant’s request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomocne presude ). In so far as relevant, the Supreme Court held as follows:",
"“[S]ince the matter concerns a different subject of protection from an offence and a different degree of seriousness of the violation, it should be emphasised that the case in question does not concern a matter which has already been adjudicated ...”",
"11. On 29 May 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a constitutional complaint brought by the applicant inadmissible as manifestly ill-founded. The Constitutional Court’s decision was served on the applicant’s representative on 13 June 2013."
] | [
"RELEVANT LEGAL FRAMEWORK",
"Relevant domestic lawRoad Traffic Safety Act",
"Road Traffic Safety Act",
"Road Traffic Safety Act",
"12. The relevant parts of the Road Traffic Safety Act ( Zakon o sigurnosti prometa na cestama, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) provide as follows.",
"Section 53(1) provides that on roads in populated areas, the speed limit is 50 kph or whichever limit is displayed on a road sign. Section 53(2) provides that the penalty for driving between 30 and 50 kph above the speed limit is a fine of HRK 700 and an endorsement with two points on the person’s driving licence.",
"Section 176(1) and (3) requires that anyone involved in a road accident in which a person has been injured must stay at the scene of the accident, come to the aid of victims, do everything in his or her power to remove any other hazards so as to allow traffic to keep moving, preserve evidence, inform the nearest police station of the accident and wait for the arrival of a person authorised to carry out an on-site inspection. Failure to comply carries a fine of at least HRK 3,000.",
"Section 239(1) and (8) requires that vehicles in road traffic satisfy certain conditions as regards their dimensions, maximum weight, axle load and environmental considerations and that they are fitted with appropriate devices and equipment. Failure to comply carries a fine of HRK 400.",
"Criminal Code",
"13. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997 with subsequent amendments), as in force at the material time, read as follows:",
"Article 63",
"“2. A prison sentence, a fine or a fine imposed in minor-offence proceedings shall count towards the penalty for a criminal offence if the description of that criminal offence corresponds to the minor offence for which the penalty has been imposed.”",
"Article 272",
"“1. Any person who, by violating road-traffic safety regulations, endangers traffic such that he causes an accident in which another person suffers serious bodily injury or extensive pecuniary damage shall be liable to a term of imprisonment of six months to five years.",
"2. If the criminal offence referred to in paragraph 1 of this Article has been committed recklessly, the perpetrator shall be punished by a fine or a term of imprisonment of up to three years. ...",
"4. If the criminal offence referred to in paragraph 2 of this Article results in the death of one or more persons, the perpetrator shall be punished by a term of imprisonment of six months to five years.”",
"European Union case-law",
"14. In its judgments in case C-525/15 Luca Menci, adopted on 20 March 2018, the Court of Justice of the European Union (CJEU) examined whether there had been a violation of the ne bis in idem principle in a case where both criminal and administrative sanctions had been imposed for failure to pay VAT. The CJEU concluded that such duplication of proceedings and penalties constituted a limitation of the ne bis in idem principle requiring justification. In particular, national legislation authorising a duplication of proceedings and penalties of a criminal nature had to pursue an objective of general interest, such as to justify a duplication of proceedings and penalties, it being necessary for those proceedings and penalties to pursue additional objectives; establish clear and precise rules allowing individuals to predict which acts or omissions were liable to be subject to such duplication of proceedings and penalties; ensure that the proceedings were coordinated in order to limit to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings; and limit the severity of all of the penalties imposed to what is strictly necessary in relation to the seriousness of the offence concerned.",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION",
"15. The applicant complained that he had been tried and punished twice for the same offence. He relied on Article 4 § 1 of Protocol No. 7 to the Convention, which reads as follows:",
"“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”",
"Admissibility",
"16. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"17. The applicant argued that in both the minor-offence proceedings and the proceedings on indictment, he had been tried and punished in respect of the same event of 13 October 2004.",
"18. The applicant pointed out that, since the Rijeka Minor Offences Court had expressly found him guilty of, inter alia, hitting a pedestrian while driving, his conviction for a minor offence encompassed the consequences of his failure to comply with traffic regulations. This showed that both sets of proceedings had been conducted with the same purpose, namely ensuring road-traffic safety, including for road users and pedestrians alike. Moreover, when the authorities competent for bringing charges had included the consequences of the applicant’s behaviour in the factual description of the minor offence with which he had been charged, it could not have been foreseen that the applicant would be subject to both sets of proceedings.",
"19. Furthermore, the taking of evidence had indicated that the same decisive facts – such as whether the applicant had violated road-traffic regulations and whether the speeding had caused the pedestrian’s fatal injuries – had been established in both proceedings. In the applicant’s view, the criminal court had failed to take into consideration the penalty that had been imposed on him in the minor-offence proceedings.",
"20. Finally, the applicant pointed out that the temporal connection between the two sets of proceedings had not been sufficiently strong, as there had been an excessive delay in the conduct of the criminal proceedings.",
"21. The Government argued that the minor offence for which the applicant had been punished referred to speeding, operating a defective vehicle and not going to the aid of the victim of a road accident; however, the offence for which he had been punished in the proceedings on indictment referred to reckless driving which had resulted in a road accident and another person’s death.",
"22. The Government further submitted that the minor-offence and criminal proceedings in the present case had been sufficiently closely connected in substance and in time to form a coherent whole. Firstly, as emphasised by both the Rijeka County Court and the Supreme Court, the purpose of the two sets of proceedings had differed: the nature of the former was to act as a general deterrent with the principal aim of ensuring that traffic rules were obeyed by everyone bearing in mind the potential danger, whereas the latter proceedings had been conducted owing to the serious consequences of the applicant’s failure to comply with the traffic rules.",
"23. Moreover, the Government submitted that in cases of traffic accidents resulting in a fatality, neither the domestic law nor the relevant case-law left any room for doubt that the perpetrator might, and as a general rule would, be subject to both minor-offence and criminal proceedings. The foreseeability requirement had therefore been fulfilled. The Government further pointed out that the collection and assessment of evidence had not been duplicated to the extent possible, considering the inherent differences between the two sets of proceedings. For instance, the record of the on-site inspection and the applicant’s blood analysis had first been used in the minor-offence proceedings and then in the criminal proceedings. The criminal court had also inspected the minor-offence proceedings case file. Finally, in the minor-offence proceedings the applicant had only been fined, whereas in the criminal proceedings he had been sentenced to imprisonment.",
"24. As regards the connection in time, the Government pointed out that the criminal proceedings had been instituted less than six months after the minor-offence proceedings and had been conducted concurrently until 31 July 2006. The period that had elapsed thereafter was a necessary and natural consequence of the greater complexity of criminal proceedings.",
"The Court’s assessment",
"(a) General principles",
"25. Article 4 of Protocol No. 7 to the Convention is understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009; Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 108, 15 November 2016).",
"26. In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice (see A and B v. Norway, cited above, § 122). The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person’s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (ibid., § 123).",
"(b) Application of the principles in the present case",
"(i) Whether both sets of proceedings were criminal in nature",
"27. In comparable cases against Croatia involving minor offences, the Court has held, on the basis of the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), that minor-offence proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Maresti v. Croatia, no. 55759/07, § 61, 25 June 2009; Tomasović v. Croatia, no. 53785/09, § 25, 18 October 2011; and, in the context of an Article 6 complaint, Marčan v. Croatia, no. 40820/12, § 33, 10 July 2014).",
"28. Noting that the parties did not dispute this, the Court sees no reason to depart from the conclusion reached in those previous cases and holds that both sets of proceedings in the present case concerned a “criminal” matter within the autonomous meaning of Article 4 of Protocol No. 7.",
"(ii) Whether the offences were the same in nature ( idem )",
"29. The notion of the “same offence” – the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 – was clarified in Sergey Zolotukhin (cited above, §§ 78-84). Following the approach adopted in that judgment, it is clear that the determination as to whether the offences in question were the same ( idem ) depends on a facts-based assessment (ibid., § 84), rather than, for example, a formal assessment consisting in comparing the “essential elements” of the offences. The prohibition in Article 4 of Protocol No. 7 to the Convention concerns the prosecution or trial of a second “offence” in so far as the latter arises from identical facts or facts which are substantially the same (ibid., § 82). In the Court’s view, statements of fact concerning both the offence for which the applicant has already been tried and the offence of which he or she stands accused are an appropriate starting-point for its determination of the issue whether the facts in both proceedings were identical or substantially the same (see, in this connection, Sergey Zolotukhin, cited above, § 83). The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84).",
"30. In the present case, there is no doubt that both the minor-offence proceedings and the criminal proceedings on indictment concerned a road accident in Draga Brig which took place at about 11.20 a.m. on 13 October 2004 (see paragraphs 5 and 8 above).",
"31. In the minor-offence proceedings the applicant was punished for various offences under the Road Traffic Safety Act, namely speeding contrary to section 53(1), driving a defective vehicle contrary to section 239(1) and failing to fulfil the duties of road users in the event of an accident contrary to section 176(1) and (3), such as staying at the scene, providing aid to victims, removing any hazards, preserving evidence and informing the nearest police station (see paragraph 12 above). In the proceedings on indictment, the applicant was punished under Article 272 §§ 1, 2 and 4 of the Criminal Code, which refers to recklessly causing a road accident by violating the regulations on road-traffic safety, as a result of which a person sustains serious bodily injury or dies (see paragraph 13 above).",
"32. The Court notes that, of the three minor offences in question, only speeding (see paragraph 7 above) was alleged and subsequently found to have been causally linked to the road accident which resulted in a person’s death, which was precisely the offence for which the applicant was prosecuted and punished in the criminal proceedings (see paragraph 8 above). Thus, the Court considers that the minor-offence proceedings related to a number of facts – in particular driving a vehicle with worn out tyres and not providing assistance to a victim of a road accident, not informing the police and not waiting for the arrival of a person authorised to carry out an on-site inspection – which were not covered by the subsequent criminal charges (compare Hauser-Sporn v. Austria, no. 37301/03, § 43, 7 December 2006).",
"33. Moreover, the facts for which the applicant had been convicted under section 176(1) and (3) of the Road Traffic Safety Act could not have formed part of the offence of recklessly causing a traffic accident under Article 272 of the Criminal Code, since they covered the applicant’s conduct after the accident had taken place. It cannot therefore be said that the facts for which the applicant was punished in the minor-offence proceedings under sections 239(1) and 176(1) and (3) of the Road Traffic Safety Act can be regarded as substantially the same as the facts for which he was subsequently punished in criminal proceedings (see, mutatis mutandis, Ramda v. France, no. 78477/11, §§ 87-94, 19 December 2017). No issue under Article 4 of Protocol No. 7 thus arises in this regard.",
"34. Accordingly, the Court will not examine further the applicant’s complaint relating to sections 239(1) and 176(1) and (3) of the Road Traffic Safety Act as no issue under Article 4 of Protocol No. 7 to the Convention arises in that respect.",
"35. On the other hand, the Court notes that speeding was central to the applicant’s conviction under section 53(1) of the Road Traffic Safety Act in the minor-offence proceedings and formed an important part of his criminal charge and conviction in criminal proceedings (see paragraphs 5 and 8 above). Consequently, in the present case the Court considers that, in relation to speeding, the idem element of the ne bis in idem principle is present (compare Gradinger v. Austria, 23 October 1995, § 55, Series A no. 328-C).",
"36. The Court would further note that in the present case the overlap between the facts which were the subject of both the minor-offence proceedings and the criminal proceedings on indictment was only partial. Indeed, the conviction for the minor offence of speeding did not to any extent include the causing of a road accident which resulted in another person’s death. In fact, section 53(1) of the Road Traffic Safety Act is a lesser offence which is absorbed by the greater offence of causing a traffic accident as provided for in Article 272 of the Criminal Code, covering all the facts included in the lesser offence as well as some additional facts.",
"37. The Court reiterates at this juncture that the Convention does not prohibit the separation of the sentencing process in a given case into different stages or parts, such that different penalties may be imposed, successively or in parallel, for an offence that is to be characterised as “criminal” within the autonomous meaning of that notion under the Convention. States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as non-compliance with road-traffic regulations or non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned (see A and B v. Norway, cited above, §§ 120 and 121). In fact there might be good reasons for trying traffic offences before minor-offence courts or special traffic courts under a simplified procedure, effectiveness being one of them.",
"38. In the present case the applicant contended that his prior conviction for a logically lesser offence barred his subsequent prosecution for a greater offence (see paragraph 36 above). However, the Court notes that if the criminal court were not to be permitted to convict the applicant of a greater offence, which encompassed facts for which he had not, and could not have, been convicted in minor-offence proceedings, the applicant would not be punished for the entirety of his conduct, taking into consideration all the facts and the overall level of his guilt. At the same time, even when the overlap in facts was only partial, the bifurcation of proceedings carried a risk of “double counting” of punishment and vexatious re-prosecution, both of which are contrary to the principle of ne bis in idem. Thus, even in such cases the Court must be satisfied that there has been, even if only partially, no duplication of trial or punishment ( bis ), as proscribed by Article 4 of Protocol No. 7 to the Convention.",
"(iii) Whether there was a duplication of proceedings ( bis )",
"39. As the Grand Chamber explained in A and B v. Norway (cited above, § 130), Article 4 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected (ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include:",
"– whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved;",
"– whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem );",
"– whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any additional disadvantages resulting from duplication of proceedings and in particular duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to ensure that the establishment of the facts in one set of proceedings is replicated in the other;",
"– and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 131-32).",
"Combined proceedings will more likely meet the criteria of complementarity and coherence if the sanctions to be imposed in the proceedings not formally classified as “criminal” are specific for the conduct in question and thus differ from “the hard core of criminal law (ibid., § 133).",
"40. In the present case, in 2006 the applicant was fined in the minor-offence proceedings for speeding. Before those proceedings were finalised, in 2005 the applicant was indicted under Article 272 of the Criminal Code for causing a road accident in which another person had died as a consequence of reckless driving. He was ultimately sentenced in those proceedings to a prison sentence in 2011.",
"41. Assessing the connection in substance between the minor-offence and criminal proceedings in the present case – as well as the different sanctions imposed on the applicant – the Court notes that the purpose of the minor-offence proceedings was to address the applicant’s failure to comply with road-traffic regulations, notably speeding, in order to ensure the smooth flow of traffic and prevent conduct endangering public safety (see paragraph 5 above). As the Government explained, this minor offence is aimed at discouraging all drivers from disregarding speed limits, irrespective of whether or not their conduct causes a road-traffic accident. The subsequent criminal proceedings against the applicant, on the other hand, were conducted precisely with the aim of addressing the consequence of his failure to comply with the speed limit, that is, to penalise his conduct which caused the death of a pedestrian (compare and contrast Gradinger, cited above, § 54). The Court therefore accepts that the two sets of proceedings pursued complementary purposes in addressing different aspects of the failure to respect road-traffic safety regulations, criminal proceedings being limited to offences which are particularly serious, such as reckless driving resulting in serious bodily injury or death (see paragraph 13 above).",
"42. The applicant asserted that the minor offences court had also punished him for the death of the pedestrian. While it is true that the Rijeka Minor Offences Court included the death of the pedestrian in the description of the facts of the case, it is clear from the text of its decision that the actual minor offences of which the applicant was found guilty related only to speeding (see paragraph 5 above). Under Croatian law, causing a death in a road-traffic accident cannot be prosecuted in minor-offence proceedings; instead, it is dealt with as a criminal offence that is subject to public prosecution by the State Attorney in criminal proceedings. Moreover, at the material time, dual-track punitive proceedings combining minor-offence proceedings and criminal proceedings formed part of the actions commonly taken to impose sanctions in accordance with clear and precise rules for failure to comply with road-traffic safety regulations and for reckless driving causing a fatal road-traffic accident (see paragraphs 12, 13 and 23 above). Therefore, the Court cannot accept the applicant’s contention that the dual proceedings and penalty had been an unforeseeable consequence of his conduct.",
"43. As to the manner of conducting the proceedings, the Court notes that the criminal court not only used certain evidence adduced before the Rijeka Minor Offences Court, but also inspected the case file from the minor-offence proceedings in its entirety (see paragraph 8 above). It can therefore be concluded that the interaction between the two courts was adequate and that the two sets of proceedings formed a coherent whole (see, a contrario, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, §§ 65-74, 30 April 2015, where the applicants had first been acquitted in criminal proceedings, and later on imposed with severe administrative fines for the same conduct). Consequently, the applicant has not suffered a disadvantage associated with the duplication of proceedings, beyond what was strictly necessary.",
"44. The Court further notes that, while the Rijeka Minor Offences Court issued the applicant with a fine in the amount of EUR 95 for speeding (see paragraph 5 above), the criminal court imposed a custodial sentence on him for reckless driving causing a fatal road-traffic accident. Although the criminal court did not expressly refer to the fine previously imposed by the Rijeka Minor Offences Court, the Court observes that it sentenced the applicant to one and a half years’ imprisonment, whereas at the material time the Criminal Code prescribed a maximum sentence for such an offence of up to five years’ imprisonment (see paragraph 31 above). In the Court’s view, when taken together the penalties imposed did not exceed what was strictly necessary in relation to the seriousness of the offences concerned. It cannot therefore be said that the applicant was made to bear an excessive burden (see the relevant criteria set out in A and B v. Norway, cited at paragraph 39 above). Rather, only once punishment for speeding had been complemented by the punishment for causing a fatal road-traffic accident did the applicant in the present case receive an effective, proportionate and dissuasive punishment for his conduct. In any event, the sole fact that the criminal court did not refer expressis verbis to the sanction imposed in the minor-offence proceedings might not of itself be sufficient to conclude that the proceedings were not interconnected in substance.",
"45. Finally, turning to the connection in time between the two proceedings, the Court notes that the minor-offence proceedings were instituted by the Rijeka police on 25 November 2004 (see paragraph 5 above), whereas the criminal indictment was filed by the Rijeka State Attorney’s Office some seven months later, on 9 June 2005 (see paragraph 7 above). Although the Court does not have in its possession the exact date of the commencement of the criminal investigation in respect of the applicant, it is clear from the bill of indictment that the applicant and a number of other witnesses had already been questioned prior to the lodging of the indictment. In other words, the two sets of proceedings must have been initiated at practically the same time (contrast Jóhannesson and Others v. Iceland, no. 22007/11, § 54, 18 May 2017, where the applicants had been indicted only 15 and 16 months after the decision of the tax authorities had been taken in their cases). The two sets of proceedings were then conducted in parallel for almost another fourteen months, when the Rijeka Minor Offences Court’s penalty notice became final, without an appeal having been lodged against it. The criminal proceedings against the applicant thereafter lasted another six years and ten months at four levels of jurisdiction, a period which, in the Court’s view, cannot of itself suffice to disconnect in time the minor-offence and the criminal proceedings (see, mutatis mutandis, A and B v. Norway, cited above, § 151; and contrast Kapetanios, cited above, § 67, where the delay between the conclusion of the two sets of proceedings had amounted to between 9 and 14 years; and Nodet v. France, no. 47342/14, §§ 52-53, 6 June 2019, where the Court found no sufficiently close substantive or temporal link between the two sets of proceedings). In particular, the additional lapse of time before the criminal courts cannot be considered disproportionate, abusive or unreasonable, taking into consideration that the penalty notice had been issued as a result of summary minor-offence proceedings, whereas the criminal proceedings, which by their nature are more complex, had been conducted before four court instances. In the above circumstances, the Court is satisfied that the two proceedings were sufficiently connected in time.",
"46. In conclusion, in the Court’s opinion, the aims of punishment, whereby different aspects of the same conduct are addressed, ought to be considered as a whole and have in the present case been realised through two foreseeable complementary sets of proceedings, which were sufficiently connected in substance and in time, as required by the Court’s case-law, to be considered to form part of an integral scheme of sanctions under Croatian law for failure to comply with road-traffic safety regulations and causing a traffic accident as a consequence. There was an adequate level of interaction between the two courts in these proceedings, and the punishments imposed, taken together, did not make the applicant bear an excessive burden, but were limited to what was strictly necessary in relation to the seriousness of the offence. In the light of the foregoing, the Court finds no abuse of the State’s right to impose a punishment ( jus puniendi ), nor can it conclude that the applicant suffered any disproportionate prejudice resulting from the duplication of proceedings and penalties. Rather, those proceedings and penalties formed a coherent and proportionate whole (see, mutatis mutandis, A and B v. Norway, cited above, §§ 112, 130 and 147).",
"47. There has accordingly been no violation of Article 4 of Protocol No. 7 to the Convention."
] |
248 | Abu Zubaydah v. Lithuania | 31 May 2018 | This case concerned the applicant’s allegations that Lithuania had let the United States Central Intelligence Agency (CIA) transport him onto its territory under the secret extraordinary rendition programme and had allowed him to be subjected to ill-treatment and arbitrary detention in a CIA detention “black site”. He also complained that Lithuania had failed to carry out an effective investigation into his allegations. | In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate Committee report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant’s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Government’s failure to effectively investigate his allegations and because of its complicity in the CIA’s actions that had led to ill-treatment, as well as violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Article 3. The Court noted in particular that Lithuania had hosted a secret CIA prison between February 2005 and March 2006, that the applicant had been detained there, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Lithuania had also permitted him to be moved to another CIA detention site in Afghanistan, exposing him to further ill-treatment. The Court therefore that the applicant had been within Lithuania’s jurisdiction and that the country had been responsible for the violations of his rights under the Convention. The Court further recommended that Lithuania conclude a full investigation of the applicant’s case as quickly as possible and, if necessary, punish any officials responsible. It lastly held that the country also had to make further representations to the United States to remove or limit the effects of the violations of his rights. | Secret detention sites | Recent judgments and decisions of the Court | [
"I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS",
"II. EVIDENCE BEFORE THE COURT",
"III. BACKGROUND TO THE CASE",
"A. The so-called “High-Value Detainee Programme”",
"1. The establishment of the HVD Programme",
"(a) The US President ’ s memoranda",
"(i) Memorandum of 17 September 2001",
"(ii) Memorandum of 7 February 2002",
"(b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002",
"(c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”",
"2. Enhanced Interrogation Techniques",
"(a) Description of legally sanctioned standard and enhanced interrogation techniques",
"(b) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations",
"3. Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques)",
"4. Conditions of detention at CIA “Black Sites”",
"5. The scale of the HVD Programme",
"6. Closure of the HVD Programme",
"B. The United States Supreme Court ’ s judgment in Rasul v. Bush",
"C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations",
"1. Jeppesen Dataplan Inc.",
"2. Richmor Aviation",
"3. Other companies",
"D. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate",
"1. Course of the review",
"2. Findings and conclusions",
"IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Restrictions on information about the applicant ’ s secret detention and his communication with the outside world",
"B. The applicant ’ s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report",
"C. The applicant ’ s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"D. The applicant ’ s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"1. The applicant ’ s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006",
"(a) The applicant ’ s submissions",
"(i) Rendition to Lithuania (17 or 18 February 2005)",
"(ii) Rendition from Lithuania (25 March 2006)",
"(b) Evidence before the Court",
"(i) The 2015 Reprieve Briefing",
"(α) As regards the colour-coded names of the CIA detention facilities and periods of their operation",
"(β) As regards the CIA prisoners ’ transfers into Lithuania",
"– February 2005 transfers",
"– October 2005 transfer",
"– March 2006 transfer",
"(ii) Expert evidence",
"(iii) “Detention Site Violet” in the 2014 US Senate Committee Report",
"2. Detention and treatment to which the applicant was subjected",
"E. The applicant ’ s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"F. The applicant ’ s detention at the US Guantánamo Bay facility since 5 September 2006 to present",
"G. Psychological and physical effects of the HVD Programme on the applicant",
"H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts",
"I. Parliamentary inquiry in Lithuania",
"1. The Seimas investigation and findings",
"2. Extracts from transcripts of the Seimas ’ debates on the CNSD Findings",
"J. Criminal investigation in Lithuania",
"1. Investigation conducted in 2010-2011",
"2. Reopening of the investigation on 22 January 2015 and further proceedings",
"VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001",
"A. United Nations Organisation",
"1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002",
"2. Statement of the International Rehabilitation Council for Torture",
"3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)",
"B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003",
"C. International non-governmental organisations",
"1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002",
"2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002",
"3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002",
"4. International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003",
"5. Amnesty International Report 2003 – United States of America, 28 May 2003",
"6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003",
"7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue”, 18 August 2003",
"8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003",
"9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004",
"10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005",
"11. Human Rights Watch – List of “ Ghost Prisoners ” Possibly in CIA Custody of 30 November 2005",
"VIII. SELECTED MEDIA REPORTS AND ARTICLES",
"A. International media",
"1. Reports published in 2002",
"2. Reports published in 2005",
"3. ABC News reports of 2009",
"4. Other Reports (2009- 2011)",
"B. Lithuanian media",
"IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA",
"A. Council of Europe",
"1. Procedure under Article 52 of the Convention",
"2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry",
"(a) The 2006 Marty Report",
"(b) The 2007 Marty Report",
"(c) The 2011 Marty Report",
"B. European Parliament",
"1. The Fava Inquiry",
"2. The 2007 European Parliament Resolution",
"3. The Flautre Report and the 2012 European Parliament Resolution",
"4. The 2013 European Parliament Resolution",
"5. The 2015 European Parliament Resolution",
"6. The October 2015 hearing before the LIBE",
"7. The 2016 European Parliament Resolution",
"C. The 2007 ICRC Report",
"D. The 2010 UN Joint Study",
"X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT",
"Witness A",
"Witness A1",
"Witness A2",
"Witness A3",
"Witness A4",
"Witness B",
"Witness B1",
"Witness B2",
"Witness B3",
"Witness B4 (also referred to as “person B” by the Government)",
"Witness C",
"Witness C1",
"Witness C2 (also referred to as “person C” by the Government)",
"Witness D",
"Witness D1",
"Witness E",
"Witness E1",
"Witness F",
"Witness F1",
"Witness G",
"Witness G1",
"Witness G2",
"Witness H",
"Witness H1",
"Witness K",
"Witness L",
"Witness M",
"Witness N",
"1. Questioning on 9 March 2010",
"2. Questioning on 16 March 2010",
"Witness O",
"1. Questioning on 9 March 2010",
"2. Questioning on 10 March 2010",
"Witness P",
"Witness Q",
"Witness R",
"Witness S",
"Witness T",
"1. Questioning on 2 March 2010",
"2. Questioning on 16 March 2010",
"Witness U",
"Witness U1",
"Witness V",
"Witness X",
"Witness Y",
"Witness Z",
"XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT",
"A. The 2011 CPT Report",
"B. The Lithuanian Government ’ s Response to the 2011 CPT Report",
"C. Mr Fava ’ s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland",
"D. Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor",
"1. Record of on-site inspection of Project No. 1 of 17 March 2010.",
"2. Record of the on-site inspection of Project No. 2 of 4 June 2010",
"E. Resolution and Operational Action Plan of 25 July 2002",
"F. Report on the incident of 6 October 2005 in Vilnius airport",
"G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009",
"H. Letter from the Ministry of the Interior of 9 December 2009",
"I. Letter from Palanga airport of 15 March 2010",
"J. The Customs Department letter of 12 April 2010",
"K. The SBGS letter of 27 April 2010",
"XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT",
"A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ”",
"B. Senator Marty",
"C. Mr J.G.S.",
"D. Mr Black"
] | [
"V. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Constitution of the Republic of Lithuania",
"B. Criminal Code",
"C. Code of Criminal Procedure",
"D. Civil Code",
"E. The Law on Intelligence",
"F. The Statute of the Seimas",
"G. The Law on the Seimas Ad Hoc Investigation Commissions",
"H. The Constitutional Court ’ s case-law",
"VI. RELEVANT INTERNATIONAL LAW",
"A. Vienna Convention on the Law of Treaties",
"B. International Covenant on Civil and Political Rights",
"C. The United Nations Torture Convention",
"D. UN Geneva Conventions",
"1. Geneva (III) Convention",
"2. Geneva (IV) Convention",
"E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts",
"F. UN General Assembly Resolution 60/147",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION",
"A. Lithuania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant ’ s lack of victim status",
"1. The Government",
"2. The applicant",
"3. The Court ’ s assessment",
"B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule",
"1. The Government",
"(a) Non-exhaustion of domestic remedies",
"(b) Non-compliance with the six-month rule",
"2. The applicant",
"(a) Non-exhaustion of domestic remedies",
"(b) Non-compliance with the six-month rule",
"3. The Court ’ s assessment",
"II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE",
"A. The parties ’ positions on the facts and evidence",
"1. The Government",
"(a) Lack of credibility of evidence adduced by the applicant",
"(b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions",
"(c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility",
"(i) As regards the alleged existence of a CIA secret detention facility",
"(ii) As regards the applicant ’ s alleged secret detention in Lithuania",
"(d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme",
"(e) Lack of evidence of Lithuania ’ s knowledge of the CIA HVD Programme at the material time",
"2. The applicant",
"(a) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence before the Court",
"(b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006",
"(c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant ’ s secret detention in Lithuania",
"(d) As regards the Lithuanian authorities ’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme",
"(e) As regards Lithuania ’ s knowledge of the CIA HVD Programme at the material time",
"B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects",
"C. HFHR submissions",
"D. The parties ’ positions on the standard and burden of proof",
"1. The Government",
"2. The applicant",
"E. The Court ’ s assessment of the facts and evidence",
"1. Applicable principles deriving from the Court ’ s case-law",
"2. Preliminary considerations concerning the assessment of the facts and evidence in the present case",
"3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005)",
"(a) Period from 27 March 2002 to 22 September 2003",
"(b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court",
"4. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006)",
"(a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006)",
"(b) Whether the applicant ’ s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court",
"(i) Preliminary considerations",
"(ii) Transfers and secret detention",
"(iii) The applicant ’ s treatment in CIA custody in Lithuania",
"5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Lithuania ’ s knowledge of and complicity in the CIA HVD Programme",
"(a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2)",
"(i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme",
"(ii) Assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2)",
"(b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning",
"(c) Special procedure for CIA flights",
"(d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site”",
"(e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005",
"(f) Informal transatlantic meeting",
"6. The Court ’ s conclusion as to the Lithuanian authorities ’ knowledge of and complicity in the CIA HVD Programme",
"III. LITHUANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT ’ S VICTIM STATUS",
"A. The parties ’ submissions",
"B. The Court ’ s assessment",
"1. As regards jurisdiction",
"2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory",
"3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory",
"4. Conclusion as to the Lithuanian Government ’ s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant ’ s victim status",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"A. Procedural aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"(b) The applicant",
"2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation”",
"3. The Court ’ s assessment",
"(a) Admissibility",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"(ii) Application of the above principles to the present case",
"B. Substantive aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"(b) The applicant",
"2. The Court ’ s assessment",
"(a) Admissibility",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"(ii) Application of the above principles to the present case",
"(α) Treatment to which the applicant was subjected at the relevant time",
"(β) Court ’ s conclusion as to Lithuania ’ s responsibility",
"V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION",
"A. The parties ’ submissions",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46 of the Convention",
"B. Article 41 of the Convention",
"1. Damage",
"2. Costs and expenses",
"3. Default interest",
"ANNEX I : List of abbreviations used in the Court ’ s judgment",
"ANNEX II : List of references to the Court ’ s case-law",
"In the case of Abu Zubaydah v. Lithuania,",
"The European Court of Human Rights (First Section), sitting as a Chamber composed of:",
"Linos-Alexandre Sicilianos, President, Kristina Pardalos, Robert Spano, Aleš Pejchal, Egidijus Kūris, Mirjana Lazarova Trajkovska, Paul Mahoney, judges, and Abel Campos, Section Registrar,",
"Having deliberated in private on 28 and 29 June 2016 and 10 April 2018,",
"Delivers the following judgment, which was adopted on the last of these dates:",
"PROCEDURE",
"1. The case originated in an application (no. 46454/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless Palestinian, Mr Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah (“the applicant”), on 14 July 2011.",
"2. The applicant was represented before the Court by Ms H. Duffy, a lawyer practising in The Hague, Mr G.B. Mickum IV, member of the District of Columbia and Virginia Bars, and Mr J. Margulies, member of the Illinois Bar. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.",
"3. The applicant alleged, in particular:",
"(i) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the Central Intelligence Agency of the United States (“the CIA”) to detain him secretly on its territory, thereby allowing the CIA to subject him to treatment that amounted to torture, incommunicado detention, various forms of mental and physical abuse and deprivation of any access to, or contact with, his family or the outside world;",
"(ii) a breach of Articles 3, 5 and 8 of the Convention on account of the fact that Lithuania had enabled the CIA to transfer him from its territory, thereby exposing him to years of further torture, ill-treatment, secret and arbitrary detention and physical abuse in the hands of the US authorities, as well as lack of any contact with his family;",
"(iii) a breach of Article 13 taken separately and in conjunction with Article 3 on account of Lithuania ’ s failure to conduct an effective investigation into his allegations of serious violations of Article 3 of the Convention.",
"4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).",
"5. On 14 December 2012 the President of the Second Section accorded priority to the application, in accordance with Rule 41 and gave notice of the application to the Government, in accordance with Rule 54 § 2 (b).",
"6. The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from the Helsinki Foundation for Human Rights (“HFHR”), Amnesty International (hereinafter also referred to as “AI”) and the International Commission of Jurists (hereinafter also referred to as “ICJ”).",
"7. On 17 March 2015 the Chamber that had been constituted to consider the case (Rule 26 § 1) decided to ask the Government to submit documentary evidence, including declassified parts of the material from the criminal investigation into the applicant ’ s allegations that was conducted in Lithuania and flight data concerning the alleged landings of CIA rendition aircraft in Lithuania. The parties were also invited to produce any further evidence on which they wished to rely before the Court and make comments on the case in the light of the Court ’ s judgments in El-Masri (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, ECHR 2012), Al Nashiri v. Poland (see Al Nashiri v. Poland, no. 28761/11, 24 July 2014), and Husayn (Abu Zubaydah) v. Poland (see Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014).",
"8. Following the re-composition of the Court ’ s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2.",
"9. Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016.",
"The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact ‑ finding hearing was set for 28 June 2016.",
"In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule A8 of the Annex to the Rules of Court, and instructed the Registrar accordingly.",
"10. On 28 June 2016 the Chamber held a fact-finding hearing and took evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex.",
"11. In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality of certain documents produced by the Lithuanian Government (Rule 33 § 2), in particular those relating to the criminal investigation, including a summary of witness evidence and some other material collected in the context of that investigation (see also paragraphs 178-199, 301-346, 357, 362, 365 and 367-368 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of all documents submitted by them should be maintained. The Court decided to invite the Government to prepare a redacted version of the confidential documents after the hearing and instructed the parties that at the public hearing confidentiality was to be respected in a manner which would not lead to disclosure of sources of evidence obtained in the criminal investigation or the identities of witnesses or third parties involved.",
"12. A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3).",
"There appeared before the Court:",
"(a) for the Government",
"Ms K. Bubnytė, Agent of the Government of the Republic of Lithuania to the European Court of Human Rights, Mr P. Griciūnas, the Vice Minister of Justice of the Republic of Lithuania, Mr E. Pašilis, the Prosecutor General of the Republic of Lithuania;",
"(b ) for the applicant",
"Ms H. Duffy, Counsel, Ms A. Jacobsen, Counsel. The Court heard addresses by Mr Griciūnas, Mr Pašilis and Ms Duffy.",
"13. The Government, in their oral submissions, stated that they wished to withdraw their request to apply Rule 33 § 2 in respect of all documents submitted by them, except to the extent necessary to ensure the protection of personal data.",
"14. The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and elections of Section Presidents, Linos-Alexandre Sicilianos, President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova-Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3).",
"THE FACTS",
"15. The applicant was born in 1971 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba.",
"I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS",
"16. It is to be noted that in the present case involving, as the applicant ’ s previous application before the Court, complaints of secret detention and torture to which the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 19-88 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Husayn (Abu Zubaydah) v. Poland, cited above, § 397; and Al Nashiri v. Poland, cited above, § 397; see also paragraph 90 below ).",
"As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), in the present case the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities ’ custody, based on various publicly available sources of information. The applicant ’ s version of the facts as stated in his initial application of 14 July 2011 evolved and partly changed during the proceedings before the Court (see paragraphs 111-11 7 below).",
"The respondent Government contested the applicant ’ s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Lithuania (see paragraphs 39 8 -40 5 and 42 3 -44 6 below).",
"17. In consequence, the facts of the case as rendered below (see paragraphs 90-211 below) are based on the applicant ’ s account supplemented by various items of evidence in the Court ’ s possession.",
"II. EVIDENCE BEFORE THE COURT",
"18. In order to establish the facts of the case the Court relied on its findings in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 30 4-349 below), observations of the parties, material available in the public domain (see paragraphs 234-263 below), and testimony of experts who had given oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 3 72 -39 5 below).",
"In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons:",
"(1) Senator Dick Marty, in his capacity as Rapporteur of the Parliamentary Assembly of the Council of Europe (“PACE”) in the inquiry into allegations of CIA secret detention facilities in the Council of Europe ’ s member States (hereinafter “the Marty Inquiry” – see paragraphs 26 9 ‑ 2 80 below);",
"(2) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg, the former Commissioner for Human Rights of the Council of Europe, who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 266-274, 370-375 and 382-386 below), as well as an expert who had submitted a report on the applicant ’ s case in El-Masri (cited above, § 75) and who had given oral evidence before the Court in the cases of Husayn (Abu Zubaydah) v. Poland (cited above, § § 42, 305-312 and 318-325) and Al Nashiri v. Poland ( cited above, §§ 42, 311-318 and 324-331) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general.",
"In the course of giving evidence to the Court, Senator Marty and Mr J.G.S. also gave a PowerPoint presentation entitled “Distillation of available documentary evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ”;",
"(3) Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the European Parliament Committee on Civil Liberties, Justice and Home Affairs ’ (“LIBE Committee”) investigation of alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 284-291 and 387 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non-governmental organisation Reprieve.",
"19. The relevant passages from the experts ’ testimony are reproduced below (see paragraphs 12 6-145 and 3 72-395 below).",
"III. BACKGROUND TO THE CASE",
"A. The so-called “High-Value Detainee Programme”",
"20. On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center (“CTC”) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “the CTC program” (see also paragraph 3 5 below) but, subsequently, it was also called “the High-Value Detainee Program” (“the HVD Programme”) or the Rendition Detention Interrogation Program (“the RDI Programme”). In the Council of Europe ’ s documents it is also described as “the CIA secret detention programme” or “the extraordinary rendition programme” (see also paragraphs 26 4 -2 80 below). For the purposes of the present case, it is referred to as “the HVD Programme”.",
"21. A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Husayn (Abu Zubaydah) v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-69 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009-2010 (see also paragraphs 3 4 -5 6 below).",
"22. On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence ’ s “Study of the Central Intelligence Agency ’ s Detention and Interrogation Program”. The full Committee Study – as stated therein, “the most comprehensive review ever conducted of the CIA Detention and Interrogation Program” – which is more than 6,700 pages long, remains classified. The declassified Executive Summary (hereinafter “the 2014 US Senate Committee Report”) comprises 499 pages (for further details concerning the US Senate ’ s review of the CIA ’ s activities involved in the HVD Programme see paragraphs 70 ‑ 8 9 below).",
"23. The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case (see also paragraphs 7 6, 80-81 and 92-96 below). However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code-named. The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying countries be redacted. The countries were accordingly listed by a single letter of alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA ’ s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names.",
"24. The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad: “Detention Site Green”, “Detention Site Cobalt”, “Detention Site Black”, “Detention Site Blue”, “Detention Site Gray”, “Detention Site Violet”, “Detention Site Orange” and “Detention Site Brown” (see also paragraph 16 6 below).",
"25. The description of the HVD Programme given below is based on the CIA declassified documents that were available to the Court in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland, supplemented by the 2014 US Senate Committee Report.",
"1. The establishment of the HVD Programme",
"(a) The US President ’ s memoranda",
"(i) Memorandum of 17 September 2001",
"26. The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification (“the MON”) to authorise the Director of the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities”. Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques.",
"27. Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the CTC, had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities.",
"28. A CIA internal memorandum, entitled “Approval to Establish a Detention Facility for Terrorists”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “the best option”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time”. It anticipated that “in a foreign country, close cooperation with the host government will entail intensive negotiations” and warned that “any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility”. The memorandum recommended the establishment of a “short-term” facility in which the CIA ’ s role would be limited to oversight, funding and responsibility”.",
"It further stated that the CIA would “contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments”.",
"(ii) Memorandum of 7 February 2002",
"29. On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 22 6-231 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows:",
"“...",
"2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:",
"a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.",
"...",
"c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character. ’",
"d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.",
"3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.",
"...",
"6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.”",
"30. On the same day, at the press conference, the White House Press Secretary announced the President ’ s decision. The President ’ s memorandum was subsequently widely commented in the US and international media.",
"(b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002",
"31. On 27 March 2002 the Pakistani authorities working with the CIA captured Abu Zubaydah, the applicant in the present case and the first so ‑ called “high-value detainee” (“HVD ”) in Faisalabad, Pakistan. Abu Zubaydah ’ s capture accelerated the development of the HVD Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84).",
"32. According to the 2014 US Senate Committee Report, in late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected the option of US military custody, mostly relying on the lack of security and the fact that in such a case Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC).",
"33. On 29 March 2002 President Bush approved moving forward with the plan to transfer Abu Zubaydah to a covert detention facility, codenamed “Detention Site Green” in a country whose name was blackened in the 2014 US Senate Committee Report (see also paragraphs 9 2-96 below).",
"The report further states:",
"“Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name redacted] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’ .”",
"(c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”",
"34. On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 (“the 2004 CIA Report”). The document, dated 7 May 2004 and entitled “Special Review Counterterrorism Detention and Interrogation Activities September 2001 ‑ October 2003”, with appendices A-F, had previously been classified as “top secret”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out.",
"35. The report, which covers the period from September 2001 to mid ‑ October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations (“the DDO”) informed the Office of Inspector General (“OIG”) that the Agency had established a programme in the CTC “to detain and interrogate terrorists at sites abroad”.",
"36. The background of the HVD Programme was explained in paragraphs 4-5 as follows:",
"“4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high ‑ value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al ’ Qaeda high value detainees.",
"5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al ’ Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community.”",
"37. As further explained in the 2004 CIA Report, “terrorist targets” and detainees referred to therein were generally categorised as “high value” or “medium value”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “Medium-value detainees” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “High-value detainees” (also called “HVDs”) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “high ‑ value targets” (“HVTs”).",
"2. Enhanced Interrogation Techniques",
"(a) Description of legally sanctioned standard and enhanced interrogation techniques",
"38. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “Enhanced Interrogation Techniques” (“EITs”), to be applied to suspected terrorists, would not violate the prohibition of torture.",
"39. The EITs are described in paragraph 36 of the 2004 CIA Report as follows:",
"“[1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.",
"[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.",
"[3.] The facial hold is used to hold the detainee ’ s head immobile. The interrogator places an open palm on either side of the detainee ’ s face and the interrogator ’ s fingertips are kept well away from the detainee ’ s eyes.",
"[4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator ’ s hand makes contact with the area between the tip of the detainee ’ s chin and the bottom of the corresponding earlobe.",
"[5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.",
"[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.",
"[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.",
"[8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.",
"[9.] Sleep deprivation will not exceed 11 days at a time.",
"[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee ’ s head is immobilized and an interrogator places a cloth over the detainee ’ s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.”",
"40. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations, of 4 September 2003) refers to “legally sanctioned interrogation techniques”.",
"It states, among other things, that “captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘ dislocate ’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence”.",
"The techniques included, in ascending degree of intensity:",
"(1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).",
"(2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.",
"41. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Abu Zubaydah, the first high ‑ ranking al-Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009.",
"It concludes that, given that “there is no specific intent to inflict severe mental pain or suffering ...” the application “of these methods separately or a course of conduct” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.",
"42. The US Department of Justice Office of Professional Responsibility Report: “Investigation into the Office of Legal Counsel ’ s Memoranda Concerning Issues Relating to the Central Agency ’ s Use of ‘ Enhanced Interrogation Techniques ’ on Suspected Terrorists” (“the 2009 DOJ Report”) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “black sites” or names of interrogators are redacted. It states, among other things, as follows:",
"“The issue how to approach interrogations reportedly came to a head after the capture of a senior al ’ Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘ black site ’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ...”",
"43. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted.",
"(b) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations",
"44. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel (“OGC”) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah.",
"According to the report, “this resulted in the production of an undated and unsigned document entitled Legal principles Applicable to CIA Detention and Interrogation of Captured Al ’ Qaeda Personnel ’ ”. Certain parts of that document are rendered in the 2004 CIA report. In particular, the report cites the following passages:",
"“the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ... The interrogation of Al ’ Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ...",
"The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees ’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.”",
"The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice ’ s agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion.",
"45. The application of the EITs to other terrorist suspects in CIA custody began in November 2002.",
"3. Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques)",
"46. On 30 December 2004 the CIA prepared a background paper on the CIA ’ s combined interrogation techniques (“the 2004 CIA Background Paper”), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as “top secret” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees – the HVDs – in CIA custody were routinely subjected from their capture, through their rendition and reception at a CIA “black site”, to their interrogation. It “focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade high-value detainees to provide threat information and terrorist intelligence in a timely manner. ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee ’ s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation” (see also El-Masri, cited above, § 124 ).",
"47. The first section of the 2004 CIA Background Paper, entitled “Initial Capture”, was devoted to the process of capture, rendition and reception at the “black site”. It states that “regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur”. The capture is designed to “contribute to the physical and psychological condition of the HVD prior to the start of interrogation”.",
"48. The said “predictable set of events” following the capture started with the rendition, which was described as follows:",
"“a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer.",
"b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures.”",
"49. The description of the next “event” – the reception at the “black site” – reads as follows:",
"“The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include:",
"a. The HVD ’ s head and face are shaved.",
"b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival.",
"c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques.",
"d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques.”",
"50. The second section, entitled “Transitioning to Interrogation - The Initial Interview”, deals with the stage before the application of EITs. It reads:",
"“Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation.”",
"51. The third section, “Interrogation”, which is largely redacted, describes the standard combined application of interrogation techniques defined as (1) “existing detention conditions”, (2) “conditioning techniques”, (3) “corrective techniques” and (4) “coercive techniques”.",
"(1) The part dealing with the “existing detention conditions” reads:",
"“Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD ’ s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD.”",
"(2) The “conditioning techniques” are related as follows:",
"“The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are",
"a. Nudity. The HVD ’ s clothes are taken and he remains nude until the interrogators provide clothes to him.",
"b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.",
"c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines.”",
"(3) The “corrective techniques”, which were applied in combination with the “conditioning techniques”, are defined as those requiring “physical interaction between the interrogator and detainee” and “used principally to correct, startle, or to achieve another enabling objective with the detainee”. They are described as follows:",
"“These techniques – the insult slap, abdominal slap, facial hold, and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:",
"a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee ’ s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.",
"b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.",
"c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator ’ s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.",
"d. Attention Grasp. It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.”",
"(4) The “coercive techniques”, defined as those placing a detainee “in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators”, are described as follows:",
"“These techniques – walling, water dousing, stress positions, wall standing, and cramped confinement – are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:",
"a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.",
"b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.",
"c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator ’ s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.",
"d. Wall Standing. The frequency and duration of wall standing are based on the interrogator ’ s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.",
"e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques.”",
"52. The subsequent section of the 2004 CIA Background Paper, entitled “Interrogation – A Day-to-Day Look” sets out a – considerably redacted – “prototypical interrogation” practised routinely at the CIA “black site”, “with an emphasis on the application of interrogation techniques, in combination and separately”. A detailed description of such “prototypical interrogation” can be found in Husayn (Abu Zubaydah) v. Poland (cited above, § 66) and in Al Nashiri v. Poland (cited above, § 68).",
"53. From the end of January 2003 to September 2006 the rules for CIA interrogations were set out in the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 (“the DCI Interrogation Guidelines”), signed by the CIA Director, George Tenet on 28 January 2003.",
"The 2014 US Senate Committee Report states that, although the above guidelines were prepared as a reaction to the death of one of the HVDs, Gul Rahman, at Detention Site Cobalt and the use of unauthorised interrogation techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri v. Poland, cited above, §§ 99-100), they did not reference all interrogation practices that had been employed at CIA detention sites. For instance, they did not address whether techniques such as the “rough take down”, the use of cold water showers and prolonged light deprivation were prohibited.",
"According to the 2014 US Senate Committee Report, the CIA officers had a “significant amount of discretion” in the application of the interrogation measures. The relevant part of the 2014 US Senate Committee Report reads:",
"“[B]y requiring advance approval of ‘ standard techniques ’ ‘ whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA ’ s ‘ standard ’ interrogation techniques, when those techniques could be applied, and when it was not ‘ feasible ’ to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not ‘ feasible ’. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval.”",
"4. Conditions of detention at CIA “Black Sites”",
"54. From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees (“the DCI Confinement Guidelines”), signed by the CIA Director, George Tenet, on 28 January 2003.",
"This document, together with the DCI Interrogation Guidelines (see paragraph 53 above), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”.",
"According to the report, that meant that even a facility comparable to the “Detention Site Cobalt” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard.",
"55. According to the guidelines, at least the following “six standard conditions of confinement” were in use during that period:",
"(i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility;",
"(ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair;",
"(iii) incommunicado, solitary confinement;",
"(iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees ’ cells and 68-72 dB in the walkways;",
"(v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminated the cell to about the same brightness as an office;",
"(vi) use of leg shackles in all aspects of detainee management and movement.",
"56. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which High-Value Detainees were held as follows:",
"“... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ....",
"Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee ’ s ability to interact with others. ...”",
"5. The scale of the HVD Programme",
"57. According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008.",
"Early 2003 was the most active period of the programme. Of the 119 detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue.",
"58. The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “final disposition”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007.",
"6. Closure of the HVD Programme",
"59. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantánamo Bay.",
"60. In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “short-term, transitory basis” and limited interrogation techniques to those included in the Army Field Manual.",
"B. The United States Supreme Court ’ s judgment in Rasul v. Bush",
"61. On 28 June 2004 the Supreme Court gave judgment in Rasul v. Bush, 542 U.S. 466 (2004). It held that foreign nationals detained in the Guantánamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The relevant part of the syllabus reads as follows:",
"“United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay.",
"“(a) The District Court has jurisdiction to hear petitioners ’ habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held “ in custody in violation of the ... laws ... of the United States, ” §§ 2241(a), (c)(3).",
"Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ... ”",
"C. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations",
"62. According to various reports available in the public domain and material collected during international inquiries concerning the CIA ’ s HDV Programme (see paragraphs 26 9-277 and 2 81-283 below), the CIA used a network of at least twenty-six private planes for their rendition operations. The planes were leased through front companies. The CIA contracts remain classified but parts of the contracts between front companies (such as, for example, Richmor Aviation) and their contractors are publicly available.",
"1. Jeppesen Dataplan Inc.",
"63. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose, California. According to the company ’ s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients.",
"64. In the light of reports on rendition flights, a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism.",
"65. In 2007 the American Civil Liberties Union (“ACLU”) filed a federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three extraordinary rendition victims, with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.",
"In February 2008 the District Court dismissed the case on the basis of “state secret privilege”. In April 2009 the 9 th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government ’ s appeal, an 11-judge panel of the 9 th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU ’ s request to hear the lawsuit.",
"2. Richmor Aviation",
"66. Richmor Aviation is an aircraft company based in Hudson, New York.",
"67. According to Reprieve, documents detailing Richmor Aviation ’ s involvement in CIA rendition missions were made public by it in 2011. These documents included litigation material concerning a dispute for a breach of contract between Richmor Aviation and Sportsflight, a contractor organising flights. They show that Richmor Aviation was involved in the rendition operations in particular through a Gulfstream jet under their management, N85VM, which was later redesignated as N227SV (see also paragraphs 12 3 -12 5 below). Other planes operated by Richmor Aviation were also involved in the programme.",
"Richmor Aviation became a part of this programme as early as June 2002, when the US government ’ s initial prime contractor DynCorp entered into a single entity charter contract with broker Capital Aviation to supply Richmor Aviation ’ s Gulfstream jet N85VM.",
"Under that contract, Richmor Aviation was subcontracted to perform numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu Omar ’ s rendition flight from Germany to Egypt on 17 February 2003 was operated by Richmor Aviation on behalf of DynCorp (see also Nasr and Ghali v. Italy, no. 44883/09, §§ 39, 112 and 231, 23 February 2016 ).",
"It is also reported that the CIA, acting through Computer Sciences Corporation (“CSC”), arranged for Richmor Aviation jet N982RK to transfer Mr El ‑ Masri from a CIA “black site” in Afghanistan to Albania (see El ‑ Masri, cited above, § 46).",
"3. Other companies",
"68. An inquiry into the alleged existence of CIA secret prisons in Europe launched by the European Parliament (“the Fava Inquiry”; see paragraphs 2 81-284 below) examined, among other things, the use by the CIA of private companies and charter services to carry out the rendition operations. The relevant parts of working document no. 4 produced in the course of the inquiry read as follows:",
"“Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights.",
"Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer). These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re ‑ registered in order to [lose] their tracks. ...",
"Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance). In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the ‘ major domestic hub of the Central Intelligence Agency ’ s secret air service.",
"The system is well described by the New York Times:",
"‘ An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft. The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation. ’",
"Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar).",
"Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstrean V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982).",
"There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers. It comes out that some of them are registered more than once.",
"Among the 51 airplanes alleged to be used by CIA:",
"26 planes are registered to shell companies and sometimes supported by operating companies.",
"10 are designed as ‘ CIA frequent flyers, they belong to Blackwater USA, an important CIA and US Army ‘ classified contractor ’. It provides staff, training and aviation logistic. In this case there is no intermediation of shell companies.",
"The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers.”",
"69. The document listed the following operating companies involved in the rendition operations: Aero Contractors, Ltd; Tepper Aviation; Richmor Aviation; and subsidiaries of Blackwater USA.",
"Aero Contractors was the operating company for the following shell companies: Steven Express Leasing Inc., Premier Executive Transport Service, Aviation Specialties Inc. and Devon Holding and Leasing Inc.",
"D. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate",
"1. Course of the review",
"70. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA ’ s activities involved in the HVD Programme, in particular the secret detention at foreign “black sites” and the use of the EITs.",
"That review originated in an investigation that had begun in 2007 and concerned the CIA ’ s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri at Detention Site Green (see also paragraphs 2 4 above and 94-96 and 16 6 below).. The destruction was carried out in November 2005.",
"71. The Committee ’ s “Study of the Central Intelligence Agency ’ s Detention and Interrogation” was finished towards the end of 2012. The document describes the CIA ’ s HVD Programme between September 2001 and January 2009. It examined operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of 119 known individuals detained by CIA during that period (see also paragraphs 2 2-24 above).",
"The US Senate Committee on Intelligence, together with their staff, reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah, Al Nashiri and other CIA prisoners, and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records.",
"72. On 3 April 2014 the Intelligence Committee decided to declassify the report ’ s executive summary and twenty findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which read, in so far as relevant, as follows:",
"“The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority ’ s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.",
"The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ...",
"The report also points to major problems with CIA ’ s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ...",
"The full 6,200-page full report has been updated and will be held for declassification at a later time.”",
"The executive summary with findings and conclusions was released on 9 December 2014 (see also paragraph 2 2 above).",
"73. The passages of the 2014 US Senate Committee Report relating to Mr Abu Zubaydah ’ s secret detention relevant for the present case are rendered below (see paragraphs 7 6, 80-81 and 92-96 below).",
"2. Findings and conclusions",
"74. The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows.",
"75. Conclusion 2 states that “the CIA ’ s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”.",
"76. Conclusion 3 states that “[t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others”. In that regard several references are made to Mr Abu Zubaydah ’ s treatment and interrogations:",
"“Beginning with the CIA ’ s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘ wallings ’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an ‘ an open, nonthreatening approach ’, or that interrogations began with the ‘ least coercive technique possible ’ and escalated to more coercive techniques only as necessary.",
"The waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became ‘ completely unresponsive, with bubbles rising through his open, full mouth ’. Internal CIA records describe the waterboarding of Khaled Shaykh Mohammad as evolving into a ‘ series of near drownings ’.",
"Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation.",
"Contrary to CIA representations to the Department of Justice, the CIA instructed personnel that the interrogation of Abu Zubaydah would take ‘ precedence ’ over his medical care, resulting in the deterioration of a bullet wound Abu Zubaydah incurred during his capture. ... ”",
"77. Conclusion 4 states that “the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others” and that “conditions at CIA detention sites were poor, and were especially bleak early in the programme”. As regards conditions at later stages, the following findings were made:",
"“Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel.",
"Throughout the program, multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.",
"Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems.”",
"78. Conclusion 8 states that “the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies”, including the Federal Bureau of Investigation (“the FBI”), the State Department and the Office of the Director of National Intelligence (“the ODNI”). In particular, the CIA withheld or restricted information relevant to these agencies ’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them.",
"79. The findings under Conclusion 8 also state that, while the US authorities ’ access to information about “black sites” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated:",
"“The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served.",
"In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors.”",
"80. Conclusion 11 states that “the CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities”. In that regard, references are made to the applicant, stating that “the CIA was not prepared to take custody of its first detainee”, Abu Zubaydah, and lacked a plan for the eventual disposition of its detainees. After taking custody of Abu Zubaydah, CIA officers concluded that he “should remain incommunicado for the remainder of his life”, which “may preclude [his] being turned over to another country”.",
"Also, as interrogations started, the CIA deployed persons who lacked relevant training and experience.",
"81. According to Conclusion 13, “two contract psychologists devised the CIA enhanced interrogation techniques and played a central role in the operation, assessment and management of the [programme]”. It was confirmed that “neither psychologist had any experience as an interrogator. Nor did either have specialised knowledge of Al-Qa ’ ida, a background in counter-terrorism, or any relevant or cultural or linguistic expertise”.",
"The contract psychologists developed theories of interrogation based on “learned helplessness” and developed the list of EITs approved for use against Abu Zubaydah and other detainees.",
"82. Conclusion 14 states that “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters”.",
"It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters.",
"83. Conclusion 15 states that “the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA ’ s EITs, were inaccurate. The Committee ’ s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA ’ s enhanced interrogation techniques. Of the 119 known detainees, at least twenty-six were wrongfully held and did not meet the detention standard in the MON (see paragraph 2 6 above).",
"84. Conclusion 19 states that “the CIA ’ s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns”.",
"85. It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities.",
"According to the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6 September 2006 (see also paragraph 5 9 above). From the beginning of the programme, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country (whose name was redacted) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program.",
"Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA ’ s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA ’ s detention facility in that country.",
"86. In early 2004, the anticipation of the US Supreme Court ’ s decision to grant certiorari in the case of Rasul v. Bush (see also paragraph 61 above) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay, Cuba.",
"In mid-2004 the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel.",
"In late 2005 and in 2006, the Detainee Treatment Act and then the US Supreme Court decision in Hamdan v. Rumsfeld (548 U.S. 557,635 (2006)) caused the CIA to again temporarily suspend the use of the EITs. In Hamdan v. Rumsfeld the US Supreme Court ruled that the Guantánamo military commission set up to try terrorist-suspects captured during the “war on terror” “lack[ed] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of military Justice] and the four Geneva Conventions signed in 1949” (for further details see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 73-75).",
"87. According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA ’ s ability to operate clandestine detention facilities.",
"By March 2006 the program was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008.",
"88. Finally, Conclusion 20 states that “the CIA ’ s Detention and Interrogation Program damaged the United States ’ standing in the world, and resulted in other significant monetary and non-monetary costs”.",
"It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted] million that were never used, in part due to the host country ’ s political concerns.",
"89. According to the 2014 US Senate Committee Report:",
"“to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance to [phrase REDACTED] [entities of foreign governments] and to ‘ think big ’ in terms of that assistance”.",
"IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Restrictions on information about the applicant ’ s secret detention and his communication with the outside world",
"90. In the application and further written pleadings, the applicant ’ s lawyers stressed that restrictions on information regarding the entirety of Abu Zubaydah ’ s detention necessarily meant that the case presented a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. In their view, several factors heightened the already significant challenges related to uncovering and presenting evidence in the case.",
"First, the clandestine nature of the rendition operations coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme inherently limited the applicant ’ s ability to produce evidence in his case.",
"Second, the lack of any meaningful investigation by the Lithuanian authorities, in whose hands much of the necessary information rested, impeded access to evidence and information.",
"Third, they referred to what they called “the unprecedented restrictions on communication” between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant ’ s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified. In consequence, counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without obtaining the declassification of that information by the US authorities.",
"According to the applicant ’ s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”. For that reason, his story was therefore to be told and the case was presented on his behalf by reference principally to publicly available documentation (see also Husayn ( Abu Zubaydah) v. Poland, cited above, § 80).",
"B. The applicant ’ s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah) v. Poland and supplemented by the 2014 US Senate Committee Report",
"91. As regards the events preceding the applicant ’ s secret detention in Poland, i.e. his capture in Faisalabad, Pakistan on 27 March 2002 and his initial detention from that date to 4 December 2002, in Husayn (Abu Zubaydah) v. Poland the Court held as follows:",
"“404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to ‘ another CIA black site ’ on 4 December 2002 (see also Al Nashiri, cited above, § 404).”",
"The experts, Senator Marty and Mr J.G.S., heard by the Court at the fact ‑ finding hearing in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland identified the detention facility in Bangkok, Thailand as the one referred to in CIA declassified documents under the codename “Cat ’ s Eye” or “Catseye” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 403; and Al Nashiri v. Poland, cited above, § 403). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”.",
"92. The 2014 US Senate Committee Report relates the events concerning the applicant ’ s capture and initial detention as follows:",
"“In late March 2002, Pakistani government authorities, working with the CIA, captured Qa ’ ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in ALEC Station, the office within the CIA with specific responsibility for al-Qa ’ ida, to possess detailed knowledge of al-Qa ’ ida terrorist attack plans. However, as is described in greater detail in the full Committee Study, this assessment significantly overstated Abu Zubaydah ’ s role in al-Qa ’ ida and the information he was likely to possess.",
"...",
"In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected U.S. military custody [REDACTED] in large part because of the lack of security and the fact that Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC). The CIA ’ s concerns about custody at Guantánamo Bay, Cuba, included the general lack of secrecy and the ‘ possible loss of control to US military and/or FBI ’. ...",
"Over the course of four days, the CIA settled on a detention site in Country [REDACTED] because of that country ’ s [REDACTED] and the lack of U.S. court jurisdiction. The only disadvantages identified by the CIA with detention in Country [REDACTED] were that it would not be a ‘ USG-controlled facility ’ and that ‘ diplomatic/policy decisions ’ would be required. As a[t] March 28, 2002, CIA document acknowledged, the proposal to render Abu Zubaydah to Country [name REDACTED] had not yet been broached with that country ’ s officials. ...",
"The decision to detain Abu Zubaydah at a covert detention facility in Country [REDACTED] did not involve the input of the National Security Council Principals Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station in Country. On March 29, 2002, an email from the Office of the Deputy DCI stated that ‘ [w]e will have to acknowledge certain gaps in our planning/preparations, but this is the option the DDCI will lead with for POTUS consideration ’. That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country [REDACTED]. During the same Presidential Daily Brief (PDB) session, Secretary of Defense Rumsfeld suggested exploring the option of putting Abu Zubaydah on a ship; however, CIA records do not indicate any further input from the principals. That day, the CIA Station in Country obtained the approval of Country ’ s [REDACTED] officials for the CIA detention site. ... Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [REDACTED] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’ .”",
"93. The report cited a CIA cable dated April 2002 relating the applicant ’ s physical conditions of detention as follows:",
"“[REDACTED] a cable described Abu Zubaydah ’ s cell as white with no natural lighting or windows, but with four halogen lights pointed into the cell. An air conditioner was also in the room. A white curtain separated the interrogation room from the cell. The interrogation cell had three padlocks. Abu Zubaydah was also provided with one of two chairs that were rotated based on his level of cooperation (one described as more comfortable than the other). Security officers wore all black uniforms, including boots, gloves, balaclavas, and goggles to keep Abu Zubaydah from identifying the officers, as well as to prevent Abu Zubaydah ‘ from seeing the security guards as individuals who he may attempt to establish a relationship or dialogue with ’. The security officers communicated by hand signals when they were with Abu Zubaydah and used hand-cuffs and leg shackles to maintain control. In addition, either loud rock music was played or noise generators were used to enhance Abu Zubaydah ’ s ‘ sense of hopelessness ’. Abu Zubaydah was typically kept naked and sleep deprived.”",
"94. The report states that on 3 August 2002 the CIA Headquarters informed the interrogation team at Detention Site Green that it had formal approval to apply the EITs, including waterboarding, against Abu Zubaydah. After Abu Zubaydah had been held in complete isolation for forty-seven days, the most aggressive interrogation phase began “at approximately 11:50 a.m. on August 4, 2002”. The report gives the following description of that particular interrogation session:",
"“Security personnel entered the cell, shackled and hooded Abu Zubaydah, and removed his towel (Abu Zubaydah was then naked). Without asking any questions, the interrogators placed a rolled towel around his neck as a collar, and backed him up into the cell wall (an interrogator later acknowledged the collar was used to slam Abu Zubaydah against a concrete wall). The interrogators then removed the hood, performed an attention grab, and had Abu Zubaydah watch while a large confinement box was brought into the cell and laid on the floor. A cable states Abu Zubaydah ‘ was unhooded and the large confinement box was carried into the interrogation room and paced [ sic ] on the floor so as to appear as a coffin ’. The interrogators then demanded detailed and verifiable information on terrorist operations planned against the United States, including the names, phone numbers, email addresses, weapon caches, and safe houses of anyone involved. CIA records describe Abu Zubaydah as appearing apprehensive. Each time Abu Zubaydah denied having additional information, the interrogators would perform a facial slap or face grab. At approximately 6:20 PM, Abu Zubaydah was waterboarded for the first time. Over a two-and-a half-hour period, Abu Zubaydah coughed, vomited, and had ‘ involuntary spasms of the torso and extremities ’ during waterboarding. Detention site personnel noted that ‘ throughout the process [Abu Zubaydah] was asked and given the opportunity to respond to questions about threats ’ to the United States, but Abu Zubaydah continued to maintain that he did not have any additional information to provide.”",
"95. From 4 August to 23 August 2002 the CIA interrogators subjected Abu Zubaydah to EITs on a near 24-hour-per-day basis. The report relates the following facts:",
"“The use of the CIA ’ s enhanced interrogation techniques – including ‘ walling, attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation ’ – continued in ‘ varying combinations, 24 hours a day ’ for 17 straight days, through August 20, 2002. When Abu Zubaydah was left alone during this period, he was placed in a stress position, left on the waterboard with a cloth over his face, or locked in one of two confinement boxes. According to the cables, Abu Zubaydah was also subjected to the waterboard ‘ 2-4 times a day ... with multiple iterations of the watering cycle during each application ’.",
"The ‘ aggressive phase of interrogation ’ continued until August 23, 2002. Over the course of the entire 20 day ‘ aggressive phase of interrogation ’, Abu Zubaydah spent a total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box.",
"According to the daily cables from DETENTION SITE GREEN, Abu Zubaydah frequently ‘ cried ’, ‘ begged ’, ‘ pleaded ’, and ‘ whimpered ’, but continued to deny that he had any additional information on current threats to, or operatives in, the United States.",
"By August 9, 2002, the sixth day of the interrogation period, the interrogation team informed CIA Headquarters that they had come to the ‘ collective preliminary assessment ’ that it was unlikely Abu Zubaydah ‘ had actionable new information about current threats to the United States ’. On August 10, 2002, the interrogation team stated that it was ‘ highly unlikely ’ that Abu Zubaydah possessed the information they were seeking. ...",
"[REDACTED] DETENTION SITE GREEN cables describe Abu Zubaydah as ‘ compliant ’, informing CIA Headquarters that when the interrogator ‘ raised his eyebrow, without instructions ’, Abu Zubaydah ‘ slowly walked on his own to the water table and sat down ’. When the interrogator ‘ snapped his fingers twice ’, Abu Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA ’ s enhanced interrogation techniques.",
"[REDACTED] At times Abu Zubaydah was described as ‘ hysterical ’ and ‘ distressed to the level that he was unable to effectively communicate ’. Waterboarding sessions ‘ resulted in immediate fluid intake and involuntary leg, chest and arm spasms ’ and ‘ hysterical pleas ’. In at least one waterboarding session, Abu Zubaydah ‘ became completely unresponsive, with bubbles rising through his open, full mouth ’. According to CIA records, Abu Zubaydah remained unresponsive until medical intervention, when he regained consciousness and expelled ‘ copious amounts of liquid ’ .”",
"According to the report, “CIA records indicate that Abu Zubaydah never provided the information for which the CIA ’ s enhanced interrogation techniques were justified and approved”. Furthermore, “as compared to the period prior to August 2002, the quantity and type of intelligence produced by Abu Zubaydah remained largely unchanged during and after the August 2002 use of the CIA enhanced interrogation techniques”.",
"96. The report also confirms that Abu Zubaydah and Al Nashiri were held at Detention Site Green until its closure in December 2002 and that they were then moved together to another CIA detention facility, Detention Site Blue. The relevant part of the report reads as follows:",
"“In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.”",
"97. As regards the events after 4 December 2002, in Husayn (Abu Zubaydah) v. Poland (§ 419) the Court held:",
"“419. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:",
"(1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU;",
"(2) from 5 December 2002 to 22 September 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘ Quartz ’ and located in Stare Kiejkuty;",
"(3) during his detention in Poland under the HVD Programme he was ‘ debriefed ’ by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents;",
"(4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.”",
"98. The events that took place between 5 December 2002 and 22 September 2003 at the CIA detention facility code-named “Quartz” and located in Poland correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue” (see paragraphs 2 4 above and 16 6 below; see also Al Nashiri v. Romania, cited above, § 10 1 ).",
"C. The applicant ’ s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"99. The applicant submitted that on 22 September 2003 he had been transferred from Poland to a CIA detention facility at Guantánamo Bay. In Spring 2004, in anticipation of the US Supreme Court ’ s ruling in Rasul v. Bush granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court (see also paragraph 6 1 above), he had again been secretly transferred, this time to a facility in Morocco, where he had been detained incommunicado for almost a year.",
"100. In that regard, he relied on a July 2011 report by the Associated Press stating that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania had followed his detention in Morocco.",
"101. On the basis of their investigations, research and various material in the public domain, the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant ’ s transfers and identified the countries of his secret detention in the period from 22 September 2003 to 17-18 February 2005.",
"102. In the light of the material in the Court ’ s possession the chronology of the applicant ’ s detention can be described as follows.",
"103. In Husayn (Abu Zubaydah) the Court, in its findings as to the applicant ’ s transfer out of Poland considered, among other things, the collation of data from multiple sources, including flight plan messages concerning the N313P flight circuit executed through Poland on 22 September 2003 (see Husayn (Abu Zubaydah) v. Poland, cited above, § 109). Those data showed that N313P had travelled the following routes:",
"Take-off Destination Date of flight",
"Washington, DC (KIAD) Prague, Czech Republic (LKPR) 21 Sept 2003",
"Prague, Czech Republic (LKPR) Tashkent, Uzbekistan (UTTT) 22 Sept 2003",
"Tashkent, Uzbekistan (UTTT) Kabul, Afghanistan (OAKB) 21 Sept 2003",
"Kabul, Afghanistan (OAKB) Szymany, Poland (EPSY) 22 Sept 2003",
"Szymany, Poland (EPSY) Constanţa, Romania (LRCK) 22 Sept 2003",
"Constanţa, Romania (LRCK) Rabat, Morocco (GMME) 23 Sept 2003",
"Rabat, Morocco (GMME) Guantánamo Bay, Cuba (MUGM) 24 Sept 2003",
"104. Mr J.G.S., at the fact-finding hearing in the above case testified as follows (ibid. § 312):",
"“One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end.",
"In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay.",
"This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA ’ s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination, openly, and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.”",
"105. At the fact-finding hearing in the present case, in the course of the PowerPoint presentation, Mr J.G.S. testified as follows:",
"“ Abu Zubaydah was the first high value detainee, he was arrested in late March 2002 in an operation in Faisalabad, Pakistan and was initially held in Thailand. We have established before this Court the mode of his transfer to Europe. First to Poland on 5 December 2002 and he was detained in that site for 292 days. ... We know that when he departed Poland on 22 September 2003 upon the closure of the site, that he did not go to Romania directly, he was rather held in both Guantánamo Bay, at the CIA facility there, and in Rabat – Morocco, for a period of over one year after his departure from Poland. Unlike Mr Nashiri whom we refer to in earlier proceedings [ Al Nashiri v. Romania ], when Zubaydah left Guantánamo he was taken back to the same site in Morocco at which he had previously been detained, Rabat – Morocco, the site which had been the subject of some acrimonious relations between the CIA and its Moroccan counterparts.",
"It was in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco took place and, as I stated, and connected with specific flight paths, the destination of his transfer out of Morocco was Lithuania.”",
"106. Mr J.G.S. further explained that the applicant was transferred from Guantánamo to Rabat on board rendition plane N85VM on 27 March 2004 and provided details of the flight circuit executed by that plane.",
"In Mr J.G.S. ’ description, “the CIA facility at Guantánamo was cleared in March-April 2004 as the CIA sought to evade justice”; in this respect he referred to the passage in the 2014 US Senate Report speaking of moving the CIA detainees from Guantánamo in anticipation of the US Supreme Court ’ s ruling in Rasul v. Bush (see also paragraph 6 1 above and paragraph 1 10 below).",
"107. The N85VM flight on 27 March 2004 was the first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred from Guantánamo to Rabat directly. The plane then returned to Washington on 29 March 2004. The second part of the circuit took place between 12 and 13 April 2004 and N85VM brought the remaining prisoners from Guantánamo via Tenerife, Spain to the CIA secret prison in Bucharest, Romania, returning to Washington via Rabat on 13 April 2004 (see also Al Nashiri v. Romania, no. 33234/12, §§ 11 9 -12 0, 31 May 2018 ).",
"108. Mr Black, at the fact-finding hearing, testified as follows:",
"“We know that Abu Zubaydah was in Poland and that he was transferred out of Poland in September 2003. The transfer that took him out of Poland in September 2003 had two possible destinations, one of which was Romania and one of which was Guantánamo Bay. Prima facie it is possible that he could have gone to either. In 2011 I received an off-the-record briefing and my take-away from this briefing, which I believe to be accurate, was that in the Summer of 2005 or before that Abu Zubaydah had not been held in Romania. It follows from this that Abu Zubaydah must therefore have been taken to Guantánamo on that flight in September 2003. We know that everyone who was taken there had to be moved out in March or April 2004. They were taken to Morocco. We also know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005.”",
"109. The 2014 US Senate Committee Report ’ s section entitled “Country [name REDACTED] Detains Individuals on the CIA ’ s Behalf” reads, in so far as relevant, as follows:",
"“ Consideration of a detention facility in Country [REDACTED] began in [month REDACTED] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [REDACTED] which had not yet informed the country ’ political leadership of the CIA ’ s request to establish a clandestine detention facility in Country [REDACTED], surveyed potential sites for the facility, while the CIA set aside [USD] [number REDACTED] million for its construction.",
"In 2003, the CIA arranged for a ‘ temporary patch ’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [REDACTED] detention facility, until the CIA ’ s own facility could be built.",
"...",
"By [day/month REDACTED] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [REDACTED], both bin al-Shibh and al-Nashiri had been transferred out of Country [REDACTED] to the CIA detention facility at Guantánamo Bay, Cuba.”",
"110. The report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo to Bay to Country [name REDACTED]” (see also paragraph 61 above),states:",
"“Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time.",
"Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court ’ s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court ’ s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities.",
"[REDACTED] Shortly after placing CIA detainees within already existing Country [REDACTED] facility for a second time, tensions arose between the CIA and [REDACTED] Country [REDACTED]. In [month REDACTED] 2004, CIA detainees in a Country [REDACTED] facility claimed to hear cries of pain from other detainees presumed to be in the [REDACTED] facility. When the CIA chief of Station approached the [REDACTED] about the accounts of the CIA detainees, the [REDACTED] stated with ‘ bitter dismay ’ that the bilateral relationship was being ‘ tested ’. There were also counterintelligence concerns relating to CIA detainee Ramzi bin al-Shibh, who had attempted to influence a Country [REDACTED] officer. These concerns contributed to a request from [REDACTED] in [month REDACTED] 2004 for the CIA to remove all CIA detainees from Country [REDACTED].",
"[REDACTED] In [month REDACTED] 2004 the chief of Station in Country [REDACTED] again approached the [REDACTED] with allegations from CIA detainees about the mistreatment of Country [REDACTED] detainees [REDACTED] in the facility, the chief of Station received an angry response that, as he reported to CIA Headquarters, ‘ starkly illustrated the inherent challenges [of] [REDACTED] ’. According to the chief of Station, Country [REDACTED] saw the CIA as ‘ querulous and unappreciative recipients of their [REDACTED] cooperation ’. By the end of 2004, relations between the CIA and Country [REDACTED] deteriorated, particularly with regard to intelligence cooperation. The CIA detainees were transferred out of Country [REDACTED] in [name of month REDACTED; appears to have comprised eight characters] 2005.”",
"D. The applicant ’ s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"1. The applicant ’ s alleged rendition to Lithuania on 17 February or 18 February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006",
"(a) The applicant ’ s submissions",
"(i) Rendition to Lithuania (17 or 18 February 2005)",
"111. In his initial submissions of 14 July 2011 and 27 October 2011 the applicant maintained that the existence of a CIA secret prison in Lithuania had first been disclosed in August 2009, when ABC News had reported that according to “former CIA officials directly involved or briefed” on the CIA HVD Programme, the Lithuanian authorities had provided the CIA with a building on the outskirts of Vilnius where terrorist suspects had been held for “more than a year” (see also paragraph 257 below).",
"112. He further submitted that after his rendition from Poland to Guantánamo on 22 September 2003 and from Guantánamo to Rabat in Spring 2004, he had been transferred from Rabat to Lithuania “in early 2005”. Relying on flight information supplied by the Lithuanian Civil Aviation Administration ( Civilinės Aviacijos Administracija – “CAA”), Reprieve and Interights, he indicated two possible dates – 17 February 2005 and 18 February 2005 – and two CIA rendition aircraft – N724CL and N787WH – on which he could have been transferred to Lithuania.",
"113. On 10 September 2012 the applicant filed with the Court ’ s Registry a pleading entitled “Additional Submission” in which he rectified and supplemented information of his alleged rendition to and from Lithuania in the light of newly emerging materials in the public domain.",
"114. As regards the alleged rendition to Lithuania on 17 February 2005 or 18 February 2005, the information produced by the applicant could be summarised as follows:",
"(a) Between 15-19 February 2005, N787WH and N724CL, arranged by CSC, travelled from the USA to Lithuania via Morocco and back to the USA. No other flights of CIA-related aircraft have so far come to light connecting the three countries during or around this period;",
"(b) Data from the Federal Aviation Authority and EuroControl showed that N787WH, a Boeing 737 operated by Victory Aviation Florida, executed the following flight circuit on 15-19 February 2005:",
"Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Salzburg (LOWS) - Malaga (LEMG) - Rabat (GMME) - Constanţa /Bucharest (LRCK / LRBS) - Palanga (EYPA) - Copenhagen (EKCH) - Gander (CYQX) - Baltimore (KBWI).",
"(c) Data from the Federal Aviation Authority and EuroControl showed that another Boeing 727, registered as N724CL, followed a similar route to N787WH on its flight circuit executed on 15-18 February 2005:",
"Van Nuys (KVNY) - Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Gran Canaria (GCLP) - Rabat (GMME) - Amman (OJAM) - Vilnius (EYVI) - Keflavik (BIKF) - Goose Bay (CYYR) - Baltimore (KBWI) - Van Nuys (KVNY).",
"(d) Both planes travelled from the USA to Morocco; their paths then diverged, as N787WH went on to Romania and N724CL to Amman, Jordan. Both planes then re-converged on Lithuania, arriving within twenty ‑ four hours of each other, before returning to the USA.",
"(ii) Rendition from Lithuania (25 March 2006)",
"115. In his initial submissions the applicant did not indicate any specific date of his rendition from Lithuania.",
"116. In his Additional Submission of 10 September 2012 (see also paragraph 112 above), he stated that, according to public sources, the CIA “black site” in Lithuania had been closed “in the first half of 2006 and its occupants transferred to Afghanistan or other countries”.",
"The applicant indicated 25 March 2006 as the date of his rendition from Lithuania, which he linked with the flight circuit executed through Palanga Airport in Lithuania by the CIA rendition plane registered as N733MA on 23-27 March 2006. It was alleged that he had been transferred to Afghanistan by the so-called “double-plane switch”. This operation was executed by using two planes, each one of which completed only half the route so that the CIA prisoners could be transferred from one plane to another in an airport in which they converged. It involved N733MA and another CIA rendition aircraft registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006.",
"117. It was submitted that N733MA ’ s landing in Palanga on 25 March 2006 had been mentioned in the Lithuanian Parliamentary inquiry. No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft” (see also paragraph 173 below).",
"While an entry in the records of the Palanga Airport indicated that N733MA departed from Palanga to Porto, Portugal on 25 March 2006, the analysis of flight plan data released by PANSA and EuroControl showed that N733MA did not fly to Porto but proceeded to Cairo, Egypt. On 26 March 2006 in Cairo the plane converged with another Boeing 737 rendition aircraft registered as N740EH. Afterwards, N733MA travelled from Cairo to Heraklion, Greece. It had left Heraklion for Keflavik, Iceland in the morning of 27 March 2006. On 26 March 2006 N740EH, shortly after the arrival of N733MA in Cairo, took off from there for Kabul, Afghanistan. It then stopped briefly in Amman, Jordan and travelled to Heraklion, Greece. On 28 March 2006 it left Heraklion for Keflavik, Iceland.",
"Both planes were chartered by CSC and operated by Miami Air International, Florida.",
"(b) Evidence before the Court",
"118. The applicant produced flight and other data from multiple sources, including extracts from EuroControl and Lithuanian aviation authorities ’ flight records, flight messages regarding circuits executed by N787WH on 15-19 February 2005, N724CL on 15-18 February 2005 and the landing of N7333MA at Palanga Airport on 25 March 2006, as well as aircraft charter contracts concluded in respect of those flights.",
"He also produced, among other things, flight data concerning the “double-switch” flight circuits executed by planes N308AB and N787WH between 4 and 7 October 2005 and by N733MA and N740EH on 23 ‑ 28 March 2006, the Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 14 to 18 June 2010 (“2011 CPT Report”) and the Briefing and Dossier for the Lithuanian Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence Committee Report dated 11 January 2015 and prepared by Reprieve (“2015 Reprieve Briefing”).",
"119. Other evidence before the Court comprised the 2014 US Senate Committee Report, publicly available flight data, testimony of the experts heard at the fact-finding hearing and the material of the PowerPoint presentation given by Senator Marty and Mr J.G.S.",
"(i) The 2015 Reprieve Briefing",
"120. The 2015 Reprieve Briefing states that the partially released 2014 US Senate Committee Report confirmed previous accounts of CIA secret detention in Lithuania and existing public source data on transfer dates of prisoners into and out of Lithuania and referred to prisoners held in Lithuania. The conclusions were as follows:",
"(a) it was established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania was used to hold prisoners;",
"(b) prisoners were transferred into this facility in February and October 2005;",
"(c) prisoners were transferred out of this facility in March 2006;",
"(d) the transfers were carried out on planes contracted to Computer Sciences Corporation, all operating within a linked group of contracts.",
"121. The document summarises key statements in the 2014 US Senate Committee Report relating to three CIA detention facilities referred to therein – Detention Site Black, Detention Site Violet and Detention Site Brown and, using also other public source data, concludes that Detention Site Violet was located in Lithuania. Also, on the basis of the number of the characters blackened in the redacted passages of the report, it attempts to decipher certain dates.",
"The 2015 Reprieve Briefing ’ s findings as to the operation of the CIA secret detention site in Lithuania and the flights indicated by the applicant as those on which he could have been transferred from Morocco to Lithuania and out of Lithuania can be summarised as follows.",
"(α) As regards the colour-coded names of the CIA detention facilities and periods of their operation",
"122. The Reprieve document provides the following information:",
"(a) According to the 2014 US Senate Committee Report, CIA detainees were transferred to Detention Site Black in “the fall of 2003”. The closure of that site was precipitated by revelations in the Washington Post, published on 2 November 2005 (see also paragraphs 14 9 and 25 6 below; see also Al Nashiri v. Romania, cited above, § § 133 and 161 ). At this point the host country demanded “within [two characters/digits redacted] hours” the site ’ s closure and the remaining detainees were transferred out of that country “shortly thereafter”;",
"(b) Detention Site Violet, in a different country from “Black”, opened “in early 2005”. The CIA conducted discussions with officials from “Violet ’ s” host country; these discussions left one such official “shocked” but host country approval was nonetheless given for the facility. Evidently the CIA had originally constructed a “holding cell” in the same country as Detention Site Violet, which was not used. They then decided to “build a new, expanded detention facility” in the same country. Approval was provided by an official from that country. Money, in the amount of several million dollars, was also provided to that country, although this required the development of “complex mechanisms” to effect the transfer.",
"(c) The first detainees were transferred to the expanded site “Violet” [fourteen lower-case characters redacted for the date]. This information corresponds to the flight data analysed by Reprieve, which indicates flights by two planes N787WH and N724CL, contracted by Computer Sciences Corporation, into Lithuania on 17 February and 18 February 2005 respectively. They came via Morocco, Romania and Jordan and were operating under the same renditions-specific contract.",
"(d) Detention Site Violet was closed as a result of a lack of available medical care “in [five lower-case characters redacted for the month] 2006.” The CIA then transferred its remaining detainees to Detention Site Brown. At that point, all CIA detainees were located in Country [name redacted];",
"(e) Detention Site Brown was in the same country as Detention Sites Cobalt, Gray and Orange. It first received detainees in “[five lower-case characters redacted for the month] 2006”. The 2014 US Senate Committee Report states that Khalid Sheikh Mohammed was transferred into Detention Site Brown on “[two characters redacted for the date] March 2006”. Prior to this he was held in a different site, to which he had been transferred after being held at Detention Site Black. He was transferred from that site to site [six upper-case character redacted] in 2005, on a redacted date [eight lower- case characters redacted]. Detention Site Cobalt, on the basis of extensive reporting, can be firmly placed in Afghanistan. Detention Site Brown must therefore be in the same country.",
"(f) A transfer of prisoners into Kabul, organised by the CSC within their rendition contracting network took place on 25-26 March 2006. The transfer came from Lithuania and used two planes – N733MA and N740EH ‑ travelling via Cairo. The former carried out the leg of the trip from Lithuania to Cairo, the latter from Cairo to Kabul.",
"(g) The above March 2006 transfer matches the closure of Detention Site Violet which, according to the 2014 US Senate Committee Report, was closed as a result of lack of available medical care in [five characters for the month redacted] 2006. The five-character redacted month could only be “March” or “April” on account of the length of the redaction. Of these two possibilities, March fits the data given in the report for Khalid Sheikh Mohammed ’ s transfer to Detention Site Brown.",
"(h) The lack of medical care which caused the closure of Detention Site Violet seems to have affected Mustafa al-Hawsawi and “four other CIA detainees”.",
"(i) On 1 January 2006 the CIA were holding twenty-eight prisoners, divided between Detention Site Orange and Detention Site Violet.",
"(j) Despite the redactions in the above citations, careful reading of the 2014 US Senate Committee Report alongside other public source documents supports the conclusions that:",
"– Detention Site Black was in Romania;",
"– Detention Site Violet was in Lithuania;",
"– Detention Site Brown was in Afghanistan;",
"– CIA detainees were first transferred into Detention Site Violet in February 2005;",
"– Detainees were transferred out of Detention Site Violet into Detention Site Brown in March 2006.",
"(β) As regards the CIA prisoners ’ transfers into Lithuania",
"– February 2005 transfers",
"123. The Reprieve document states that the first transfer occurred in early 2005. The transfer could have been carried out on either or both of two planes (N787WH and N724CL), one from Morocco and Amman, one from Morocco and Bucharest, arriving in Lithuania on 17 and 18 February 2005 respectively.",
"(a) N787WH and N724CL were operating under subcontract S1007312 to CSC. Their trips in February 2005 were task orders 20 and 21 of this subcontract.",
"(b) Data from EuroControl shows N787WH ’ s progress from the USA to Morocco, Romania, Lithuania and back.",
"On 15 February 2005 it flew from Baltimore Washington International (KBWI) to Santa Maria, Azores (LPAZ). It then filed a flight plan to Munich (EDDM) but was impeded by snow and went instead to Salzburg (LOWS). On 17 February it left Salzburg in the afternoon and headed to Malaga (LEMG), where it paused until the middle of the night. It then left Malaga in the early hours of 18 February 2005, arriving in Rabat (GMME) around 02:40. After just over two hours in Rabat it proceeded to Romania, filing a flight plan into Constanţa (LRCK) – although its flight plan for the next leg of the trip was filed not out of Constanţa but out of Bucharest Băneasa Airport (LRBS). It left Bucharest in the afternoon of 18 February 2005 and filed a false flight plan into Gothenburg, Sweden. Its true destination was Palanga where it arrived, according to an invoice for “State Charge for Air and Terminal Navigations Services – Palanga”, at 18:09.",
"EuroControl and Palanga airport records both indicate that it left Palanga shortly afterwards, at 19:30, bound for Copenhagen. The plane paused overnight in Copenhagen, then continued to Gander, Canada (CYQX). Information released by the Federal Aviation Authority shows that it then returned to Baltimore International (KBWI/ BWI) and finally to its home base in Florida (FLL).",
"(c) Although the Lithuanian Parliamentary Committee on National Security and Defence inquiry cited N787WH ’ s flight from Bucharest to Palanga on 18 February 2005, the Committee was not aware of the plane ’ s complete route, its contractual basis, or the identification of its contractual basis with rendition operations (see also paragraph 173 below).",
"(d) N724CL ’ s flight under the same subcontract occurred at the same time (16-17 February 2005) as the flight of N787WH and took a similar route: Rabat (GMME) – Amman (OJAM) – Vilnius (EYVI) – Keflavik (BIKF).",
"– October 2005 transfer",
"124. The 2015 Reprieve Briefing states that prisoners were again transferred into Lithuania from Romania in October 2005. The document refers to the flight circuits executed by N308AB and N787WH on 1 ‑ 7 October 2005.",
"(a) Data from EuroControl shows that N308AB flew from Teterboro, New Jersey, to Slovakia on 4 October 2005. After an overnight stop it proceeded to Romania, filing a flight plan to Constanţa on the evening of 5 October 2005. It left Romania soon afterwards (this time filing a flight plan out of Bucharest) and headed to Tirana, Albania.",
"(b) An email and a “preliminary requirements” document corresponding to this flight give further information, namely that on arrival in Romania the plane was to pick up two people (“PU 2 PAX”) in addition to the five people it had set off with. In Albania it was to “Drop All PAX”. The document instructs: “Must have 3 pilots, NO Flight Attendants. At least a G-IV performance with 10 PAX capability. No customs help”.",
"(c) Flight data shows that on its drop-off in Albania N308AB was met by N787WH, which proceeded just over an hour later to Lithuania. N787WH disguised its route into Lithuania by filing a flight plan to Tallinn (EETN). The Vilnius Airport “State Charge” document incorrectly asserts that N787WH arrived from Tallinn, while another airport log shows that it did in fact arrive from Tirana.",
"(d) On its arrival in Vilnius, as recorded by the Lithuanian Parliamentary Committee on National Security and Defence (see also paragraph 173 below), a border guard was prevented from carrying out his duties and checking the plane; he observed a vehicle drive away from it and exit the perimeter of the airport.",
"– March 2006 transfer",
"125. The 2015 Reprieve Briefing states that the CIA prisoners were transferred out of Lithuania to Afghanistan in March 2006.",
"(a) Two trips contracted by Computer Sciences Corporation on 25 ‑ 26 March 2006, involving planes N333MA and N740EH, connect Lithuania to Afghanistan and correspond to the closure of Detention Site Violet and the transfer of its prisoners to Detention Site Brown.",
"(b) The Lithuanian parliamentary inquiry noted that N733MA had arrived in Palanga on 25 March 2006, coming from Porto, and that it had returned to Porto; no further information about it was provided, other than the facts that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”. Investigation by Reprieve has established that, far from returning to Porto as recorded by officials at Palanga Airport, N733MA continued to Cairo, where it made a connection with N740EH. N740EH then proceeded to Kabul. Both planes were chartered by Computer Sciences Corporation and operated by Miami Air International, Florida.",
"(c) Data provided by EuroControl shows that N740EH flew from New Castle, Delaware (KILG) to Marrakesh (GMMX) on 23 March 2006. There is no record of its subsequent movements until 26 March 2006. In the meantime, N733MA, having left Philadelphia International (KPHL), passed through Porto (LPPR), then filed a flight plan to Helsinki (EFHK) on the afternoon of 25 March.",
"Instead of going to Helsinki, however, N733MA went to Palanga (EYPA), touching down at 22:25 local time (in close proximity to its scheduled arrival time of 20:38 GMT). It paused for 90 minutes in Palanga. Records from EuroControl and the Polish Air Navigation Authority both show that on leaving Palanga it went not to Porto, as the Lithuanian parliamentary inquiry was informed (see also paragraph 173 below), but to Cairo (HECA). Its scheduled arrival time in Cairo was 02:19 GMT on 26 March.",
"(d) While N733MA was making its way to Palanga, N740EH was on its way to Cairo. Although records do not show when it arrived in Cairo, or from where, they do indicate that it left Cairo shortly after N733MA arrived there – at 02:45 GMT on 26 March 2006 – and that it went from Cairo to Kabul (OAKB), with an arrival time in Kabul of 08:32.",
"N740EH then returned westwards from Kabul, pausing briefly in Amman (OJAI) before making a longer stop in Heraklion (LGIR). It arrived in Heraklion around 23:07 on 26 March 2006. N733MA had also flown to Heraklion direct from Cairo and was waiting there, having arrived at 04:59 the same day. Both planes left Heraklion for Keflavik (BIKF) – N733MA on the morning of 27 March 2006, and N740EH on the morning of 28 March 2006.",
"(e) Documents relating to the planning of these two trips show complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan. Both trips were included in one invoice. Consistent with the other trips mentioned in the briefing, the invoice relates the task back to the original rendition subcontract.",
"(f) The flight schedule accompanying the charter contract shows that both planes ’ destinations were kept secret up to the last minute.",
"(ii) Expert evidence",
"126. At the fact-finding hearing the experts, Mr J.G.S. and Mr Black, gave evidence on the alleged operation of the CIA secret detention facility in Lithuania, code-named “Detention Site Violet” in the 2014 US Senate Committee Report, the applicant ’ s alleged rendition to Lithuania, his secret detention and his transfer out of the country. They replied to various questions from the judges and the parties. They testified as follows.",
"127. In the course of the PowerPoint presentation Mr J.G.S., when explaining in general the rendition scheme operated by the CIA, characterised Lithuania as a “drop-off” point for CIA detainees, which had served the purpose of hosting a detention facility. In particular, he stated:",
"“I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called ‘ war on terror ’.",
"We categorised these landing points according to a set of criteria developed in 2006 whereby each landing point exhibited certain characteristics which allowed us to discern the purpose for which an aircraft landed there. The four categories as denoted are first stopover points where aircraft tended to stop shortly, primarily to refuel, staging points where often two or more aircraft would converge in their planning or preparation of specific detainee transfer operations, pick up points at which individual suspects, persons captured by the CIA, were taken on board rendition aircraft by CIA rendition crews in order to be flown to secret detention, in places of the last category detainee transfer or drop-off points.",
"The original graphic on display here dates to 2006. We are in a position today to add one further detainee transfer drop-off point in Vilnius on the territory of the Republic of Lithuania. Having subsequently uncovered records of flights into and out of that territory and been able to devote an equal amount of rigour and attention to the underlying documents, we have found that Vilnius together with Szymany and Bucharest bore the character of a detainee drop-off point in the CIA ’ s system of renditions. I will explain how that occurs by developing some of the analysis further.",
"...",
"Vilnius has been added here for the specific purpose of today ’ s proceedings albeit that at the time in 2006 and 2007 we did not have sufficient information to place it on the original map. What we can say today about the CIA ’ s operations of a ‘ black site ’ in Lithuania has increased considerably in scope and volume thanks to various declassifications, also various records obtained through court proceedings in the United States of America, and indeed through the diligent efforts of various Lithuanian partners who have investigated this issue since its first exposure in 2009 and 2010.",
"... [F]or example ... this is a document on record before the court which attests to the landings of CIA rendition aircraft in Vilnius in the months of February and October 2005. This is significant and this was furnished in 2011 by the Lithuanian authorities themselves. It is significant because the aircraft denoted in these disclosures are not the same aircraft that carried out the bulk of the rendition operations in respect of Poland and Romania earlier in the life of the program.”",
"128. According to Mr J.G.S., the first CIA detainees were transferred to Lithuania in February 2005. He stated that 17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had once again been dramatically overhauled and that the removal of CIA detainees from Morocco had led to the opening of their new “black site” in Lithuania. Mr Zubaydah was transferred to Lithuania in February 2005. Other detainees were transferred to the country in October 2005. The closure of the site had been marked by the transfer of the CIA detainees, including the applicant, out of Lithuania on 25 March 2006. He referred to the following elements in support of his conclusions.",
"129. He first referred to the “cyclical nature” of CIA secret detention sites and explained its relevance for the opening and closure of the CIA secret prison in Lithuania as follows:",
"“The Court will recall my reference to the CIA ’ s in-house aviation service providers. There was a shell company known as Aero Contractors that administered two aircraft N313P and N379P in the early years of the rendition programme and much of the planning for the flights was done by one provider Jeppesen Dataplan. In those early years therefore there is quite a consistent pattern to the execution of rendition operations and that certainly encompasses the timeframe of the Polish site – from December 2002 until September 2003 – and it encompasses much of the operations at the Romanian site from September 2003 until November 2005. But in Lithuania we do not have any record of a single landing of either of those aircraft, the typical rendition aircraft: neither the Boeing Business Jet, nor the Gulfstream express plane which were used customarily in the early years. However, through these disclosures the Lithuanian records allow us to find out how the CIA developed its methodology, expanded its fleet and in some cases replaced its original operator with new contractors, new aircraft and new modus operandi.",
"Among the routes flown by these new aircraft was the putative transfer of the applicant in today ’ s proceedings into Lithuania in February of 2005. For reasons I have addressed in [ Al Nashiri v. Romania ] proceedings, Madam President, it stands to reason that February 2005 was another important juncture in the evolution of the CIA secret detention program. As I will demonstrate in my presentation the programme was cyclical in character: detention sites did not exist in perpetuity for the entire lifespan of the war on terror, rather the CIA tended to innovate and improvise to situations as it found them.",
"Its earliest sites, in theatre, in a country like Afghanistan, they were able to last somewhat longer because of the context and often also because of the military support that they were able to draw upon, but in the cases of Thailand and Poland and Morocco and even Guantánamo Bay, extenuating circumstances caused by external factors, whether political, legal or reputational, led to the abrupt closure of detention sites at moments when the CIA had not necessarily planned for them to close.",
"So the story of the secret detention programme includes several of these junctures at which one detention site closes abruptly and another opens in its place. However, that February 2005 fits into this pattern for the specific reason that in February 2005 the cooperation with the Moroccan authorities in the administering of a secret detention site in Rabat, Morocco finally ran aground. All the CIA ’ s remaining detainees in Morocco had to be moved out. In February 2005 the flight data tells us that there were two principal destinations for detainees being taken out of Morocco. Those were the two European sites. Firstly Romania, which we have addressed in the [ Al Nashiri v. Romania ] proceedings, and secondly, for the first time, Lithuania.”",
"He added:",
"“Detention sites did not endure for periods of several years, rather at particular junctures in the programme they were abruptly closed and all classified information housed in those facilities destroyed. Here we have the example of when Thailand was closed, December 2002. And by collating material from the reporting the cabling at the base with flight data, including that from our own investigations we identified this juncture of ... December 4th-5th, 2002 as the first of several on which CIA detention and interrogation operations were dramatically overhauled. That meant that one base closed - CATESEYE in Thailand and immediately afterwards a new base opened ‑ QUARTZ base in Poland. And just as the detainees from one site moved to another so the operational focus shifted with them. QUARTZ became the facility from 5 December 2002, to which the CIA brought its highest value detainees for HVD interrogation. Likewise, if we move forward nine months, the same report reveals that QUARTZ itself only existed until 22 September 2003, whereupon QUARTZ base in Poland was closed and a successor site BRIGHTLIGHT base in Romania was opened, 22 September 2003. This cyclical nature evidenced in the documents and supported by analysis of the flight data persisted all the way till the end of Europe ’ s participation in the rendition programme.",
"Specifically the last juncture of interest to the Court is that on 25 March 2006. Detention Site Violet, the Lithuanian site itself, would close and would lead to a wholesale transfer of detainees from that site to the final site in the programme back in Afghanistan. So, rather than having multiple sites existing simultaneously and in perpetuity, the story of this programme is of a shifting operational focus whereby each site at one time is the hub of operations where the key interrogations are taking place, where enhanced interrogation techniques are being routinely authorised and instrumentalised, and where new detainees captured are sent by rendition aircraft in order to enable this honing of resources.”",
"130. In this connection, in the course of the PowerPoint presentation, Mr J.G.S. demonstrated two rendition circuits executed through Lithuania, the first executed by aircraft N724CL in February 2005, the second by aircraft N787WH on 5-6 October 2005.",
"(a) As regards N724CL ’ s circuit in February 2005:",
"“This circuit in February 2005 encompasses the period from the 15th to 20th February 2005 in which two rendition aircraft deployed to Morocco simultaneously.",
"I shall demonstrate the circuit of the aircraft N724CL which embarked here from Gran Canaria to the pickup of the remaining detainees in Rabat - Morocco. It flew the path to Amman - Jordan before flying onward to Vilnius - Lithuania. This is the first of the landings which the Lithuanian authorities themselves evidenced in their documentary submissions of 2011. The aircraft landed in Vilnius on 17 February 2005, the date on which the applicant of ours, the beginning of his secret detention in Lithuania. It departed via Keflavík before returning to its base in the United States.",
"This simple illustration is backed up by a large trench of documentation and in particular it is in respect of these contractor operations that we are able to draw upon the docket of litigation in the United States between two contractors, both of them servicing the CIA ’ s rendition programme. The name of the case in question which is in the records before the Court is Sportsflight Air Inc. [ sic ] versus Richmor Aviation.”",
"(b) As regards the N787WH circuit in October 2005, Mr J.G.S. testified that it had involved the transfer of detainees between the CIA “black sites” in Romania and Lithuania, which had been disguised by using both the so ‑ called “dummy” flight planning and the CIA methodology of “switching” aircraft. The CIA, under its aviation services contract with Computer Sciences Corporation, tasked two rendition aircraft – N308AB and N787WH – with flights to Europe simultaneously.",
"N308AB arrived in Bratislava, Slovakia from Teterboro, USA, while N787WH landed in Tirana, Albania. A “dummy” flight plan from Bratislava to Constanţa, Romania was filed in respect of N308AB but when the plane entered Romanian airspace, the Romanian aviation authorities navigated it to an undeclared landing in Bucharest. The plane collected CIA detainees from Romania. Subsequently, N308AB flew from Bucharest to Tirana on the night of 5 October 2005. The CIA detainees “switched” aircraft in Tirana; they were transferred onto N787WH for the rendition flight. A “dummy” flight plan from Tirana to Tallinn, Estonia was filed in respect of N787WH. Instead, the plane flew to Lithuania and the Lithuanian aviation authorities navigated it to an undeclared landing at Vilnius in the early hours of 6 October 2005. The plane dropped off the CIA detainees for ground transportation to the CIA “black site” in Lithuania. Then the planes departed; N787WH flew to Oslo, Norway and onwards, N308AB made a stopover in Shannon, Ireland and returned to its base in the USA (see also Al Nashiri v. Romania, cited above, § 135).",
"Mr J.G.S. stated, in particular:",
"“In respect of Lithuania I would like to draw attention in particular to the records around the October 2005 flights. On this occasion two aircraft are implicated in the transfer of a single group of detainees. There are records pertaining to N308AB and there are also records pertaining to N787WH. N787WH is a Boeing business Jet, a 737, and as I mentioned it took the place of the earlier N313P aircraft in performing large scale transfers of detainees simultaneously. Among the documents there are emails and other items of correspondence which give an extraordinary insight into the CIA ’ s planning of these operations.",
"If asked how do we know that the deceit was deliberate, how do we know that the disguise was a tactic rather than a facet of in-flight changes, I would point to the documents in this docket which refer explicitly to sleight of hand. They deliberately purport to file flight plans to destinations of which the aircraft has no intention of flying and they include such statements as ‘ no customs help ’ or on occasion ‘ drop all passengers ’ or on occasion ‘ hard arrival ’, which are not legal terms in the planning of international flights; they are rather efforts to circumvent the system of controls and regulations put in place by among others the international civil aviation organisation.",
"This particular circuit, which I will demonstrate, is of great relevance to our proceedings today because it links the detention site in Bucharest - Romania with the detention site in Vilnius - Lithuania and demonstrates how the CIA ’ s tactics to evade accountability had evolved over the course of the programme. Herein we will see not only instances of dummy flight planning, the customary filing of false flight plans but also the use of a new methodology switching aircraft mid operation to avoid the eventuality that the same aircraft appeared in the site of two different places of detention.",
"On this map we have two aircraft which arrived in Europe simultaneously on 5 October 2005. The first N308AB arrived from its base in Teterboro – New Jersey, the second N787WH arrived from Keflavík and landed at Tirana – Albania. Tirana Albania was to be the point at which these two aircraft would converge hence it is marked here as a staging point. Before arriving there, however, the first aircraft N308AB filed a dummy flight plan to the false destination of Constanţa, Romania and then flew to its real destination Bucharest Băneasa airport, where it collected detainees from the Romanian detention site. After its collection it flew to Tirana from Bucharest directly with the prior instruction to drop all packs. This in jargon means the passengers on the plane, explicitly here the crew, the rendition personnel who are responsible for removing, securing and transporting the detainees. In Tirana the crew transferred onto the waiting second aircraft N787WH together with the detainees. The dummy flight plan was then filed for this second aircraft furthering the layers of deceit. Tallinn, Estonia was used as a false destination to enable the flight to enter Lithuanian airspace and land at Vilnius airport in Lithuania.",
"This is the point at which the detainees on board were dropped off, hence the direct link between the ‘ black site ’ in Bucharest and the ‘ black site ’ in Vilnius. Both aircraft thereafter returned towards the United States, N787WH flying via Oslo and northward, N308AB flying via stopover in Shannon back to New Jersey. Again Lithuanian records attest to the landing of N787WH in Vilnius, notwithstanding its false or ‘ dummy ’ flight planning and this document, which also forms part of the records before the court from the Litcargus provider at Vilnius, is the completion of the switching aircraft operation, a typical and short time on the ground in Vilnius in the early hours of the morning in which the detainees were transported by ground to the detention facility in Lithuania.”",
"131. Replying to the judges ’ question about the relation between the above circuit and the applicant ’ s case, Mr J.G.S. testified as follows:",
"“You asked also why did I focus my attention on this pattern of switching aircraft in October 2005 and it is because that operation links two detention sites in European territories, namely the detention site in Romania and the detention site in Lithuania, and illustrates adequately to the Court that there were complex, deliberately deceitful, tactics at play that make it very difficult to follow a particular detainee ’ s path for the transfers that the CIA undertook in moving its detainees from one site to another. That particular joint operation, involving N308AB and N787WH, is an operation to which I have devoted considerable time in documenting, in correlating, collating different information sources and I am confident in pronouncing that as a rendition operation in which persons from Romania were transported via a switching of aircraft in Tirana to the site in Lithuania. At this present time that operation stands as the only other confirmed inward rendition to Lithuania that I have been able to document from material in the public domain. And it is for that reason that I presented it to the Court because it enhances the certainty with which we can see a detention site existed in Lithuania.”",
"132. In reply to the judges ’ question as to whether it could be established that the CIA detention facility in Lithuania was code-named “Violet” in the 2014 US Senate Committee Report and, if so, on what basis, Mr J.G.S. testified:",
"“The Detention Site Violet is the colour code name used to denote Lithuania in the [2014 US Senate Committee] Report. I have reached this conclusion by collating information around specific dates, specific detainees, and specific junctures in the broader CIA programme that are explicitly mentioned and unredacted in the report. I refer in particular to the nexus between different detention sites and the cyclical nature of the programme, such that when one site closed another opened, when one site was demoted in importance another site was promoted, and establishing the identity of Detention Site Violet as Lithuania derives from a deep understanding of both Romania ’ s role under the code name ‘ Black ’, and in particular the role played by Morocco, an authority that is only referred to by a country letter rather than a colour, because it did not act as a detention site or ‘ black site ’ within the CIA structure. But I would direct the Court in particular to pages 139 to 142 of the [2014 US Senate Committee Report], in which the role of Morocco is described extensively as a country which ‘ detains individuals on the CIA ’ s behalf ’ and through a close reading of these passages linked with the evidence I have presented in these and earlier [ Al Nashiri v. Romania ] proceedings, one reaches the incontrovertible conclusion that when the facility in Morocco was finally closed the only possibility is that Detention Site Violet, namely Lithuania, then took the detainees from that country in conjunction with ‘ Detention Site Black ’. In particular a paragraph on page 142, which describes the end of relations between the CIA and Morocco, concludes with the passage that the CIA detainees were transferred out of this country in February 2005 and corresponds precisely with the flight movements, the planning documentation and the detailed insights afforded by the American litigation proceedings, to lead us from Rabat - Morocco to Vilnius - Lithuania.”",
"133. As regards other elements justifying the conclusion that Detention Site Violet was located in Lithuania Mr J.G.S. testified as follows:",
"“I would like now to move on to some of the references in the declassified American documents that might help the Court to place the Lithuanian site in the context of the broader rendition detention and interrogation programme. In respect of Lithuania the most important document at hand is the declassified [2014 US Senate Committee Report], the Feinstein Report as it is sometimes known. Whilst incomplete and whilst heavily redacted, the document nonetheless plays into the aforementioned collation or distillation of multiple documentary sources and it is possible to link the colour coded references to specific detention sites in the report to known and recognisable host countries of ‘ black sites ’ including that of Lithuania.",
"As has been widely reported since this document was declassified the Lithuanian site is associated with the colour code Violet. References in the [2014 US Senate Committee Report] to Detention Site Violet accord completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania. Notably I would point the Court to two sections of the report, pages 96 to 98 and pages 154 to 156. In these two sections the Committee engages in an analysis of the reasons behind both the opening and the closing of Detention Site Violet in Lithuania and it delivers several pertinent observations regarding the question of relations with the host national authorities.",
"It is important first in order to establish this relation to the coding to recognise that Detention Site Violet was created in a separate country to any of the other detention sites mentioned in the report. So, where there is a raft of evidence connecting Detention Site Cobalt to Afghanistan correlating with many of the detentions we know took place there and indeed many of the techniques practised there; Detention Site Green we know to have been Thailand, the place in which Al Nashiri and today ’ s applicant Abu Zubaydah were waterboarded and the only site at which videotaping took place; Detention Site Blue, the first European site at Szymany in Poland to which both today ’ s applicant Mr Zubaydah and Mr Nashiri were transferred upon the closing of the Thai site in December 2002, and as mentioned in earlier [ Al Nashiri v. Romania] proceedings Detention Site Black, the site situated in Romania at which Mr Al Nashiri and others were detained between 2003 September and 2005 November.",
"The reference to a separate country here opens a new territory to the programme. Here we see discussion of political approval of the site which indicates that the same processes were aptly as pertained in Poland and Romania and as were described in the Marty Reports. The same conceptual framework where authorisation was required to situate a detention site in a European country from the highest levels of government. Here we have references in descriptive narrative to how Lithuanian counterpart officials may have been ‘ shocked ’ by the presence of detainees on their territory but ‘ nonetheless ’ approved.",
"We know from both the [US] Senate inquiry and the inquiry undertaken by the Lithuanian Parliament, the Seimas, that there were in fact two projects in Lithuania aimed at providing support for the CIA detention operations. These are referred to in the Lithuanian reports as Project No. 1 and Project No. 2. In the [2014 US Senate Committee Report] these projects are referred to somewhat more obtusely but notably it states that by mid-2003 the CIA had concluded that its completed but still unused holding cell in this country, by which is meant Project No. 1, was insufficient, given the growing number of CIA detainees in the programme and the CIA ’ s interest in interrogating multiple detainees at the same detention site. This sentence is very important in respect of Lithuania because it corresponds precisely with the description of the provenance of Project No. 2 furnished by the Lithuanian Parliament. It states the CIA thus sought to build a new expanded detention facility in the country. The Committee report provides insight into both the opening and the closing of the site referred to in Romania and this is important because it will also help to situate the Lithuanian site in the timeline. Here, as mentioned in earlier proceedings, we learned that Detention Site Black opened in the fall of 2003, the specific date 22 September 2003. We also learn that it closed within a period of only a few days after the publication of the exposé in the Washington Post; namely on 5 November 2005. The Detention Site Black closed. Therefore, the reference to a separate country means a site that endured beyond Detention Site Black in Romania and in fact endured beyond the period at which the secret detention system in Europe was known about, hence my earlier reference. The Lithuanian Detention Site Violet became the longest or latest standing European detention site. ... ”",
"He added:",
"“I want to share the few further insights into operations in Lithuania which come by looking at specific CIA detainee case studies. We have been able definitively to associate three of the CIA ’ s high-value detainees with the site in Lithuania. However, we know that at least five persons were detained there because in the Senate Committee Inquiry Report it refers to one of these men, Mustafa al-Hawsawi, and four others simultaneously being in country. So today I am only in a position to provide references to these three individuals here: the applicant in today ’ s proceedings, the applicant Abu Zubaydah, Khalid Sheikh Mohammed, at the bottom left, who was detained at one time in each of the European sites - in Poland, then in Romania and finally in Lithuania, and the aforementioned Mustafa al-Hawsawi, who became one of the reasons for which the site was closed, as I will illustrate.”",
"134. In reply to the judges ’ question whether the applicant ’ s allegations that he had been transferred to Lithuania on 17 or 18 February 2005 and transferred out of the country on 2 5 March 2006 could be confirmed, Mr J.G.S. testified:",
"“With regard to inward transfer, I can attest that an operation was mandated by the CIA through the air branch of its rendition group to its principal air services/division services contractor to carry out a movement of detainees held in Morocco towards other active ‘ black sites ’ /detention sites, namely those in Romania and Lithuania. I can further attest by analysis of the documents that this operation was executed by using two aircraft. The two aircraft you mentioned, N724CL and N787WH. In my presentation I illustrated the flight of N724CL for the express reason that that aircraft flew, and can be demonstrated to have flown, to Vilnius. And Vilnius is unambiguously the airfield associated with the detention site in Lithuania, the physical location of which, as I have suggested, is undisputed.",
"In my experience each detention site is inexorably connected with one destination airfield, hence the Polish site with Szymany airport, hence the Romanian site with Bucharest Băneasa and in my understanding the Lithuanian site is principally primarily associated with the airfield Vilnius airport, denoted by its code EYVI. That is the reason I chose that flight to illustrate to the Court.",
"However, I cannot rule out the possibility that another airfield may have been used in conjunction with Vilnius in operating in Lithuania, and at the present time there is insufficient evidence in the public domain to make a categorical determination, for example as to the use of Palanga airfield. By way of explanation, the tactical methodologies of the CIA did evolve over time as I have presented to the Court today. This switching aircraft methodology was something which was not used in the early years of the programme, it was rather a later resort. So it is eminently possible that in pursuit of the same objectives absolute secrecy, security of transfer, evasion of accountability, the CIA innovated new methods of transfer which entailed using other airports inside the territory of Lithuania. I cannot rule that out nor can I make a categorical pronouncement as to which of those two aircraft brought Mr Zubaydah to Lithuania.",
"I can, however, state that he was detained there in that last year of Europe ’ s participation in the ‘ black sites ’ programme, and that at this moment the only known and evidenced outward flight from Lithuania was the N733MA flight on 25 March 2006, which engaged in an analogous switching aircraft operation, and carried ultimately the detainees who were left at Detention Site Violet to Detention Site Brown, the newly opened site in Afghanistan, thereby closing the chapter on the Lithuanian site. On that front and again, notwithstanding my recognition that other evidence may yet be revealed, I would feel confident in associating this aircraft with the outward rendition of Mr Zubaydah.”",
"In that context, he also added:",
"“I cannot rule out that there was another form of deceit or sleight of hand at play that led to the appearance of two Lithuanian airports in some of these flight routes. Palanga does not immediately strike me as being an airfield associated with the site because of its geographical distance from Antaviliai, but I cannot rule out that perhaps flights landed there and detainees were then transported onwards by some other means. I do not have categorical information on that question. What I can say is that the flights mentioned in the statement of facts, as I have read it, include two flights in this period in February, between 15 and 20 February 2005, one of which is confirmed to have landed at Vilnius, N724CL on 17 February, the other of which N787WH is recorded as having landed at Palanga. On one of these aircraft the applicant was brought to Lithuania but beyond that categorical certainty is not yet achievable.”",
"As regards the applicant ’ s transfer out of Lithuania, he further stated:",
"“You asked about the destination of his outward flight and it is fairly clear that that was Afghanistan. I would say beyond a reasonable doubt he was taken to Afghanistan when he left Lithuania, because he was one of the fourteen high-value detainees who were transported from Afghanistan to Guantánamo Bay and declared by President George W. Bush to have been held in the CIA programme in September 2006, when he revealed its existence for the first time to the world. So there were no further renditions between March 2006 and September 2006. So I would be confident in concluding that he was taken from Lithuania to Afghanistan and thereafter to Guantánamo, and I believe the records that are before the Court state as to how and when those transfers took place.”",
"135. As regards the applicant ’ s alleged detention at the CIA detention site in Lithuania and the closure of that site, Mr J.G.S. also stated:",
"“Mr Zubaydah does not have a mention by name in [the 2014 US Senate Committee Report] in connection with the Site Violet but the other two detainees cited here, both do. In the case of Khalid Sheikh Mohammed, there is a lengthy description of his detention in multiple different sites, notably in this passage the reference to his being transferred to Detention Site Violet on that earlier switching aircraft circuit in October 2005. He was also held in Lithuania up until the point of the site ’ s closure. Hence his final transfer to Detention Site Brown which was in Afghanistan on March 25, 2006. The passage around Khalid Sheikh Mohammed also talks about how reporting around him accounted for up to 15% of all CIA detainee intelligence reporting, which demonstrates his enduring importance to the purported intelligence gathering objectives of the programme. I find that pertinent because Khalid Sheikh Mohammed was detained in Poland, he was detained in Romania, he was detained in Lithuania, and he stands as a symbol of the centrality of these detention sites in Europe to the overall objectives of the CIA ’ s programme.",
"The third detainee, Mustafa al-Hawsawi is mentioned in the report in relation to his need for medical care. In this passage here which comes from the later section, pages 154 -156, it states that the CIA was forced to seek assistance from three third ‑ party countries in providing medical care to Mustafa al-Hawsawi because the local authorities in Lithuania had been unable to guarantee provision of emergency medical care. And as is stated explicitly in the Senate Committee ’ s Report, based upon cables sent from the base at Detention Site Violet, these medical issues resulted in the closing of the site in this country in the date March 2006. It was at that point that the CIA transferred its remaining detainees to Detention Site Brown.",
"In my view these passages, when read in conjunction with the other documents, constitute a fairly comprehensive record of the reasoning and indeed the methodology behind the closure of the Lithuanian site. Furthermore, subsequent packet passage refers to the overall number of persons in the programme at 1 January 2006 as having been twenty-eight. It states that these twenty-eight persons were divided between only two active operational facilities at that time. One was Detention Site Orange in Afghanistan but importantly the other was Detention Site Violet, the Lithuanian site. The date references here, corresponding with the different flights we have had coming in and later going out, place Detention Site Violet in that time period as the hub of detention operations.”",
"136. In response to the Government ’ s question as to whether he could attribute a colour code to each CIA “black site” mentioned in the 2014 US Senate Committee Report and whether there had been any locations with no colour codes, Mr J.G.S. stated:",
"“Yes, I can attribute colour codes as mentioned in the Senate Committee Report to each of the detention locations that had the character of a CIA ‘ black site ’. In order to be clear, there were some places used by the CIA that did not meet the precise criteria of a ‘ black site ’, a customised high-value detainee facility. Those criteria were set out in the Inspector General ’ s Report. I indicated it in my presentation, and among the criteria were the exclusive operation by CIA agents and contractors without the participation of foreign counterparts. The criteria for a ‘ black site ’ are in fact enumerated in several of the CIA documents and those sites in the Senate Committee Report were all accorded a colour code. So, for example, whilst Lithuania is associated with Violet, Romania is associated with Black, Poland is associated with Blue, Thailand is associated with Green, in Afghanistan there are several sites, notably Cobalt, Orange and Brown. At Guantánamo also there are multiple sites, notably Maroon and Indigo in the report. But Morocco, a country in which CIA detainees were housed at several points in the programme, does not have its own colour code because it did not meet the criteria as a customised high-value detainee facility. Specifically, Moroccans participated in the detention of CIA HVDs on their territory and they housed those persons within existing detention operations in Morocco, as is described in the report. So I can attribute colour codes to every one of the ‘ black sites ’ and I can also further identify countries that did not have a colour code, but which bore characteristics unique to one country and through the collation of other data sources allow me to categorically pronounce where they were situated. I am not alone in this endeavour, I can say that, having met with several of those involved in the Senate inquiry process, I believe that most reasonably informed observers would be able to associate now the publicly available information with at least one or more of those colour codes. I am not alone, this is not at a simple personal conclusion. It is one which is widely shared, not contradicted across the community of investigators who have occupied themselves with these matters.”",
"137. Replying to the judges ’ questions as to whether it could be established that Abu Zubaydah had been secretly detained at Detention Site Violet and what was the physical location of that site on Lithuanian territory, Mr J.G.S testified:",
"“The report does not mention the applicant Mr Zubaydah explicitly by name in connection with the Detention Site Violet. However, through an intimate familiarity with the chronology of his detention, much of which I have presented in evidence in these proceedings and the prior proceedings, I have reached the conclusion that there is only one place he could have been in the early part of 2005 and that that place was indeed Morocco. Furthermore, having closely analysed the text regarding Morocco in the report, some of which derives from cables declassified correspondence and other sources which I have also engaged with, I know that the transfers out of Morocco in 2005 went to other active ‘ black sites ’, that one of these was ‘ Detention Site Black ’ in Romania, but that there was also another one in a separate country, to use the terms of the report and based on the answer I gave to Your Honourable colleague Judge Sicilianos, this other country was Lithuania. Because the applicant Mr Zubaydah did not arrive in Romania, ‘ Detention Site Black ’, which I know based upon my years ’ long investigations into the operations of that site much of which I have presented to the Court, the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights described in February 2005. Therefore, on the balance of probabilities, I believe it is established that Abu Zubaydah was secretly detained at Site Violet.",
"As to the physical location of the facility in Lithuania it is my understanding that there is no dispute that there was a facility purpose-built, that this was the converted site of the horseback riding academy at Antaviliai, that the CIA oversaw the construction afresh, that this place was referred to as Project No. 2 in the Seimas parliamentary inquiry in Lithuania, and that the evidence gathered both through the Senate Inquiry and through the Lithuanian authorities ’ own inquiries is in fact perfectly convergent on this point.",
"I should also note that esteemed colleagues in the Committee for Prevention of Torture have visited the site and chronicled many aspects of it, which accord perfectly with the description of secret detention facilities I am familiar with from the American documentation. So as to the physical location, I think it is established beyond a reasonable doubt that this place was the ‘ black site ’ on the territory of Lithuania.”",
"138. In response to the judges ’ question as to what extent, in comparison to Mr Abu Zubaydah ’ s case against Poland, or to Al Nashiri v. Poland and Al Nashiri v. Romania, he considered his conclusions in the present case to be based on the same elements of certainty, Mr J.G.S. stated:",
"“Thank you, Your Honour, and I appreciate very much the focus on my choice of words because I have attempted, wherever possible, to be quite precise and circumspect in the pronouncements I make with regards to issues of fact. You are quite correct that in respect of this same applicant in his application against Poland I was able to make categorical pronouncements against a burden of proof beyond a reasonable doubt, that he was transferred into Poland on a specific date, that he was subjected to specific forms of treatment, that he was held together with Mr Nashiri and various other aspects, because they were described chapter and verse in documents declassified and made public by the CIA itself, notably the Inspector General ’ s Report. In respect of Romania, again by virtue of its earlier start date of operations, it was included by reference in the Inspector General ’ s inquiry and furthermore features prominently in the [US] Senate ’ s inquiry. 2003, according to the Senate, is the year in which the most high-value detainees persons involved in this programme were captured and interrogated, so understandably, since the Romanian site was the hub of operations, the most important ‘ black site ’ at that time, it is possible to glean a higher quality and volume of evidence from the declassified documents in respect of Romania, hence being able to associate more high-value detainees, more types of treatment as practised on the territory, and indeed a greater degree of certainty when pronouncing on questions of fact in respect of Romania.",
"As I mentioned in the presentation, Lithuania was the latest of the European sites to be opened and therefore received detainees at a later phase of their detention cycles or, alternatively, received fewer detainees whose cases were subjected to the scrutiny of the oversight bodies I have mentioned. There is no Inspector General reference to Lithuania because at the moment when he published his special review in May 2004, the site in Lithuania had not yet been opened. In the Senate Report there are extensive references to Detention Site Violet, but naturally because the preponderance of detainees and their interrogations had taken place in the earlier years of the programme, it is not possible to find as many specific or explicit date references or references to specific renditions as is the case for the other two countries.”",
"139. Lastly, in reply to the applicant ’ s counsel question as to whether, based on his years as investigator, he was satisfied or was in doubt as to Abu Zubaydah ’ s presence in Morocco, Afghanistan and Lithuania at times referred to by him, Mr J.G.S. testified:",
"“Yes, I am satisfied as to the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention site in Morocco was cleared, thereafter on the territory of Lithuania in the detention site coded as ‘ Violet ’ and thereafter on the territory of Afghanistan in the detention site coded as ‘ Brown ’. ”",
"140. Mr Black, in reply to the judges ’ question regarding the alleged existence of the CIA detention facility in Lithuania, in particular whether it could be established beyond reasonable doubt that it had operated in Lithuania and, if so, whether its location could be established, stated:",
"“The answer to both parts of that question is unequivocally yes. It is certainly the case beyond reasonable doubt that the CIA established a detention centre in Lithuania. It is certainly the case beyond reasonable doubt that that facility – the facility that they established was in fact used for the purpose of holding prisoners – was in the warehouse outside the village of Antaviliai, a little bit to the north-east of Vilnius. So the issue of the evidence that allows me to make these statements and to say that they are beyond reasonable doubt is necessarily fairly lengthy and it rests on a number of key points which I shall do my best to summarise as concisely as possible.",
"The Senate Report clearly indicated the times of operation of a site which it called Violet, which operated from February 2005 until March 2006. The site was in a country where there had previously been another site established that was in fact never used. This is discussed in the Senate Report. This detail of there having been two sites, one never used and one which was used between February 2005 and March 2006, corresponds accurately with the details given in the Lithuanian Parliamentary Committee ’ s investigation published in 2009, where they state very clearly that their partners, by which they mean the CIA, equipped two sites: one that was not used and one that was used for a purpose which the Parliamentary Committee does not reach a firm conclusion on, at least in its printed document. Now, it is further the case that my research has established flights going into and out of Lithuania precisely at the times that prisoners are said to have been moved into and out of the facility in Violet and that this corresponds with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006. And it is further the case that all these flights are contractually related, that is they are related by their contract numbers, their task order numbers, their invoice numbers and other details to an overall contract, that – we have been able to establish beyond reasonable doubt – was used by the CIA, by the US Government, for the purpose of outsourcing the movement of prisoners. I think that covers the essentials of how we can identify the Violet, the country that site Violet was in, with Lithuania.",
"In terms of the precise circumstances of the building in Antaviliai, it is clear from documents that were gathered by the Parliamentary Committee in Lithuania, as well as from my own field researches – around that area I made several trips to that place in 2011-2012 to interview people around there – it is clear from those interviews and those documents that that building was essentially bought by a company and that Americans were in it, were fitting it out, were then guarding it, that vehicles were coming and going with tinted windows, there was one person living in the vicinity who called this ‘ certain emptiness ’, was the phrase he used that settled over the site at the time. The Parliamentary Report is quite clear that the CIA were occupying the building and it is also quite clear that Lithuanian officers did not necessarily have access to the entire building or if they did have access to it they did not necessarily take advantage of that access. It is also clear that the planes which were arriving in Lithuania, pursuant to the contracts that I mentioned, were being met by a very special regime of, there is a witness statement, that was made by an employee of the border guards and transmitted by his boss – whose name I believe is Kasperavičius, although probably I am pronouncing that wrong – in which he describes the landing of a plane on 6 October 2005 in Vilnius, and he describes how he was told by State security officials that he was not allowed to carry out his normal inspections of the plane and that, although he was kept away from the plane by a security coordinator, he was able to see in the distance a vehicle driving away from the plane. Now new documents which have been released very recently, earlier this month by the CIA pursuant to information requests by the American civil liberties union, allow us to clarify today that that plane was transporting Khalid Sheikh Mohammed into Lithuania. Previously in the dossier that I submitted to the prosecutor in January 2015, I said that it was not clear whether he came on the February flight or the October flight. It is now clear that he came on the October flight. I am sorry that it is a rather long-winded answer to your question, but I think that it has covered most of the main points that I think are necessary and sufficient to show that there was a prison in Lithuania and that it was in the site in Antaviliai.”",
"141. In reply to the judges ’ question whether it could be established beyond reasonable doubt that Mr Abu Zubaydah had been secretly detained in Lithuania, Mr Black testified:",
"“I have no doubt that Site Violet was in Lithuania and I have no doubt that prisoners were held in it, including, as I said before, Khalid Sheikh Mohammed, also including others who I believe, on the basis of my professional opinion, include Abu Zubaydah. To explain why I believe Abu Zubaydah was held in Lithuania, we need to retrace our steps in a way so that I can explain to you the logical sequence of events that leads me to this conclusion. ...",
"We ... know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005. Now again, prima facie, it is possible that Abu Zubaydah, being in Morocco in February 2005, was moved either to Romania or to Lithuania. But again, the statement which I take to be accurate, that he was not in Romania in or prior to the Summer 2005, means that logically he must have gone to Lithuania on that flight on 18 February 2005. I can explain momentarily why I believe he was on N787WH and not on N724CL but if you do not mind I will come back to that.",
"There is a further indicator of his presence in Lithuania, specifically soon after February 2005 – which is new research that has been done by my colleague, Sam Raphael, at the rendition project which has not yet been published, I have seen his work product and I have worked with it and I believe it will be published later this year – this research indicates that a cable relating to Abu Zubaydah was sent in March 2005, although the provenance of the cable is redacted, the length of the redaction is consistent with it coming from Lithuania and inconsistent with the coming from either of the two possible sites at the time which are in Romania or in Afghanistan. Cumulatively I take the total effect of all these bits of evidence to my satisfaction to say that beyond reasonable doubt Abu Zubaydah was held in Lithuania, starting in February 2005.”",
"142. As regards the date and the flight on which the applicant had been transferred from Morocco to Lithuania, Mr Black testified:",
"“The reason I believe that he was flown in on the plane on 18 February rather than that on 17 February is simply that when you analyse the logs that we published for the 17 February flights, what appears is that everyone on that plane actually got off it in Jordan prior to its landing in Lithuania. So I do not think that the N724CL plane, that went via Jordan to Vilnius, transported prisoners into Lithuania. What it did in Jordan I do not know. I think it is also clear, it follows subsequently, that everybody who was held in Lithuania was moved out in March 2006, on 25 March 2006. I think perhaps it was previously unclear, a couple of years ago, where their destination was, but it is now clear – and it has been corroborated by the Senate Report – that the country to which they were moved was Afghanistan.”",
"143. In his reply to the judges ’ further question about the flight of N787WH on 18 February 2005, identified as being the one on which the applicant had been transferred to Lithuania, Mr Black confirmed that, in his view, on the basis of evidence this had been established beyond reasonable doubt, adding that “to provide an alternative narrative one ha[d] to enter a kind of world of absurdity”.",
"When a similar question regarding the dates on which the applicant had been transferred into and out of Lithuania was put by the Government – whose representatives also asked how relevant the N787WH October 2005 flight was in the context of the applicant ’ s alleged rendition – Mr Black stated:",
"“So to clarify, I believe that Abu Zubaydah was flown into Lithuania on N787WH on 18 February 2005. I believe that he was flown out of Lithuania on N733MA and N740EH on 25 March 2006. The reason I mention the October 2005 flight is because it is to that flight that we can firmly correlate, again in my opinion beyond reasonable doubt, the arrival of Khalid Sheikh Mohammed in Lithuania and I mention it because (a) it provides more evidence of the pattern of conduct that was engaged by and in Lithuania and (b) because it is specifically for that flight that we have the data relating to the very special, as it were, welcoming procedures that the flight had. Although it has been clarified I believe by the Lithuanian Parliamentary Committee that these same procedures were also in effect for other flights, but I mention that one because the document exists that describes very clearly what these procedures were. So I believe it is important holistically taking into account all the evidence that is available to us – I believe that flight is another important part of the puzzle.”",
"144. In response to the Government ’ s further question whether the 2014 US Senate Committee Report – on which his conclusions were based –indicated the years and exact months of the opening and closure of Detention Site Violet, Mr Black stated:",
"“If I remember rightly, the Senate Report indicates the year and the months are generally redacted. Because of the way in which they are redacted it is possible to deduce the number of letters, so in a sense it is easy to say which is a long month and which is a short month. One can tell that, let ’ s say, it might be February but not June or so on. Now, the weights of these redactions has to be calculated in accordance when they correlate other public information. So, for example, the new document released of Khalid Sheikh Mohammed ’ s Combatant Status Review Tribunal, is consistent with the redacted Senate Report but it also adds new unredacted information, to the extent that it gives the months of October and March, which are what our reconstruction initially was. And the same can be said of the redacted February. In one place there is a word that is the same length as February that has been redacted and in another place it says ‘ in early 2005 ’. We have the flights that are the only flights at that point that correspond to it. Taking the whole weight of those and other indicators, to me, that is the only solution that makes any sense is the solution that indeed the site in Lithuania operated at the times that we have stated and was serviced by the flights that we have stated.”",
"145. In reply to the Government ’ s question as to whether the 2014 US Senate Committee Report did state that the national institutions had refused high ‑ value detainees access to medical institutions, Mr Black stated:",
"“Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities. The host country had decided that it was not going to do that. The word that is used in the facility audit is that it ‘ reneged ’. I do not think that word is used in the Senate Report.”",
"(iii) “Detention Site Violet” in the 2014 US Senate Committee Report",
"146. The 2014 US Senate Committee Report refers to “Detention Site Violet” in several sections concerning various events.",
"147. In the chapter entitled “The CIA establishes DETENTION SITE BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to Detention Site Violet reads as follows:",
"“[REDACTED] In a separate [from country hosting Detention Site Black], Country [name blackened], the CIA obtained the approval of the [REDACTED] and the political leadership to establish a detention facility before informing the U.S. ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to brief the ambassador, Country [REDACTED] ’ s [REDACTED] and the [REDACTED] probably would ask the ambassador about the CIA detention facility. After [REDACTED] delayed briefing the [REDACTED] for [number blackened] months, to the consternation of the CIA Station, which wanted political approval prior to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official outside of the [REDACTED] aware of the facility, was described as ‘ shocked ’, but nonetheless approved.",
"[REDACTED] By mid-2003 the CIA had concluded that its completed, but still unused ‘ holding cell ’ in Country [REDACTED] was insufficient, given the growing number of CIA detainees in the program and the CIA ’ s interest in interrogating multiple detainees at the same detention site. The CIA thus sought to build a new, expanded detention facility in the country. The CIA also offered $ [one digit number blackened] million to the [REDACTED] to ‘ show appreciation ’ for the [REDACTED] support for the program. According to a CIA cable however [long passage blackened]. While the plan to construct the expanded facility was approved by the [REDACTED] of Country [REDACTED], the CIA and [passage redacted] developed complex mechanisms to [long passage REDACTED] in order to provide the $ [one digit number blackened] million to the [REDACTED].",
"[REDACTED] in Country [REDACTED] complicated the arrangements. [long passage REDACTED] when the Country [REDACTED] requested an update on planning for the CIA detention site, he was told [REDACTED] – inaccurately – that the planning had been discontinued. In [date REDACTED], when the facility received its first detainees, [REDACTED] informed the CIA [REDACTED] that the [REDACTED] of Country [REDACTED] ‘ probably has an incomplete notion [regarding the facility ’ s] actual function, i.e., he probably believes that it is some sort of [REDACTED] center.”",
"148. In the chapter entitled “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘ Inexperienced, Marginal, Underperforming ’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘ Ongoing Problem ’ ”, the section referring to Detention Site Violet reads as follows:",
"“[REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility [REDACTED] in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.”",
"149. In the chapter entitled “Press Stories and the CIA ’ s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the disclosure regarding CIA secret prisons in Europe published in the Washington Post and the closure of Detention Site Black and Detention Site Violet reads as follows:",
"“In October 2005, the CIA learned that the Washington Post reporter Dana Priest had information about the CIA ’ s Detention and Interrogation Program, [REDACTED]. The CIA then conducted a series of negotiations with The Washington Post in which it sought to prevent the newspaper from publishing information on the CIA ’ s Detention and Interrogation Program.",
"...",
"After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded the closure of DETENTION SITE BLACK within [REDACTED two-digit number]. The CIA transferred the [REDACTED]| remaining CIA detainees out of the facility shortly thereafter.",
"...",
"[long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee ’ s medical emergency would be handled. While the CIA understood the [REDACTED] officers ’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘ willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care ’. After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED].",
"...",
"The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED].",
"...",
"In early January 2006, officials at the Department of Defense informed CIA officers that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA detainees at the U.S. military base at Guantánamo Bay, Cuba. At the time, the CIA was holding 28 detainees in its two remaining facilities, DETENTION SITE VIOLET, in Country [REDACTED], and DETENTION SITE ORANGE, in Country [REDACTED]. In preparation for a meeting with Secretary of Defense Rumsfeld on January 6, 2006, CIA Director Goss was provided a document indicating that the Department of Defense ’ s position not to allow the transfer of CIA detainees to U.S. military custody at Guantánamo Bay ‘ would cripple legitimate end game planning ’ for the CIA.”",
"2. Detention and treatment to which the applicant was subjected",
"150. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention.",
"In that regard he relied, among other things, on his own description of his experience in CIA custody and conditions of detention, as related in the 2007 ICRC Report. The report was based on interviews with the applicant and thirteen other high-value detainees, including Mr Al Nashiri, after they had been transferred to military custody in Guantánamo (for more details, see paragraphs 29 6 -29 9 below).",
"151. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody “regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003”.",
"The applicant ’ s account of the abuse that he endured in CIA custody as rendered in the 2007 ICRC Report reads, in so far as relevant, as follows:",
"“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.",
"I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.",
"I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.",
"This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations.",
"During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day.",
"I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.”",
"152. A more detailed description of various methods of ill-treatment inflicted on the applicant as related in the 2007 ICRC Report and the 2004 CIA Report can be found in Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107).",
"153. In connection with the fact-finding hearing, the applicant also produced an extract from partly declassified transcripts of hearings before the Combatant Status Review Tribunal in Guantánamo, held on 27 March 2007, during which he had related his treatment in CIA custody. That document was released on 13 June 2016. It reads, in so far as relevant, as follows:",
"“In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek. Do not make the mistake the CIA has made when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn ’ t care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me to a secret location. They transferred me in a way that a normal, ordinary person would be embarrassed to be treated. They even prevented me from going to the bathroom at least five times, and sometimes I was deprived from being able to go to the bathroom for 24 to 36 hours when we travelled. ... They did this to me because they thought I was the number three leader in al Qaida and a partner to USAMA BIN LADEN, as is mentioned in the unclassified Summary of Evidence against me.",
"...",
"First thing, during I ’ m still – I was in – still in the hospital. They would ask me and I would answer. From the hospital, after, I don ’ t know how many months, how many times. They take me to their secret place. From that lime I was naked. And I think you know how much it is the bad for us as the Muslims, and I think it is problem for you as Christian or Jew. I don ’ t know but at least for us, it was very bad thing. I was too weak; they make me sleep in a metal bed, [via Language Analyst] a medical metal bed. It look like this. Naked and feel cold and this still bleeding [pointing to the inside of left thigh urea] from this area. ... So it take days and days, too cold place, naked and position sleeping. After this, they put me in the chair – same circumstance – naked, too much cold, no food, only Ensure [Language Analyst clarifies Ensure – Force feeding Ensure]. ...",
"And they not give me chance, all this, maybe one-two week, I don ’ t know the time. No food, no sleep, not allowed to sleep. When I feel sleep, they shake me like this [shaking chair] or make me stand. But all that time I am sitting twenty-four hours, only sorry again, when I use the toilet, bucket, not real toilet, bucket near of me and in front of them, and from that time I feel shy ...",
"So all that time they ask me, they talk. One person talk and they leave another two, another two another two, no sleeping, no food, nothing, and cold, cold. ... After time, I don ’ t know how many, it ’ s weeks and weeks, they give me chance to sleep once. Maybe once in the two months, two weeks. I don ’ t know exactly, once a month. I again make me sit on the floor. Also cold, naked, try to cover my private part, because the shackles even I can ’ t because kind of chair like this but it have [via President and Language Analyst arm rest]. So I tried to cover nothing and start makes me stand hours and hours. ...",
"I request, I tell him, ‘ do as you like; tell me the time I want to pray. No chance to pray. Give me the time and not need water. I need pray without cleaning. I should make some cleaning before I pray ’. I make request number of time. Nothing. After this put me in the big box same my tall but it ’ s not and they put the bucket with me. Toilet bucket. I had no chance to sit, only in the bucket and because the bucket its not have cover or sometime they put cover I found myself inside the bucket like this [trying to move and show while in chair]. And the place too close; I take hours and hours ‘ til he came and save me from the bucket, again and again sorry it full of urine. And start from that time-time and time put me in this and put me in small box. I can ’ t do anything. I can ’ t sit stay do anything and hours and hours. Start beat me in the wall ... Beat me badly in the back, in my back, in my head. Last thing, of course same thing use again and again, different time, plus they put me in the same [via Language Analyst] a medical bed. They shackle me completely, even my head; I can ’ t do anything. Like this and they put one cloth in my mouth and they put water, water, water. ...",
"Last thing they do they – I am still shackled. I was naked; I am naked; they bring the [via Language Analyst] interrogator, female interrogator in front. I was naked, like this. ...",
"But the truth after this after the second – or second – after one complete year, two year, they start tell me the time for the pray and slowly, slowly, circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter. ... ”",
"154. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Lithuania:",
"“The bulk of the enhanced interrogation to which Mr Zubaydah was subjected is clearly documented as having taken place in Thailand. There he was waterboarded and there he was subjected to a grotesque form of experimentation whereby unauthorised and sometimes barely authorised techniques were practised upon him as the CIA developed its early rules and regulations as to how detainees could lawfully be interrogated. By the time he reached Poland, however, he had been declared compliant. So it is not possible to state with certainty which additional techniques were used on him in Europe.”",
"In reply to the judges ’ further question regarding that matter, he stated:",
"“It is not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania, because, again, they are not explicitly described in any of the reports available to us in the public domain. However, I would be prepared to state that the conditions of confinement in the ‘ black site ’ in Lithuania alone pass a threshold that in our human rights protection culture, signified by the European Convention on Human Rights, amounts to a violation of Article 3. There are, by routine and described in documents, practices such as sensory deprivation, sleep deprivation, denial of religious rights, incommunicado detention, indefinite detention on a prolonged basis, as well as a variety of conditioning techniques, as the CIA calls them, which in any other case would themselves be considered forms of ill-treatment. Here they do not even warrant mention in the reporting, because they had become commonplace, but I would not wish for the absence of explicit descriptions of waterboarding or other EITs to be taken as a sign that he was not ill-treated during his time in Lithuania. And I should also point out that, having been detained at that point for more than three years and even up to four years in the totality of his transfer through the sites, there must have been a cumulative effect to the ill-treatment which he underwent at the hands of his captors.”",
"155. Mr Black testified as follows:",
"“... [I]t is true that relatively there is less information about treatment of prisoners in the CIA detention programme in 2005-2006 than there is in the previous years. There are a few exceptions to this. The recently declassified Memorandum from the CIA ’ s Office of Medical Services, which is part of the batch of the records declassified earlier this month, is dated December 2004. It comes into force directly prior to the time that – I take - Abu Zubaydah to have been rendered into Lithuania. This document describes basically the full range of enhanced interrogation techniques, in other words it makes clear that as of December 2004 and thus into 2005, that this full range of techniques is available, it is on the menu. In terms to what extent these techniques were used, we have relatively few indications but there are a couple that I think are worth mentioning. The Senate Report states that there are several occasions on which for example the CIA failed to adhere to his own guidelines in keeping naked prisoners in cold conditions. The guidelines are set out in the Memorandum that I just mentioned, the December 2004 Office of Medical Services Memorandum. The Senate Report says that after that Memorandum, going up until the last time it cites is December 2005, there were prisoners who were being held in colder conditions than what this Memorandum sanctioned. Likewise there were prisoners who were captured in 2005, including Abu Faraj al-Libbi, whom we know from the Senate Report was exposed to lengthy sleep deprivation. Beyond that I do not have any further information about precise conditions, although it is clear – it has been reiterated by the recent batch of declassified documents – that during this time 2005 – 2006, prisoners continued to be held in solitary confinement, that is clear. It is also clear that prior to their arrival in the last site in Afghanistan, which was in March 2006, they did not have any access to natural light. The first time they had access to natural light was following that arrival in March 2006. That is pretty much all I can say on the topic.”",
"156. The 2014 US Senate Committee Report states that “from Abu Zubaydah ’ s capture ... to his transfer to Department of Defense custody on September 5, 2006, information provided by Abu Zubaydah resulted in 766 disseminated intelligence reports”, of which ninety-five were produced during the initial phase of his detention in April and May 2002 (which included a period during which the applicant was on life support and unable to speak) and ninety-one during the months of August and September 2002.",
"E. The applicant ’ s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"157. In his initial submissions the applicant maintained that after he had been transferred by extraordinary rendition out of Lithuania, he had been detained in an undisclosed facility in a third country, from where he had later been transferred to US custody at Camp 7 at the US Naval Base at Guantánamo Bay, Cuba.",
"158. As stated above, according to the experts, on 2 5 March 2006 the applicant was transferred from Lithuania to Afghanistan via a double-plane switch in Cairo and was subsequently detained at the CIA ’ s only remaining detention facility – Detention Site Brown (see paragraphs 133-134, 138 and 140-144 above).",
"159. The 2014 US Senate Committee Report refers to Detention Site Brown in the context of rendition and secret detention of Khalid Sheikh Mohammed (referred to as “KSM”) as follows:",
"“KSM was transferred to DETENTION SITE [REDACTED] on [day and month REDACTED] 2005, to DETENTION SITE BROWN on March [two-digit date REDACTED] 2006, and to U.S. military detention at Guantánamo Bay, Cuba, on September 5, 2006.”",
"160. The 2014 US Senate Committee Report states that the applicant “was transferred to U.S. military custody on September 5, 2006.”",
"F. The applicant ’ s detention at the US Guantánamo Bay facility since 5 September 2006 to present",
"161. Since 5 September 2006 the applicant has been detained in the US Guantánamo Bay Naval Base in the highest security Camp 7 in – as described by his lawyers – “extreme conditions of detention”.",
"Camp 7 was established in 2006 to hold the high-value detainees transferred from the CIA to military custody. Its location is classified. It currently holds fifteen prisoners, including the applicant and Mr Al Nashiri.",
"Visitors other than lawyers are not allowed in that part of the Internment Facility. The inmates are required to wear hoods whenever they are transferred from the cell to meet with their lawyers or for other purposes. The applicant is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family.",
"162. The Inter-American Commission on Human Rights ’ Report “Towards the Closure of Guantánamo”, published on 3 June 2015, describes general conditions in Camp 7 as follows:",
"“120. Although progress has been made to improve conditions of detention at Guantánamo, there are still many areas of concern. The Inter-American Commission notes in this regard that detainees at Camp 7 do not enjoy the same treatment accorded to other prisoners; that health care faces many challenges, in particular given the ageing population at Guantánamo; and that religion is still a sensitive issue. Further, the IACHR is especially concerned with the suffering, fear and anguish caused by the situation of ongoing indefinite detention, which has led to several hunger strikes as a form of protest and, in some extreme cases, to the drastic decision by prisoners to end their lives.",
"...",
"122. The Inter-American Commission has received troubling information regarding prison conditions at Camp 7, a single-cell facility currently used to house a small group of special detainees, known as ‘ high-value detainees ’. These detainees are reportedly held incommunicado and are not subject to the same treatment accorded to other prisoners. On May 20, 2013, a group of eighteen military and civilian defense counsel representing the ‘ high-value detainees ’ sent a joint request to Secretary of Defense Charles Hagel to improve the conditions of confinement in Guantánamo. They pointed out that these detainees are not permitted to contact their families by telephone or video; that their access to religious materials has been restricted (such as the sayings and descriptions of the life of the Prophet Mohammed); that they have limited recreational opportunities; and that they are not permitted to participate in group prayer, contrary to the entitlements of other detainees.",
"...",
"136. The Inter-American Commission considers that the conditions of confinement described above constitute a violation of the right to humane treatment. Further, in order to guarantee that prisoners ’ rights are effectively protected in accordance with applicable international human rights standards, the State must ensure that all persons deprived of liberty have access to judicial remedies. The IACHR notes with deep concern that prisoners at Guantánamo have been prevented from litigating any aspect of the conditions of their detention before federal courts, which constitutes per se a violation of one of their most fundamental human rights. This point, as well as some recent developments regarding this issue, will be assessed in the chapter on access to justice. Further, as it will be addressed below, detainees ’ lack of legal protection and the resulting anguish caused by the uncertainty regarding their future has led them to take the extreme step of hunger strikes to demand changes in their situation.”",
"163. The applicant has not been charged with any criminal offence. The only review of the basis of his detention was carried out by a panel of military officials as part of the US military Combatant Status Review Tribunal on 27 March 2007 (see also paragraph 15 3 above). The panel determined that he could be detained.",
"164. The applicant is not listed for trial by military commission. He is one of the high-value detainees who remain “in indefinite detention” (see also paragraph 80 above).",
"G. Psychological and physical effects of the HVD Programme on the applicant",
"165. According to the applicant, as a result of torture and ill-treatment to which he was subjected when held in detention under the HVD Programme, he is suffering from serious mental and physical health problems.",
"The applicant ’ s US counsel have been unable to provide many of the details of his physical and psychological injuries because all information obtained from him is presumed classified. The lawyers have stated that publicly available records described how prior injuries had been exacerbated by his ill-treatment and by his extended isolation, resulting in his permanent brain damage and physical impairment.",
"The applicant is suffering from blinding headaches and has developed an excruciating sensitivity to sound. Between 2008 and 2011 alone he experienced more than 300 seizures. At some point during his captivity, he lost his left eye. His physical pain has been compounded by his awareness that his mind has been slipping away. He suffers from partial amnesia and has difficulty remembering his family.",
"H. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts",
"166. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 2 4 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan, and Detention Site Black was identified as having been located in Romania (see also paragraphs 12 2 and 132-145 above; see also Al Nashiri v. Romania, cited above, § 159 ).",
"I. Parliamentary inquiry in Lithuania",
"167. The facts set out below are based on the Annex to the Seimas ’ Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” (“CNSD Findings”; see paragraph 173 below), a document which contains a comprehensive description of a parliamentary investigation conducted in Lithuania in 2009 ‑ 2010 in the context of the alleged existence of a CIA secret detention facility in the country.",
"168. On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (“the CNSD” or “the Committee”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed.",
"169. On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country.",
"170. On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had “indirect suspicions” that it could have been in Lithuania.",
"1. The Seimas investigation and findings",
"171. On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory.",
"The following questions were posed to the CNSD:",
"(1) whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania;",
"(2) whether secret CIA detention centres had operated on the territory of the Republic of Lithuania;",
"(3) whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania.",
"172. While conducting the parliamentary investigation, the CNSD interviewed, either orally or in writing, fifty-five individuals who might have been aware of information or who declared that they were aware of information relating to the issues under investigation. The Committee interviewed politicians, civil servants and officers who had held office between 2002 and 2005 or at the time of the investigation, including, among others, the Presidents of the Republic, the Speakers of the Seimas, the Prime Ministers, the Members of the European Parliament, the Ministers of National Defence, Foreign Affairs and the Interior, the Vice Minister of the Interior, the Commanders of the Armed Forces, the Chairmen and members of the Seimas Committee on National Security and Defence and the Seimas Committee on Foreign Affairs, the Directors and the Deputy Directors of the State Security Department (“SSD”), the Director and the Deputy Directors of the Second Investigation Department under the Ministry of National Defence, the Commanders and the Deputy Commanders of the State Border Guard Service at the Ministry of the Interior (“SBGS”), advisers to the Presidents of the Republic, the Director of the Civil Aviation Administration, the Director of Vilnius International Airport and the Aviation Security Director of Vilnius International Airport.",
"173. In addition, requests for submission of information in writing were addressed to the various ministries, the civil aviation administration, the SBGS, Vilnius International Airport, the Customs Department and other authorities. Requests were also submitted to the international organisation Amnesty International, Senator Dick Marty and, with the assistance of the Ministry of Foreign Affairs, the relevant authorities in the United States. The authorised representatives of the latter replied orally.",
"In the course of the parliamentary investigation, some facilities and premises were inspected.",
"174. On 19 January 2010 the Seimas adopted Resolution No. XI-659, whereby it endorsed the CNSD Findings, which, in so far as relevant, read as follows:",
"“ 1. Were CIA detainees subject to transportation and confinement on the territory of the Republic of Lithuania?",
"According to the data of the state enterprise Oro navigacija [Air Navigation], in 2002-2005 the US aircraft referred to in the media and official investigations of the European Parliament as aircraft used to transport CIA detainees, i.e. N85VM (GLF4), N2189M (C-130), N8183J (C-130), N8213G (C-130), 510MG (GLF4), N313P (Boeing 737), No N379P, (GLF5), N1HC (GLF5), crossed Lithuania ’ s airspace on 29 occasions. These data were presented on 28 April 2006 when preparing a reply to an inquiry by Dick Marty, Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, regarding the numbers of 41 aircraft indicated therein.",
"In the course of the investigation, the Committee established that three occasions of crossing of Lithuania ’ s airspace were omitted in the mentioned reply to ... D. Marty ... and in the data provided by the state enterprise Oro navigacija :",
"( 1) CASA C-212 N96IBW, landed in Palanga on 2 January 2005;",
"( 2) Boeing 737 N787WH, landed in Palanga on 18 February 2005;",
"( 3) Boeing 737 N787WH, landed in Vilnius on 6 October 2005.",
"In the course of the investigation, with a view to verifying whether the CIA-related aircraft indicated in the material of the Temporary Committee of the European Parliament landed at Lithuania ’ s airports and whether the enterprises referred to in the material made financial settlements for servicing of these aircraft, the Civil Aviation Administration was addressed and provided the information on the flights of the US aircraft, based on the data and financial documents of the companies and aircraft service enterprises operating at Vilnius, Kaunas, Šiauliai and Palanga airports.",
"When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that:",
"Two CIA-related aircraft landed at Vilnius International Airport:",
"( 1) ’ C-130 ’, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.);",
"2) ’ Boeing 737 ’, registration No N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m. According to the documents of the SBGS, this aircraft arrived from Antalya and departed for Oslo).",
"Three CIA-related aircraft landed at Palanga International Airport:",
"( 1) ’ CASA C-212 ’, registration No N961BW (2 January 2005, operator Presidential Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on 5 January 2005 at 9 a.m.);",
"( 2) ’ Boeing 737 ’, registration No N787WH (18 February 2005, operator Victory Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at 7.30 p.m. It was recorded that the aircraft arrived carrying five passengers and three crew members);",
"( 3) ’ Boeing 737-800 ’, registration No N733MA (25 March 2006, route Porto (Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.).",
"In the course of the investigation, the Committee did not establish any cases of CIA ‑ related aircraft landing at Kaunas and Šiauliai airports.",
"Attention should be drawn to the fact that the Committee did not receive any data or documents from Vilnius International Airport or airport service companies confirming that on 20 September 2004 and in July 2005 (the exact date was not specified by the US television channel ABC News ) presumable CIA-related aircraft landed at Vilnius International Airport.",
"In the course of the parliamentary investigation, the SSD submitted information regarding its cooperation with the SBGS in 2002-2006. It is evident from the documents submitted to the Committee that there had been an intensive exchange of data (including data provided by partners regarding the search for persons suspected of terrorism) in the field of combating terrorism. A period of time from April 2004 until September 2005 during which the SSD did not provide any information on the suspected terrorists to the SBGS should be singled out.",
"During the investigation, three occasions were established on which, according to the testimony of the SSD officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD:",
"( 1) ’ Boeing 737 ’, registration No N787WH, which landed in Palanga on 18 February 2005. According to data submitted by the SBGS, five passengers arrived in that aircraft, none of whom was mentioned by the former Deputy Director General of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the meeting. According to Customs data, no thorough customs inspection of the aircraft was carried out and no cargo was unloaded from it or onto it;",
"( 2) ’ Boeing 737 ’, registration No N787WH, which landed in Vilnius on 6 October 2005. According to data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board of the aircraft. No customs inspection of the aircraft was carried out;",
"( 3) ’ Boeing 737-800 ’, registration No N733MA, which landed in Palanga on 25 March 2006. According to Customs data, no customs inspection was carried out. The documents of the SBGS contain no records of the landing and inspection of this aircraft.",
"Persons providing explanations to the Committee indicated that in similar cases cooperation takes place in accordance with the provisions of the Law on Intelligence in relation to the provision of assistance to an intelligence service in getting unrestricted access to aircraft and access to/departure from the territory of the airport; however, as indicated by the information submitted by the SBGS, upon the landing of the unscheduled aircraft from Antalya at Vilnius International Airport at 5.15 am on 6 October 2005, civil aviation officers prevented the SBGS officer from approaching the aircraft. In his official report, the officer stated that a car drove away from the aircraft and left the territory of the airport border control point. Upon contacting the civil aviation officers, it was explained that the heads of the SBGS had been informed of the landing of the above mentioned aircraft and the actions taken by the civil aviation officers. The letter from the SSD marked as ‘ CLASSIFIED ’ regarding the mentioned event was received by the SBGS on 7 October 2005, i.e., post factum.",
"It should to be noted that before the above mentioned event, the SSD had never issued any letters of similar content to other services. The explanations provided in the course of the investigation make it evident that oral arrangements had been made with representatives of the airport and aviation security.",
"In the course of the investigation, another occasion was established on which the SSD applied to the SBGS with a similar letter (24 March 2006) in relation to the flight of an aircraft to Palanga airport on 25 March 2006.",
"As explained by the heads of the SBGS, this is a common cooperation practice. According to Commander of the SBGS General S. Stripeika, had the SBGS received the letter from the SSD before 6 October 2005, the incident would have not occurred and officers of the SBGS would have not interfered with the activities of the SSD.",
"In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time.",
"The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist.",
"Deputy Director General of the SSD D. Dabašinskas, with the knowledge of Director General of the SSD A. Pocius, provided the US officers with opportunities to have unrestricted access to the aircraft on at least two occasions. In addition, at least on one occasion the opportunities for inspection of the aircraft by the SBGS officers were deliberately restricted. In all the above - mentioned cases, there was no customs inspection. Therefore, it was impossible to establish either the identity of the passengers or the purpose of the cargo.",
"2. Did secret CIA detention centres operate in the territory of the Republic of Lithuania?",
"The cases of partnership cooperation which are of relevance to the parliamentary investigation, carried out by the SSD in 2002-2006 and involving the equipment of certain tailored facilities, may be referred to as Project No. 1 and Project No. 2.",
"Based on the information received in the course of the parliamentary investigation, the implementation of partnership cooperation Project No. 1 was commenced by the SSD in 2002. In the course of the project, facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners. Director General of the SSD M. Laurinkus and his deputy D. Dabašinskas both had knowledge of the project. When instructing the contractors to equip the facilities, the latter mentioned that the project ‘ had been blessed by the top officials of the State ’; however, according to the testimony of the then political leadership, they had not been informed of it.",
"According to the data available to the Committee, the facilities were not used for the purpose of holding detainees. At present, they are used for other purposes.",
"The SSD submitted information that based on the documents held by the SSD, these facilities were equipped for the purpose other than holding detainees.",
"The implementation of Project No. 2, which was also examined in the course of the parliamentary investigation, was commenced by the SSD in the beginning of 2004. The necessary acquisitions were made for the purpose of implementation of the project, construction works were carried out to equip the facility, with the progress of works ensured by the partners themselves. The building was reconstructed to meet certain security requirements.",
"The SSD officers participated in the implementation of this project together with partners and, according to the officers, had unrestricted access to all the premises of the facility, however, when representatives of the partners were present in the facility, they did not visit some of the premises. The time of such meetings and adequate arrangements were communicated to the SSD officers by Deputy Director General of the SSD D. Dabašinskas.",
"According to the SSD officers, representatives of the partners were never left alone in the facility. They were always accompanied by either D. Dabašinskas or one of the SSD officers.",
"According to the information received in the course of the investigation, it is evident that the SSD did not seek to control the activities of the partners in Project No. 2. The SSD did not monitor and record cargoes brought in and out and did not control the arrival and departure of the partners; in addition, the SSD did not always have the possibility to observe every person arriving and departing.",
"The procedure for accounting and using monetary funds and material valuables intended for financing of joint actions is approved by internal regulations of the SSD, however, based on the explanation provided in the course of the parliamentary investigation regarding one of the implemented joint projects and monetary funds used for its implementation, the accounting of these funds was inappropriate. Explanations provided by individual persons in relation to the sources of financing of joint actions, amounts of monetary funds used for separate actions or accounting thereof are not consistent and therefore require further investigation.",
"The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees.",
"While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania; however, according to the data available to the Committee, the premises were not used for that purpose.",
"The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2; however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.",
"3. Did state institutions of the Republic of Lithuania (politicians, officers and civil servants) consider the issues relating to activities of secret CIA detention centres in the territory of the Republic of Lithuania, transportation and confinement of detainees in the territory of the Republic of Lithuania?",
"The Committee received certain information about international cooperation of the SSD with partners and application of special measures provided for in the Law on Intelligence during joint operations. The legal basis of international cooperation of the SSD is laid down in the Law on Intelligence. ...",
"When summarising [the relevant provisions of the Law on Intelligence], a conclusion should be drawn that legal acts do not directly require the directions (tasks) of international cooperation of the SSD to be approved at any specific political level (at the State Defence Council, the CNSD); such directions (tasks) used to arise from a general need for international cooperation and direct contacts of the SSD with secret services of other countries. However, in seeking to obtain recommendations of the State Defence Council concerning international cooperation, the SSD could submit to the State Defence Council (or the President of the Republic, who initiates sittings of the State Defence Council) the information necessary to draw up such recommendations. In 2002-2005, such issues were not considered at the State Defence Council and there were no recommendations. This is partially confirmed by the letter of the Secretary of the State Defence Council of 3 December 2009, stating that in 2001-2005 wide-scale direct cooperation between the SSD and CIA was mentioned only once - at a sitting of the State Defence Council (19 September 2001) when considering the issue on international terrorism and anti-terrorist actions and prevention, crisis management and the legal base.",
"None of the country ’ s top officials, according to them, were informed about the purposes and content of partnership cooperation of the SSD in 2002. Only several officers of the SSD had knowledge of Project No. 1.",
"According to the testimony of the former Director General of the SSD M. Laurinkus, in mid-2003 he informed the then President of the Republic R. Paksas about a possibility, after Lithuania ’ s accession to NATO, to receive a request to participate in the programme concerning the transportation of detainees. According to the testimony of R. Paksas, Lithuania was requested permission to bring into the country the persons suspected of terrorism. The information submitted to the President of the Republic did not contain any mention of a detention centre or a prison. In August of the same year, when President of the Republic R. Paksas enquired the then acting Director General D. Dabašinskas if there was any new information concerning Lithuania ’ s participation in the said programme, he was told that there was no new information.",
"Although Director General of the SSD M. Laurinkus received a negative answer from President of the Republic R. Paksas regarding the bringing into the Republic of Lithuania of persons interrogated by the USA, neither the then President of the Republic R. Paksas nor acting President of the Republic A. Paulauskas was asked for political approval of activities under Project No. 2. M. Laurinkus had knowledge of launching the activities under Project No. 2 in March ‑ April 2004. According to President of the Republic V. Adamkus, he was informed about cooperation with the USA in general terms and no information was provided to him about running of Project No. 2 in 2004-2006. According to A. Pocius, President of the Republic V. Adamkus and his advisors were adequately informed of the project. Several SSD officers, including M. Laurinkus, A. Pocius, D. Dabašinskas, had the knowledge of Project No. 2 at the time of launching and running thereof.",
"On 18 August 2009, Head of the SSD P. Malakauskas informed President of the Republic D. Grybauskaitė (as well as former Presidents of the Republic V. Adamkus and A. M. Brazauskas) that ABC News was preparing articles about the CIA detainees who had allegedly been confined in Lithuania and planning to name one of the facilities owned by the SSD as a prison. P. Malakauskas could not deny the possibility of confinement in Lithuania of the persons detained by the CIA.",
"Likewise, while considering the reports of the SSD, the CNSD was provided information about international cooperation in a fragmentary manner. For instance, when considering the SSD ’ s activity report of 2003, it was mentioned that ‘ cooperation with NATO member states is in progress. A wish for more active cooperation with the SSD can already be perceived on the side of the Allies, which will require additional staff, investments. ’ Decisions of the CNSD on the SSD ’ s reports never contained any proposals concerning international cooperation.",
"Information gathered by the Committee and the explanations received by it show that the State Defence Council, the Government and the Seimas have not considered issues relating to any activities of secret CIA detention centres in the territory of the Republic of Lithuania, or to the transportation and confinement of detainees in the territory of the Republic of Lithuania.",
"According to the country ’ s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place.",
"On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country ’ s top officials of the purposes and content of the said Projects.”",
"175. The final proposal was formulated as follows: “to propose to the Prosecutor General ’ s Office to investigate whether the actions of M. Laurinkus, A. Pocius and D. Dabašinskas had elements of abuse of office or exceeding authority”.",
"176. The findings were accompanied by eight recommendations, including, among other things, “enhancing coordination and control of activities of intelligence services”, “improving the provision of information to the country ’ s top officials” and “improving provisions of the Law on Intelligence”.",
"2. Extracts from transcripts of the Seimas ’ debates on the CNSD Findings",
"177. The applicant supplied a summary of the transcripts of the debates on the CNSD Findings held in the Lithuanian Parliament on 14 January 2010.",
"178. That documents reads, in so far as relevant, as follows:",
"“MP A. Anušauskas, Chairman of the CNSD, is invited to present the draft Resolution on the Findings.",
"... During the investigation, the Committee obtained considerable amount of secret information, ranging from restricted to highly classified information marked as ‘ Top Secret ’. Because of the high amount of classified information, the preparation of the findings was not an easy task.",
"The classified information was related to the activities of secret services and subtle options the services use in their work. Without these subtle options, neither intelligence nor cooperation with the special services of other states in such areas as fight with terrorism would be possible.",
"Despite that, parliamentary control of secret services must nevertheless be exceptional and strong. Some of the data, gathered during the investigation, were not made public as it constitutes a state secret.",
"To summarize the investigation, the Committee has established that CIA aircraft have landed in Lithuania. It has not established whether the persons detained by the CIA were transported to or transferred through the Lithuanian territory; the heads of the SSD at that time created conditions for the U.S. officers to access the planes unobstructed at least on two occasions.",
"Moreover, at least once State Border Guard Service officers were prevented from performing border control checks. During all of the mentioned incidents, customs inspections were not carried out.",
"The Committee has established that the SSD received a request from partners to install premises in Lithuania, suitable for keeping detainees. ...",
"QUESTIONS",
"(all replies are by MP Anušauskas, Conservative Party, ruling coalition)",
"MP V. Mazuronis (Order and Justice Party, opposition)",
"Question : I pity you that you had such an ungrateful task, similar to searching for life on Mars. I can only express my sympathy for you. But my question is that I have found in the text of the findings that President Adamkus was briefed of the cooperation with the U.S. in general terms only, but he was never informed of the Project No. 2. Mr Pocius claims in his testimony, however, that the President and his advisers were adequately informed. I can see a contradiction here and my question would be who of those two individuals have lied? The one saying he was not informed or the one saying he has informed properly? Or maybe there is a way, according to our laws, of informing without actually giving information?",
"Reply : Yes, the question of the level of awareness by the heads of State was being actively discussed. I have to say that in this case we relied on oral testimonies. The thing is that there are no written documents, and no recommendations issued by the State Defence Council. That means, we had to rely on testimonies given by the highest state officials. On the other hand, the former SSD officer, who was named by you, introduced us to four methods of passing information onto the head of State. Only one of those methods seemed adequate. I will not name all of them, but one of them was ‘ I have informed through President ’ s advisers, and I don ’ t know if they understood ’. In this case [replying to your question - M.A.], I think, we can select any of those two options which seems more acceptable to us.",
"MP V. Andriukaitis (Social Democratic Party, opposition)",
"Question : The Parliament has set very specific questions for the inquiry, and one of them was whether CIA detainees were transported to and detained in the territory of Lithuania. Your answer to that question is Solomon-like - that the Committee has not established but the preconditions for transportation existed. Preconditions for transportation exist in the whole world: trains, planes are flying, bicycles are being ridden. To the question whether secret detention centres were operating, you have also failed to answer. I want to ask you what exactly prevented you from answering those very specific questions - lack of data, lack of competence or maybe something else.",
"Reply : First of all, the Committee is not talking of such general preconditions as existence of airports, but very specific preconditions. That is, preconditions created by the SSD officers to enter the territory of Lithuania unobstructed, without aircraft inspections and customs inspections. These are relatively specific preconditions.",
"In this case, the findings are not based on assumptions, I will stress this, but on the testimonies of the witnesses and the documents obtained. Yes, we cannot show in the findings all of the details revealed by the testimonies and the contents of the documents obtained, because the detailed information on cooperation with foreign secret services, its proceedings, objects, contents and results constitute a state secret. In this case, this is not included in the text of the findings, but that does not mean that the Committee has not examined this data. Bearing this in mind, what might appear as assumptions at first, are based on facts and documents.",
"...",
"MP J. Juozapaitis (Social Democratic Party, opposition)",
"Question : Your committee writes in the findings that the preconditions were created for transportation and detention of persons. My question would be under whose orders and who has created those preconditions for transportation and detention of those prisoners in Lithuania?",
"Reply: I have to mention one circumstance which is often ignored. The Council of Europe and the European Parliament have also conducted investigations and established aircraft, planes which were transporting the prisoners. Some of them have acquired very clear names, and their routes were always directed to Guantánamo, and then back to Afghanistan, transiting through European states. A list of the aircraft emerged during those investigations. The aircraft was linked with transportation of prisoners. Yes, it is not known what was being transported, but it is known that the prisoners were being transported through European states. The aircraft have crossed Lithuanian airspace too. Who gave [the orders ... ] and who created preconditions? We named those individuals; three officers who were serving as deputies to the head of SSD, they are responsible for those actions and possible violations of the laws.",
"...",
"MP J. Veselka (Order and Justice Party, opposition)",
"Question : It is evident from your findings that a secret detention centre was built here for CIA money. Secondly, there were planes that were prevented by Dabašinskas from inspection. Further, George Bush has declared during his visit, that Lithuanian enemies are the US enemies. With no purpose, no one gives this kind of promises. Further, former SSD heads, as I see them, were great careerists and political cowards. Fifthly, former President Paksas testified to you that the SSD heads informed him about these matters. Hence, I draw the conclusion that the rest of the heads, who pretended they knew nothing, they, honestly speaking, lied to you, because those SSD officers, careerists and political cowards, could not have done this independently. Or do you think it ’ s possible? What needs to be done to make the heads of State to tell the truth in this kind of situation?",
"Reply : There are amendments being prepared. First of all, it is necessary to make sure that document trail is left, because in this case a lot was being done by oral arrangements. I would not dare to claim the heads of State have lied. More likely they were not adequately informed, and their advisers testified that they were not being informed to an extent so that to get a clear picture of cooperation with partners. The provision of Intelligence Law, that some of the actions require recommendations from the State Defence Council, was ignored.”",
"J. Criminal investigation in Lithuania",
"1. Investigation conducted in 2010-2011",
"179. On 22 January 2010, the Prosecutor General ’ s Office opened a pre-trial investigation in criminal case No. 01-2-00016-10, in relation to abuse of office, as defined in Article 228 § 1 of the Criminal Code. The scope of the investigation was defined by the circumstances stated in the CNSD Findings:",
"(1) the arrival of the United States CIA aircraft in Lithuania and departure therefrom, what access United States officials had to the aircraft, and the inspection of the goods and passengers on the aircraft;",
"(2) the implementation of Project No. 1 and Project No. 2;",
"(3) whether the leadership of the State Security Department kept the highest officials of the State informed on the objectives and the content of Project No. 1 and Project No. 2.",
"Accordingly, the pre-trial investigation had focussed on unrestricted landing and departure of aircraft at Vilnius International Airport and Palanga International Airport, equipment and use of Project No. 1 and equipment and use of Project No. 2; possible involvement of the highest officials of the State in activities related to the operation of detention centres, detainees transportation and detention in the territory of the Republic of Lithuania.",
"180. On 5 February 2010 the Speaker of the Seimas gave her permission to the prosecutors to consult the classified material from the parliamentary inquiry.",
"181. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including persons holding high-ranking posts in the SSD, the SBGS and employees of Vilnius and Palanga airports. The witness evidence is classified secret. The Government produced a publicly available summary of witness testimony, which is rendered below (see paragraphs 301-246 below).",
"182. On 18 February 2010 the prosecutor asked the SBGS for information concerning an incident that had taken place on 6 October 2005 at 5.15 a.m. when the SBGS officer, a certain R.R. (see also paragraph 36 6 below) had been denied access to the aircraft whose landing had been unplanned and he could not inspect that aircraft.",
"On the same day, the prosecutor also asked the authorities of Vilnius International Airport for information as to whether the SSD ’ s letter regarding actions performed by the SSD in the airport on the night of 6 October 2005 had been received before that date.",
"183. On 18 February 2010 the Administration of Civil Aviation informed the prosecutor that, as regards the arrival of aircraft in Vilnius airport on 6 October 2005, they could have confused the code of Antalya and Tirana due to their similarity.",
"184. On 3 March 2010 the prosecutor asked the Customs Department for certain documents and information whether a customs inspection had been carried out in respect of, among others, the plane N787WH that had landed in Vilnius airport from Antalya, including the cargo on board the plane or the luggage of the passengers.",
"On 12 April 2010 the Customs Department replied that the flight from Antalya had not been inspected and that neither information about the passengers, nor their luggage nor the cargo had been recorded. It also stated that the plane N787WH that had landed on 18 February 2005 at 8.09 p.m. at Palanga airport had not been recorded.",
"185. On 3 and 4 March 2010 the prosecutor made various requests for information and documents to the SBGS and Vilnius and Palanga airports. In particular, he asked for copies of any SSD ’ s requests for access to the aircraft, airport registration records, flight schedules and flight service invoices.",
"He subsequently received the following replies:",
"(a) the SBGS had received a classified letter from the SSD regarding access to the aircraft on 6 October 2005 after that date;",
"(b) Vilnius airport had not received the SSD ’ s requests;",
"(c) flight schedules supplied by Vilnius airport confirmed that on 6 October 2005 the plane N787WH had arrived from Tirana and not from Antalya; it had then departed for Oslo;",
"(d) Palanga airport had received no requests from the SSD;",
"(e) flight schedules supplied by Palanga airport confirmed that N787WH had been listed as the flight from Bucharest to Copenhagen.",
"186. On 17 March 2010 the prosecutor carried out an on-site inspection of Project No. 1. In that connection, a record of the inspection and plan of the site were drawn up, and photos of the site were made (see also paragraph 3 61 below).",
"187. On 2 April 2010 the prosecutor received information relating to the transfer of title to Project No. 2 (land, buildings and other assets) to the State and the transfer of the property into the SSD ’ s trust.",
"188. On 12 and 13 April 2010 the prosecutor made further requests for information and documents to the Aviation Security authorities at Vilnius airport and to the Ministry for Transport and Communications.",
"189. On 27 May 2010 the SSD supplied copies of documents, including an operational action plan regarding the selection of premises for “the protection of secret intelligence collaborators” (see also paragraph 36 5 below).",
"190. On 4 June 2010 the prosecutor carried out an on-site inspection of Project No. 2. In that connection, a record of the inspection and plan of the site were drawn up, and photos were made (see also paragraph 3 62 below).",
"191. On 20 September 2010, Reprieve made a “request for investigation” to the Prosecutor General, stating that they were providing legal assistance to the applicant and asking that the prosecutor “urgently investigate new and credible allegations” that Abu Zubaydah had been held by the US in Lithuania “sometime from 2004 to 2006”. They also asked the prosecutor to seek clarifications from the applicant and order an “urgent preservation and disclosure” of all relevant evidence in the possession of US and Lithuanian authorities. As regards the applicant ’ s clarifications, they submitted a list of questions to him, offering assistance in transmitting them to him and making a declassification request to the US authorities in respect of his future answers. In the alternative or in addition, they proposed that the Lithuanian authorities could ask the US authorities to be allowed to interview the applicant themselves, with counsel present. They provided the following factual information on the applicant ’ s secret detention:",
"“Unclassified evidence now in the public domain confirms that after being held in Thailand for around eight months, on 4 December 2002, Mr Husayn was ‘ rendered ’ with another prisoner to a secret prison in Szymany, Poland. Mr Husayn was held in Szymany for almost ten months before being transferred along with four other prisoners to a then-secret CIA section of the US military base at Guantánamo Bay. According to recent media reports, Mr Husayn was then held near Rabat, Morocco.",
"Mr Husayn arrived in Morocco in the spring of 2004. Between then and his second rendition to Guantánamo Bay in September 2006, recent information has come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn was held in a secret CIA prison in Lithuania. This information come from the most credible sources inside the United States, and is not subject to doubt.",
"We need hardly remind you of Lithuania ’ s duty to seriously investigate these allegations, and the importance of the preliminary work done by journalists and other fact-finders who protect their sources, in the exposure of US abuses on European soil.”",
"192. Mr Darius Raulušaitis, Deputy Prosecutor General, responded on 27 September 2010, explaining that the ongoing investigation already included the crimes allegedly committed against Abu Zubaydah:",
"“[D]uring the pre-trial investigation not only were the circumstances related to abuse of official position with major legal significance (which was why the pre-trial investigation was initiated) investigated, but also the circumstances which define other criminal acts of which possible individual signs may be seen during the pre-trial investigation. Among such criminal acts are those you have pointed out should also be mentioned, namely illegal deprivation of liberty (Article 146 of the Criminal Code) as well as illegal transportation of people across national borders (Article 292 of the Criminal Code). Considering the fact that the pre-trial investigation in relation to the circumstances provided in your application is already being conducted, please be advised that the circumstances provided in your application will be considered when performing the said pre-trial investigation No. 01-2-00016-10. ”",
"193. Mr Raulušaitis asked Reprieve to submit all written information in their possession, which would establish Abu Zubaydah ’ s presence in Lithuania in the context of the CIA detention, interrogation and rendition programme and to indicate the “confidential and extremely reliable unclassified source” of information relied on by them.",
"194. Reprieve replied on 18 November 2010. Their letter (referring to the applicant as “Mr Husayn” or “Mr Zubaydah”), in so far as relevant, read as follows.",
"As regards the provision of information:",
"“As you are likely aware, there are substantial obstacles to obtaining and providing this information to you. But we are working diligently to overcome them. Mr Husayn ’ s communications are subject to U.S. government imposed restrictions which require his U.S. counsel to submit all written communications from Mr Husayn to a government censor. We are in the process of attempting to obtain a statement from Mr Husayn that will provide evidence relevant to the questions submitted.",
"We previously recommended that, in addition, the Lithuanian authorities also request from the US authorities that they be allowed to interview Mr Husayn themselves, with counsel present. I note that a bilateral treaty provides your office with an agreed mechanism to seek independently such information from Mr Zubaydah. I refer specifically to the Mutual Legal Assistance in Criminal Matters Treaty between the United States and Lithuania, which entered into force on 26 August 1999. In addition to the testimony of Mr Zubaydah, you can seek to obtain numerous additional sources of information relevant to your investigation, some of which are listed below.”",
"As regards sources of evidence that the prosecutor should pursue as part of a thorough investigation, Reprieve proposed that the prosecutor:",
"“1. Sought to obtain testimony of Abu Zubaydah, regarding the unlawful detention and subjection to torture and inhuman, degrading treatment as well as the circumstances connected with his transportation between other places of detention and circumstances allowing the identification of the place where he was detained in the Republic of Lithuania;",
"2. Sought to obtain testimony regarding the capture of Abu Zubaydah, place or places of his detention, conditions in which he was detained, methods of his interrogation used by CIA officers and other persons who had access to him, from George Tenet (General Director of the CIA between 11 July 1997 and 11 July 2004); John McLaughlin (acting General Director of the CIA between 11 July 2004 and 24 September 2004); Porter Goss (General Director of the CIA between 24 September 2004 and 30 May 2006); Michael Hayden (General Director of the CIA between 30 May 2006 and 12 February 2009) and Leon Panetta (current Director of the CIA) as well as from other persons cooperating with CIA officers within the territory of the Republic of Lithuania and persons possessing knowledge about their activities;",
"3. Sought to obtain evidence from national and international repositories of aviation and flight data, including Eurocontrol and SITA, regarding flights into and out of Lithuania during this period by the following planes mentioned in the public record: N787WH, N733MA, N8213G, N88ZL, N961BW, N1HC and N63MU. In particular, please inform me whether you have sought to obtain records regarding the flights of",
"a. a plane registered as N961BW on or about 2 January 2005",
"b. a plane registered as N787WH on or about 18 February 2005",
"c. a plane registered as N733MA on or about 25 March 2006",
"d. a plane registered as N63MU on or about 28 July 2005, probably",
"arriving at Vilnius Airport from Kabul;",
"e. Any other suspicious flights during the relevant time period;",
"4. Sought to obtain evidence from the sites of the alleged prisons and their environs, including eyewitness testimony, forensic testimony and testimony of potential key witnesses including employees at those sites during the period in question; and to this end required the preservation of evidence on the two identified sites, including traces of blood, hair and other biological specimens that would enable the prosecutor to identify the victims and perpetrators;",
"5. Sought to obtain testimony from the companies involved in flights into and out of Lithuania during this period by the planes discussed in the Committee ’ s findings, including those who took part in trip planning, ground handling, refuelling, trash disposal and other services.",
"6. Sought to obtain testimony on flight routes and cargo, human and otherwise, from captain and crew flight into and out of Lithuania during this period by the planes mentioned above;",
"7. Sought to obtain testimony concerning conditions of confinement at CIA black sites from Geoff Loane and other authors of the International Committee of the Red Cross Report on the treatment of the fourteen high-value detainees in CIA custody dated 14 February 2007;",
"8. Sought to obtain testimony from key witnesses from Lithuanian state institutions, regarding cooperation with the USA in the ‘ War on terror ’ during the period in question, including former [Minister of National Defence] Gediminas Kirkilas, former President [of the Republic] Valdas Adamkus, former [Minister of the Interior] Virgilijus Bulovas, former [Minister of the Interior] Gintaras Furmanavičius, former [Minister of Foreign Affairs] Antanas Valionis, former [Minister of National Defence] Linas Linkevičius, former Deputy Director [of the] State Security Department Darius Jurgelevičius, former [Deputy Director] for Intelligence for State Security [Department] Dainius Dabašinskas, former [Minister of Foreign Affairs] Vygaudas Ušackas, President [of the Republic] Dalia Grybauskaitė, Prime Minister Andrius Kubilius; [Dainius] Žalimas, legal adviser to the Lithuanian [Ministry of National Defence].”",
"Reprieve also requested information about the progress of the investigation.",
"195. On 13 January 2011 the prosecutor refused Reprieve ’ s request, on the basis that Reprieve was “not a party to the proceedings [with] the right to examine the material of the pre-trial investigation”. The prosecutor also noted that, in accordance with Article 177 § 1 of the Code of Criminal Procedure, the material of the pre-trial investigation was not public.",
"196. On 14 January 2011 the prosecutor discontinued the pre-trial investigation No. 01-2-00016-10 on the ground that “no action/inaction had been committed which constituted evidence of a criminal offence or a criminal misdemeanour.” The decision was based on Articles 3 § 1 (1), 212 § 1, 214 and 216 of the Code of Criminal Procedure.",
"197. The decision stated that in the course of the pre-trial investigation the persons questioned had been those relevant to the subject matter of the investigation and possessing significant information for the resolution of the case. Documents essential for the pre-trial investigation were obtained, and information and premises inspected: these were referred to in the CNSD Findings as Project No. 1 and Project No. 2. For the prosecutor, the totality of the information obtained in the course of the pre-trial investigation was sufficient to reach a conclusion and to adopt a procedural decision. It was also noted that a large part of the information obtained in the course of the investigation was to be treated as classified, because it constituted State or official secrets. Accordingly, such information was not discussed in the report in detail, and the document was restricted to the presentation of the grounds on which the procedural decision was based.",
"Lastly, the prosecutor observed that in the context of the pre-trial investigation he had examined not only material related to alleged abuse of office, but also whether there was evidence of any other criminal offences in connection with the matters investigated.",
"198. As regards the arrival of the United States CIA aircraft in Lithuania and departure therefrom, the access the United States officials had to the aircraft and the inspection of goods and passengers on the aircraft, the prosecutor found:",
"“In the course of the pre-trial investigation it has been established that the aircraft linked with the United States Central Intelligence Agency did arrive in and depart from the Republic of Lithuania. It has also been established that on some occasions Customs and State Border Protection Service inspections ... were not carried out. However, on every occasion such actions were taken in accordance with the procedure stipulated by the Law on Intelligence [Article 9] and the appropriate airport and State Border Protection Service officials had been advised in advance in writing (or verbally) [that SSD officials would meet the aircraft and the goods]. This was confirmed by the documents in the case file which were provided by the SSD, and also by witnesses who have been questioned – airport staff and officials of the SBGS and the SSD. ... It should be noted that Article 16 of the Law on Intelligence stipulates that State institutions and officials are not allowed to interfere with or otherwise influence intelligence activities carried out by intelligence officers. Official vehicles of intelligence staff may not be inspected without the permission of the Prosecutor General.",
"No data have been obtained in the course of the pre-trial investigation indicating that the aforementioned aircraft were used to illegally bring or remove any persons [to and from Lithuanian territory]. On the contrary, those questioned in the course of the investigation either categorically denied this or stated that they did not have any information in that regard. Obviously, given that no inspection of the aircraft or the motor vehicles used by the intelligence officers had been carried out, this possibility, which is exceptionally theoretical, does remain (and it was so stated in the Parliament ’ s CNSD Findings). However, there is no factual evidence to suggest that actions of such a nature (illegal transportation of persons) took place. Therefore, an assertion that the aircraft linked with the United States Central Intelligence Agency was used to transport or to bring to the territory of the Republic of Lithuania (or to remove from it) individuals detained by the CIA, from the point of view of criminal law is a hypothesis which is not supported by factual evidence. Such a hypothesis is of the same value as a hypothesis that any other persons or goods of restricted circulation were transported. In the absence of factual information to support this hypothesis, it is not possible to bring criminal charges or to continue criminal proceedings in this respect. To reach the opposite conclusion would require specific information, which could allow a finding that a criminal offence has been committed. ... As has been stated, no such information is available about any possibly criminal offences at the time of this procedural decision.",
"Accordingly, it must be concluded that the SSD officers, who sought and obtained uninterrupted access to the airports ’ territory where the [CIA] aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority and, consequently, did not commit the criminal offence stipulated in Article 228 of the Criminal Code [abuse of office].",
"Having concluded that there is no information about illegal transportation of persons on board aircraft linked to the United States Central Intelligence Agency, it should also be stated that there are no grounds to bring criminal charges pursuant to Article 291 (unlawful crossing of a State border) or Article 292 (unlawful carrying of persons over a State border).”",
"199. Regarding the construction and operation of alleged secret prisons (Projects No. 1 and No. 2), the prosecutor stated that:",
"“In the course of the pre-trial investigation it was established that the SSD of the Republic of Lithuania, together with the CIA of the United States of America, implemented, in 2002, Project No. 1, referred to in the CNSD Findings, and in 2004 implemented Project No. 2, referred in the CNSD Findings. Both projects had been related to the reconstruction and outfitting of the buildings.",
"... The statute of limitations on any alleged abuse of office violations, which was the subject of the investigation, meant that no prosecution was possible for violations in relation to Project No. 1.",
"Nevertheless, regardless of this procedural impediment to the pre-trial investigation, it should also be noted that in the course thereof no unequivocal information was obtained to the effect that when implementing Project No. 1 the premises were outfitted specifically for the purpose of incarcerating detained persons. Factual information received about specific aspects of the premises (which allows the hypothesis that it was possible to keep a detained person there), when appraised together with the evidence that supports other (different) designations of the premises, and taking into account the fact that there is no information available that [any] detained persons had in fact been taken to or kept in those premises, does not provide a sufficient basis to charge a person with abuse of office and to pursue criminal proceedings.",
"As to Project No. 2, in the course of the pre-trial investigation no data was received to suggest that this project was used for keeping detained persons. To the contrary, the factual information and the testimony of all the witnesses support other purposes and use of the building, while the circumstances referred to in the [CNSD] Findings that ‘ the layout of the building, its enclosed nature and protection of the perimeter as well as the sporadic presence of the SSD staff in the premises allowed for actions to be taken by officers of the partners without being monitored by the SSD, and also allowed them to use the infrastructure at their discretion ’ do not create a basis for criminal charges and merely confirm that cooperation between the SSD and the CIA took place and that the building served other purposes. The real purpose of the building may not be revealed, as it constitutes a State secret.",
"It should be concluded that by the joint implementation of Project No. 1 and Project No. 2 by the SSD and the CIA a criminal offence under Article 228 of the Criminal Code [abuse of office] has not been committed.",
"[Moreover], even without restricting oneself merely to legal appraisal of the potentially criminal actions suggested at the beginning of the pre-trial investigation and its qualification in accordance with Article 288 of the Criminal Code, it should be noted that there are no grounds to bring criminal charges in accordance with Articles 100 (treatment of people prohibited by international law) or 146 (unlawful restriction of liberty), because, as has already been mentioned, during the pre-trial investigation no information was obtained about unlawful transportation of persons, their detention, arrest or other unlawful restriction of their liberty. ...",
"This decision to terminate the pre-trial investigation also gives the answer to the statement by Reprieve, received by the Office of the Prosecutor General of the Republic of Lithuania on 20 September 2010. The statement presented a version of events according to which the officers of the United States Central Intelligence Agency between spring 2004 and September 2006 conveyed a detained person, [Abu Zubaydah], to the Republic of Lithuania, detained him in Lithuania and removed him from there. Reprieve did not provide any factual information to support this, no source of information has been provided or revealed, and in the course of the pre-trial investigation, as has been noted, no information was received about illegal transportation of anyone, including [Abu Zubaydah], into or out of the Republic of Lithuania by the United States Central Intelligence Agency.”",
"200. On the question whether the leadership of the SSD had kept the highest officials of the State informed about the objectives and the content of Project No. 1 and Project No. 2, the prosecutor found:",
"“As has been correctly stated in the [CNSD] Findings, the legal basis for the international cooperation of the SSD is stipulated in the Law on Intelligence, and there is no requirement in law for the directions (or tasks) relating to international cooperation to ‘ be cleared ’ at any political level (at the State Defence Council or the National Security and Defence Committee [of the Seimas]). The directions to be followed or tasks to be undertaken emerged from a general need for international cooperation and from direct contacts between the SSD and the special services of other countries. In the joint implementation of Project No. 1 and Project No. 2 by the SSD of the Republic of Lithuania together with the CIA of the United States of America, the leadership of the SSD at that time did not advise any high-level official of the State about the objectives and the content of these projects.",
"Having concluded that the law does not stipulate a duty to supply this information, and also taking into account that this information, because of its scope, may be and should be shared on a ‘ need to know ’ basis, it follows that in this part [of the investigation] too there is no evidence of a criminal offence or abuse of office. ...",
"When summing up the information gathered in the course of the pre-trial investigation, it has to be stated that all necessary and sufficient measures and possibilities had been exhausted to collect information on any criminal offences committed. However, in the course of the pre-trial investigation no objective data was gathered which would confirm that there had been abuse of office (or another criminal offence) and the totality of the factual information is not sufficient to find that criminal offences were committed. Therefore, at the present time it is not possible to conclude that criminal offences were committed. On the contrary, the hypothetical suppositions which were the basis for the pre-trial investigation [on the charges of abuse of office, Article 228 of the Criminal Code] have not been confirmed, and have been ruled out of evidence. Article 3 § 1 (1) of the Code of Criminal Procedure stipulates that criminal proceedings may not be started, and if they have been started they must be terminated, where there is no indication of a criminal offence or a criminal misdemeanour. Therefore, this pre-trial investigation No. 01-2-00016-10 must be discontinued, because there is nothing to indicate that there has been a criminal offence or misdemeanour.",
"It has already been concluded that, to summarise the factual information contained in the material of the pre-trial investigation about the cooperation between the SSD and the United States Central Intelligence Agency in Project No. 1 and Project No. 2, no criminal offence has been committed as regards provision of information to the highest officials of the State. However, there is sufficient evidence to find that actions of the former chief executives of the SSD who had coordinated the cooperation between the SSD and the United States Central Intelligence Agency and of those who took part in that cooperation, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, as well as actions of the chief executives of the SSD and its other staff who were in charge of the reconstruction of the premises (Project No. 1 and Project No. 2), who initiated this reconstruction and who carried out this reconstruction, may warrant action for disciplinary offences. However, the former chief executives of the SSD, Mečys Laurinkus, Arvydas Pocius and Dainius Dabašinskas, are no longer employed by the SSD and [thus] no disciplinary sanctions may be applied to them. In addition, in accordance with the Statute of the SSD ..., no disciplinary sanction may be applied where more than one year has elapsed from the date of the offence. Therefore, even in cases where there is information which may indicate that a disciplinary offence has been committed, no decision can be made; this is stipulated by the Code of Criminal Procedure, Article 214 § 6. The matter must be transferred to other authorities for examination of a disciplinary offence after the pre-trial investigation is complete. ...",
"Taking into account the fact that the material of the pre-trial investigation includes both a State secret and an official secret, all the material of the investigation, after the pre-trial investigation is complete, shall be passed on to the Office of the Prosecutor General of the Republic of Lithuania, the Department of Information Security and the Inspectorate of Operational Activities.”",
"201. Following the prosecutor ’ s decision to discontinue the investigation, Reprieve twice wrote to the prosecutor seeking information on Abu Zubaydah ’ s behalf. On 22 June 2011 Reprieve requested a copy of the decision to discontinue the investigation, and also asked for information on the rights available to Abu Zubaydah as a victim of the crimes covered by the investigation. On 27 June 2011 Reprieve requested the Prosecutor General to provide the following:",
"“(1) indicate with reference to provisions of the Criminal Code of the Republic of Lithuania which crimes were investigated within pre-trial investigation No. 01 ‑ 2 ‑ 00016-10;",
"(2) indicate chronologically all the procedural actions taken during the pre-trial investigation;",
"(3) state the findings of the investigation with respect to each crime; and",
"(4) state on what basis the investigation was closed in respect of each of the crimes.”",
"The Prosecutor General ’ s Office did not respond to either letter.",
"202. In the meantime, in May 2011, Amnesty International had also written to the Prosecutor General, stating that in its view the investigation had failed to investigate thoroughly the allegations of torture, ill-treatment and enforced disappearance, and that information already in the public domain constituted a strong prima facie case for continuation of the investigation: the secret sites had been identified; the SSD officials had acknowledged that the sites had been established in order for suspected terrorists to be detained there; both parliamentarians and the European Committee for the Prevention of Torture (“the CPT”) in a report on its visit to Lithuania on 14-18 June 2010 (“the 2011 CPT Report”; see also paragraphs 347-351 below) had stated that the physical layout of the sites and the operational dynamic (no inspections of aircraft had been conducted and the CIA had had ultimate control over the sites) had been easily adaptable to a detention regime; at least one aircraft had carried passengers in addition to the crew.",
"203. In June 2011, the Prosecutor General responded to Amnesty International ’ s letter, characterising it as a “complaint about the termination of the investigation” and stating that the organisation had no right to submit such a complaint, as it was not a party to the proceedings. He further stated that, as to the substance, he did not find a basis for reopening the investigation.",
"204. On 6 October 2011 Reprieve again wrote to the Prosecutor General, submitting that new evidence had emerged and asking him to take action in that respect.",
"The letter, in so far as relevant, read as follows:",
"“Compelling new information that has now come to light about the landings of CIA connected planes in Lithuania makes a rigorous and wide-ranging investigation all the more urgent. It has become obvious that previous efforts to chart the extent of the CIA,s rendition operations in Europe have only revealed the tip of the iceberg.",
"As you will be aware, we have recently presented some new data, connecting Morocco and Lithuania, in Amnesty International ’ s report ‘ Unlock the Truth in Lithuania: Investigate Secret Prisons Now ’ (published 29 Sept. 2011). The data concerns a Boeing 727, N724CL, which flew from Morocco to Vilnius via Amman, Jordan, arriving in Vilnius International Airport on the evening of 17 February 2005. It stayed briefly in Vilnius before departing for Iceland, and then returned through Canada to the USA. The flight coincides with that of another plane, N787WH, which landed in Palanga on 18 February 2005, coming from Bucharest. We have adduced that the timing of these flights matches the timing associated, in public source accounts, with the transfer of Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) from secret detention in Morocco to secret detention in Lithuania.",
"With this letter we enclose, for your attention, two documents relating to the arrival of N724CL in Vilnius: a disclosure from the Lithuanian Civil Aviation Authority, dated 20 June 2011, and a disclosure from Vilnius Airport, received on 19 Sept. 2011. We note that there are some discrepancies in the times recorded on the documents, but that aside from these they are in agreement. We have prepared an additional dossier of confidential material with relation to this flight, which we will forward to you on receipt of an undertaking that you will maintain its strict confidentiality.",
"...",
"We also note that the route of the other plane, N787WH between 14 and 19 February 2005, although partly disclosed in the course of the Seimas inquiry of 2009, is yet to be fully accounted for. In particular, it has not been disclosed where this plane stopped before Bucharest.",
"...",
"We are continuing actively to investigate these and other flights, and we believe that further new information will come to light in the near future. It is clear, however, that the full truth concerning these flights will not properly emerge until all responsible bodies in all connected countries search diligently through the material available to them.”",
"Reprieve asked the prosecutor to take specific additional investigative actions, in particular to obtain from Eurocontrol, relevant national bodies regulating air navigation, landing, servicing and customs data relating to the route planning and route costing of N787WH between 14 and 19 February 2005 and N724CL between 14 and 19 February 2005.",
"205. On 21 October 2011 the Prosecutor General announced that he would not reopen the terminated criminal investigation. This decision was taken on the basis that there was no evidence that anyone had been detained on Lithuanian territory.",
"206. On an unspecified date in January 2015 Reprieve filed with the Prosecutor General ’ s Office the 2015 Reprieve Briefing (see also paragraph 11 8 above and paragraph 39 5 below).",
"2. Reopening of the investigation on 22 January 2015 and further proceedings",
"207. On 22 January 2015, having regard to the declassified 2014 US Senate Committee Report, the prosecutor decided to quash the decision of 14 January 2011 and to re-open the investigation No. 01-2-00016-10 under Article 228 §1 (abuse of office) of the Criminal Code. The decision, in so far as relevant read as follows:",
"“The decision of 14 January 2011 is annulled and the pre-trial investigation No. 01 ‑ 2-00016-10 is reopened.",
"In accordance with Article 217 § 2 of the Code of Criminal Procedure (hereinafter referred to as CCP), a pre-trial investigation might be reopened where essential circumstances, which are relevant for a fair resolution of a case and which were not known at the moment of discontinuation of a pre-trial emerge.",
"US Senate published a redacted report on activities of CIA prisons on 9 December 2014. Though the report does not refer to particular countries where secret CIA detention centres were present, it refers to the ‘ Violet ’ centre where the citizen of Saudi Arabia Mustafa al-Hawsawi was detained.",
"In regard to the alleged illegal transportation of this person to Lithuania on 13 February 2014 the Prosecutor General ’ s Office opened the pre-trial investigation [under Article 292 the CC], which to date is still in progress.",
"The data contained in the published Report of US Senate of 9 December 2014 to be considered as a ground to reopen the discontinued pre-trial investigation No. 01 ‑ 2 ‑ 00016-10 within the meaning of Article 217 § 2 of the CCP.",
"Taking into consideration the content of the information, some coincidences of this information with the data provided in the conclusions of the parliamentary inquiry carried out by the CNSD on the alleged transportation and confinement of persons detained by CIA in the territory of the Republic of Lithuania and with the subject ‑ matter of the pre-trial investigation No. 01-2-200016-10, it is necessary to re-evaluate importance of the newly emerged data by procedural means in order achieve the purpose of the criminal process as it is indicated under Article 1 § 1 of CCP.”",
"208. On 6 February 2015 the investigation was joined with investigation No. 01-2-000-15-14 concerning Mr Mustafa Ahmed al ‑ Hawsawi and unlawful transportation of persons across the State border, an offence defined in Article 292 of the Criminal Code.",
"209. In the case of Mr al-Hawsawi, on 27 January 2015, the Prosecutor General ’ s Office had asked the Cracow Prosecutor of Appeal in Poland for legal assistance in relation to the alleged unlawful transportation of Mr Mustafa Ahmed al-Hawsawi or other persons across the Lithuanian State border.",
"210. On 29 May 2015 the Prosecutor General ’ s Office asked the Prosecutor ’ s Office attached to the Court of Cassation in Romania for legal assistance. Subsequently, requests for legal assistance were also sent to the US authorities, Morocco and Afghanistan. The US authorities, having been addressed twice, replied that they could not provide the information requested. Morocco refused the request.",
"211. The proceedings are still pending.",
"V. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Constitution of the Republic of Lithuania",
"212. The relevant provisions read as follows:",
"Article 20",
"“Human liberty shall be inviolable.",
"No one may be arbitrarily apprehended or detained. No one may be deprived of his liberty otherwise than on the grounds and according to the procedures established by law. No one may be arbitrarily detained or held arrested. No one may be deprived of his freedom otherwise than on the grounds and according to the procedures which have been established by law.",
"... ”",
"Article 21",
"“The person of the human being shall be inviolable.",
"The dignity of the human being shall be protected by law.",
"It shall be prohibited to torture, injure a human being, degrade his dignity, subject him to cruel treatment as well as to establish such punishments.",
"No one may be subjected to scientific or medical experimentation without his knowledge and free consent.”",
"Article 22",
"“The private life shall be inviolable.",
"Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable.",
"Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law.",
"The law and the court shall protect everyone from arbitrary or unlawful interference in his private and family life, and from encroachment upon his honour and dignity.”",
"Article 30",
"“A person whose constitutional rights or freedoms are violated shall have the right to apply to court.",
"Compensation for material and moral damage inflicted upon a person shall be established by law.”",
"Article 118",
"“A pre-trial investigation shall be organised and directed, and charges on behalf of the State in criminal cases shall be upheld, by a prosecutor.",
"In cases established by law, the prosecutor shall defend the rights and legitimate interests of the person, society and the State.",
"When performing his functions, the prosecutor shall be independent and shall obey only the law.",
"... ”",
"B. Criminal Code",
"213. The Criminal Code, which was adopted in 2000 and, with certain amendments, came into force on 1 May 2003, has undergone numerous modifications. Its provisions at the relevant time read as follows:",
"Article 95 Statute of Limitations of Judgment of Conviction",
"“...",
"5. The following crimes provided for in this Code shall have no statute of limitations [1] :",
"2) treatment of persons prohibited under international law (Article 100);",
"... ”",
"Article 100 (as in force until 30 March 2011) Treatment of Persons Prohibited under International Law",
"“A person who intentionally, by carrying out or supporting the policy of the State or an organisation, attacks civilians on a large scale or in a systematic way and commits their killing or causes serious impairment to their health; inflicts on them such conditions of life as to bring about their death; engages in trafficking in human beings; commits deportation of the population; tortures, rapes, involves another in sexual slavery, forces someone to engage in prostitution, forcibly inseminates or sterilises a person; persecutes any group or community of persons for political, racial, national, ethnic, cultural, religious, sexual or other reasons prohibited under international law; detains, arrests or otherwise deprives a person of liberty, where such a deprivation of liberty is not recognised, or fails to report the fate or whereabouts of a person; or carries out the policy of apartheid;",
"shall be punished by imprisonment for a term of five to twenty years or by life imprisonment.”",
"Article 146 Unlawful Deprivation of Liberty",
"“1. A person who unlawfully deprives a person of his liberty, in the absence of characteristics of hostage taking,",
"shall be punished by a fine or by arrest or by imprisonment for a term of up to three years.",
"2. A person who commits the act provided for in paragraph 1 of this Article by using violence or posing a threat to the victim ’ s life or health or by holding the victim in captivity for a period exceeding 48 hours",
"shall be punished by arrest or by imprisonment for a term of up to four years.",
"3. A person who unlawfully deprives a person of his liberty by committing him to a psychiatric hospital for reasons other than an illness",
"shall be punished by arrest or by imprisonment for a term of up to five years.”",
"Article 228 (as in force until 20 July 2007) Abuse of Office",
"“l. A civil servant or a person equivalent thereto who abuses his official position or exceeds his powers, where this incurs major damage to the State, an international public organisation, a legal or natural person,",
"shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by a fine or by arrest or by imprisonment for a term of up to four years.",
"2. A person who commits the act provided for in paragraph 1 of this Article seeking material or another personal gain, in the absence of characteristics of bribery,",
"shall be punished by deprivation of the right to be employed in a certain position or to engage in a certain type of activities or by imprisonment for a term of up to six years.”",
"Article 291 Illegal Crossing of the State Border",
"“1. A person who illegally crosses the State border of the Republic of Lithuania",
"shall be punished by a fine or by arrest or by imprisonment for a term of up to two years.",
"2. An alien who unlawfully enters the Republic of Lithuania seeking to exercise the right of asylum shall be released from criminal liability under paragraph 1 of this Article.",
"3. An alien who commits the act provided for in paragraph 1 of this Article with the intent of illegally crossing into a third State from the Republic of Lithuania shall be released from criminal liability according to paragraph 1 of this Article where he is, in accordance with the established procedure, subject to deportation back to the State from the territory whereof he illegally crosses the State border of the Republic of Lithuania or to the State of which he is a citizen.”",
"Article 292 Unlawful Transportation of Persons across the State Border",
"“1. A person who unlawfully transports across the State border of the Republic of Lithuania an alien not having a permanent place of residence in the Republic of Lithuania or transports or conceals in the territory of the Republic of Lithuania such an alien who has illegally crossed the State border of the Republic of Lithuania",
"shall be punished by a fine or by arrest or by imprisonment for a term of up to six years.",
"2. A person who commits the acts provided for in paragraph 1 of this Article for mercenary reasons or where this poses a threat to human life,",
"shall be punished by imprisonment for a term of up to eight years.",
"3. A person who organises the acts provided for in paragraph 1 of this Article",
"shall be punished by imprisonment for a term of four up to ten years.",
"4. A legal entity shall also be held liable for the acts provided for in this Article.”",
"C. Code of Criminal Procedure",
"214. The Code of Criminal Procedure, which was adopted in 2002 and came into force on 1 May 2003, underwent numerous modifications. Its provisions at the relevant time read as follows:",
"Article 1 The Purpose of the Criminal Procedure",
"“The purpose of the criminal procedure is to quickly and comprehensively detect criminal acts and to apply the law correctly when protecting human rights and rights of citizens, so that the person who committed the criminal act is justly punished and an innocent person is not convicted.”",
"Article 2 Duty to Detect Criminal Acts",
"“In every case where elements of a criminal offence are discovered, the prosecutor or the institutions of pre-trial investigation must, within the limits of their competence, take all measures provided by law to investigate and uncover the crime within the shortest time possible.”",
"Article 3 Circumstances when the criminal proceedings are not possible (as in force until 5 December 2017 )",
"“1. Criminal proceedings may not be instituted, and, if instituted, must be terminated in the following cases:",
"1) where no act containing elements of a serious or grave crime was committed;",
"2) where the period of limitation for criminal liability has expired;",
"... ”",
"Article 28 (as effective until 1 March 2016) Victim",
"“1. The person who, as a result of a crime, sustained physical, pecuniary or non-pecuniary damage, shall be recognised as the victim. The person shall be recognised as the victim by an order of a prosecutor or a pre-trial investigation officer or by a court decision.",
"2. The victim and his representative shall be entitled: to adduce evidence, make motions, make challenges, examine the case file in the course of the pre-trial investigation and at court, take part in the court hearing, appeal against the actions of a pre-trial investigation officer, a prosecutor, a pre-trial investigation judge and the court, to appeal against the court ’ s judgment or decision, and to present the closing statements.",
"3. The victim must testify. He shall take an oath and be held responsible for committing perjury in the same manner as a witness.”",
"Article 47 Defence counsel",
"“1. Defence counsel must be an advocate. The same advocate may not act as a counsel for the defence for two or more persons where the interests of the defence of one such person are against the interests of defence of another person.",
"2. A trainee advocate may act as a counsel for the defence upon instructions of the advocate, provided there is no objection from the defended person. A trainee advocate may not take part in the trial involving a serious or grave criminal offence.",
"3. One person may have several counsels for the defence. Where the suspect or the accused has several counsels for the defence and where at least one of them is present, proceedings may continue.”",
"Article 55 [2] Authorised representatives",
"“1. The representative of a victim ... shall be a person who provides legal assistance to th[is] part[y] to the proceedings, protects [his] rights and lawful interests.",
"2. The representative of a victim ... shall be an advocate or a trainee advocate under the advocate ’ s instruction, and, subject to leave granted by the pre-trial investigation officer, the prosecutor or the judge, or any other person with a university degree in law, whom a party to the proceedings has instructed to represent his interests. ...",
"3. The representative of the victim ... shall be permitted to participate in the proceedings from the moment the pre-trial investigation officer or the prosecutor takes such a decision, or a court adopts such a ruling. The representative may participate in the proceedings together with the person he represents or on his behalf, except when representing a victim. The represented person may, at any moment, waive the right to have a representative or choose another representative.",
"4. In cases set out in laws governing the provisions of the State-guaranteed legal aid, the victim ... is entitled to receive the State-guaranteed legal assistance.”",
"Article 62 Complaint against the procedural actions and decisions of the pre-trial investigation officer",
"“1. Parties to the proceedings may lodge complaints against the procedural actions and decisions of the pre-trial investigation officer with the prosecutor supervising the activities of that officer. In the event that the complaint is dismissed by the prosecutor, his decision may be complained of to a higher prosecutor, pursuant to the rules set out in Article 63 of this Code.",
"2. The complaint shall be lodged directly with the prosecutor or through the pre-trial investigation officer against whose procedural actions or decisions a complaint is being lodged. Complaints may be made both orally and in writing. The pre-trial investigation officer or the prosecutor shall enter oral complaints in a record which shall be signed by the complainant and the pre-trial investigation officer or the prosecutor who receives the complaint.",
"3. The pre-trial investigation officer must, within one day, transmit the complaint together with his written explanations to the prosecutor.",
"4. Lodging of a complaint pending its resolution shall not suspend the performance of the action or implementation of the decision against which a complaint is being lodged, save in the cases where the pre-trial investigation officer or the prosecutor recognises that such a suspension is necessary.”",
"Article 63 (as effective until 2011) Complaint against the procedural actions and decisions of the prosecutor",
"“1. The actions and decisions of the prosecutor in charge of the pre-trial investigation may be appealed against to a higher prosecutor. If a higher prosecutor dismisses the appeal, this decision may be appealed against to the pre-trial investigation judge.",
"2. The complaint shall be lodged directly with a higher prosecutor or through the prosecutor against whose procedural steps or decisions the complaint is lodged. The complaints may be made both orally and in writing. The prosecutor shall enter oral complaints in the protocol which shall be signed by the complainant and the prosecutor who receives the complaint.",
"3. The making of a complaint pending its resolution shall not suspend the performance of the act or implementation of the decision against which a complaint is being lodged, save in the cases where the prosecutor determines that such suspension is necessary.”",
"Article 109 Civil claim in a criminal case",
"“A person who has sustained pecuniary or non-pecuniary damage due to a criminal offence shall be entitled to bring a civil claim in a criminal case against the suspect or the accused, or the persons who bear financial responsibility for the actions of the suspect or the accused. The civil claim shall be heard by the court together with the criminal case. When a civil claim has been brought at the stage of the pre-trial investigation, data regarding the basis and amount of civil claim must be gathered during the pre-trial investigation [3] .”",
"Article 110 Civil claimant",
"“1. A natural or a legal person who requests, in a criminal case, compensation for the pecuniary or non-pecuniary damage caused by the criminal offence committed by the suspect or the accused shall be recognised as a civil claimant. The person shall be recognised as a civil claimant by a decision of the pre-trial investigation officer, the prosecutor or the court.",
"2. The civil claimant shall be entitled:",
"1) to submit explanations on the substance of a civil claim;",
"2) to provide evidence;",
"3) to make motions and challenges;",
"4) to examine, in the course of the pre-trial investigation and at court, the material in the case file, to have extracts or copies of the documents he needs made following the established procedure;",
"5) to be present during the hearing at the court of the first instance;",
"6) to lodge complaints against the actions and to appeal against the decisions of the pre-trial investigation officer, the prosecutor, the judge or the court to the extent they are related to the civil action;",
"7) to be present when hearing of the case on appeal.",
"3. The civil claimant must:",
"1) when summoned, be present during the hearing of the case by the first instance court;",
"2) submit, at the court ’ s request, documents in his possession which are relevant for the claim brought;",
"3) observe the rules of procedure established by court.”",
"Article 166 Institution of pre-trial investigation",
"“1. Pre-trial investigation shall be instituted:",
"1) upon receipt of a complaint, application or report about a criminal act;",
"2) where the prosecutor or the pre-trial investigation officer himself has established elements of a criminal act.",
"2. In cases established by this Code, pre-trial investigation shall be instituted only in case where there is a victim ’ s complaint.",
"... ”",
"Article 212 (effective as of 1 September 2011) Discontinuing a pre-trial investigation",
"“A pre-trial investigation must be discontinued if:",
"1) it becomes evident that the circumstances provided for in Articl[e] 3 ... of this Code exist;",
"... ”",
"Article 214 (as in force until 1 March 2016) The procedure for discontinuing a pre-trial investigation",
"“1. In cases established in Article 212 points 1 and 2 of this Code, a pre-trial investigation is discontinued by a decision of a prosecutor or a ruling of a pre-trial investigation judge.",
"...",
"3. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and their representatives are informed about the decision to discontinue the pre-trial investigation or about the decision of the pre-trial investigation judge not to approve the prosecutor ’ s decision to discontinue the pre-trial investigation, by sending them a copy of the act.",
"4. The decision specified in paragraph 1 of this Article may be appealed against to a higher prosecutor ... If a higher prosecutor refuses to grant the appeal, such a decision may be appealed against to a pre-trial investigation judge. Such a decision of a pre-trial investigation judge ...",
"...",
"6. If the pre-trial investigation file contains information about an administrative law violation or about another breach of the law, a prosecutor takes the decision to transfer the material to be decided upon in administrative proceedings or according to another procedure specified by law.”",
"Article 216 (as in force as of 11 December 2010) The content of the decision to discontinue the pre-trial investigation",
"“1. The decision to discontinue the pre-trial investigation contains the description of the crime, and the grounds and reasons for discontinuing the investigation.",
"...”",
"Article 217 (as in force as of 5 July 2011) Reopening a pre-trial investigation which has been discontinued",
"“1. The prosecutor may re-open the pre-trial investigation upon complaints lodged by the parties to the proceedings or on his own initiative, where there are grounds for doing so. The pre-trial investigation shall be reopened by a decision of the prosecutor, having quashed the decision to discontinue criminal proceedings.",
"2. A pre-trial investigation can be reopened upon the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time of adopting the decision to discontinue the investigation.",
"...",
"7. The suspect, his or her representative, his or her lawyer, the victim, civil claimant and civil defendant, and their representatives are informed about the decision to re ‑ open the pre-trial investigation. These persons have a right to appeal against the decision regarding the re-opening. The decision not to re-open criminal proceedings is notified to the party to the criminal proceedings which had submitted a complaint; that party may appeal against such a decision ... ”",
"D. Civil Code",
"215. The relevant provisions of the Civil Code read as follows:",
"Article 6.246 Unlawful actions",
"“1. Civil liability shall arise from the non-performance of a duty established by law or a contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from the violation of the general duty to behave with care.”",
"Article 6.263 Obligation to compensate for damage caused",
"“1. Every person shall have the duty to abide by the rules of conduct so as not to cause damage to another by his actions (active actions or refrainment from acting).",
"2. Pecuniary loss resulting from any bodily or property damage caused to another person and also, in cases established by the law, non-pecuniary damage must be fully compensated by the person liable.",
"3. In cases established by law, a person shall also be liable to compensation for damage caused by the actions of another person or caused by things in his possession.”",
"Article 6.271 Liability to compensation for damage caused by the unlawful action of public authority institutions",
"“1. Damage caused by the unlawful action of a public authority institution must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of the public authority institution. Damage caused by unlawful actions of municipal authority institutions must be redressed by the municipality from its own budget, irrespective of its employee ’ s fault.",
"2. For the purposes of this Article, the notion ‘ public authority institution ’ shall mean any subject of public law (State or municipal institution, official, public servant or any other employee of these institutions, etc.), as well as a private person performing the functions of a public authority.",
"3. For the purposes of this Article, the notion ‘ action ’ shall mean any action (or inaction) by a public authority institution or its employees that directly affects the rights, liberties and interests of persons (legal acts or individual acts adopted by the institutions of State and municipal authorities, administrative acts, physical acts, etc., with the exception of court judgments, verdicts in criminal cases, decisions in civil and administrative cases and orders).",
"4. Civil liability of the State or municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for these institutions and their employees.”",
"Article 6.272",
"Liability for damage caused by the unlawful actions of preliminary investigation officials, prosecutors, judges and the courts",
"“1. Damage resulting either from unlawful conviction, unlawful arrest, as a suppressive measure, application of unlawful procedural measures in enforcement proceedings, or unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State irrespective of the fault of the preliminary investigation officials, prosecution officials or courts.",
"2. The State shall be liable for full compensation in respect of the damage caused by the unlawful actions of a judge or a court trying a civil case, where the damage is caused through the fault of the judge himself or of any other court official.",
"3. In addition to pecuniary damage, the aggrieved person shall be entitled to non-pecuniary damage.",
"4. Where the damage arises from an intentional fault on the part of preliminary investigation, prosecution or court officials or judges, the State, after compensation has been provided, shall have the right to take action against the officials concerned for recovery, under the procedure established by law, of the sums in question in the amount provided for by the law.”",
"E. The Law on Intelligence",
"216. The Law on Intelligence, as effective between 2002 and 2012, read as follows:",
"Article 9 Intelligence tasks",
"“1. Intelligence tasks shall be set for subordinate intelligence institutions by the Minister of National Defence and the Director of the State Security Department whilst taking into account the main areas of the intelligence services ’ activities, the recommendations of the State Defence Council and the needs of international cooperation.",
"2. Ministries and Governmental or other State institutions shall provide the assistance necessary to pursue intelligence tasks.”",
"Article 16 Additional guarantees for intelligence officers",
"“1. State institutions, officials and civil servants shall be prohibited from obstructing or otherwise influencing the intelligence activities pursued by intelligence officers.",
"...",
"3. The State shall show concern for any intelligence officer or family members thereof who become victims for reasons related to service in an intelligence institution and shall provide assistance thereto.",
"4. The State shall compensate for the damage incurred to the intelligence officer or his family member for reasons related to service at the intelligence institution.”",
"F. The Statute of the Seimas",
"217. The relevant provisions regarding the powers of the Seimas committees read as follows.",
"Article 49 (as effective until 2013) Powers of the Seimas Committees",
"“1. The Seimas committees shall have the following powers, within the scope of their competence:",
"...",
"9) when performing the parliamentary control, to hear information and reports from the Ministries and other State institutions concerning the execution of laws of the Republic of Lithuania and other legal acts adopted by the Seimas; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigation into specific problems and to provide the Seimas with their conclusions; to consider, on their own initiative or at the behest of the Seimas, annual activity reports of State institutions that are accountable to the Seimas and to provide the Seimas with their conclusions;",
"... ”",
"Article 56 (as effective until 2013) Powers of the Seimas Committees when Performing Parliamentary Control",
"“1. Committees are entitled, within their competence, to verify compliance with laws, Seimas resolutions, or committee recommendations and proposals; to perform, on their own initiative or at the behest of the Seimas, parliamentary investigations into specific problems; to consider, on their own initiative or at the behest of the Seimas, annual reports of State institutions that are accountable to the Seimas;",
"...",
"3. The committees shall have the right to demand from the State institutions, except courts, and from officials, any documents, written conclusions, reports and other necessary material.",
"4. Committees, when performing parliamentary investigation at the behest of the Seimas, shall act in compliance with the rules of procedure of Seimas control commission or ad hoc investigation commissions, as set forth in Articles 75-76 of this Statute, and shall have the same powers.”",
"Article 75 The Powers and Working Procedure of an Ad Hoc Control or Investigation Commission",
"“1. If an issue is being examined which is relevant to a State secret, the meetings of an Ad Hoc Control or Investigation Commission shall be closed to all persons except those who have been invited thereto, of which a list shall be compiled in accordance with the commission members ’ wishes. In other instances the Ad Hoc Control or Investigation Commission may hold closed meetings only upon receiving leave from the Seimas.",
"2. The data collected in the course of the work of an Ad Hoc Control or Investigation Commission, that is relevant to a State secret, shall not be published.",
"3. The law shall establish the powers of Ad Hoc Control and Investigation Commissions.”",
"Article 76 Decisions of the Ad Hoc Control or Investigation Commission",
"“1. Having completed the assigned operation, the Ad Hoc Control or Investigation Commission shall submit to the Seimas the collected and summarised data, conclusions and prepared draft decision.",
"2. A resolution shall be passed at the Seimas sitting regarding the issue examined by the Ad Hoc Control or Investigation Commission.",
"3. A Seimas resolution may express no confidence in the Government, Minister or head of another State institution, who is appointed by the Seimas, or conclusions may be presented regarding the proposed impeachment process.",
"4. In instances of no confidence, the requirements of Articles 218 or 222 of this Statute shall be applied in order to pass a resolution.”",
"G. The Law on the Seimas Ad Hoc Investigation Commissions",
"218. Article 8 of the Law on the Seimas Ad Hoc Investigation Commissions (“the Law on the Ad Hoc Investigation Commissions”) regarding decisions of the Commission read, in so far as relevant, as follows:",
"“1. The results of the Commission ’ s investigation shall be presented in a draft conclusion. It shall indicate the circumstances established in the course of the investigation, evidence gathered and provide the legal assessment of the situation.",
"...”",
"H. The Constitutional Court ’ s case-law",
"219. The Constitutional Court ’ s ruling of 13 May 2004, concerning the powers of the Seimas ad hoc investigation commissions and the nature of parliamentary inquiries carried out by them, reads, in so far as relevant, as follows:",
"“6. ... [u]nder paragraph 1 of Article 8 (wording of 3 April 2003) of the Law [on the Seimas Ad Hoc Investigation Commissions], the draft conclusion of the Seimas ad hoc investigation commission shall contain, inter alia, a legal assessment of the situation.",
"One must pay attention to the fact that the Seimas ad hoc investigation commission is neither an institution of pre-trial investigation, nor the prosecutor ’ s office, nor the court. The formula ‘ legal assessment ’ is a general notion; it does not mean that the Seimas ad hoc investigation commission must or may present the legal characterisation of the actions that it has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, or of other circumstances that were elucidated by it, which are related to the investigated issue; that is to say, this formula does not mean that the Seimas ad hoc investigation commission has to, or may, indicate the compliance or non-compliance of the said actions, decisions or circumstances with legal acts, but it means that the said actions and decisions must be investigated, other circumstances related to the investigated question must be elucidated and that the results of the Seimas ad hoc investigation commission ’ s inquiry must be drawn up so that on their basis it might be possible to adopt legal decisions – either to adopt respective legal acts or not to adopt them.",
"...",
"7. It needs to be emphasised that the conclusion (or some statements) of the Seimas ad hoc investigation commission in itself directly does not give rise to any legal effects for the persons indicated therein. Such effects could be caused to them only by the decisions of other institutions or their officers, which may be adopted, while taking into consideration the conclusion of the Seimas ad hoc investigation commission.",
"...",
"9. ... It is clear that the Seimas is neither an institution of pre-trial investigation, nor the prosecutor ’ s office, nor the court. Therefore, it needs to be underlined that the formulation of the opinion or point of view of the Seimas regarding the conclusion of the Seimas ad hoc investigation commission formed by it in a resolution of the Seimas may not be construed, under the Constitution, as a legal characterisation of the actions that the Seimas ad hoc investigation commission has investigated, of the decisions adopted by it on the issues that it was assigned to investigate, and of other circumstances that were elucidated by it. The Seimas, after it has decided either to approve or not to approve the conclusion of the Seimas ad hoc investigation commission, or to approve it in part (with reservations), does not adopt a decision on the compliance of the said actions, decisions, and circumstances with legal acts, as is mandatory for other State institutions (including institutions of the pre-trial investigation, the prosecutor ’ s office or courts), but it merely formulates its point of view as to the conclusion of the Seimas ad hoc investigation commission that was formed by it. The Seimas resolution in which the opinion and point of view of the Seimas are formulated as to the conclusion of the Seimas ad hoc investigation commission that was formed by it is not binding on institutions of pre-trial investigation, the prosecutor ’ s office or the court.”",
"VI. RELEVANT INTERNATIONAL LAW",
"A. Vienna Convention on the Law of Treaties",
"220. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Lithuania is a party, provide as follows:",
"Article 26 “ Pacta sunt servanda ”",
"“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”",
"Article 27 Internal law and observance of treaties",
"“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”",
"B. International Covenant on Civil and Political Rights",
"221. Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Lithuania is a party, reads as follows:",
"“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”",
"222. Article 10 § 1 of the ICCPR reads as follows:",
"“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”",
"C. The United Nations Torture Convention",
"223. One hundred and forty-nine States are parties to the 1984 United Nations (“the UN”) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as:",
"“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”",
"224. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law.",
"Article 3 provides:",
"“1. No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.",
"2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”",
"225. Article 12 provides that each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.",
"Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.",
"D. UN Geneva Conventions",
"1. Geneva (III) Convention",
"226. Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows:",
"“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:",
"(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.",
"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:",
"(a) that of being commanded by a person responsible for his subordinates;",
"(b) that of having a fixed distinctive sign recognizable at a distance;",
"(c) that of carrying arms openly;",
"(d) that of conducting their operations in accordance with the laws and customs of war.",
"(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.",
"...”",
"227. Article 5 states:",
"“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.",
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”",
"228. Article 13 reads:",
"“Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.",
"Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.",
"Measures of reprisal against prisoners of war are prohibited.”",
"229. Article 21 reads, in so far as relevant:",
"“The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.”",
"2. Geneva (IV) Convention",
"230. Article 3 of the Geneva (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”) reads, in so far as relevant, as follows:",
"“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:",
"(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.",
"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:",
"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;",
"(b) taking of hostages;",
"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;",
"(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”",
"231. Article 4 reads, in so far as relevant, as follows:",
"“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.",
"Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...”",
"E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts",
"232. The relevant parts of the Articles (“the ILC Articles”), adopted on 3 August 2001 ( Yearbook of the International Law Commission, 2001, vol. II), read as follows:",
"Article lResponsibility of a State for its internationally wrongful acts",
"“Every internationally wrongful act of a State entails the international responsibility of that State.”",
"Article 2 Elements of an internationally wrongful act of a State",
"“There is an internationally wrongful act of a State when conduct consisting of an action or omission:",
"a. Is attributable to the State under international law; and",
"b. Constitutes a breach of an international obligation of the State.”",
"Article 7 Excess of authority or contravention of instructions",
"“The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.",
"...”",
"Article 14 Extension in time of the breach of an international obligation",
"“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.",
"2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.",
"3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”",
"Article 15 Breach consisting of a composite act",
"“1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.",
"2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.”",
"Article 16 Aid or assistance in the commission of an internationally wrongful act",
"“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:",
"( a ) that State does so with knowledge of the circumstances of the internationally wrongful act; and",
"( b ) the act would be internationally wrongful if committed by that State.”",
"F. UN General Assembly Resolution 60/147",
"233. The UN General Assembly ’ s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows:",
"“24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations”.",
"VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001",
"234. The applicant submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment of Al-Qaeda and Taliban detainees in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below.",
"A. United Nations Organisation",
"1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002",
"235. The UN High Commissioner for Human Rights stated as follows:",
"“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.”",
"2. Statement of the International Rehabilitation Council for Torture",
"236. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture (“the IRCT”) submitted a statement in which it expressed its concern over the United States ’ reported use of “stress and duress” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003.",
"3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)",
"237. The UN Working Group found that the detention of the persons concerned, held in facilities run by the United States secret services or transferred, often by secretly run flights, to detention centres in countries with which the United States authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing.",
"B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003",
"238. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows:",
"“1. The Parliamentary Assembly:",
"1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States ’ military custody – some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities;",
"...",
"2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful.",
"3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as “unlawful combatants” – a definition that is not contemplated by international law.",
"4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary.",
"5. The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel.",
"6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody.",
"7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States.",
"8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights.",
"9. In view of the above, the Assembly strongly urges the United States to:",
"9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations;",
"9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status;",
"9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately.",
"10. The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees. ...",
"13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States ’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.”",
"C. International non-governmental organisations",
"1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002",
"239. In this memorandum, Amnesty International expressed its concerns that the US Government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention.",
"2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002",
"240. This report included the following passage:",
"“... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence.”",
"3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002",
"241. This report referred to the Washington Post ’ s article: “U.S. Decries Abuse but Defends Interrogations” which described “how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to ‘ stress and duress ’ techniques, including ‘ standing or kneeling for hours ’ and being ‘ held in awkward, painful positions ’.",
"It further stated:",
"“The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur.”",
"4. International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003",
"242. The relevant passage of this report read as follows:",
"“Many ‘ special interest ’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates.”",
"5. Amnesty International Report 2003 – United States of America, 28 May 2003",
"243. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer (“prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles”) and the conditions of detention (“they were held without charge or trial or access to courts, lawyers or relatives”). It further stated:",
"“A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.”",
"6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003",
"244. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6.",
"7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue”, 18 August 2003",
"245. The relevant passage of this report read as follows:",
"“Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘ irregular renditions ’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections.”",
"8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003",
"246. The relevant passage of this report read as follows:",
"“Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘ rendering ’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law.”",
"9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004",
"247. The ICRC expressed its position as follows:",
"“Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization ’ s current detention work in Guantánamo and Afghanistan.”",
"10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005",
"248. On 6 November 2005 Human Rights Watch issued a “Statement on US Secret Detention Facilities in Europe” (“the 2005 HRW Statement”), which indicated Romania ’ s and Poland ’ s complicity in the CIA rendition programme. It was given 2 days after the Washington Post had published Dana Priest ’ s article revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “Eastern European countries” (see also paragraph 253 below).",
"249. The statement read, in so far as relevant, as follows:",
"“Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates the Washington Post ’ s allegations that there were detention facilities in Eastern Europe.",
"Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research.",
"According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ...",
"On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ...",
"Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees.",
"Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.",
"Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al ‑ Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 ....",
"Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings.”",
"11. Human Rights Watch – List of “ Ghost Prisoners ” Possibly in CIA Custody” of 30 November 2005",
"250. On 30 November 2005 Human Rights Watch published a “List of ‘ Ghost Prisoners ’ Possibly in CIA Custody” (“the 2005 HRW List”), which included the applicant. The document reads, in so far as relevant, as follows:",
"“The following is a list of persons believed to be in U.S. custody as ‘ ghost detainees ’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other “ghost detainees” held by the United States.",
"Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.",
"Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.",
"The current location of these prisoners is unknown.",
"List, as of December 1, 2005:",
"...",
"4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘ George W. Bush: Record of Achievement. Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch.",
"...",
"9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘ George W. Bush: Record of Achievement, Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ...",
"...",
"11. Mustafa al-Hawsawi (aka al-Hisawi)",
"Reportedly arrested on March 1, 2003 (together with Khaled Sheikh Mohammad), Pakistan. Saudi, suspected al-Qaeda financier. Previously listed as “disappeared” by Human Rights Watch.",
"12. Khaled Sheikh Mohammed",
"Reportedly arrested on March 1, 2003, Rawalpindi, Pakistan.",
"Kuwaiti (Pakistani parents), suspected al-Qaeda, alleged to have “masterminded” Sept. 11 attacks, killing of Daniel Pearl, and USS Cole attack in 2000. Listed in “George W. Bush: Record of Achievement, Waging and Winning the War on Terror,” available on the White House website. Previously listed as “disappeared” by Human Rights Watch. ... ”",
"VIII. SELECTED MEDIA REPORTS AND ARTICLES",
"A. International media",
"1. Reports published in 2002",
"251. On 11 March 2002 The Washington Post published an article by R. Chandrasekaran and P. Finn entitled “US Behind Secret Transfer of Terror Suspects” which read, in so far as relevant, as follows:",
"“Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families - that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said.",
"After September 11, these sorts of movements have been occurring all the time ’, a US diplomat told the Washington Post. ‘ It allows us to get information from terrorists in a way we can ’ t do on US soil ’. ...",
"U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries - known as ‘ rendition ’ - is not new. In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ... ”",
"252. On 12 March 2002 The Guardian published an article written by D. Campbell, entitled “US sends suspects to face torture” which was to an extent based on the above article in the Washington Post. It read, in so far as relevant, as follows:",
"“The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks.",
"The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted.",
"According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been ‘ working very closely with other countries ’ – it ’ s a global fight against terrorism ’. ...",
"The seizing of suspects and taking them to a third country without due process of law is known as ‘ rendition ’. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ...",
"The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army.”",
"253. On 2 April 2002 ABC News reported:",
"“US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantànamo Bay or to a military ship at sea. Sources say it ’ s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used.”",
"254. Two Associated Press reports of 2 April 2002 stated:",
"“Zubaydah is in US custody, but it ’ s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantànamo Bay, Cuba, or will be transported to a separate location.”",
"and:",
"“US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantànamo Bay, Cuba, or transferred to a third country.”",
"255. On 26 December 2002 The Washington Post published a detailed article entitled “Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities”. The article referred explicitly to the practice of rendition and summarised the situation as follows:",
"“a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ...",
"‘ If you don ’ t violate someone ’ s human rights some of the time; you probably aren ’ t doing your job, ’ said one official who has supervised the capture and transfer of accused terrorists.”",
"The article also noted that",
"“there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services”.",
"The Washington Post also gave details on the rendition process:",
"“The takedown teams often ‘ package ’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape.”",
"The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture.",
"2. Reports published in 2005",
"256. On 2 November 2005 The Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “CIA Holds Terror Suspects in Secret Prisons” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist. She referred to the countries involved as “Eastern-European countries”.",
"It read, in so far as relevant, as follows:",
"“The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.",
"The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.",
"The hidden global internment network is a central element in the CIA ’ s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA ’ s covert actions.",
"The existence and locations of the facilities – referred to as ‘ black sites ’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.",
"...",
"Although the CIA will not acknowledge details of its system, intelligence officials defend the agency ’ s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay.",
"The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.",
"...",
"It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA ’ s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.",
"Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA ’ s approved “Enhanced Interrogation Techniques,” some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘ waterboarding ’, in which a prisoner is made to believe he or she is drowning.",
"...",
"The contours of the CIA ’ s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency ’ s prisons.",
"More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq.",
"The detainees break down roughly into two classes, the sources said.",
"About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category – in Thailand and on the grounds of the military prison at Guantánamo Bay – were closed in 2003 and 2004, respectively.",
"A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as “rendition.” While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction.",
"...",
"The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials.",
"...",
"The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime.",
"...",
"By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ...”",
"257. On 5 December 2005, ABC News published a report, by Brian Ross and Richard Esposito, entitled “Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror Leaders Subjected to ‘ Enhanced Interrogation Techniques ’ ” and listing the names of top al-Qaeda terrorist suspects held in Poland and Romania, including the applicant. This report was available on the Internet for only a very short time; it was withdrawn from ABC News ’ webpage shortly thereafter following the intervention of lawyers on behalf of the network ’ s owners. At present, the content is again publicly available and reads, in so far as relevant, as follows:",
"“Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania.",
"Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert.",
"CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns.",
"The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country.",
"All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA ’ s secret arsenal, the so-called ‘ enhanced interrogation techniques ’ authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18.",
"Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor.",
"Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ‘ The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt ’, Rice said.",
"The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites.",
"But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ‘ My president has said there is no truth in these reports. ’",
"Ross asked: ‘ Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control? ’ Sikorski answered, ‘ I think this is as much as I can tell you about this ’.",
"In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate.",
"Sources tell ABC that the CIA ’ s secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation.",
"Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States.",
"These same sources also tell ABC News that U.S. intelligence also ships some ‘ unlawful combatants ’ to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations.",
"According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu [Zubaydah] in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ... ”",
"3. ABC News reports of 2009",
"258. On 20 August 2009 ABC News reported that up to the end of 2005 a secret CIA prison had been operating in Lithuania for the purposes of detention of high-value al-Qaeda terrorists. In particular, it was reported that according to “former CIA officials directly involved or briefed” on the CIA programme, “Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country ’ s capital, where as many as eight suspects were held for more than a year.” The published report, by Matthew Cole, was entitled “Lithuania Hosted Secret CIA Prison To Get ‘ Our Ear ’ ” reads, in so far as relevant, as follows:",
"“A third European country has been identified to ABC News as providing the CIA with facilities for a secret prison for high-value al Qaeda suspects: Lithuania, the former Soviet state. Former CIA officials directly involved or briefed on the highly classified program tell ABC News that Lithuanian officials provided the CIA with a building on the outskirts of Vilnius, the country ’ s capital, where as many as eight suspects were held for more than a year, until late 2005 when they were moved because of public disclosures about the program. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period.",
"The CIA told ABC News that reporting the location of the now-closed prison was ‘ irresponsible ’. ‘ The CIA does not publicly discuss where facilities associated with its past detention program may or may not have been located ’, said CIA spokesman Paul Gimigliano. ‘ We simply do not comment on those types of claims, which have appeared in the press from time to time over the years. The dangers of airing such allegations are plain. These kinds of assertions could, at least potentially, expose millions of people to direct threat. That is irresponsible ’. Former CIA officials tell ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have previously been identified as countries that housed secret prisons for the CIA.",
"According to a former intelligence official involved in the program, the former Soviet Bloc country agreed to host a prison because it wanted better relations with the U.S. Asked whether the Bush administration or the CIA offered incentives in return for allowing the prison, the official said, ‘ We didn ’ t have to ’. The official said, ‘ They were happy to have our ear ’.",
"Through their embassy in Washington, the Lithuanian government denied hosting a secret CIA facility. ‘ The Lithuanian Government denies all rumors and interpretations about alleged secret prison that supposedly functioned on Lithuanian soil and possibly was used by [CIA] ’, said Tomas Gulbinas, an embassy spokesman.",
"CIA Secret Prisons",
"According to two top government officials at the time, revelations about the existence of prisons in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the al ‑ Qaeda prisoners out of Europe. The so-called High Value Detainees (HVD) were moved into ‘ war zone ’ facilities, according to one of the former CIA officials, meaning they were moved to Iraq and Afghanistan. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Mohammed, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo, where they remain in CIA custody.",
"The CIA high value detainee (HVD) program began after the March 2002 capture of Abu Zubaydah. Within days, the CIA arranged for Zubaydah to be flown to Thailand. Later, in mid-2003 after Thai government and intelligence officials became nervous about hosting a secret prison for Zubaydah and a second top al Qaeda detainee, according to a former CIA officer involved in the program. One was transferred to a facility housed on a Polish intelligence base in December 2002, said a former official involved with transferring detainees. The facility was known as Ruby Base, according to two former CIA officials familiar with the location.",
"One of the former CIA officers involved in the secret prison program allowed ABC News to view flight logs that show aircraft used to move detainees to and from the secret prisons in Lithuania, Thailand, Afghanistan, Poland, Romania, Morocco and Guantánamo Bay. The purpose of the flights, said the officer, was to move terrorist suspects. The official told ABC News that the CIA arranged for false flight plans to be submitted to European aviation authorities. Planes flying into and out of Lithuania, for example, were ordered to submit paperwork that said they would be landing in nearby countries, despite actually landing in Vilnius, he said. ‘ Finland and Poland were used most frequently ’ as false destinations, the former CIA officer told ABC News. A similar system was used to land planes in Romania and Poland.",
"Interrogation and Detention Program",
"Lithuania, Poland, and Romania have all ratified the U.N. Convention Against Torture as well as the European Convention on Human Rights. All three countries ’ legal systems prohibit torture and extrajudicial detention. Polish authorities are currently conducting an investigation into whether any Polish law was broken by government officials there in hosting one of the secret prisons, according to a published report in the German magazine Der Spiegel.",
"‘ There are important legal issues at stake ’, said human rights researcher John Sifton. ‘ As with Poland and Romania, CIA personnel involved in any secret detentions and interrogations in Lithuania were not only committing violations of U.S. federal law and international law, they were also breaking Lithuanian laws relating to lawless detention, assault, torture, and possibly war crimes. Lithuanian officials who worked with the CIA were breaking applicable Lithuanian laws as well ’.",
"Washington has been sharply divided over whether investigations into the interrogation and detention program should be opened. The CIA has been ordered by a federal judge to declassify and release much of the agency ’ s inspector general report about the first years of the program by next week.",
"Attorney General Eric Holder has said that he is weighing whether he should appoint a special prosecutor to investigate alleged abuses in the program after reading the IG report. At issue are instances of abuse that went beyond the guidelines set up by the Office of Legal Counsel (OLC), which included waterboarding and sleep deprivation of up to 11 days, according to people aware of Holder ’ s thinking. President Obama has called the practices ‘ torture and abolished the program within a few days of taking office this year. But the president has also said that his administration intended to ‘ look forward ’ not backward at Bush-era policies of interrogation and detention.",
"One current intelligence official involved in declassifying the IG report told ABC News that the unredacted portions will reveal how and when CIA interrogators used methods and tactics that were not permitted by the OLC. ‘ The focus will be on the cases where rules were broken ’, the official said. ‘ But remember that all instances were referred to the Justice Department and only one resulted in a prosecution ’, said the official, referring to the conviction of CIA contractor David Passaro, who beat an Afghan detainee to death in 2003.”",
"259. On 18 November 2009 ABC News published another report, by Matthew Cole and Brian Ross, entitled “CIA Secret “Torture” Prison Found at Fancy Horseback Riding Academy”. It reads, in so far as relevant, as follows:",
"“The CIA built one of its secret European prisons inside an exclusive riding academy outside Vilnius, Lithuania, a current Lithuanian government official and a former U.S. intelligence official told ABC News this week.",
"Where affluent Lithuanians once rode show horses and sipped coffee at a café, the CIA installed a concrete structure where it could use harsh tactics to interrogate up to eight suspected al-Qaeda terrorists at a time.",
"‘ The activities in that prison were illegal ’, said human rights researcher John Sifton. ‘ They included various forms of torture, including sleep deprivation, forced standing, painful stress positions ’.",
"Lithuanian officials provided ABC News with the documents of what they called a CIA front company, Elite, LLC, which purchased the property and built the “black site” in 2004.",
"Lithuania agreed to allow the CIA prison after President George W. Bush visited the country in 2002 and pledged support for Lithuania ’ s efforts to join NATO.",
"‘ The new members of NATO were so grateful for the U.S. role in getting them into that organization that they would do anything the U.S. asked for during that period ’, said former White House counterterrorism czar Richard Clarke, now an ABC News consultant. ‘ They were eager to please and eager to be cooperative on security and on intelligence matters ’.",
"Lithuanian president Dalia Grybauskaitė declined ABC ’ s request for an interview.",
"ABC News first reported that Lithuania was one of three eastern European countries, along with Poland and Romania, where the CIA secretly interrogated suspected high-value al-Qaeda terrorists, but until now the precise site had not been confirmed.",
"Until March 2004, the site was a riding academy and café owned by a local family. The facility is in the town of Antaviliai, in the forest 20 kilometers northeast of the city center of Vilnius, near an exclusive suburb where many government officials live.",
"A ‘ Building Within A Building ’",
"In March 2004, the family sold the property to Elite, LLC, a now-defunct company registered in Delaware and Panama and Washington, D.C. That same month, Lithuania marked its formal admission to NATO.",
"The CIA constructed the prison over the next several months, apparently flying in prefabricated elements from outside Lithuania. The prison opened in Sept. 2004.",
"According to sources who saw the facility, the riding academy originally consisted of an indoor riding area with a red metallic roof, a stable and a cafe. The CIA built a thick concrete wall inside the riding area. Behind the wall, it built what one Lithuanian source called a ‘ building within a building ’.",
"On a series of thick concrete pads, it installed what a source called ‘ prefabricated pods ’ to house prisoners, each separated from the other by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. The CIA converted much of the rest of the building into garage space.",
"Intelligence officers working at the prison were housed next door in the converted stable, raising the roof to add space. Electrical power for both structures was provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure were 110 volts, meaning they were designed for American appliances. European outlets and appliances typically use 220 volts.",
"The prison pods inside the barn were not visible to locals. They describe seeing large amounts of earth being excavated during the summer of 2004. Locals who saw the activity at the prison and approached to ask for work were turned away by English-speaking guards. The guards were replaced by new guards every 90 days.",
"Former CIA officials directly involved or briefed on the highly classified secret prison program tell ABC News that as many as eight suspects were held for more than a year in the Vilnius prison. Flight logs viewed by ABC News confirm that CIA planes made repeated flights into Lithuania during that period. In November 2005, after public disclosures about the program, the prison was closed, as was another ‘ black site ’ in Romania.",
"Lithuanian Prison One of Many Around Europe, Officials Said",
"The CIA moved the so-called High Value Detainees (HVD) out of Europe to ‘ war zone ’ facilities, according to one of the former CIA officials, meaning they were moved to the Middle East. Within nine months, President Bush announced the existence of the program and ordered the transfer of 14 of the detainees, including Khaled Sheikh Muhammad, Ramzi bin al Shihb and Abu Zubaydah, to Guantánamo.",
"In August 2009, after ABC News reported the existence of the secret prison outside Vilnius, Lithuanian president Grybauskaitė called for an investigation. If this is true ’, Grybauskaitė said, ‘ Lithuania has to clean up, accept responsibility, apologize, and promise it will never happen again ’.",
"At the time, a Lithuanian government official denied that his country had hosted a secret CIA facility. The CIA told ABC News that reporting the existence of the Lithuanian prison was ‘ irresponsible ’ and declined to discuss the location of the prison.",
"On Tuesday, the CIA again declined to talk about the prison. ‘ The CIA ’ s terrorist interrogation program is over ’, said CIA spokesman Paul Gimigliano. ‘ This agency does not discuss publicly where detention facilities may or may not have been ’.",
"Former CIA officials told ABC News that the prison in Lithuania was one of eight facilities the CIA set-up after 9/11 to detain and interrogate top al-Qaeda operatives captured around the world. Thailand, Romania, Poland, Morocco, and Afghanistan have also been identified as countries that housed secret prisons for the CIA. President Barack Obama ordered all the sites closed shortly after taking office in January.",
"The Lithuanian prison was the last ‘ black ’ site opened in Europe, after the CIA ’ s secret prison in Poland was closed down in late 2003 or early 2004.",
"‘ It obviously took a lot of effort to keep [the prison] secret ’, said John Sifton, whose firm One World Research investigates human rights abuses. “There ’ s a reason this stuff gets kept secret ’. ‘ It ’ s an embarrassment, and a crime ’ .”",
"4. Other Reports (2009- 2011)",
"260. On 19 November 2009 The Washington Post published a report by Craig Whitlock, entitled “Lithuania investigates possible ‘ black site ’ ”. It read, is so far as relevant:",
"“ANTAVILIAI, LITHUANIA -- Residents of this village were mystified five years ago when tight-lipped American construction workers suddenly appeared at a mothballed riding stable here and built a large, two-story building without windows, ringed by a metal fence and security cameras.",
"Today, a Lithuanian parliamentary committee is investigating whether the CIA operated a secret prison for terrorism suspects on the plot of land at the edge of a thick forest for more than a year, from 2004 until late 2005.",
"Lithuanian land registry documents reviewed by The Washington Post show the property was bought in March 2004 by Elite LLC, an unincorporated U.S. firm registered in the District.",
"Records in Lithuania and Washington do not reveal the names of individual officers for Elite but identify its sole shareholder as Star Finance Group and Holdings Inc., a Panamanian corporation. There is no record of Elite owning other property in Lithuania.",
"The company, which has since had its registration revoked by D.C. authorities, in turn sold the property to the Lithuanian government in 2007, two years after the existence of the CIA ’ s overseas network of secret prisons known as black sites -- including some in Eastern Europe -- was first revealed by The Washington Post.",
"At the time, The Post withheld the names of Eastern European countries involved in the covert program at the request of White House officials, who argued that disclosure could subject those countries to retaliation from al-Qaeda.",
"The Lithuanian government has not publicly confirmed whether the property was one of the CIA ’ s black sites.",
"The site in Antaviliai, about 15 miles outside the capital, Vilnius, is now used by Lithuania ’ s State Security Department as a training center. Department officials have declined to comment on the circumstances under which it acquired the property or whether it was used by the CIA. A CIA spokesman also declined to comment.",
"Domas Grigaliūnas, a former counterintelligence officer with the Lithuanian military, said it was widely known among the Lithuanian secret services that U.S. intelligence partners had built the site, although its original purpose was kept highly classified. ’",
"‘ It just popped up out of nowhere ’, he said in an interview. ‘ Everybody knew this was handed to us by the Americans ’.",
"Grigaliūnas said he was asked in 2004 by the deputy director of Lithuanian military intelligence to develop plans to help a ‘ foreign partner ’ that was interested in bringing individuals to Lithuania and concealing their whereabouts as part of a covert operation.",
"He said he made some recommendations but was never told the identity of the foreign partner or whether the operation was carried out. Since then, however, he said he has become convinced that the program involved the CIA ’ s detention centers for terrorism suspects.",
"‘ I have no documents to prove it, and I never worked in any prisons, but I believe they existed here ’, he said in an interview.",
"Villagers who live in a crumbling apartment complex about 100 yards from the site recalled how English-speaking construction workers descended on a small, shuttered horse-riding academy there in 2004. They said the workers refused to answer questions about what they were doing but brought shipping containers filled with building materials. The workers also excavated large amounts of soil; with all the digging, residents said they assumed that part of the new facility was underground.",
"‘ If you got close, they would tell us, in English, to go away ’, said a retired man who lives nearby and spoke on the condition of anonymity, citing fears of retribution. ‘ We were really wondering what they were up to. We even wondered if it was a Mafia drug operation or something ’.",
"Members of the Lithuanian Parliament ’ s National Security and Defense Committee visited the site recently as part of their investigation into whether the CIA detained terrorism suspects on Lithuanian territory.",
"The probe was authorized last month by the Parliament after ABC News reported in August that two CIA-chartered flights had brought al-Qaeda prisoners from Afghanistan to Vilnius in 2004 and 2005.",
"Lithuanian government officials denied the ABC News report at the time and said there was no documentation that the flights ever landed in their country. But the Parliament decided to take another look after Lithuania ’ s newly elected president, Dalia Grybauskaitė, said in October that she had ‘ indirect suspicions ’ that reports of the CIA prison were accurate and urged a more comprehensive investigation.",
"Arvydas Anušauskas, chairman of the National Security and Defense Committee, declined to comment on its findings. In response to written questions submitted by The Post, he said the committee would interview ‘ all the persons who might have known or could have known the information in question ’.",
"‘ The committee has all rights and tools to ultimately clarify the situation and to either confirm or deny any allegations of the transportation of detainees by the Central Intelligence Agency of the United States and their detention on the territory of the Republic of Lithuania ’, he said.",
"Lithuanian officials have also been pressed to investigate by the Council of Europe, an official human rights watchdog, which has conducted its own probe of CIA operations on the continent. Council officials said they had received confidential records confirming that CIA-chartered planes had flown from Afghanistan to Vilnius in 2004 and 2005.",
"Thomas Hammarberg, the council ’ s commissioner for human rights, said in a telephone interview that flight logs had been doctored to indicate that the planes had touched down in neighboring countries, including Finland and Poland.",
"Hammarberg visited Vilnius last month and said he personally urged Lithuanian officials to take the issue more seriously. ‘ I told them it is quite likely that further information might leak from the United States, so they should hurry up and do their own investigation now ’, he said.”",
"261. On 22 December 2009 Agence France Press published a report by Marielle Vitureau, entitled “Lithuania May Have Hosted Two US ‘ War on Terror ’ Jails”. It reads in so far as relevant, as follows:",
"“Vilnius - Staunch US ally Lithuania may have hosted two ‘ war on terror ’ lock-ups used by American agents to interrogate suspected Al-Qaeda members, the head of an inquiry commission said Tuesday.",
"“ ‘ The sites existed ’, Arvydas Anušauskas told reporters as he presented the findings of a probe launched last month by Lithuanian lawmakers. ‘ And planes landed ’. But Anušauskas noted it was not possible to say if any suspects were actually brought to the Baltic state.",
"‘ Regarding the ‘ cargo ’, I can ’ t confirm anything, because Lithuanian authorities could not carry out the usual checks, so what was being transported was unknown ’, he explained.",
"Ex-president Valdas Adamkus, who was in power for much of the period that the sites are believed to have operated, rejected the findings. ‘ I am certain this never happened and nobody proved me wrong ’, Adamkus told the Baltic News Service.",
"Lithuania ’ s parliament called for an investigation after the US television channel ABC alleged that the ex-Soviet republic had hosted a CIA ‘ black site ’, or secret facility, for a handful of captives. ABC cited unnamed former intelligence officials. The move, it was told, was a trade-off for Washington ’ s unbending support for Lithuania ’ s 2004 NATO admission.",
"Ex-communist US allies Romania and Poland have faced similar claims in the past.",
"‘ We have identified the sites. The first project was developed from 2002. In response to the wishes of our partners and the conditions that were imposed, the site was meant to host one person. The second site was created in 2004 ’, Anušauskas said.",
"The second site is believed to have been a converted riding school in the hamlet of Antaviliai, some 20 kilometres (13 miles) from Vilnius. It was purchased in March 2004 by a US-registered firm Elite LLC - purportedly a CIA front.",
"According to information obtained by AFP, the US embassy in Vilnius was involved in acquiring the site for two million litas (579,000 euros, 829,000 dollars).",
"‘ The lay-out of the buildings, their secret nature, the fence around the site, plus the only sporadic visits by VSD operatives [i.e. the SSD], enabled our partners to carry out activities without VSD control and to use the place however they liked ’, said Anušauskas, using the acronym for Lithuanian intelligence.",
"Lithuania ’ s land register shows that the Lithuanian state bought the property in January 2007. It reportedly has since served as a VSD training centre.",
"Prime Minister Andrius Kubilius, in government since winning an election in October 2008, slammed the VSD. ‘ The biggest concern comes from the fact that a few agents, without consulting the head of state, took a decision that breached the law ’, he told reporters, adding that ‘ the VSD became a state within a state ’.",
"Defence Minister Rasa Juknevičienė said she had previously thought the claims were ‘ nonsense ’. ‘ I could not say this today ’, she told reporters.",
"The probe found that five CIA-linked aircraft landed on Lithuanian soil from 2003 to 2006. Two touched down in Vilnius on February 3, 2003, and October 6, 2005. In the second case, border guards were barred from checking the plane, Anušauskas said.",
"Three other aircraft landed at Palanga, on the Baltic coast, around 330 kilometres from Vilnius, on January 2 and February 18, 2005, and March 25, 2006.",
"Anušauskas said the probe concluded that Lithuania ’ s heads of state were ‘ not informed, or only informed superficially ’ about the sites.",
"Adamkus was in power from 1998 to 2003 and again from 2004 to 2009. In between, Rolandas Paksas served a year in office before being impeached in a graft case.",
"Earlier this month, Paksas said that in 2003 he declined a VSD request to transfer suspects to Lithuania. The VSD boss at the time, Mečys Laurinkus, said this month that the request had been hypothetical.”",
"262. On 8 December 2011 The Independent published an article written by A. Goldman and M. Apuzzo, entitled “Inside Romania ’ s secret CIA prison”. While the article concerned the alleged CIA “black site” in Bucharest, it also referred in passing to a secret detention facility in Lithuania. The relevant parts read:",
"“The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation programme ended in 2009.",
"Unlike the CIA ’ s facility in Lithuania ’ s countryside or the one hidden in a Polish military installation, the CIA ’ s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks.",
"...",
"The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries.”",
"B. Lithuanian media",
"263. The applicant produced copies of a number of articles in the Lithuanian press published from 2003 onwards, referring to capture and transfer of detainees to Guantánamo and the conditions of their detention.",
"The summary of the media coverage produced by the applicant in English reads as follows:",
"“(i) On 18 June 2004, the Baltic News Service reported on secret CIA detention, noting that U.S. Secretary of Defence Donald Rumsfeld had acknowledged the secret detention of individuals by the CIA in order to avoid scrutiny by the ICRC. On 26 July 2004, Delfi.lt, the leading Lithuanian online news site, published a lengthy discussion of the “question of means” in the “war on terrorism.” The report described the dilemma facing European states supporting the U.S. fight against terrorism in the light of the abusive United States detention and interrogation policies in Afghanistan, Guantánamo and Iraq. In October 2004, a major daily, Lietuvos Rytas, described the ongoing scandal of prisoner torture by United States officials in Afghanistan. In March 2005, Lietuvos Rytas reported that United States allies were “irritated” by the detention and torture tactics used by the USA.",
"(ii) On 17 December 2004, the Baltic News Service reported on the secret CIA prison established at Guantánamo Bay and the incommunicado detention of detainees there.",
"(iii) On 7 March 2005, the major Lithuanian news agency ELTA reported on the classified Top Secret executive order issued by United States President George Bush in the first days after 11 September 2001 that gave broad authority for the CIA to conduct secret renditions, detention and interrogation. Referring to the “programme of prisoner rendition”, ELTA described some of the abusive conditions under which detainees were held and interrogated.",
"(iv) The following week ELTA reported that European officials would investigate whether the CIA agents had violated the law while carrying out rendition operations in Europe involving transfer of persons to countries where they could face torture. According to ELTA, “the CIA usually organises these operations with the consent of local surveillance organisations; the governments of Italy, Germany and Sweden are investigating whether these actions infringe local laws and human rights.” This was followed on 25 October 2005 by the Baltic News Service reporting that the United States government was seeking to exempt CIA employees from the application of the prohibition of cruel and humiliating treatment.",
"(v) On 2 November 2005 ELTA reported on allegations of secret detention facilities in neighbouring Poland and Romania, noting that both denied the existence of CIA secret prisons on their territory but that the Council of Europe was investigating the claims.",
"(vi) In November 2005 reports began to emerge in Lithuania that aircraft associated with the CIA rendition programme, including N313P and N379P, had used Lithuanian airspace. Lithuanian newspapers published numerous reports in November 2005 detailing the nature of the allegations of a CIA network of secret prisons.”",
"IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING LITHUANIA",
"A. Council of Europe",
"1. Procedure under Article 52 of the Convention",
"264. In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Lithuania.",
"The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed.",
"265. Lithuania ’ s reply was prepared by the Ministry of Foreign Affairs on the basis of information provided by the relevant State institutions. The reply was approved at a consultation meeting of the Lithuanian Government and was discussed at a meeting of the Seimas Foreign Affairs Committee when it considered the issue of the activities of the United States secret services in Europe allegedly carried out in violation of human rights. No competent State institution, either in the course of preparation of the replies by the Ministry of Foreign Affairs or during consideration of the issue by the Seimas Foreign Affairs Committee, provided evidence confirming that the CIA or other United States secret services had been engaged in the illegal confinement of suspected terrorists on Lithuanian territory. Nor was there any information confirming that Lithuania ’ s airports had been used for covert transportation of suspected terrorists.",
"266. In February 2006 the Lithuanian Government provided the Secretary General with answers to the questions posed. The response was a brief summary of the legal framework governing the functioning of foreign agents in Lithuania and the theoretical possibility of claiming damages for unlawful actions by State officials.",
"267. In a letter of 7 March 2006 the Secretary General noted that the explanations provided by the Lithuanian Government did not address all the questions in a sufficiently detailed way. He asked for supplementary explanations on 1) control mechanisms regarding transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft; 2) whether since 1 January 2002 any Lithuanian officials had been involved in secret rendition, and whether any investigations had been conducted in that connection. Lithuania replied on 7 April 2006.",
"268. On 14 June 2006 the Secretary General issued the Supplementary report under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SG/Inf92006)13). It contained the results of an analysis of the replies received in response to the second series of letters sent by the Secretary General.",
"Lithuania ’ s replies as regards control mechanisms concerning transiting aircraft which might be used for rendition purposes by foreign agencies, and to what extent the Lithuanian authorities could exercise jurisdiction over such aircraft were included in the report. The relevant sections read as follows:",
"“3. Control mechanisms regarding transiting aircraft",
"...",
"3.2. State aircraft",
"51. Several States explain in detail their national legislation stipulating clearance requirements for foreign State aircraft (Denmark, Croatia, Georgia, Latvia, Lithuania and Portugal). From the replies given, it appears that foreign governments are generally not required to provide information on the identity and status of persons on board. Once an authorisation is granted, the State aircraft benefits from immunity and is not subject to controls. ... No country mentions the use of specific procedures or clauses designed to ensure effective guarantees against serious human rights violations.",
"52. Latvia (in 2005) and Lithuania (in 2004) enacted comprehensive regulations prescribing the procedure of granting permits for foreign State aircraft. Requests for permission must be made in advance. They must indicate, among other things, the number of passengers (but not their identity, except for VIPs), the purpose of the flight, the flight route and the airports used. ...",
"53. Estonia, Georgia, Lithuania and Slovenia indicate that any transport of detained persons through their respective territories requires prior consent by the Ministry of Justice or the Prosecutor General ’ s Office. However, according to the replies of Lithuania and Slovenia, such consent would not be required for transportation by air without a scheduled landing.",
"54. In contrast to the replies to my first letter (see paragraph 55 of SG/Inf(2006)5), several countries now refer to “general” or “blanket” overflight clearances or rights. Referring to NATO regulations, Latvia and Lithuania declare that NATO has the right to carry out the control and defence of their respective airspace. Military aircraft of NATO member States are accordingly exempt from existing control mechanisms. ... Such arrangements appear to be based on mutual trust. No information is provided about possible safeguards against abuse.",
"55. Lithuania indicates that it granted permanent permissions (valid each time for one year) to use its airspace to US State aircraft from 2001 to 2006. ... ”",
"As regards the question whether, since 1 January 2002 (or since the date of entry into force of the Convention if it had occurred later) any public official had been involved in any manner – by action or omission – in the unacknowledged deprivation of liberty of any individual or transport of any individual so deprived of their liberty, including where such deprivation of liberty may have occurred by or at the instigation of any foreign agency, Lithuania responded in the negative.",
"2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry",
"269. On 1 November 2005 the PACE launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur.",
"On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states ’ international legal obligations, particularly under the European Convention on Human Rights.",
"(a) The 2006 Marty Report",
"270. On 7 June 2006 Senator Dick Marty presented to the PACE his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 266 above), revealing what he called a global “spider ’ s web” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states. The document, as published by the PACE, was entitled “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states” (Doc. 10957) and commonly referred to as “the 2006 Marty Report”. The report explained in detail the CIA methodology of the CIA extraordinary rendition operations and the so-called “global spider ’ s web” of routes taken by the CIA planes executing rendition missions. The report did not refer to Lithuania.",
"271. Chapter 1.8, in paragraph 22 stated:",
"“22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states.”",
"272. Chapter 6, entitled “Attitude of governments”, stated, among other things, the following:",
"“230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known.”",
"273. Chapter 11 contained conclusions. It stated, inter alia, the following:",
"“280. Our analysis of the CIA rendition ’ programme has revealed a network that resembles a ‘ spider ’ s web ’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘ web ’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.",
"...",
"282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘ rendition circuits ’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres.",
"...",
"287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘ guilty ’ for having tolerated secret detention sites, but rather it is to hold them ‘ responsible ’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations.",
"288. In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible):",
"- Sweden, in the cases of Ahmed Agiza and Mohamed Alzery;",
"- Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘ Algerian six ’ );",
"- The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed;",
"- Italy, in the cases of Abu Omar and Maher Arar;",
"- “The former Yugoslav Republic of Macedonia”, in the case of Khaled El-Masri;",
"- Germany, in the cases of Abu Omar, of the “Algerian six”, and Khaled El-Masri;",
"- Turkey, in the case of the “Algerian six”.",
"289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non-specified number of persons whose identity so far remains unknown:",
"- Poland and Romania, concerning the running of secret detention centres;",
"- Germany, Turkey, Spain and Cyprus for being ‘ staging points ’ for flights involving the unlawful transfer of detainees.”",
"(b) The 2007 Marty Report",
"274. On 11 June 2007 the PACE (Committee on Legal Affairs and Human Rights) adopted the second report prepared by Senator Marty (“the 2007 Marty Report”) (doc. 11302.rev.), revealing that high-value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005. The report did not rule out the possibility that the CIA secret detention facilities might also have existed in other Council of Europe member states.",
"The report relied, inter alia, on the cross-referenced testimonies of over thirty serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “data strings” from the international flight planning system.",
"Lithuania was not mentioned in the document. However, the PACE urged the States to conduct national investigations of the alleged implementation of the covert CIA programme of detention and interrogation of suspected terrorists, and proposed that the democratic control and supervision of secret services be strengthened.",
"275. The introductory remarks referring to the establishment of facts and evidence gathered, read, in so far as relevant:",
"“7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to ‘ eastern European democracies ’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of ‘ high value ’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.",
"8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘ need to know. ’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA ’ s illegal activities on their territories.",
"...",
"10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret.",
"11. In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity.",
"12. Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real “intelligence” work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ...”",
"276. In paragraph 30 of the report it is stressed that “the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraphs 75 and 83 it was added that:",
"“75. The need for unprecedented permissions, according to our sources, arose directly from the CIA ’ s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades.",
"...",
"83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA ’ s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO).",
"...”",
"277. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “black sites” for high value detainees. This part of the document read, in so far as relevant, as follows:",
"“112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.",
"...",
"115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘ deep ’ forms of cooperation that afford – for example – ‘ infrastructure ’, ‘ material support and / or ‘ operational security ’ to the CIA ’ s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘ host nation ’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country ’ s territory.",
"116. The classified ‘ host nation ’ arrangements made to accommodate CIA ‘ black sites ’ in Council of Europe member states fall into the last of these categories.",
"117. The CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference.",
"118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected.",
"119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe.",
"120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative.”",
"(c) The 2011 Marty Report",
"278. On 16 September 2011 the PACE (Committee on Legal Affairs and Human Rights) adopted the third report prepared by Senator Marty, entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” (“the 2011 Marty Report”), which described the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe ’ s member states.",
"279. The summary of the report read:",
"“Secret services and intelligence agencies must be held accountable for human rights violations such as torture, abduction or renditions and not shielded from scrutiny by unjustified resort to the doctrine of ‘ state secrets ’, according to the Committee on Legal Affairs and Human Rights.",
"The committee evaluates judicial or parliamentary inquiries launched after two major Assembly reports five years ago named European governments which had hosted CIA secret prisons or colluded in rendition and torture (including Poland, Romania, Lithuania, Germany, Italy, the United Kingdom and the former Yugoslav Republic of Macedonia).",
"Prosecutors in Lithuania, Poland, Portugal and Spain are urged to persevere in seeking to establish the truth and authorities in the United States are called on to co ‑ operate with them. The committee considers that it is possible to put in place judicial and parliamentary procedures which protect ‘ legitimate ’ state secrets, while still holding state agents accountable for murder, torture, abduction or other human rights violations.”",
"280. Paragraphs 14-15 and 37-39 related to Lithuania. They read as follows:",
"“14. In Lithuania, the prosecuting authorities launched a criminal investigation following the revelations of the parliamentary inquiry concerning the existence of two ‘ black sites ’ in the country. The investigation drew in particular on information published in February 2010 in the United Nations joint study on secret detention, which was based on analysis of flight plans and ‘ data strings ’, analogous data to those already used by us to discover the existence of ‘ black sites ’ in Poland and Romania. The British NGO Reprieve also gave the Lithuanian [Prosecutor General] some important elements in its letter of 21 September 2010. Reprieve presented information according to which a “high-value detainee” known as Abu Zubaydah had been detained secretly in Lithuania between 2004 and 2006, in the course of a journey which had allegedly taken him from Thailand to Szymany in Poland, then to Guantánamo Bay and Morocco. After his spell in Lithuania between spring 2004 and September 2006, he was allegedly returned to Guantánamo Bay. But the Lithuanian prosecuting authorities eventually suspended their investigation without any result - despite protests by Amnesty International. Amnesty International considers that numerous ‘ obvious ’ leads had not been followed up by the prosecutors, who in their view also accepted too easily the limits imposed on their investigation by the invocation of state secrecy. The prosecutor ’ s office, for its part, justifies its decision to suspend the investigation by the statute of limitations for a possible abuse of authority and by the refusal of the American authorities to provide the information requested. We consider that the lack of co-operation of the American authorities, as noted before in relation to the German, Italian and Polish authorities, raises a serious problem indeed. This situation is also due to the attitude of those European governments, which abandoned all control over the use of their own infrastructures they unconditionally put at the disposal of the American administration, in the wake of the acceptation of the implementation of Article 5 of the NATO treaty and of the operative measures accepted by the members of the alliance. In this way, the European governments effectively placed themselves in a position of reliance or even dependence on the good will of the American authorities.",
"15. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its report on the visit to Lithuania from 14-18 June 2010, published with the agreement of the Lithuanian authorities on 19 May 2011, provided an initial evaluation of the criminal investigation concerning the secret prisons, raising critical questions as to the promptness of the investigation, the comprehensiveness of its scope and its thoroughness. Most importantly, for this report, the CPT pointed out that it “did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities ’ response of 10 September 2010. ... It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret.”",
"The CPT has an impeccable track record, over 20 years, of keeping the confidentiality of information received in the pursuit of its delicate mission. It publishes only the final report, and only upon the request of the national authorities. It is therefore unacceptable, in my view, that even the CPT did not get access to the information required in order to determine, in accordance with its mandate, whether the investigation by the Lithuanian prosecutor ’ s office into the serious torture allegations in question was performed with due diligence, as required both by the European Convention against Torture and Inhuman and Degrading Treatment and the European Convention on Human Rights.",
"...",
"37. In Lithuania, the Seimas finally undertook a fairly serious inquiry, following some initial hesitations. Indeed, when ABC News caused an outcry by mentioning anonymous sources linked with the CIA which claimed that Lithuania had provided a site outside Vilnius where ‘ high-value detainees ’ were held up to the end of 2005, the chairperson of the parliamentary [Committee on National Security and Defence], Mr Arvydas Anušauskas, initiated a preliminary inquiry. The fairly swift conclusion presented at a joint meeting of that committee with the committee on external relations was that there was not enough evidence to justify the opening of a formal parliamentary inquiry. But on the occasion of the visit of the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in October 2009, the Commissioner and the President of Lithuania, Ms Grybauskaitė, publicly expressed scepticism about the preliminary inquiry. On 5 November 2009, the Lithuanian Parliament finally instructed the [Committee on National Security and Defence] to undertake a full parliamentary inquiry, which yielded its results as early as 22 December that year. Despite the short time allowed, the findings were quite substantial: Lithuanian agents had participated in the American programme of transfer of prisoners and secret prisons; it was possible to trace at least six landings of aircraft used in this programme. The CIA asked the Lithuanian secret service (SSD) for assistance in preparing places of detention for persons suspected of activities linked with terrorism, and two locations are said to have actually been prepared for this purpose: the first had apparently never been used while the investigation was unable to establish whether people had actually been held prisoner at the second (at Antaviliai on the outskirts of Vilnius). But it reportedly emerged that the CIA agents had been able to use it as they pleased without the slightest oversight by the SSD at certain periods. Finally the investigation was also unable to establish whether the state ’ s top leaders were informed of this co-operation. The investigation caused a spate of resignations including those of the SSD chief Povilas Malakauskas and Foreign Affairs Minister Vygaudas Ušackas. The main recommendation of the parliamentarians ’ report was to open the judicial investigation mentioned above, currently impeded by complete lack of co-operation from the US authorities.",
"38. During the parliamentary inquiry, members of the commission were able to visit the two sites in question but the authorities did not allow access for media and civil society representatives.",
"39. However, the CPT was able to tour the two sites during a visit to Lithuania between 14 and 18 June 2010. The report on the visit was published with the consent of the Lithuanian authorities on 19 May 2011. The CPT concluded that “the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.”",
"B. European Parliament",
"1. The Fava Inquiry",
"281. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (“TDIP”) and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.",
"It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.",
"282. In the course of its work, the TDIP analysed specific cases of extraordinary rendition. According to the Fava Report, these cases “involved the illegal transport of a prisoner by the secret services, or other specialist services, of a third country (including, but not exclusively, the CIA and other American security services) to various locations, outside any judicial oversight, where the prisoners have neither fundamental rights nor those guaranteed by various international conventions, such as all habeas corpus procedures, the right of the defence to be assisted by a lawyer, the right to due process within a reasonable time, etc.”",
"The TDIP studied in detail the following cases of extraordinary rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri; Maher Arar; Mohammed El-Zari; Ahmed Agiza; the ‘ Six Algerians ’ from Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and Martin Mubanga.",
"The TDIP met the victims themselves, their lawyers, the heads of national judicial or parliamentary bodies responsible for specific cases of extraordinary rendition, representatives of European and international organisations or institutions, journalists who followed these cases, representatives of non-governmental organisations, experts in this area either during committee meetings or during official delegation visits.",
"283. On 30 January 2007 the final report of the Fava Inquiry was published. As far as Lithuania was concerned, the report noted that :",
"(1) Lithuania provided no written response to the committee ’ s invitation to cooperate;",
"(2) official representatives of Lithuania did not receive any request for meetings with the investigators of the TDIP Committee;",
"3) Lithuania did not provide the investigators with anything useful.",
"The Working Document No. 8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers prepared during the work of TDIP and attached to the Fava Report, contained an analysis of CIA flights having stopped over in the European Union countries.",
"It stated that one CIA-operated aircraft, registered N8213G, made one stopover in Lithuania. It appears from the materials of the Seimas inquiry that the flight in question took place on 4 February 2003 made a stopover in Vilnius airport en route to Warsaw, Poland (see paragraph 173 above).",
"The relevant section of the Working Document No. 8 read, in so far as relevant, as follows:",
"“Total number of stopovers of CIA aircraft in Lithuanian airports: 1",
"Total number of Lithuanian airports involved",
"1 airport involved",
"List of Lithuanian airports",
"Vilnius (1).",
"Total number of CIA aircraft having stopped over in Lithuania",
"1 different CIA aircraft.",
"List of CIA aircraft (Registration Numbers) having stopped over in Lithuania:",
"N8213G.",
"Total number of stopovers in Lithuania for each CIA aircraft and relevant details of specific aircraft: N8213G: 1 stopover in Lithuania”",
"284. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.",
"2. The 2007 European Parliament Resolution",
"285. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) (“the 2007 EP Resolution”). It did not refer to Lithuania.",
"In its general part the resolution referred, among other things, to an “informal transatlantic meeting” that had taken place on 7 December 2005 and involved foreign ministers of the of European Union (“EU”) and North Atlantic Treaty Organisation (“NATO”) and US Secretary of State Condoleezza Rice. The relevant section read as follows:",
"“ The European Parliament,",
"...",
"L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter,”",
"286. The passages regarding the EU member states read, in so far as relevant:",
"“9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;",
"...",
"13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;",
"...",
"39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;",
"...",
"43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);",
"44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;",
"...",
"48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;",
"...”",
"3. The Flautre Report and the 2012 European Parliament Resolution",
"287. On 11 September 2012 the European Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) – “the Flautre Report”, highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came five years after the Fava Inquiry, highlighted new abuses – notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries – and made recommendations to ensure proper accountability. The report included the Committee on Foreign Affairs ’ opinion and recommendations.",
"288. In the course of its work, on 27 March 2012, LIBE Committee held a hearing on “What is new on the alleged CIA illegal detention and transfers of prisoners in Europe”. At that hearing Mr Crofton Black from the Bureau of Investigative Journalism was heard as an expert.",
"289. In April 2012 the LIBE delegation visited Lithuania. The applicant submitted an extract from a publication (in French) authored by Helene Flautre and Bertrand Verfaille entitled “ Le programme secret de la CIA et le Parlement Européen – histoire d ’ un forfait, histoire d ’ un sursaut ” describing the visit of the LIBE delegation to Lithuania. The LIBE delegation visited the premises of Project No. 2, which were given the following description [4] :",
"“[French – orginal]",
"Hélène Flautre décrit une sorte de « bâtiment dans le bâtiment », selon un principe de double coque, des salles plus basses de plafond que d ’ autres, des marches qui pourraient correspondre à celle que d ’ anciens prisonniers de la CIA se souviennent d ’ avoir empruntées, alors que leurs yeux étaient bandés. Le bâtiment est équipé d ’ un énorme appareil de conditionnement d ’ air et d ’ un système de pompage d ’ eau, dont on ne comprend pas bien l ’ utilité. ...",
"[English translation]",
"Hélène Flautre described a kind of ‘ building within the building ’, a double-shell structure, some rooms with lower ceilings than the others and steps which could correspond to those which former prisoners remember taking when blindfolded. The building has an enormous air-conditioning system and a water-pumping system, the purpose of which is not evident.”",
"290. Following the examination of the Report the European Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow ‑ up of the European Parliament TDIP Committee report (2012/2033(INI)) (“the 2012 EP Resolution”).",
"Its general part, in so far as relevant, reads as follows:",
"“ The European Parliament,",
"...",
"T. whereas the Lithuanian authorities have endeavoured to shed light on Lithuania ’ s involvement in the CIA programme by carrying out parliamentary and judicial inquiries; whereas the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the CIA on Lithuanian territory established that five CIA ‑ related aircraft landed in Lithuania between 2003 and 2005 and that two tailored facilities suitable for holding detainees in Lithuania (Projects Nos. 1 and 2) were prepared at the request of the CIA; whereas the LIBE delegation thanks the Lithuanian authorities for welcoming Members of the European Parliament to Vilnius in April 2012 and allowing the LIBE delegation access to Project No. 2; whereas the layout of the buildings and installations inside appears to be compatible with the detention of prisoners; whereas many questions relating to CIA operations in Lithuania remain open despite the subsequent judicial investigation conducted in 2010 and closed in January 2011; whereas the Lithuanian authorities have expressed their readiness to re-launch investigations if other new information were to come to light, and whereas the Prosecutor ’ s Office has offered to provide further information on the criminal investigation in response to a written request from Parliament; ... ”",
"291. Paragraph 14 of the 2012 EP Resolution, which refers to the inquiries in Lithuania, reads:",
"“[The European Parliament],",
"...",
"“14. Notes that the parliamentary and judicial inquiries that took place in Lithuania between 2009 and 2011 were not able to demonstrate that detainees had been secretly held in Lithuania; calls on the Lithuanian authorities to honour their commitment to reopen the criminal investigation into Lithuania ’ s involvement in the CIA programme if new information should come to light, in view of new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, did stop in Morocco on 18 February 2005 on its way to Romania and Lithuania; notes that analysis of the Eurocontrol data also reveals new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006; considers it essential that the scope of new investigations cover, beyond abuses of power by state officials, possible unlawful detention and ill ‑ treatment of persons on Lithuanian territory; encourages the Prosecutor General ’ s Office to substantiate with documentation the affirmations made during the LIBE delegation ’ s visit that the ‘ categorical ’ conclusions of the judicial inquiry are that ‘ no detainees have been detained in the facilities of Projects No. 1 and No. 2 in Lithuania; ... ”",
"4. The 2013 European Parliament Resolution",
"292. Having regard to the lack of response to the recommendations in the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) (“the 2013 EP Resolution”).",
"Its general part read, in so far as relevant, as follows:",
"“The European Parliament,",
"...",
"F. whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania ’ s involvement in the CIA programme if new elements emerge, but still have not done so; whereas in their observations to the ECtHR in the case of Abu Zubaydah, the Lithuanian authorities demonstrated critical shortcomings in their investigations and a failure to grasp the meaning of the new information; whereas Lithuania holds the presidency of the Council of the European Union in the second half of 2013; whereas a complaint was submitted on 13 September 2013 to the Lithuanian Prosecutor General, calling for an investigation into allegations that Mustafa al-Hawsawi, who is currently facing trial by military commission at Guantánamo Bay, had been illegally transferred to, and secretly detained and tortured in, Lithuania as part of a CIA-led programme; ... ”",
"Paragraph 4, which concerns Lithuania, reads:",
"“[The European Parliament,]",
"...",
"4. Urges Lithuania to reopen its criminal investigation into CIA secret detention facilities and to conduct a rigorous investigation considering all the factual evidence that has been disclosed, notably regarding the ECtHR case of Abu Zubaydah v Lithuania; asks Lithuania to allow the investigators to carry out a comprehensive examination of the renditions flight network and contact persons publicly known to have organised or participated in the flights in question; asks the Lithuanian authorities to carry out forensic examination of the prison site and analysis of phone records; urges them to cooperate fully with the ECtHR in the cases of Abu Zubaydah v Lithuania and HRMI v Lithuania; calls on Lithuania, in the context of reopening the criminal investigation, to consider applications for status/participation in the investigation from other possible victims; urges Lithuania to respond in full to requests for information from other EU Member States, in particular the request for information from the Finnish Ombudsman regarding a flight or flights that could link Finland and Lithuania to a possible rendition route; urges the Lithuanian Prosecutor General to carry out a criminal investigation into Mustafa al-Hawsawi ’ s complaint; ... ”",
"5. The 2015 European Parliament Resolution",
"293. Following the publication of the 2014 US Senate Committee Report (see paragraphs 21-23 and 69-88 above), on 11 February 2015 the European Parliament adopted the Resolution on the US Senate Committee Report on the use of torture by the CIA (2014/2997(RSP)) (“the 2015 EP Resolution”).",
"The European Parliament, while noting that the applicant ’ s application was pending before the ECHR, reiterated its calls on Member States to “investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light”.",
"The European Parliament further expressed concern regarding the “obstacles encountered by national parliamentary and judicial investigations into some Member States ’ involvement in the CIA programme”.",
"6. The October 2015 hearing before the LIBE",
"294. On 13 October 2015 a hearing was held before the LIBE Committee on “Investigation of alleged transportation and illegal detention of prisoners in European Countries by the CIA”. The aim of the hearing was to analyse all past and ongoing parliamentary and judicial inquiries relating to Member States ’ involvement in the CIA programme. During the hearing a research paper was presented by the Policy Department C on the latest developments on Member States investigations into the CIA programme titled: “A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme”. The Committee also heard a summary overview by Mr Crofton Black from the Bureau of Investigative Journalism on what had been achieved with reference to CIA operated secret prisons in Europe. In particular, Mr Black stated that since the adoption of the 2012 EP Resolution and the publication of the 2014 US Senate Committee Report the evidence had been conclusive that the CIA had operated a prison in Lithuania from February 2005 to March 2006.",
"7. The 2016 European Parliament Resolution",
"295. On 8 June 2016 the European Parliament adopted a follow-up resolution to the 2015 EP Resolution (2016/2573(RSP)) (“the 2016 EP Resolution”). In respect of Lithuania, the resolution states, in so far as relevant, as follows:",
"“[The European Parliament ,]",
"11. Urges Lithuania, Romania and Poland to conduct, as a matter of urgency, transparent, thorough and effective criminal investigations into CIA secret detention facilities on their respective territories, having taken into full consideration all the factual evidence that has been disclosed, to bring perpetrators of human rights violations to justice, to allow the investigators to carry out a comprehensive examination of the renditions flight network and of contact people publicly known to have organised or participated in the flights in question, to carry out forensic examination of the prison sites and the provision of medical care to detainees held at these sites, to analyse phone records and transfers of money, to consider applications for status/participation in the investigation from possible victims, and to ensure that all relevant crimes are considered, including in connection with the transfer of detainees, or to release the conclusions of any investigations undertaken to date;",
"...",
"17. Notes that the data collected during the Lithuanian Parliamentary Committee on National Security and Defence (Seimas CNSD) inquiry into Lithuania ’ s involvement in the CIA ’ s secret detention programme has not been made public, and calls for the release of the data;”",
"C. The 2007 ICRC Report",
"296. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.",
"297. After the US President publicly confirmed on 6 September 2006 that 14 terrorist suspects (“high value detainees”) – including the applicant – detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see paragraph 58 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody of February 2007 – “the 2007 ICRC Report” – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.",
"The report was (and formally remains) classified as “strictly confidential”. It was published by The New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU ’ s site.",
"298. Extracts from the 2007 ICRC Report giving a more detailed account of the applicant ’ s and other HVDs ’ treatment in CIA custody can be found in Husayn (Abu Zubaydah) v. Poland (cited above, §§ 101-104 and 276).",
"299. The sections relating to main elements of the HVD Programme, routine procedures for the detainees ’ transfers and their detention regime read, in so far as relevant, as follows:",
"“1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM",
"... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.",
"...",
"2. ARREST AND TRANSFER",
"... Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006.",
"The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.",
"The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.",
"In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees ’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.",
"... [T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. ...",
"1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION",
"Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.",
"None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.",
"In addition, the detainees were denied access to an independent third party. ...",
"1.3. OTHER METHODS OF ILL-TREATMENT",
"... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.",
"...",
"1.4. FURTHER ELEMENTS OF THE DETENTION REGIME",
"The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.",
"In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.",
"The situation was further exacerbated by the following aspects of the detention regime:",
"• Deprivation of access to the open air",
"• Deprivation of exercise",
"• Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation",
"• Restricted access to the Koran linked with interrogation.",
"These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ... ”",
"D. The 2010 UN Joint Study",
"300. On 19 February 2010 the Human Rights Council of United Nations Organisation released the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism” – “the 2010 UN Joint Study” (A/HRC/1342).",
"301. In the summary, the experts explained their methodology as follows:",
"“In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.",
"In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well.”",
"302. They described their approach to the States ’ complicity in the secret detention as follows:",
"“The experts also address the level of involvement and complicity of a number of countries.",
"For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; (c) has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed.”",
"303. In relation to Lithuania the report stated, among other things, the following:",
"“120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantánamo; the second, from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point.",
"121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament. In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to ‘ equip facilities in Lithuania suitable for holding detainees ’. In relation to the first facility, the Committee found that ‘ conditions were created for holding detainees in Lithuania ’. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that:",
"‘ The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees ... However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion ’.",
"The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises.",
"122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country ’ s role. On 14 January 2010, President Dalia Grybauskaitė rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country ’ s territory without parliamentary approval.",
"123. The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether ‘ the authorities reacted effectively to the complaints at the relevant time ’. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it ‘ must be ‘ effective ’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities ’. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened and ‘ should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions ’.",
"124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into ‘ war zone facilities ’ in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantánamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantánamo in September 2006.”",
"X. SUMMARY OF WITNESS TESTIMONY PRODUCED BY THE GOVERNMENT",
"304. In response to the Court ’ s request to provide the transcripts of testimony taken from witnesses in the criminal investigation in connection with the implementation of Project No. 1 and Project No. 2, the Government, in their written observations of 17 September 2015, provided a summary description of the witness testimony in English. In order to protect the witnesses ’ identity and the secrecy of the investigation, their names were anonymised by a single letter of the alphabet and their workplace and function were described in a general manner.",
"However, in some instances several clearly different persons were anonymised by the same letter; for instance, letter “A” designated a person “who held an important political post”; an airport employee; “the officer”; a person “who held a leading post at the SBGS”; and a person “who held a leading post at the Intelligence Services”. Similarly, “B” designated a person “who held a leading post at the Intelligence Services”; an airport employee; “a politician who held an important political post”; an “SBGS officer” and an “employee of another institution”. In sum, in many instances a single letter designated various persons.",
"In view of the foregoing and for the sake of clarity, wherever necessary, the respective witnesses are referred to below as “A”, “A1”, “A3”, etc.",
"The testimony of the witnesses who stated that they “did not remember anything about 6 October 2005”; “did not know anything”; “found out about the events at issue directly from the media”; “did not know anything about any premises”; “could not remember anything of the day in issue”; and “did not know about Project No. 1 and Project No. 2, did not see any premises suitable for holding persons, “found out about the alleged detentions only from ABC News ” and “never heard about the establishment of such premises” are omitted.",
"305. Until the public hearing, at which the Government withdrew their request to restrict public access to their pleading of 17 September 2015 and documents attached thereto, except to the extent necessary to ensure the protection of personal data, these materials were treated as confidential under Rule 33 § 2 (see also paragraphs 11 and 13 above).",
"306. The statements rendered below are produced verbatim from the Government ’ s pleading [5].",
"Witness A",
"307. On 3 March 2010 a politician, A, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The construction of Project No. 2 was funded not by the Government but by the partners. During the investigation it was established that there were up to ten CIA ‑ related flights in Palanga and Vilnius. The politician noted that during the presidency of Rolandas Paksas, Mečys Laurinkus – the former head of the SSD at that time – had applied for the temporary possibility of holding persons suspected of terrorism, but the Head of State had replied in the negative. He noted that it was a general inquiry and that there were such inquiries in other countries too.",
"Witness A1",
"308. During the questioning on 26 March 2010, A1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, indicated that he did not remember if he was working on 6 October 2005. He noted that in cases of departure through the governmental gates only the personal documents should be checked.",
"As an airport employee, A1 noted, during the questioning in the pre-trial investigation, that all vehicles leaving the territory of the airport, to which access was limited, were inspected, paying particular attention to the permission issued to the vehicles or leaving persons. If vehicles left through the governmental gates, they were not inspected. In such cases a letter faxed from the Seimas, the Presidency or the Government, with information as to who, when and what type of vehicle would be leaving was always submitted. Thus, only the documents of leaving persons were inspected.",
"Witness A2",
"309. On 13 April 2010 A2 was questioned for reasons other than the office he held and not directly related to the circumstances being investigated under the pre-trial investigation. The officer provided information as regards Project No. 2 and information as regards the sale of the premises of Project No. 2 in 2004. The officer observed that after the sale he did not enter the premises and from the outside there were no big changes to be seen. The premises consisted of residential premises of 240 sq. m., a stable of 350 sq. m. and an equestrian hall of 400 sq. m. After the sale the officer interacted with the residents living nearby, but they had not noticed any large equipment or vehicles with flashing lights.",
"Witness A3",
"310. During the questioning on 15 April 2010, A3, who had held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there were no requests not to inspect passengers of arriving aircraft. It was also noted that customs would perform cargo control. The SGPS could check only personal documents.",
"Witness A4",
"311. On 11 June 2010, A, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.",
"The officer confirmed that Project No. 1 belonged to the Ministry of Foreign Affairs, and the SSD had used it under the agreement. The officer noted that he had never visited the said auxiliary building of Project No. 1. As regards Project No. 2 the officer noted that he did not know anything about it until the premises were turned into the Training Centre of the SSD. He visited the building for the first time in 2007, but did not see any premises that would be suitable for forced restriction of freedom of persons. The officer had to interact with the representatives of international partners, they had joint projects, but no one had ever applied for unlawful detention of persons. There were no such discussions with other officers either. No transportation to/from the airport, escorts or cargos were ever organised and he did not know anything about it.",
"Witness B",
"312. On 17 February 2010, B, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.",
"The officer did not know anything about Project No. 2, which is now the Training Centre. The officer had never been there. The officer mentioned that there was talk that the SSD would acquire premises to establish the Training Centre. The officer testified that he was familiar with the premises of Project No. 1.",
"The officer frequently visited the premises of Project No. 1, where the meetings with foreign partners were held, as the said premises were suited better for these meetings. The officer remembered that once, maybe in 2002-2003, a repair had been carried out, but he did not know what specifically had been repaired. The officer had never been in the second building, which perhaps contained garages. The officer did not know about any requests to hold or transport persons, he had never obtained such information. To his knowledge, the SSD, when carrying out joint operations with foreign partners, received funding from the partners either in money or by technical means; however the officer did not know how it was recorded.",
"However, he also remembered that there was talk that the SSD had to be provided with the premises for the establishment of the Training Centre.",
"Witness B1",
"313. During the questioning on 25 March 2010, B1, who held a post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, did not remember anything about the night of 6 October 2005 or the incident in question.",
"As an airport employee, B1 noted that the aim of the patrolling was to ensure aviation security, i.e. to avoid violations of aviation security, to ensure that persons had permissions, corresponding to the airport regime areas, to ensure that vehicles did not violate traffic regulations and drove with flashing lights on, and to ensure the transport escort in the territory of the platform. The patrolling was shift work, and during one shift the aviation security vehicles usually patrolled. If possible, for safety purposes to observe normal procedure and to ensure that the members of the maintenance staff at the plane had permissions, corresponding to the regime area, a patrol would approach the plane. When the officers of the aviation security approached the planes, they stopped at the red line 5-10 meters away from the plane, which could not be crossed. The officers waited until the plane passengers got on the bus. If there was cargo on the plane, and unless there were call-outs or other planes landing, the officers waited until the cargo was unloaded. However, the safety of the cargo was ensured by the company maintaining the cargo.",
"Witness B2",
"314. On 8 April 2010 a politician, B2, who held an important political post at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The politician noted that he was addressed as regards the transportation and holding of people in Lithuania. As far as he understood, he was asked for his opinion in this regard, whether he would have approved it, if it had taken place. The topic of the conversation at the time was to aid the Americans in the fight against terrorism. B2 did not approve of the idea. While holding his post, he did not happen to hear, nor was he aware of any premises arranged for holding people or certain flights.",
"Witness B3",
"315. During the questioning on 13 April 2010, B3, who held the post of SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that on 6 October 2005 at 5.15 a.m. an unplanned aircraft from Antalya landed. He wanted to perform an inspection, to write down the number, to find out where the aircraft was from, how many passengers there were, when it was to depart, but a vehicle of Aviation Security stopped him from approaching. He noted that some vehicle left the territory through the border control. He did not remember the data of the vehicle. He did not write anything down.",
"Witness B4 (also referred to as “person B” by the Government)",
"316. During the questioning on 18 February 2010 an employee of another institution (person B), able to provide valuable information due to his post, testified that on 6 October 2005 a private non-commercial flight of an aircraft “Boeing 737-200”, tail number N787WH, registered in the USA, was recorded. It arrived from Tallinn without passengers at 4.54 a.m. and on 5.59 a.m. departed for Oslo. It arrived at Tallinn from Antalya. On the same day at 3.58 p.m. another aircraft, model “Beech Be-9L F-90” tail number N41AK registered in the USA departed for Glasgow with two passengers. On 2 January 2005 an aircraft “CASA C-212” tail number N961BW registered in the USA landed in Palanga from Flesland (Norway) and departed for Simferopol (Ukraine). On 18 February 2005 an aircraft “Boeing 737” tail number N787WH registered in the USA from Bucharest to Copenhagen landed in Palanga. B4 noted that there were unplanned flights, but they were quite rare. In case of training mainly Palanga Airport was used, as at that airport there were fewer flights.",
"Witness C",
"317. On 19 February 2010, C, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned.",
"The officer noted that the work of officer D was delegated to him in June 2005. Officer D took officer C to the building in Project No. 1 where there were two-container garages and premises for economic purposes. The SSD administration premises were situated within the same territory. C was able to confirm that the SSD did not have any public or classified documents which could prove that the premises in Project No. 1 were used or arranged as a prison or temporary detention facility. Personally the officer believed that the said premises could not have been used for such purpose because there was a window, residential houses were situated nearby, and one of them was within a distance of 3-4 metres and another one right in front of it. The officer found out about Project No. 2 only in 2007, when the Training Centre began to operate there. The officer later visited it in connection with his work. The officer did not see any premises suitable for holding or detention of persons, he never heard of either.",
"Witness C1",
"318. During the questioning on 17 March 2010, C1, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that nobody applied to the State Border Protection Service to ensure that marks were not put on.",
"C1 noted that the function of the SGPS at the airport was to check the documents of those persons who crossed the State border. The SGPS did not perform the inspection of the planes which landed. The customs officers would inspect the cargo. When a plane landed a State border officer used to approach the plane and to escort the bus to the building. All the passengers would pass through passport control.",
"Witness C2 (also referred to as “person C” by the Government)",
"319. On 27 April 2010 an employee of another institution was questioned (person C), as he could provide valuable information due to his post. C2 noted that in 2002-2005 there were no incidents similar to that of 6 October 2005. C confirmed that there was some letter of the SSD of 5 October 2005 on the intended SSD measure. The SGPS received the letter on 7 October [2005].",
"Witness D",
"320. On 18 February 2010, D, who held a leading post at the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in looking for the premises of Project No. 1 and arranging them.",
"Witness D1",
"321. On 9 March 2010, D1, who due to the duties performed was in other ways connected to the circumstances investigated under the pre-trial investigation, was questioned. The person arranged the premises in Project No. 1. The repairs lasted for around a month. He could not remember the exact works that were carried out.",
"Witness E",
"322. During the questioning on 18 February 2010, E, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, knew about the incident of 6 October 2005 as he was informed about it at 6 a.m. by telephone. He noted that a letter of the SSD on classified training had been submitted.",
"Witness E1",
"323. On 26 February 2010, E1, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer noted that he had been at Project No. 2 and pointed out that training took place there. The officer gave lectures there himself. The officer did not know anything about any premises that were suitable for detention. The officer had to directly communicate with foreign partners, but there were no inquires as regards the terrorists. The officer also did not know anything about the flights.",
"An officer E1, who held a leading post at the SSD, noted that he did not know anything and that he visited Project No. 2, where, as he specified, the training took place. He himself gave lectures there.",
"Witness F",
"324. During the questioning on 20 February 2010, F, who held a leading post at the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, noted that the aircraft departed on 6 October 2005 at 6.05 a.m. The officer had not been informed about it in advance. The officer also noted that the visibility outside was poor.",
"Witness F1",
"325. During the questioning on 3 March 2010, F1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that the Operational Services used to issue permissions.",
"F1 noted that the CAA supervised Aviation Security and checked the work. The SSD also used to be in charge of aviation security. The officers of the Intelligence service could enter the regime area only after Aviation Security had been warned in written form about it in advance, also after the permanent permissions, issued to the officers of the Intelligence Service, who provided the airport with permanent maintenance, had been submitted, or after the official passes of those officers had been provided. The duty of the Aviation Security officers was to inspect the documents of the said persons and to check whether they actually were the officers of the Intelligence services. It was noted that Aviation Security had cooperated with the SSD as well as with the other intelligence services.",
"Witness G",
"326. During the questioning on 11 February 2010, G, who held a leading post in the SGPS at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 there was an unplanned landing. The officer also noted that the visibility outside was poor.",
"Witness G1",
"327. During the questioning on 23 February 2010, G1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that a request not to perform an inspection used to be submitted by the Ministry of Transport and Communications of the Republic of Lithuania. The Patrol Services of Aviation Security together with a subdivision of the Ministry of the Interior used to control passage from/to the territory of Vilnius International Airport.",
"As G1 noted, the Passenger Inspection Service of Aviation Security would check the passengers and their cabin bags prior to entering the plane in order to ensure the security of the plane and the passengers. While the Patrol Services of Aviation Security, together with a department of the Ministry of the Interior, would control the entry of means of transport into the closed territory of the airport, the SGPS would check the passengers, and Customs would deal with the inspection of luggage.",
"Witness G2",
"328. On 25 March 2010, G2, who held a leading post in the Intelligence Services, associated with the premises of Project No. 2, was questioned. The officer observed that the Training Centre had been moved into Project No. 2 in the middle of 2007. The Training Centre was a structural unit of the SSD, where the introductory, qualification and special training was held. The function of the material supply of the Training Centre was assigned to another unit. There were no cells or other premises suitable for holding persons in the Training Centre. The officer did not know about the source of funding and other matters related to the arrangement of the premises. There were no guard towers or security alarms in Project No. 2.",
"Witness H",
"329. During the questioning on 11 February 2010, H, who held a post as SGPS officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that there was an unplanned landing and that a State border officer B went to perform an inspection. As soon as a State border officer, H, learnt that he was not allowed to perform the inspection, the officer applied to Aviation Security. The Aviation Security Division made an inquiry as to whether they had received any instructions and also noted that the leading officials of the SGPS had been informed.",
"Witness H1",
"330. During the questioning on 17 February 2010, H1, who held a leading post at the airport at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, testified that on 6 October 2005 classified training of the SSD with other States could have taken place. The security of Vilnius International Airport might have been informed about it. The SSD could have brought in and taken out different letters without registering them. There were a lot of international training courses, and the employee H1 could not therefore remember a particular case. If H1 received any request, which was classified, he would keep somebody relevant informed orally.",
"In 2005-2006 there were a lot of flights of the aircraft of NATO member States carrying military and defence delegations in connection with the security of the conferences of NATO Defence Ministers and Ministers for Foreign Affairs in 2005-2006.",
"H1 noted that Aviation Security cooperated with all the Operational Services of the country: those of the Police Department, the Customs Department, the Security Department, the Second Investigation Department under the Ministry of National Defence, the SGPS, the SSD, the SIS and the intelligence services of other institutions. They used to perform certain acts in the areas of limited access in the presence of Aviation Security officers or in their absence. Aviation Security officers had a duty to inspect the documents of those persons in order to ensure that they actually were the officers of the Intelligence Services. The laws regulating the said special services established their right to gain access to the objects. The officers of the Intelligence Services could have access to the regime area after Aviation Security had been warned about it in written form in advance, and also after the permanent authorisations, issued to the officers of the Intelligence services, who provided the airport with the permanent maintenance, had been presented or after the official certificates of those services had been presented.",
"H1 emphasised that the classified SSD training courses with the foreign partners could have taken place and that the SSD could have informed Aviation Security about it by a classified letter. Such letters used to be registered by those institutions, which performed certain acts. There were cases when secret services used to bring such letters and take them away after the acts had been performed. Such letters were not then registered at the office of Aviation Security. The content of such letters could have comprised State secrets. The content of those letters could have been available only to those who had authorisations to work with the secret information. After they had become acquainted with the said content, they would inform orally other employees about it as far as was necessary. The officers of Aviation Security were not always aware of the measures taken by the special services at the airport, or in the area of limited access. There were cases when only oral requests were submitted.",
"Witness K",
"331. On 4 May 2010, K, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. This officer noted that there had been a conversation with officer F as regards the possibility of accepting foreign partners and how this should be organised. He thought that the idea was to accept specialists coming for training. There were no talks about detention or about the arrangement of such premises. The officer was told that the premises were suggested for persons under witness protection programmes. It was also pointed out that the military base could be used. The conversations were abstract and there was no specific information.",
"Witness L",
"332. L, who at the relevant period of time held a leading post in the Intelligence Service, noted that he used to enter the territory controlled by the Vilnius International Airport with a permanent pass. One could also enter the territory with a temporary pass, but such persons could then only enter the territory with an escort.",
"Witness M",
"333. On 6 April 2010, M, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer had told officer D about the need to establish premises for the extradition of secret collaborators. Officer M had communicated with the representatives of foreign partners. The officer did not know exactly what the status of the operation in Project No. 1 was. The officer stated that they had discussed an idea with the partners to establish an intelligence support centre. They needed premises where it could operate. N and O were assigned the task of finding suitable premises. It was decided that the premises of Project No. 2 were suitable. Partners used to cover all the expenses. M himself supervised the arrangements process, but he could not provide many details. M noted that there were no premises suitable for custody or detention of persons. Meetings were held in the building. The supervision of the building was carried out by N and O. They used to escort the partners. Due to the fact that the partners ’ plans slightly changed and the building was not exploited fully, it was decided to use it for the establishment of the SSD Training Centre. In 2005 there were 2-3 flights, communications equipment was transported, parcels for partners and vice versa. The representative of partners would apply for security when escorting. The SSD drafted a letter to the airport administration, possibly to the SGPS for the officers to be given access to the territory. The SSD officers escorted the cargo. The officer did not remember where the communications equipment came from – Vilnius International Airport or Palanga Airport – but there was security organised before its transfer. Later the communications equipment was taken away.",
"M told an officer S, who held a leading post, that there were partners ’ requests to escort the cargo. M confirmed that it was possible; however, it should have been agreed with Vilnius International Airport, and the SGPS. The letters for that purpose were drafted.",
"Witness N",
"1. Questioning on 9 March 2010",
"334. On 9 March 2010, N, who held a post as an officer at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2003 N and O were assigned to assist the partners. There was a direct order from M. The officer looked for a place close to Vilnius for the acquisition of premises. Once they had chosen the premises, the partners came to have a look at them. The officer and O assisted the representative of the partners, who led the construction work. There were administration and recreation areas, a pool table, table football, darts, a TV, padded benches, a gym, and fitness equipment installed; normally the officer did not have access to the administration area. As regards the acquisition, establishment and maintenance of the building of Project No. 2, no operation file was initiated. There were no premises suitable for detention. N himself had free access to the premises; however, he was not aware of the content of the operations that were carried out. Persons did not arrive at the premises of Project No. 2 on their own. Always somebody, N himself or O, used to meet those persons and to escort them from the airport and back. If there was somebody on the premises of Project No. 2, there was necessarily at least one officer: N himself, M or O. Even when there was nobody on the premises, N together with O supervised the building.",
"N noted that in order to enter the airport a letter for the airport was to be presented. He also noted that different persons used to come to the premises of Project No. 2 more often in the beginning of 2005 and ceasing at the end of the year. He used to supervise the premises together with officer O. He himself did not notice if any equipment was transported from the premises. He visited the premises, but not all the rooms, as they were used and there was no reason for him to do that. Besides him, officers M and O were at the building. There were no other officers there. He himself carried out technical functions. In the second part of the year of 2005 officer M told him that the protection of the building was to be entrusted to a unit in charge.",
"2. Questioning on 16 March 2010",
"335. On 16 March 2010, N was questioned again. The officer noted that various persons used to arrive at the premises of Project No. 2 – at the beginning of 2005 more often, and at the end of 2005 it stopped. The officer supervised the premises with O. In the second half of 2005 the officer M told him that the execution of the supervision of the building needs was to be entrusted to a unit in charge. N himself did not see whether there had been any equipment carried away from the premises.",
"Once in 2005 or 2006 N escorted vehicles with the partners to Palanga, the vehicles of the SSD remained and the partners drove towards the aircraft. N himself did not see anything in particular. Then the escort went back to Vilnius. If they needed to go, a letter would be written to the airport. More than once the officer escorted the cargo from the airport, but usually only from Vilnius International Airport. There used to be a specific letter drafted for the airport.",
"Witness O",
"1. Questioning on 9 March 2010",
"336. On 9 March 2010, O, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. He used to escort partners to the airport and went to Palanga and back several times.",
"2. Questioning on 10 March 2010",
"337. On 10 March 2010 O was questioned again. In 2003 N told him that it was necessary to find premises. O carried out technical operations. They found the premises needed, which later were called the premises of Project No. 2. Partners chose the premises. They had arrived several times. In the Spring of 2004 partners started to come. They themselves carried out works, brought the material and the equipment in containers. It was necessary to find a site for storage; they found a site and carried containers there. There was a residential area, recreation area, administration area, a gym, a room with table games, a room with padded benches and a TV, and a kitchenette on the premises. O himself had not been to all of the premises. The officer did not know who arrived at the premises and what they were occupied with. They actively supervised the building until the second half of 2005, then the number of visits decreased, the officers themselves were there less often. O carried out the supervision of the building of Project No. 2 in rotation together with N. O himself was there mostly during the day and N at night. A file on the acquisition, repair and maintenance of the building of Project No. 2 was not initiated. From his conversations with M, O realised that Project No. 2 was an intelligence support centre. In the beginning of 2006 the officer received an order from M that a cargo had to be delivered to Palanga Airport. The officer went together with V and N. They escorted the partners and drove several times to Palanga and back. Some vehicles approached the aircraft, there was no inspection carried out by the SGPS or the customs. They drove loaded with the cargo and returned unloaded.",
"Witness P",
"338. On 1 April 2010, P, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. In 2002-2003 M told him that the representatives of the partners came and proposed to organise a joint operation, to establish premises in Lithuania for the protection of secret collaborators. The officer M was asked to inform him when a particular operation as regards the use of the premises was to be launched. However, in the end it did not take place. M said that the partners most likely abandoned the project. The premises were later used for the SSD needs [the officer was referring to Project No. 1]. During the meetings held with the representatives of the partners, the idea was raised as regards the establishment of an integrated centre in which the SSD officers would be trained and joint operations with partners would be carried out. A was responsible for the support received for Project No. 1, in the form of equipment or by other means. The officer did not know about any requests to establish a prison. The officer offered a purely theoretical consideration that in 2003 there might have been requests for assistance in the fight against terrorism and acceptance of detainees, but it was purely theoretical.",
"Witness Q",
"339. On 4 March 2010, Q, who held a leading post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. He participated in looking for the premises of Project No. 1.",
"Witness R",
"340. On 30 March 2010, R, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre ‑ trial investigation was initiated, was questioned. The officer never visited the premises of Project No. 1, which were referred to in the questions asked. The premises were established for the extradition of secret collaborators. However, he was told that no prison existed. The Training Centre was situated in Project No. 2, which he visited in 2008. M mentioned to the officer R that the Training Centre was built in a joint project with the partners.",
"R testified that he had never been to the premises of Project No. 1, about which he was questioned. However, he noted that the premises were arranged for the extradition of secret collaborators. An officer T also noted that he had heard of the centre for the transfer of secret collaborators. An officer S, who held a leading office, knew nothing about the repair of the auxiliary premises of Project No. 1, its aims or funding resources. Only later did he learn that the premises had been established for the operation, which either ended or never took place.",
"Witness S",
"341. On 18 March 2010, S, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer was not aware of the repairs carried out, its purpose or the financing sources of the auxiliary premises situated in Project No. 1. He later found out that they were preparing for an operation, which either ended or did not take place. The SSD had been obliged to develop relations with the foreign partners in compliance with the Resolution of 2002. There was a need to communicate with more experienced partners, to learn from their experience and benefit from such cooperation. During this period it was decided to establish an intelligence support centre, which would be used in preparation for operations and at the same time for the training of SSD employees. M was in charge of the said sphere, thus S himself did not have any further information. The officer was informed orally about the development in cooperation with the partners as regards the regional intelligence centre. Around May 2004 M was informed that the building had been acquired. M told that him that the partners had covered all the expenses. All information about the centre was provided orally; no documents were provided. There were all sorts of talks, but nothing about terrorists, no enquiries and so on. Project No. 2 was established at the beginning of 2005. The officer went to inspect the premises, but there were no areas suitable for detention; there were recreation areas and administrative offices. The building was used minimally as the partners were slow to take any decision as regards the intelligence centre. Subsequently an agreement with the partners was reached as regards the transfer of the building to the SSD. There were only considerations as regards detention of terrorists, and no requests as regards the detention of persons were received; in theory it was only discussed with the leading officials, but they did not approve. M told him that the requests were received from the partners to escort cargo. The officer was told that they needed to coordinate it with the airport and the SGPS, thus, specific letters had to be drafted. The officer himself had no information about aircraft landing with terrorists.",
"Witness T",
"1. Questioning on 2 March 2010",
"342. On 2 March 2010, T, who held a post in Intelligence at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer looked for premises where safe facilities could be established for the extradition of secret collaborators. However, all the premises were inadequate. D suggested where it would be possible to arrange them and the premises were arranged in Project No. 1.",
"2. Questioning on 16 March 2010",
"343. On 16 March 2010, T was questioned again. The officer noted that they had been looking for premises for the centre to be used for the transfer of the secret collaborators. The officer never escorted any cargo and did not know anything about Project No. 2.",
"An Intelligence Service officer U noted that he looked for premises together with T. In compliance with the instructions given by an officer, D, in 2002 the premises were necessary for temporary accommodation and protection of secret collaborators. U noted that while working at Project No. 1 he thought that the premises were to be arranged for the transfer of secret collaborators.",
"Witness U",
"344. On 3 March 2010, U, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer carried out a task together with T. They looked for premises for temporary accommodation and protection of secret collaborators under the order of D of 2002.",
"Witness U1",
"345. On 8 March 2010, U1, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre ‑ trial investigation was initiated, was questioned. While working at Project No. 1, the officer thought that the premises were established for the transfer of secret collaborators. The officer considered that the premises in the city centre were unsuitable for the detention of persons.",
"Witness V",
"346. On 5 March 2010, V, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer saw that the building of Project No. 1 was being repaired, but he had no connection to the said project. He had escorted other vehicles together with N in March 2006 to Palanga Airport. The officer arrived at the airport and the escorted vehicle drove to the aircraft. The vehicle that drove off was loaded with boxes of not less than 1 metre in length. They were carried by two persons. The officer could not remember the exact number of boxes, but there were not less than three of them. The unloading lasted for around 20-30 minutes. He entered the airport together with M and N, who were standing approximately 50 metres from the aircraft. The aircraft was not inspected. The officer escorted M and N back from Palanga together with O. The officer N told him that there was an operation taking place. The officer knew that prior to going to the airport one of the officers had written a letter to the airport in order for them to gain access to the airport.",
"Witness X",
"347. On 5 March 2010, X, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No. 1.",
"Witness Y",
"348. On 8 March 2010, Y, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in repairing and arranging the premises of Project No. 1. The officer did not see any unauthorised persons visiting the premises.",
"Witness Z",
"349. On 5 March 2010 Z, who held a post in the Intelligence Services at the time of the relevant events into the circumstances of which the pre-trial investigation was initiated, was questioned. The officer participated in arranging and implementing the repair works of the premises of Project No. 1.",
"XI. OTHER DOCUMENTS AND EVIDENCE BEFORE THE COURT",
"A. The 2011 CPT Report",
"350. Among other evidence available to the Court was the 2011 CPT Report on the CPT delegation ’ s visit to Lithuania that took place from 14 to 18 June 2010 and which involved inspections of various places of deprivation of liberty – police, prison and psychiatric establishments. As regards the alleged existence of the CIA secret detention facilities in Lithuania, the central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, the delegation considered that it should also visit “the two tailored facilities” that had been identified in the parliamentary inquiry as “Project No. 1” and “Project No. 2”.",
"The CPT made the following findings of fact.",
"351. As regards the background of the CPT ’ s visit, the 2011 CPT Report read:",
"“64. In August 2009, reports appeared in the media that secret detention facilities for ‘ high value ’ terrorist suspects, operated by the Central Intelligence Agency (CIA) of the United States, had existed in Lithuania until the end of 2005. According to these reports, as many as eight persons were held in those facilities for more than a year. The sources of this information were said to be former CIA officials directly involved with or briefed on a programme of that Agency to detain and interrogate suspected terrorists at sites abroad. Further, it was affirmed that CIA planes made repeated flights into Lithuania during the period in question.",
"On 25 August 2009, the President of Lithuania announced that the above-mentioned reports would be investigated. They were subsequently the subject of an investigation (started in November) by the National Security and Defence Committee of the Lithuanian Parliament. The findings of that Committee were endorsed by the Lithuanian Parliament on 19 January 2010, and a pre-trial investigation was launched on 22 January by the Prosecutor General ’ s Office. That investigation was still underway at the time of the CPT ’ s visit in June 2010.",
"65. In recent years there have been many allegations of secret detention of terror as well as of the related phenomenon of unlawful inter-State transfers of such persons. And on 6 September 2006, the President of the United States publicly acknowledged that the CIA had been holding and questioning, in secret locations overseas, a number of persons suspected of involvement in acts of terrorism.",
"The possible implication of European countries in the above-mentioned practices has been examined within the framework of the Council of Europe and the European Union, and reports from both the Council ’ s Parliamentary Assembly and the European Parliament have affirmed that there has been collusion by certain of those countries.",
"66. As the CPT emphasised in its 17th General Report, secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails – the lack of judicial control or of any other form of oversight by an external authority and the absence of guarantees such as access to a lawyer – inevitably heightens the risk of resort to ill-treatment.",
"The interrogation techniques applied in the CIA-run overseas detention facilities have certainly led to violations of the prohibition of torture and inhuman or degrading treatment. Any doubts that might have existed on this subject were removed by the publication on 24 August 2009 of a Special Review of CIA counterterrorism detention and interrogation activities, dated 7 May 2004 and covering the period September 2001 to October 2003, carried out by the Agency ’ s own Inspector General. Despite being extensively censored, the published version of the Special Review makes clear the brutality of the methods that were being used when interrogating terrorist suspects at sites abroad.",
"67. It was against this backdrop that the CPT ’ s delegation examined the question of the alleged existence of secret detention facilities in Lithuania. The delegation had talks with the Chairman of the Parliament ’ s Committee on National Security and Defence about the findings from the Committee ’ s investigation into this matter, and met members of the Prosecutor General ’ s Office entrusted with the pre-trial investigation which was underway.",
"The central issue for the delegation was to try to assess the effectiveness of the pre-trial investigation. However, for the record, the delegation considered that it should also visit the two tailored facilities that had been identified in the Parliamentary Committee ’ s report when referring to partnership co-operation Projects Nos. 1 and 2.”",
"352. As regards the inspection of the premises of “Project No. 1” and “Project No. 2”, the report read:",
"“68. The facilities of Project No. 1 consisted of a small, single-storey, detached building located in a residential area in the centre of Vilnius. According to the Parliamentary Committee ’ s report, ‘ facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners ... however, according to the data available to the Committee, the premises were not used for that purpose ’.",
"The facilities of Project No. 2 were located in a small locality situated some 20 kilometres outside Vilnius. Far larger than those previously mentioned, the facilities of this project consisted of two buildings (respectively with a brown and a red roof) which were connected and divided into four distinct sectors. As regards the red-roofed building, the layout of the premises resembled a large metal container enclosed within a surrounding external structure. Two parts of this building (a fitness room and a technical area) contained apparatus, machinery and spare parts of US origin as well as instructions and notices written in English. A Lithuanian official accompanying the delegation said that this equipment and written material had been left behind by the previous occupants. According to the Parliamentary Committee ’ s report, ‘ the progress of works [to equip these facilities] were ensured by the partners themselves ... The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2, however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD [State Security Department] staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion ’.",
"The CPT shall refrain from providing a detailed description of the above-mentioned facilities. Suffice it to say that when visited by the delegation, the premises did not contain anything that was highly suggestive of a context of detention; at the same time, both of the facilities could be adapted for detention purposes with relatively little effort.”",
"353. As regards the effectiveness of the criminal investigation carried out in Lithuania the report read, in so far as relevant:",
"“70. As already indicated, the allegations of secret detention facilities in Lithuania that surfaced in August 2009 led to the setting up of a Parliamentary investigation in November 2009, the findings of which in turn resulted in the launching of a pre-trial investigation by the Prosecutor General ’ s Office in January 2010.",
"It can first be asked whether the Prosecutor General ’ s Office displayed the necessary promptitude when the reports of secret detention facilities appeared in August 2009. Admittedly, it was a question of allegations made in the media. However, those allegations had to be seen in the context of certain undisputable facts that were by that time in the public domain, namely that the CIA had been holding and questioning, in secret locations overseas, a number of suspected terrorists and that the persons concerned had been subjected to ill-treatment (see paragraphs 65 and 66). In addition, there was a growing body of evidence, emanating from reports drawn up within the framework of the Council of Europe as well as other bodies, that some of the CIA facilities concerned might have been located in European countries. Against this background, it might be argued that the Prosecutor General ’ s Office should itself have taken the initiative and launched an investigation when the issue of the possible existence of secret detention facilities in Lithuania first came to light in the summer of 2009.",
"71 The question also arises whether the pre-trial investigation that was initiated on 22 January 2010 is sufficiently wide in scope to qualify as comprehensive. The investigation relates to a possible abuse of official position as set out in Article 228, paragraph 1, of the Criminal Code. Certainly, the uncovering of evidence indicative of a possible abuse of official position by certain Lithuanian civil servants was an important outcome of the Parliamentary investigation; however, it was not the only outcome.",
"According to the data collected by the Parliamentary Committee, aircraft which official investigations had linked to the transportation of CIA detainees repeatedly crossed Lithuanian airspace during the period 2002 to 2005 and did land in Lithuania during that period. Further, although the Committee failed to establish whether CIA detainees were brought into/out of Lithuanian territory, it concluded that the conditions for such transportation did exist. The Committee also ‘ established ’ that the Lithuanian State Security Department had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. And, although reaching the conclusion that the facilities of Project No. 1 were ultimately not used for detention purposes, the Committee explicitly refrained from ruling out such a possibility as regards the facilities of Project No. 2 (see paragraph 68).",
"When the delegation raised the issue of the scope of the pre-trial investigation with members of the Prosecutor General ’ s Office, they replied that ‘ facts ’ were needed to launch a criminal investigation, not ‘ assumptions ’; at the same time, they emphasised that if evidence of other criminal acts did come to light during the investigation, its scope could be broadened accordingly. For its part, the CPT considers that when the above-mentioned findings of the Parliamentary Committee are combined with the other elements identified in paragraph 70, it becomes clear that it would have been more appropriate for the scope of the pre-trial investigation to have expressly covered, as from the outset, the possible unlawful detention of persons (and their possible ill-treatment) on Lithuanian territory.",
"72. During its meeting with members of the Prosecutor General ’ s Office, the CPT ’ s delegation sought to ascertain whether the pre-trial investigation complied with the criterion of thoroughness. This was followed up after the visit by a written request from the CPT ’ s President for a chronological account of all steps taken as from the opening of the pre-trial investigation (persons from whom evidence had been taken, whether orally or in writing; documents obtained and examined; on-site inspections carried out; material seized; etc.); information was also sought on whether the assistance of authorities outside Lithuania (in particular of the United States and NATO) had been requested and, if so, whether that assistance had been forthcoming.",
"The delegation did not receive the specific information it requested, either during the above-mentioned meeting or from the Lithuanian authorities ’ response of 10 September 2010. The Committee has been told that: persons related to the subject of the investigation who had meaningful information have been questioned; documents that were meaningful to the investigation have been received; the premises designated as Projects Nos. 1 and 2 have been inspected; no obstacles have been encountered in the conduct of the investigation. It is affirmed that more specific information cannot be provided as the major part of the data gathered during the investigation constitutes a state or service secret.",
"The CPT is not convinced that all the information that could have been provided to the Committee about the conduct of the investigation has been forthcoming. Certainly, given the paucity of the information currently available, it remains an open question whether the pre-trial investigation meets the criterion of thoroughness.",
"73. The pre-trial investigation has not yet been finalised. According to the Prosecutor General ’ s Office, the collected data is still being analysed and decisions remain to be made as regards the necessity for additional investigative acts. The prosecutors met hoped that the investigation would be completed by the end of 2010.",
"Once it has been completed, the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum. This will enable a proper assessment of the overall effectiveness of the investigation to be made and ensure that there is sufficient public scrutiny of its results.",
"The CPT requests that the findings of the pre-trial investigation be forwarded to the Committee as soon as they become available.",
"74. Finally, the CPT has been informed that, on 20 September 2010, the UK-based non-governmental organisation REPRIEVE wrote to the Prosecutor General of Lithuania on the subject of a named person who is currently being held by the US authorities in the detention facilities at Guantánamo Bay. The organisation affirms that it has received information from ‘ the most credible sources inside the United States ’ that this person ‘ was held in a secret CIA prison in Lithuania ’ during the period 2004 to 2006, and requests that this matter be investigated.",
"The CPT would like to be informed of the action taken by the Prosecutor General ’ s Office in the light of the above-mentioned letter. ”",
"354. The 2011 CPT Report listed the following comments and requests for information in respect of the alleged existence of the CIA secret detention facilities:",
"“ Alleged existence of secret detention facilities in Lithuania",
"comments",
"- the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum (paragraph 73).",
"requests for information",
"- the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available (paragraph 73);",
"- the action taken by the Prosecutor General ’ s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010 (paragraph 74).”",
"B. The Lithuanian Government ’ s Response to the 2011 CPT Report",
"355. On 19 May 2011 the Lithuanian Government issued its response to the 2011 CPT Report and requested its publication. The Government in essence summed up the prosecutor ’ s conclusions of 14 January 2011 (see paragraphs 191-199 above).",
"The passages relating to the alleged existence of secret detention facilities in Lithuania read, in so far as relevant, as follows.",
"356. As regards the CPT ’ s comment “ the CPT trusts that the fullest possible information will be made public about both the methodology and the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania. Any restrictions on access to information on grounds of state or service secrecy should be kept to the absolute minimum ”, the Government stated:",
"“Most data received during a pre-trial investigation are subject to classified information protection, as such data constitute a state or official secret bearing relevant classification markings. Whereas pre-trial investigation material contains information that constitutes a state and official secret, upon terminating a pre-trial investigation all pre-trial investigation material shall be transferred to the Information Security and Operational Control Division of the Prosecutor General ’ s Office of the Republic of Lithuania for storage.”",
"357. As regards the CPT ’ s request for “ the findings of the pre-trial investigation launched by the Prosecutor General ’ s Office regarding the allegations of secret detention facilities in Lithuania, as soon as they become available ”, the Government stated:",
"(1) The arrival and departure of aircraft of the Central Intelligence Agency of the United States (hereinafter “the U.S. CIA”) to/from the Republic of Lithuania, U.S. officers ’ access to the aircraft and aircraft cargo and passenger inspections.",
"The arrival and departure of U.S. CIA-related aircraft to/from the Republic of Lithuania was established during the pre-trial investigation. However, the procedure set forth in the Law on Intelligence (Official Gazette Valstybes Zinios, 2000, No. 64 ‑ 1931) was observed in all cases. The competent officers of the airport and the State Border Guard Service (hereinafter the ‘ SBGS ’ ) were informed in writing (or orally) in advance about aircraft and cargo checks planned by the State Security Department (hereinafter “the SSD”). This is confirmed by case documents presented by the SSD and questioned witnesses, namely airport employees, SBGS and SSD officers. No data on illegal transportation of any persons by the aforementioned aircraft was received during the pre-trial investigation. On the contrary, the persons questioned during the investigation either categorically denied such circumstances or said they had no information about it. Therefore, in terms of criminal law, the allegation that persons detained by the CIA were transported by U.S. CIA-related aircraft or brought to/from the Republic of Lithuania is just an assumption not supported by factual data, which is equivalent to an assumption about transportation of any other persons or items in the civil circulation or prohibited items. In the absence of factual data to substantiate this assumption, prosecution cannot be initiated or criminal proceedings cannot be continued at this point. Therefore, it should be stated that by seeking unhindered access to landed aircraft in airport areas and carrying out related actions, SSD officers acted lawfully, did not abuse their official position and did not exceed their powers, and therefore did not commit the criminal act provided for in Article 228 of the CC. Whereas there are no data on illegal transportation of persons by U.S. CIA ‑ related aircraft, it should be stated that there is no reason to address the issue of criminal liability under Article 291 of the CC (Illegal crossing of the state border) and Article 292 (Unlawful transportation of persons across the state border).",
"(2) Implementation of Projects No. 1 and No. 2.",
"It was established during the pre-trial investigation that the SSD and the U.S. CIA implemented Project No. 1 in 2002 and Project No. 2 in 2004. The implementation of both projects is related to building reconstruction and equipment. Discussing the arguments for the termination of the pre-trial investigation in the section regarding the implementation of Project No. 1, it is necessary to draw attention to the term of validity of criminal laws and the statute of limitations as regards criminal liability. .... However, despite this procedural obstacle to the pre-trial investigation, it should be stated that no unambiguous data showing that during the implementation of Project No. 1 the premises had been prepared for keeping the person detained were received during the pre-trial investigation. The received factual data on the specific features of equipment of the premises (which allow to make an assumption about the possibility of keeping the detainee therein) assessed in connection with the data justifying another purpose of the premises, taking into account the fact that there are no data on any actual transportation to and keeping of detained persons on these premises, do not provide a sufficient reason for formulating a notification of a suspicion of abuse to a person and thus initiating prosecution of the person.",
"Regarding Project No. 2, no data on a connection between it and the keeping of detainees were received during the pre-trial investigation. On the contrary, the factual data received during the pre-trial investigation and all related witnesses who have been questioned justify another purpose and use of the building. The real purpose of the premises cannot be disclosed as it constitutes a state secret.",
"It must be stated that the criminal act provided for in Article 228 of the CC was not committed during the implementation of Projects No. l and No. 2 by the SSD and the U.S. CIA.",
"It should be noted that there is no reason to address the issue of criminal liability under Article 100 of the CC (Treatment of persons prohibited under international law) and Article 146 of the CC (Unlawful deprivation of liberty) because, as already mentioned before, no data on illegal transportation of persons, their detention or another illegal restriction or deprivation of liberty were received during the pre-trial investigation. Discussing the assumption about the possibility of keeping the person detained on the premises of Project No. 1, as regards the impossibility of classifying the act under Article 100 of the CC, it must be pointed out that in the absence of persons detained, arrested or otherwise deprived of liberty on the aforementioned premises, a legally significant feature necessary for the classification of the act under Article 100 of the CC – ‘ denial ’ of deprivation of liberty - cannot be stated either.",
"(3) Provision of information on the objectives and content of ongoing Projects No. 1 and No. 2 by SSD management to top state leaders.",
"The legal framework of international cooperation of the SSD is set forth in the Law on Intelligence. Legal acts do not directly require to ‘ approve ’ the directions (tasks) of international cooperation of the SSD at any political level. They have been determined by the general need for international cooperation and direct SSD contacts with the special services of other countries. During the implementation of Projects No. 1 and No. 2 on SSD cooperation with the U.S. CIA, the then SSD leadership failed to inform any top official of the country about the objectives and content of these projects. Upon stating that laws do not establish an obligation to provide such information, and taking into account the fact that, in view of its scope, the provision of such information can and must be performed according to the ‘ need-to-know ’ principle, it must be stated that there are no signs of a criminal act - abuse - at this point either.",
"Pursuant to Article 166 of the CCP, a pre-trial investigation shall be started (1) upon receiving a complaint, statement or report on an offence; (2) if the prosecutor or the pre-trial investigation officer discovers signs of a criminal act. In the case in question, the decision to start a pre-trial investigation into abuse under Article 228( 1) of the CC was taken by the chief prosecutor of the Organised Crime and Corruption Investigation Department of the Prosecutor General ’ s Office who drew up an official report. There was the only ground for the pre-trial investigation, namely the circumstances indicated in the findings of a parliamentary investigation carried out by the National Security and Defence Committee of the Parliament of the Republic of Lithuania into possible transportation and keeping of persons detained by the U.S. CIA in the territory of the Republic of Lithuania.",
"Summarising the data collected during the pre-trial investigation, it must be stated that although all necessary and sufficient measures were used to collect factual data on suspected criminal acts, no objective data confirming the fact of abuse (or another criminal act) were collected during the pre-trial investigation, and the total factual data collected do not suffice for stating that the criminal acts had been committed. Therefore, it is not possible to state the commission of the criminal acts at the moment. On the contrary, such assumption-based information, which served as a ground for launching the pre-trial investigation under Article 228(1) of the CC, did not prove to be true and was denied. Pursuant to Article 3(1)(1) of the CCP, the criminal process shall not be initiated or, if initiated, shall be discontinued if no act having the signs of a crime or a criminal offence has been committed. Therefore, the pre-trial investigation was terminated as no act having the signs of a crime or a criminal offence had been committed.",
"It has already been stated that the factual data on cooperation between the SSD and the U.S. CIA in intelligence activities contained in the pre-trial investigation material showed that no criminal act had been committed when providing information on these activities to top state leaders during the implementation of Projects No. 1 and No. 2. But these data are fully sufficient to state that there were potential signs of a disciplinary offence in the actions of SSD leaders M.L., A.P. and D.D. who coordinated cooperation between the SSD and the U.S. CIA and participated in it, SSD leaders who were responsible for building reconstruction (Projects No. 1 and No. 2), initiated and performed this reconstruction, and other officers. However, the aforementioned SSD leaders do not work for the SSD any more, and disciplinary proceedings cannot be initiated against them. In addition under Article 34(2) of the SSD Statute, no disciplinary punishment can he imposed one year from the date of commission of the offence. Therefore, even if there were data on a possible disciplinary offence, the decision provided for in Article 214(6) of the CCP to hand over material when terminating a pre-trial investigation for addressing the issue of disciplinary liability cannot be taken.”",
"358. As regards the CPT ’ s request for information on “ the action taken by the Prosecutor General ’ s Office in the light of the letter sent to the Prosecutor General of Lithuania by the UK-based non-governmental organisation REPRIEVE on 20 September 2010 ”, the Government stated:",
"“The aforementioned statement alleged that U.S. CIA officers transported H to the Republic of Lithuania, kept him in the territory of the Republic of Lithuania and transported him from the Republic of Lithuania in the period from the spring of 2004 to September 2006. It was stated in the decision to terminate the pre-trial investigation that REPRIEVE had not provided any facts proving this, had not indicated and disclosed the source of information, and, as already mentioned before, no data on illegal transportation of any persons, including H, by the U.S. CIA to/from the Republic of Lithuania were received during the pre-trial investigation.”",
"C. Mr Fava ’ s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland",
"359. In Al Nashiri and Husayn (Abu Zubaydah) Mr Fava was heard in as expert in his capacity as the Rapporteur of the TDIP at the fact finding hearing (see Al Nashiri v. Poland, cited above, §§ 42 and 305-318); and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 42 and 299-304). He responded, inter alia, to the Court ’ s questions concerning records of the informal transatlantic meeting of European Union and North Atlantic Treaty Organisation foreign ministers, including Condoleezza Rice, of 7 December 2005, “confirming that Member State had knowledge of the programme of extraordinary rendition”, as referred to in paragraph “L” of the 2007 EP Resolution (see Husayn (Abu Zubaydah), cited above, § 300; and Al Nashiri v. Poland, cited above, § 306; see also paragraphs 28 5 -28 6 above). He testified as follows.",
"As regards the checking of the credibility of the confidential source from which the records – to which he referred to as “the debriefing” – had been received:",
"“Yes, the reliability was checked, it was a confidential source coming from the offices of the European Union, in particular from the Commission. In Washington, when we received the debriefing of the [Washington] meeting, we checked that the latter did indeed correspond to the real content of the meeting and that same opinion was shared by the Chair of the Temporary Committee and in fact this document was acquired as one of the fundamental papers of the final report which I proposed and that the Temporary Committee has approved and that the Parliament subsequently approved.”",
"As regards the nature of the document:",
"“[A] debriefing. Some meetings, when there is a request – in that case the request had been put forward by the American Department of State – are not minuted; however, in any case a document which incorporates with sufficient details the course of the discussion is drawn up, even if this is not then formally published in the records of the meeting. In this case it was asked not to minute [the meeting], but it was asked to write this document, following the practice, and it is this document, the debriefing, that has been then provided to us.”",
"As regards the topic of the transatlantic meeting:",
"“Extraordinary renditions. The American Secretary of State, Condoleezza Rice, met the ministers and the topic of discussion was what had been discussed in those months by the general public in America and Europe – I believe our Temporary Committee had already been set up – it was a particularly burning issue and there was the concern on the part of several Governments about the consequences that these extrajudicial activities in the fight against terrorism, using extraordinary renditions as a practice, could create problems to the various Governments in respect of the public opinion and in respect of the parliamentary inquiries, some of which had already been undertaken at the time. Therefore, some Governments were asking whether what was known corresponded to the truth and whether all this was not contrary to the international conventions, beginning from the Geneva Convention onwards.",
"In that case, the reply – from the debriefing we received – from Madame Rice, was that that operational choice to counteract terrorism was necessary because the atypical nature of the conflict, with a subject that was not a state but a group of terrorists prevented the use in full of the international conventions which up till then had served mainly to regulate traditional conflicts. This is the thesis which also the legal counsellor of Condoleezza Rice put to us in Washington when we had a hearing and it was explained to us that they felt that they could not apply the Geneva Convention and that they thought that the extraordinary renditions were therefore a necessary and useful practice even for European Governments, because they placed European countries, European Governments [and] the European Community in a position to defend themselves from the threat of terrorism.",
"I also remember – of course we are talking about events of seven years ago – that from the said debriefing there emerged quite an animated discussion among the European Governments[:] between those who felt that these practices should be censored for obvious reasons linked to international law, and other Governments which felt on the contrary that they should be supported. ...”",
"As regards the content of the document:",
"“[T]his document indicated precisely the interventions with the names of the ministers of member states of the European Union. That document was a fairly clear picture of how the discussion had proceeded, it was not just a summary of the various topics dealt with but the document actually recalled who said what. In fact, let ’ s say, the discussion heated up also because of the different positions taken, [which positions] are reproduced quite faithfully in this document. Which member States had felt the need to raise doubts and objections to the practice of extraordinary renditions and which member States had felt on the contrary the need to support the thesis of Madame Rice. ...",
"The discussion started because a few weeks before the fact had been divulged by the American press, I think it was an article of the Washington Post which was then taken up by ABC, ABC television, saying that there were secret places of detention in Europe. Extraordinary renditions were a fairly widespread practice in 2002 and 2003 and that in Europe there were at least two places of secret detention. Afterwards President Bush, in a statement, confirmed that there had been some detainees, members of Al Qaeda, who had been transferred to Guantánamo after having gone through some places of detention under the CIA ’ s control, thereby somehow justifying and confirming what had been said by the American journalists at the time.",
"The meeting with Condoleezza Rice and the European ministers, as far as I remember, took place immediately after these revelations of the American press and indeed this was one of the reasons why our Temporary Committee was set up.”",
"D. Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor",
"360. The Government produced copies of records made in the course of the on-site inspections of Project No. 1 and Project No. 2 which were carried out by the investigating prosecutor on, respectively, 17 March and 4 June 2010 (see also paragraphs 18 6 and 1 90 above). The documents were submitted in the Lithuanian language and with an English translation [6].",
"1. Record of on-site inspection of Project No. 1 of 17 March 2010.",
"361. The English translation of the document reads, in so far as relevant, as follows:",
"“Translation into English",
"TOP SECRET",
"DECLASSIFIED",
"[Written by hand]",
"RECORD ON INSPECTION OF PREMISES",
"17 March 2010",
"Vilnius",
"The inspection commenced at [Written by hand] 2.15 p.m., completed at [Written by hand] 3.00 p.m.",
"The Prosecutor of the Investigation Department of Organised Crime and Corruption of the Prosecutor General ’ s Office of the Republic of Lithuania [full name], pursuant to Articles 166, 167, 205, 207 of the Code of Criminal Procedure, arrived at [Written by hand] the territory located at Z. Sierakausko str. 25, Vilnius and pursuant to Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of objects relevant to the investigation of criminal acts and recorded the course and results of this investigative action.",
"...",
"The Prosecutor General ’ s Office ’ s Control Section prosecutor [full name] has been participating in the course of the investigative action during the recording of the acts and results thereof ...",
"Objects inspected: [written by hand] territory located at Z. Sierakausko str. 25, Vilnius and auxiliary building therein.",
"During inspection it was established: [written by hand] the territory, address Z. Sierakausko str. 25, Vilnius is located next to Z. Sierakausko street. It is a brick wall fenced from the street side and a wired fence on the other side, a fenced territory of irregular shape. Along Z. Sierakausko Street the territory is fenced with a brick coloured wall, there are multi-storey dwelling houses surrounding the territory. There is a metal gate at the entrance to the territory. There is also a metal wicket. At the entrance, there is a parking lot. On the left side of the parking a bigger brick building is located. It might be called the main building. On the right (right corner of the territory), a smaller building, which might be called the auxiliary building is located. The auxiliary one is a brick walled, yellow coloured, single-floor building. The distance between the building wall and a fence along Z. Sierakausko str. is 5.7 m. The distance between another (back) side of the building and a fence perpendicular to Z. Sierakausko str. is 3.55 m. The auxiliary building is oblong, flat roofed. The length of the building is 17.50 m, width 6.30 m. The middle part of the building seems to be sticking out if observed from the front side of it. There are two lifting white coloured gates in this part of the building - entrances to garages. Windows of the building are white, plastic. The windows of the room marked as No. 2 in the scheme are equipped with metal lifting security levers. On both sides of the building there are entrance doors, i.e. plastic white doors. Windows and doors as well as rooms indicated in the scheme annexed to the record. On the facade of the building as well as in the territory, there are CCTVs. The inspection of the premises is commenced by entering the doors, which are located in the furthermost part of the building if the building is observed from the street. Inside walls of the building brown rooms, are bricked, plastered, coloured in yellow. All inside doors are made of plywood, light coloured, equipped with an ordinary lock. Floors are tiled in the rooms, corridors, sanitary rooms, kitchen, garages. Premises marked as No. 1 and No. 2 are in linoleum flooring. Ceilings in the rooms, corridors, kitchen, sanitary rooms, are covered in plastic panelling. Ceilings of premises No. 1 and No. 2 are plastered, coloured in white. Upon entering the aforementioned doors the entrance-hall No. 2, size 1.45 x 1.07 is located. On the right side the entrance door to the room No. 2 is located. The size of this room is 4.10 x 3.06 m. height 3.61 m. The walls of these premises are plastered, coloured in yellow. Paint is peeling in some lower parts of the wall, possibly due to humidity. There are no other special features of the walls visually notable.",
"There is a table in the room as well as used computer parts on the table and floors. There are two windows in the room, width 1.40 m, height 52 cm. Further from the entrance-hall there is a narrow corridor, width 80 cm. On the left side of the corridor sanitary room No. 2 is located. It consists of a lavatory and a sink. At the end of the corridor, there are doors to the garage No. 2. The garage is located over the entire area of the building, and along the room there is a pit, which is covered with planks at the time of inspection. In the garage, there are different boxes, old items, bicycles, etc. There is an electric heating boiler on the wall in the garage. The heating system of the building consists of radiators, which are located in the entire building. The size of the garage No. 2 is 7.05 x 3.65 m. There are doors from the garage to the kitchen. This room is 3.20 x 3.00 in size. There is one window in the room, it is l.33 width. Along the window, there is a table with chairs. The kitchen furniture along the wall consisting of catchall, electric stove, rack as well as a sink, equips the kitchen. By the wall, opposite to the wall with the window, a ‘ Sharp ’ refrigerator is located. There is a shower cubicle in the corner. Further, the entrance to the garage No. 1 and to room No. 1 from the kitchen is located.",
"The size of the garage No. 1 is 3.85 x 3.22 m. There is a little tractor, tyres, piano, and a rack with different items located in the garage. The size of the room No. 1 is 4.12 x 3.75 m. There are two windows in the room width 1.40 m. An oval table with 6 chairs located in the room. Another table is located in the corner of the room, close to the entrance-hall. There is a plastic grey relay box 2 x 20 size, 10 cm depth on the wall, which is the closest to Z. Sierakausko street. There are cable inputs equipped in it; the cables directed to the room are not connected. The box is installed 100 cm distance from the sidewall border of the entrance-hall. From this room one enters the entrance-hall No. 1, of 2.86 x 1.18 m in size. From the entrance-hall one also enters the sanitary room No. 1, which is equipped with a lavatory and sink. Both sanitary rooms, as well as the kitchen walls, are partly covered in tiles. In the entrance-hall, the exit from the building is accessible.”",
"2. Record of the on-site inspection of Project No. 2 of 4 June 2010",
"362. The English translation of the document reads, in so far as relevant, as follows:",
"“English translation",
"RECORD ON INSPECTION OF BUILDING AND TERRITORY LOCATED AT ANTAVILIŲ STR. 27A VILNIUS",
"4 June 2010",
"Vilnius",
"The inspection commenced at 9.20 a.m., completed at 10.35 a.m.",
"Vilnius Regional Prosecutor ’ s Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], arrived at the building and territory located at Antaviliai str. [27] A, Vilnius following Articles 92, 179 and 207 of the Code of Criminal Procedure performed the inspection of the above-mentioned objects.",
"...",
"Persons who participated during the inspection and who were present during the inspection activities: the Prosecutor ’ s General Office prosecutor of the Investigation Department of Organised Crime and Corruption [full name], the head of the board of the State Security Department [full name], the head of the Training Centre of the State Security Department [full name].",
"Weather conditions, lighting during inspection: daytime, fair weather with no sun, no rainfall.",
"Established during inspection: The territory is fenced with a metal wire fence with no additional safety or lighting devices. Entrance to the territory through a metal wicket, equipped with an ordinary lock, locked by an ordinary key. Vehicles enter through the metal gate. There is a building within the territory consisting of two sections. Section 1 seems to be residential. It is a two-storey building with a mansard, second floor with balconies. Outside decoration made from crushed bricks and painted panelling. Section 2 is of hangar type, outside decoration is made from tin-plate.",
"Premises equipped in both sections have numbers, premises include classrooms, working rooms, single and double residential rooms, kitchen and laundry rooms, leisure room (tables of a billiard, table tennis), library, storage rooms, WCs, garages, watchman room, closet, fitness room, shooting hall. Mansard is non-equipped; it is without thermal insulation as well. The perimeter of the building is monitored by CCTVs; none of the windows equipped with inside or outside window bars. There are no rooms designated for temporary detention or equipped with bars or in any other way adjusted for the forced deprivation of one ’ s liberty.",
"[Written by hand] Note: the shooting hall is adapted merely for laser guns, not firearms. ... ”",
"E. Resolution and Operational Action Plan of 25 July 2002",
"363. The Government produced copies of partly declassified documents, both dated 25 July 2002 and entitled, respectively, “Resolution to initiate the file of operation” (“2002 SSD Resolution”) and “Operational Action Plan” (“2002 SSD Action Plan”). Most parts of the documents are blackened.",
"364. An English translation of the 2002 SSD Resolution reads:",
"“EXTRACT",
"[the name of the addressee blackened]",
"RESOLUTION no. 01-21-531 vs/02",
"To initiate [blackened] a file",
"25 July 2002 Vilnius city",
"[three lines of the text blackened]",
"in case [blackened] necessity to find and arrange premises [blackened] for the purpose of extradition (transfer) of working secret intelligence collaborators, also to ensure their protection and living conditions [the remaining part of text, some half page blackened].”",
"365. An English translation of the 2002 SSD Action Plan reads:",
"“EXTRACT",
"[blackened] file [blackened]",
"[blackened] ACTION PLAN",
"25/07 2002 Vilnius",
"[three lines of the text blackened]",
"1) to select premises and to equip them with necessary measures for the organisation of extradition of secret intelligence collaborators [blackened]",
"2) to organise the protection of secret intelligence collaborators, to provide them with essential living conditions.",
"[the remaining text comprising some one page blackened]”",
"F. Report on the incident of 6 October 2005 in Vilnius airport",
"366. The Government produced a copy of the report (“SBGS Report”) made by J.K., an officer and senior specialist of the SBGS, which related an incident that took place on 6 October 2005 when R.R., an officer of the SBGS had been refused access to the plane N787WH, which had made an unexpected landing in Vilnius airport. An English translation of the report provided by the Government [7] reads, in so far as relevant, as follows:",
"“Translation into English",
"Captain R[...]. C.[... ]",
"Acting Chief",
"of the Vilnius airport Border Checkpoint",
"OFFICIAL REPORT REGARDING ACCIDENT AT AIRPORT BORDER CHECKPOINT 6/10/2005 VILNIUS",
"On 5 October at 5.15 a.m. the unplanned plane from Antalya landed in Vilnius Airport BChP [Border Checkpoint]. The state border officer R.R[ ... ] exercising the guard ‘ Escort and inspection of aircraft ’ attempted to approach the mentioned aircraft and to perform actions according to his service instructions (write down board number, find out where the plane arrived from, what was the time of departure, were there any passengers), however when he was about 400 metres away from the aircraft he was stopped by the Aviation Security staff and was denied access to the aircraft. Outside there was low visibility (fog), but it was possible to discern that the Aviation Security staff were patrolling around the aircraft, and also that there were two patrol vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the airport BChP through the gates. I contacted the chief of the Shift of the Aviation Security, who explained to me that the SBGS commanders had been informed about the landing of this aircraft and the aviation security actions undertaken. When the mentioned aircraft had fuelled up, it departed from the Vilnius Airport BCHP at 6.05 a.m.",
"Vilnius frontier district OD [Officer of the day] was informed about the above-mentioned incident.”",
"G. Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009",
"367. The Government produced a copy of the letter of 26 November 2009 written by Mr Valdas Adamkus, the President of the Republic of Lithuania and addressed to the CNSD in connection with the Seimas inquiry. An English translation of that letter produced by the Government reads [8], in so far as relevant, as follows:",
"“Having been closely following the work of the parliamentary inquiry instituted by the Seimas National Security and Defence Committee (hereinafter - Committee) concerning the alleged transportation and confinement in the territory of the Republic of Lithuania of persons detained by the United States Central Intelligence Agency, I have decided immediately to inform the Committee about the events in Lithuania at the relevant time. I am confident that this would contribute to the objectivity of the investigation.",
"I would like to remind [you] that on 29 March 2004 Lithuania became a member of NATO. When seeking membership in this organisation and especially when approaching the acceptance of our country into the alliance, very intense and active negotiations with many consultations and meetings took place. Therefore communication with the future and subsequently fellow partners, i.e. the NATO organisation and its member States, was very close and active.",
"Particularly I would like to distinguish the cooperation with the strategic partner of Lithuania - the United States of America - whose support for Lithuania ’ s acceptance into NATO would be hard to overestimate. This communication was performed on many different levels, from delegations of heads of State to delegations of politicians, civil servants, specialists of national defence and many other spheres. Also the implementation of joint projects and operations in the sphere of defence and security in cooperation with partners was and still is very important.",
"As the then head of State I was informed about the most important defence and security projects implemented in co-operation with some NATO partners as demonstrating examples of mutual trust and effective cooperation. The Committee should be familiar with this information.",
"However, I have never been informed about the issue concerning CIA prisons which is currently under investigation and I learnt about it only from the media. When I was asked about this issue live on air on the Lithuanian Radio and during the Lithuanian Television programme ‘ Paskutinis klausimas ’ ( Last question ) I replied to the host that I had never heard of and had never been informed about the above-mentioned operations in the territory of the Republic of Lithuania. My replies were heard by Lithuanian people and the Chairman of the Seimas National Security and Defence Committee Arvydas Anušauskas who participated in the programme. Once again I state that I was not aware and I was not informed about the alleged existence of a prison, detentions and activity related to this.",
"I am hoping that the National Security and Defence Committee of the Seimas of the Republic of Lithuania having examined disseminated information degrading the Lithuanian State shall publish the facts revealing the truth.”",
"H. Letter from the Ministry of the Interior of 9 December 2009",
"368. The Government produced a letter from the Ministry of the Interior to the Chairman of the Seimas CNSD of 9 December 2009. The letter related, among other things, the incident of 6 October 2005. The Ministry also informed the Seimas that no internal investigation had been conducted in that respect in view of the fact that no breach of disciplinary rules had been established and that the SBGS had received a letter from the SSD informing them of the landing of N787WH and the measures that the SSD had intended to take in respect of the landing. The SSD ’ s letter of 5 October 2005 was received by the SBGS on 7 October 2005.",
"I. Letter from Palanga airport of 15 March 2010",
"369. The Government submitted a copy of the Palanga airport ’ s letter to the Vilnius City District Prosecutor ’ s office of 15 March 2010 (“Palanga airport letter”). According to the letter, Palanga airport had not received any letter from the SSD concerning the “possible access of its staff to the airport and performance of any procedures in relation to the aircraft” in respect of the N787WH landing on 18 February 2005. The enclosed invoice stated that N787WH arrived from Bucharest en route to Copenhagen. It arrived at 8.09 p.m. and departed at 9.30 p.m.",
"J. The Customs Department letter of 12 April 2010",
"370. The Government submitted a copy of a letter from the Customs Department under the Ministry of Finance to the to the Vilnius City District Prosecutor ’ s office, dated 12 April 2004, informing the prosecutor that N787WH, which had landed at Palanga airport on 18 February 2005 at 8.09 p.m. had not been recorded in the Aircraft Arrivals registration journal at the Palanga airport post of the Klaipeda Territorial Customs. Nor had any inspection been carried out in respect of N787WH when it had landed at Vilnius airport from Anatalya, Turkey on 6 October at 5.15 a.m.",
"K. The SBGS letter of 27 April 2010",
"371. The Government produced a letter from the SBGS to the to the Vilnius City District Prosecutor ’ s office of 27 April 2010. An English translation [9] of the letter reads, in so far as relevant:",
"“... Hereby we submit the requested documents and we would like to inform you that in the information system of the [SBGS ] the following data have been recorded:",
"...",
"5 US citizens arrived in the Republic of Lithuania when on 18 February 2005 the aircraft tail no. N787WH landed at Palanga airport:",
"1. [L.E.W.], doc. no. ...",
"2. [F.X.B.], doc. no. ..",
"3. [E.M.V.], doc. no. ...",
"4. [R.A.L.Z.], doc. no. ...",
"5. [J.S.], doc. no. ...",
"We do not possess any other date with regard to persons who crossed the border following the arrival of the indicated aircraft. ... [I]t could be noted that when on 6 October 2005 at 5.15 a.m. the unplanned airplane from Antalya landed in Vilnius airport ... [Border Checkpoint] the State Border officer ... when about 400 metres away from the airplane was stopped by the Aviation Security staff ... and restricted access to the aircraft ... [T]here were two vehicles of the Aviation Security parked. The officer saw how the vehicle departed from the mentioned aircraft and left the territory of the Airport [Border Checkpoint] through the gates controlled by the Aviation Security staff. ... Afterwards the SBGS received a classified letter from the [SSD]. ... ”",
"XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT",
"372. On 28 June 2016 the Court took evidence from Senator Marty, Mr J.G.S. and Mr Black (see also paragraphs 17-18 above). The extracts from their statements as reproduced below have been taken from the verbatim records of the fact-finding hearing. They are presented in the order in which evidence was taken.",
"A. Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah ”",
"373. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar presentation before the Court in Al Nashiri v. Poland (cited above, §§ 311 ‑ 318).",
"374. Their oral presentation in the present case was recorded in its entirety and included in the verbatim record of the fact-finding hearing. The passages cited below have been taken from the verbatim record.",
"375. The aim of the presentation was explained by Mr J.G.S. as follows:",
"“Madam President, Honourable Judges, representatives of the parties, I have had the privilege of addressing this Court on three prior occasions in respect of cases involving aspects of the CIA ’ s rendition, detention and interrogation programme as it has manifested itself on the territories of the Council of Europe. I am asked today to provide a distillation of available documentary evidence including flight data in respect of Lithuania and the applicant into these proceedings, Mr Abu Zubaydah. I would kindly request, however, that the Court and indeed the parties take note of my prior testimonies given in order that I do not repeat myself unduly in the course of this presentation. I would like to simply state that the abuses being discussed are part of a widespread and systematic practice intended at holding in secret and indefinitely persons suspected of terrorism, but never charged with any criminal offence – in some cases, and indeed in Mr Zubaydah ’ s case – for periods up to and over four years in length, during which a multiplicity of abusive techniques, euphemistically described as enhanced interrogation techniques, are practised on these individuals in violation of their personal integrity in the context of the conditions of confinement in which they are held.”",
"This was followed by the presentation of a map showing a network of interconnected various locations, which was referred to as a “global spider ’ s web” in the 2006 and 2007 Marty Reports (see paragraphs 270-27 7 above; and see Husayn (Abu Zubaydah), cited above, § 306).",
"376. As regards the fact that Lithuania was not included among the countries suspected of hosting CIA black sites in the Marty Inquiry, Senator Marty stated as follows:",
"“Madam President, Judges, Ladies and Gentlemen, a few words by way of introduction. First, why is there no mention made of Lithuania in the 2006 and 2007 reports? There are two reasons why. First, at the time, we had very few resources available, we focused on Poland and Romania. The other reason is that we spent a lot of energy establishing the spider web of aircraft movements. During that short time we spent a lot of energy collecting flight data, which was really a lot of work. And we invested a lot for the future because, even years later, such data helped us to develop cases. I speak for the first time as rapporteur for Lithuania.",
"In another report, that is, the [2011] Report on abuse of State secrecy I did not really go into secret prisons at that time. What I talked about was the use of State secrecy which had been invoked. It was invoked then even in respect of the inquiries of the Committee against Torture – the CPT notwithstanding the fact that the CPT was bound by the strictest confidentiality and there have never been any leaks by the CPT. Whatever the CPT has published has always been in agreement with the country concerned. So, in that part of the report when I mentioned Lithuania I naturally benefited from information that had become public thanks to the remarkable work carried out by several NGOs and I remember well at the time the prosecutor from Lithuania was also very active. What I found troubling in the report is that there too State secrecy was invoked.”",
"Mr J.G.S. added:",
"“One observation with regard to Lithuania bears mentioning at the outset. When we took up the mandate of the Council of Europe in late 2005 and early 2006, to investigate alleged secret detentions on Council of Europe Member States territories, we regarded this as an issue that had cast a dark shadow over the continent ’ s recent past. We had understood at the time of our investigation that it was a category of abuse which had albeit recently concluded. Several years later and today I am in a position to state this categorically: we are faced with the troubling yet inescapable realisation that at the time we were investigating, the abuses were not only part of Europe ’ s recent past but also of its present for contemporaneously to investigations led by Senator Dick Marty a secret detention site operated by the CIA and its national counterparts existed on the territory of the Republic of Lithuania.",
"I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called war on terror.”",
"377. The concept of the so-called “global spider ’ s web” of rendition circuits executed by the CIA planes was explained as follows:",
"“In order to construct a picture of the scale and volume of operations we began to map out specific circuits flown by rendition aircraft in the material period. I shall demonstrate two of these in order to illustrate the concept. In January 2004, first of all, our rendition circuits spanning twelve days saw the transfer between multiple different sites of up to eight individuals. The aircraft flew from Washington with a stopover in Shannon before arriving at its first staging point in Larnaca Cyprus. From Larnaca it embarked on its first pickup of a detainee in Rabat - Morocco, Binyam Mohamed, the British resident, who was flown to further secret detention in Kabul - Afghanistan. Between Kabul and Algiers there was a further detainee transfer before the crew and aircraft repaired to a second staging point in Palma de Majorca. From here the aircraft embarked on a rendition operation already accounted for by this court that of the German national Khaled El-Masri from Skopje via Baghdad to secret detention in Kabul. The aircraft then carried a high-value detainee Hassan Gul from Kabul - Afghanistan, to Bucharest - Romania. The aircraft once more returned to a staging point in Palma before flying back to the United States.",
"This type of operation, whilst first uncovered in the Marty Report and seen as an anomaly, has in fact turned out to be quite typical of the way in which the CIA rotated and recycled its detainees among multiple secret detention sites on multiple continents. By way of further illustration in September 2003 the aircraft N313P embarked from Washington and flew to stopover in Prague before collecting detainees in Tashkent Uzbekistan handed over to the CIA by local counterparts. Those persons were transferred to Kabul, Afghanistan, whereupon a circuit encompassing five individual secret detention sites Kabul - Afghanistan, Szymany – Poland, Bucharest - Romania, Rabat - Morocco, culminating at the CIA ’ s detention facility at Guantánamo Bay.",
"As early as September 2003 therefore it was not uncommon for these aircraft to be traversing long distances in short spaces of time and transferring under severe duress multiple detainees between multiple different detention sites. It is when we collated all of these operations that were known to us at the time and layered them onto this graphic, that we came upon this motif of a global spider ’ s web.”",
"378. As regards the role played by the Detention Site Violet country ’ s authorities, Mr J.G.S. stated:",
"“Finally, Your Honours, I wish to point to you specific references to the actions of the Lithuanian counterpart in the administering of the site. The text of the Senate Committee Inquiry appears to refer to an individual, a person, as a representative of the counterpart authority and in this passage here the word that is used, and which I find significant, is “support”. Just as in earlier proceedings we pointed to a passage which referred to the support and cooperation of the Romanian authorities. Here we have an indication that money was offered as a means of quotes “showing appreciation for the support of the local counterpart”. We know this is Lithuania because it talks about the expanded facility and it talks about Detention Site Violet earlier in the same passage. It does talk also about complex mechanisms needing to be innovated for the disbursement of this money, which also indicates that notwithstanding the nominal support there were often inclinations to keep secret the nature of the cooperation.",
"This is the last reference from the Senate Committee Report and I will conclude our presentation today, but I sense that it might also be important for the Court ’ s deliberations. We have heard from both the Seimas Parliamentary inquiry in Lithuania, and subsequently in public releases from the Lithuanian Prosecutor General ’ s office, that whilst they can confirm the existence of these two highly customised facilities fit to detain individuals, they are unable to endorse the conclusion that these were detention sites, because they have an alternative explanation as to what they were used for. This was a conclusion in the Seimas report and it has recently been cited by the Prosecutor General ’ s office as a reason for stalling investigation. The CIA reporting appears to present a different viewpoint. The CIA states that the Lithuanian counterpart ‘ probably has an incomplete notion regarding the facility ’ s actual function ’, meaning that the Lithuanians may have known of the site ’ s existence, they may have known of a stated purpose or a stated modus of cooperation, but there were some aspects, as in all host countries, which were regulated strictly upon the “need to know principle”, and the CIA did not divulge the individual incoming or outgoing detainee transfers to its Lithuanian counterparts in a manner that would allow them to be apprised of that specific aspect. Hence, when the statement at the end says he probably believes that it is some sort of other centre, there is a plausibility to the Lithuanian position stated in the Parliamentary Inquiry, persons who were not themselves party to the operations, and I think in assessing the cooperation between these two partners we can come to a conclusion very similar to that we reached in our inquiry vis-à-vis Poland and Romania that authorisations and approvals were necessarily provided at the highest levels of government, but primacy in the execution of operations lay unambiguously with the CIA, the American operatives. Sometimes at the expense of good relations with their hosts.”",
"B. Senator Marty",
"379. Senator Marty was a member of the PACE from 1998 until the beginning of 2012. He chaired the Legal Affairs and Human Rights Committee and, subsequently, the Monitoring Committee.",
"At the end of 2005 he was appointed as Rapporteur in the investigation into the allegations of secret detentions and illegal transfers of detainees involving Council of Europe member States launched by the PACE (see also paragraphs 266-277 above).",
"On 2 December 2013 Senator Marty testified before the Court at the fact ‑ finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 319-323; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 305-317).",
"380. In the present case, in response to the questions from the Court and the parties, Senator Marty testified as follows.",
"381. In response to the judges ’ question as to what kind of evidence formed the basis for the findings and conclusions in paragraph 37 of the 2011 Marty Report (see paragraph 277 above) as to the operation of the CIA extraordinary rendition programme and existence of a CIA secret detention facility in Lithuania were made, Senator Marty stated:",
"“First of all I should like to point out that the 2011 Report hardly concentrated on the problem of secret detention at all and therefore my function in relation to that of Mr [J.G.S.] is somewhat different because Mr [J.G.S.] continues to work upon the problem whereas I was occupied in other fields. ...",
"The fundamental problem in the report of 2011 is to highlight the experiences that had been had in different activities, in other words governments increasingly had recourse to the defence of State secrets to cover the activities of the secret services. We also underscored, and the Assembly followed us in this, the need to strengthen surveillance of the secret services in different countries and we remarked that in different countries this monitoring is very weak, very loose, especially when one is dealing with military secret services.",
"...",
"Now as to the sources, well, one might say why did the source that mentioned Poland or Romania not say anything about Lithuania? Well there is a rather simple reason for that and this is a reason which we did not grasp initially, but as we moved on we did understand. It is because the timeframes are different and those responsible in the CIA that were dealing with these programmes were not necessarily the same people. Therefore those who knew about Poland did not necessarily know about Lithuania and these are sources that we found subsequently. And that is the reason why there was practically no source that was aware of everything, because there was a continuum over time with different phases as Mr [J.G.S.], I believe, was able to establish with great precision. ... ”",
"382. In reply to the judges ’ question whether it could be said that Lithuania knew, or ought to have known, of the nature of the CIA rendition programme operated on its territory in 2005-2006 and whether this knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings in Lithuania in 2005-2006, Senator Mary testified:",
"“Well, again, it depends upon what you mean by authorities. If you ’ re talking about the Government, I say no. If you ’ re talking about Parliament – the Lithuanian Parliament, but that also applies to the Polish Parliament or the Romanian one – I would say no, because this operation – I like to recall for the record – was governed by the ‘ need to know ’ secrecy principle. So only those who absolutely had to know things, and even those who came to know, were not necessarily aware of all the details, that is the fundamental principle that governs the highest degree of military secrecy which is strictly regulated by NATO. So we never affirmed that it was the fault of the Lithuanian Government, we say that there are people at the highest level of the State in Lithuania, as in Poland, as in Romania, or Italy or Germany, who had knowledge of what was going on. Amongst those people, limited in number – politically speaking – they perhaps did not know all the details.",
"What is important to know is that somebody allowed the CIA to move about freely, to have access to venues or buildings or premises where they were allowed to do what they wanted without any control whatsoever. I believe that that is the key to the problem. It is a complicity that was not active in any case. I imagine that no Lithuanians, no Poles, no Romanians, participated in these interrogations which were in fact torture pursuant to the International Convention against Torture, but people did not want to know this at a certain level, among certain representatives of the State, they did not want to know. That is the real problem. In criminal law you would talk about reckless conduct.”",
"383. Replying to the Government ’ s question as to what would be his opinion on Mr J.G.S. ’ statement that the 2014 US Senate Committee Report in sections relevant for the present case did not indicate the applicant ’ s name, Senator Marty stated:",
"“It is true, it does not indicate countries either, but if we are cognisant of all the details of the case, if we know all the plane movements, if we know the movements of those detained during that time, it is relatively easy to reconstruct and come to the affirmation that Mr J.G.S. made. This obviously requires some analysis and cognisance of all the details of this rather complex case. However, if one takes the trouble to reconstruct, and Mr J.G.S. has already demonstrated this to me several times, you can only come to that conclusion.”",
"384. In response to the question from the applicant ’ s counsel as to how he would categorise the attitude and the level of cooperation of the Lithuanian authorities with his inquiry or, in so far as he was aware, with other international inquiries, Senator Marty said:",
"“The attitude of Lithuania fully tallies, I would say, with all the other European countries that have had dealings with this CIA programme. One of the only countries where a minister immediately called me when I sent out the questionnaire and told me, “well look, I don ’ t know anything at all”, was Luxembourg. Even my own country – Switzerland – showed itself to be extremely reticent in responding to some of my questions.”",
"C. Mr J.G.S.",
"385. Mr J.G.S. is a lawyer and investigator. He worked on multiple investigations under the mandate of the Council of Europe, including as advisor to the Parliamentary Assembly ’ s Rapporteur Senator Marty (2006 ‑ 2007) and as advisor to the former Commissioner for Human Rights, Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the United Nations ’ international expert panel on protecting human rights while countering terrorism. He is presently engaged in official investigations into war crimes and organised crime cases.",
"On 2 December 2013 Mr J.G.S. testified before the Court at the fact ‑ finding hearing held in Al Nashiri and Husayn (Abu Zubaydah) (see Al Nashiri v. Poland, cited above, §§ 311-318 and 324-331; and Husayn (Abu Zubaydah v. Poland, cited above, §§ 305-312 and 318-325).",
"386. In his testimony before the Court, he stated, among other things, as follows.",
"387. In reply to the judges ’ question whether, on the evidence known to him, it could be said that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in 2005-2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the nature and the purposes of the CIA aircraft landings on Lithuanian territory during that period, Mr J.G.S. stated:",
"“Yes Your Honour, it is my conclusion that the authorities of Lithuania knew about the existence of this detention facility, and that through the highest levels of their government approved and authorised its presence on the territory of Lithuania. It is my conclusion that they certainly should have known the purpose to which this facility was being put because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries, including territories in the neighbourhood of Lithuania, and had been widely reported by the time the site in Lithuania became active.",
"I would point out that there are different degrees of knowledge held by different sectors of Lithuania ’ s authorities. Of course, on the operational level the details are restricted to a very small number of trusted counterparts, primarily within the secret services, but I am not aware of any single instance of a CIA secret detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities. I have no reason to believe that Lithuania was any different.”",
"388. Replying to the Government ’ s question as to whether he had any data confirming that the aircraft that he mentioned had actually landed in Lithuania in February 2005 and March 2006 and had been used for the CIA renditions and not for other purposes in Lithuania, Mr J.G.S. testified:",
"“In order to provide categorical evidence of where and when particular aircraft landed, investigations have normally relied upon information generated in the host state, so, for example, where an airport authority has serviced an aircraft or ground handling company has administered services to an aircraft. Normally these would be Lithuanian entities providing document from Lithuanian sources in respect of exactly where. Now, in respect of these aircraft, we are in possession of certain Lithuanian documents, furnished by notably the airport authorities and also some of the navigation services, including real-time logs, which appear to confirm their landings at Vilnius and Palanga respectively. However, these landings are not the primary focus of the documentation that we assemble from the international perspective. The international perspective tends to tell us what their destinations were and, importantly, what their purposes were. So it is through the collation of that first category of evidence with the second category of evidence that we arrive at conclusions as to the purpose of the flight. And in this respect I can say the following: the aircraft I have mentioned were contracted by the CIA through its established network of contractors including Computer Sciences Corporation, Sportsflight Air Inc., and individual aircraft operating companies for the express and exclusive purpose of transporting detainees between CIA operated detention sites.",
"The particular contract in question associated with a unique billing code was administered solely for that purpose and in the course of my decade of investigations I have documented scores of rendition flights performed under this same contract, this same billing code, for the express and exclusive purpose of transporting detainees. There is not an alternative under that contractual designation, so on the second part of your question, Madam, I would say that the purpose was detainee transfer.”",
"389. In response to the Government ’ s question regarding his statement that the highest officials in Lithuania knew about the detention site, as to whether he had any information about any specific official who had given his consent for the programme, he stated:",
"“With regard to Lithuania ’ s officials ’ responsibilities, I have not undertaken the investigation to the same degree of rigour that I was able to do when I worked on these cases full-time for the Council of Europe. I can postulate that persons in positions of highest authority in Lithuania, indeed analogous positions to those whom we named in respect of Poland and Romania, would have been among those who knew. But personally I have not satisfied myself of any specific individual ’ s knowledge and it is purely by virtue of not having had the opportunity to investigate that matter with a sufficient degree of investment, time or rigour.”",
"D. Mr Black",
"390. Mr Black is an investigator with the Bureau of Investigative Journalism and with Reprieve, having an extensive experience in the field of the CIA extraordinary rendition programme. On two occasions, in 2012 and 2015, he was heard as an expert in the LIBE inquiry into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see also paragraphs 28 8 and 29 4 above). He was involved in the preparation of the 2015 Reprieve Briefing and also prepared for the LIBE a briefing of 15 September 2015 on “CIA Detention in Romania and the Senate Intelligence Committee Report” (“the 2015 LIBE briefing”; see also Al Nashiri v. Romania, cited above, §§ 288 and 35 5 -35 8 ).",
"Since 2010 Mr Black has continuously carried out research on the CIA Eastern European “black sites”.",
"391. In his testimony before the Court he stated, among other things, as follows.",
"392. In reply to the judges ’ question whether it could be said that that Lithuania knew or ought to have known of the nature of the CIA extraordinary rendition programme and that that programme operated on its territory in February 2005-March 2006 and, if so, whether that knowledge was such as to enable the Lithuanian authorities to be aware of the purposes of the CIA aircraft landings during that time on Lithuanian soil, Mr Black testified as follows:",
"“I think it is pretty clear from the Senate Report that Lithuanian officials were aware of the programme operating on their soil. And there are two reasons that I would cite to support this conclusion. One is the reference to an official in the country that hosted site Violet being quite shocked but giving approval to the hosting, to the use of the site. And the other is the fact that we see from that same report that host country officials refused to allow medical access or access to their medical facilities for people in that site. I do not think it is logical to assume that they would not have allowed such access unless they believed that there was a particular security risk that was associated with the people who they believed were being held in that building. And I should add also, as in the case of Romania and indeed Poland, it is also clear from the Senate Report that the Lithuanian State received money for allowing their soil to be used in this manner. However, it is not clear how much money, we can only say that it is a certain number of millions of dollars but we cannot say, I do not know how many millions.”",
"393. The Government asked questions regarding Mr Black ’ s statement that medical aid had been denied to the CIA detainees, which were formulated as follows.",
"– Question no. 1 “Am I right ... that the same US Senate summary states that national institutions refused access of high-value ... CIA detainees, to medical institutions?”",
"– Mr Black ’ s reply:",
"“Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities. The host country had decided that it was not going to do that. The word that is used in the facility audit is that it “reneged”. I do not think that word is used in the Senate Report.”",
"– Question no. 2: “Reading the Report summary it is really difficult to read it, but we have an impression that national institutions did not have knowledge as to what took place there. So if they did not know, how could they deny access?”",
"– Mr Black ’ s reply:",
"“Well, I think it is unequivocal that the Report summary says that a host country official was quite ‘ shocked ’ and I think that you can draw your own conclusions as to under what circumstances somebody might be shocked. I think that, generally speaking, it is pretty clear that as far as I can say from my accumulated knowledge of the CIA secret detention programme and certainly from my close reading of the Senate Report over the last year and a half, since it came out, my feeling is quite clearly that some host country officials always knew that there were prisoners held in these facilities. That does not imply that every single host country official knew. I believe the number is probably different in each different case, but I think it is clear that (a) at least some knew that there were prisoners being held on their territory and (b) they knew that they were receiving money to facilitate this. I think we can be clear that this is what the Senate Report says.”",
"394. In reply to the Government ’ s question as to whether he happened to know the names of the Lithuanian officials who had known of the above elements, Mr Black said:",
"“No, I do not. I have not undertaken research into specific Lithuanian officials and what they might or might not have known. I have endeavoured to make the information that I have available to Lithuanian officials. I have sent information, quite exhaustive information, about flights and contracts to the Lithuanian prosecutor to which I never received any response incidentally. But I have not beyond that tried to research personal knowledge by specific officials in Lithuania.”",
"395. Lastly, in reply to the questions from the applicant ’ s counsel regarding Mr Black ’ s field investigation undertaken in Lithuania and whether, to his knowledge the prosecutor ’ s office had ever contacted eye-witnesses interviewed by Mr Black, he stated:",
"“My field investigation, when I was interviewing local eyewitnesses, was largely in 2011, and at that time we asked each individual who we interviewed as to whether or not they had been approached by a representative of the prosecutor ’ s office to take a statement and they all said no. I do not know whether subsequently after that time, 2012 onwards, whether or not they might have been interviewed by the prosecutor, I could not say.",
"...",
"[T]o the dossier which I submitted after the publication of the Senate Report, in other words in January 2015, there was no response whatsoever. The purpose of that dossier was to essentially demonstrate the correlation between Lithuania and Site Violet. So no, there was no response to that. I believe that in 2012, when we at first identified the precise, the full contracting details and route of N787WH, I believe we published that material but we also wrote to the prosecutor offering, I guess, to engage in a dialogue about the material or to offer whatever assistance regarding that material the prosecutor ’ s office might want. But again, we received no response to that either.”",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION",
"A. Lithuania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Lithuania, detention and ill-treatment in a CIA detention facility in Lithuania and transfer out of Lithuania and the applicant ’ s lack of victim status",
"396. Article 1 of the Convention states:",
"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”",
"397. Article 34 of the Convention states:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"1. The Government",
"398. At the outset, the Government submitted that the facts of the case as described in the application amounted to a mere re-statement of some inquiry reports and various press reports without disclosing even one credible fact. The facts seemed to be based on the beliefs and assumptions of the applicant ’ s lawyers. For instance, in support of the allegation that the applicant had secretly been detained in Lithuania, his counsel had cited a passage in a media report saying that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”.",
"399. The Government stressed that the complaints raised in the application were related to charges of exceptional gravity – they concerned alleged incommunicado detention, torture and inhuman treatment, secret rendition, abduction and forcible disappearance, which were all serious crimes within the meaning of international criminal law and which would in any event constitute grave violations of human rights. They thus asked the Court to assess evidence presented by the applicant with particular circumspection.",
"In that regard, they referred to the Court ’ s case-law regarding victim status which stated that a mere suspicion or conjecture was not enough to establish such status and that, in order to be able to claim to be a victim, an applicant must produce reasonable and convincing evidence. They also relied on rulings of the International Court of Justice, in particular in the case of Bosnia and Herzegovina v. Serbia and Montenegro (Judgment of 26 February 2007, § 209), in which that Court held that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive”, and also on the judgment in the Corfu Channel case ( United Kingdom v. Albania, ICJ Reports 1949, p. 17).",
"400. At the public hearing, the Government expressed their regret that the applicant had been subjected to particularly brutal and degrading treatment as part of the CIA ’ s secret High-Value Detainee (HVD) Programme, which was totally irreconcilable with the basic principles of democracy, respect for human rights and the rule of law guaranteed by international and national law. The facts as established in various international investigations and by the Court in Husayn ( Abu Zubaydah) v. Poland ( no. 7511/13, 24 July 2014), had revealed the shocking scale of that Programme. The Government did not contest those facts. However, they were convinced that no violation of the applicant ’ s Convention rights had taken place in Lithuania.",
"401. Having regard to all evidence produced by the applicant and heard by the Court, the Government considered that there were no objective grounds on which to conclude that any of the aircraft referred to by the applicant had been used to transfer him or any other person to Lithuania. Nor were there any grounds to establish that a CIA secret detention facility had operated on the territory of Lithuania during the relevant or any other period. The evidence collected in the case was not sufficient to establish links between the applicant ’ s allegations and Lithuania.",
"402. The Government regretted that the case was being heard before the final conclusion of the pre-trial investigation by the Lithuanian Prosecutor General ’ s Office, which, after being discontinued in 2010, had been re ‑ opened in 2015 and was currently ongoing. This, in their view distorted the principle of subsidiarity underlying the Convention system. As a result, in order to protect the interests of the current investigation, the Government would have to base their arguments as to Lithuania ’ s lack of responsibility under the Convention on evidence gathered in the course of the investigation conducted in 2010.",
"403. To begin with, they said, the applicant ’ s arguments as to Lithuania ’ s involvement in the CIA secret detention programme constituted a mere presumption based on the alleged existence of some political agreements to that effect. Yet not a single high-ranking State politician or official had ever in any way admitted to having known of or agreed to the country ’ s involvement in CIA detention facilities. There was sufficient evidence from the State officials and State Security Department officials and the persons who had held the office of the President of the Republic to corroborate that they had not had any knowledge of any such involvement.",
"In that respect, the Government emphasised that the President of the Republic, who was the Head of State and the Commander-in-Chief of the armed forces, had not given his consent for the operation of CIA detention centres and all persons who had held that office did not have any knowledge about the programme. All the high-ranking officials who had worked for the SSD had merely known of some theoretical considerations that there might have been some requests for assistance in the “war on terror”. This consistent and clear evidence could not be refuted merely by the information in the public domain relied on by the applicant.",
"404. They further stressed that the applicant ’ s allegations concerning his secret rendition to and from Lithuania, and his detention and ill-treatment in CIA secret facilities in Lithuania, had been rejected as unfounded in the course of the pre-trial investigation carried out by the Prosecutor General ’ s Office in 2010. In their opinion, particular importance must be attached to the prosecutor ’ s conclusion that no evidence had been obtained concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania. Having established that the applicant had not been transferred to or kept in Lithuania, or sent to other countries from Lithuania, either by its own officials or agents of the CIA, it must likewise be concluded that Lithuania could not be held responsible for any such actions since the applicant had not been within its jurisdiction.",
"405. Consequently, given Lithuania ’ s lack of jurisdiction and the fact that the applicant ’ s allegations of secret detention in the country had not been proved beyond reasonable doubt, no responsibility under the Convention could be attributed to the Lithuanian State. Likewise, since there had been no evidence that the facts as alleged by the applicant had taken place, the applicant could not be considered a victim of the acts complained of within the meaning of Article 34 of the Convention.",
"2. The applicant",
"406. The applicant asked the Court to dismiss the Government ’ s preliminary objections. He underlined that the Government ’ s submissions in respect of a lack of evidence in his case failed, in various respects, to take account of the nature and characteristics of the extraordinary rendition and secret detention programme, which was designed and implemented to ensure that no information came to light and that any evidence would be withheld or destroyed. It was inherent in the nature of these practices that some of the key information lay solely with the State authorities and was therefore very difficult, indeed often impossible, for individual applicants to secure. In the absence of a meaningful official investigation, as in the present case, evidence would necessarily be limited.",
"407. In addition, the applicant was operating under a unique set of encumbrances, arising out of the anomalous and abusive circumstances in which he was currently detained, posing unprecedented levels of difficulty in the presentation of his case. The Government, in their submissions, had made no accommodation for the applicant ’ s circumstances or for the context within which the CIA rendition programme had operated.",
"Despite the challenges, the applicant had presented a compelling case that relied on evidence from a wide range of sources. His case was supported by extensive corroborative material that provided both direct and indirect evidence of the Lithuanian State ’ s involvement in the rendition programme, and its responsibility for violations of the applicant ’ s rights through its acts and omissions.",
"408. In the applicant ’ s submission, the Government ’ s arguments in support of their contention that the case be dismissed for lack of evidence of State responsibility should be refuted. The same applied to their objection as to the applicant ’ s victim status.",
"The CIA rendition and torture programme simply would not have been possible but for the willing cooperation of States around the world, including Lithuania. Lithuania had played a key role in the rendition programme. Its role had come at an advanced stage, when knowledge of the facts, concerning the abusive nature of the secret detention programme, had been beyond plausible deniability. Despite this, Lithuania had been a willing partner, actively cooperating with the United States to set up and operate a secret detention centre on its territory. Despite now irrefutable evidence that it had hosted a “black site”, Lithuania had still failed to acknowledge the existence of the site or any responsibility on its part. It had still failed to engage in a meaningful investigation, and it had still failed to ensure that those responsible could be held to account or that lessons could be learned to ensure respect for the rule of law in the future.",
"As in the applicant ’ s case against Poland, the evidence against Lithuania was necessarily drawn from diverse sources and had to be considered as a whole. Taken together, these sources provided overwhelming evidence of Lithuanian responsibility for violations of Articles 3, 5, 8 and 13 of the Convention.",
"409. Furthermore, it was well established that the standard for responsibility under the Convention, was whether the State “knew or should have known” of a real risk of violations and had failed to take reasonable measures to prevent the violations. In the applicant ’ s view, Lithuanian responsibility on this point was plain. Lithuania not only should have known, it in fact had known of the risk of violations, and not only had it failed to prevent them, it had actively helped to facilitate them. Lithuania had been the last European “black site”, the applicant ’ s detention there taking place in 2005-2006. The Court in Husayn (Abu Zubaydah) v. Poland had found that already by 2002-2004 there had been widespread generalised knowledge about secret unlawful detention and ill-treatment by the US. There was simply no plausible room for doubt as to knowledge of the nature of the secret detention system in 2005 and 2006.",
"3. The Court ’ s assessment",
"410. The Court observes that in contrast to cases where objections that a State had no jurisdiction were based on an alleged lack of the respondent State ’ s effective control over the “seceded” territory on which the events complained of had taken place (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 300-304, ECHR 2004 ‑ VII) or the alleged lack of attributability on the grounds that the events complained of had occurred outside the respondent State ’ s territory and were attributable to another entity (see Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 47 and 56, Series A no. 310; and Cyprus v. Turkey [GC], no. 25781/94, §§ 69-70 ECHR 2001 ‑ IV), in the present case the Government ’ s objection in effect amounts to denying that the facts adduced by the applicant in respect of Lithuania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court (see paragraphs 396-402 above).",
"The Government ’ s objection alleging that the applicant lacks victim status for the purposes of Article 34 of the Convention is based on similar arguments (see paragraphs 396 and 402 above).",
"411. The issues of the Lithuania ’ s State responsibility under the Convention and the applicant ’ s victim status are therefore inherently connected with the establishment of the facts of the case and the assessment of evidence. Consequently, in order to determine whether the facts alleged by the applicant are capable of falling within the jurisdiction of Lithuania under Article 1 of the Convention and the applicant can be considered, under Article 34, a “victim of a violation ... of the rights set forth in the Convention” by the respondent State, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of indeed occurred on Lithuanian territory and, if so, whether they are attributable to the Lithuanian State. The Court will therefore rule on the Government ’ s objections in the light of its findings regarding the facts of the case (see paragraphs 584-585 below).",
"B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule",
"412. Article 35 § 1 of the Convention states:",
"“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”",
"1. The Government",
"(a) Non-exhaustion of domestic remedies",
"413. In the Government ’ s submission, the applicant failed to exhaust all effective domestic remedies in respect of his complaints under Articles 3, 5 and 8 of the Convention.",
"In their initial observations, they maintained that, pursuant to the relevant provisions of the Code of Criminal Procedure, any person considering that he had been unlawfully detained (a crime defined in Article 146 of the Criminal Code) had the right to challenge, in person or through a legal representative, the lawfulness of the detention. Furthermore, he could seek redress, under Article 6.272 of the Civil Code, for any damage incurred on account of such unlawful detention.",
"They also stressed that torture or inhuman and degrading treatment were prohibited under Lithuanian law, and any person considering that he had been subjected to ill-treatment could address the competent authorities and request that criminal proceedings be brought (e.g. under Articles 100 or 228 of the Criminal Code). In that context, criminal liability under other Articles of the Criminal Code might also have arisen (e.g. Articles 291 and 292). Any victim could seek redress for the damage incurred due to ill-treatment before the ordinary or administrative courts (under Articles 6.271 or 6.272 of the Civil Code). A person who was a victim of a crime was entitled to participate in criminal proceedings (Article 28 of the Code of Criminal Procedure) or could submit a civil claim in the course of the criminal proceedings, seeking redress for the damage incurred as a result of a criminal offence (Article 109 of the Code of Criminal Procedure).",
"In sum, where a crime had been committed, the domestic legislation provided a victim of a crime with several legal avenues for the purpose of having perpetrators prosecuted and obtaining pecuniary compensation.",
"414. However, the applicant had failed to have recourse to any of those legal remedies available under Lithuanian law.",
"In particular, in the course of the pre-trial investigation carried out by the Prosecutor General ’ s Office in 2010, Reprieve – which alleged to be “acting on behalf of the applicant” – had never asked the prosecution to recognise the applicant as a victim or had presented any authorisation from the applicant to do so. The applicant had never addressed the national competent authorities in person or through his representatives as regards the alleged breaches of the Convention committed by the Lithuanian authorities to his detriment.",
"As to the possibility of requesting the institution of criminal proceedings, it should be noted that according to the relevant legal provisions, a prosecutor might institute a pre-trial investigation either on his own motion, having established elements of a criminal offence, or upon receiving a notification or request indicating that a criminal offence had been committed. However, in both instances certain factual information had to be presented to the prosecuting authorities in order for them to initiate a pre ‑ trial investigation. Neither the applicant himself nor Reprieve, which had addressed the Prosecutor General ’ s Office on several occasions, ever presented to the prosecution any factual data or credible evidence in support of their allegations concerning the alleged rendition of the applicant to and from Lithuania or his alleged incommunicado detention at “secret CIA facilities” in Lithuania.",
"415. In view of the foregoing, the Government asserted that a domestic remedy had been, and still was, available to the applicant, should he ever produce evidence showing the slightest link between him and the Republic of Lithuania. However, apart from some information about the flights and the routes of the aircraft – on which, as it had been established in the course of the pre-trial investigation – no detainees had been transported to and from the territory of Lithuania, the applicant had so far not made a sufficiently credible allegation of having been secretly detained and ill-treated in the country.",
"416. In their further pleadings, lodged after the pre-trial investigation had been re-opened on 22 January 2015, the Government asked the Court to consider the fact that fresh proceedings relating to the applicant ’ s allegations were ongoing in its assessment of the applicant ’ s compliance with the exhaustion rule.",
"(b) Non-compliance with the six-month rule",
"417. The Government further argued that the applicant had also failed to comply with the six-month time-limit under Article 35 § 1. They maintained that, even assuming that the events complained of by the applicant had indeed taken place, the application had been lodged out of time.",
"The Government were of the view that the period of the six months had started to run on the day when the applicant ’ s alleged detention in Lithuania ended, i. e. according to his statements, on 25 March 2006. In any event, the latest date on which the applicant could have become aware of his allegedly unlawful detention and ill-treatment in Lithuania was in 2008 when he had supposedly had his meeting with Mr Margulies, his US counsel.",
"Accordingly, had the applicant considered himself a victim of Convention violations on the part of Lithuania, he could have initiated the proceedings before the Court much sooner.",
"2. The applicant",
"418. The applicant invited the Court to dismiss the Government ’ s preliminary objections.",
"(a) Non-exhaustion of domestic remedies",
"419. The applicant emphasised that the Court had repeatedly acknowledged that in cases involving violations of Article 3, the appropriate remedy to pursue for exhaustion purposes was a criminal investigation and process. The Government, however, had alleged that the applicant had failed to exhaust domestic remedies as Reprieve had not requested victim status for him. The requirement to have exhausted domestic remedies under the Convention did not require that victim status be requested in national proceedings, it was sufficient to have complained to the relevant authorities that a crime had been committed. The correspondence from Reprieve could not be interpreted in any other way than having raised such a complaint. They had done so not only in the first letter but also in subsequent correspondence.",
"420. Referring to El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 140, ECHR 2012 ) the applicant further pointed out that the Court had held, while finding that domestic remedies had been exhausted by the fact of a rendition victim alerting the prosecuting authorities, as follows:",
"“If the actions of the State agents involved have been illegal and arbitrary, it is for the prosecuting authorities of the respondent State to identify and punish the perpetrators. Alerting the public prosecutor ’ s office about these actions must be seen as an entirely logical step on the part of the victim”.",
"The applicant considered that the rationale of the Court in the El-Masri case applied a fortiori to the present case, leading to the conclusion that he had taken all measures that could reasonably have been expected of him in the circumstances to exhaust domestic remedies. To suggest that the efforts to secure justice in Lithuania had, in all the circumstances, been insufficient, on the basis of a lack of personal involvement or a lack of formal authorisation, was, in his view, a short-sighted and formalistic approach inconsistent with the need to interpret and apply the Convention in a way that rendered its rights practical and effective. The Government ’ s arguments were moreover disingenuous in that they could not meaningfully contend, in the light of their arguments on the nature of the investigation and the reasons for the decision to close it, that had the applicant applied for victim status, or had a written legal authorisation form been obtained, the outcome of the domestic process could or would have been any different.",
"(b) Non-compliance with the six-month rule",
"421. In the applicant ’ s submission, the Government ’ s argument that the time-limit of six months should have run from the day when the applicant ’ s alleged detention in Lithuania had ended, despite the fact that he had continued to be kept in secret CIA incommunicado detention at that time and for sometime thereafter, was an absurdity. Likewise, their further argument that his meeting with Mr Margulies in 2008 represented, in temporal terms, the outer limit beyond which the current application fell foul of the six month time limit could not be accepted. Neither suggestion stood up to scrutiny when considered in the overall context of the applicant ’ s circumstances and the availability of information concerning extraordinary rendition and secret detention in Lithuania.",
"The applicant had requested a criminal investigation, in pursuit of the only effective remedy in cases of this nature, and had urged that certain investigative steps be taken which should have prompted a pre-trial investigation under Article 166 of the Lithuanian Code of Criminal Procedure. Subsequently, on 14 January 2011, the Prosecutor decided to discontinue the pre-trial investigation. The applicant submitted an introductory complaint to the Court on 14 July 2011. Accordingly, he had taken his case to the Court within six months from the closure of the domestic investigation at which time it had become indisputably apparent that there would be no effective domestic remedy in Lithuania.",
"3. The Court ’ s assessment",
"422. The Court observes that the Government ’ s objections raise issues concerning the effectiveness of the criminal investigation into the applicant ’ s allegations of torture and secret detention on Lithuanian territory and are thus closely linked to his complaint under the procedural limb of Article 3 of the Convention (see paragraph 3 above and paragraph 588 below). That being so, the Court considers that they should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Al Nashiri v. Poland, no. 28761/11, § 343, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further references to the Court ’ s case-law).",
"II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE",
"A. The parties ’ positions on the facts and evidence",
"1. The Government",
"423. As noted above, the Government dismissed the applicant ’ s allegations as being unsupported by any evidence and, consequently, lacking any factual basis. They also challenged the credibility of the evidence relied on by the applicant and denied that Lithuania had any knowledge of, or complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 39 8-405 above).",
"The Government ’ s conclusions on the facts and evidence were as follows.",
"(a) Lack of credibility of evidence adduced by the applicant",
"424. The Government contested the evidential value of the material produced by the applicant. They stressed that most of that material had originated in various public sources whose credibility had not been verifiable. The Government would not play down the significance of publicly available information about the CIA ’ s HVD Programme; indeed, in the El-Masri case (cited above) similar material on public record had been taken into account by the Court.",
"However, in contrast to the present case, that material had constituted merely a supplementary source for the Court ’ s findings. In El-Masri the Court had relied first of all on the applicant ’ s description of the circumstances, which had been very detailed and, secondly, on indirect evidence obtained during the international inquiries and the investigation in Germany. The Court had had at its disposal scientific evidence, such as a test of the applicant ’ s hair follicles, geological records confirming the applicant ’ s recollection or sketches of the layout of the prison in Afghanistan that the applicant had drawn. Only in addition had the Court relied on the material available in the public domain. In the present case, the applicant had built his case the other way round, starting from publicly available information and, in fact, also finishing with it as he had been unable to produce any other evidence.",
"425. As regards the applicant ’ s reliance on the case of Richmor Aviation Inc. v. Sportsflight Air Inc. (see paragraphs 4 50 -4 51 below), the Government saw little, if any, connection with his alleged detention in Lithuania. The case had concerned a commercial dispute between two aviation companies, where the plaintiff, Richmor Aviation, had submitted an invoice to Sportsflight Air demanding payment for unused flight time for thirty-two months between May 2002 and January 2005. It did not appear that the companies had exclusively carried out rendition flights. The aircraft mentioned in the case-file differed from those appearing in the present case. The events that had given rise to the litigation had occurred prior to the flights to Lithuania, before February 2005. Even if the witnesses in the Richmor case had given some fragmentary testimony to the effect that the flights contracted by the US Government through the companies at the material time (from May 2002 to January 2005) and performed by the Gulfstream IV aircraft could be used sometimes for the purposes of the rendition programme, this had nothing to do with the flights to and from Lithuania allegedly used for the applicant ’ s rendition.",
"(b) Lack of evidence demonstrating that certain CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006 carried out extraordinary rendition missions",
"426. The Government did not dispute the fact that during the relevant period, as well as earlier, there had been a number of CIA-linked aircraft landings in Lithuania at Palanga and Vilnius airports. The circumstances relating to those landings had been thoroughly analysed in the course of the pre-trial investigation and no links between the impugned aircraft and the CIA rendition programme had been established. In particular, all persons who had been present at the time of arrivals or departures of the planes, including the airports ’ employees, officers of the SBGS and the SSD had been questioned and all relevant documents had been obtained from the SSD. From the totality of that material the prosecutor had concluded that no detained persons had ever been brought into or taken from the territory of Lithuania. Furthermore, no link had been found between the flights in question and any detainees of the CIA in general and the Projects No. 1 or No. 2 in particular. The prosecuting authorities had established that despite the fact that on some occasions Customs and SBGS inspections had not been carried out, it appeared from the documents provided by the SSD that in all instances the SSD officers had had access to the aircraft in accordance with the Law on Intelligence. It had also been established that the SSD officers, who had sought and obtained uninterrupted access to the airports ’ sectors at which the CIA aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority.",
"427. As regards the flights N787WH of 18 February 2005 and N733MA of 25 March 2006 indicated by the applicant as those on which he had been brought into and taken out of Lithuania, the prosecution having investigated in detail both flights had established beyond any reasonable doubt that no CIA detainee (including the applicant) had been transported on them. The same applied to any other CIA-linked flights landings during the period in question.",
"The evidence collected in the investigation had revealed the true purpose of the N787WH ’ s and N733MA ’ s landings. In that connection, twenty-six witnesses had been questioned and abundant documentary evidence had been obtained.",
"428. It had been established that the N787WH flight of 18 February 2005 had arrived with, in the Government ’ s words, “five foreign citizens of one State” and three crew members. Needless to say, the Government added, the applicant had not been among them. All of them had gone through a State border control for passengers between 20:05 and 20:15 and again between 20:30 and 20:50. Then the plane had left for Copenhagen. The purpose of the landing had been a carriage of some specific cargo, which explained why the vehicle had been seen next to the plane and then leaving. The carriage of the cargo had been related to the activities of the SSD, and the nature of the activities explained why the SSD had asked to be provided with access to the plane.",
"Likewise, the N733MA flight of 25 March 2006 had brought cargo into Lithuania and had not been involved in the transportation of the CIA detainees.",
"429. Notwithstanding the fact that there was no data in the pre-trial investigation as to the purpose of the cargo, on the basis of the whole body of material collected it might be concluded that “some specific cargo” could have been communications equipment necessary for the technical maintenance of the implementation of a joint project of the SSD and the partners. Due to the particular importance of certain cargo, the Intelligence Services would request direct access to planes. For this purpose, as confirmed by witnesses M, O and N, classified letters used to be written to the airport and the SBGS.",
"As regards the flight N787WH on 18 February 2005 it might be concluded that five persons, US citizens, had arrived at Palanga airport. As regards the cargo on the flight N733MA of 2 5 March 2006, it might be concluded that some equipment could have been carried on the flight at issue. It had been packed in boxes of not less than one metre in length, which, as V confirmed, had been carried by two persons. There was a record in the investigation file showing that the cargo could have been exported by the flight on 25 March 2006, as confirmed by officer O. According to the testimony of the witnesses, it might be concluded that the vehicles of partners used to enter and leave the airports escorted by the SSD officers. The officers used to escort them to the plane; officer V had stated that he had been fifty metres away from the plane.",
"The investigation file included the SSD ’ s requests submitted in respect of both flights; both of them had been duly reasoned and indicated the purpose of the flights, which constituted a State secret. No customs control had been performed in either case, not because of the SSD ’ s requests but due to legal regulations under which it had not been obligatory and could be performed on an occasional basis.",
"430. The SSD had asked the administration of the airport in both instances to allow their officials to access the airport in order to carry consignments and parcels from the airport to their final destination and nothing else. The SSD had never asked for a customs or State border control not to be carried out. It had not interfered in any way with the functions of the State Border Security Service. According to testimonies of many SSD officials, these two flights had not been exceptional and they were not the only ones where the SSD had asked for permission to have access to certain aircraft. In general, over the years 2005-2006 there had been an enormous number of flights of various NATO States with military, official and non-official delegations. According to the testimony of the director of the Civil Aviation Authority, Palanga International Airport had mostly been used for those landings since it received less flights than Vilnius International Airport.",
"431. All the SSD officials involved in the reception and transport of the cargo had been questioned by the prosecutors in that connection and had described in detail what the cargo looked like, where it had been transported, whether anyone else had been able to see it and why special supervision of the SSD had been needed. All of them had testified that it had been only boxes which had been unloaded first from the aircraft and then other boxes and some parcels which had been loaded into the aircraft. There had been many of them, all of the same size, definitely too small to place any person inside. The loading itself had been carried out openly and could be seen by the employees of the airport. The boxes brought by the aircraft had been carried by the SSD officials to Vilnius, but not to Project No. 1 or Project No. 2.",
"432. At the public hearing, answering the judges ’ questions as to the nature of the cargo, the Government further explained that the cargo had contained “special equipment that had been meant for a special investigation department” – and that the purpose had been “to equip this department and its personnel”.",
"(c) Lack of evidence demonstrating that a CIA secret detention facility operated in Lithuania and that the applicant was detained in that facility",
"(i) As regards the alleged existence of a CIA secret detention facility",
"433. The Government maintained that the pre-trial investigation had established conclusively that no secret prison run by the CIA had existed in Lithuania.",
"In particular, the applicant ’ s allegation that a CIA secret detention facility had operated on the premises of Project No. 2 and that Project No. 1 had been designated for that purpose but not used as such had lacked any factual basis.",
"434. It was true that Project No. 1, which had been carried out in 2002 by the SSD and the CIA and the Project No. 2, which had been implemented by the same partners in 2004, had involved the reconstruction and fitting-out of certain premises. However, evidence gathered by the prosecutor had conclusively excluded the possibility of either of these premises having been used as a prison for CIA detainees.",
"435. In the course of the pre-trial investigation numerous persons had been questioned – not only those who had participated directly in the construction works on Project No. 1, but also those responsible for its subsequent use.",
"Having analysed all relevant evidence, the prosecutor – contrary to the statement made by the CNSD that “conditions [had been] created for holding detainees” – had concluded that this building had been used exclusively by the SSD officers and that it had been absolutely unsuitable for holding detainees due to its geographical location (the city centre) and the facilities on the premises.",
"In that regard, the Government also underlined that the CNSD Findings had to be seen in the light of its competence and the nature of parliamentary inquiries performed by it. According to the Constitutional Court ’ s ruling of 13 May 2004, “the Seimas [was] neither an institution of pre-trial investigation, nor a prosecutor ’ s office, nor the court” and therefore its conclusions were not “binding on institutions of pre-trial investigation, the prosecutor ’ s office or the court” (see also paragraph 219 above).",
"436. The premises referred to as Project No. 1 were situated in an auxiliary building in the yard next to the main building at Z. Sierakausko Street in Vilnius where the premises of the SSD had been located at the material time. In 2002 the auxiliary building had been in an emergency condition, and repair works had been needed. As all repair works had been documented, the documentation had been received and analysed by the prosecutor. The builders had confirmed that no wishes had been expressed by the SSD officers that the work be related to the detention of any persons.",
"One of the witnesses, who, at the relevant time, had been in charge of the administration of both Projects No. 1 and No. 2, had described the purpose of the premises in the building referred to as Project No. 1 at Z. Sierakausko Street for which they had been fitted out, though he had testified that the premises had never been used since 2002 for that particular purpose. This purpose had been closely related with the structure and functions performed by the SSD, which in themselves constituted a State secret and therefore could not be declassified. Those statements had been corroborated by many other lower SSD officials and technical workers, who had testified that the premises had never been used for any other purposes that were not related to the needs of the SSD.",
"437. As regards Project No. 2, the Prosecutor General ’ s Office, based on witness testimony, had established that no special facilities suitable for holding detainees had ever been installed inside the building. In particular, there had been no premises fitted with bars or otherwise specifically adapted for detention purposes. Also, it had been established that access had been permanently controlled and the persons in charge of the building ’ s security had confirmed that no detainees had ever been present there. Thus, having regard to all the relevant evidence, the prosecution, contrary to the CNSD ’ s findings that the SSD officers had not always had the possibility of monitoring the arrival and departure of persons at Project No. 2, concluded that access to Project No. 2 had been under permanent control, thus ruling out the possibility of bringing detainees into the building.",
"438. Project No. 2 was located in Antaviliai. The building had been acquired for the needs of the SSD in accordance with the requirements of national law and the repair work on the premises had started in 2004. The work had been finished in January 2005. All the SSD officials involved in this project (Director General, Deputy Director General and other SSD officials of lower rank), had been questioned by the prosecutors. They had testified that the purpose of the premises in question could not have – and in fact had not had – anything to do with the detention of any persons. All witnesses had spoken of classrooms, living and meeting rooms, as well as sports rooms. The SSD officials of lower rank had been in charge of the repair work on the premises and the security of the building after its completion. Having been questioned several times, they had confirmed that no facilities suitable for holding detainees had ever been fitted in the building. The building had never been left without supervision of the SSD officials, who had testified that there had been no secret or closed zones inside it which would not be accessible to them. Also, in the Government ’ s view, the geographical location of the building had made it totally unsuitable for detention as it was situated in the village of Antaviliai and surrounded by residential houses.",
"439. According to the Director General of the SSD at the relevant time, the building had been used at the beginning of 2005 to a very limited extent – several meetings took place there. As the SSD officials in charge of the building ’ s security had testified, it had been used randomly and only for short-term meetings in which the SSD officials and their guests had participated. The visitors had been driven there exclusively by the authorised SSD officials. Thus, contrary to the findings of the CNSD, it had not been possible for any other persons save the SSD officials to use the building at their discretion. In the second half of 2005 the surveillance of the building had been taken over by the SSD ’ s section. At that time it had temporarily not been used at all but had remained open to the SSD employees. Since 2007 the SSD training centre had occupied the building.",
"440. All documents related to the Projects No. 1 and No. 2 had been collected from the SSD, including material containing State secrets. Part of those documents, for instance the records of the on-site inspection of Projects No. 1 and No. 2 together with annexes comprising the photos of the buildings, premises and their surroundings, had been declassified and submitted to the Court. The materials clearly showed that no prison could have been hosted on those premises.",
"441. In sum, the prosecutor had found that both premises had, at the relevant time, served other purposes, which had in no way been related to the holding or confinement of persons, although those purposes could not be declassified for the simple reason that the SSD ’ s partner would have to consent to such disclosure.",
"442. At the public hearing, the Government reiterated the above statements. They added that after analysing all the relevant circumstances it had been established that the flight N787WH on 18 February 2005 and the flight N733MA on 25 March 2006 had been used for transporting a special ‑ purpose cargo and that cargo could not contain the applicant or any other person. It had been the connection equipment for the SSD providing them and their partners with technical services in order to implement their joint project. That explained why they had asked for direct access to the aircraft.",
"As regards the alleged locations of the CIA prison, Project No. 1 had been used for operational activities, Project No. 2 had been used for intelligence activities. The facilities of Project No. 2 had never been used for their original purpose and they had later been reconverted and used as the SSD ’ s training centre.",
"Replying to the judges ’ questions as to why the 2002 SSD Resolution and the 2002 SSD Action Plan referring to the purpose of the premises to be selected had spoken of the “extradition of secret intelligence collaborators”, the Government explained that this was due to the terminology used at that time – at present that term would correspond to “exfiltration” or “extraction”, meaning the relocation of special agents or secret agents into their normal life or natural environment.",
"The added that, as regards the purposes served by the facilities, Project No. 1 had been meant for special officers and their “extraction”, while Project No. 2 had been the support centre for intelligence.",
"(ii) As regards the applicant ’ s alleged secret detention in Lithuania",
"443. The Government argued that there had been no credible evidence confirming the applicant ’ s presence on the territory of Lithuania. The present case was built on some leaked information which had appeared in media in 2009 and which referred to the alleged existence of CIA secret detention facilities in Lithuania. That information had never been confirmed officially, either directly or indirectly.",
"Moreover, the applicant ’ s lawyers had referred to unknown “public sources” indicating that the applicant had been moved from Morocco to Lithuania in early 2005, that the Lithuanian prison site had been closed in the first half of 2006 and that its occupants had been transferred to Afghanistan or other countries. In essence, the entire case rested on the routes of certain flights and their alleged links with the CIA. The applicant had described in detail the routes of N787WH on 15-19 February 2005 and N733MA on 23-27 March 2006, highlighting the stopovers of the first aircraft in Morocco and the second one in Cairo. He also referred to some invoices and contracts regarding those flights which, in his view, indicated their links with the CIA and the extraordinary rendition programme. Not a single direct or indirect piece of evidence had ever been produced that would reveal the slightest connection between the applicant and the flights in question.",
"The Government said that in this regard they would appeal to pure common sense – the routes of the flights demonstrated nothing more than the fact that the aircraft had landed for a short while in Lithuania. Even if their links with the CIA were confirmed, this did not prove by itself Lithuania ’ s involvement in the HVD Programme, still less the applicant ’ s secret detention on its territory.",
"444. The Government regretted the suffering sustained by the persons, including the applicant, detained under that programme. However, they could not but emphasise that while this might have occurred somewhere in Europe, it had not happened in Lithuania.",
"(d) Lack of evidence demonstrating that the Lithuanian authorities agreed to the running of a secret detention facility by the CIA on Lithuanian territory or cooperated in the execution of the HVD Programme",
"445. In the Government ’ s submission, not a single high-level State politician or official had in any way admitted to knowing of or agreeing to the involvement of Lithuania in the CIA extraordinary rendition programme. It was true that the SSD officials had given some consideration to the possibility of having requests for assistance from the US authorities in the context of the war on terror but this possibility had proved to be purely theoretical because there had been no requests for the detention of any individuals.",
"In that regard, the Government referred to the statements of the State officials and the SSD officers who had been questioned in the pre-trial investigation. They also relied on the letter of 26 November 2009 written by Mr Adamkus, the former President of Lithuania, to the CNSD in which he had stated that he had never been informed of any CIA prisons in the country (see also paragraph 36 7 above). Nor had any other former President of the Republic had had any such knowledge. In the investigation the Heads of State had testified that they had not known about any transfer of any detainees and had not given their consent to the transportation of any persons held by the CIA.",
"(e) Lack of evidence of Lithuania ’ s knowledge of the CIA HVD Programme at the material time",
"446. The Government said that they agreed with the Court ’ s conclusions in Husayn (Abu Zubaydah) v. Poland that without the knowledge of the State authorities and their assistance, the CIA HVD Programme could not have been executed, and that the running of the CIA prisons would have been impossible in the countries concerned. However, as stated above, Lithuania had not had any knowledge of such activities on its territory. The fact that in 2005-2006, as the applicant argued, there had been generalised knowledge of the HVD Programme owing to findings of international inquiries and public reports disclosing the nature of the CIA secret scheme, was irrelevant since Lithuania had not been included in any of the inquiries and there had been no CIA prison in the country.",
"2. The applicant",
"447. The applicant maintained that the whole body of evidence from numerous sources, such as the international inquiries, recent research into the CIA rendition and secret detention operations, abundant aviation data confirming the CIA planes landings in Lithuania, declassified CIA documents, the 2014 US Senate Committee Report and evidence from the experts heard by the Court conclusively confirmed his allegations.",
"In his submission, it was established beyond reasonable doubt that a CIA secret detention facility – referred to as “Detention Site Violet” in the 2014 US Senate Committee Report – had operated in Lithuania in 2005-2006 and that he had been detained at that facility from 17 or 18 February 2005 to 25 March 2006.",
"(a) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence before the Court",
"448. The applicant said that the Government ’ s objection to his reliance on public documents, reports and other material as evidence in this case was unfounded. The Court had on a number of occasions stated that it would freely evaluate all the evidence, and might draw “such inferences as may flow from the facts and the parties ’ submissions”. The Court routinely relied on public source evidence; this was demonstrated, for instance, in El-Masri where the Court had taken into account publicly available information of a similar nature and evidence from a range of other sources, including reports from Amnesty International, Human Rights Watch, the International Helsinki Federation for Human Rights and the ICRC. It had also cited numerous media reports.",
"Consequently, the Government ’ s objections to the nature of the evidence in the case was not based on the Court ’ s established approach to evidence. The Court would take into account all available sources of evidence and determine whether, in the circumstances of cases such as this, taken together they were sufficient to give rise to “strong and concordant inferences” of State responsibility. In the applicant ’ s view, the range of evidence submitted in his case considered as a whole more than satisfied the relevant test.",
"(b) As regards the CIA-linked planes landing in Lithuania between 17 February 2005 and 25 March 2006",
"449. The applicant considered that the Government ’ s suggestion that the flights referenced in his submissions as being CIA rendition flights, even if chartered by the CIA, could have had other purposes or simply stopped at some places for technical reasons, lacked any support in the facts.",
"While apparently plausible, this assertion had no merit in the context of the assembled data presented as evidence to the Court. A large number of international and regional bodies, human rights organisations and respected and credible media outlets, which had acknowledged the evidence disclosing that rendition flights flew into and out of Lithuania, disagreed. For example, on 11 September 2012 the LIBE Committee, following its April 2012 visit to Lithuania, had issued a resolution noting “new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, [had] stop[ped] in Morocco on 18 February 2005 on its way to Romania and Lithuania”. It had also noted that analysis of the Eurocontrol data had revealed new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006. This was mirrored in the findings and reports of other international organisations.",
"450. In the light of the accumulated material before the Court it was evident that the planes passing through Lithuania in February 2005 and March 2006 had been chartered by the US Government in the context and for the purpose of the rendition programme. A clear line of evidence connected these flights to Lithuania.",
"To begin with, all the flights involved in rendition into and out of Lithuania had been chartered by a US company, Computer Sciences Corporation on behalf of the US Government. This prime contract originated in 2002 with another US company, DynCorp Systems and Solutions LLC (DynCorp), and was then inherited by CSC through its purchase of DynCorp in 2004. The US Government ’ s initial contract with DynCorp had given rise to a succession of subcontracts, including the agreement with Capital Aviation of 17 June 2002 and a similar agreement between Sportsflight Air as authorised agent for DynCorp and plane operator Richmor Aviation on 18 June 2002.",
"These companies, along with various other plane operators including Victory Aviation (operating N787WH) and Miami Air International (operating N733MA and N740EH), had thereby established a method and pattern of doing business which had lasted at least until 2006.",
"451. The February 2005 flights of N787WH and N724CL, travelling from the USA to Lithuania via Morocco, had been arranged under CSC ’ s subcontract with Sportsflight Air Inc. trading as Capital Aviation. These flights corresponded to the dates on which information indicated that the applicant had been transferred from Morocco to Lithuania in early 2005. The March 2006 flights of N733MA and N740EH had also been arranged under CSC ’ s successor subcontract with Sportsflight.",
"Flights organised and billed by Sportsflight and CSC had been the subject of civil litigation in New York, concluding in 2011, between Sportsflight and Richmor Aviation. During this litigation, both parties had made clear that the flights had been part of the rendition programme and that the contractual arrangements under which these flights were provided had been set up to facilitate that programme.",
"452. Furthermore, all the flights connecting with Lithuania in February 2005 and March 2006, as well as flight N787WH in October 2005, exhibited a common pattern of behaviour designed for the sole purpose of disguising the true flight routes, the so-called “dummy” flight planning.",
"Taking into account, on a cumulative basis, all the available evidence such as the contracts and invoices, the patterns of behaviour, the statements made in the litigation referred to above, the timing of the flights, and the overall context within which rendition flights had been shown to take place, there was a compelling basis on which to conclude that the sole purpose of the flights of N787WH, N724CL, N733MA and N740EH had been to interconnect the CIA ’ s various secret prison locations. In addition, these interconnections had been made at times when, according to authoritative news reports, prisoner transfers had been made between the respective countries.",
"453. Lastly, even if one were to leave aside the entire significance of the above evidence, in the applicant ’ s view a number of questions would remain. For instance, why, if these had been entirely innocent or “technical” stopovers had the SBGS been prevented from inspecting the planes? Why had the planes been cordoned off by the SSD? Why had a vehicle been seen leaving one of the planes, and the airport, if this had merely been a “technical” stop?",
"(c) As regards the existence of a CIA secret detention facility in Lithuania and the applicant ’ s secret detention in Lithuania",
"454. In the applicant ’ s submission, the evidence before the Court established beyond reasonable doubt, based on strong and concordant inferences of fact, that Lithuania had housed a CIA secret black-site, a site at which the applicant had been detained between 17 or 18 February 2005 and 25 March 2006. The 2014 US Senate Committee Report had referred to a detention site codenamed “Violet”, which multiple independent investigators had consistently and unequivocally identified as referring to Lithuania, as confirmed by the experts at the fact-finding hearing.",
"The 2014 US Senate Committee Report stated that Detention Site Violet had specifically been developed to ensure that multiple detainees could be interrogated simultaneously, that the site had begun operating as a detention centre in 2005 and that it had been closed down in 2006 due to the lack of medical care for ailing detainees. The report ’ s categorical findings corresponded to and confirmed the credibility of a host of other evidence available at a much earlier stage. This included flight data and contracts, information collected by the Lithuanian Parliament ’ s own Committee on National Security and Defence, the Lithuanian prosecutor ’ s own investigation file, the statements and findings of multiple additional inquiries at the regional and international level and the work of non ‑ governmental organisations, journalists and investigators.",
"455. At the fact-finding hearing the Court had heard evidence from the experts of the highest calibre who, having investigated and analysed the CIA HVD Programme for many years, had confirmed that, consistent with a cyclical pattern of sudden site closures, Lithuania had undoubtedly set up a secret detention site in 2005 following the closure of the site in Morocco.",
"Lithuania had become, as Mr J.G.S. had described it, the hub for detention of high-value detainees at that point. It had been the experts ’ firm and consistent professional assessments as investigators, that the evidence had showed that Abu Zubaydah had been among those detained in Lithuania. Senator Marty had noted that if one had taken the trouble to reconstruct the story, one could only come to that conclusion. Mr J.G.S. ’ s work had definitively associated Abu Zubaydah with Lithuania and Mr Black had found that the detention of Abu Zubaydah in Lithuania had been beyond reasonable doubt.",
"456. One aspect of the evidence before the Court, considered in detail by the experts, included evidence from multiple sources that showed the landing of rendition flights in Lithuania on 17 and 18 February 2005, having followed a circuitous route, from the United States via Morocco, where the applicant was known to have been detained at the relevant time. Likewise it showed that on 2 5 March 2006 another rendition flight departed from Lithuania, en route to Afghanistan, where again it was known that the applicant had been detained in 2006. False flight plans had been filed for the Lithuanian leg of these journeys, showing alternative destinations in accordance with standard modus operandi for rendition flights.",
"The Government had argued that there was no evidence that these had been rendition flights. Yet the pattern these flights displayed, the paths they had taken, and the contracts and invoices, combined with other corresponding details, had led to them being consistently identified by investigators, parliamentary and other inquiries, and by the experts of the Court, unequivocally as flights whose sole purpose had been extraordinary rendition. If any doubt remained about whether these had been rendition flights, it had been dispelled in the above-mentioned civil litigation between sub-contractors in US courts where the flight operators had themselves stated, in their pleadings, in clear and explicit terms that this contract had been for rendition flights carried out for the US Government.",
"457. The dates and routes of these rendition flights and the periods of operation of Detention Site Violet corresponded with the conclusive evidence of the applicant ’ s location prior to and after Lithuania. As the Court noted in Husayn (Abu Zubaydah) v. Poland, the applicant, after being captured in Pakistan, had been transferred to secret CIA detention in Thailand, from there to Poland, and then on to a secret CIA site in Guantánamo Bay. Expert testimony had confirmed earlier reports that in 2004 he had been moved out of Guantánamo Bay – in anticipation of the US Supreme Court ruling granting access to lawyers and habeas corpus review – and he had been transferred to Morocco. As the experts had explained, the Moroccan site had closed in February 2005, prompting the opening of the next site in the cycle, Lithuania, precisely when rendition flights had flown the route from Morocco to Lithuania. In March 2006, the Lithuanian site itself had closed, prompting the transfer of the applicant, like all of the remaining CIA detainees, to Afghanistan. It was from Afghanistan that he had ultimately been transferred back to Guantánamo Bay in September 2006.",
"458. Referring to the Government ’ s explanations as to the “special cargo” and the purposes served by Project No. 2 given at the public hearing, the applicant said these facts were entirely consistent with his statements and did not really provide any information that would counter his case. In particular, the transportation of the “cargo” was fully consistent with the expert testimony given by Mr J.G.S. in Husayn (Abu Zubaydah), stating that the high-value detainees had been treated as human cargo and that when they had been brought into a country they had not been registered – even if the passengers on the plane had been registered. Likewise, the Government ’ s claim that Project No. 2 had been for a special intelligence purpose was entirely consistent with the purpose of Detention Site Violet and the applicant ’ s submissions in that respect.",
"459. In conclusion, the applicant contended that multiple strands of corroborating evidence considered together, supportive of the first 2009 media accounts citing CIA insiders, led to the irresistible conclusion that, as confirmed by the experts, Lithuania had hosted Detention Site Violet. It had been set up by the Lithuanian authorities and had been operated with their assistance by the CIA and the applicant had been detained at that site between 17 or 18 February 2005 and 25 March 2006.",
"(d) As regards the Lithuanian authorities ’ agreement to the running of a secret detention facility by the CIA on Lithuanian territory and their complicity in the execution of the HVD Programme",
"460. The applicant maintained that multiple sources, including the 2014 US Senate Committee Report, the CNSD Findings and press reports, mentioned high-level members of the Government and intelligence agencies as having approved the establishment of the CIA sites. The 2014 US Senate Committee Report made it clear that millions of dollars had been covertly transferred to show appreciation for the country ’ s support for the HVD Programme.",
"461. Furthermore, the applicant emphasised, for State responsibility to be engaged under the Convention it was not necessary for the highest level official of a State to have known and approved the setting up of the CIA secret “black site” in the country. It was sufficient for the relevant officials within the State to have approved and to have been responsible. In the applicant ’ s view, there was compelling evidence that the Lithuanian State had actively undertaken to facilitate and make possible his rendition to, and secret detention in, Lithuania.",
"(e) As regards Lithuania ’ s knowledge of the CIA HVD Programme at the material time",
"462. The applicant reiterated that there had been no plausible room for doubt as to Lithuania ’ s knowledge of the nature of the secret detention system in 2005 and 2006. This had been clear from the vast publicly available information, including extensive media coverage which had reverberated around the globe, including in Lithuania, detailing the secret detention programme, specifically identifying Eastern European “black sites”, the nature of the enhanced interrogation techniques, and identifying Abu Zubaydah by name as one the missing “ghost prisoners”. The Marty Inquiry was already underway when the applicant had been detained in Lithuania. To suggest innocent ignorance on the part of the authorities as to what might have been going on in the secret site that they set up for the CIA by 2005 simply beggared belief.",
"463. In addition, evidence showed that high-level officials had had specific and direct knowledge. For example, the former President had publicly admitted having been asked by the head of intelligence whether he would be willing to bring accused terrorists into the country unofficially. The head of intelligence in response had noted that he had enquired as to the President ’ s position precisely on the basis that he had known what had been going on in the world.",
"In another example, also from 2005, while the applicant was still detained in Lithuania, the Lithuanian Government attended a NATO-EU meeting with Ms Condoleezza Rice; Mr Fava ’ s testimony set out in Husayn (Abu Zubaydah) made it clear that all member States had known about the enhanced interrogation techniques. That had been clear from the records of the meeting.",
"464. As experts had testified, while not everyone would have known, just as in all other host countries, some certainly had known and had approved. It was beyond reasonable doubt that by 2005 Lithuania had known of the real risk of violations on its territory and evidence demonstrated that the authorities had taken no measures to prevent, to monitor or even to enquire. The parliamentary inquiry concluded that it had been evident that the SSD had not sought to control the CIA ’ s activities in the country and the premises placed at their disposal. It had not monitored or recorded cargoes brought in and out of the country, and it had not controlled the CIA ’ s arrival and departure. This lack of oversight was confirmed by the prosecution file. The Lithuanian authorities had not only failed to exercise due diligence to prevent violations but they had actively intervened to support and enable them. As the evidence showed, again including evidence from the prosecution file, the Lithuanian officials had agreed to, purchased and helped to equip the CIA ’ s secret sites. The Lithuanian officials had provided vital logistics and support for the site, keeping local inquiries at bay. The Lithuanian authorities had intervened to ensure that normal oversight of CIA flights had been lifted by the use of classified letters that had ensured that neither planes, nor passengers, nor cargo had been monitored or inspected. This had been true specifically of the rendition flights identified by the experts as bringing the CIA detainees into the country and taking them out again.",
"B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of US practices in respect of captured terrorist suspects",
"465. Referring to the knowledge of the US authorities ’ practices in respect of suspected terrorists attributable to any Contracting State to the Convention at the material time, AI/ICJ pointed to, among other things, the following facts that had been a matter of public knowledge.",
"466. They stressed at the outset that already on 16 September 2001, in an interview, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, the US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted.",
"AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it was calling the “war on terror” to avoid human rights protections. From early 2002 it became clear that non ‑ US nationals outside the USA suspected of involvement in international terrorism were at a real risk of secret transfer and arbitrary detention by US forces.",
"467. In that regard, AI/ICJ submitted that from January 2002 to 2003 the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantánamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, holding them without charge or trial or access to the courts, lawyers or relatives. By July 2005, there were more than 500 men held there.",
"Cases of arbitrary detention and secret transfer continued to emerge during 2002. In April 2002, alongside the case of Abu Zubaydah, arrested in Pakistan and whose whereabouts after transfer to US custody remained unknown AI reported that “the US authorities had transferred dozens of people to countries where they [might] be subjected to interrogation tactics -including torture [...]. In some cases, it [was] alleged that US intelligence agents [had] remained closely involved in the interrogation”.",
"Also, in December 2002, the Washington Post reported on a secret CIA facility at Bagram, Afghanistan, and the CIA ’ s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the CIA. Thus, as early as the end of 2002, any Contracting Party was or should have been aware that there was substantial credible information in the public domain that the USA was engaging in practices of enforced disappearance, arbitrary detention, secret detainee transfers, and torture or other ill-treatment.",
"468. In the years 2003 and 2004 information continued to emerge. In June 2003, for example, AI reported that the CIA had been involved in the arrest in Malawi of five men and their rendition out of that country to an undisclosed location. In August 2003, AI reported that Indonesian national Riduan Isamuddin, also known as Hambali, was being interrogated in US custody in incommunicado detention at an undisclosed location after his arrest in Thailand.",
"In January 2004, the ICRC issued a press release stating that “[b]eyond Bagram and Guantánamo Bay, the ICRC [was] increasingly concerned about the fate of an unknown number of people captured as part of the so ‑ called global war on terror and held in undisclosed locations”. Furthermore, a February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and that “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law.",
"In May 2004, AI publicly denounced as torture the interrogation technique known as “waterboarding” reportedly used against Khalid Sheikh Mohammed, a “high-value detainee” who had by then been held in secret US detention for more than a year following his arrest in Pakistan in March 2003.",
"469. In June 2004, the Washington Post published a leaked August 2002 memorandum written in the US Department of Justice ’ s Office of Legal Counsel. The memo advised, inter alia, that presidential powers or the doctrines of necessity or self-defence could override the criminal liability for torture under US law, and that a “significant range of acts” would not be punishable as they did not amount to torture. Another government memorandum leaked in 2004 asserted that not applying the Geneva Conventions to “captured terrorists and their sponsors” would reduce the threat of domestic prosecution of US interrogators for war crimes.",
"In June 2004, a December 2002 memorandum signed by the US Secretary of Defense was declassified. It had authorized “counter ‑ resistance” techniques for use at Guantánamo, including stress positions, sleep deprivation, sensory deprivation, stripping, hooding, exploitation of phobias, and prolonged isolation. A 2003 Pentagon Working Group report on “detainee interrogations in the global war on terrorism”, declassified and published in June 2004 after an earlier draft of it was leaked, recommended the use of various techniques, including environmental manipulation, threat of rendition, isolation, sleep deprivation, removal of clothing, exploitation of phobias, prolonged standing, and hooding.",
"470. In October 2004, AI published a 200-page report on US human rights violations in the “war on terror”, including case details of secret transfers of detainees, the alleged existence of secret US detention facilities, and torture and other ill-treatment. The numerous rendition cases listed included detailed allegations made by Khaled el-Masri.",
"In addition, in its annual reports covering each of the years from 2002 to 2005, AI made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in a number of other country entries. Paper copies of these reports were widely distributed, including to media and governments. For example, copies of the reports were mailed at the time of their publication directly to the President, the Prime Minister, the Minister of the Interior and the Minister of Justice in Vilnius, Lithuania.",
"471. In the AI/ICJ ’ s submission, by early 2005 it was beyond reasonable doubt that the USA was engaging in human rights violations against detainees, including holding individuals in secret custody at undisclosed locations, and that detainees labelled “high-value” were at particular risk as the USA pursued intelligence on al-Qaeda and associated groups.",
"Consequently, by 2005, any Contracting Party agreeing to host a CIA “black site” on its territory would or should have known that such a site would be part of a programme that involved unlawful transfer, enforced disappearance, and torture or other ill- treatment. Further, any Contracting Party would or should have known that any US assurances that a detainee previously subjected to the US programme would be treated in a manner consistent with international law, in the case of further transfer, lacked credibility. Any State would or should have known that even if not transferred to further undisclosed detention, the alternative for a “high ‑ value” detainee would be indefinite arbitrary detention without charge or committal for trial by military commission with the power to hand down death sentences.",
"C. HFHR submissions",
"472. The HFHR focused on their experience regarding Poland ’ s involvement in the CIA extraordinary rendition programme. They produced a number of documents, including flight data, concerning eleven landings of the CIA-rendition aircraft in Poland, ten of which had occurred at Szymany military airfield between 5 December 2002 (the date of the applicant ’ s rendition to Poland) and 22 September 2003 (the date of the applicant ’ s rendition from Poland) and one landing of a plane from Kabul in Warsaw en route to Keflavik that occurred on 28 July 2005.",
"D. The parties ’ positions on the standard and burden of proof",
"473. The parties expressed opposing views on the standard and burden of proof to be applied in the present case.",
"1. The Government",
"474. The Government reiterated that there was no evidence that the facts complained of had taken place in Lithuania. In their view, the applicant ’ s allegations could not be considered sufficiently convincing or established beyond reasonable doubt, as required by the Court ’ s case-law.",
"In that regard, the Government referred to the standard of proof applied by the Court in El-Masri (cited above), emphasising that the present case was substantially different in several aspects. In the first place, in the El ‑ Masri case the applicant himself had lodged the case and presented his statements; his account had been supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities. As the Court held, Mr El-Masri ’ s case had been “a case of documented rendition”. Secondly, there had been other relevant elements corroborating the applicant ’ s story. Thirdly, the circumstances described by the applicant had been verified and confirmed by other international investigations concerning the applicant, to mention only the Marty and Fava Inquiries. Lastly, the Court had before it a written statement made by one of the State ’ s top officials confirming the facts established in the course of the investigations and the applicant ’ s consistent and coherent description of events. All this material taken together satisfied the Court that there had been prima facie evidence in favour of the applicant ’ s version of events, and, consequently, it found the applicant ’ s allegations sufficiently convincing and established beyond reasonable doubt.",
"In contrast, Mr Abu Zubaydah had failed to produce such evidence and to make a credible claim either before the domestic authorities or before the Court. In view of the foregoing, the Government were confident that the burden of proof should not be shifted to them.",
"475. The Government further stressed that the applicant ’ s allegations concerning rendition to and from Lithuania, and his secret detention and ill ‑ treatment in CIA secret facilities in Lithuania had been rejected in their entirety as unfounded following the pre-trial investigation carried out by the Prosecutor General ’ s Office.",
"Those proceedings followed the Seimas inquiry. While it was true that the Seimas had come to conclusions that had left some doubt as to whether any CIA prisoners had been transported to and from the country and whether a CIA secret prison had operated on the premises of Project No. 1 and Project No. 2, all such doubts had been dispelled in the criminal investigation.",
"In that context, the Government also drew the Court ’ s attention to the limited competence of the Seimas and the nature of its inquiry as defined in the Constitutional Court ’ s ruling of 13 May 2004, holding that “the Seimas [was] neither an institution of pre-trial investigation under the Constitution, nor the prosecutor ’ s office, nor the court” and that “the conclusions of the Seimas ... investigation ... may not be construed as legal qualification of the actions that [it had] investigated ... and of other circumstances ... elucidated by it”. Consequently, the Seimas findings had not been binding and remained subject to the verification in the prosecutor ’ s investigation.",
"476. The Government attached particular importance to the prosecutor ’ s conclusion that in the course of the pre-trial investigation no evidence concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania had been obtained. That decision had been based on a wide range of evidence, including classified sources, conclusively refuting the applicant ’ s version of the events. Those findings, made as they were on a solid evidential basis could not, therefore, be undermined by the mere flight data or other information available in the public domain.",
"477. In conclusion, the Government asked the Court to hold that there was no prima facie evidence in support of the applicant ’ s version of events and that, accordingly, the burden of proof could not be shifted to them.",
"2. The applicant",
"478. The applicant submitted that in his case against Poland, the Court had acknowledged the undeniable evidential challenges that arose in a case of this nature, and how the facts of the case, and the nature of the allegations, conditioned the Court ’ s approach to evidence and proof.",
"As regards the “beyond reasonable doubt” standard, to which the Government referred, the Court had long been clear that this did not have the meaning commonly associated with that term in criminal law and domestic systems. Proof might flow from the existence of sufficiently strong, clear and concordant inferences of presumptions of fact. The Court must adopt an approach consistent with its purpose as a Human Rights Court. Where the events in issue lay wholly, or in large part, within the exclusive knowledge of the domestic authorities, strong presumptions of fact might arise. When prima facie evidence was presented, the burden of proof shifted to the authorities to provide a satisfactory and convincing explanation.",
"479. In the applicant ’ s view, the evidence in his case more than met the relevant standard of prima facie evidence and created, at a minimum, strong and concordant inferences of fact as to his secret detention on Lithuanian soil. The Government had failed to provide any satisfactory explanation in the face of overwhelming evidence that they had established a “black site” on their territory. Instead, they had engaged in a policy of denial and obfuscation, drawing categorical conclusions that there could not possibly have been detainees on Lithuanian soil. These conclusions were plainly at odds with the evidence before the Court. As the Court in the Polish case had noted, given the nature of the case, the fact that there was no document identifying Abu Zubaydah by name as a detainee on a specific flight or in a specific secret prison site was not surprising and could not determine the outcome in this case. As the evidence plainly showed and as all the three experts had concluded, Abu Zubaydah had been transferred to the Lithuanian “black site” on the relevant dates.",
"E. The Court ’ s assessment of the facts and evidence",
"1. Applicable principles deriving from the Court ’ s case-law",
"480. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006 ‑ XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 96, 18 December 2012; and El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393).",
"481. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on the responsibility of Contracting States under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions.",
"According to the Court ’ s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali v. Italy, no. 44883/09, § 119, 23 February 2016 ).",
"482. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395 ).",
"483. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court ’ s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220).",
"In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152).",
"2. Preliminary considerations concerning the assessment of the facts and evidence in the present case",
"484. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraphs 15-16 above; also compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156 ‑ 167; Selmouni v. France [GC], no. 25803/94, § § 13-24, ECHR 1999 ‑ V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006 ‑ IX; and Ilaşcu and Others, cited above, §§ 188-211).",
"485. The regime applied to High Value Detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant ’ s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397 ‑ 398; and paragraphs 47-5 8, 8 5 and 29 9 above).",
"486. As held in Husayn (Abu Zubaydah) (cited above, § 397) and as emerges from the material cited above (see paragraphs 90 -16 4 above), since 27 March 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the Combatant Status Review Tribunal ’ s members and his US counsel. It has also been submitted that the applicant ’ s communications with the outside world are subject to unprecedented restrictions and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified. In fact, for the last sixteen years, he has been subjected to a practical ban on communication with others, apart from mail contact with his family which was allowed at some point after his transfer to Guantánamo (see paragraphs 161-163 and 40 7 above).",
"487. The above difficulties in gathering and producing evidence in the present case caused by the restrictions on the applicant ’ s contact with the outside world and by the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before the Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources.",
"In consequence, the Court ’ s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 400; and Al Nashiri v. Poland, cited above, § 400).",
"488. Furthermore, it is to be noted that while the Government firmly denied the applicant ’ s allegations in so far as they concerned Lithuania, they refrained from making any comments on the facts relating to the circumstances preceding his alleged rendition to Lithuania on 17 or 18 February 2005 or following his alleged transfer from the country on 25 March 2006 (see paragraphs 42 3 -44 6 above).",
"However, the facts complained of in the present case are part of a chain of events lasting from 27 March 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant ’ s detention and a sequence of alleged rendition flights to those countries. Accordingly, the Court ’ s establishment of the facts and assessment of evidence cannot be limited to the events that allegedly took place in Lithuania but must, in so far as is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Lithuania (see Al Nashiri v. Poland, cited above, §§ 401-417); and Husayn (Abu Zubaydah) v Poland, cited above, §§ 401-419).",
"3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Lithuania (27 March 2002 to 17 or 18 February 2005)",
"(a) Period from 27 March 2002 to 22 September 2003",
"489. The Court has already established beyond reasonable doubt the facts concerning the applicant ’ s capture, rendition and secret detention until 22 September 2003, the date of his rendition on plane N313P from Poland to another CIA secret detention facility (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-404 and 406-419). The relevant passages from Husayn (Abu Zubaydah) containing the Court ’ s findings of fact are cited above (see paragraphs 9 1 and 9 7 above). Some additional elements, which are all fully consistent with the Court ’ s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 9 2 -9 6 and 98 above).",
"(b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 22 September 2003 (transfer out of Poland) to 17 or 18 February 2005 (transfer out of Morocco) were proved before the Court",
"490. It is alleged that before being rendered by the CIA to Lithuania the applicant had been detained in Guantánamo from 23 September 2003 to Spring 2004 and, subsequently in Rabat, Morocco until 17 or 18 February 2005 (see paragraph 99 above).",
"491. In Husayn (Abu Zubaydah) Mr J.G.S. testified that on 22 September 2003 the plane N313P had taken the applicant from Szymany, Poland via Bucharest and Rabat to Guantánamo. The plane ’ s destinations to Romania and Morocco had been disguised by the so-called “dummy” flight planning, showing, among other things Constanţa, not Bucharest as the arrival airport in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 109 and 312; see also paragraphs 10 3 -10 4 above).",
"In the present case, Mr Black, having analysed the available evidence, testified that “Abu Zubaydah must have ... been taken to Guantánamo on that flight” (see paragraph 108 above).",
"492. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah), where, as stated above, the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA-associated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It arrived in Szymany from Kabul. It flew from Szymany to Bucharest, then to Rabat and from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 10 3 -10 4 and 10 8 above).",
"493. The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court ’ s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 61 and 1 10 above).",
"494. At the fact-finding hearing in the present case, Mr J.G.S. explained that the applicant had been transferred from Guantánamo on board the rendition plane N85VM on 27 March 2004. The flight was first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred to Rabat directly (see paragraph 10 7 above). Mr Black confirmed that everyone who had been taken to Guantánamo had had to be moved out in March or April 2004 (see paragraph 10 8 ). The experts identified the country to which the applicant had been transferred from Guantánamo as Morocco on the basis of the correlation of the flight data and unredacted information in the 2014 US Senate Committee Report (see paragraphs 10 5-108 above).",
"495. Furthermore, both experts confirmed that the CIA, due to various disagreements with the Moroccan authorities, had been forced to take all its prisoners out of Morocco in early 2005. In that regard, the 2014 US Senate Committee Report relates “tensions” with a country whose name is redacted. Those tensions arose in connection with the “deterioration of intelligence cooperation” and the treatment of their prisoners by the local authorities, resulting in “cries of pain” being heard by CIA detainees kept in the same detention facility. It states that the CIA detainees were transferred out of the country concerned in 2005; the month was redacted but seems to have comprised eight characters (see paragraphs 10 5 -1 10 above).",
"Both experts indicated February 20 05 as the month in question. Mr J.G.S., referring to the Moroccan detention facility, testified that “it [had been] in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco [had taken] place” (see paragraph 10 5 above). Mr Black stated that “after a certain time in Morocco, the CIA [had] had too many disagreements with the Moroccan Intelligence Agencies with regard to treatment of prisoners in Morocco. ... And so everyone who [had been] in Morocco [had been] moved out at the latest in February 2005” (see paragraph 10 8 ).",
"496. In the light of the material in its possession – which has not been as such contested by the Government (see paragraph 48 8 above) – the Court finds no counter evidence capable of casting doubt on the accuracy of the experts ’ conclusions regarding the above sequence of events, the places of the applicant ’ s secret detention and the dates of his transfers during the relevant period.",
"497. Accordingly, the Court finds it established beyond reasonable doubt that:",
"(1) on 22 September 2003 on board N313P the applicant was transferred by the CIA from Szymany, Poland to Guantánamo, Cuba;",
"(2) from 24 September 2003 to 27 March 2004 the applicant was detained in Guantánamo;",
"(3) on 27 March 2004 on board N85VM the applicant was transferred by the CIA from Guantánamo to Rabat, Morocco;",
"(4) from 27 March 2004 to an unspecified date in the month (redacted in the 2014 US Senate Committee Report), identified by the experts as February 2005, the applicant was detained in Morocco at a facility used by the CIA; and",
"(5) on an unspecified date in February 2005 he was transferred by the CIA from Morocco to another detention facility elsewhere.",
"4. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Lithuania, secret detention in Lithuania and transfer by the CIA out of Lithuania (17 or 18 February 2005 to 25 March 2006)",
"(a) Whether a CIA secret detention facility existed in Lithuania at the time alleged by the applicant (17 or 18 February 2005 to 25 March 2006)",
"498. It is alleged that a CIA secret detention facility, codenamed “Detention Site Violet” operated in Lithuania from 17 or 18 February 2005, the dates on which either or both CIA rendition planes N724CL and N787WH brought CIA detainees to Lithuania, to 25 March 2006, when it was closed following the detainees ’ transfer out of Lithuania on board the rendition plane N733MA (see paragraphs 111-117 and 44 9 -45 9 above). The Government denied that a CIA detention facility had ever existed in Lithuania (see paragraphs 423 -44 6 above).",
"499. The Court notes at the outset that although the Government have contested the applicant ’ s version of events on all accounts, they have not disputed the following facts, which were also established in the Seimas inquiry and confirmed in the course of the pre-trial investigation conducted in 2010-2011 (see paragraphs 17 4, 19 9, 30 7-349, and 36 7 -3 70 above):",
"(a) In 2002-2005 the CIA-related aircraft repeatedly crossed Lithuania ’ s airspace; according to the CNSD Findings, on at least twenty-nine occasions.",
"(b) In the period from 17 February 2005 to 25 March 2006 four CIA-related aircraft landed in Lithuania:",
"– planes N724CL and N787WH landed at Vilnius International Airport on, respectively, 17 February 2005 and 6 October 2005;",
"– planes N787WH and N733MA landed at Palanga International Airport on, respectively, 18 February 2005 and 25 March 2006.",
"(d) On three occasions the SSD officers received the CIA aircraft and “escorted what was brought by them” with the knowledge of the heads of the SSD:",
"– on 18 February 2005 N787WH, which landed at Palanga airport with five US passengers on board, without any thorough customs inspection of the plane being carried out; according to the CNSD Findings, “no cargo was unloaded from it or onto it”;",
"– on 6 October 2005 N787WH, which landed at Vilnius airport, where a certain R.R., the SBGS officer, was prevented from inspecting the aircraft and no customs inspection of the plane was carried out; and",
"– on 25 March 2006 N733MA, which landed at Palanga airport, but the SBGS documents contained no records of the landing and inspection of the plane, and no customs inspection was carried out.",
"(e) In connection with the landing of N787WH in Vilnius on 6 October 2005 and of N733MA in Palanga on 25 March 2006 the SSD issued classified letters to the SBGS, but the letter regarding the landing on 6 October 2005 was delivered ex post facto, and before that event the SSD had never issued such letters.",
"(f) The SSD high-ranking officers provided the US officers with unrestricted access to the aircraft at least on two occasions, including on 6 October 2005.",
"(g) In 2002-2006 the SSD and the CIA were in “partnership cooperation”, which involved the “equipment of certain tailored facilities”, i.e. Project No. 1 and Project No. 2.",
"(h) The facilities of Project No. 1 were installed in 2002.",
"(i) The SSD started the implementation of Project No. 2 in cooperation with the CIA at the beginning of 2004; this involved assisting the CIA in the acquisition of the land and building in Antaviliai and carrying out construction work in order to equip the facility; the work was carried out by contractors brought by the CIA to Lithuania; the materials and equipment for the facility were brought to Lithuania by the CIA in containers.",
"(j) Project No. 1 and Project No. 2 were fully financed by the CIA.",
"(k) Witnesses A and B2, politicians questioned in the criminal investigation, were addressed in connection with “the temporary possibility of holding persons suspected of terrorism ” and “as regards the transportation and holding [of] people in Lithuania”.",
"500. The Court further notes that, according to the material in the case file, the first public disclosure of Lithuania ’ s possible participation in the CIA secret detention scheme appeared on 20 August 2009 in the ABC News report. The report was followed by a more detailed publication of 18 November 2009. The reports mentioned “CIA officials directly involved in or briefed on the highly classified [HVD] programme”, “a former US intelligence official”, “one of the former CIA officers involved in the secret prison program”, “Lithuanian officials” and “a current Lithuanian government official” as their sources.",
"The August 2009 ABC News report stated that “Lithuanian officials [had] provided the CIA with a building on the outskirts of Vilnius ... where as many as eight suspects [had been] held for more than a year until late 2005 when they [had been] moved because of public disclosures”. The reporters said that they had viewed flight logs – shown to them by “one of the former CIA officers involved in the secret prison program”, confirming that CIA planes made “repeated flights into Lithuania during that period” and that the purpose of the flights had been “to move terrorist suspects”. The officer told the reporters that the CIA had “arranged for false plans to be submitted to European aviation authorities”. It was also reported that “the prison in Lithuania [had been] one of eight facilities the CIA set up after 9/11 to detain and interrogate al Qaeda operatives captured around the world” (in this connection, see also paragraph 1 66 above).",
"In November 2009 ABC News reported that a current Lithuanian government official and a former US intelligence official had told them that the CIA had “built one of its secret European prisons inside an exclusive riding academy outside Vilnius”. ABC News stated that “the CIA [had built a thick concrete wall inside the riding area. Behind the wall, it [had] built what one Lithuanian source [had] called a ‘ building within a building ’. On a series of thick concrete pads, it [had] installed what a source called ‘ prefabricated pods ’ to house prisoners, each separated from another by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. ... Intelligence officers working at the prison [had been] housed next door in the converted stable ... Electrical power for both structures [had been] provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure [had been] 110 volts, meaning that they [had been] designed for American appliances” (see paragraphs 25 8 -25 9 above).",
"501. The Government have contested the evidential value of the above publications and, in general terms, expressed reservations as to the evidential value of media and other reports in the public domain (see paragraphs 42 3 -42 4 above).",
"However, at the material time the Lithuanian authorities apparently considered the August 2009 ABC News disclosure sufficiently credible, given that the report prompted the joint meeting of the CNSD and Committee on Foreign Affairs on 9 September 2009 and the further parliamentary inquiry, which was opened on 5 November 2009. In the course of the inquiry the CNSD interviewed fifty-five persons, including the highest authorities of the State, and obtained various evidence, including classified information (see paragraphs 167-176 above).",
"The CNSD, made the following findings:",
"(a) In 2002-2005 the aircraft that had been linked in official investigations to the transportation of CIA detainees had crossed Lithuania ’ s airspace on repeated occasions.",
"(b) It had not been established whether CIA detainees had been transported through Lithuania; however, conditions for such transportation had existed.",
"(c) The SSD had received a request from the CIA to equip facilities suitable for holding detainees.",
"(d) The SSD, in Project No. 1, had created conditions for holding detainees in Lithuania; ”facilities suitable for holding detainees [had been] equipped, taking account of the requests and conditions set out by the partners”; however, according to evidence in the CNSD ’ s possession the premises had not been used for that purpose.",
"(e) While persons who had given evidence to the CNSD had denied that there existed any preconditions for holding and interrogating detainees at Project No. 2, the layout of the building, its enclosed nature and protection of the perimeter, as well as the fragmented presence of the SSD staff at the premises allowed the CIA officers to carry out activities without the SSD ’ s control and to use the infrastructure at their discretion.",
"The above Findings were endorsed by the Seimas in its Resolution of 19 January 2010 (see paragraph 17 4 above).",
"502. The Government submitted that the CNSD Findings had been subsequently verified in the pre-trial investigation conducted in 2010-2011. According to the Government, the investigation, based on the testimony of witnesses who had been directly involved in the implementation of Project No. 1 and Project No. 2, and in the landing and departure procedures for CIA flights, had conclusively established that there had been no CIA secret detention centre in Lithuania, that the facilities of Project No. 1 and Project No. 2 had not been, and could not have been, used for holding detainees and that there had been no evidence of CIA detainees ever being held in the country. The sole purpose of the CIA planes landing was, in the Government ’ s words, the delivery of a “special cargo”, described as a “connection” or “communication” equipment providing the SSD and the CIA “with technical services in order to implement their joint project”. The Government also attached importance to the fact that Lithuania had not been the object of any international inquiries conducted into the European countries ’ collusion in the CIA HVD Programme (see paragraphs 42 6 -44 6 above).",
"503. As regards the latter argument, the Court observes that it is true that, on account of the fact that the allegations of the CIA secret prison being run in Lithuania emerged only in August 2009 (see paragraphs 25 8 and 500 above), Lithuania had not been included in any of the inquiries carried out by the Council of Europe and the European Parliament in 2005-2007 (see paragraphs 26 9-286 above). Nor were any international investigations of a scale comparable to the Marty Inquiry and the Fava Inquiry subsequently conducted into the allegations concerning Lithuania.",
"504. However, the investigative work of the experts involved in the 2010 UN Joint Study encompassed Lithuania ’ s possible involvement in the CIA scheme of secret prisons. According to the UN experts, research for the study, including data strings relating to the country, appear to confirm that it was integrated into the CIA extraordinary rendition programme in 2004 (see paragraph 303 above).",
"505. The CPT delegation visit to Lithuania on 14-18 June 2010 and the 2011 CPT Report involved the issue of alleged CIA secret prisons. While the central focus for the delegation was to try to assess the effectiveness of the pre-trial investigation which was at that time pending, the CPT considered it important to visit the “two tailored facilities” identified in the CNSD Findings as Project No. 1 and Project No. 2. The 2011 CPT Report, referring to Project No. 2, described the facilities as “far larger than” Project No. 1” and consisting of “two buildings ... connected and divided into four distinct sectors”. In one of the buildings, “the layout of premises resembled a large metal container enclosed with a surrounding external structure”. The CPT refrained from providing a more detailed description of the facilities but concluded that even though when visited by the delegation the premises did not contain anything that was “highly suggestive of a context of detention”, both Project No. 1 and Project No. 2 could be adapted for detention purposes “with relatively little effort” (see paragraphs 3 50 -3 52 above).",
"506. It is also to be noted that since at least early 2012, the European Parliament, through the LIBE Committee, has conducted an inquiry into allegations concerning Lithuania ’ s complicity in the CIA extraordinary rendition scheme. As part of the inquiry, the LIBE delegation visited Lithuania and carried out an inspection of Project No. 2 which, in the words of the LIBE Rapporteur, Ms Flautre, was described as a “kind of building within the building, a double-shell structure” equipped with an “enormous air-conditioning system and a water-pumping system, the purpose of which [was] not evident” (see paragraph 2 89 above). That visit gave rise to concerns subsequently expressed in the 2012 EP Resolution, which stated that “the layout [of Project No. 2] and installations inside appear[ed] to be compatible with the detention of prisoners” (see paragraph 2 90 above).",
"507. Furthermore, the conclusions of the pre-trial investigation relied on by the Government and the Government ’ s explanation of the purpose of the CIA planes landing seem to have been contradicted by other evidence in the Court ’ s possession, including material available in the public domain and the experts ’ testimony.",
"To begin with, as regards the purpose of the CIA-linked planes landing in Lithuania at the material time, the extensive flight data produced by the applicant, including the data in the 2015 Reprieve Briefing, and expert evidence show that in respect of three out of four planes that landed in and departed from Vilnius and Palanga airports during the period from 17 February 2005 to 25 March 2006 the CIA used its methodology of “dummy” flight planning, that is to say, a deliberate disguise of their true destinations by declaring in the flight plans the route that the planes did not, nor even intended to, fly (see paragraphs 12 3 -12 5 and 1 30-133 above). According to expert evidence obtained by the Court in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, as well as in the present case, the methodology of disguising flight planning pertained primarily to those renditions which dropped detainees off at the destination – in other words, at the airport connected with the CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 316-318; and Husayn (Abu Zubaydah) v. Poland, cited above, § 310-312; see also paragraph 12 7 above).",
"(a) Significantly, the N787WH ’ s circuit executed on 15-19 February 2005 included two disguised – undeclared – destinations on the plane ’ s route from Rabat to Palanga. The first disguised destination was Bucharest, whereas the flight plan was filed for Constanţa; the second one was Palanga, whereas the flight plan was filed for Gothenburg (see paragraph 12 3 above).",
"(b) The N787WH ’ s circuit on 1-7 October 2005 was disguised by both the “dummy” flight planning and switching aircraft in the course of the rendition operation, also called a “double-plane switch” – that is to say, another CIA method of disguising its prisoner-transfers, which was designed, according to expert J.G.S., to avoid the eventuality of the same aircraft appearing at the site of two different places of secret detention (see paragraph 129 above; see also Al Nashiri v. Romania, cited above, § 135 ).",
"The experts testified that the “double-plane switch” operation had been executed on 5-6 October 2005 in Tirana by two planes – N308AB, which arrived there from Bucharest after collecting detainees from the CIA “black site” in Romania, and N787WH. The CIA detainees “switched” planes in Tirana and they were transferred from N308AB onto N787WH for the rendition flight. On its departure from Tirana, N787WH filed a false plan to Tallinn in order to enable the flight to enter Lithuanian airspace, but its true destination was Vilnius, where it landed on 6 October 2005 in the early hours (see paragraphs 11 4, 1 30-131 and 1 40 above).",
"In relation to this flight it is also noteworthy that the flight data submitted by the Lithuanian aviation authorities to the CNSD in the course of the Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey (see paragraph 17 4 above). Witnesses questioned in the pre-trial investigation gave inconsistent indications as to where the plane arrived from. For instance, Witness B3 spoke of an “unplanned aircraft from Antalya” (see paragraph 31 5 above). Witness B4 (“person B”) said that it had “arrived from Tallinn without passengers” and that it had “arrived in Tallinn from Antalya” (see paragraph 31 6 above). The Administration of Civil Aviation, for its part, informed the prosecutor that “they could [have] confuse[d] the code of Antalya and Tirana due to their similarity” (see paragraph 18 3 above).",
"(c) According to the experts, a combination of “dummy” flight planning and aircraft switching methodologies was likewise used in connection with the N733MA flight on 25 March 2006 (see paragraphs 134 and 140 above). The Palanga airport records indicated that on that date the plane had arrived in Palanga from Porto and that it had left for Porto on the same day (see paragraphs 12 5 and 17 4 above). However, as stated in the 2015 Reprieve Briefing and confirmed by the experts at the fact-finding hearing, a false plan was filed for Porto, whereas the plane flew to Cairo where it made connection with N740EH, another CIA rendition plane. The 2015 Reprieve Briefing also states that the documents relating to the planning of these two trips showed complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan (see paragraph 12 5 above).",
"In the Court ’ s view, the CIA ’ s above repeated, deliberate recourse to the complex flight-disguising methodologies typical of rendition flights transporting detainees to “black sites” does not appear to be consistent with the stated purpose of the CIA-linked planes landing in Lithuania, which according to the Government had been merely the delivery of “special cargo”, described as “communication” or “connection” equipment”, in the context of the routine intelligence cooperation (see paragraphs 42 7 -4 32 above).",
"508. The Court further observes that in respect of the above planes the authorities applied a distinct practice, which resembles the special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities in December 2002-September 2003 and found by the Court to have been one of the elements indicative of the State ’ s complicity in the CIA HVD Programme (see Al Nashiri v. Poland, cited above, §§ 418 and 442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 420 and 444).",
"In particular, as in Poland, the planes were not subject to any customs or the border guard control. On 6 October 2005 the SBGS officer R.R. was prevented from carrying out the N787WH plane inspection (see paragraphs 17 4 and 36 6 above). In connection with the arrivals of the “partners ’ ” and the SSD officers at the airports, classified letters asking for access to the aircraft were issued to the SBGS at least on two occasions – one ex post facto, following the above incident with the SBGS officer on 6 October 2005 and one in connection with the N733MA landing in Palanga on 25 March 2006. Also, the rendition planes landing involved special security procedures organised by the CIA ’ s counterpart in Lithuania. As confirmed by the SSD officers questioned in the course of the pre-trial investigation, they used to escort “the partners”, that is to say, the CIA teams to and from Vilnius and Palanga airports. In that connection, the CIA asked the SSD to make security arrangements. In the airport, the CIA vehicles approached the aircraft, whereas the SSD ’ s escorting vehicles remained at some distance (see paragraphs 17 4, 18 4, 31 5, 329, 337, 34 6, 366, 370 -3 71 above).",
"509. At the fact-finding hearing held in the present case the experts, Mr J.G.S. and Mr Black, confirmed categorically that – beyond reasonable doubt – a CIA secret detention facility had operated in Lithuania in the period indicated by the applicant. In the same categorical terms they identified Lithuania as a country hosting the CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 12 8-145 above). The 2015 Reprieve Briefing, relying on research into the CIA rendition operations, the analysis of the public data regarding the CIA prisoners ’ transfers and the unredacted parts of the report, likewise concluded that it had been established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania had been used to hold prisoners and that Detention Site Violet had been located in Lithuania (see paragraphs 1 20 -12 2 above).",
"510. The experts and the Briefing gave the same time-frame – February 2005-March 2006 – for the CIA ’ s secret prison operation. The Briefing stated that the opening of the site had been marked by the transfer of prisoners which could have been effected on either or both of two CIA rendition aircraft – N724CL, which landed in Vilnius on 17 February 2005, or N787WH, which landed in Palanga on 18 February 2005 (see paragraph 123 above).",
"Both experts stated that the opening of the CIA “black site” in Lithuania had been prompted by the disagreements with the Moroccan authorities in the administering of a secret detention site used by the CIA in Rabat, which had led to the transfer of the CIA detainees out of Morocco (see paragraphs 12 9, 13 2-133 and 13 9-141 above).",
"511. In that regard, Mr J.G.S. referred to the “cyclical nature” of the CIA detention sites and explained that the CIA HVD Programme had included several junctures “at which one detention close[d] abruptly and another open[ed] in its place”. In his view, “17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had been dramatically overhauled”. In the light of the flight data of February 2005, there were only two destinations for detainees being taken from Morocco – Romania and Lithuania.",
"Mr J.G.S. reached the “incontrovertible conclusion” that when the facility in Morocco had been finally closed, the only possibility was that Detention Site Violet in Lithuania then took the detainees from Morocco in conjunction with Detention Site Black in Romania (see paragraphs 12 9 -13 7 above). He further stated that references in the 2014 US Senate Committee Report had “accorded completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania”. He referred to the report ’ s sections stating that Detention Site Violet had been created in a “separate country” from any of the other detention sites mentioned therein. This, in his view, had opened a new territory in the CIA HVD Programme and referred to a site that had endured beyond the life span of Detention Site Black in Romania which, according to report, was closed shortly after the Washington Post publication of 2 November 2005.",
"In that connection, Mr J.G.S. also testified that the two projects in Lithuania aimed at providing support to the CIA detention operations, referred to in the Seimas inquiry as Project No. 1 and Project No. 2, corresponded to the description of two facilities in the country hosting Detention Site Violet. In particular, the report stated that by mid-2003 the CIA had concluded that its completed but still unused holding cell in the country – by which it had meant Project No. 1 – had been insufficient. It further stated that the CIA had thus sought to build a new expanded facility in the country. This corresponded precisely with the description of the provenance of Project No. 2 as given in the CNSD Findings (see paragraph 13 3 above).",
"512. Mr Black said that the report clearly indicated that Detention Site Violet had operated from February 2005 to March 2006. The site had been in a country where there had previously been another site that had never been used. This detail of there having been two sites, one never used and one that had been used between February 2005 and March 2006 corresponded accurately with the parliamentary inquiry ’ s findings, stating that “partners” – the CIA – had equipped two sites. His research established that flights went into and out of Lithuania precisely at the time that the prisoners were said to have been moved into and out of Detention Site Violet. This corresponded with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006 (see paragraph 1 40 above).",
"Mr Black added that, taking into account the whole weight of various indicators, “the only solution that ma[d]e any sense is that the solution that indeed the site in Lithuania [had] operated at the times that we [had] stated and [had been] serviced by the flights that we [had] stated” (see paragraph 14 4 above).",
"513. In that context the Court would also note that, as shown by the evidence referred to above, the 17-18 February 2005 flights were followed by the landing on 6 October 2005 of the plane N787WH, which, according to the experts, transferred CIA detainees, via a “double-plane switch” operation in Tirana, from the CIA facility codenamed “Detention Site Black” in the 2014 US Senate Committee Report and located in Bucharest. Mr Black added that Khalid Sheikh Mohammed had been transferred from Romania to Detention Site Violet in Lithuania on that plane (see paragraphs 1 30 -13 1 and 14 3 -14 4 above).",
"514. The experts were not in complete agreement as to which date – 17 or 18 February 2005 – was the one definitely marking the opening of the CIA “black site” in Lithuania.",
"Mr J.G.S. considered that it was more likely that the flight of N734CL on 17 February 2005 signified the opening of the “black site”, since it had landed in Vilnius and Vilnius was the airport physically associated with Antaviliai, the location of the CIA facility. However, he did not rule out the possibility that another airfield, Palanga, may have been used in conjunction with Vilnius (see paragraphs 1 30, 13 4 and 13 7 above).",
"Mr Black, for his part, was categorical in stating that the transfer of detainees from Morocco to Lithuania had been executed by the N787WH flight into Palanga on 18 February 2005 (see paragraphs 14 1 -14 2 above).",
"However, the Court does not find it indispensable to rule on which specific date the CIA site in Lithuania opened given that, according to the evidence before it, there were only these two, closely situated, dates on which it could have happened.",
"515. As regards the date marking the end of Detention Site Violet ’ s operation, both Mr J.G.S. and Mr Black stated that it had been closed as a result of medical issues experienced by CIA detainees, who had been refused medical treatment in the country, as described in the 2014 US Senate Committee Report. The experts linked the closure to the rendition mission executed by the plane N733MA, which had landed in Palanga on 25 March 2006. They stated that it had taken the CIA prisoners via Cairo by means of an aircraft switching operation to another detention facility, which they unambiguously identified as “Detention Site Brown” located in Afghanistan. The 2015 LIBE Briefing likewise stated that the above transfer had matched the closure of Detention Site Violet. In that regard, it also referred to the passages in the 2014 US Senate Committee Report, stating that the site had been closed as a result of lack of available medical care in the “five-character redacted” month in 2006 – the redacted month could only be “March” or “April” on account of the length of the redaction (see paragraphs 12 2 -12 5 and 12 8 -14 5 above).",
"516. As regards the physical location of Detention Site Violet, both Mr J.G.S. and Mr Black stated that, beyond reasonable doubt, it had been located in Antaviliai, a neighbourhood of Vilnius, in the former horse-riding academy converted into a customised CIA detention facility, the construction of which had been supervised by the CIA “afresh”. Mr Black, who in 2011-2012 had made several trips to Antaviliai to interview local people, said it was clear from those interviews that the Americans had been there, had been fitting the site out, had been guarding the place and that vehicles with tinted windows had been coming and going (see paragraphs 13 7 and 1 40 above).",
"517. Lastly, the experts, on the analysis of the 2014 US Senate Committee Report and recently declassified CIA material, also established that at least five CIA prisoners were held at Detention Site Violet and conclusively identified three of them – Mustafa al-Hawsawi, who was explicitly mentioned in the report in connection with medical issues experienced at that site, Khalid Sheikh Mohammed and the applicant (see paragraphs 13 3, 13 5 and 14 1 above).",
"518. The Court observes that the 2014 US Senate Committee Report includes several references to Detention Site Violet. It clearly refers to two detention facilities in the country hosting that site: one completed but, “by mid-2003”, still unused and considered by the CIA as insufficient “given the growing number of CIA detainees in the program and the CIA ’ s interest in interrogating multiple detainees at the same detention site” and one “expanded” which the CIA “sought to build”. In that connection, the CIA offered some redacted sum of USD million “to ‘ show appreciation ’ ... for the ... support” for the CIA HVD Programme (see paragraph 14 7 above). That information is consistent with evidence from witnesses M, N, O and P, who were questioned in the criminal investigation. They confirmed that in 2003 N and O had been assigned to assist their CIA partners in finding suitable premises for a joint project – an “intelligence support centre”– in respect of which the partners had “used to cover all expenses”. According to Witness P, in 2002-2003 the “partners” had come and proposed to organise a joint operation, “to establish the premises in Lithuania for the protection of secret collaborators”. Witness O said that the CIA partners had chosen the premises which had then become Project No. 2 and that they had started to come in Spring 2004, had carried out the work themselves and had brought material and the equipment in the containers (see paragraphs 333 ‑ 33 7 above).",
"519. The 2014 US Senate Report further states that Detention Site Violet “opened in early 2005” (see paragraph 14 8 above). This element corresponds to the dates of the landings of the rendition planes N724CL and N787WH – 17 and 18 February 2005. It also corresponds to the statement of Witness S, who testified that Project No. 2 had been “established at the beginning of 2005” (see paragraph 3 41 above).",
"The closure of Detention Site Violet is mentioned in the report in a specific context and chronology, namely “press stories”, in particular the Washigton Post publication of 2 November 2005 that led to the closure of Detention Site Black and “the CIA ’ s inability to provide emergency medical care” due to the refusal of the country hosting Detention Site Violet to admit Mustafa al-Hawsawi, one of the CIA detainees, to a local hospital. This refusal, according to the report, resulted in the CIA ’ s having sought assistance from third-party countries in providing medical care to him and “four other CIA detainees with acute ailments”. In relation to the Washington Post publication, the report gives a fairly specific time-frame for the closure of Detention Site Black, which occurred “shortly thereafter”. However, Detention Site Violet still operated in “early January 2006”. At that time “the CIA was holding twenty-eight detainees in its two remaining facilities, Detention Site Violet ... and Detention Site Orange”. Detention Site Violet was closed in 2006, in the month whose name comprised five characters which were redacted in the report (see paragraph 14 9 above). As noted in the 2015 Reprieve Briefing, there are only two possibilities: the relevant month could be either “March” or “April” 2006.",
"520. Considering the material referred to above as whole, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s allegation that the CIA secret detention site operated in Lithuania between 17 or 18 February 2005 and 25 March 2006. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165 and paragraph 4 82 above).",
"521. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant ’ s allegations. Apart from their reliance on the conclusions of the criminal investigation of 2010-2011 and, in particular, the testimony of witnesses who, as the Government underlined, had all consistently denied that any transfers of CIA detainees had taken place or that a CIA had run a secret detention facility in Lithuania, they have not offered convincing reasons for the series and purpose of the CIA-associated aircraft landings at Vilnius and Palanga between 17 February 2005 and 25 March 2006, the special procedures followed by the authorities in that connection and the actual purpose served by Project No. 2 at the material time (see paragraphs 42 4 ‑ 4 43 above).",
"522. The witness testimony obtained in the criminal investigation is the key evidence adduced by the Government in support of their arguments (see paragraphs 30 7-349 above). The Court has not had the possibility of having access to full versions of the testimony since the relevant material was and still is classified. It has nevertheless been able to assess that evidence on the basis of a summary description produced by the Government (see paragraphs 30 4 -30 6 above).",
"Having considered the material submitted, the Court finds a number of elements that do not appear to be consistent with the version of events presented by the Government.",
"523. First, the Government asserted that both Project No. 1 and No. 2 were found to have been completely unsuitable for secret detention (see paragraphs 43 3 -4 42 above).",
"The Court does not find it necessary to analyse in detail the purposes actually served by Project No. 1 or determine whether or not that facility was used, as the Government argued at the oral hearing, for “extraction” or “exfiltration” of secret agents or otherwise, since in the present case it is not claimed that CIA detainees were held in that facility. It thus suffices for the Court to take note of the CNSD ’ s conclusion that in Project No. 1 “conditions were created for holding detainees in Lithuania” (see paragraph 17 4 above).",
"524. Secondly, as regards Project No. 2, the Government submitted that while the exact purpose served by the premises at the material time could not be revealed since it was classified, the witnesses had unequivocally confirmed that no premises suitable for detainees had been located there. Moreover, access to the premises had been under the permanent surveillance of the SSD and there had been no secret zones inaccessible to the SSD officers in the building. This excluded any possibility of unauthorised access or holding detainees in the premises (see paragraphs 43 6 -4 41 above).",
"However, the Court notes that Witnesses N and O, the SSD officers assigned to assist the CIA partners, who escorted them to and from the airports and who were also responsible for supervision of the premises, said that they had not visited all the rooms. Witness N said that he had not had access to the “administration area”. O was not given access to all the premises. Moreover, the building was apparently not used for the purpose of the declared “joint operation” of an intelligence support centre. The only Lithuanian intelligence personnel present in the building were the three SSD officers M, N and O, who supervised the building on changing shifts even if nobody was there. Witness O stated that he had not known who had arrived at the premises or “with what they had been occupied with”. Witness N “was not aware of the contents of the operations” that were carried out in Project No. 2. Witnesses N and O “actively supervised” the building until the second half of 2005 but then the number of the CIA partners ’ visits decreased (see paragraphs 33 3 -33 7 above).",
"525. As regards the Government ’ s explanation that the premises were acquired for the SSD ’ s needs and used for “short-term meetings” with “their guests” (see paragraph 43 9 above), the layout of one of the buildings at Project No. 2, depicted by the CPT as “a large metal container enclosed within a surrounding external structure” and by the LIBE delegation as “a kind of building within the building” (see paragraphs 28 9 and 3 52 above) does not strike the Court as being a structure typical for the declared purpose. Also, no convincing explanation has been provided as to why Project No. 2, claimed to have been designated for an “intelligence support centre” and reconstructed with evidently considerable effort and expense on the part of the CIA had – according to the witnesses – been virtually unused by the SSD or their partners throughout 2005 (see paragraphs 33 3 -33 8 and 3 41 above).",
"526. The Government further argued that in the light of abundant evidence it had been established in the criminal investigation that the purpose of two CIA-linked flights into Palanga, alleged to have transported the applicant to and out of Lithuania, namely N787WH and N733MA, which had taken place on, respectively, 18 February 2005 and 25 March 2006 had been the delivery of a “special cargo”. The object of the delivery was “special equipment for a special investigation department” in a number of boxes, which had all been of the same size, one metre long (see paragraphs 42 7 -4 32 above).",
"527. However, the witness statements relied on are not only partly inconsistent with each other but they also do not fully support the Government ’ s account. Furthermore, the Government ’ s account is at variance with evidence collected in the course of the parliamentary inquiry. In this regard, the Court would refer to testimony given by the SSD officers involved in escorting “cargo” and the CIA partners to and from the Lithuanian airports and to the CNSD Findings.",
"528. As regards the Government ’ s submission that the purpose of the flight N787WH which landed in Palanga on 18 February 2005 was the delivery of cargo containing the “connection” or “communication” equipment (see paragraphs 42 8 -4 32 above), the Court notes that none of the witnesses heard in the criminal investigation referred to any “delivery of cargo” to Lithuania in relation to the plane in question (see paragraphs 333 ‑ 337 and 346 above). It further notes that the Government ’ s contention stands in contrast with the CNSD Findings, which in the light of the evidence gathered in the inquiry, established that “no cargo was unloaded from it or onto it” (see paragraph 17 4 above). However, as confirmed by the 2010 SBGS letter, “five US citizens arrived in the Republic of Lithuania on that plane” (see paragraph 3 71 above).",
"529. Moreover, the statements made by witnesses V and O do not support the Government ’ s contention that the purpose of the flight N733MA into Palanga on 25 March 2006 was likewise “to deliver equipment” for the Lithuanian “special investigation department”. On the contrary, the two escorting officers clearly related the loading of a “cargo” onto the CIA aircraft from the CIA partners ’ vehicles (see paragraphs 33 3 -33 7 and 34 6 above). This happened in the course of what was called an “operation”, which suggests that the activities involved in the aircraft landing and loading were not quite of a routine nature. As in respect of the other CIA aircraft landings referred to above (see paragraphs 50 7 -50 8 above), the special procedure, without any customs or SBGS control, had been applied.",
"530. Having regard to the inconsistency of the Government ’ s version with the witness statements and the factual findings made by the Lithuanian Parliament and in the light of the documentary and expert evidence analysed in detail above, the Government ’ s explanations as to the purposes served by the CIA rendition flights landing in Lithuania between 17 February 2005 and 25 March 2006 and the facility Project No. 2 cannot be regarded as convincing.",
"531. In view of the foregoing and taking into account all the elements analysed in detail above, the Court concludes that the Government have not produced any evidence capable of contradicting the applicant ’ s allegations.",
"In particular, they have not refuted the applicant ’ s argument that the planes N724CL, N787WH and N733MA that landed in Lithuania between 17 February 2005 and 25 March 2006 served the purposes of the CIA rendition operations and the conclusions of the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Lithuania. Nor have they refuted the applicant ’ s assertion that the above rendition flights marked the opening and the closure of a CIA secret prison referred to in the 2014 US Senate Report as “Detention Site Violet”, which was conclusively confirmed by expert evidence to the effect that Detention Site Violet was located in Lithuania and operated during the period indicated by the applicant (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415).",
"532. Consequently, the Court considers the applicant ’ s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that:",
"(a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania;",
"(b) the facility started operating either from 17 February 2005, the date of the CIA rendition flight N724CL into Vilnius airport, or from 18 February 2005, the date of the CIA rendition flight N787WH into Palanga airport; and",
"(c) the facility was closed on 25 March 2006 and its closure was marked by the CIA rendition flight N733MA into Palanga airport, which arrived from Porto, Portugal and, having disguised its destination in its flight plan by indicating Porto, on the same day took off for Cairo, Egypt.",
"(b) Whether the applicant ’ s allegations concerning his rendition to Lithuania, secret detention at the CIA Detention Site Violet in Lithuania and transfer from Lithuania to another CIA detention facility elsewhere were proved before the Court",
"533. It is alleged that the applicant was transferred to Lithuania from Rabat, Morocco either on 17 February 2005 on board N724CL or on 18 February 2006 on board N787WH and that he had been secretly detained at Detention Site Violet in Lithuania until 25 March 2005, when he had been transferred out of Lithuania on board N733MA (see paragraphs 11 2 ‑ 117 above).",
"(i) Preliminary considerations",
"534. The Court is mindful of the fact that, as regards the applicant ’ s actual presence in Lithuania, there is no direct evidence that it was the applicant who was transported on 17 or 18 February 2005, the two possible dates indicated by the experts (see paragraphs 130 -13 5 above) from Rabat to Lithuania or that he was subsequently transferred on 25 March 2006 from Lithuania to another CIA secret detention facility on board the plane N733MA.",
"The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate detainees by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held.",
"No trace of the applicant can, or will, be found in any official flight or border police records in Lithuania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never listed among the persons on board in documents filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 410-411).",
"535. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Violet in Lithuania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 48 9 -5 32 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant ’ s rendition and detention in 2002-2006 (see paragraphs 10 2-156, 15 9, 16 7-200 and 26 4 -39 5 above).",
"(ii) Transfers and secret detention",
"536. As noted above, the facts of the present case form an integral part of a chain of events lasting from the applicant ’ s capture on 27 March 2002 to his transfer by the CIA into the custody of the US military authorities in the Guantánamo Bay Naval Base on 5 September 2006. Those events took place in multiple countries hosting the CIA secret detention facilities that operated under the HVD Programme during that period. They involve a continuing sequence of the applicant ’ s renditions from one country to another, with the periods of his detention at each country ’ s “black site” being marked by the movements of the CIA ’ s rendition aircraft corresponding to locations within the network of secret prisons (see paragraphs 48 5 -48 8 above).",
"537. The Court further notes that the facts concerning the applicant ’ s secret detention and continuous renditions from the time of his capture in Faisalabad, Pakistan, on 27 March 2002 to his rendition from Rabat, Morocco, in February 2005, including the names of the countries in which he was detained, the exact dates on which he was transferred by the CIA to and out of each country and the identities of all the rendition planes on which he was transferred have already been established conclusively and to the standard of proof beyond reasonable doubt in Husayn (Abu Zubaydah) v. Poland and in the present case (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 404 and 419; and paragraphs 48 9 -5 32 above).",
"538. In particular, it has been established beyond reasonable doubt that until an unspecified date in February 2005 the applicant was held in secret detention in Morocco, at a facility used by the CIA and that on that date he was transferred by the CIA from Morocco to another detention facility elsewhere (see paragraph 49 7 above).",
"It has also been established to the same standard of proof, beyond reasonable doubt, that:",
"(a) The CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report became operational in Lithuania either on 17 February 2005, the date of the CIA rendition flight N724CL from Rabat via Amman, which landed at Vilnius airport or on 18 February 2005, the date of the CIA rendition flight N787WH from Rabat via Bucharest, which landed at Palanga airport.",
"(b) The Detention Site Violet operated in Lithuania until 25 March 2006, the date of the CIA rendition flight N733MA from Palanga airport to Cairo (see paragraph 5 32 above).",
"539. It accordingly remains for the Court to determine whether it has been adequately demonstrated to the required standard of proof that the applicant was transferred from Morocco to Lithuania on either of the February 2005 CIA flights and whether he was secretly detained in Lithuania over the subsequent period, until 25 March 200 6.",
"540. The Court observes that the main argument put forward by the Government is that there is no credible evidence confirming the applicant ’ s presence in Lithuania during that period and no link between the impugned flights and the applicant. In the Government ’ s submission, even if the flights had been linked with the CIA and landed in Lithuania, it could not constitute a proof of his detention in the country (see paragraphs 42 6 and 44 3 above).",
"It has already been reiterated above that, given the veil of secrecy surrounding the CIA rendition operations, it cannot be expected that any traces of the applicant are to be found in any official flight or border control records in Lithuania or elsewhere. As in other cases concerning the CIA HVD Programme the fate of the applicant can be reconstructed only by an analysis of strings of data from various sources available in the public domain and expert evidence (see paragraph 4 87 above). The fact that the applicant ’ s name does not appear in the official record with reference to his alleged secret detention in Lithuania is not therefore decisive for the Court ’ s assessment.",
"541. In that regard, the Court notes that the 2014 US Senate Committee Report contains a number of often extensive references to the applicant, in particular in relation to the EITs inflicted on him during the series of interrogations, including the use of waterboarding, in the early stages of his secret detention at Detention Site Green located in Thailand and “debriefing” that he underwent at Detention Site Blue located in Poland (see paragraphs 9 2-96 above). Yet, as also confirmed by the experts, the report does not mention the applicant explicitly by name in connection with Detention Site Violet (see paragraphs 13 5, 137 and 1 41 above).",
"542. Nonetheless, the experts, following a comprehensive analysis of the entirety of the available documentary evidence concerning the CIA ’ s extraordinary rendition operations at the material time, were able to conclude that he had been detained at that site on the basis of a number of other elements consistently demonstrating that there is no – and there could not be any – alternative account of the applicant ’ s fate following his February 2005 rendition from Morocco.",
"The Court would reiterate that the experts started by determining, beyond reasonable doubt, that Morocco was the only place in which the applicant could have been detained in February 2005 and that, according to the rendition aircraft schedules at that time he could only have been transferred from there either to Detention Site Black in Romania or to Detention Site Violet in Lithuania. On the basis of evidence indicating his absence from Detention Site Black in the relevant period, the one and only remaining destination of the applicant ’ s transfer from Rabat was Detention Site Violet. They further went on to infer information relevant for the applicant from unredacted passages of the report concerning other HVDs in CIA custody, Khalid Sheikh Mohammed and Mustafa al-Hawsawi, simultaneously being detained in the country hosting Detention Site Violet. The experts correlated this information with the data relating to the CIA detainee transfers in the period of the operation of the Lithuanian site, including the transfer from Detention Site Black to Detention Site Violet on 6 October 2005 and the transfer from Detention Site Violet, via Cairo and an aircraft switching operation, to Detention Site Brown (see paragraphs 13 2, 13 4 -13 5, 13 7 and 14 1 ‑ 14 3 above).",
"543. The Court would refer, in particular, to the following statements made by the experts.",
"Mr J.G.S. stated that “through an intimate familiarity with the chronology of [the applicant ’ s] detention” he had reached the conclusion that “there [was] only one place he could have been in the early part of 2005 and that that place was indeed Morocco”. He knew that “the transfers out of Morocco in 2005 went to other active ‘ black sites ’ that that one of these was ‘ Detention Site Black ’ in Romania, but that there was also another one in a separate country ... and ... this other country was Lithuania”. He added that “because [the applicant] did not arrive in Romania, ‘ Detention Site Black ’ ” – which he knew based on his “years ’ long investigations into the operations of that site ... the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights ... in February 2005” (see paragraph 13 7 above).",
"Mr Black testified that, based on the overall effect of the evidence, he was satisfied “that beyond reasonable doubt Abu Zubaydah was held in Lithuania starting from February 2005”. He said that while prima facie it was possible that the applicant, being in Morocco in February 2005, had been moved either to Romania or to Lithuania, there was evidence indicating, first, that he was not in Romania in or prior to the Summer 2005 and, second, that he was in Lithuania in March 2005 (see paragraphs 14 1 ‑ 14 4 above).",
"544. The experts attributed a different threshold of proof to their conclusions.",
"Mr J.G.S. stated that on the “balance of probabilities”, he believed it was established that the applicant had been secretly detained at Detention Site Violet (see paragraph 13 7 ). He was nevertheless satisfied as to “the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention [facility] [had been] cleared, thereafter on the territory of Lithuania in Detention Site coded as ‘ Violet ’ and thereafter on the territory of Afghanistan in the Detention Site coded as ‘ Brown ’ ” (see paragraph 13 9 above). Also, he said that there was a “categorical certainty” that the applicant had been brought to Lithuania on one of the February 2005 flights from Morocco to Lithuania – N724CL or N787WH – either on 17 or on 18 February 2005 and that “beyond reasonable doubt he [had been] taken to Afghanistan when he [had] left Lithuania” (see paragraphs 13 4, 13 7 and 13 9 above).",
"Mr Black categorically stated that the applicant, beyond reasonable doubt, had been held in Lithuania from February 2005 onwards and that he believed that the applicant had been “flown into Lithuania on N787WH on 18 February 2005 and flown out of Lithuania on N733MA and N70EH on 25 March 2006” (see paragraphs 14 2 -14 3 above).",
"545. The Court does not consider that this difference in terminology used by the experts has a direct and dispositive bearing on its own assessment of the evidence. It reiterates that, while in assessing evidence it applies “the standard of proof beyond reasonable doubt”, that concept is independent from the approach of the national legal systems which use that standard. The Court is not called upon to rule on criminal guilt or civil liability based on “beyond reasonable doubt” or “balance of probabilities” standards as applied by the domestic courts but on the responsibility of the respondent State under the Convention (see paragraph 4 81 above, with references to the Court ’ s case-law).",
"546. Based on its free evaluation of all the material in its possession, the Court considers that there is prima facie evidence corroborating the applicant ’ s allegation as to his secret detention in Lithuania, at Detention Site Violet, from 17 or 18 February 2005 to 25 March 2006. Consequently, the burden of proof should shift to the respondent Government.",
"547. However, the Government, apart from their above contention that there is no credible evidence confirming the applicant ’ s detention in Lithuania, in particular in any border control records, and their general denial that any CIA secret detention facility had operated in the country, have not adduced any counter-evidence capable of refuting the experts ’ conclusions.",
"Having regard to the very nature of the CIA secret detention scheme, the Government ’ s argument that there is no indication of the applicant ’ s physical presence in Lithuania – which they sought to support by the fact that his name had not been found in the records of passengers on the flights in February 200 5-March 2006 (see paragraphs 426 -42 8 above) – cannot be upheld. In the Court ’ s view, it would be unacceptable if the Government, having failed to comply with their obligation to register duly and in accordance with the domestic law all persons arriving on or departing from Lithuanian territory on the CIA planes and having relinquished any border control in respect of the rendition aircraft (see paragraphs 50 8 above), could take advantage of those omissions in the fact-finding procedure before the Court. When allowing the CIA to operate a detention site on Lithuanian soil the Government were, by pure virtue of Article 5 of the Convention, required to secure the information necessary to identify detainees brought to the country (see paragraphs 6 52-654 below, with references to the Court ’ s case-law). The Court cannot accept that the Government ’ s failure to do so should have adverse consequences for the applicant in its assessment of whether it has been adequately demonstrated by the Government, against the strong prima facie case made by the applicant, that his detention in Lithuania did not take place.",
"548. In view of the foregoing, the Court considers the applicant ’ s allegations sufficiently convincing. For the same reasons as stated above in regard to the date marking the opening of Detention Site Violet (see paragraph 51 4 above), the Court does not find it indispensable to rule on which of the two dates indicated by the applicant – 17 or 18 February 2005 – and on which of the two planes – N724CL or N787WH – he was brought to Lithuania.",
"Consequently, on the basis of strong, clear and concordant inferences as related above, the Court finds it proven to the required standard of proof that:",
"(a) on 17 or 18 February 2005 the applicant was transferred by the CIA to from Rabat, Morocco to Lithuania on board either the rendition plane N724CL or the rendition plane N787WH;",
"(b) from 17 or 18 February 2005 to 25 March 2006 the applicant was detained in the CIA detention facility in Lithuania codenamed “Detention Site Violet” according to the 2014 US Senate Committee Report; and",
"(c) on 25 March 2006 on board the rendition plane N733MA and via a subsequent aircraft-switching operation the applicant was transferred by the CIA out of Lithuania to another CIA detention facility, identified by the experts as being codenamed “Detention Site Brown” according to the 2014 US Senate Committee Report.",
"(iii) The applicant ’ s treatment in CIA custody in Lithuania",
"549. The applicant stated that, as in Husayn (Abu Zubaydah) v. Poland on account of the secrecy of the HVD Programme and restrictions on his communications with the Court, he could not present specific evidence of what had happened to him in Lithuania. However, as the Court found in the above case, at an absolute minimum detainees in CIA custody, whether in Lithuania or elsewhere, would have been subjected to the applicable standard conditions of detention at the relevant time, including solitary confinement, shackling, exposure to bright light, low and loud noise on a constant basis and the standard conditions of transfer, stripping, shaving, hooding, diapering and strapping down into painful crammed positions.",
"The Government have not addressed this issue.",
"550. The Court observes that, in contrast to treatment inflicted on the applicant during an early period of his secret detention, which is often documented in detail in various material (see paragraphs 92 -97 above), there is no evidence demonstrating any instances of similar acts at Detention Site Violet. According to the 2014 US Senate Committee Report, the applicant from his capture to his transfer to US military custody on 5 September 2006 “provided information”, which resulted “in 766 disseminated intelligence reports”. The fact that nearly 600 such reports were produced between September 2002 and September 2006 indicates that he was continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraph 15 6 above). However, in the light of the material in the Court ’ s possession, it does not appear that in Lithuania the applicant was subjected to the EITs in connection with interrogations (see paragraphs 4 8 -5 5 above).",
"As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report states in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006. However, the applicant ’ s name is not mentioned in that context (see paragraph 8 6 above).",
"551. According to the experts, it was not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on the applicant in Lithuania, as in 2005 ‑ 2006 there was less information about the treatment of prisoners in the HVD Programme than there had been in the previous years. However, the CIA documents and the 2014 US Senate Committee Report described the routine conditions of detention at “black sites”, which included such practices as sensory deprivation, sleep deprivation, denial or religious rights and incommunicado detention. Those conditions alone passed the threshold of treatment prohibited by Article 3 of the Convention (see paragraphs 154 ‑ 15 5 above).",
"552. As regards the Court ’ s establishment of the facts of the case, detailed rules governing conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 17 or 18 February 2005 to 25 March 2006. The Court therefore finds it established beyond reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 54-56 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510).",
"While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Violet for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court would point out that that regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 55-56 above).",
"5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Lithuania ’ s knowledge of and complicity in the CIA HVD Programme",
"(a) Relations of cooperation between the Lithuanian authorities and the CIA, including an agreement to host a CIA detention facility, acceptance of a financial reward for supporting the HVD Programme and assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2)",
"(i) Agreement to host a CIA detention facility and acceptance of a financial reward for supporting the HVD Programme",
"553. The Government firmly denied that the State authorities had received any CIA request that would even vaguely imply the running of a secret detention facility on Lithuanian territory. The prospects of receiving from the US authorities a request for assistance in the “war on terror” had been considered by the SSD on a purely theoretical basis. Moreover, in the criminal investigation all the Heads of State in office at the material time had consistently testified that they had not known about any detainees transfers and had not given their consent to the transportation of any persons held by the CIA (see paragraph 4 45 above).",
"554. However, the above contention does not seem to be supported by the CNSD Findings, which established that the SSD had received a request from the CIA “to equip facilities in Lithuania suitable for holding detainees”. In that connection, the CNSD referred to the testimony of the former Head of State, Mr Rolandas Paksas who had confirmed that Lithuania had been asked for permission to bring into the country persons suspected of terrorism; however, the information that he had received had not mentioned a detention centre or prison. The former Director General of the SSD, Mr Mečys Laurinkus testified that in mid-2003 he had informed Mr Paksas about a possibility of receiving a “request to participate in the programme concerning the transportation of detainees” after Lithuania ’ s accession to NATO (see paragraph 17 4 above). In that context, the Court would refer to the 2014 US Senate Report, which states, in relation to Detention Site Violet, that at the same time, that is “by mid-2003”, the CIA “had concluded that its completed but still unused holding cell in Country ... [had been] insufficient” and had “sought to build a new, expanded detention facility in the country” (see paragraph 14 7 above). The Court would also note that Lithuania ’ s accession to NATO took place on 29 March 2004 (see paragraph 364 above).",
"The CNSD further established that, “when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the ... heads of the SSD [had] not inform[ed] any of the country ’ s officials of the purposes and content of the said projects”. On the basis of the material in its possession, it related that although Mr Laurinkus had received a negative answer from Mr Paksas in respect of the “bringing into the Republic of Lithuania of persons interrogated by the USA”, he had not asked either Mr Paksas or acting Head of State, Mr Artūras Paulauskas, for “political approval of activities under Project No. 2”. Mr Laurinkus had “had knowledge of launching the activities under Project No. 2” in March ‑ April 2004 – which, the Court would note, was around the same time as Lithuania ’ s accession to NATO. Several SSD officers, including the Director General, Mr Arvydas Pocius, and acting Director General, Mr Dainius Dabašinskas had “had knowledge of Project No. 2 at the time of launching” (see paragraph 17 4 above).",
"Mr Valdas Adamkus, the former Head of State stated that “no information [had been] provided to [ him ] about running Project No. 2 in 2004-2006”. However, according to Mr Pocius, Mr Adamkus had been “adequately informed” of Project No. 2 (see paragraphs 17 4, 17 7-178 and 367 above).",
"In the Seimas public debate on the CNSD Findings it was again confirmed that the SSD had received a request from the CIA “to install premises ... suitable for keeping detainees” (see paragraphs 17 7 -17 8 above).",
"555. Witness evidence obtained in the criminal investigation also confirms that fact. Witness A, an important political post-holder at the relevant time, testified that Mr Laurinkus had addressed Mr Paksas in connection with a “temporary possibility to hold persons suspected of terrorism” and received a negative answer (see paragraph 30 7 above). Witness B2, an another important political post-holder, confirmed that he had been addressed “as regards the transportation and holding [of] people in Lithuania” and that he had not approved the idea (see paragraph 31 4 above).",
"556. Moreover, referring to the availability of information of the establishment of the CIA clandestine detention sites, the 2014 US Senate Committee Report clearly confirms that the “political leaders of host countries were generally informed of their existence” (see paragraph 7 9 above).",
"The report further confirms that an approval for the CIA detention facility corresponding to Project No. 2 was received from the authorities. Although the relevant section specifying a person or authority is heavily redacted, it clearly states that “the plan to construct the expanded facility was approved by the [redacted] of the Country” – which, however, required “complex mechanisms” in order to provide an unspecified amount of USD million to the country ’ s authorities. The money was offered to “show appreciation” for the support for the CIA programme. It may be inferred from the report that certain national authorities “probably [had] an incomplete notion” as to the CIA facility ’ s “actual function”. Also, the report refers to a certain official who, when he became aware of the facility, was described as “shocked” but “nonetheless approved” it (see paragraph 14 7 above).",
"557. As regards the money paid by the CIA to the authorities, the Court would note that the fact that such financial rewards were, as a matter of general policy and practice, offered to the authorities of countries hosting CIA “black sites” is confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance” and “to ‘ think big ’ in terms of that assistance” (see paragraph 8 9 above).",
"(ii) Assistance in the acquisition and adaptation of the premises for the CIA ’ s activities (Project No. 1 and Project No. 2)",
"558. It is undisputed and has been confirmed by the CNSD Findings and in the criminal investigation that Project No. 1 and Project No. 2 were implemented in cooperation with the CIA. Nor has it been contested that in the framework of that cooperation the SSD adapted the premises of Project No. 1 according to the CIA ’ s requests, assisted the CIA in acquiring the premises of Project No. 2 and adapting and reconstructing the premises for the CIA ’ s needs (see paragraphs 17 4 and 199 above). The cooperation dated back to 2002 and started from the adaptation of Project No. 1. Later, in 2003 several officers of the SSD were assigned to assist the CIA in finding a suitable location for Project No. 2 and purchasing the land and buildings in Antaviliai. Both projects were fully financed by the CIA. Starting from the beginning of 2005 when the Project No. 2, according to Witness S, was “established”, the SSD officers ensured the security and surveillance of the premises (see paragraphs 33 3 -33 8 and 3 41 above).",
"(b) Assistance in disguising the CIA rendition aircraft routes through Lithuania by means of the so-called “dummy” flight planning",
"559. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities had cooperated with the CIA in disguising the rendition aircraft ’ s actual routes and validated incomplete or false flight plans in order to cover up the CIA ’ s activities in the country was considered relevant for the Court ’ s assessment of the State authorities ’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). The Court will follow that approach in analysing the facts of the present case.",
"560. It has already been established that in respect of three rendition flights – N787WH on 18 February 2005, N787WH on 6 October 2005 and N733MA on 25 March 2006 the CIA used the methodology of “dummy” flight planning – an intentional disguise of flight plans for rendition aircraft applied by the air companies contracted by the CIA (see paragraph 507 above).",
"As the Court found in the judgments referred to above, the “dummy” flight planning, a deliberate effort to cover up the CIA flights into the country, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country ’ s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (ibid.).",
"561. Consequently, the fact that the Lithuanian aviation authorities participated in the process demonstrated that Lithuania knowingly assisted in the CIA scheme disguising the rendition planes.",
"(c) Special procedure for CIA flights",
"562. The Government acknowledged that the CIA planes on two occasions had not been subject to the customs and SBGS control, in connection with the delivery of a “special cargo” for the Lithuanian services (see paragraph 4 29 above). To this end, the SSD addressed classified letters to the relevant authorities. The purpose was to obtain unrestricted access to the aircraft for the SSD and the CIA partners. As described by the witnesses questioned in the criminal investigation, the CIA teams were escorted to the area in the airport and drove in their vehicles to the aircraft, whereas the SSD officers escorting them remained in their vehicles at some distance. As noted above, that practice resembled the special procedure followed by the Polish authorities in respect of the CIA rendition planes landings in Szymany in December 2002-September 2003 (see paragraph 50 8 above, with references to Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ).",
"(d) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site”",
"563. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities ’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439).",
"It follows from the Court ’ s findings in the above cases and the CIA material describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 47 - 48 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and a hood and that upon arrival at his destination was moved to the “black site” under the same conditions.",
"564. The Court finds it inconceivable that the transportation of prisoners over land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least minimal assistance by the host country ’ s authorities, to mention only securing the area near and around the landing planes and providing conditions for a secret and safe transfer of passengers. Inevitably, the Lithuanian personnel responsible for security arrangements, in particular the reception of the flights and on-land transit, must have witnessed at least some elements of the detainees ’ transfer to Detention Site Violet, for instance the loading or unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 322 and 439).",
"Consequently, the Court concludes that the Lithuanian authorities which received the CIA personnel in the airport could not have been unaware that the persons brought by them to Lithuania were the CIA prisoners.",
"(e) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005",
"565. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror”, which was available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234).",
"566. Before analysing that material, the Court would refer to President Bush ’ s memorandum of 7 February 2002, stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions, did not apply to them (see paragraph 2 26 -2 31 above). The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, however, included a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, and also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 29-30 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist suspects.",
"567. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogations and arbitrary and incommunicado detention. From January 2002 onwards the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ ’ s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 234 -2 50 and 465 -4 71 above).",
"Moreover, in the 2003 PACE Resolution of 26 June 2003 – of which Lithuania, one of the Council of Europe ’ s member States, must have been aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities (see paragraph 238 above).",
"568. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international media from early 2002 (see paragraphs 2 51 -25 5 above). Following the Washington Post report on 2 November 2005, which disclosed the complicity of the “Eastern European countries” in the CIA HVD Programme and prompted the closure of “black sites” in Europe, as well as the ABC News disclosure and the 2005 HRW Statement naming Poland and Romania as CIA accomplices, there could be no doubt as what kind of activities had been carried out by the CIA in the countries concerned (see paragraphs 248-249 and 256-257 above). At that time, Detention Site Violet in Lithuania was still active.",
"The issue of the CIA renditions and abusive detention and interrogation practices used against the captured terrorist suspects in their custody was also present, reported and discussed in the Lithuanian media. In particular, between June 2004 and November 2005 the Lithuanian press published a number of articles concerning secret renditions, ill-treatment of prisoners and the abusive conditions under which detainees were held and interrogated (see paragraph 263 above).",
"(f) Informal transatlantic meeting",
"569. As in Al Nashiri v. Poland (cited above, § 434) and Husayn (Abu Zubaydah) v. Poland (cited above, § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State ’ s knowledge of the CIA rendition and secret detention operations in 2003-2005.",
"570. In his testimony in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including disclosures by the Washington Post and ABC News of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly had CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 300 and 436). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice ’ s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects, which had been recorded in the debriefing that there had been an attempt on the USA ’ s part to share the “weight of accusations” (ibid., see alsp paragraph 359 above) ).",
"As pointed out by the applicant (see paragraph 460 above), Lithuania, an EU and NATO member must have participated in that meeting and been aware of the issues discussed. At that time, the CIA detention site in Lithuania was still active.",
"6. The Court ’ s conclusion as to the Lithuanian authorities ’ knowledge of and complicity in the CIA HVD Programme",
"571. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody has evolved over time, from 2002 to the present day. A considerable part of the evidence before the Court emerged several years after the events complained of (see paragraphs 22-24, 34-56, 2 87-294 and 29 6-303 above; see also Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442).",
"Lithuania ’ s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that its authorities knew or ought to have known at or closely around the relevant time, that is to say, between 17 or 18 February 2005 and 25 March 2006. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant ’ s secret detention in Lithuania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 and Husayn (Abu Zubaydah) v. Poland, cited above, § 442).",
"572. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above. Having regard to all these elements taken as a whole, the Court finds that the Lithuania authorities knew that the CIA operated, on Lithuanian territory, a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities.",
"This finding is based on the material referred to extensively above, in particular the evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, the evidence from experts.",
"The passages of the report relating the approval for the plan to construct the expanded detention facility given by the Detention Site Violet host country leave no doubt as to the Lithuanian high-office holders ’ prior acceptance of hosting a CIA detention site on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, amounting to some redacted sum of USD million (see paragraphs 554-557 above).",
"573. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various sources, including confidential ones, unanimously and categorically stated that Lithuania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country.",
"Senator Marty stated that since the operation had been governed by the “need-to-know” secrecy principle, only those few people who had absolutely needed to know had known about it. As in other countries, there had been persons at the highest level of the Lithuanian State who had had certain knowledge of what had been going on but even those who had come to know had not necessarily known all the details. Yet somebody had allowed the CIA to move about freely and have access to premises where they had been allowed to do what they had wanted without any control whatsoever. He described the national authorities ’ conduct as complicity which had not been active; the national authorities had not participated in the CIA interrogations (see paragraph 3 82 above).",
"Mr J.G.S. testified that the authorities of Lithuania had known about the existence of the detention facility and that through the highest levels of their government had approved and authorised its presence on their territory. In his view, they certainly should have known the purpose which the facility had served because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries and had been widely reported by the time the site in Lithuania had become active. There had been different degrees of knowledge in different sectors of Lithuania ’ s authorities. At the operational level the details had been known to a very small number of trusted counterparts, primarily within the secret services. He added that he was not aware of any single instance of a CIA detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities (see paragraph 387 above).",
"Mr Black stated that it had been clear from the 2014 US Senate Committee Report that the Lithuanian officials had been aware of the CIA programme operating on their territory. He added that, as he could say from his accumulated knowledge of the CIA HVD Programme and close reading of the 2014 US Senate Committee Report, some host country officials had always known that there had been prisoners held in the facilities. That did not imply that every single host country official had known but in Lithuania ’ s case it was evident that at least some had known that the prisoners had been held on their territory and they had known that they had been receiving money to facilitate this (see paragraphs 3 92-393 above).",
"574. The Court, as in previous similar cases, does not consider that the Lithuanian authorities necessarily knew the details of what exactly went on inside the CIA secret facility or witnessed treatment or interrogations to which the CIA prisoners were subjected in Lithuania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations were exclusively the CIA ’ s responsibility (see paragraph 272 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443).",
"575. However, in the Court ’ s view, even if the Lithuanian authorities did not have, or could not have had, complete knowledge of the HVD Programme, the facts available to them through their contacts and cooperation with their CIA partners, taken together with extensive and widely available information on torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist-suspects in US custody which in 2002-2005 circulated in the public domain, including the Lithuanian press (see paragraphs 56 5 -56 8 above), enabled them to conjure up a reasonably accurate image of the CIA ’ s activities and, more particularly, the treatment to which the CIA was likely to have subjected their prisoners in Lithuania.",
"In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. All the more so did the authorities, in 2005-2006, have good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on their territory.",
"It further observes that it is – as was the case in respect of Poland – inconceivable that the rendition aircraft could have crossed the country ’ s airspace, landed atand departed from its airports, or that the CIA could have occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on their territory. Nor can it stand to reason that activities of such character and scale, possibly vital for the country ’ s military and political interests, could have been undertaken on Lithuanian territory without the Lithuanian authorities ’ knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State (see Al Nashiri v. Poland, cited above, §§ 441-442 and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444).",
"576. The Court accordingly finds it established beyond reasonable doubt that:",
"(a) the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities on its territory at the material time;",
"(b) the Lithuanian authorities, by approving the hosting of the CIA Detention Site Violet, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; and",
"(c) given their knowledge of the nature and purposes of the CIA ’ s activities on their territory and their involvement in the execution of that programme, the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention.",
"III. LITHUANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION AND THE APPLICANT ’ S VICTIM STATUS",
"A. The parties ’ submissions",
"577. The parties ’ submissions regarding the Government ’ s objections that Lithuania lacked jurisdiction within the meaning of Article 1 of the Convention and, consequently, could not be responsible under the Convention and the applicant ’ s victim status are set out above (see paragraphs 39 8 -40 9 above).",
"B. The Court ’ s assessment",
"578. The Court notes that the applicant ’ s complaints relate both to the events that occurred on Lithuanian territory and to the consequences of his transfer from Lithuania to other places where he was secretly detained (see paragraphs 110-160 above).",
"In that regard, the Court will reiterate the relevant applicable principles.",
"1. As regards jurisdiction",
"579. It follows from Article 1 of the Convention that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”.",
"The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.",
"In that regard, the Court would refer to its case-law to the effect that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 20, 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; and Ilaşcu and Others, cited above, §§ 311-312).",
"From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312 with further references to the Court ’ s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 149-150, ECHR 2015).",
"580. It must also be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State ’ s international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is attributable (see, Assanidze, cited above, § 146, with further references to the Court ’ s case-law).",
"2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory",
"581. In accordance with the Court ’ s settled case-law, the respondent State must be regarded as responsible under the Convention for internationally wrongful acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited above, § 449; and Nasr and Ghali, cited above, § 241).",
"3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory",
"582. The Court has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering v. the United Kingdom, 7 July 1989, §§ 90 ‑ 91 and 113; Series A no. 161; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, § 168, 10 April 2012; El ‑ Masri, cited above, §§ 212-214, with further references; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 242).",
"Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was being subjected to “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, § § 218-221; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 243).",
"583. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 233 and 285, ECHR 2012 (extracts); and El-Masri, cited above, § 239).",
"Again, that risk is inherent where an applicant has been subjected to “extraordinary rendition”, which entails detention “outside the normal legal system” and which, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see El-Masri, ibid.; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above, § 244).",
"584. While the establishment of the host State ’ s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise.",
"In so far as any responsibility under the Convention is or may be incurred, it is responsibility incurred by the host Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other alleged violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90, ECHR 2005 ‑ I, with further references; Othman (Abu Qatada), cited above, § 258; and El ‑ Masri, cited above, §§ 212 and 239).",
"585. In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances.",
"The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court ’ s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 125, ECHR 2010; and El ‑ Masri, cited above, §§ 213-214, with further references; Al Nashiri v. Poland, cited above, § 458; Husayn (Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited above, § 246).",
"4. Conclusion as to the Lithuanian Government ’ s preliminary objections that Lithuania lacks jurisdiction and responsibility under the Convention and as to the applicant ’ s victim status",
"586. Following an extensive and detailed analysis of evidence in the present case, the Court has established conclusively and to the required standard of proof that the Lithuanian authorities hosted CIA Detention Site Violet from 17 or 18 February 2005 to 25 March 2006; that the applicant was secretly detained there during that period; that the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities in their country and cooperated in the execution of the HVD Programme; and that the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 576 above).",
"The above findings suffice for the Court to conclude that the matters complained of in the present case fall within the “jurisdiction” of Lithuania within the meaning of Article 1 of the Convention and are capable of engaging the respondent State ’ s responsibility under the Convention, and that the applicant can be considered a “victim” for the purposes of Article 34 of the Convention.",
"Accordingly, the Government ’ s preliminary objections on these grounds must be dismissed.",
"587. The Court will accordingly examine the applicant ’ s complaints and the extent to which the events complained of are attributable to the Lithuanian State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law (see also Al Nashiri v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited above, § 456).",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"588. The applicant ’ s complaints under Article 3 of the Convention concerned both substantive and procedural aspects of this provision.",
"(1) As regards his alleged ill-treatment and detention in Lithuania, he complained that the Lithuanian authorities had knowingly and intentionally enabled the CIA to hold him in secret detention at the CIA site for over one year. Lithuania had known about the CIA ’ s rendition programme on its territory and of the real and immediate risk of torture to which high-value detainees under this programme had been subjected. Lithuania had actively agreed to establish a secret detention site and to facilitate the CIA unhindered use of that site.",
"(2) Furthermore, the applicant alleged that Lithuania, by enabling the CIA to transfer him from its territory to its other secret “black sites”, had exposed him to further torture and ill-treatment. The Lithuanian authorities had known, or should have known, of the real risk that he would continue to be held in the same detention regime as that to which he had hitherto been subjected.",
"(3) He also complained under Article 3 taken separately and in conjunction with Article 13 of the Convention that the Lithuanian authorities had been in breach of the procedural obligations under Article 3 and that he had been denied the right to a remedy under Article 13, since they had failed to conduct an effective investigation into his allegations of torture, ill ‑ treatment and secret detention in a CIA-run detention facility on Lithuanian territory and of being unlawfully transferred to places where he had faced further torture and ill-treatment.",
"589. Article 3 of the Convention states:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"590. The Court will first examine the applicant ’ s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough criminal investigation into his allegations of ill-treatment when in CIA custody on Lithuanian territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah) v. Poland, cited above, § 459).",
"A. Procedural aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"591. In their written and oral pleadings, the Government submitted that the pre-trial investigation in 2010-2011 had been prompt, independent, thorough and transparent as required by Article 3. They also underlined that the proceedings had been re-opened on 22 January 2015 immediately after the publication of the 2014 US Senate Committee Report disclosing new evidence concerning the CIA rendition operations.",
"592. As regards the proceedings conducted in 2010-2011, the Government maintained that, despite the fact that the prosecution had not been obliged to follow the CNSD ’ s recommendation to initiate a pre-trial investigation, that investigation had been opened and carried out promptly after the adoption of the Seimas Resolution. There could be no doubt as to the independence of the investigation since, as set forth in the Constitution, a prosecutor “shall be independent and obey only the law”.",
"The investigation had been thorough; it had not been limited to materials available to the Seimas and replies to requests for information from the relevant State institutions. In the course of the proceedings numerous additional witnesses had been questioned, including all persons who had been involved in, or had had knowledge of, the circumstances being investigated, such as airport workers, the SSD officials, Customs and SBGS officials, or other former and current State officials. However, since the issues concerning the State or official secrets and classified information had been involved in the investigation, it was not possible for the Government to disclose the identities of all witnesses.",
"In that regard, the Government also explained that the succinct nature of the Prosecutor ’ s decision to discontinue the pre-trial investigation did not reflect the exact scope and content of the investigation because part of the materials in the file constituted a State secret. This particular reason precluded the Government from providing the Court with a more detailed description of all procedural steps taken by the prosecution in the course of the pre-trial investigation or more detailed explanations of the factual circumstances that had been disclosed. Yet part of the material had been declassified and had been submitted to the Court in order to assure the Court that all relevant information had been gathered by the prosecution, rebutting the hypothesis raised earlier in the course of the parliamentary inquiry.",
"593. As to the victim ’ s participation in the investigation, in the present case no ground had been established to grant the applicant victim status in the proceedings as not the slightest link had been established between the applicant and the circumstances under examination. The Government noted that under Article 28 of the Lithuanian Code of Criminal Procedure, a person could be recognised as a victim of a criminal offence by a decision of the prosecutor adopted on his own initiative.",
"As regards the letter of 20 September 2010 from Reprieve, requesting investigation into “new and credible allegations that our client Mr Husayn had been held in Lithuania sometime from 2004 to 2006”, the Government noted that Reprieve had provided only some publicly available information of a general nature, which had already been in the possession of the Seimas and the prosecutor. Moreover, Reprieve had not asked for victim status to be granted to the applicant under Article 28 of the Code of Criminal Procedure, nor had it ever presented the applicant ’ s authorisation. It had been alleged in Reprieve ’ s request that “recent information [had] come to us from a confidential and extremely reliable unclassified source, confirming that Mr Husayn [had been] held in a secret CIA prison in Lithuania”. The Prosecutor General ’ s Office had asked it to provide all information leading to the conclusion as to Mr Husayn ’ s transportation to/from Lithuania and his alleged presence from Spring 2004 to 2006 September and also to indicate the “confidential and extremely reliable source” referred to in the request. However, no further information had been provided and no source had been indicated.",
"594. Overall, the investigation had met the requirements under the procedural limb of Article 3 of the Convention. It had made a serious attempt to find out what happened and, relying on the entirety of information obtained in the course of the pre-trial investigation, had established beyond reasonable doubt that no persons, including the applicant, had been brought into Lithuania or detained there. The prosecution had acted actively and independently, gathering information of a much more detailed nature compared with that available to the CNSD, the mass media, NGOs and, to a certain extent, even international delegations which had carried out their respective research into the circumstances of the disputed events. Furthermore, “the State secret” concept had not precluded the prosecuting authorities from undertaking an adequate investigation, as in the course of the pre-trial investigation they had been given full access to all classified information and, thereby enabling them to find out the nature and purpose of the above-mentioned Projects Nos. 1 and 2, and to other information which had been withheld from other persons. The information at the prosecutor ’ s disposal had been much more extensive, and of a much more exact and reliable nature, than the publicly available information on which the applicant had relied. Also, in the Government ’ s view, public scrutiny had been ensured, since part of the material had been declassified in the context of the proceedings before the Court.",
"595. Lastly, as regards the proceedings reopened on 22 January 2015, the Government submitted that they had progressed without delay. However, the authorities had been confronted with numerous obstacles on the part of other countries to which they had addressed requests for legal assistance. They had sent six requests. Poland ’ s response had been received after ten months. As at June 2016, they had not received any replies to the requests that had been sent to Romania and Afghanistan a year or so earlier. Morocco had refused the request. The US authorities, addressed twice, replied that they could not provide the information requested.",
"(b) The applicant",
"596. The applicant maintained that Lithuania had failed to carry out an investigation that satisfied its obligations under Article 3 of the Convention.",
"In his submission, the authorities had failed to meet any of the Convention benchmarks of promptness, independence, thoroughness, effectiveness or transparency. As regards promptness, it was eleven years since the applicant had been detained on Lithuanian territory. It was eleven years since media reports had revealed secret CIA detention in Eastern European sites, and six years since reports had addressed Lithuanian responsibility specifically and identified the applicant. When specific reports had come out in relation to Lithuania in 2009, the Prosecutor had waited half a year to open his investigation – and then opened it only after the express prompting of the Parliamentary Committee.",
"Four years had then passed from the closure of that investigation until the purported re-opening that had been announced in January 2015. During this four year interim period, there had been consistent and pervasive calls for the investigation to be re-opened, including from the applicant ’ s representatives, from NGO ’ s such as AI, Human Rights Watch, Redress, the Human Rights Monitoring Institute, the Constitution Project, from the head of the Lithuanian Parliamentary Committee, from Senator Dick Marty, the European Parliament, the Human Rights Council ’ s Special Rapporteur on Terrorism, the UN Committee against Torture, and others.",
"The Prosecutor had been alerted to a growing body of evidence, not encompassed in the original, cursory investigation, but had failed to follow leads.",
"597. The lack of thoroughness and effectiveness of the investigation was apparent in various ways. It was apparent from the limited scope of the investigation. An investigation in a case of this type must look at crimes and reflect the nature and gravity of the violations at the heart of the case; in this case, torture, mistreatment of persons and forced disappearance, for example. However, the public statements and information provided to the Court had suggested a much narrower framing, limited previously to possible “abuse of office” offences, more recently perhaps to the crime of transfer. One of the implications of the focus on less grave crimes was the suggestion that had been advanced by the Prosecutor when closing the initial investigation, that the crimes in question might be subject to a statute of limitations; and in the applicant ’ s view this would also entail a violation of Convention obligations. A thorough investigation, he argued, should also embrace the full range of those potentially responsible, directly and indirectly. In this case there was nothing to suggest any intention or effort to investigate and hold to account the full range of Lithuanian and foreign US agents, at all levels, who had together engaged in this international criminal conspiracy. Most notably, the lack of thoroughness and effectiveness was seen in the failure of the Prosecutor ’ s Office to take basic investigative steps that it had been called upon to take for many years.",
"598. The information from the prosecution file suggested, for example, that there had not been an attempt to take testimony from key eye-witnesses, including local inhabitants of the area, from foreign officials, agents, contractors, psychologists, pilots crew or brokers, interrogators at the heart of this case, several of whom had now publicly confessed to their involvement in Abu Zubaydah ’ s rendition and torture, or from witnesses at the highest levels of authority within the Lithuanian Government. There had not been an investigation into key rendition flights including one of those entering Lithuania from Morocco on the relevant dates.",
"599. Finally and critically, in the applicant ’ s submission, the Convention ’ s requirements of transparency and the essential element of public scrutiny had been flouted in this case. The Prosecutor ’ s Office had refused to respond to or share information with the applicant, other victims, or with the public, or to cooperate adequately with international inquiries. The process had been shielded by an excessive and overreaching approach to State secrecy.",
"The 2010 investigation had been closed on the basis that there was no remaining doubt concerning detainees, though even the partially redacted summary version of the evidence from the Prosecutor ’ s file made it clear that the evidence supported the applicant ’ s case and certainly could not plausibly justify closure. While there had been public statements on the purported re-opening of the investigation, the State had notably provided no information in its written submissions about any progress in that investigation, despite being asked by the Court to do so explicitly and despite being permitted to present a summary investigative file to the Court on a confidential basis.",
"600. In sum, Lithuania had categorically failed to meet its Convention obligations.",
"2. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation”",
"601. AI/ICJ, relying on the Court ’ s case-law, submitted that a duty to investigate implied an obligation to act “with the required determination to identify and prosecute those responsible”. Criminal proceedings were a critical aspect of ensuring an effective remedy for gross violations of Convention rights. They were the primary means through which the victims ’ right to the truth could be given effect, including in respect of identifying the perpetrators. Although there was no right guaranteeing the prosecution or conviction of a particular person, prosecuting authorities had to, where the facts so warranted, take the necessary steps to bring those who had committed serious human rights violations to justice”.",
"602. As regards the State parties ’ involvement or complicity in systematic human rights violations such as those that had occurred in the CIA secret detention and rendition programme, failure to conduct timely an effective investigations or prosecutions in appropriate cases would violate the Convention rights, including rights under Articles 3 and 5 ECHR, and would seriously undermine public confidence in Contracting Parties ’ adherence to the rule of law throughout the Council of Europe.",
"603. Furthermore, the State ’ s duty to initiate and continue an investigation could not be limited by the fact that alleged victims found themselves in situations where it was impossible for them to produce evidence of violations of their Convention rights. This was the case not only regarding detention by public authorities, but also in cases of detention by third parties. Where an individual was held within the exclusive control of the authorities, and there was a prima facie indication that the State might have been involved in the violations alleged, the burden of proof in establishing the violations shifted on the State, since the events in issue might lie wholly, or in large part, within the exclusive knowledge of the authorities. These principles applied in cases of forced disappearances, including those within the extraordinary rendition programme.",
"604. In order to be effective, an investigation had to be initiated promptly once the matter had come to the attention of the authorities and must be conducted with reasonable expedition. As regards the latter requirement, the Court had, for instance, criticised situations where multiple adjournments of an investigation had occurred.",
"The obligation to ensure an effective investigation would not be met where significant delays were combined with a restricted scope of a criminal investigation – for example, one which focused only on offences which were subject to limitation periods under domestic law, when the allegations related to offences that were not time-barred under international law. Nor could any investigation lacking the necessary public scrutiny be regarded as compatible with Article 3 of the Convention.",
"605. Lastly, the interveners, referring to El-Masri (cited above) and the right to the truth, maintained that the right to an effective investigation, under, inter alia, Articles 3 and 5, taken together with Article 13, entailed a right to the truth concerning the violations of Convention rights perpetrated in the context of the “secret detentions and renditions system”. This was so, not only because of the scale and severity of the human rights violations concerned, but also in the light of the widespread impunity for these practices, and the suppression of information about them, which had persisted in multiple national jurisdictions. Where renditions or secret detentions had taken place with the co-operation of Contracting Parties to the Convention, or in violation of those States ’ positive obligations of prevention, the positive obligations of those States required that they take all reasonable measures open to them to disclose to victims, their families and society as a whole information about the human rights violations that those victims suffered within the renditions system.",
"3. The Court ’ s assessment",
"(a) Admissibility",
"606. The Court takes the view that the applicant ’ s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government ’ s objection based on non-compliance with the rule of exhaustion of domestic remedies and with the six-month rule should be joined to the merits of this complaint (see paragraph 4 22 above). Consequently, it cannot be considered that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible.",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"607. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State ’ s acquiescence or connivance, that provision, read in conjunction with the Contracting States ’ general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; El ‑ Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485; Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Cestaro v. Italy, no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016 ).",
"608. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.",
"The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183 ‑ 185; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167; Al Nashiri v. Poland, cited above, § 486; and Husayn (Abu Zubaydah) v. Poland, cited above, § 480).",
"609. Even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see Al Nashiri v. Poland, cited above, § 494-495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 488-489, both judgments with further references to the Court ’ s case-law ).",
"610. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened.",
"An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see El ‑ Masri, cited above, §§191-192; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489, with further references to the Court ’ s case ‑ law ).",
"(ii) Application of the above principles to the present case",
"611. The Court, having regard to the fact that the Prosecutor General ’ s Office opened the pre-trial investigation within a few days after the Seimas Resolution of 19 January 2010 endorsing the CNSD Findings and recommendations (see paragraphs 17 4 and 17 9 above), does not consider that the authorities failed to give a prompt response to the public allegations suggesting Lithuania ’ s possible complicity in the CIA extraordinary rendition programme. Nor can it be said that during the subsequent six months the authorities failed to display procedural activity. From 10 February to 14 June 2010 the prosecutor took evidence from fifty-five witnesses, including some high political post-holders, the SSD officers, the SBGS, and the airport authorities and employees. Over that period numerous requests for information were addressed to various bodies, including the relevant ministries, airports, the aviation authorities, the Customs Service and others. The prosecution also consulted classified material of the parliamentary inquiry and carried out on-site inspections of Project No. 1 and Project No. 2 (see paragraphs 1 81 - 190 above).",
"612. However, it does not appear that, after June 2010, any further actions were taken, apart from responding to correspondence from Reprieve, which had addressed the prosecutor in connection with the suspicion that the applicant had been secretly detained in a CIA detention facility in Lithuania.",
"The first letter, of 20 September 2010, in which Reprieve asked the prosecution to investigate the matter, gave a fairly extensive description of the applicant ’ s detention in other countries, before his alleged rendition to Lithuania. It indicated the putative period of his detention, which was situated between spring 2004 and September 2006 and matched the repeated movements of the CIA-linked aircraft through Lithuania ’ s airspace, which were the object both of the parliamentary inquiry and current investigation. The prosecution replied that these circumstances had already been covered by the pending investigation. No action was taken.",
"In the second letter, of 18 November 2010, Reprieve asked the prosecutor to attempt to interview the applicant under the bilateral agreement on mutual legal assistance in criminal matters between the USA and Lithuania and, in addition, made eight motions for taking evidence from various sources, including the US CIA officials and Lithuanian officials listed by name, eyewitnesses, forensic evidence, companies involved in flights and many others. It also asked for information about the progress of the investigation On 13 January 2011 the prosecutor refused the request since Reprieve “was not party to the proceedings [with] the right to examine the material of the pre-trial investigation”. None of the proposed actions were taken. The next day the prosecutor discontinued the investigation, finding that there had been no evidence demonstrating “illegal transportation of anyone”, by the CIA, including of the applicant, into or out of Lithuania (see paragraphs 1 91 -19 5 above).",
"613. The Court observes that the Government have stated that the prosecutor ’ s decision was based on the fact that Reprieve had not provided any new evidence apart from the information already in the public domain and available to the authorities. This, however, does not explain the lack of any attempt to consider evidential motions which do not appear to have been unreasonable or unrelated to the object of the investigation.",
"614. It is not the Court ’ s role to advise the domestic authorities about which evidence is to be admitted and which is to be refused, but their decisions in that respect are subject to the Court ’ s scrutiny for compliance with the requirements of an “effective and thorough investigation”. According to the Courts case-law, as stated above, the authorities must “always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions” (see paragraph 6 08 above, with references to the Court ’ s case-law).",
"615. In that regard, the Court cannot but note that the prosecutor had in his possession personal details, including passports numbers, of the five US citizens who arrived on the CIA plane N787WH at Palanga airport on 18 February 2005 (see paragraph 3 71 above). Also, despite the fact that the case involved allegations of a large-scale rendition scheme operated by the CIA and that it was clearly established in the investigation that the CIA ‑ linked aircraft “did arrive and did depart” from Lithuania at the material time (see paragraph 19 8 above), the prosecutor apparently made no effort to identify, and to obtain evidence from, US citizens who could have been involved in the “partnership cooperation” with the SSD by means of formal requests for legal assistance to the US authorities. In the light of the material before the Court such formal requests were only made in the proceedings that were re-opened in January 2015 (see paragraphs 209 ‑ 210 and 59 5 above).",
"616. The Court also takes note of concerns regarding the adequacy of the investigation expressed in the 2011 CPT Report. In particular, the CPT stated that, given that the investigation had related to a possible abuse of power, “the question [arose] whether [it] ... [was] sufficiently wide in scope to qualify as comprehensive”. When the CPT delegation raised the issue of the scope of the investigation with the Prosecutor General ’ s Office, they replied that “facts” were needed to launch a criminal investigation, not “assumptions” (see paragraph 35 3 above).",
"617. After the investigation was discontinued on 14 January 2011, in 2011-2013 the Lithuanian prosecutors received repeated requests from non ‑ governmental organisations and appeals from the European Parliament to resume the proceedings in order to consider newly emerging evidence (see paragraphs 20 1 -20 5 and 290 -295 above). No response was given. Until the publication of the 2014 US Senate Committee Report and receipt of the detailed 2015 Reprieve Briefing – to which, according to Mr Black, the prosecutor has not so far responded either – the authorities remained totally passive (see paragraphs 20 6 and 39 5 above). Moreover, on the basis of the Government ’ s summary description of the fresh investigation, ongoing since 22 January 2015, it does not appear that any meaningful progress in investigating Lithuania ’ s complicity in the CIA HVD Programme and identifying the persons responsible has so far been achieved (see paragraphs 20 6-211 above).",
"618. Nor does it seem that any information from the 2010-2011 investigation or the fresh proceedings regarding their conduct has been disclosed to the public. The Government have argued that the 2010-2011 investigation was transparent and subject to public scrutiny since part of the material was declassified in the context of the proceedings before the Court (see paragraph 59 2 above). However, the Court notes that this material had not been publicly accessible until the public hearing in the present case held on 29 June 2016, at which the Government withdrew their request to apply Rule 33 § 2 to all documents submitted by them, except to the extent necessary to ensure the protection of personal data (see paragraphs 11 and 13 above). It further notes that both Reprieve and Amnesty International were either denied any information about the progress and scope of the investigation or refused access – even restricted – to the investigation file, or had their requests to that effect left unanswered (see paragraphs 19 5 and 2 01 -20 5 above).",
"Furthermore, as stated in the 2011 CPT Report, the CPT ’ s delegation “did not receive the specific information it requested” about the investigation. In that context, the CPT also expressed doubts as to whether “all the information that could have been provided to [it] about the conduct of the investigation ha[d] been forthcoming” and whether the investigation was sufficiently thorough, “given the paucity of the information currently available” (see § 72 of the Report cited in paragraph 3 53 above).",
"619. The Court would emphasise that the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Lithuanian public has a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained in respect to the investigation (see Al Nashiri v. Poland, cited above, § 497 and Husayn (Abu Zubaydah) v. Poland, cited above, § 489).",
"620. The Court would further underline that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Violet on Lithuanian territory is conducive to maintaining confidence in the adherence of the Lithuanian State ’ s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what happened at the material time. A victim who has made a credible allegation of being subjected to ill-treatment in breach of Article 3 of the Convention has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 6 10 above; see also Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487 ).",
"621. Having regard to the above deficiencies of the impugned proceedings, the Court considers that Lithuania has failed to comply with the requirements of an “effective and thorough” investigation for the purposes of Article 3 of the Convention.",
"622. Accordingly, the Court dismisses the Government ’ s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule (see paragraphs 41 3 -41 7 above) and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect.",
"B. Substantive aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"623. The Government submitted that, having regard to Lithuania ’ s lack of jurisdiction as invoked above, they would refrain from making any observations on the merits of the applicant ’ s complaint under the substantive limb of Article 3 of the Convention.",
"(b) The applicant",
"624. The applicant submitted that Lithuania had known, or ought to have known about the CIA ’ s secret detention and extraordinary rendition programme, the secret CIA prison in Lithuania, and the torture and cruel, inhuman and degrading treatment to which the CIA had subjected high ‑ value detainees as part of this programme.",
"625. He therefore asked the Court to follow Husayn (Abu Zubaydah) v. Poland (cited above), and find a violation of Article 3 of the Convention. In his view, there was no doubt that the standard conditions of detention and transfer to which he had been subjected, the nature of the interrogation techniques having been used against him and the secrecy of his detention itself amounted to torture and cruel, inhuman and degrading treatment. This was confirmed by disclosures in the 2014 US Senate Committee Report, which had clearly shown that the extent of the extreme brutality and cruelty of the CIA HVD Programme had gone beyond what had been known when the Court had adopted the above judgment.",
"626. In the applicant ’ s submission, the cumulative effect of the features of his rendition and secret detention showed beyond reasonable doubt that he was a victim of treatment prohibited by Article 3. In that regard, he referred to the complete arbitrariness of the rendition programme, the uncertainty as to his fate, which had been entirely in the hands of his captors and abusers, and the deliberate manipulation of fear and disorientation, which had been designed to and had in fact resulted in a long-term psychological impact. Furthermore, the prolonged duration of the secret incommunicado detention compounded its intensity and effect. The applicant had been held: in secret, unacknowledged detention for a prolonged period of several years, from the date of his arrest on 27 March 2002, at least until his transfer to the custody of the US Department of Defence at the US Naval Base at Guantànamo Bay on 5 September 2006. This period included over one year of secret detention in Lithuania.",
"627. Lithuania had been under a positive obligation under Article 3 to protect him from torture and other forms of ill-treatment by the CIA on its territory and to prevent his transfer from its territory to other CIA secret detention facilities, which had exposed to him to further torture, ill ‑ treatment and abuse in CIA custody. However, the authorities, despite the fact that at the relevant time they knew and ought to have known, that under the HVD Programme CIA prisoners had been subjected to interrogation methods and other practices manifestly incompatible with the Convention, had failed to prevent his transfer to other secret CIA detention sites elsewhere, thus exposing him to a continued and prolonged risk of treatment contrary to Article 3 of the Convention.",
"2. The Court ’ s assessment",
"(a) Admissibility",
"628. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"629. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni, cited above, § 95; Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Ilaşcu and Others cited above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 375, ECHR 2005 ‑ III; El-Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, § § 26-31, ECHR 2001 ‑ XI).",
"Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; see Labita, cited above, § 119; Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; El-Masri, cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above, § 280).",
"630. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; and Jalloh, cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El ‑ Masri, cited above, § 196).",
"Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Labita, cited above, § 120).",
"In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000 ‑ VII; El-Masri, cited above, § 197; Al Nashiri v. Poland, cited above, § 508; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 500).",
"631. Furthermore, a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 501).",
"632. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). The State ’ s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III; El ‑ Masri, cited above, § 198; Al Nashiri v. Poland, cited above, § 509; Husayn (Abu Zubaydah ) v. Poland, cited above, § 502; and Nasr and Ghali, cited above, § 283 ).",
"(ii) Application of the above principles to the present case",
"633. The Court has already found that the applicant ’ s assertions concerning his secret detention in Lithuania from 17 or 18 February 2005 to 25 March 2006 and his transfer from Lithuania to another CIA “black site” on the latter date have been proved before Court and that those facts are established beyond reasonable doubt (see paragraph 54 8 above).",
"It remains to be determined whether the treatment to which he was subjected during his detention falls within the ambit of Article 3 of the Convention and, if so, whether and to what extent it can be attributed to the respondent State (see paragraph 587 above).",
"(α) Treatment to which the applicant was subjected at the relevant time",
"634. In the light of the material in the case file, as the Court has already pointed out, it does not appear that at Detention Site Violet the applicant was subjected to the EITs in connection with interrogations, although there are indications that he must have been continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraphs 5 50 -5 52 above). In that regard, the Court also notes that on 27 March 2007, at the hearing before the Combatant Status Review Tribunal in Guantánamo the applicant, after relating the ordeal to which he had been subjected in CIA custody, stated that “after the second – or second – after one complete year, two year, they start[ed] tell[ing] me the time for the pray[ers] and slowly, slowly circumstances [had become] good”. However, that statement must be read in the context of the treatment inflicted on him previously and in the light of what had happened to him before. The description of his plight given by the applicant at the above hearing and records of his statements in the 2007 ICRC Report give a shocking account of the particularly cruel treatment to which he had been subjected in CIA custody, from the waterboarding, being slammed against the wall and kept naked for days or months on end, through the confinement in a coffin ‑ shaped box, to sleep deprivation, prolonged stress positions, exposure to cold temperature and food deprivation (see paragraphs 1 51 -15 3 and 29 9 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107 and 508).",
"The Court considers that the applicant ’ s experience in CIA custody prior to his detention in Lithuania is an important factor to be taken into account in its assessment of the severity of the treatment to which he was subsequently subjected (ibid.).",
"635. The Court has established beyond reasonable doubt that during his detention in Lithuania the applicant was kept – as any other CIA detainee – under the regime of “standard conditions of confinement” laid down in the DCI Confinement Guidelines. That regime included, as a matter of fixed, predictable routine, blindfolding or hooding of the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 54-56 and 5 52 above). Conditions of confinement were an integral part of the CIA interrogation scheme and served the same purposes as interrogation measures, namely to “dislocate psychologically” the detainee, to “maximise his feeling of vulnerability and helplessness” and “reduce or eliminate his will to resist ... efforts to obtain critical intelligence” (see paragraphs 46-53 above).",
"636. A complementary description of the applicant ’ s conditions of detention throughout the entire period that he spent in CIA custody can also be found in the 2007 ICRC Report. According to that description, based on the applicant ’ s own account and on that of thirteen other high-value detainees ’ they “had no knowledge of where they were being held, no contact with persons other than their interrogators or guards”; and “even the guards were usually masked and, other than the absolute minimum, did not communicate in any way with detainees”. None of the detainees “had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee”. They had “no access to news from the outside world, apart from the later stages of their detention when some of them occasionally received printouts of sports news from the Internet and one reported receiving newspapers”. The situation was further exacerbated by other aspects of the detention regime, such as deprivation of access to the open air and exercise, lack of appropriate hygiene facilities and deprivation of basic items in pursuance of interrogations (see paragraph 299 above).",
"637. Referring to the general situation in the CIA secret prisons, the 2014 US Senate Committee Report states that “the conditions of confinement for CIA detainees were harsher than [those] the CIA represented to the policymakers and others” and describes them as being “poor” and “especially bleak early in the programme” (see paragraph 84 above). It further states that in respect of the conditions of detention the DCI Confinement Guidelines of 28 January 2003 set forth minimal standards and required only that the facility be sufficient to meet “basic health needs”. That, according to the report, in practice meant that a facility in which detainees were kept shackled in complete darkness and isolation, with a bucket for a human waste and without heating during the winter months met that standard (see paragraphs 5 4 -5 6 and 7 7 above).",
"638. As regards the impact of the regime on the CIA detainees, the 2014 US Senate Committee Report states that “multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioural issues, including hallucinations, paranoia, insomnia and attempts at self-harm and self ‑ mutilation” and that “multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems” (see paragraph 7 7 above). In the CIA ’ s declassified documents, adverse effects of extreme isolation to which HVDs were subjected have been recognised as imposing a “psychological toll” and capable of altering “the detainee ’ s ability to interact with others” (see paragraph 5 6 above).",
"639. For the purposes of its ruling the Court does not find it necessary to analyse each and every aspect of the applicant ’ s treatment in detention, the physical conditions in which he was detained in Lithuania or the conditions in which he was transferred to and out of Lithuania. While the intensity of the measures inflicted on him by the CIA might have varied, the predictability of the CIA ’ s regime of confinement and treatment routinely applied to the high-value detainees give sufficient grounds for the Court to conclude that the above described standard measures were used in respect of the applicant in Lithuania and likewise elsewhere, following his transfer from Lithuania, as an integral part of the HVD Programme (see also Al Nashiri v. Poland, cited above, §§ 514-515; and Husayn (Abu Zubaydah) v. Poland, cited above, § 510).",
"640. Considering all the elements, the Court finds that during his detention in Lithuania the applicant was subjected to an extremely harsh detention regime including a virtually complete sensory isolation from the outside world and suffered from permanent emotional and psychological distress and anxiety also caused by the past experience of torture and cruel treatment in the CIA ’ s hands and fear of his future fate. Even though at that time he had apparently not been subjected to interrogations with the use of the harshest methods, the applicant – having beforehand experienced the most brutal torture, (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 86 ‑ 89, 99-102, 401 and 416-417; see also paragraphs 149-152 and 296 above) – inevitably faced the constant fear that, if he failed to “comply”, the previous cruel treatment would at any given time be inflicted on him again. Thus, Article 3 of the Convention does not refer exclusively to the infliction of physical pain but also to that of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 509-510).",
"Consequently, having regard to the regime of detention to which the applicant must have been subjected in Lithuania and its cumulative effects on him, the Court finds that the treatment complained of is to be characterised as having involved intense physical and mental suffering falling within the notion of “inhuman treatment” under Article 3 of the Convention (see paragraphs 6 30 -6 31 above, with references to the Court ’ s case-law).",
"(β) Court ’ s conclusion as to Lithuania ’ s responsibility",
"641. The Court has already found that the Lithuanian authorities knew of the nature and purposes of the CIA ’ s activities on its territory at the material time and cooperated in the preparation and execution of the CIA extraordinary rendition, secret detention and interrogation operations on Lithuanian territory. It has also found that, given their knowledge and involvement in the execution of the HVD Programme the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on Lithuania ’ s territory, they were exposing them to a serious risk of treatment contrary to the Convention (see paragraph 57 6 above).",
"642. It is true that in the assessment of the experts – which the Court has accepted – the Lithuanian authorities did not know the details of what exactly happened inside Detention Site Violet or witnessed the treatment to which the CIA ’ s detainees were subjected. The running of the detention facility was entirely in the hands of and controlled by the CIA. It was the CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting of torture on detainees (see paragraphs 57 1-575 above).",
"However, under Article 1 of the Convention, taken together with Article 3, Lithuania was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraph 6 32 above).",
"Notwithstanding the above Convention obligation, the Lithuanian authorities, for all practical purposes, facilitated the whole process of the operation of the HVD Programme on their territory, created the conditions for it to happen and made no attempt to prevent it from occurring. As held above, on the basis of their own knowledge of the CIA activities deriving from Lithuania ’ s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist-suspects in US custody the authorities – even if they did not see or participate in the specific acts of ill-treatment and abuse endured by the applicant and other HVDs – must have been aware of the serious risk of treatment contrary to Article 3 occurring in the CIA detention facility on Lithuanian territory.",
"Accordingly, the Lithuanian authorities, on account of their “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant ’ s rights under Article 3 of the Convention committed on their territory (see paragraph 592; see also El ‑ Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above, § 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512).",
"643. Furthermore, the Lithuanian authorities were aware that the transfer of the applicant to and from their territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment” (see El-Masri, cited above, § 221; Al Nashiri v. Poland, cited above, § 518; and Husayn (Abu Zubaydah) v. Poland, cited above, § 513).",
"In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraphs 579-580 above). Consequently, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention.",
"644. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect.",
"V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"645. The applicant complained that Lithuania had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures and designed to ensure the complete denial of any safeguards contained in Article 5 of the Convention. In addition, by enabling the CIA to transfer him from Lithuanian territory to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk further undisclosed detention.",
"He alleged a breach of Article 5 of the Convention, which reads as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”",
"A. The parties ’ submissions",
"1. The Government",
"646. The Government reiterated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of this complaint.",
"2. The applicant",
"647. The applicant, relying on El-Masri, Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (all cited above), submitted that his rendition and secret detention had constituted arbitrary deprivation of liberty, defined by the Court as “anathema to the rule of law and the values protected by the Convention”. Accordingly, it had not been “in accordance with a procedure prescribed by law” and had, therefore, been in manifest violation of Article 5 § 1.",
"648. In the applicant ’ s submission, Lithuania ’ s acts and omissions in relation to the CIA HVD Programme as applied to the applicant on Lithuanian territory had also amounted to a breach of its positive obligations under Article 5. Thus, where persons directly responsible for deprivation of liberty of an individual were not the State authorities, but private persons, or another State ’ s authorities, the State ’ s responsibility would be engaged where it had failed to meet its positive duty to protect those within its territory and jurisdiction from arbitrary detention. The positive obligation to protect included an obligation to prevent deprivation of liberty of which the authorities had known or ought to have known, including by ensuring access to counsel and to judicial supervision and to regularly inspect places of confinement to ensure that detention was justified and that the safeguards enshrined in Article 5 had been provided.",
"649. Not only had Lithuania failed to comply with its positive obligations, it had also intentionally collaborated with the CIA to ensure that it could operate its HVD Programme on Lithuanian territory, outside the oversight or interference of any judicial body or institution. It had facilitated the operation of the CIA “black site” and the secrecy of that programme.",
"The CIA secret prison could not have operated on Lithuanian territory without the support and assistance of the State authorities.",
"650. After being transferred out of Lithuania the applicant had continued to be subjected to CIA secret detention elsewhere, ultimately having been transferred to Guantánamo Bay, where he was currently being held. The Lithuanian authorities knew or ought to have known of the real and substantial risk that he would continue to be held under essentially the same regime of detention as that to which he had hitherto been subjected. At the time of his transfer, information about the treatment of detainees at Guantánamo Bay had been a matter of common knowledge.",
"In view of the foregoing, the applicant asked the Court to find a violation of Article 5 of the Convention.",
"B. The Court ’ s assessment",
"1. Admissibility",
"651. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"652. The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118 and El-Masri, cited above, § 230 ). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; and El-Masri, cited above, § 230).",
"653. It must also be stressed that the authors of the Convention reinforced the individual ’ s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4, with their emphasis on promptness and judicial supervision, assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above, § 297).",
"654. Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention ’ s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78; and El-Masri, cited above, § 232 ).",
"The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, § § 123-124, Reports 1998 ‑ III; and El-Masri, cited above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn (Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited above, § 298).",
"(b) Application of the above principles to the present case",
"655. In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries the Court found that the respondent States ’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above, §§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526; and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any reason to hold otherwise in the present case.",
"656. As the Court has held in Al Nashiri v. Poland (cited above, § 530) and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees. To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see also paragraphs 22-23, 2 6 - 58 and 74-87 above).",
"The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated, thus ensuring the secrecy and smooth operation of the HVD Programme. While, as noted above, the interrogations of captured terrorist suspects was the CIA ’ s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance by those authorities, such as the customising of the premises for the CIA ’ s needs or the provision of security and logistics, constituted the necessary condition for the effective operation of the CIA secret detention facilities (see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah) v. Poland, cited above, § 524 ).",
"657. In respect of the applicant ’ s complaint under the substantive aspect of Article 3 the Court has already found that the Lithuanian authorities were aware that he had been transferred from their territory by means of “extraordinary rendition” and that by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 64 3 above). These conclusions are likewise valid in the context of the applicant ’ s complaint under Article 5. In consequence, Lithuania ’ s responsibility under the Convention is engaged in respect of both the applicant ’ s secret detention on its territory and his transfer from Lithuania to another CIA detention site.",
"658. There has accordingly been a violation of Article 5 of the Convention.",
"VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"659. The applicant further complained that Lithuania had violated his rights under Article 8 by enabling the CIA to ill-treat him, to subject him to various forms of physical and mental abuse, to detain him incommunicado on its territory and to deprive him of any contact with his family or the outside world.",
"Article 8 of the Convention reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. The parties ’ submissions",
"1. The Government",
"660. The Government restated their position that Lithuania lacked responsibility under the Convention and refrained from making any observations on the admissibility and merits of the complaint.",
"2. The applicant",
"661. The applicant submitted that under Article 8 of the Convention, the right to respect for private life covered the physical, psychological and moral integrity of the person, including, crucially, the mental health of an individual.",
"The secret incommunicado detention had completely isolated him and removed his ability to interact with the outside world. The physical and psychological abuse to which he had been subjected in CIA custody constituted a serious breach of the right to the physical and psychological integrity of the person, which were integral aspects of Article 8.",
"The absolute ban on contact with his family members or with the outside world had amounted to an interference with his private and family life, and with his correspondence. Secret detention, he added, being designed to remove the person from all contact with and support from the outside world, was the antithesis of the letter and spirit of Article 8 of the Convention.",
"662. The interference with his rights under Article 8 rights had had no legal basis and had not been “in accordance with the law”, whether Lithuanian or international. It had specifically pursued aims antithetical to the Convention, as it had been aimed at enhancing his vulnerability and removing him from the protection of the law, in order to achieve the all ‑ consuming end of unfettered intelligence gathering. It had not pursued any of the legitimate aims listed in paragraph 2 of Article 8, and could not be considered “necessary” or proportionate for the purposes of that provision.",
"B. The Court ’ s assessment",
"1. Admissibility",
"663. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"664. The notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court ’ s case-law; Al Nashiri v. Poland, cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532).",
"Article 8 also protects a right to personal development, including the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002-III). Furthermore, the mutual enjoyment by members of a family of each other ’ s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland, cited above, §538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532).",
"665. Having regard to its conclusions concerning the respondent State ’ s responsibility under Articles 3 and 5 of the Convention (see paragraphs 64 3 and 65 7 above), the Court is of the view that Lithuania ’ s actions and omissions in respect of the applicant ’ s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the alleged interference with the applicant ’ s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of that Article (see El-Masri, cited above, § 249; Husayn (Abu Zubaydah) v. Poland, cited above, § 533; and Al Nashiri v. Poland, cited above, § 539).",
"666. There has accordingly been a violation of Article 8 of the Convention.",
"VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION",
"667. The applicant complained that Lithuania had been in breach of Article 13 of the Convention, taken separately and in conjunction with Article 3, on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of the Convention.",
"Article 13 of the Convention reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"A. The parties ’ submissions",
"668. The parties essentially reiterated their observations concerning the procedural aspect of Article 3 of the Convention (see paragraphs 59 2 - 600 above).",
"669. The Government maintained that that the pre-trial investigation had been thorough and effective and had, therefore, met the requirements of an “effective remedy” for the purposes of Article 13 of the Convention.",
"670. The applicant disagreed and said that the investigation had been superficial and that he had not been able to participate effectively in the proceedings.",
"B. The Court ’ s assessment",
"1. Admissibility",
"671. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 6 0 6 above). It must likewise be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"672. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports 1998 ‑ I; and Mahmut Kaya, cited above, § 124).",
"673. Where an individual has an arguable claim that he has been ill ‑ treated by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a procedure enabling a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002 IV; Assenov and Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and El-Masri, cited above, § 255).",
"674. The requirements of Article 13 are broader than a Contracting State ’ s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see, El-Masri, cited above, § 255, with further references to the Court ’ s case-law).",
"675. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim of, or on behalf of, the individual concerned that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151 and El-Masri, cited above, § 257; see also Al Nashiri v. Poland, cited above, § 549; and Husayn (Abu Zubaydah) v. Poland, cited above, § 543).",
"(b) Application of the above principles to the present case",
"676. The Court has already concluded that the respondent State is responsible for violations of the applicant ’ s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 64 3-644, 65 7-658 and 66 5-666 above). The complaints under these Articles are therefore “arguable” for the purposes of Article 13 and the applicant should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 673 above; see also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550; and Husayn (Abu Zubaydah) v. Poland, cited above, § 544).",
"For the reasons set out in detail above, the Court has found that the criminal investigation in Lithuania fell short of the standards of the “thorough and effective investigation” that should have been carried out in accordance with Article 3 (see paragraph 62 1 above). In these circumstances, none of the remedies relied on by the Government (see paragraphs 41 3 -41 6 above), whether civil or criminal, would have been “effective” in practice. For the reasons that prompted the Court to dismiss the Government ’ s preliminary objection of non-exhaustion of domestic remedies (see paragraph 62 2 above), the Court must also find that the requirements of Article 13 of the Convention were not satisfied in the present case and that the applicant did not have available to him in Lithuania an “effective remedy” to ventilate his claims of a violation of Articles 3, 5 and 8 of the Convention.",
"677. Consequently, there has been a violation of Article 13, taken in conjunction with Article 3 of the Convention.",
"VIII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46 of the Convention",
"678. In addition to asking the Court to award him just satisfaction for non-pecuniary damage and legal costs under Article 41 of the Convention (see paragraph 686 below), the applicant sought the Court ’ s ruling indicating that the Lithuanian Government take certain specific individual measures in execution of the judgment. That request was formulated as follows:",
"(a) Lithuania should carry out an effective, thorough and independent investigation to provide a full account of the applicant ’ s rendition into and out of Lithuania and his treatment while there. The investigation should include guarantees of independence and transparency, and victim participation, in line with the State ’ s obligations. It should pursue vigorously the investigation of past crimes, including by taking all possible measures to secure information and cooperation from the United States and conducting a rigorous forensic investigation. The investigation should lead to a full public account of Lithuanian involvement in the rendition programme.",
"(b) Those persons who were believed, upon proper investigation, to be responsible for crimes committed against the applicant on Lithuanian territory should be subject to prosecution and appropriate punishment in accordance with the gravity of the crimes; that the State should clarify that there could be no legal impediments to accountability for the crimes in question under Lithuanian law.",
"(c) The Lithuanian State should formally recognise the violations of the applicant ’ s rights and acknowledge its wrongdoing and responsibility for those violations, and its contribution to his current circumstances; the State should provide suitable guarantees of non-repetition to ensure that violations committed against the applicant would not be repeated in the future and that its cooperation would be consistent with its human rights obligations under the Convention.",
"(d) Lithuania should secure, through diplomatic or other means, the cooperation and assistance of the United States Government in order to establish the full and precise details of the applicant ’ s treatment at the hands of the CIA, and it should make such representations and interventions, individually or collectively, as were necessary to bring an end to the on-going violations of his rights.",
"679. The Court considers it appropriate to deal with the applicant ’ s request under Article 46 of the Convention which, in so far as relevant, states:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.",
"... ”",
"680. The present case concerns the removal of an applicant from the territory of the respondent State by means of extraordinary rendition. The general principles deriving from the Court ’ s case-law under Article 46 as to when, in such a situation, the Court may be led to indicate to the State concerned the adoption of individual measures, including the taking of “all possible steps” to obtain the appropriate diplomatic assurances from the destination State, have been summarised in Al Nashiri v. Poland (cited above, §§ 586-588, with further references to the Court ’ s case-law, in particular to Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209, ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202, ECHR 2004-II; Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited above, § 170).",
"681. As regards possible representations to the US authorities by the respondent State, as requested by the applicant (see paragraph 67 8 (d) in fine above), the Court would recall its finding that, by enabling the transfer of the applicant to another CIA detention site, the Lithuanian authorities exposed him to a foreseeable risk of continued secret, incommunicado and otherwise arbitrary detention, liable, in his case, to continue for the rest of his life, in breach of Article 5 of the Convention (see paragraphs 65 5 -65 7 above; see also paragraphs 80 and 16 1 -16 4 above) as well as to further ill ‑ treatment and conditions of detention, in breach of Article 3 (see paragraphs 6 41 -64 3 above). The Court is mindful of the fact that the Lithuanian authorities already sought assistance and judicial cooperation from the US authorities in the context of the domestic criminal investigation (see paragraph 2 10 above). However, in the opinion of the Court, the treaty obligation of Lithuania under Article 46 of the Convention to take the necessary individual measures to redress as far as possible the violation found by the Court, require that the Lithuanian authorities attempt to make further representations to the US authorities with a view to removing or, at the very least seeking to limit, as far as possible, the effects of the Convention violations suffered by the applicant.",
"682. In the context of individual measures to be adopted by the respondent State, the applicant also contended that the Lithuanian authorities were obliged to carry out an effective, thorough and independent investigation to provide a full account of his rendition to and from Lithuania and of his treatment in Lithuania and to ensure the punishment of those responsible (see paragraph 678 (a) and (b) above).",
"In this connection, it can be inferred from the Court ’ s case-law that the obligation of a Contracting State to conduct an effective investigation under Article 3, as under Article 2, of the Convention persists as long as such an investigation remains feasible but has not been carried out or has not met the Convention standards (see, for instance, Association “21 December 1989” and Others, cited above, § 202; Benzer and Others v. Turkey, no. 23502/06, §§ 218-219, 12 November 2013; see also, mutatis mutandis, Jeronovičs v. Latvia GC , no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide the requisite investigation will be regarded as a continuing violation of that provision (see, mutatis mutandis, Cyprus v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited above, §§ 214 and 230).",
"683. The Court considers that, having regard in particular to the nature of the procedural violation of Article 3 found in the present case, the obligation incumbent on Lithuania under Article 46 inevitably requires that all necessary steps to reactivate the still pending criminal investigation be taken without delay. Thereafter, in accordance with the applicable Convention principles (see paragraphs 60 7 -6 10 above, with references to the Court ’ s case-law), the criminal investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the circumstances and conditions under which the applicant was brought into Lithuania, treated in Lithuania and thereafter removed from Lithuania have been elucidated further, so as to enable the identification and, where appropriate, punishment of those responsible. The Court notes that on the basis of the elements in the case file, there appear to be no insurmountable practical obstacles to the hitherto lacking effective investigation being carried out in this manner (see, mutatis mutandis, Abuyeva and Others v. Russia, no. 27065/05, §§ 240- 241, 2 December 2010). It is not, however, for the Court to address to the respondent State detailed, prescriptive injunctions of the kind requested by the applicant. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see, mutatis mutandis, ibid., § 243, and Al Nashiri v. Poland, cited above, § 586, with further references to the Court ’ s case-law).",
"684. For the remainder, the Court is satisfied that the issues raised by the applicant in his requests for specific measures are adequately addressed by its findings of violations of the Convention.",
"B. Article 41 of the Convention",
"685. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"686. The applicant asked the Court to award him 150,000 euros (EUR) for non ‑ pecuniary damage. He submitted that the Convention violations which he had sustained had caused significant harm to his mental and physical health. In his view, the factors relevant for an assessment of non ‑ pecuniary harm in the present case included the “extreme seriousness of the violations of the Convention”, their duration, context and lasting impact.",
"687. The Government replied that the sum claimed by the applicant in respect of the alleged non-pecuniary damage was excessive.",
"688. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.",
"In the present case the Court has found serious violations of several Convention provisions by the respondent State. It has held that the responsibility of the respondent State is engaged in respect of the applicant ’ s inhuman treatment and secret detention on its territory. The respondent State has also failed to carry out an effective investigation as required under Articles 3 and 13 of the Convention. In addition, the Court has found a violation of the applicant ’ s rights under Article 8 (see paragraphs 6 22, 6 44, 65 8, 666, and 67 7 above).",
"In view of the foregoing, the Court considers that the applicant has undeniably suffered non-pecuniary damage which cannot be made good by the mere finding of a violation.",
"689. Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicant has been a victim, and ruling on an equitable basis, as required by Article 41 of the Convention (see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595; and Huseyn (Abu Zubaydah) v. Poland, cited above, § 567), the Court awards him EUR 100,000, plus any tax that may be chargeable on that amount.",
"2. Costs and expenses",
"690. The applicant also claimed EUR 30,000 for the costs and expenses incurred before the Court.",
"691. The Government were of the view that the sum claimed with respect to the costs of the proceedings was exorbitant and had not been in any way substantiated by the applicant ’ s lawyer.",
"692. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 30,000 for the proceedings before the Court.",
"3. Default interest",
"693. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
249 | Al Nashiri v. Romania | 31 May 2018 | The applicant in this case was facing capital charges in the US for his alleged role in terrorist attacks. The case concerned his allegations that Romania had let the United States Central Intelligence Agency (CIA) transport him under the secret extraordinary rendition programme onto its territory and had allowed him to be subjected to ill-treatment and arbitrary detention in a CIA detention “black site”. He also complained that Romania had failed to carry out an effective investigation into his allegations. | In this case the Court had no access to the applicant as he was still being held by the US authorities in very restrictive conditions so it had to establish the facts from various other sources. In particular, it gained key information from a US Senate report on CIA torture which was released in December 2014. It also heard expert witness testimony. The Court held that in the applicant’s case there had been violations of Article 3 (prohibition of torture) of the Convention, because of the Romanian Government’s failure to effectively investigate the applicant’s allegations and because of its complicity in the CIA’s actions that had led to ill-treatment. The Court also held that there had been violations of Article 5 (right to liberty and security), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) in conjunction with Articles 3, 5 and 8. Lastly, it held that there had been violations of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention, and Articles 2 (right to life) and 3 of the Convention taken together with Article 1 (abolition of the death penalty) of Protocol No. 6 to the Convention because Romania had assisted in the applicant’s transfer from its territory in spite of a real risk that he could face a flagrant denial of justice and the death penalty. The Court noted in particular that Romania had hosted a secret CIA prison, which had the code name, Detention Site Black, between September 2003 and November 2005, that the applicant had been detained there for about 18 months, and that the domestic authorities had known the CIA would subject him to treatment contrary to the Convention. Romania had also permitted him to be moved to another CIA detention site located either in Afghanistan (Detention Site Brown) or in Lithuania (Detention Site Violet), thus exposing him to further ill-treatment. The Court therefore found that the applicant had been within Romania’s jurisdiction and that the country had been responsible for the violation of his rights under the Convention. It further recommended that Romania conclude a full investigation into the applicant’s case as quickly as possible and, if necessary, punish any officials responsible. The Court lastly held that the country should also seek assurances from the United States that the applicant would not suffer the death penalty. | Secret detention sites | Recent judgments and decisions of the Court | [
"I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS",
"II. EVIDENCE BEFORE THE COURT",
"III. BACKGROUND TO THE CASE",
"A. Terrorist attacks of which the applicant has been suspected",
"1. USS Cole bombing in 2000",
"2. MV Limburg bombing in 2002",
"B. The so-called “High-Value Detainee Programme”",
"1. The establishment of the HVD Programme",
"(a) The US President ’ s memoranda",
"(i) Memorandum of 17 September 2001",
"(ii) Memorandum of 7 February 2002",
"(b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002",
"(c) Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”",
"2. Enhanced Interrogation Techniques",
"(a) Description of legally sanctioned standard and enhanced interrogation techniques",
"(b) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations",
"3. Standard procedures and treatment of “high-value detainees” in CIA custody (combined use of interrogation techniques)",
"4. Conditions of detention at CIA “black sites”",
"5. The scale of the HVD Programme",
"6. Closure of the HVD Programme",
"C. The United States Supreme Court ’ s judgment in Rasul v. Bush",
"D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations",
"1. Jeppesen Dataplan Inc.",
"2. Richmor Aviation",
"3. Other companies",
"E. Military Commissions",
"1. Military Order of 13 November 2001",
"2. Military Commission Order no. 1",
"3. The 2006 Military Commissions Act and the 2009 Military Commissions Act",
"4. Publicly expressed concerns regarding the procedure before the military commission",
"F. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate",
"1. Course of the review",
"2. Findings and conclusions",
"IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. The applicant ’ s capture, transfer to the CIA ’ s custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report",
"B. The applicant ’ s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"1. Transfer from Poland to Morocco and detention in Morocco (from 6 June to 23 September 2003)",
"2. Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004)",
"C. The applicant ’ s alleged secret detention at a CIA “black site” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"1. The applicant ’ s initial submissions",
"2. The applicant ’ s alleged rendition to Romania on the plane N85VM on 12 April 2004",
"3. Detention and treatment to which the applicant was subjected",
"4. The applicant ’ s alleged rendition from Romania on 6 October or 5 November 2005",
"D. The applicant ’ s further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"E. The applicant ’ s detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present",
"1. Hearing before the Combatant Status Review Tribunal",
"2. Trial before the military commission",
"F. Psychological effects of the HVD Programme on the applicant",
"G. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts",
"H. “Detention Site Black” in the 2014 US Senate Committee Report",
"I. Parliamentary inquiry in Romania",
"J. Criminal investigation in Romania",
"1. Submission by the Government of confidential documents from the investigation file",
"2. The course of the investigation according to documentary evidence produced by the Government",
"VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001",
"A. United Nations",
"1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002",
"2. Statement of the International Rehabilitation Council for Torture",
"3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)",
"B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003",
"C. International non-governmental organisations",
"1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002",
"2. Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002",
"3. Human Rights Watch, “United States: Reports of Torture of Al ‑ Qaeda Suspects”, 26 December 2002",
"4. International Helsinki Federation for Human Rights, “Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003",
"5. Amnesty International Report 2003 – United States of America, 28 May 2003",
"6. Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003",
"7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue”, 18 August 2003",
"8. Amnesty International, “Incommunicado detention/Fear of ill ‑ treatment”, 20 August 2003",
"9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004",
"10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005",
"11. Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody of 30 November 2005",
"VIII. SELECTED MEDIA REPORTS AND ARTICLES",
"A. International media",
"B. Romanian media",
"C. Der Spiegel ’ s publications in 2014 and 2015",
"IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA",
"A. Council of Europe",
"1. Procedure under Article 52 of the Convention",
"2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry",
"(a) The 2006 Marty Report",
"(b) The 2007 Marty Report",
"(c) The 2011 Marty Report",
"B. European Parliament",
"1. The Fava Inquiry",
"2. The 2007 European Parliament Resolution",
"3. The 2011 European Parliament Resolution",
"4. The Flautre Report and the 2012 European Parliament Resolution",
"5. The 2013 European Parliament Resolution",
"6. The 2015 European Parliament Resolution",
"7. LIBE delegation ’ s visit to Romania (24-25 September 2015)",
"8. Follow-up to the visit",
"9. The 2016 European Parliament Resolution",
"C. The 2007 ICRC Report",
"D. United Nations",
"1. The 2010 UN Joint Study",
"2. The 2015 UN Committee against Torture ’ s Observations",
"X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT",
"A. Transcript of witness X ’ s statement made on 18 September 2013",
"B. Transcript of testimony given by witness Y on 4 May 2015",
"C. Transcript of witness Z ’ s statement made on 17 September 2013",
"D. Transcript of testimony given by witness Z on 18 June 2015",
"E. Transcripts of statements from other witnesses",
"1. Witness A",
"2. Witness B",
"3. Witness C",
"4. Witness D",
"5. Witness E",
"6. Witness F",
"7. Witness G",
"8. Witness H",
"9. Witness I",
"10. Witness J",
"11. Witness K",
"12. Witness L",
"13. Witness M",
"14. Witness N",
"15. Witness O",
"16. Witness P",
"17. Witness Q",
"18. Witness R",
"XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT",
"A. RCAA letter of 29 July 2009",
"B. List of twenty-one “suspicious flights” produced by the Government",
"C. Documents concerning the N313P rendition mission on 16-28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation",
"D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts)",
"E. Mr Hammarberg ’ s affidavit of 17 April 2013",
"Affidavit of Thomas Hammarberg",
"F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General (extracts)",
"G. Mr Hammarberg ’ s replies to questions put to him in writing by the Court and the parties",
"1. The Court ’ s questions",
"2. The Romanian Government ’ s questions",
"3. The applicant ’ s questions",
"H. Senator Marty ’ s affidavit of 24 April 2013",
"I. The 2015 LIBE Briefing",
"XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT",
"A. Mr Fava",
"B. Presentation by Senator Marty and Mr J.G.S. “Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri”",
"C. Senator Marty",
"D. Mr J.G.S.",
"E. Mr Black"
] | [
"V. RELEVANT DOMESTIC LAW",
"A. Criminal Code",
"1. Territorial jurisdiction",
"2. Prohibition of torture and offence of unlawful deprivation of liberty",
"B. Code of Criminal Procedure",
"VI. RELEVANT INTERNATIONAL LAW",
"A. Vienna Convention on the Law of Treaties",
"Article 26 “Pacta sunt servanda”",
"Article 27 Internal law and observance of treaties",
"B. International Covenant on Civil and Political Rights",
"C. The UN Torture Convention",
"D. UN Geneva Conventions",
"1. Geneva (III) Convention",
"2. Geneva (IV) Convention",
"E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts",
"F. UN General Assembly Resolution 60/147",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION",
"A. Romania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania",
"1. The Government",
"2. The applicant",
"3. The Court ’ s assessment",
"B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule",
"1. The Government",
"(a) Non-exhaustion of domestic remedies",
"(b) Non-compliance with the six-month term",
"2. The applicant",
"(a) Non-exhaustion of domestic remedies",
"(b) Non-compliance with the six-month rule",
"3. The Court ’ s assessment",
"II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE",
"A. The parties ’ positions on the facts and evidence",
"1. The Government",
"(a) Lack of evidence demonstrating that a CIA ”black site” operated in Romania",
"(i) Contradictory statements as to the “life cycle” of the alleged CIA ”black site” in Romania",
"(ii) Contradictory statements as to the location of the alleged CIA ”black site” in Romania",
"(b) Inconsistencies in the applicant ’ s account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania",
"(c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe ’ s Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents",
"(d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions",
"(e) Lack of evidence demonstrating that the Romanian authorities entered into “secret cooperation agreements” with the CIA and cooperated in the execution of the HVD Programme",
"(f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights",
"(g) Lack of evidence of Romania ’ s knowledge of the CIA HVD Programme at the material time",
"2. The applicant",
"(a) As regards the existence of a CIA secret detention facility in Romania and the applicant ’ s secret detention in Romania",
"(b) As regards the alleged inconsistencies in the applicant ’ s account regarding the dates of his rendition to and from Romania and his secret detention in Romania",
"(c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005",
"(d) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence",
"(e) As regards Romania ’ s ’ cooperation with the CIA and its complicity in the HVD Programme",
"(f) As regards Romania ’ s knowledge of the HVD Programme at the material time",
"B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of the US practices in respect of captured terrorist suspects",
"C. The parties ’ positions on the standard and burden of proof",
"1. The Government",
"2. The applicant",
"D. The Court ’ s assessment of the facts and evidence",
"1. Applicable principles deriving from the Court ’ s case-law",
"2. Preliminary considerations concerning the establishment of the facts and assessment of evidence in the present case",
"3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Romania (mid-October 2002-April 2004)",
"(a) Period from mid-October 2002 to 6 June 2003",
"(b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo) were proved before the Court",
"4. As regards the establishments of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Romania, secret detention in Romania and transfer by the CIA out of Romania (12 April 2004 to 6 October or 5 November 2005)",
"(a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant (22 September 2003 – beginning of November 2005)",
"(b) Whether the applicant ’ s allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court",
"(i) Preliminary considerations",
"(ii) Transfers and secret detention",
"(iii) The applicant ’ s treatment in CIA custody in Romania",
"5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Romania ’ s knowledge of and complicity in the CIA HVD Programme",
"(a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a “subsidy” from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme",
"(i) Agreement to host a CIA detention facility, request for and acceptance of a “subsidy” from the CIA and provision of premises for the CIA",
"(ii) Acquiescence with some elements of the HVD Programme",
"(b) Assistance in disguising the CIA rendition aircraft ’ s routes through Romania by means of the so-called “dummy” flight planning",
"(c) Special procedure for CIA flights",
"(d) Informal transatlantic meeting",
"(e) Circumstances routinely surrounding HVDs transfers and reception at the CIA “black site”",
"(f) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005",
"6. The Court ’ s conclusions as to Romania ’ s alleged knowledge of and complicity in the CIA HVD Programme",
"III. ROMANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION",
"A. The parties ’ submissions",
"B. The Court ’ s assessment",
"1. As regards jurisdiction",
"2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory",
"3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory",
"4. Conclusion as to the Romanian Government ’ s preliminary objection that Romania lacks jurisdiction and responsibility under the Convention",
"IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION",
"A. Procedural aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"(b) The applicant",
"2. The third-party interveners",
"(a) The UN Special Rapporteur",
"(b) APADOR-CH",
"(c) Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on “effective investigation”",
"(d) Media Groups",
"3. The Court ’ s assessment",
"(a) Admissibility",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"(ii) Application of the above principles to the present case",
"B. Substantive aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"(b) The applicant",
"2. The Court ’ s assessment",
"(a) Admissibility",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"(ii) Application of the above principles to the present case",
"(a) Treatment to which the applicant was subjected at the relevant time",
"( β ) Court ’ s conclusion as to Romania ’ s responsibility",
"V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION",
"A. The parties ’ submissions",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"2. The applicant",
"B. The Court ’ s assessment",
"1. Admissibility",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"(b) Application of the above principles to the present case",
"X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION",
"A. The parties ’ submissions",
"B. The Court ’ s assessment",
"XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"A. Damage",
"B. Costs and expenses",
"C. Default interest",
"ANNEX I : List of abbreviations used in the Court ’ s judgment",
"ANNEX II : List of references to the Court ’ s case-law",
"In the case of Al Nashiri v. Romania,",
"The European Court of Human Rights ( Former First Section ), sitting as a Chamber composed of:",
"Linos-Alexandre Sicilianos, President, Kristina Pardalos, Robert Spano, Aleš Pejchal, Mirjana Lazarova Trajkovska, Paul Mahoney, judges, Florin Streteanu, ad hoc judge, and Abel Campos, Section Registrar,",
"Having deliberated in private on 29 June 2016 and 11 April 201 8,",
"Delivers the following judgment, which was adopted on the latter date:",
"PROCEDURE",
"1. The case originated in an application (no. 33234/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by a Saudi Arabian national of Yemeni descent, Mr Abd Al Rahim Husseyn Muhammad Al Nashiri ( “ the applicant ” ), on 1 June 2012.",
"2. The applicant was represented by Mr J.A. Goldston, attorney, member of the New York Bar and Executive Director of the Open Society Justice Initiative ( “ the OSJI ” ), Mr R. Skilbeck, barrister, member of the England and Wales Bar and Litigation Director of the OSJI, Ms A. Singh, attorney, member of the New York Bar and Senior Legal Officer at the OSJI, Ms N. Hollander, attorney, member of the New Mexico Bar, and also by Ms D.O. Hatneanu, a lawyer practising in Bucharest.",
"The Romanian Government ( “ the Government ” ) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.",
"3. The applicant alleged violations of various provisions of the Convention, in particular:",
"(i) Articles 3, 5 and 8 in that Romania had enabled the Central Intelligence Agency of the United States ( “ the CIA ” ) to detain him on its territory at a secret detention facility, thereby allowing the CIA to subject him to treatment that had amounted to torture, incommunicado detention and deprivation of any access to, or contact with, his family;",
"(ii) Articles 2 and 3 of the Convention, Article 1 of Protocol No. 6 to the Convention and also Articles 5 and 6 of the Convention in that Romania had enabled the CIA to transfer him from its territory to other CIA-run detention facilities elsewhere, despite a real risk of his being subjected to further torture, ill-treatment, incommunicado detention, a flagrantly unfair trial and the imposition of the death penalty;",
"(iii) Article 3 alone and in conjunction with Article 13 and also Articles 5 and 8 of the Convention in that Romania had failed to conduct an effective and thorough investigation into his allegations of serious violations of his rights protected by the Convention during his secret detention on Romanian territory.",
"4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court)",
"5. On 4 September 2012 the President of the Third Section gave priority to the application, in accordance with Rule 41.",
"6. On 18 September 2012 the Chamber that had been constituted to consider the case (Rule 26 § 1) gave notice of the application to the Government, in accordance with Rule 54 § 2 (b).",
"7. The Government and the applicant each filed written observations on the admissibility and merits of the case. In addition, third-party comments were received from Amnesty International, ( hereinafter also referred to as “ AI ” ) and the International Commission of Jurists ( hereinafter also referred to as “ ICJ”), the Association for the Defence of Human Rights in Romania – the Helsinki Committee ( “ APADOR-CH ” ), the twelve media organisations ( “ Media Groups ” ), represented by Howard Kennedy Fsi LLP, and the United Nations (UN) Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism ( “ the UN Special Rapporteur ” ).",
"8. On 26 May 2015 the President of the Section decided to invite the parties to submit further observations on certain factual developments. They were also invited to make comments on the case in the light of the Court ’ s judgment in the case of Al Nashiri v. Poland (no. 28761/11, 24 July 2014).",
"9. Following the re-composition of the Court ’ s Sections, the application was assigned to the First Section of the Court, pursuant to Rule 52 § 2.",
"10. Iulia Motoc, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28). The President accordingly appointed Mr Ioan Florin Streteanu to sit as an ad hoc judge in her place (Article 26 § 4 of the Convention and Rule 29 § 1 ).",
"11. Subsequently, the Chamber of the First Section that had been constituted to consider the case, having consulted the parties, decided that a public hearing on the admissibility and merits of the case be held on 29 June 2016.",
"The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court). The date for a fact ‑ finding hearing was set for 28 June 2016.",
"In this connection, the President of the Chamber directed that verbatim records of both hearings be made, pursuant to Rule 70 of the Rules of Court and Rule 8 of the Annex to the Rules of Court, and instructed the Registrar accordingly.",
"12. On 28 June 2016 the Chamber held a fact - finding hearing and heard evidence from experts, in accordance with Rule A1 §§ 1 and 5 of the Annex.",
"In the course of the fact-finding hearing the parties were also invited to state their position on the confidentiality (Rule 33 § 2) of certain documents produced by the Romanian Government, in particular annexes to the Romanian Senate Report of 200 7 ( “ the 200 7 Romanian Senate Report ” – see also paragraphs 165-169 below) and material collected in the context of a criminal investigation carried out by the Romanian authorities (see paragraphs 171-190 below). The applicant was in favour of full disclosure, whereas the Government considered that the confidentiality of annexes nos. 1-11 to the 2007 Romanian Senate Report in the redacted versions supplied by them could be lifted and that transcripts of evidence given by witnesses during the investigation could be referred to in public, without using any element that would allow the witnesses to be identified. That included their names and surnames and their exact workplaces or institutions that they represented.",
"As regards the material from the investigation file, the Government in addition produced an English summary of annexes with documents submitted by them. They did not object to the content of the summary being referred to in public, in particular in the parties ’ oral submissions at the public hearing.",
"The Court acceded to the Government ’ s requests.",
"13. A public hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2016 (Rule 59 § 3).",
"There appeared before the Court:",
"(a) for the Government",
"Mrs C. Brumar, Agent of the Government, Ministry of Foreign Affairs, Mrs A.-L. Rusu, Chargé d ’ affaires a.i., Deputy to the Permanent Representative of Romania to the Council of Europe, Counsel, Mrs M. Ludușan, judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr V. H. D. Constantinescu, judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr R. Bodnar, Bucharest Airports National Company, Counsel, Mr M. Simionis, Romanian Civil Aviation Authority, Counsel, Mr A. Ștefan, Romanian Air Traffic Services Administration, Counsel;",
"(b) for the applicant",
"Mr R. Skilbeck, Counsel, Ms A. Singh, Counsel, Ms D .-O. Hatneanu, Counsel, Ms N. Hollander, Adviser.",
"The Court heard addresses by Ms Brumar, Ms Luduşan, Ms Singh and Ms Hatneanu.",
"14. The fact-finding hearing and the public hearing were presided over by Mirjana Lazarova Trajkovska, former President of the First Section of the Court. Following the end of her term of office and the elections of Section Presidents, Linos-Alexandre Sicilianos, the President of the First Section, became the President of the Chamber (Rules 8 § 1, 12 and 26 § 3). Judges Lazarova Trajkovska and Mahoney continued to deal with the case after the end of their terms of office (Rule 26 § 3).",
"THE FACTS",
"15. The applicant was born in 1965 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba",
"I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS",
"16. It is to be noted that in the present case involving, as the applicant ’ s previous application before the Court, complaints of secret detention and torture to which he was allegedly subjected during the extraordinary rendition operations by the United States ’ authorities (see paragraphs 22-70 and 78-97 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Al Nashiri v. Poland, no. 28761/11, § 397, 24 July 2014; see also Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 397, 24 July 2014 ).",
"As in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities ’ custody, based on various publicly available sources of information. The applicant ’ s version of the facts as stated in his initial application of 1 June 2012 evolved and partly changed during the proceedings before the Court (see paragraphs 115-116 below).",
"The respondent Government contested the applicant ’ s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Romania (see paragraphs 395-402 and 419-443 below).",
"17. Consequently, the facts of the case as set out below (see paragraphs 98-164 below) are based on the applicant ’ s account supplemented by various items of evidence in the Court ’ s possession.",
"II. EVIDENCE BEFORE THE COURT",
"18. In order to establish the facts of the case the Court has relied on its findings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), documentary evidence supplied by the applicant and the Government, including witness testimony obtained in the criminal investigation (see paragraphs 298-325 below), observations of the parties, material available in the public domain (see paragraphs 212-245 below), an affidavit made by Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, a dossier that he produced for the Romanian Prosecutor General and his written reply to questions put to him by the Court and the parties (see paragraphs 333 -35 3 below), an affidavit made by Senator Dick Marty (see paragraph 354 below) and testimony of experts who gave oral evidence before the Court at the fact-finding hearing held on 28 June 2016 (see paragraphs 359-393 below).",
"In the course of that hearing the Court, with the participation of the parties, took evidence from the following persons :",
"(1) Mr Giovanni Claudio Fava, in his capacity as the Rapporteur of the European Parliament ’ s Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of Prisoners ( “ the TDIP ” ), the relevant inquiry also being called “ the Fava Inquiry ” and so referred to hereinafter (see paragraphs 268-277 below).",
"(2) Senator Dick Marty, in his capacity as Rapporteur of the Council of Europe ’ s Parliamentary Assembly ( “ PACE ” ) in the inquiry into the allegations of CIA secret detention facilities in the Council of Europe ’ s member States (hereinafter the “ Marty Inquiry ” – see paragraphs 24 9 -26 7 below).",
"(3) Mr J.G.S., in his capacity as advisor to Senator Marty in the Marty Inquiry and advisor to Mr Hammarberg who had dealt with, among other things, compiling data on flights associated with the CIA extraordinary rendition (see paragraphs 249-267 and 334-342 below), as well as an expert who had submitted a report on the applicant ’ s case in El-Masri v. the former Yugoslav Republic of Macedonia (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 75, ECHR 2012 ) and who had given oral evidence before the Court in the cases of Al Nashiri v. Poland ( cited above, §§ 42, 311-318 and 324-331 ) and Husayn (Abu Zubaydah) v. Poland ( cited above, § § 42, 305-312 and 318-325 ) and also in connection with his investigative activities concerning the CIA extraordinary rendition operations in general.",
"In the course of giving evidence to the Court, Senator Marty and Mr J.G.S also gave a PowerPoint presentation entitled “ Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri ”.",
"(4) Mr Crofton Black, in his capacity as an investigator at the Bureau of Investigative Journalism, an expert in the investigation by the European Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs ’ ( “ LIBE Committee ” ) into the alleged transportation and illegal detention of prisoners in European countries by the CIA (see paragraphs 2 86-287 and 353-356 below) and also in connection with his involvement in research and various investigative tasks concerning the CIA extraordinary rendition operations in general, including tasks performed for the UK-based non ‑ governmental organisation Reprieve.",
"19. The relevant passages from the experts ’ testimony are reproduced below (see paragraphs 10 4, 107-108, 110, 119, 121, 12 4 -12 5 ,12 9-132 and 357-391 below).",
"III. BACKGROUND TO THE CASE",
"A. Terrorist attacks of which the applicant has been suspected",
"1. USS Cole bombing in 2000",
"20. On 12 October 2000 a suicide terrorist attack on the United States Navy guided-missile destroyer USS Cole took place in Aden, Yemen when the ship stopped in Aden harbour for refuelling. It was attacked by a small bomb-laden boat. The explosion opened a 40 foot hole in the warship, killing 17 American sailors and injuring 40 other personnel.",
"The US authorities considered the applicant to have been one of the most senior figures in al-Qaeda and a suspect in this bombing. He has been suspected of masterminding and orchestrating the attack (see also paragraphs 14 2 -15 6 below).",
"2. MV Limburg bombing in 2002",
"21. On 6 October 2002 a French oil tanker MV Limburg, while it was in the Gulf of Aden some miles offshore, was rammed by a small explosives ‑ laden boat which detonated. The tanker caught fire and approximately 90,000 barrels (14,000 sq.m ) of oil leaked into the Gulf of Aden. One crew member was killed and twelve others injured. The style of the attack resembled the suicide USS Cole bombing described above. The US authorities have suspected the applicant of playing a role in the attack (see also paragraphs 142-156 below).",
"B. The so-called “ High-Value Detainee Programme ”",
"22. On an unspecified date following 11 September 2001 the CIA established a programme in the Counterterrorist Center ( “ CTC ” ) to detain and interrogate terrorists at sites abroad. In further documents the US authorities referred to it as “ the CTC program ” but, subsequently, it was also called “ the High-Value Detainee Program ” ( “ the HVD Program ” ) or the “ Rendition Detention Interrogation Program ” ( “ the RDI Program ” ). In the Council of Europe ’ s documents it is also described as “ the CIA secret detention programme ” or “ the extraordinary rendition programme ” (see also paragraphs 250 -26 5 below). For the purposes of the present case, it is referred to as “ the HVD Programme ”.",
"23. A detailed description of the HVD Programme made on the basis of materials that were available to the Court in the case of Al Nashiri v. Poland on the date of adoption of the judgment (8 July 2014) can be found in paragraphs 47-71 of that judgment. Those materials included the classified CIA documents released in redacted versions in 2009 -2010 (see also paragraphs 36-58 below).",
"24. On 9 December 2014 the United States authorities released the Findings and Conclusions and, in a heavily redacted version, the Executive Summary of the US Senate Select Committee on Intelligence ’ s “ Study of the Central Intelligence Agency ’ s Detention and Interrogation Program ”. The full Committee Study – as stated therein “ the most comprehensive review ever conducted of the CIA Detention and Interrogation Program ”, which is more than 6,700 pages long, remains classified (see also paragraphs 23-25 above). The declassified Executive Summary (hereinafter “ the 2014 US Senate Committee Report ” ) comprises 499 pages (for further details concerning the US Senate ’ s review of the CIA ’ s activities involved in the HVD Programme see paragraphs 79-98 below).",
"25. The 2014 US Senate Committee Report disclosed new facts and provided a significant amount of new information, mostly based on the CIA classified documents, about the CIA extraordinary rendition and secret detention operations, their foreign partners or co-operators, as well as the plight of certain detainees, including the applicant in the present case. However, all names of the countries on whose territories the CIA carried out its extraordinary rendition and secret detention operations were redacted and all foreign detention facilities were colour code - named. The 2014 US Senate Committee Report explains that the CIA requested that the names of countries that hosted CIA detention sites, or with which the CIA negotiated hosting sites, as well as information directly or indirectly identifying those countries be redacted. The countries were accordingly listed by a single letter of the alphabet, a letter which was nevertheless blackened throughout the document. Furthermore, at the CIA ’ s request the original code names for CIA detention sites were replaced with new identifiers – the above-mentioned colour code-names.",
"26. The 2014 US Senate Committee Report refers to eight specifically colour code-named CIA detention sites located abroad : “ Detention Site Green ”, “ Detention Site Cobalt ”, “ Detention Site Black ”, “ Detention Site Blue ”, “ Detention Site Gray ”, “ Detention Site Violet ”, “ Detention Site Orange ” and “ Detention Site Brown ” (see also paragraph 15 9 below).",
"27. The description of the “ HVD Programme ” given below is based on the CIA declassified documents that were available to the Court in Al ‑ Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, supplemented by the 2014 US Senate Committee Report.",
"1. The establishment of the HVD Programme",
"(a) The US President ’ s memoranda",
"(i) Memorandum of 17 September 2001",
"28. The 2014 US Senate Committee Report states that on 17 September 2001 President George W. Bush signed a covert action Memorandum of Notification ( “ the MON ” ) to authorise the Director of the CIA to “ undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities ”. Although the CIA had previously been provided with certain limited authority to detain specific, named individuals pending the issuance of formal criminal charges, the MON provided unprecedented authority, granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of their detention. The MON made no reference to interrogations or interrogation techniques.",
"29. Before the issuance of the MON, on 14 September 2001, the Chief of operations of the CIA, based on an urgent request from the Chief of the Counterterrorism Center ( “ CTC ” ), had sent an email to CIA Stations seeking input on appropriate locations for potential CIA detention facilities.",
"30. A CIA internal memorandum, entitled “ Approval to Establish a Detention Facility for Terrorists ”, drawn up on an unspecified date in November 2001, explained that detention at a US military base outside of the USA was “ the best option ”. In the context of risks associated with the CIA maintaining a detention facility, it warned that “ as captured terrorists may be held days, months, or years, the likelihood of exposure will grow over time ”. It anticipated that “ in a foreign country, close cooperation with the host government will entail intensive negotiations ” and warned that “ any foreign country poses uncontrollable risks that could create incidents, vulnerability to the security of the facility, bilateral problems, and uncertainty over maintaining the facility ”. The memorandum recommended the establishment of a “ short-term facility in which the CIA ’ s role would be limited to oversight, funding and responsibility ”.",
"It further stated that the CIA would “ contract out all other requirements to other US Government organizations, commercial companies and, as appropriate, foreign governments ”.",
"(ii) Memorandum of 7 February 2002",
"31. On 7 February 2002 President Bush issued a memorandum stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraphs 204-209 below), requiring humane treatment of individuals in a conflict, did not apply to them. The text of the order read, in so far as relevant, as follows:",
"“ ...",
"2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:",
"a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.",
"...",
"c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character.",
"d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.",
"3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.",
"...",
"6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach. ”",
"32. On the same day, at the press conference, the White House Press Secretary announced the President ’ s decision. The President ’ s memorandum was subsequently widely commented in the US and international media.",
"(b) Abu Zubaydah ’ s capture and transfer to a CIA covert detention facility in March 2002",
"33. On 27 March 2002 the Pakistani authorities working with the CIA captured Abu Zubaydah, the first so-called “ high-value detainee ” ( “ HVD ” ) in Faisalabad, Pakistan. Abu Zubaydah ’ s capture accelerated the development of the HVD Programme (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 82-84).",
"34. According to the 2014 US Senate Committee Report, in late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected the option of US military custody, mostly relying on the lack of security and the fact that in such a case Abu Zubaydah would have to be declared to the International Committee of the Red Cross ( “ the ICRC ” ).",
"35. On 29 March 2002 President Bush approved moving forward with the plan to transfer Abu Zubaydah to a covert detention facility – Detention Site Green – in a country whose name was blackened in the 2014 US Senate Committee Report. The report further stated :",
"“ Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name REDACTED ] where he was held at the first CIA detention site, referred to in this summary as ‘ DETENTION SITE GREEN ’. ”",
"( c ) Setting up the CIA programme “ to detain and interrogate terrorists at sites abroad ”",
"36. On 24 August 2009 the US authorities released a report prepared by John Helgerson, the CIA Inspector General, in 2004 ( “ the 2004 CIA Report ” ). The document, dated 7 May 2004 and entitled “ Special Review Counterterrorism Detention and Interrogation Activities September 2001 ‑ October 2003 ”, with appendices A-F, had previously been classified as “ top secret ”. It was considerably redacted; overall, more than one-third of the 109-page document was blackened out.",
"37. The report, which covers the period from September 2001 to mid-October 2003, begins with a statement that in November 2002 the CIA Deputy Director for Operations ( “ the DDO ” ) informed the Office of Inspector General ( “ OIG ” ) that the Agency had established a programme in the CTC “ to detain and interrogate terrorists at sites abroad ”.",
"38. The background of the HVD Programme was explained in paragraphs 4-5 as follows:",
"“ 4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high ‑ value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al ’ Qaeda high value detainees.",
"5. [REDACTED] The conduct of detention and interrogation activities presented new challenges for CIA. These included determining where detention and interrogation facilities could be securely located and operated, and identifying and preparing qualified personnel to manage and carry out detention and interrogation activities. With the knowledge that Al ’ Qaeda personnel had been trained in the use of resistance techniques, another challenge was to identify interrogation techniques that Agency personnel could lawfully use to overcome the resistance. In this context, CTC, with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah. All of these considerations took place against the backdrop of pre-September 11, 2001 CIA avoidance of interrogations and repeated US policy statements condemning torture and advocating the humane treatment of political prisoners and detainees in the international community. ”",
"39. As further explained in the 2004 CIA Report, “ terrorist targets ” and detainees referred to therein were generally categorised as “ high value ” or “ medium value ”. This distinction was based on the quality of intelligence that they were believed likely to be able to provide about current terrorist threats against the United States. “ Medium- value detainees ” were individuals believed to have lesser direct knowledge of terrorist threats but to have information of intelligence value. “ High-value detainees ” (also called “ HVDs ” ) were given the highest priority for capture, detention and interrogation. In some CIA documents they are also referred to as “ high ‑ value targets ” ( “ HVTs ” ). The applicant fell into this category of detainees.",
"2. Enhanced Interrogation Techniques",
"(a) Description of legally sanctioned standard and enhanced interrogation techniques",
"40. According to the 2004 CIA Report, in August 2002 the US Department of Justice had provided the CIA with a legal opinion determining that 10 specific “ Enhanced Interrogation Techniques ” ( “ EITs ” ), to be applied to suspected terrorists, would not violate the prohibition of torture.",
"41. The EITs are described in paragraph 36 of the 2004 CIA Report as follows:",
"“ [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.",
"[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.",
"[3.] The facial hold is used to hold the detainee ’ s head immobile. The interrogator places an open palm on either side of the detainee ’ s face and the interrogator ’ s fingertips are kept well away from the detainee ’ s eyes.",
"[4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator ’ s hand makes contact with the area between the tip of the detainee ’ s chin and the bottom of the corresponding earlobe.",
"[5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.",
"[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.",
"[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.",
"[8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.",
"[9.] Sleep deprivation will not exceed 11 days at a time.",
"[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee ’ s head is immobilized and an interrogator places a cloth over the detainee ’ s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation. ”",
"42. Appendix F to the 2004 CIA Report (Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations of 4 September 2003) refers to “ legally sanctioned interrogation techniques ”.",
"It states, among other things, that “ captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques. ... These are designed to psychologically ‘ dislocate ’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist ... efforts to obtain critical intelligence ”.",
"The techniques included, in ascending degree of intensity:",
"( 1) Standard measures (that is, without physical or substantial psychological pressure): shaving; stripping; diapering (generally for periods not greater than 72 hours); hooding; isolation; white noise or loud music (at a decibel level that will not damage hearing); continuous light or darkness; uncomfortably cool environment; restricted diet, including reduced caloric intake (sufficient to maintain general health); shackling in upright, sitting, or horizontal position; water dousing; sleep deprivation (up to 72 hours).",
"( 2) Enhanced measures (with physical or psychological pressure beyond the above): attention grasp; facial hold; insult (facial) slap; abdominal slap; prolonged diapering; sleep deprivation (over 72 hours); stress positions: on knees body slanted forward or backward or leaning with forehead on wall; walling; cramped confinement (confinement boxes) and waterboarding.",
"43. Appendix C to the 2004 CIA Report (Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency of 1 August 2002) was prepared by Jay S. Baybee, Assistant Attorney General in connection with the application of the EITs to Abu Zubaydah, the first high-ranking al-Qaeda prisoner who was to be subjected to those interrogation methods. This document, a classified analysis of specific interrogation techniques proposed for use in the interrogation of Abu Zubaydah, was declassified in 2009.",
"It concludes that, given that “ there is no specific intent to inflict severe mental pain or suffering ... ” the application “ of these methods separately or a course of conduct ” would not violate the prohibition of torture as defined in section 2340 of title 18 of the United States Code.",
"44. The US Department of Justice Office of Professional Responsibility Report: “ Investigation into the Office of Legal Counsel ’ s Memoranda Concerning Issues Relating to the Central Agency ’ s Use of ‘ Enhanced Interrogation Techniques ’ on Suspected Terrorists ” ( “ the 2009 DOJ Report ” ) was released by the US authorities in a considerably redacted form in 2010. The report is 260 pages long but all the parts that seem to refer to locations of CIA “ black sites ” or names of interrogators are redacted. It states, among other things, as follows:",
"“ The issue how to approach interrogations reportedly came to a head after the capture of a senior al ’ Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a ‘ black site ’, a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ... ”",
"45. According to the 2009 DOJ Report, the CIA psychologists eventually proposed twelve EITs to be used in the interrogation of Mr Abu Zubaydah: attention grasp, walling, facial hold, facial or insult slap, cramped confinement, insects, wall-standing, stress positions, sleep deprivation, use of diapers, waterboarding – the name of the twelfth EIT was redacted.",
"( b ) Expanding the use of the EITs beyond Abu Zubaydah ’ s interrogations",
"46. The 2004 CIA Report states that, subsequently, the CIA Office of General Counsel ( “ OGC ” ) continued to consult with the US Department of Justice in order to expand the use of EITs beyond the interrogation of Abu Zubaydah.",
"According to the report, “ this resulted in the production of an undated and unsigned document entitled ‘ Legal principles Applicable to CIA Detention and Interrogation of Captured Al ’ Qaeda Personnel ’ ”. Certain parts of that document are rendered in the 2004 CIA Report. In particular, the report cites the following passages:",
"“ ... the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al ’ Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ...",
"The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees ’ hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board. ”",
"The report, in paragraph 44, states that according to OGC this analysis embodied the US Department of Justice ’ s agreement that the reasoning of the classified OLC opinion of 1 August 2002 extended beyond the interrogation of Abu Zubaydah and the conditions specified in that opinion.",
"47. The application of the EITs to other terrorist suspects in CIA custody, including Mr Al Nashiri, began in November 2002.",
"3. Standard procedures and treatment of “ high -value detainees ” in CIA custody (combined use of interrogation techniques)",
"48. On 30 December 2004 the CIA prepared a background paper on the CIA ’ s combined interrogation techniques ( “ the 2004 CIA Background Paper ” ), addressed to D. Levin, the US Acting Assistant Attorney General. The document, originally classified as “ top secret ” was released on 24 August 2009 in a heavily redacted version. It explains standard authorised procedures and treatment to which high-value detainees – the HVDs – in CIA custody were routinely subjected from their capture through their rendition and reception at a CIA “ black site ” to their interrogation. It “ focuses on the topic of combined use of interrogation techniques, [the purpose of which] is to persuade High-Value Detainees to provide threat information and terrorist intelligence in a timely manner ... Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic and cumulative manner to influence HVD behaviour, to overcome a detainee ’ s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence ... The interrogation process could be broken into three separate phases: Initial conditions, transition to interrogation and interrogation ” (see also El-Masri, cited above, § 124 ).",
"49. The first section of the 2004 CIA Background Paper, entitled “ Initial Capture ”, was devoted to the process of capture, rendition and reception at the “ black site ”. It states that “ regardless of their previous environment and experiences, once a HVD is turned over to CIA a predictable set of events occur ”. The capture is designated to “ contribute to the physical and psychological condition of the HVD prior to the start of interrogation ”.",
"50. The said “ predictable set of events ” following the capture started with the rendition, which was described as follows:",
"“ a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer",
"b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures. ”",
"51. The description of the next “ event ” – the reception at the “ black site ” – reads as follows:",
"“ The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include:",
"a. The HVD ’ s head and face are shaved.",
"b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival.",
"c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques.",
"d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques. ”",
"52. The second section, entitled “ Transitioning to Interrogation - The Initial Interview ”, deals with the stage before the application of EITs. It reads:",
"“ Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine – in a relatively benign environment – if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation. ”",
"53. The third section, “ Interrogation ”, which is largely redacted, describes the standard combined application of interrogation techniques defined as ( 1) “ existing detention conditions ”, ( 2) “ conditioning techniques ”, ( 3) “ corrective techniques ” and ( 4) “ coercive techniques ”.",
"( 1) The part dealing with the “ existing detention conditions ” reads:",
"“ Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD ’ s potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD. ”",
"( 2) The “ conditioning techniques ” are related as follows:",
"“ The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are",
"a. Nudity. The HVD ’ s clothes are taken and he remains nude until the interrogators provide clothes to him.",
"b. Sleep Deprivation. The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.",
"c. Dietary manipulation. The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines. ”",
"( 3) The “ corrective techniques ”, which were applied in combination with the “ conditioning techniques ”, are defined as those requiring “ physical interaction between the interrogator and detainee ” and “ used principally to correct, startle, or to achieve another enabling objective with the detainee ”. They are described as follows:",
"“ These techniques – the insult slap, abdominal slap, facial hold, and attention grasp – are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:",
"a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee ’ s response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.",
"b. Abdominal Slap. The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical,",
"c. Facial Hold. The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator ’ s control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.",
"d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical. ”",
"( 4) The “ coercive techniques ”, defined as those placing a detainee “ in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators ”, are described as follows:",
"“ These techniques – walling, water dousing, stress positions, wall standing, and cramped confinement – are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:",
"a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.",
"b. Water Dousing. The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.",
"c. Stress Positions. The frequency and duration of use of the stress positions are based on the interrogator ’ s assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.",
"d. Wall Standing. The frequency and duration of wall standing are based on the interrogator ’ s assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.",
"e. Cramped Confinement. Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques. ”",
"54. The subsequent section of the 2004 CIA Background Paper, entitled “ Interrogation – A Day-to-Day Look ” sets out a – considerably redacted – “ prototypical interrogation ” practised routinely at the CIA “ black site ”, “ with an emphasis on the application of interrogation techniques, in combination and separately ”. A detailed description of such “ prototypical interrogation ” can be found in Al Nashiri v. Poland (see Al Nashiri v. Poland, cited above, § 68).",
"55. From the end of January 2003 to September 2006 the rules for CIA interrogations were set out in the Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 ( “ the DCI Interrogation Guidelines ” ), signed by the CIA Director, George Tenet, on 28 January 2003.",
"The 2014 US Senate Committee Report states that, although the above guidelines were prepared as a reaction to the death of one of the HVDs, Gul Rahman, at Detention Site Cobalt and the use of unauthorised interrogation techniques on Mr Al Nashiri at Detention Site Blue (see Al Nashiri v. Poland, cited above, §§ 99-100 ), they did not reference all interrogation practices that had been employed at CIA detention sites. For instance, they did not address whether techniques such as the “ rough take down ”, the use of cold water showers and prolonged light deprivation were prohibited.",
"According to the 2014 US Senate Committee Report, the CIA officers had a “ significant amount of discretion ” in the application of the interrogation measures. The relevant part of the 2014 US Senate Committee Report reads:",
"“ ... [B] y requiring advance approval of ‘ standard techniques ’ whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA ’ s ‘ standard ’ interrogation techniques, when those techniques could be applied, and when it was not ‘ feasible ’ to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not ‘ feasible ’. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval. ”",
"4. Conditions of detention at CIA “ black sites ”",
"56. From the end of January 2003 to September 2006 the conditions of detention at CIA detention facilities abroad were governed by the Guidelines on Confinement Conditions for CIA Detainees ( “ the DCI Confinement Guidelines ” ), signed by George Tenet on 28 January 2003. This document, together with the DCI Interrogation Guidelines (see paragraph 55 above), set out the first formal interrogation and confinement guidelines for the HVD Programme. The 2014 US Senate Committee Report relates that, in contrast to earlier proposals of late 2001, when the CIA expected that any detention facility would have to meet US prison standards, the guidelines set forth minimal standards and required only that the facility be sufficient to meet “ basic health needs ”.",
"According to the report, that meant that even a facility comparable to the “ Detention Site Cobalt ” in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste, and without heat during the winter months, met the standard.",
"57. According to the guidelines, at least the following “ six standard conditions of confinement ” were in use during that period :",
"(i) blindfolds or hooding designed to disorient the detainee and keep him from learning his location or the layout of the detention facility;",
"(ii) removal of hair upon arrival at the detention facility such that the head and facial hair of each detainee is shaved with an electric shaver, while the detainee is shackled to a chair;",
"(iii) incommunicado, solitary confinement;",
"(iv) continuous noise up to 79dB, played at all times, and maintained in the range of 56-58 dB in detainees ’ cells and 68-72 dB in the walkways;",
"(v) continuous light such that each cell was lit by two 17-watt T-8 fluorescent tube light bulbs, which illuminated the cell to about the same brightness as an office;",
"(vi) use of leg shackles in all aspects of detainee management and movement.",
"58. The Memorandum for John A. Rizzo, Acting General Counsel at the CIA, entitled “ Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Facilities ”, dated 31 August 2006, which was released on 24 August 2009 in a heavily redacted form, referred to conditions in which high-value detainees were held as follows:",
"“ ... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ....",
"Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee ’ s ability to interact with others. ... ”",
"5. The scale of the HVD Programme",
"59. According to the 2014 US Senate Committee Report, the CIA held detainees from 2002 to 2008.",
"Early 2003 was the most active period of the programme. Of the 119 detainees identified by the Senate Intelligence Committee as held by the CIA, fifty-three were brought into custody in 2003. Of thirty-nine detainees who, as found by the Committee, were subjected to the EITs, seventeen were subjected to such methods of interrogation between January 2003 and August 2003. During that time the EITs were primarily used at the Detention Site Cobalt and the Detention Site Blue.",
"The report states that by the end of 2004 the overwhelming majority of CIA detainees – 113 of the 119 identified in the report – had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a “ final disposition ”. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one in 2007.",
"6. Closure of the HVD Programme",
"60. On 6 September 2006 President Bush delivered a speech announcing the closure of the HVD Programme. According to information disseminated publicly by the US authorities, no persons were held by the CIA as of October 2006 and the detainees concerned were transferred to the custody of the US military authorities in the US Naval Base in Guantánamo Bay.",
"61. In January 2009 President Obama signed Executive Order 13491 that prohibited the CIA from holding detainees other than on a “ short-term, transitory basis ” and limited interrogation techniques to those included in the Army Field Manual.",
"C. The United States Supreme Court ’ s judgment in Rasul v. Bush",
"62. On 28 June 2004 the US Supreme Court gave judgment in Rasul v. Bush, 542 U.S. 466 (2004). It held that foreign nationals detained in the Guantánamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The relevant part of the syllabus reads as follows:",
"“ United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay.",
"(a) The District Court has jurisdiction to hear petitioners ’ habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held in custody in violation of the ... laws ... of the United States, §§ 2241(a), (c)(3).",
"Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ... ”",
"D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations",
"63. According to various reports available in the public domain and materials collected during international inquiries concerning the CIA ’ s HDV Programme (see paragraphs 250-265, 268-277 and 355-358 below), the CIA used a network of at least twenty-six private planes for their rendition operations. The planes were leased through front companies. The CIA contracts remain classified but parts of the contracts between front companies (such as, for example, Richmor Aviation) and their contractors are publicly available",
"1. Jeppesen Dataplan Inc.",
"64. Jeppesen Dataplan. Inc. is a subsidiary of Boeing based in San Jose, California. According to the company ’ s website, it is an international flight operations service provider that coordinates everything from landing fees to hotel reservations for commercial and military clients.",
"65. In the light of reports on rendition flights (see paragraphs 2 60, 289 ‑ 293 and 31 8 below), a unit of the company Jeppesen International Trip Planning Service (JITPS) provided logistical support to the CIA for the renditions of persons suspected of terrorism.",
"66. In 2007 the American Civil Liberties Union ( “ the ACLU ” ) filed a federal lawsuit against Jeppesen Dataplan, Inc., on behalf of three extraordinary rendition victims with the District Court for the Northern District of California. Later, two other persons joined the lawsuit as plaintiffs. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.",
"In February 2008 the District Court dismissed the case on the basis of “ state secret privilege ”. In April 2009 the 9 th Circuit Court of Appeals reversed the first-instance decision and remitted the case. In September 2010, on the US Government ’ s appeal, an 11-judge panel of the 9 th Circuit Court of Appeals reversed the decision of April 2009. In May 2011 the US Supreme Court refused the ACLU ’ s request to hear the lawsuit.",
"2. Richmor Aviation",
"67. Richmor Aviation is an aircraft company based in Hudson, New York.",
"68. According to Reprieve, documents detailing Richmor Aviation ’ s involvement in CIA renditions missions were made public by it in 2011. These documents included litigation material concerning a dispute for a breach of contract between Richmor Aviation and Sportsflight, a contractor organising flights. They show that Richmor Aviation was involved in the rendition operations in particular through a Gulfstream jet under their management, N85VM, which was later redesignated as N227SV (see also paragraphs 116-121 below ). Other planes operated by Richmor Aviation were also involved in the programme.",
"Richmor Aviation became a part of this programme as early as June 2002, when the US government ’ s initial prime contractor DynCorp entered into single entity charter contract with broker Capital Aviation to supply Richmor Aviation ’ s Gulfstream jet N85VM.",
"Under that contract, Richmor Aviation was subcontracted to perform numerous missions. For instance, Hassan Mustafa Osama Nasr aka Abu Omar ’ s rendition flight from Germany to Egypt on 17 February 2003 was operated by Richmor Aviation on behalf of DynCorp ( see also Nasr and Ghali v. Italy, no. 44883/09, §§ 39, 112 and 231, 23 February 2016 ).",
"It is also reported that the CIA, acting through Computer Sciences Corporation, arranged for Richmor Aviation jet N982RK to transfer Mr El ‑ Masri from a CIA “ black site ” in Afghanistan to Albania (see El ‑ Masri, cited above, § 46 ).",
"3. Other companies",
"69. The Fava Inquiry (see paragraph 1 8 above and paragraphs 26 8-277 below) examined, among other things, the use by the CIA of private companies and charter services to carry out the rendition operations. The relevant parts of working document no. 4 produced in the course of the inquiry read as follows:",
"“ Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights.",
"Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer). These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re-registered in order to [lose ] their tracks. ...",
"Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance). In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the ‘ major domestic hub of the Central Intelligence Agency ’ s secret air service ’.",
"The system is well described by the New York Times:",
"‘ An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft. The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation. ’",
"Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar).",
"Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstream V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982).",
"There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers. It comes out that some of them are registered more than once.",
"Among the 51 airplanes alleged to be used by CIA:",
"26 planes are registered to shell companies and sometimes supported by operating companies.",
"10 are designed as ‘ CIA frequent flyers ’, they belong to Blackwater USA, an important CIA and US Army ‘ classified contractor ’. It provides staff, training and aviation logistic. In this case there is no intermediation of shell companies.",
"The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers. ”",
"70. The document listed the following operating companies involved in the rendition operations : Aero Contractors, Ltd; Tepper Aviation; Richmor Aviation; and subsidiaries of Blackwater USA.",
"Aero Contractors was the operating company for the following shell companies: Steven Express Leasing Inc., Premier Executive Transport Service, Aviation Specialties Inc.; and Devon Holding and Leasing Inc..",
"E. Military Commissions",
"1. Military Order of 13 November 2001",
"71. On 13 November 2001 President Bush issued the Military Order of November 13, 2001 on Detention, Treatment, and Trial of Certain Non ‑ Citizens in the War Against Terrorism ( “ the 2001 Military Commission Order ” ). It was published in the Federal Register on 16 November 2001.",
"The relevant parts of the order read as follows:",
"“ Sec. 2. Definition and Policy.",
"(a) The term ‘ individual subject to this order ’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:",
"(1) there is reason to believe that such individual, at the relevant times,",
"(i) is or was a member of the organization known as al Qaeda;",
"(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or",
"(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and",
"(2) it is in the interest of the United States that such individual be subject to this order.",
"(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.",
"(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. ...",
"Sec. 3 Detention Authority of the Secretary of Defense. Any individual subject to this order shall be –",
"(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; ...",
"Sec.4 Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order",
"(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. ”",
"2. Military Commission Order no. 1",
"72. On 21 March 2002 D. Rumsfeld, the US Secretary of Defense at the relevant time, issued the Military Commission Order No. 1 (effective immediately) on Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism ( “ the 2002 Military Commission Order ” ). The order was promulgated on the same day.",
"The relevant parts of the order read as follows:",
"“ 2. ESTABLISHMENT OF MILITARY COMMISSIONS",
"In accordance with the President ’ s Military Order, the Secretary of Defense or a designee (Appointing Authority ’ ) may issue orders from time to time appointing one or more military commissions to try individuals subject to the President ’ s Military Order and appointing any other personnel necessary to facilitate such trials.",
"4. COMMISSION PERSONNEL",
"A. Members",
"(1) Appointment",
"The Appointing Authority shall appoint the members and the alternate member or members of each Commission. ...",
"(2) Number of Members",
"Each Commission shall consist of at least three but no more than seven members, the number being determined by the Appointing Authority. ...",
"(3) Qualifications",
"Each member and alternate member shall be a commissioned officer of the United States armed forces ( ‘ Military Officer ’ ), including without limitation reserve personnel on active duty, National Guard personnel on active duty in Federal service, and retired personnel recalled to active duty. ...",
"6. CONDUCT OF THE TRIAL",
"...",
"B. Duties of the Commission during Trial",
"The Commission shall:",
"(1) Provide a full and fair trial.",
"(2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence, and preventing any unnecessary interference or delay.",
"(3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President ’ s Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer ’ s own initiative or based upon a presentation, including an ex parte, in camera presentation by either the Prosecution or the Defense. A decision to close a proceeding or portion thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or any other person, but Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. Except with the prior authorization of the Presiding Officer and subject to Section 9, Defense Counsel may not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof. Open proceedings may include, at the discretion of the Appointing Authority, attendance by the public and accredited press, and public release of transcripts at the appropriate time. Proceedings should be open to the maximum extent practicable. Photography, video, or audio broadcasting, or recording of or at Commission proceedings shall be prohibited, except photography, video, and audio recording by the Commission pursuant to the direction of the Presiding Officer as necessary for preservation of the record of trial.",
"...",
"D. Evidence",
"(1) Admissibility",
"Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other member of the Commission so requests at the time the Presiding Officer renders that opinion, the opinion of the Commission rendered at that time by a majority of the Commission), the evidence would have probative value to a reasonable person.",
"(5) Protection of Information",
"(a) Protective Order",
"The Presiding Officer may issue protective orders as necessary to carry out the Military Order and this Order, including to safeguard ‘ Protected Information ’, which includes:",
"(i) information classified or classifiable pursuant to reference (d);",
"(ii) information protected by law or rule from unauthorized disclosure;",
"(iii) information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses;",
"(iv) information concerning intelligence and law enforcement sources, methods, or activities; or (v) information concerning other national security interests. As soon as practicable, counsel for either side will notify the Presiding Officer of any intent to offer evidence involving Protected Information.",
"(b) Limited Disclosure",
"The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as necessary to protect the interests of the United States and consistent with Section 9, direct",
"(i) the deletion of specified items of Protected Information from documents to be made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel;",
"(ii) the substitution of a portion or summary of the information for such Protected Information; or",
"(iii) the substitution of a statement of the relevant facts that the Protected Information would tend to prove.",
"The Prosecution ’ s motion and any materials submitted in support thereof or in response thereto shall, upon request of the Prosecution, be considered by the Presiding Officer ex parte, in camera, but no Protected Information shall be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel.",
"...",
"G. Sentence",
"Upon conviction of an Accused, the Commission shall impose a sentence that is appropriate to the offense or offenses for which there was a finding of Guilty, which sentence may include death, imprisonment for life or for any lesser term, payment of a fine or restitution, or such other lawful punishment or condition of punishment as the Commission shall determine to be proper.",
"Only a Commission of seven members may sentence an Accused to death. A Commission may (subject to rights of third parties) order confiscation of any property of a convicted Accused, deprive that Accused of any stolen property, or order the delivery of such property to the United States for disposition.",
"H. Post-Trial Procedures",
"...",
"(2) Finality of Findings and Sentence",
"A Commission finding as to a charge and any sentence of a Commission becomes final when the President or, if designated by the President, the Secretary of Defense makes a final decision thereon pursuant to Section 4(c)(8) of the President ’ s Military Order and in accordance with Section 6(H)(6) of this Order. An authenticated finding of Not Guilty as to a charge shall not be changed to a finding of Guilty. Any sentence made final by action of the President or the Secretary of Defense shall be carried out promptly. Adjudged confinement shall begin immediately following the trial.",
"...",
"(4) Review Panel",
"The Secretary of Defense shall designate a Review Panel consisting of three Military Officers, which may include civilians commissioned pursuant to reference (e). At least one member of each Review Panel shall have experience as a judge. The Review Panel shall review the record of trial and, in its discretion, any written submissions from the Prosecution and the Defense and shall deliberate in closed conference. The Review Panel shall disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission. Within thirty days after receipt of the record of trial, the Review Panel shall either",
"(a) forward the case to the Secretary of Defense with a recommendation as to disposition, or",
"(b) return the case to the Appointing Authority for further proceedings, provided that a majority of the Review Panel has formed a definite and frim conviction that a material error of law occurred.",
"(5) Review by the Secretary of Defense",
"The Secretary of Defense shall review the record of trial and the recommendation of the Review Panel and either return the case for further proceedings or, unless making the final decision pursuant to a Presidential designation under Section 4(c)(8) of the President ’ s Military Order, forward it to the President with a recommendation as to disposition.",
"(6) Final Decision",
"After review by the Secretary of Defense, the record of trial and all recommendations will be forwarded to the President for review and final decision (unless the President has designated the Secretary of Defense to perform this function). If the President has so designated the Secretary of Defense, the Secretary may approve or disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof. If the Secretary of Defense is authorized to render the final decision, the review of the Secretary of Defense under Section 6(H)(5) shall constitute the final decision. ”",
"3. The 2006 Military Commissions Act and the 2009 Military Commissions Act",
"73. On 29 June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635 (2006), that the military commission “ lack [ ed ] the power to proceed because its structure and procedures violate[d] both the UCMJ [Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949 ”. It further held:",
"“ (a) The commission ’ s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to ‘ close ’. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “ other national security interests. ” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer ’ s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan ’ s commission permit the admission of any evidence that, in the presiding officer ’ s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other ‘ protected information ’, so long as the presiding officer concludes that the evidence is ‘ probative ’ and that its admission without the accused ’ s knowledge would not result in the denial of a full and fair trial. ”",
"74. In consequence, the Military Commission Order was replaced by the Military Commissions Act of 2006 ( “ the 2006 MCA ” ), an Act of Congress, passed by the US Senate and US House of Representatives, respectively, on 28 and 29 September 2006 and signed into law by President Bush on 17 October 2006.",
"On 28 October 2009 President Obama signed into law the Military Commissions Act of 2009 ( “ the 2009 MCA ” ).",
"On 27 April 2010 the Department of Defense released new rules governing the military commission proceedings.",
"The rules include some improvements of the procedure but they still continue, as did the rules applicable in 2001-2009, to permit the introduction of coerced statements under certain circumstances if “ use of such evidence would otherwise be consistent with the interests of justice ”.",
"4. Publicly expressed concerns regarding the procedure before the military commission",
"75. On 28 November 2001 the Human Rights Watch published “ Fact Sheet: Past U.S. Criticism of Military Tribunals ”, which, in so far as relevant, read as follows:",
"“ Under President Bush ’ s November 13th Military Order on military commissions, any foreign national designated by the President as a suspected terrorist or as aiding terrorists could potentially be detained, tried, convicted and even executed without a public trial, without adequate access to counsel, without the presumption of innocence or even proof of guilt beyond reasonable doubt, and without the right to appeal.",
"The U.S. State Department has repeatedly criticized the use of military tribunals to try civilians and other similar limitations on due process around the world. Indeed, its annual Country Reports on Human Rights Practices evaluate each country on the extent to which it guarantees the right to a ‘ fair public trial ’ – which it defines to include many of the due process rights omitted by the President ’ s Military Order. The Order may make future U.S. efforts to promote such standards appear hypocritical. Indeed, even if its most egregious failings are corrected in subsequent regulations, the text of the Order may become a model for governments seeking a legal cloak for political repression. ”",
"76. On 8 December 2001 New York Times published two reports relating to the procedure before the military commissions – “ United Nations: Rights Official Criticizes U.S. Tribunal Plan ” in its World Briefing and an article “ Nation challenged ”.",
"The material in the World Briefing read:",
"“ The United Nations human rights commissioner, Mary Robinson, criticized the Bush administration plan to set up military tribunals for terrorist suspects, saying they skirt democratic guarantees. These safeguards, including right to a fair trial, must be upheld even in crises, she said, adding that it was not enough to say trust me as a government. She said that the Sept. 11 terrorist attacks were crimes against humanity meriting special measures but said that the plan for secret trials was so overly broad and vaguely worded that it threatened fundamental rights. ”",
"The article read, in so far as relevant, as follows:",
"“ More than 300 law professors from around the country are protesting President Bush ’ s order to establish military tribunals for foreign terrorist suspects.",
"In a letter that originated at Yale Law School, the lawyers assert that such tribunals are ‘ legally deficient, unnecessary and unwise ’.",
"The lawyers, who represent varying institutions and political philosophies, say the tribunals as outlined so far would violate the separation of powers, would not comport with constitutional standards of due process and would allow the president to violate binding treaties.",
"The tribunals, they say, assume that procedures used in civil courts or military courts-martial would be inadequate to handle such cases. And they say that using them would undercut the ability of the United States to protest when such tribunals are used against American citizens in other countries.",
"The letter was sent to Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee and who questioned Attorney General John Ashcroft at length on Thursday about the tribunals.",
"Mr. Ashcroft defended them, saying they would be used only for war crimes. Referring to the Sept 11 terrorist attacks, Mr. Ashcroft said, ‘ When we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV? ’ ... ”",
"77. On 22 March 2003 Amnesty International issued a public statement “ USA – Military commissions: Second-class justice ” which, in so far as relevant, read as follows:",
"“ The operating guidelines for trials by executive military commission, issued by the US Secretary of Defence yesterday, have thrown into stark relief the fundamental defects of the Military Order signed by President Bush on 13 November 2001, Amnesty International said today.",
"‘ We have said from the start that the Military Order was too flawed to fix and should be revoked ’, Amnesty International said. ‘ That the Pentagon has paid lip service to due process in its commission guidelines cannot disguise the fact that any trial before these executive bodies would violate the USA ’ s international obligations ’.",
"Amnesty International is repeating its call for the Military Order to be rescinded, and for no person to be tried before the military commissions. The fundamental flaws include:",
"! The Military Order is discriminatory. US nationals will not be tried by military commission, even if accused of the same offence as a foreign national, but rather tried by ordinary civilian courts with a broad range of fair trial protections. Under the Order, selected foreign nationals will receive second-class justice, in violation of international law which prohibits discriminatory treatment, including on the basis of nationality.",
"! The commissions would allow a lower standard of evidence than is admissible in the ordinary courts, including hearsay evidence. The Pentagon guidelines do not expressly exclude statements extracted under torture or other coercive methods. These deficiencies are particularly troubling given the lack of due safeguards during interrogation and the fact that the commissions will have the power to hand down death sentences.",
"! In violation of international law, there will be no right of appeal to an independent and impartial court established by law. Instead, there would be a review by a three-member panel appointed by the Secretary of Defence.",
"! The military commissions would entirely lack independence from the executive. The President has given himself or the Secretary of Defence the power to name who will be tried by the commissions, to appoint or to remove the members of those commissions, to pick the panel that will review convictions and sentences, and to make the final decision in any case.",
"...",
"The procedures infringe the right to a fair trial in a number of other ways, including failing to guarantee that civilian defence counsel will be able to see all the evidence against their clients, permitting the use of secret evidence and anonymous witnesses, failing to guarantee that all relevant documents will be translated for the accused, and forcing the accused to accept US military lawyers as co-counsel against their wishes.",
"Moreover, Pentagon officials yesterday stated that even if acquitted by the military commissions, the defendants may remain in detention indefinitely. Amnesty International is concerned that the Military Order of 13 November allows for indefinite detention without trial. The USA is currently holding without charge or trial more than 500 people in Afghanistan and Guantánamo Bay.",
"They have been denied access to the courts or to legal counsel. This is despite the fact that interrogations at Camp X-Ray have been continuing for two months. ... ”",
"F. Review of the CIA ’ s activities involved in the HVD Programme in 2001-2009 by the US Senate",
"1. Course of the review",
"78. In March 2009 the US Senate Intelligence Committee initiated a review of the CIA ’ s activities involved in the HVD Programme, in particular the secret detention at foreign “ black sites ” and the use of the EITs.",
"That review originated in an investigation that had begun in 2007 and concerned the CIA ’ s destruction of videotapes documenting interrogations of Abu Zubaydah and Al Nashiri. The destruction was carried out in November 2005.",
"79. The Committee ’ s “ Study of the Central Intelligence Agency ’ s Detention and Interrogation ” was finished towards the end of 2012. The document describes the CIA ’ s HVD Programme between September 2001 and January 2009. It examined operations at overseas CIA clandestine detention facilities, the use of the EITs and conditions of 119 known individuals detained by CIA during that period (see also paragraphs 22-24 above).",
"The US Senate Committee on Intelligence, together with their staff reviewed thousands of CIA cables describing the interrogations of Abu Zubaydah and Al Nashiri and more that than six million pages of CIA material, including operational cables, intelligence reports, internal memoranda and emails, briefing materials, interview transcripts, contracts and other records.",
"80. On 3 April 2014 the Intelligence Committee decided to declassify the report ’ s executive summary and twenty findings and conclusions. In this connection, Senator Dianne Feinstein issued a statement which read, in so far as relevant, as follows:",
"“ The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority ’ s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.",
"The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ...",
"The report also points to major problems with CIA ’ s management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ...",
"The full 6,200 page full report has been updated and will be held for declassification at a later time. ”",
"The executive summary with findings and conclusions was released on 14 December 2014 (see also paragraph 22 above).",
"81. The passages of the 2014 US Senate Committee Report relating to Mr Al Nashiri ’ s secret detention relevant for the present case are rendered below (see paragraphs 99, 109, 114, 12 6-127, 133, 139 -1 40 and 160-164 below).",
"2. Findings and conclusions",
"82. The Committee made twenty findings and conclusions. They can be summarised, in so far as relevant, as follows.",
"83. Conclusion 2 states that “ the CIA ’ s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness ”.",
"84. Conclusion 3 states that “ [t]he interrogations of the CIA were brutal and far worse than the CIA represented to policymakers and others ”. In that regard, it is added :",
"“ Beginning with the CIA ’ s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘ wallings ’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an ‘ an open, nonthreatening approach ’, or that interrogations began with the ‘ least coercive technique possible ’ and escalated to more coercive techniques only as necessary. ”",
"85. Conclusion 4 states that “ the conditions of confinement for CIA detainees were harsher than the CIA had represented to the policymakers and others ” and that “ conditions at CIA detention sites were poor, and were especially bleak early in the programme ”. As regards conditions at later stages, the following findings were made:",
"“ Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel.",
"Throughout the program, multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.",
"Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems. ”",
"86. Conclusion 8 states that “ the CIA operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch Agencies ”, including the Federal Bureau of Investigation ( “ the FBI ” ), the State Department and the Office of the Director of National Intelligence ( “ the ODNI ” ). In particular, the CIA withheld or restricted information relevant to these agencies ’ missions and responsibilities, denied access to detainees, and provided inaccurate information on the HVD Programme to them.",
"87. The findings under Conclusion 8 also state that, while the US authorities ’ access to information about “ black sites ” was restricted or blocked, the local authorities in countries hosting CIA secret detention facilities were generally informed of their existence. In that respect, it is stated:",
"“ The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served.",
"In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors. ”",
"88. Conclusion 11 states that “ the CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities ”. The CIA was not prepared to take custody of its first detainee, Abu Zubaydah and lacked a plan for the eventual disposition of its detainees. After taking custody of Abu Zubaydah, CIA officers concluded that he “ should remain incommunicado for the remainder of his life ”, which “ may preclude from [his] being turned over to another country ”. Also, as interrogations started, the CIA deployed persons who lacked relevant training and experience.",
"89. According to Conclusion 13, “ two contract psychologists devised the CIA enhanced interrogation techniques and played a central role in the operation, assessment and management of the [programme] ”. It was confirmed that “ neither psychologist had any experience as an interrogator. Nor did either have specialised knowledge of Al-Qa ’ ida, a background in counter-terrorism, or any relevant or cultural or linguistic expertise ”.",
"The contract psychologists developed theories of interrogation based on “ learned helplessness ” and developed the list of EITs approved for use against Abu Zubaydah and other detainees.",
"90. Conclusion 14 states that “ CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorised by the CIA Headquarters ”.",
"It was confirmed that prior to mid-2004 the CIA routinely subjected detainees to nudity and dietary manipulation. The CIA also used abdominal slaps and cold water dousing on several detainees during that period. None of these techniques had been approved by the Department of Justice. At least seventeen detainees were subjected to the EITs without authorisation from CIA Headquarters.",
"91. Conclusion 15 states that “ the CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention ”. It was established that the CIA had never conducted a comprehensive audit or developed a complete and accurate list of the persons it had detained or subjected to the EITs. The CIA statements to the Committee and later to the public that the CIA detained fewer than 100 individuals, and that less than a third of those 100 detainees were subjected to the CIA ’ s EITs, were inaccurate. The Committee ’ s review of CIA records determined that the CIA detained at least 119 individuals, of whom at least thirty-nine were subjected to the CIA ’ s enhanced interrogation techniques. Of the 119 known detainees, at least 26 were wrongfully held and did not meet the detention standard in the MON (see paragraph 25 above).",
"92. Conclusion 19 states that “ the CIA ’ s Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns ”.",
"93. It was established that the CIA required secrecy and cooperation from other nations in order to operate clandestine detention facilities.",
"According the 2014 US Senate Committee Report, both had eroded significantly before President Bush publicly disclosed the programme on 6 September 2006 (see also paragraph 60 above). From the beginning of the program, the CIA faced significant challenges in finding nations willing to host CIA clandestine detention sites. These challenges became increasingly difficult over time. With the exception of one country ( name blackened) the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the programme.",
"Moreover, lack of access to adequate medical care for detainees in countries hosting the CIA ’ s detention facilities caused recurring problems. The refusal of one host country to admit a severely ill detainee into a local hospital due to security concerns contributed to the closing of the CIA ’ s detention facility in that country.",
"94. In early 2004, the anticipation of the US Supreme Court ’ s decision to grant certiorari in the case of Rasul v. Bush (see also paragraph 6 2 above) prompted the CIA to move detainees out of a CIA detention facility at Guantánamo Bay, Cuba.",
"In mid-2004, the CIA temporarily suspended the use of the EITs after the CIA Inspector General recommended that the CIA seek an updated legal opinion from the Office of Legal Counsel.",
"In late 2005 and in 2006, the Detainee Treatment Act and then the U.S. Supreme Court decision in Hamdan v. Rumsfeld (see also paragraph 73 above) caused the CIA to again temporarily suspend the use of the EITs.",
"95. According to the report, by 2006, press disclosures, the unwillingness of other countries to host existing or new detention sites, and legal and oversight concerns had largely ended the CIA ’ s ability to operate clandestine detention facilities.",
"After detaining at least 113 individuals through 2004, subsequently the CIA brought only six additional detainees into its custody: four in 2005, one in 2006, and one in 2007.",
"By March 2006, the programme was operating in only one country. The CIA last used its EITs on 8 November 2007. The CIA did not hold any detainees after April 2008.",
"96. Conclusion 20 states that “ the CIA ’ s Detention and Interrogation Program damaged the United States ’ standing in the world, and resulted in other significant monetary and non-monetary costs ”.",
"It was confirmed that, as the CIA records indicated, the HVD Programme costed well over USD 300 million in non-personnel costs. This included funding for the CIA to construct and maintain detention facilities, including two facilities costing nearly [number redacted ] million that were never used, in part due to the host country ’ s political concerns.",
"97. Conclusion 20 further states that “ to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials. The CIA Headquarters encouraged CIA Stations to construct ‘ wish lists ’ of proposed financial assistance to [phrase redacted ] [entities of foreign governments] and to ‘ think big ’ in terms of that assistance ”.",
"IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. The applicant ’ s capture, transfer to the CIA ’ s custody, his secret detention and transfers from mid - October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report",
"98. As regards the events preceding the applicant ’ s secret detention in Poland, i.e. his capture in Dubai, United Arab Emirates, and initial detention from the end of October 2002 to 4 December 2002, in Al Nashiri v. Poland (§§ 401 and 404) the Court held as follows :",
"“ 401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as ‘ High-Value Detainees ’, in its custody and that they were interrogated at a CIA black site with the use of the EITs – the applicant immediately after his arrival at that place on 15 November 2002 ....",
"...",
"404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture, was detained in the CIA detention facility in Bangkok from 15 November 2002 to 4 December 2002, that Mr Abu Zubaydah was also held in the same facility at that time and that they were both moved together to ‘ another CIA black site ’ on 4 December 2002 (see Husayn (Abu Zubaydah), cited above, § 404). ”",
"The experts, Mr J.G.S and Senator Marty, heard by the Court at the fact-finding hearing in Al Nashiri v. Poland, identified the detention facility as the one known under the codename “ Cat ’ s Eye ” or “ Catseye ” and located in Bangkok, Thailand ( see Al Nashiri v. Poland, cited above, § 403).",
"At “ Cat ’ s Eye ” the CIA subjected the applicant to the EITs, including waterboarding from 15 November to 4 December 2002 (ibid. § § 86-88).",
"99. As regards the early period of the applicant ’ s detention, the 2014 US Senate Committee Report includes the following information. It indicates the date of the applicant ’ s capture as “ mid-October 2002 ”. According to the report, at that time “ he provided information while in custody of a foreign government ”. On an unspecified date – i.e. redacted in the 2014 US Senate Committee Report – in November 2002 he was rendered by the CIA to a secret detention site code-named “ Detention Site Cobalt ”. In Al Nashiri v. Poland that site is referred to as being code-named “ Salt Pit ” and located in Afghanistan (see Al Nashiri v. Poland, cited above, §§ 83-84). The report states that he was held at that site briefly, for a number of days (redacted in the report), before being transferred to another detention site, identified in Al Nashiri v. Poland as “ Cat ’ s Eye ” in Thailand (see paragraph 9 7 above). In the 2014 US Senate Committee Report that facility is referred to as “ Detention Site Green ”. The report further states that:",
"“ In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE. ”",
"100. As regards the events after 4 December 2002, in Al Nashiri v. Poland (§ 417) the Court held:",
"“ 417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:",
"(1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;",
"(2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘ Quartz ’ and located in Stare Kiejkuty;",
"(3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;",
"4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P. ”",
"101. The events that took place between 5 December 2002 and 6 June 2003 at the CIA detention facility identified in Al Nashiri v. Poland as being code-named “ Quartz ” and located in Poland, including the use of unauthorised interrogation techniques against the applicant, correspond to the events that the 2014 US Senate Committee Report relates as occurring at “ Detention Site Blue ”.",
"B. The applicant ’ s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"102. The 2014 US Senate Committee Report has established that “ beginning in June 2003, the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006 ”.",
"103. On the basis of their investigations, research and various material in the public domain the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant ’ s transfers and identified countries of his secret detention.",
"104. Mr J.G.S. stated that the applicant was transported from Poland first to Morocco, second to Guantánamo Bay, third to Romania, then to the fourth site – which, according to him, was with a high degree of probability Lithuania – before being transferred to Afghanistan, the fifth “ black site ” and, finally back to Guantánamo Bay.",
"In particular, Mr J.G.S. testified as follows:",
"“ ... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate Report that from June 2003 Al Nashiri was moved to five different detention facilities before his ultimate transfer to Guantánamo Bay in September 2006. This provides us with a precise timeframe, June 2003 to September 2006, and it provides us with a precise number of transfers which we then have to correlate with his interrogation schedule and the available flight data to determine where he was held. It is on that basis that we have been able to arrive at the conclusion that he was transported from Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania, to one further site, and with a high degree of probability, Lithuania, before being transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are very limited possibilities as to where the CIA could take its detainees because it always maintained a very small range of sites, and because the planes are the same, they operate upon systematic methodologies, notably dummy flight planning, switching of aircraft and all the other tactical elements described. One can narrow down that probability to a certitude, with the right rigour of investigation, and it is that which we have applied to arrive at these conclusions, which have subsequently been validated in the official record. ”",
"105. In the light of the material in the Court ’ s possession the chronology of the applicant ’ s detention can be described as follows.",
"1. Transfer from Poland to Morocco and detention in Morocco (from 6 June to 23 September 2003)",
"106. In Al Nashiri v. Poland the Court established, inter alia, that in the light of the accumulated evidence, “ there [could] be no doubt that the N379P, also known as “ Guantánamo Express ”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco ” (see Al Nashiri v. Poland, cited above, § 408).",
"It was also established that it had been one of the most notorious rendition aircraft used by the CIA for transportation of its prisoners. The plane N379P set off from Dulles Airport, Washington D.C. on Tuesday 3 June at 23:33 GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries including Germany, Uzbekistan, Afghanistan, Poland, Morocco and Portugal. The aircraft returned from Portugal back to Dulles Airport on 7 June 2003 ( ibid. §§ 103-106 and 291-292).",
"107. Mr J.G.S. at the fact-finding hearing testified as follows:",
"“ As was established in the earlier proceedings, Al Nashiri was taken from Poland to Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003. And after detention there for a period of only 3 months, he was then transferred to the CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report provides extensive detail on the evolution of CIA operations in respect of Morocco and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as having been transferred out of a country which is identifiable as Morocco, to the CIA detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the original agreed timeframe. This passage resides within a section of the report which describes difficult and sometimes acrimonious relations between the CIA and its Moroccan counterparts, and it is evident that, in fact, the date, redacted in this passage, is September 2003, which is precisely the time at which our flight information demonstrates an aircraft arriving in Morocco and transporting detainees onwards to Guantánamo Bay. ”",
"108. According to Mr J.G.S., the plane N379P took the applicant, together with another CIA detainee, Ramzi bin al-Shibh, from Szymany, Poland to Rabat, Morocco, to a facility lent to the CIA by their Moroccan counterparts. He testified as follows:",
"“ The starting point in assessing Al Nashiri ’ s own chronology of secret detention in these proceedings should be Poland, because we have it confirmed, as a matter of judicial fact, that Al Nashiri was detained in Poland, having been transported there on the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he found himself in Poland at the end of 2002, during which he was subjected to all the documented abuse, the enhanced interrogation techniques and the unauthorised techniques described in the earlier proceedings, into the calendar year 2003. In the earlier proceedings we presented a range of flights which brought detainees into Poland.",
"However, the first flight which took detainees out of Poland occurred on 5 and 6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we can see this outward flight from Poland as the starting point of Mr Nashiri ’ s next chronology of detention. It is stated explicitly June 20 03, from that point onwards, Mr Nashiri was detained in five further sites before ultimately being transferred to Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together with another CIA detainee, Ramzi bin al -Shibh, to Rabat, Morocco. Rabat, Morocco, at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts. It was a facility which resided within the Moroccan system, and it is described in explicit detail in the Senate Report. That facility was the same place to which some persons from Guantánamo would be later taken back, but I will explain why Mr Nashiri was not one of those, with reference to the same material. In 2003, according to the report, it was allowed to operate until September, at which point relations became acrimonious and certain conditions were placed upon it. The CIA collected its detainees who were housed there, which included Mr Al Nashiri, on 23 September 2003 in the rendition circuit I demonstrated. That is the date confirmed from the CIA ’ s own reporting, and the flight confirmed through our investigations, the rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to Morocco as number 1, Guantánamo as number 2. ”",
"109. The 2014 US Senate Committee Report ’ s section entitled “ Country [name redacted ] Detains Individuals on the CIA ’ s Behalf ”, in so far as relevant, reads as follows:",
"“ Consideration of a detention facility in Country [name blackened] began in [month blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [blackened] which had not yet informed the country ’ political leadership of the CIA ’ s request to establish a clandestine detention facility in Country [blackened], surveyed potential sites for the facility, while the CIA set aside [USD] [number blackened] million for its construction.",
"In 2003, the CIA arranged for a ‘ temporary patch ’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [blackened] detention facility, until the CIA ’ s own facility could be built.",
"...",
"By [day/month blackened] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country [blackened]| to the CIA detention facility at Guantánamo Bay, Cuba. ”",
"2. Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004)",
"110. According to Mr J.G.S, on 23 September 2003 the applicant was transported from Rabat to Guantánamo Bay on the plane N313P.",
"Mr J.G.S., in the course of the above mentioned PowerPoint presentation at the fact-finding hearing (see paragraphs 18 above and 36 7-376 below ), gave the following details concerning N313P ’ s circuit of 20-24 September 2003:",
"“ Having departed from Washington, this aircraft, ... N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul.",
"From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. ...",
"From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay. ”",
"111. As established in Husayn (Abu Zubaydah) v. Poland, the plane N313P landed in Szymany, Poland on 22 September 2003 en route from Kabul, Afghanistan. On that day Mr Abu Zubaydah was transferred by the CIA from Poland on board that plane.",
"The plane set off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries, as well as the U.S. Naval Base at Guantánamo Bay.",
"These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania, and Morocco. The aircraft flew from Rabat, Morocco to Guantánamo Bay on the night of 23 September 2003, landing there in the morning of 24 September 2003.",
"112. In Husayn (Abu Zubaydah) v. Poland (see § 312) Mr J.G.S. gave the following account of the “ final rendition circuit ” through Poland executed by the N313P plane, a Boeing 737, on 22 September 2003:",
"“ One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end.",
"In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA ’ s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world. ”",
"113. The Romanian Civil Aeronautical Authority ( Autoritatea Aeronautică Civilă Română – “ RCAA ” ), in its letter of 29 July 2009 ( “ RCAA letter ” ) stated that N313P ’ s itinerary was: Szczytno Airport (which is located in Szymany, Poland ) – Constanţa Airport but the airport in Romania at which it landed was Băneasa Airport in Bucharest (see also paragraph 324 below).",
"114. The 2014 US Senate Committee Report, in the section entitled “ US Supreme Court Action in the case of Rasul v. Bush Forces transfer of CIA detainees from Guantánamo to Bay to Country [name blackened] ” (see also paragraph 61 above ), states:",
"“ Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [ REDACTED ] in Country [ REDACTED ] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [ REDACTED ] facility. By January [day REDACTED ] 2004, the [ REDACTED ] in Country [ REDACTED ] had agreed to this arrangement for a limited period of time.",
"Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court ’ s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court ’ s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [ redacted two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities. ”",
"C. The applicant ’ s alleged secret detention at a CIA “ black site ” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"1. The applicant ’ s initial submissions",
"115. In his application lodged on 1 June 2012 the applicant submitted that sometime between 6 June 2003 and 6 September 2006 Romania had hosted a secret CIA prison, codenamed “ Bright Light ” and located in Bucharest. The applicant ’ s rendition and secret detention were related as follows:",
"“ Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 20 02. By November 2002, he had been secretly transferred to the custody of the CIA. He was held in various secret locations before being detained in Romania. US agents first took him to a secret CIA prison in Afghanistan known as the ‘ Salt Pit ’. In Afghanistan, interrogators subjected him to ‘ prolonged stress standing positions ’, during which his wrists were ‘ shackled to a bar or hook in the ceiling above the head ’ for ‘ at least two days ’. US agents then took him to another secret CIA prison in Thailand, where he remained until 5 December 2002. According to a United Nations Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al Nashiri from Poland. ...",
"After his transfer out of Poland, between 6 June 2003 and 6 September 2006 Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA prison in Bucharest, Romania. He was transferred to Guantánamo Bay by 6 September 2006. ”",
"As for the possible date of his rendition to Romania during the period between 6 June 2003 and 6 September 2006 the applicant mentioned 22 September 2003, i.e. the date on which the aircraft N313P executed its “ final rendition circuit ” through Poland, via Romania and Morocco (see paragraph 1 15 above). In that regard, he referred to the 2007 Marty Report (see also paragraphs 257 -26 5 below), which had identified N313P as a “ rendition plane ” and which, according to the flight plans of 22 September 2003 and the Romanian officials, had had as its destination Constanţa and Bucharest.",
"116. In further observations filed by the applicant ’ s representatives on 26 April 20 1 3, it was stated that he had been transferred to a CIA “ black site ” in Romania on the plane N85VM from Guantánamo Bay to Bucharest on 12 April 2004. It was explained that that fact had emerged from a dossier submitted by Mr Hammarberg, the former Council of Europe ’ s Commissioner for Human Rights, to the Prosecutor General of Romania (see also paragraphs 334-336 below). The dossier and new information about the applicant ’ s transfers in CIA custody had not been publicly available earlier.",
"2. The applicant ’ s alleged rendition to Romania on the plane N85VM on 12 April 2004",
"117. The above-mentioned dossier produced by Mr Hammarberg states that on 12 April 2004 the applicant was transferred to the CIA “ black site ” in Romania on the N85VM flight from Guantánamo Bay to Bucharest. It further states that N85VM landed at 21h47m GMT on the night of 12 April 2004 and was assessed to have been bringing in CIA detainee(s) from the US Naval Base, Guantánamo Bay via a technical stopover in Tenerife, with a false – “ dummy ” – flight plan filed featuring Constanţa instead of its real destination, which was Bucharest (see paragraphs 33 4-336 below).",
"118. The Romanian Government submitted a set of six documents originating from the Romanian Airport Services ( “ RAS ” ) at Băneasa – Bucharest City Airport, described as “ annex no. 8 ” to the 200 7 Romanian Senate Report ( see also paragraph 164 below), which were examined in the course of the Parliamentary inquiry in Romania. They initially asked that that the annex be treated as confidential. At the fact-finding hearing, the Government submitted that they no longer wished the Court to maintain its confidentiality (see paragraph 12 above).",
"The first document, invoice no. 386 dated 13 April 2004, was issued by the handling agent of the RAS for Richmor Aviation and indicated an amount charged of 1,255.00 euros (EUR) due for ground services (basic handling, landing fee, lighting fee and navigation services) relating to the N85 VM landing.",
"The second document, ground handling note no. 0036904 dated 12 April 2004 indicated the same amount.",
"The third document was a copy of an Air Routing card issued for Richmor Aviation.",
"The fourth document, air navigation services sheet no. 906 dated 12 April 2004 included navigation services charges. It indicated that N85VM landed at Băneasa Airport at 21h50m on 12 April 2004 and departed at 22h45m on the same day.",
"The fifth document was a partly illegible table containing landing fees for several planes, including N85VM.",
"The sixth document – a control list of navigation records indicated, among other things, the N85VM landing on 12 April 2004 at 21h47m.",
"119. In the course of the PowerPoint presentation Mr J.G.S. testified as follows:",
"“ ... [T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our investigations have provided evidence that this transfer took place directly from Guantánamo Bay to the ‘ black site ’ in Bucharest, Romania. Again, the [US] Senate Committee Report, albeit using code names, coloured code names for the sites in question, describes explicitly where particular detainees were at particular times, and in this passage highlighted, in describing the closure of the Guantánamo Bay facility in the face of probable exposure due to a Supreme Court assessment of the legality of their detention, it states that ‘ by a date in April 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities ’. The use of ‘ facilities ’ here in the plural is very important, because the principal destination for those held by the CIA at Guantánamo was in fact back to the facility in Morocco from whence they had come. However, as the Senate inquiry made clear, not all of those held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April 2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa, Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of documentary evidence which I am prepared to provide to the Court, and in particular this graphic demonstrates that there were two distinct transfers out of Guantánamo. The first on 27 March 2004 carried detainees from Guantánamo back to Rabat, Morocco. The second of these, which is of our principal interest, transported one or more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania.",
"I have put together a graphic to illustrate that, once again, the CIA had recourse to its systematic practice of disguised flight planning in respect of this flight. We reached a point in our investigations, Madam President, where evidence of dummy flight planning in fact became a tell-tale sign of rendition or detainee transfer activity on such flights. So it is significant, as I will demonstrate, that this was not a simple circuit. The aircraft embarked from Washington and flew to Guantánamo Bay, whereupon the blue line demonstrates the first part of the detainee transfer from Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the aviation services provider, in this case Air Rutter International from Houston, Texas, filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa Airport, as documentation from the Romanian authorities demonstrates. It is this flight, depicted here with the blue line, that carried Al Nashiri to detention in Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is apparent premise that one or more detainees from the Romanian site, detained prior to April 2004, was at that point taken from Bucharest back to detention in Morocco, after which the aircraft returned to its base at Washington D. C.",
"We have been able to uncover this and other flights planned through the network of private contractors, thanks to a large amount of documentation filed in court proceedings in civil courts in New York State, whereupon several US aviation service providers, contracted to the CIA, ended up in a financial dispute. The case in question, Sportsflight Inc. against [ sic ] Richmor Aviation, in fact concerns the CIA ’ s chief aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a prime aviation contractor known as Sportsflight Air, previously Capital Aviation, which in turn subcontracted its government mandates to a private company called Richmor Aviation, who were the owners and operators of the aircraft N85VM.",
"I appreciate that this web of corporate relations is quite difficult to understand on its face, but over several years, myself and other investigators have carefully unpicked these relationships to provide the direct link between the tasking of the United States Government on government contracts through the CIA ’ s rendition group air branch, all the way down to the pilots, crew members and operators of the aircraft in question. It is unambiguously and categorically the case that these are rendition aircraft, operated for the sole purpose of transferring detainees between ‘ black sites ’ in the CIA ’ s RDI programme. The flight of N85VM, on the dates in question, belongs in that category. ”",
"120. As regards the circumstances surrounding the applicant ’ s transfer from Guantánamo to Romania, Mr J.G.S. testified at the fact-finding hearing as follows :",
"“ The Guantánamo site operated only for a finite period. As I mentioned, it was due to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush, which was likely to expose CIA detainees to the same reporting obligations, but also the same rights, that detainees in other forms of federal custody would enjoy, and so the CIA deliberately took action to remove its detainees from such scrutiny in advance of the Supreme Court ruling. The Senate Committee Report describes this process, based upon cables and other classified material, and states that by April 2004, the date I assert, 12 April 2004, all of those detainees who were held in Guantánamo were moved out.",
"There were two flights, as I demonstrated, which formed part of this removal process, the first on 27 March 2004, the second on 12 April 2004. But the first of those only went to Rabat, Morocco, and if you recall, the Committee described, based upon its assessment of interrogation schedules, that Mr Nashiri had been to five different sites in that 3-year timeframe, and in order for him to be in five different sites, he, at that moment, could not have gone back to Morocco, because there are not sufficient documented instances of rendition which link the territories in question, Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms Mr Nashiri ’ s tour of the sites.",
"The 12th April 2004 site was the sole outward flight linking Guantánamo to Romania. From the report, from the cables regarding Mr Nashiri ’ s treatment and physical and psychological state, we know that he found himself in Romania in the 3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made upon his state and status in those date frames. In order for him to have been in Romania at Detention Site Black or ‘ Britelite ’ by that time, he had to be brought to Romania on flight N85VM on 12 April 2004.",
"It is a process of elimination, but it is also a process of correlation, which very clearly links to documents filed by contractors, corresponds with the international aviation data that we have analysed, corresponds with the tactics of dummy flight planning and disguise, and ultimately is validated in the public record by the Senate Report. ”",
"121. Mr Black, referring to the applicant ’ s alleged rendition to Romania testified as follows:",
"“ I am aware of two possible flights that could have taken the applicant Al Nashiri into Romania, that [a flight with the tail number N8 5 VM], is one of them. There is a potential other one that occurred in February 2005. We know for a fact that he was in Romania after February 2005, we know from cables referenced in the Senate Report that he was in Romania in June 2005. There are indications that he was held in Romania before that, in late 2004, which leads me, of the two possibilities, that leads me to prefer the April 2004 flight as being the more likely of the two. In terms of my own research, I would say that there is a small ambiguity on that point, I am not prepared to say that the data I have at my fingertips conclusively demonstrates that he was taken on the April flight in 2004 rather than the February one in 2005. I think the balance of probability does lie in favour of that. However, whichever of the two it is, there is no doubt that he was in Romania by the summer of 2005. ”",
"3. Detention and treatment to which the applicant was subjected",
"122. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention.",
"123. On 15 June 2016 the US authorities disclosed to the public a second, less redacted version of the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007 (for the first, more extensively redacted version see Al Nashiri v. Poland, cited above, §§ 112-113; see also paragraphs 14 2 -14 3 below ). During that hearing the applicant described the treatment to which he had been subjected in CIA custody from his capture in November 2002 to his transfer to Guantánamo in September 2006. The relevant part of that transcript read, as follows:",
"“ From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way.",
"By hanging, head was up and legs were pointing downwards. I was hung for almost a month. You doing your things basically and you were hung upside down and drowning and hitting at the wall. There are many scars on my head if I shave my head. If I shave my hair the scars will become obvious.",
"What else do I want to say? I was without clothes. I was sleeping on the floor for about a month. Many things happened. There were doing so many things. What else did they did?",
"There a box half meter by half meter. It was two meters in height They used to put me inside the box. I was standing in that box for about a week and I couldn ’ t do anything. My feet were swollen. My nails were about fall off because, I was standing on my feet for long time. They do so many things. So so many things. What else did they did?",
"That thing lasted for about six month [s]. After that another method of torture began. They use to put something in the food that use to make the body tired. Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn ’ t reply what I heard, he used to put something in my food. And, after I ate it my body felt like, um, strange. After that he used to come back and talk to me. He told you he put anything in the food. He used to deny that but the camera was behind him. And; I would stand in front of the camera and he used to tell you that because camera was on. He could not deny anything. You have to acknowledge to what we are saying. And, I used to say acknowledge what? They used to ask even political questions. One is the solution to the American problem in Iraq. I ’ m not the American Foreign Minister to answer these questions. So they used to go and put some stuff in my food. These things happen for more than two years. That thing did not stop until here. So many things happened. I don ’ t in summary, that ’ s basically what happened.",
"Then, the President of the Combatant Status Review Tribunal says:",
"Alright. Let me ask. So then since the time of capture 2002 until you came to Guantánamo you experienced these types of events?",
"The applicant responds:",
"Yes. ”",
"124. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Romania:",
"“ I find myself somewhat more limited in my ability to describe specific forms of treatment or interrogation techniques to which Mr Nashiri was subjected in Romania than was the case in respect of Poland. And that is because of the natural evolution of the detention cycles to which CIA detainees were subjected. In pursuit of what was described as ‘ live actionable intelligence ’, the CIA developed its most stringent, harsh interrogation plans for the earliest days and weeks of a detainee ’ s period in its detention system. Usually, within one to three days of being apprehended, the chief of base at the ‘ black site ’ in question would appeal to CIA headquarters for authorisation to practise EITs, so called ‘ enhanced interrogation techniques ’. This was the case in respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case in respect of Khalid Sheikh Mohammed, this we know because of the Inspector General ’ s reports. As soon as a detainee was in custody, in Abu Zubaydah ’ s case, was fit enough to undergo interrogation, that plan would commence. We know that Al Nashiri underwent twelve days of harsh interrogation in Thailand including the waterboard, and we know that upon transfer to Poland, because he was assessed as having withheld information or not been compliant, he was then subjected to an intensive period of harsh interrogation during with multiple, unauthorised techniques were used. Those were documented in the earlier proceedings [ Al Nashiri v. Poland ]. But there arrives a juncture in a CIA detainee ’ s detention at which his intelligence value is assessed as lower, at which no further approval or authorisation is sought or granted to practise these enhanced interrogation techniques, and in Al Nashiri ’ s case we can only say that that point arrived sometime in 2003. Thereafter, it is, in my assessment and according to the documentary record, unlikely that the CIA practised further unauthorised techniques or indeed concerted programmes of enhanced interrogation on Mr Nashiri.",
"However, that is not to say that he was not subjected to abuse or indeed that the conditions of his confinement did not amount to violations of the European Convention. In respect of those two latter points, I would aver quite clearly that the treatment did amount to violations of the Convention, purely by virtue of the conditions in which he was held and because of the regular interventions made by persons at the ‘ black site ’ to gratuitously abuse, punitively or otherwise, certain detainees in their custody. I can give you analogous examples of how detainees were treated in Romania. Hassan Ghul, for example: there is a lengthy description of his having endured 59 hours of sleep deprivation, having been shaved and barbered, stripped naked, placed in standing positions with his hands above his head. There are descriptions of how, notwithstanding medical and psychological problems diagnosed by professionals at the scene, he was subjected to further interrogation to the point of enduring hallucinations. I could also cite the example of Janat Gul, a detainee for whom the CIA sought authorisation to use the waterboard in Romania, an unprecedented move, and who was subsequently subjected to an intensive period of enhanced interrogation in the same site at which Al Nashiri was held. I could also cite the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three years and more into the programme, was subjected to the same litany of abusive techniques in interrogating him as Al Nashiri and others had been subjected to in 2002 and 2003. And I could also cite, too, some memoranda produced by the CIA General Counsel ’ s office in the material period in which Al Nashiri was held in Romania, which described conditions of confinement, sensory deprivation as a matter of routine, denial of religious rights, physical and psychological oppression, sleep deprivation as a matter of course, notwithstanding whether a detainee is subject at that time, or not, to EITs.",
"So whilst I cannot give the same level of specificity as I was able to present in respect of Poland, I can aver with a high level of certainty that he endured ill-treatment whilst held in Romania because, in my view, every one of those detainees brought to Romania, held incommunicado, indefinitely, with no idea of their whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often beaten in the process, every one of those persons would have a legitimate claim under our European Convention on Human Rights for violation of their personal integrity. ”",
"125. Mr Black testified as follows:",
"“ The question of precise types of treatment is, I would not say it is my specific expertise. It is clear from the Senate Report and other sources that treatment in Romania included very extreme sleep deprivation, which apparently led some of those who suffered it to have very severe mental and physical problems, and it is clear also that the applicant, Mr Nashiri, in particular when he was in Romania, was experiencing serious, let ’ s say, psychological problems as a result of the treatment that he had received. But my, and I should say also it is clear that around that time, between 2003 and 2005, it is firmly on the record that there were a range of treatments being applied to these people, that the enhanced interrogation techniques were being applied, I think this has all been quite well documented, but it is not really my topic of expertise, I would not say. ”",
"126. Citing as a source two CIA cables of 23 May 2004, the 2014 US Senate Committee Report states that “ at one point Al Nashiri launched a short-lived hunger strike that resulted in the CIA feeding him rectally ” (see also paragraph 15 8 below).",
"Referring to an email to Detention Site Black dated 30 October 2004 on the subject “ Interrogator Assessments/Request for Endgame Views ”, the report states that “ an October 2004 psychological assessment of Al Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an “ endgame ” for the [HVD] program ”",
"127. The 2014 US Senate Committee Report further refers to the applicant ’ s detention at Detention Site Black in June and July 2005 as follows :",
"“ In the final years of al-Nashiri ’ s detention, most of the intelligence requirements for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the DETENTION SITE BLACK chief of Base suspended even these debriefings because it was ‘ the very, very rare moment ’ that al-Nashiri would recognize a photograph, and because the debriefings often were the ‘ catalyst ’ for his outbursts. ”",
"It also states, with reference to a cable of 5 July 2005, that in July 2005 CIA Headquarters expressed concern regarding Al Nashiri ’ s “ continued state of depression and uncooperative attitude ”. Days later a CIA psychologist assessed that the applicant was on the “ verge of a breakdown ” (see also paragraph 158 below).",
"4. The applicant ’ s alleged rendition from Romania on 6 October or 5 November 2005",
"128. In his initial submissions the applicant submitted that no later than 6 September 2006 the Romanian authorities had assisted the CIA in secretly transferring him from Bucharest to another CIA “ black site ”.",
"129. The experts gave two possible dates for the applicant ’ s rendition from Romania: 6 October 2005 and 5 November 2005. According to them, the latter date was the final closure of the CIA “ black site ” on Romania ’ s territory, prompted by the publication of Dana Priest ’ s article “ CIA Holds Terror Suspects in Secret Prisons ” suggesting that such prisons operated in Eastern European countries on 2 November 2005 ( see also paragraph 23 6 below).",
"130. In the course of the PowerPoint presentation Mr J.G.S. testified as follows:",
"“ In terms of [the Black Site in Romania ’ s] closure, it is stated in the [2014 US Senate Committee Report] that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ... dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the report.",
"It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in The Washington Post, which went into intimate detail of the CIA ’ s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory.",
"The question has often been posed to us, Honourable Judges, if there were detainees in Romania, how did they leave? There appeared to be no obvious direct flights out of Romania in the critical period, October, November 2005, to any other detention site we were aware of, and this was often put forward by representatives of the Romanian authorities as a reason for decrying, for rejecting, for refuting the content of our reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports].",
"We have, however, now ascertained how detainees were removed from Romania, and this occurred in two tranches in the months of October 2005 and, as stated, November 2005. I have chosen to illustrate the first of these transfers, which occurred between 5 and 6 of October 2005, because it provides a further segue into detention operations on the territory of another Council of Europe Member State, in this case Lithuania.",
"The CIA used two tactics of deceit in order to provide these flights with the maximum degree of cover, in order that they could not and would not be tracked, traced or held to account. The first of those was its conventional dummy flight planning, but the second of those was a novel tactic involving switching of aircraft. This graphic will demonstrate how this was deployed on 5 and 6 October 2005, involving two aircraft, namely N3 08 AB and N787WH. The first of those aircraft is depicted by red lines, the second by blue, on the graphic, the other symbols follow the earlier pattern of drop-off, transfer and stopover points. The two planes arrived in Europe, the first [N3 08 AB] from provenance of Teterboro, New Jersey, the second [N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which would become the staging point for these operations. The first dummy flight plan, filed by the CIA ’ s aviation services provider, stated a path for N3 08 AB from Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the ‘ black site ’ in Romania, whereupon it would collect detainees. Those detainees referred to in the Senate Committee Report who were cleared from Romania in these critical months were then taken from Bucharest to Tirana, to the staging point where the other CIA aircraft had been waiting for a day in advance. In this staging point, in an unprecedented manoeuvre, according to our investigations, detainees were transferred from the first aircraft onto the second, together with members of the CIA rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly. Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from Romania to Vilnius, Lithuania, thereby providing a link between two detention sites on European territory. The aircraft then departed in their own respective directions, the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft, N3 08 AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had innovated yet another means, another layer of cover to obstruct proper accounting for the illegal transfer of its detainees, but due to a process which Senator Marty referred to as ‘ la dynamique de la vérité ’, we have been able, methodically and carefully, to unpick these layers of secrecy and present to this Court what we believe is a truthful and accurate accounting of operations in respect of these ‘ black sites ’. ”",
"131. In his further testimony, in response to questions from the Court, Mr J.G.S. added:",
"“ There are two known and documented junctures at which CIA detainees at the ‘ black site ’ in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post ’ s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as ‘ Violet ’ and ‘ Orange ’ : the former, ‘ Violet ’, in Lithuania, the latter, ‘ Orange ’, in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States. ”",
"132. Mr Black testified as follows:",
"“ ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post, the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA ‘ black site ’ programme was operating only in Lithuania and in Afghanistan. ”",
"133. The relevant section in the 2014 US Senate Committee Report reads as follows:",
"“ After publication of the Washington Post article, [ REDACTED ] Country [ REDACTED ] demanded closure of DETENTION SITE BLACK within [two-digit number REDACTED ] hours. The CIA transferred the [number REDACTED ] remaining CIA detainees out of the facility shortly thereafter. ”",
"134. According to public Eurocontrol flight data based on, among other things, the flight data entered by the Romanian authorities into the Eurocontrol system, which was referred to by Mr J.G.S and Mr Black, the flight circuit of October 2005 involving planes N308AB and N787WH and the circuit of November 2005 involving planes N1HC and N248AB can be described as follows.",
"135. As regards the circuit of 1-7 October 2005, executed by planes N308AB and N787WH:",
"(a) Eurocontrol data shows N308AB filing a flight plan departing from Teterboro, USA at 13:31 on 4 October 2005 with scheduled arrival time at Bratislava, Slovakia at 22:58 the same day. On the following day it filed a flight plan departing from Bratislava at 19:06 with scheduled arrival time at Mihail Kogălniceanu International Airport, Constanţa, Romania at 20:41. It then filed a plan departing 40 minutes later, at 21:21, from Băneasa Bucharest City Airport. According to the experts, this indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. Leaving Băneasa it was scheduled to arrive in Tirana, Albania at 22:38. It filed its next flight plan from Tirana on 6 October at 01:08, with a scheduled arrival time in Shannon, Ireland, at 04:22 (all times are Zulu (i.e. GMT) ).",
"(b) Eurocontrol data shows that on 5 October 2005 at 00:45 N787WH filed a flight plan departing from Keflavik, Iceland with scheduled arrival in Tirana International Airport on the same day at 05:52. It then filed a flight plan departing Tirana at 23:44 with scheduled arrival at Tallinn, Estonia the following day at 02:26. It then filed a flight plan leaving 30 minutes later, at 02:56, not from Tallinn but from Vilnius International Airport, Lithuania, with scheduled arrival in Oslo at 04:33 (all times are Zulu (GMT) ). Documents from Vilnius airport show that the plane landed in Vilnius at 01:54 Zulu / 04:54 local time, however, indicating that the scheduled trip to Tallinn was in fact a false flight plan, and that the plane did not go to Tallinn, but rather directly from Tirana to Vilnius (see also Abu Zubaydah v. Lithuania, no. 46454/11, § 130, 31 May 2018).",
"As regards the circuit of 5-7 November 2005, executed by planes N1HC and N248AB:",
"(a) Eurocontrol data shows that N1HC filed a flight plan to leave Harrisburg International Airport, USA at 10:30 on 5 November 2005, with scheduled arrival in Porto, Portugal at 16:58 the same day. It then filed a flight plan to leave Porto at 17:59, with scheduled arrival at Mihail Kogălniceanu International Airport, Constanţa, Romania at 21:45. Its next flight plan shows it leaving Băneasa Bucharest City Airport 20 minutes later, at 22:05, with scheduled arrival at Amman, Jordan that night at 00:21 on 6 November. This, according to the experts, indicated that the scheduled trip to Constanţa was in fact a false flight plan, and that the plane did not go to Constanţa, but rather to Băneasa. From Jordan it filed a flight plan to depart Amman at 01:20 with arrival at Keflavik scheduled at 08:25.",
"(b) Eurocontrol data shows that N248AB filed a flight plan to leave Malta International Airport on 5 November 2005 at 21:10 with scheduled arrival in Amman at 23:49. It then filed a flight plan to leave Amman 66 minutes later, at 00:55 on 6 November, with arrival in Kabul scheduled for 05:12. It filed a flight plan to leave Kabul 48 minutes later, at 06:00, with arrival in Athens scheduled at 11:32 the same day.",
"136. The findings of the Lithuanian Parliament ( Seimas ) made in the course of an inquiry concerning the alleged detention facilities in Lithuania in 2010 -2011 concerned, among other things, the flight N787WH landing in Vilnius, en route from Tirana, on 6 October 2005 (see paragraph 33 2 below)",
"137. The list of 43 flights operated in 2001-2005 at the airports of Constanţa, Băneasa and Otopeni submitted by the Government (annex no. 11 to the 2007 Romanian Senate Report; see also paragraph 167 below) included that of N1HC, which departed from Băneasa airport on 5 November 2005.",
"138. The list of twenty one “ suspicious flights ”, which was produced by the Government, included N1HC executing a circuit “ Harrisburg –București Băneasa-Djibouti-Amman ” that departed from Băneasa Airport on 5 November 2005 (see paragraph 327 below).",
"The invoice (no. 1692) for United States Aviation in respect of N1HC issued by RAS on 6 November 2005 included a handwritten note: “ Middletown-Băneasa-Djibouti (?) (Amman?) ”",
"D. The applicant ’ s further transfers during CIA custody (until 5 September 2006 ) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court",
"139. According the 2014 US Senate Committee Report, in “ early January 2006 ” the CIA was holding twenty-six detainees “ in its two remaining facilities, Detention Site Violet, in Country [ name REDACTED ] and Detention Site Orange, in Country [name REDACTED ] ”.",
"The applicant, according to the experts, was taken to one of those sites – Detention Site Violet located in Lithuania or Detention Site Orange located in Afghanistan on one of the above-described plane-switching flights circuits of, respectively, 1-7 October 2005 and 5-7 November 2005 (see paragraphs 129-135 above).",
"140. The 2014 US Senate Committee Report states that the applicant “ was transferred to US military custody on September 5, 2006. ”",
"E. The applicant ’ s detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present",
"141. On 6 September 2006 President Bush publicly acknowledged that fourteen high-value detainees, including the applicant, had been transferred from the HVD Programme run by the CIA to the custody of the Department of Defense in the Guantánamo Bay Internment Facility (see also paragraph 60 above).",
"1. Hearing before the Combatant Status Review Tribunal",
"142. On 14 March 2007 the applicant was heard by the Combatant Status Review Tribunal, which purported to review all the information related to the question whether he met the criteria to be designated as an “ enemy combatant ” (i.e. an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including one who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces). The hearing was closed to the public. The applicant was not afforded legal counsel at this hearing. A “ personal representative ” was appointed for him, but this person did not act as counsel and the applicant ’ s statements to this representative were not privileged. He did not have access to any classified evidence that was introduced against him. Nor did he have the right to confront any of the accusations that were introduced at this hearing.",
"143. According to a partially redacted transcript of that hearing, the applicant stated that he “ [had been] tortured into confession and once he [had] made a confession his captors [had been] happy and they [had] stopped torturing him ”. He also stated that he had made up stories during the torture in order to get it to stop (see also paragraph 1 2 3 above).",
"2. Trial before the military commission",
"144. On 30 June 2008, the US Government brought charges against the applicant for trial before a military commission, including those relating to the bombing of the USS Cole on 12 October 2000.",
"145. On 2 October 2008, counsel for the applicant filed a petition for a writ of habeas corpus on his behalf in a federal district court of the District of Columbia. That petition is apparently still pending to date with no decision.",
"146. On 19 December 2008, the Convening Authority authorised the Government to seek the death penalty at his military commission.",
"147. Immediately after the referral of charges, the defence filed a motion with the military commission contesting the Government ’ s method of transporting the applicant to legal proceedings in Guantánamo Bay on the grounds that it was harmful to his health and violated his right to free and unhindered access to his counsel.",
"148. Shortly after this motion was filed, the applicant ’ s arraignment –which signified the start of his trial before a military commission – was set for 9 February 2009.",
"149. On 22 January 2009 President Obama issued an Executive Order requiring that all commission proceedings be halted pending the Administration ’ s review of all detentions at Guantánamo Bay. In response to this order, the Government requested a 120-day postponement for the 9 February 2009 arraignment.",
"150. On 25 January 2009 the military judge assigned to the applicant ’ s military commission denied the Government ’ s request for postponement of the trial. Moreover, the military judge ordered that a hearing on the defence motion regarding the applicant ’ s transportation be held immediately after the arraignment. In response to this order, the defence filed a notice that it intended to introduce evidence of how he was treated while in CIA custody.",
"Hours after this notice was filed, on 5 February 2009, the US Government officially withdrew charges from the military commission, thus removing the applicant ’ s case from the military judge ’ s jurisdiction.",
"151. In March 2011 President Obama announced that he would be lifting a 2-year freeze on new military trials for detainees at the US Naval Base in Guantánamo Bay.",
"152. On 20 April 2011 United States military commission prosecutors brought capital charges against the applicant relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002. The charges against him included terrorism, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, hazarding a vessel, using treachery or perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy to commit terrorism and murder in violation of the law of war, destruction of property in violation of the law of war and attempted destruction of property in violation of the law of war. The applicant was designated for trial by military commission despite the fact that the United States Government had previously indicted two of his alleged co-conspirators for the USS Cole bombing – Jamal Ahmed Mohammed Al-Badawi and Fahd Al-Quso – in the US federal court. The relevant indictment, filed on 15 May 2003 while the applicant was secretly held in CIA custody in Poland, identified him as an unindicted со - conspirator in the USS Cole bombing.",
"153. The military commission prosecutors announced that the capital charges against the applicant would be forwarded for independent review to Bruce MacDonald, the “ convening authority ” for the military commissions, for a decision whether to reject the charges or to refer some, all or none of them for trial before the military commission.",
"154. On 27 April 2011 Mr MacDonald informed the US military defence counsel for the applicant that he would accept written submissions against the death penalty until 30 June 2011.",
"On 28 September 2011 the capital charges against the applicant were approved.",
"155. The military commission hearing in the applicant ’ s case began on 17 January 2012. The first two days of the trial were devoted mostly to pre ‑ trial motions.",
"156. The proceedings against the applicant before the military commission are pending.",
"According to a statement – “ Remarks at Guantánamo Bay ” issued by Chief Prosecutor Mark Martins on 17 March 2017, a day before the military commission convened to try Al Nashiri completed a pre-trial session to resolve disputes regarding “ outstanding legal and evidentiary issues ”. During the session, the Military Judge directed that the military commission would be in session from 31 July to 4 August, from 11 to 29 September and from 6 to 17 November 2017. He also announced that he planned to issue soon a final discovery order as well as a trial order for 2018.",
"F. Psychological effects of the HVD Programme on the applicant",
"157. On 22 November 2013 the applicant ’ s representative produced a psychological evaluation of the applicant by US government psychiatrists, which had been conducted at the request of the US government. It states that Mr Al Nashiri suffers from Post-Traumatic Stress Syndrome.",
"158. In the 2014 US Senate Committee Report, in the chapter “ CIA Detainees Exhibit Psychological and Behavioral Issues ”, it is stated that psychological and behavioural problems experienced by CIA detainees, who had been held in austere conditions and in solitary confinement, had also posed “ management challenges ” for the CIA.",
"The section referring to the applicant reads as follows:",
"“ ... Abd al-Rahim al-Nashiri ’ s unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally.",
"An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an ‘ endgame ’ for the program.",
"In July 2005, CIA Headquarters expressed concern regarding al-Nashiri ’ s ‘ continued state of depression and uncooperative attitude ’. Days later a CIA psychologist assessed that al-Nashiri was on the ‘ verge of a breakdown ’. ”",
"G. Identification of locations of the colour code - named CIA detention sites in the 2014 US Senate Committee Report by experts",
"159. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 2 6 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan and Detention Site Black was identified as having been located in Romania (see also Abu Zubaydah v. Lithuania, cited above, § 16 6 ).",
"H. “ Detention Site Black ” in the 2014 US Senate Committee Report",
"160. The 2014 US Senate Committee Report refers to “ Detention Site Black ” in several sections concerning various events.",
"161. In chapter entitled “ The CIA establishes ‘ DETENTION SITE BLACK ’ in Country [ REDACTED ] and DETENTION SITE VIOLET in Country [ REDACTED ] ” the section referring to “ Detention Site Black ” reads as follows:",
"“ [ REDACTED ] The CIA entered into an agreement with the [ REDACTED ] in Country [ REDACTED ] to host a CIA detention facility in [month REDACTED ] 2002.",
"In [month REDACTED ] 2003 CIA Headquarters invited the CIA Station in Country [ REDACTED ] to identify ways to support the [ REDACTED ] in Country [ REDACTED ] to ‘ demonstrate to [ REDACTED ] and the highest levels of the [Country [ REDACTED ] government that we deeply appreciate their cooperation and support ’ for the detention program. The Station responded with an $ [amount REDACTED ] million ‘ wish list ’ [ REDACTED ]; CIA Headquarters provided the Station with $ [amount REDACTED ] million more than was requested for the purposes of the [ REDACTED ] subsidy. CIA detainees were transferred to DETENTION SITE BLACK in Country [ REDACTED ] in the fall of 2003.",
"In August 2003, the U.S. ambassador in Country [ REDACTED ] sought to contact State Department officials to ensure that the State Department was aware of the CIA detention facility and its ‘ potential impact on our policy vis-a-vis the Country [ REDACTED ] government ’. The U.S. ambassador was told by the CIA Station that this was not possible, and that no one at the State Department, including the secretary of state, was informed about the CIA detention facility in Country [ REDACTED ].",
"...",
"Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S. military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country [ REDACTED ] to seek information on CIA detention standards and interrogation methods. In the fall of 2004, when [ REDACTED ] U.S. ambassador to Country [ REDACTED ] sought documents authorizing the program, the CIA again sought the intervention of Deputy Secretary Armitage, who once again made ‘ strong remarks ’ to the CIA about how he and the secretary of state were ‘ cut out of the NSC [National Security Council] clearance/coordination process ’ with regard to the CIA program. ...",
"While it is unclear how the ambassador ’ s concerns were resolved, he later joined the chief of Station in making a presentation to Country [ REDACTED ] ’ s [ REDACTED ] on the CIA ’ s Detention and Interrogation Program. The presentation talking points did not describe the CIA ’ s enhanced interrogation techniques, but represented that ‘ [w]ithout the full range of these interrogation measures, we would not have succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other equally resistant HVDs ’ The talking points included many of the same inaccurate representations made to U.S. policymakers and others, attributing to CIA detainees critical information on the ‘ Karachi Plot ’ the ‘ Heathrow Plot ’. the ‘ Second Wave Plot ’, and the ‘ Guraba Cell ’; as well as intelligence related to Issa al-Hindi, Abu Talha al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-Tayyar. ... ”",
"162. In chapter entitled “ CIA Detainees Exhibit Psychological and Behavioural Issues ” reference is made to an email from an American authority (name redacted) to “ Detention Site Black ”, dated 30 October 2004 on the subject: “ Interrogator Assessments/Request for Endgame Views ”, which concerned Al Nashiri ’ s psychological assessment (see also paragraph 15 8 above ), which was used by the CIA in the framework of discussions on establishing an “ endgame ” for the HVD Programme.",
"163. Chapter “ The Pace of CIA Operations Slows; Chief of Base Concerned About ‘ Inexperienced, Marginal, Underperforming ’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘ Ongoing Problem ’ ” refers to the “ Detention Site Black ” as follows:",
"“ In the fall of 2004, CIA officers began considering ‘ end games ’ or the final disposition of detainees in CIA custody.",
"...",
"[ REDACTED ] In 2004, CIA detainees were being held in three countries: at",
"DETENTION SITE BLACK in Country [ REDACTED ], at the [ REDACTED ] facility in Country [ REDACTED ], as well as at detention facilities in Country [ REDACTED ]. DETENTION SITE VIOLET in Country [ REDACTED ] opened in early 2005.",
"On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country [ REDACTED ] sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that ‘ we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-a-vis their interaction with the program, resulting in a ‘ decline in the overall quality and level of experience of deployed personnel ’, and a decline in ‘ level and quality of requirements ’. He wrote that because of the length of time most of the CIA detainees had been in detention, ‘ [the] detainees have been all but drained of actionable intelligence ’, and their remaining value was in providing ‘ information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals ’.",
"The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised ‘ a host of new challenges ’. These challenges included the need to address the ‘ natural and progressive effects of long-term solitary confinement on detainees ’ and ongoing behavioral problems. ”",
"164. According to the report, one of the high-value detainees, Abu ‑ Faraj al-Libi, was transferred to Detention Site Black on an unspecified (redacted) date in May 2005 and was subjected to EITs starting from 28 May 2005.",
"The section concerning the closure of Detention Site Black after publication of the Washington Post article (see paragraph 23 6 below) is rendered in paragraph 13 3 above.",
"I. Parliamentary inquiry in Romania",
"165. On 2 1 December 2005, by virtue of the Decree of Romania ’ s Senate of 21 December 2005 (published on 27 December 2005) the Romanian Parliament set up the Inquiry Committee for investigating statements regarding the existence of CIA detention facilities or of some flights of planes leased by the CIA on the territory of Romania ( Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României ) ( “ the Romanian Senate Inquiry Committee ” ). It comprised eleven members and was presided over by Ms N. Nicolai. The report of the Romanian Senate Inquiry Committee ( “ the 200 7 Romanian Senate Report ” ) was published in the Official Monitor on 7 May 2008. The annexes attached to the report remained classified.",
"166. The 2007 Romanian Senate Report explained that the committee had been established “ following the request of Mr Rene van der Linden, the President of the Council of Europe Parliamentary Assembly (PACE), formulated in the speech held in the assembly of the united chambers of Romania ’ s Parliament on 24 November 2005, to investigate the accusations published in the international press regarding the detention and illegal transfer of prisoners in some of the member states of the Council of Europe ”.",
"The terms of reference were defined as follows:",
"“ According to Article 1 of the Decree of Romania ’ s Senate no. 29 of 21 December 2005, the Inquiry Committee was charged with investigating statements regarding the existence of some CIA detention facilities on the territory of Romania or of some flights of some planes leased by CIA, that would have allegedly transported persons accused of having performed terrorist acts ”.",
"The initial deadline for presenting a report by the committee was fixed for 15 February 2006 but, given the complexity of the issues involved, that term was eventually extended until 5 March 2007.",
"167. From January 2006 to January 2007 the Romanian Senate Inquiry Committee held periodic meetings, usually on a monthly basis and carried out some fact-finding missions. According to the 2007 Romanian Senate Report, the committee held twenty-one meetings “ for documentation review and analysis with the leaders of institutions and specialised structures ” and over forty meetings with official delegations and members of the Council of Europe ’ s inquiry body, other politicians and journalists. It heard over 200 persons and studied over 4,200 pages of documents. Its delegates also made six visits to the airports and military airbases susceptible to have been used for secret detentions and illegal prisoners ’ transfers, including Timișoara - Gearmata; Bucharest- Băneasa; Constanţa -Mihail Kogălniceanu; Tulcea-Cataloi and Fetești-military.",
"Based on the in situ investigations, the Romanian Senate Inquiry Committee found no facility built at the material time (2003-2005) that might have been used as a detention facility, “ be it ad hoc ”. Also, it concluded that no flight that had passed through Mihail Kogălniceanu airport would raise suspicions of the illegal transport, embarking or disembarking of any passenger.",
"168. As regards “ suspicious flights ” in respect of which Senator Marty asked the Romanian authorities for all available evidence in his letter on 7 November 2006, the findings read, in so far as relevant, as follows:",
"“ Regarding flight N313P of 25 January 2004, the Committee established that that flight landed on the Airport Bucharest- Băneasa for refuelling and ground services. No passenger embarked or disembarked the plane. There is all evidence that shows beyond this fact, but also the purpose of the stopover. ...",
"Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the information provided by the Romanian Civil Aeronautical Authority, according to which, on 25 January 2004, its destination airport was Timişoara, not Bucharest - Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he verified this fact. ...",
"We would like to mention that the initial information provided by the Romanian Civil Aeronautical Authority (RCAA), regarding the landing on the International Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that RCAA had access only to the flight plan sent by the operator of the aircraft. The flight plan was modified by the operator in the air, requesting the stop on the International Airport Bucharest- Băneasa.",
"At that date, according to the Romanian legislation, the operators who performed private flights in the national airspace were not under any obligation to request from request from RCAA any overflight authorisation, since it was sufficient to submit the flight plan to the traffic body. ...",
"For N313P of 22 - 23 September 2003 (classified appendix no. 4):",
"- copy of the extract of the navigation chart ROMATSA associated with the Airport Băneasa, in which the real route of the flight is indicated;",
"- copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight N313P, issued by the handling agent of the Romanian Airport Services.",
"Flight N478GS of 6 December 2004, which had an accident while landing at the Airport Bucharest- Băneasa, is suspected of being involved in a circuit that would have transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick Marty in April 2006.",
"The event had the following development: On 6 December 2004, at 1:29 PM, the aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was performing a charter flight on the route Bagram/Afganistan- Bucharest/ Băneasa, landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07, with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded the available speed for landing ... and the delayed threshold of the runway, in an area of the runway where the airport was carrying on maintenance works ... .The aircraft rolled with the main left jamb on an unpaved portion with a depth of approximately 15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of fuel from the left wing. The aircraft experienced damages on the left jamb of the main landing train and on the fuel tank in the left plan(classified appendix no. 5). ...",
"Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that the Romanian Civil Aeronautical Authority indicates the route Prague- Constanţa - Băneasa -Amman. In reality, the flight took place on the route Prague -Bucharest Băneasa -Amman, according to invoice no. 3.314 of 25 October 2003, issued by ROMATSA (classified appendix no. 6).",
"Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport Mihail Kogălniceanu, but in Airport Bucharest– Băneasa (classified appendices no. 7 and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10).",
"The appendix to Mr. Dick Marty ’ s letter of March 31, 2006 requests details regarding 43 flights. The Inquiry Committee presents them in classified appendix no. 11. ”",
"169. The final conclusions of the 2007 Romanian Senate Report were formulated as follows:",
"1. To the question whether there is or there were American secret detention sites in Romania, the answer is negative.",
"2. To the question whether in Romania, during the investigated period, there exist or existed facilities for detaining prisoners, other than penitentiary ones (real, secret, ad-hoc, buildings that were used for this purpose on an improvised basis, potentially in the proximity of airports Timişoara, Bucharest – Henri Coanda or Băneasa, and Constanţa, the Inquiry Committee ’ s answer is negative.",
"3. To the question whether there are or there were detainees with or without records held in the Romanian penitentiary system, who could have been assimilated with prisoners, the Inquiry Committee ’ s answer is negative.",
"4. To the question whether there could have been clefts in the complete control system of the civil or military traffic or whether some flights could have passed inadvertently without being monitored or unrecorded or if in their cases the ground procedures stipulated in the international conventions could have not been applied, the Inquiry Committee ’ s answer is negative.",
"5. To the question whether it could have been possible that certain Romanian institutions in Romania would have participated knowingly or by omission or negligence in operations of illegal transport of detainees through the airspace or airports in Romania, the Inquiry Committee ’ s answer is negative.",
"6. To the question whether civil American flights or other states ’ civil flights could have transported, dropped, or picked up persons that could be assimilated to the detainees on the Romanian territory or under the responsibility of Romanian authorities, in compliance with international regulations, the Inquiry Committee ’ s answer is negative.",
"7. To the question whether there existed an in-depth parliamentary investigation to determine the media allegations regarding the existence of some detention facilities or of some flights with illegal prisoners in Romania, the Investigation Committee ’ s answer is positive.",
"8. To the question whether the purpose of the stopovers in Romania of the flights referred to in chapter 5, the Inquiry Committee has solid grounds to reply that they had nothing to do with potential illegal transports of prisoners on the territory of Romania. ”",
"170. On 13 October 2008, in reply to a letter by APADOR-CH concerning the purpose of the flights mentioned by the report cited above, the President of the Romanian Senate stated:",
"“ ... the Inquiry Committee was assigned to investigate the statements regarding the existence of CIA detention facilities or of some flights of planes leased by CIA on the territory of Romania.",
"Consequently, since its mandate was strictly limited to the aforementioned issue, the Inquiry Committee did not request data from appropriate institutions, did not perform any investigation, and does not hold any kind of information regarding the purpose of the flights with the indication mentioned in chapter 5, point 3. ... ”",
"J. Criminal investigation in Romania",
"171. On 29 May 2012 the applicant ’ s lawyer filed a criminal complaint ( plângere penală ) on his behalf with the Prosecutor General, asking for an investigation into circumstances surrounding the applicant ’ s rendition, secret detention and ill-treatment in Romania to be opened. It was submitted that the Romanian authorities had allowed the CIA to subject the applicant to torture and unlawful, incommunicado detention on Romanian territory and to transfer him out of the country despite the risk of his facing further torture, unacknowledged detention and death penalty. He relied on Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 6 and maintained that the conduct of the Romanian authorities constituted offences of, inter alia, aiding and abetting murder, torture and ill-treatment as defined in the Romanian Criminal Code.",
"172. On 20 July 2012 the Prosecutor General acknowledged that the complaint had been registered and assigned a file number, and that its review was at a preliminary stage.",
"Some time afterwards, on an unspecified date, the prosecution authorities opened an investigation concerning the applicant ’ s allegations.",
"1. Submission by the Government of confidential documents from the investigation file",
"173. At the Court ’ s request, the Government submitted various materials concerning the investigation asking, under Rule 33 § 2 of the Rules of Court, for public access to those documents to be restricted, in the interests of national security and also on the grounds of secrecy of the investigation (see also paragraph 12 above). Those materials included transcripts of witness evidence obtained in the investigation. They were produced in the Romanian language, with an English translation. The English version is rendered in paragraphs 29 9 -32 5 below.",
"All these documents were available to the Court and the applicant in full, unredacted versions. The following description of the course of the investigation is based on a summary (redacted version) of annexes containing documents from the investigation file produced by the Government. That summary was prepared by the Government in the English language.",
"2. The course of the investigation according to documentary evidence produced by the Government",
"174. On 3 December 2012 the investigating prosecutor analysed the applicant ’ s complaint and its context, including laws and arrangements regarding bilateral agreements between Romania and the United States and information in the public domain concerning the applicant ’ s allegations. Also, an initial investigation plan was prepared on that date. The plan included a list of requests for information, clarifications, documents, audio and video recordings and flight data to be addressed to various domestic authorities – among others, the Civil Aviation Authority, Air Traffic Services Administration, Otopeni, Kogălniceanu and Băneasa airports, the Government and the relevant ministries.",
"175. On 27 December 2012 the Prosecutor ’ s Office attached to the Court of Cassation ( Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție – “ PICCJ ” ) asked the RCAA to provide, in connection with the investigation the following information concerning certain flights mentioned in an annex to the request ( the annex has not been produced):",
"( a) any data, information, documents held with regard to the air traffic control in respect of the flights in question;",
"( b) any audio or video recordings concerning the flights in question (for example: air traffic control or directing);",
"( c) names of individuals who had carried out specific tasks on the dates when the flights in question had allegedly taken place;",
"( d) names of individuals directly involved in facilitating or operating those flights.",
"176. On 12 January 2013 the RCAA informed the PICCJ that, according to the relevant legislation in force at the relevant time (2003-2005), namely Government Decision no. 1172/2003, they had data concerning only a few flights – which they included in an annex (the annex has not been produced).",
"The RCAA stated that the available data did not clearly show that these flights had taken place and that they did not have any documents which attested that the flights had actually taken place. According to the legislation in force at the material time, information in the RCAA ’ s possession showed only an intention to operate the flights, which had been planned and notified to them.",
"It further stated that Government Decision no. 1172/2003 had eliminated the need for the RCAA to approve flights which transited the national airspace with no commercial stop (and did not carry troops, military equipment, weapons, munitions, explosives, radioactive or other dangerous materials or did not fall in the category of technical flights) and, also, internal and international flights with civil aircraft registered abroad, landing and taking off from the Romanian territory, which were included in the category of civil air operations of general aviation. These flights were considered authorised if a flight plan on a published ATS (Air Traffic Service) route was submitted and the aircraft used were insured for damage caused to third parties on the ground.",
"As regards audio or video recordings and names of any individuals involved, the RCAA stated that they did not have any such information.",
"177. In addition, the Government produced copies of the following prosecutor ’ s letters requesting information or documents from various authorities:",
"( 1 ) letter of 27 December 2012 addressed to the Romanian Government, asking for the classified annexes to the 2007 Romanian Senate Report;",
"( 2 ) letters of 27 December 2012 addressed to Timişoara Airport, Constanţa Mihail Kogălniceanu Airport and Bucharest Băneasa Airport, requesting information about the alleged suspicious flights, including audio or video recordings, and about the airport personnel who had worked on the relevant dates;",
"( 3 ) letter of 3 March 2013 addressed to the Ministry of Transport and Infrastructure, requesting it to the transmit the National Programme of Aeronautical Security to the prosecutor;",
"( 4 ) letters of 18 March 2013 addressed to the Civil Aviation Directorate and the Bucharest Airports National Company requesting information about flights N313P, N85VM, N379P, N478GS, N228KA, N308AB, N789DK, N227SV, N787WH, N1HC, N2189M and N860JB, including general flight data from 2003-2006, types and purposes of flights, type of journey, flight route, flight operator, flight organiser, aircraft type, aircraft capacity, aircraft registration, documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations, specific requests for each flight and handling operator;",
"( 5 ) letter of 24 April 2013 addressed to the Bucharest Airports National Company, requesting information about applications for authorisation of access of persons and vehicles to the airplanes, the relevant records, information about the security personnel and the handling agents who had worked on the relevant dates at Bucharest Băneasa Airport and at Constanţa Mihail Kogălniceanu Airport;",
"( 6 ) letter of 24 April 2013 addressed to the General Inspectorate of the Border Police, requesting information about the personnel who had worked on the relevant dates and any persons who entered, exited or transited the national territory on those dates through Bucharest Băneasa Airport and Constanţa Mihail Kogălniceanu Airport;",
"( 7 ) letter of 29 April 2013 addressed to the Romanian Airport Services ( “ RAS ” ), requesting information about the personnel who had worked on the relevant dates and the handling operations performed.",
"178. On an unspecified date, in response to the prosecutor ’ s request, the Ministry of Transport - Civil Aviation Directorate provided the following documents:",
"- flight plans of N312ME on 24 April 2003, N175A on 5 May 2003, N58AS on 16 June 2003, N313P on 22 September 2003, N313P on 25 January 2004 and N227SV on 1 October 2004;",
"- control lists of the navigation records;",
"- tables containing handling fees;",
"- invoices issued by the RAS;",
"- ground handling charge notes;",
"- air navigation services sheets;",
"- address no. 6 293 of 4 November 2006 issued by Timișoara Airport informing that, after checking their records, there was no evidence of the landing of the flight N313P operated by Business Jet Solutions. It was also mentioned that the said aircraft had not carried out any flights on Traian Vuia Airport – Timișoara until 14 November 2006.",
"- list of flight plans;",
"- letter no. 239 of 25 March 2013 from the Bucharest Airports National Company, transmitting all relevant information identified in their archives and informing the prosecution that from 2004 to 2005 in Bucharest Băneasa Airport the RAS was in charge of the handling services. The letter also mentioned that the flights concerned had not been identified as having operated at Henri Coandă Airport.",
"- letter no. 2183 of 22 March 2013 from Constanţa Mihail Kogălniceanu Airport confirming, among other things, that N308AB had operated in that airport and that it had landed on 25 August 2004 at 00:03, and departed on 25 August 2004 at 01:33;",
"- letter no. 3461 of 13 June 2006 from Constanţa Mihail Kogălniceanu Airport, confirming that the aircraft Lockheed L382 registered as N2189M had operated at that airport, landing on 13 June 2003 at 09:57, departing on 14 June 2003 at 08:31 and that the aircraft Gulfstream IV registered as N227SV had operated in the airport, landing on 1 October 2004 at 20:39 and departing at 21:26 on the same date.",
"179. On 26 April 2013 the Bucharest Airports National Company replied to the prosecutor ’ s request of 18 March 2013. The company stated that it did not have information about general flight data concerning the indicated aircraft in the period 2003-2006, the purpose of the flights, type of journey, flight organiser, aircraft capacity, any documents regarding insurance, information about the crew and passengers, initial flight plans, subsequent flight documents, flight or overflight authorisations or information about handling requests. It informed the prosecutor that the flight plans had been received through the AFTN terminal and had not been subject to archiving and that the RAS had been the handling operator in 2003-2006 at Bucharest Băneasa Airport. A table containing information about the relevant flights was transmitted to the prosecutor.",
"180. On 21 May 2013 the Bucharest Airports National Company replied to the prosecutor ’ s request of 24 April 2013. The company transmitted the requested information about the applications for access authorisation to the planes and the relevant records. It also explained to the prosecutor that since the retention periods for the requested documents were from three to five years, it was impossible for it to produce any additional information about the requests for authorisations and the access records. The company also produced information concerning the security personnel who had worked on the relevant dates.",
"181. On 20 May 2013 the General Inspectorate of the Border Police replied to the prosecutor ’ s request of 24 April 2013. It forwarded a list containing the names, personal data and the present workplace of the personnel who had worked on the relevant dates. It also informed the prosecutor that flight logs had automatically been erased after five years and that, as a consequence, they could not submit the requested information about the persons who had entered, exited or transited the national territory on those dates at Bucharest Băneasa Airport.",
"182. On 11 July 2013 the General Inspectorate of the Border Police supplied information concerning the personnel who had worked at Bucharest Băneasa Airport on 22 September 2003 and their personal data.",
"183. On 13 June 2013 the RAS replied to the prosecutor ’ s request of 29 April 2013. The RAS informed the prosecutor about the personnel who had worked on the relevant dates and transmitted several tables containing handling fees. They also stated that information about the handling services performed had been retained only for three years.",
"184. In the meantime, on 24 April 2013, the prosecutor asked the Ministry of National Defence ( Ministerul Apărării Naționale ) to produce, on an urgent basis, the following information concerning the period of 2003-2006:",
"( a) military flights carried out by US military aircraft or civilian flights carried out by the US air companies, which concerned “ the transfer of individuals within the framework of the USA Special Rendition Program ” and which had had as a point of transfer, transit or destination “ airports on Romania ’ s territory ”;",
"( b) existence or non-existence, on Romania ’ s territory, of alleged detention facilities set up at the US authorities ’ or the US forces ’ request and their possible location, including names of legal persons hosting them;",
"( c) detention, interrogation, and subsequent transfer of individuals in the US forces ’ or the US authorities ’ custody from the alleged detention facilities to other locations;",
"d) names of persons who had been subjected to such treatment.",
"185. On 24 May 2013 the Ministry of National Defence replied that the requested materials were part of documents sent to the Romanian Senate Inquiry Committee by a note of 31 March 2006, which was classified as “ confidential information ”. The Ministry stated that they did not have a copy of those documents, that the documents had been sent to the committee in a single copy ( exemplar unic ) and that they had not yet been returned to them. Moreover, the provision of information concerning civil aircraft which had operated in the Romanian airspace and in the Romanian international civilian airports fell within the competence and responsibility of the relevant departments attached to the Ministry of Transport.",
"The Ministry further stated that, by their letter of 9 May 2008, sent to M. Constantinescu, a State councillor attached to the Prime-Minister ’ s office, they had agreed that documents classified “ confidential information ” be sent to the European Commission.",
"Moreover, the Air Force General Staff ( Statul Major al Forțelor Aeriene ) had stated that it had not had any records of flights operating in the airspace or in the military airports between 2003 and 2006 and transferring individuals in the framework of the US rendition programme; moreover, the representatives of the US authorities had not had access to buildings or air facilities belonging to air bases subordinate to the Air Force or exclusive access to certain areas.",
"Lastly, the Ministry stated that the General Information Agency of the Defence ( Direcția Generală de Informații a Apărării ) had no information about the existence of secret US bases in Romania, about individuals allegedly detained illegally in Romanian prisons, their interrogation or transport to and from Romania by unmonitored or unauthorised flights.",
"186. On 24 January 2014 the PICCJ asked the Service for International Judicial Cooperation, Programs and International Relations to forward a request for legal assistance (including 4 annexes) to the relevant US judicial authorities. In the letter of request, the prosecutor asked the US authorities to provide, in connection with the criminal investigation, information concerning, among other things, the period and circumstances of Mr Al ‑ Nashiri ’ s arrest and detention, the proceedings against him instituted by the US authorities; whether Mr Al-Nashiri had ever been brought to Romania in the context of his detention imposed by the US authorities under the CIA rendition programme and whether Romania had potentially been involved in that programme. The prosecutor also asked for the date of his arrival on Romanian territory, the means of transport used, the place of his detention on Romanian territory; the date of his departure from Romania, the means of transport used and the relevant documents and whether the Romanian authorities had been aware of his stay in the country.",
"187. On an unspecified date in March 2014 the US Department of Justice replied to the letter of request, stating that the US authorities were not able to provide the information requested.",
"188. In the meantime, on 27 February 2014, following the entry into force of the new Romanian Criminal Code and Code of Criminal Procedure (see also paragraph 196 below), the prosecutor had re-analysed the applicant ’ s criminal complaint in the light of the new legislation and decided that the investigation should also include crimes of unlawful deprivation of liberty and torture.",
"189. In the course of the investigation, in 2013 and 2015, the prosecutor took evidence from witnesses, including some high-office holders. It also heard other officials, the Border Police officers and the airport staff, including the security personnel. The Government produced transcripts of evidence given by certain witnesses (see paragraphs 29 8-325 below).",
"190. The investigation, apparently still directed against persons unknown, is pending.",
"V. RELEVANT DOMESTIC LAW",
"A. Criminal Code",
"1. Territorial jurisdiction",
"191. Article 3 of the old Criminal Code, as applicable until 31 January 2014, read as follows:",
"“ Romanian criminal law shall apply to offences committed on the territory of Romania ”",
"192. On 1 February 2014 the new Criminal Code entered into force. Article 8 § 1 of the new Criminal Code is phrased in the same terms.",
"2. Prohibition of torture and offence of unlawful deprivation of liberty",
"193. The prohibition of torture was set forth in Article 267 of the old Criminal Code and, since 1 February 2014 (with minor changes of the wording), has been included in Article 282 of the new Criminal Code. Penalties applicable remained the same. The crime of torture is liable to sentence of imprisonment from two to seven years. In cases where a bodily harm has been caused to the victim, the sentence ranges from three to ten years ’ imprisonment. If torture resulted in the victim ’ s death, the sentence ranges from fifteen to twenty-five years ’ imprisonment.",
"194. The offence of unlawful deprivation of liberty was defined in Article 189 of the old Criminal Code and was liable to a sentence of imprisonment ranging from three to ten years ’ imprisonment. At present, it is defined in Article 205 of the new Criminal Code and is liable to a sentence ranging from one to seven years ’ imprisonment.",
"B. Code of Criminal Procedure",
"195. In general, an offence must be prosecuted by the authorities of their own motion. Exceptions include only a few offences which cannot be prosecuted without a prior request ( plângere prealabilă ) from a victim or from a specific authority (e.g. certain military offences). A criminal investigation may also be opened following a criminal complaint from the victim or notification of an offence by any physical or legal person who has become aware that such offence has been committed.",
"196. Article 221 of the old Code of Criminal Procedure ( “ old CCP ” ) as applicable until 1 February 2014 read, in so far as relevant, as follows:",
"“ A criminal investigation authority [shall institute an investigation] if it has been informed of commission of an offence by a criminal complaint or notification of commission of an offence, or it shall [take action] of its own motion, when it has discovered by other means that an offence has been committed.",
"Where, according to the law, a criminal investigation can only be opened following a prior complaint, notification or authorisation of an authority provided for by law, such investigation shall not be instituted in their absence. ... ”",
"A criminal complaint was defined as a notification of the commission of an offence submitted by a person or institution having sustained damage as a result of an offence. Notification of an offence could be made by any person or institution.",
"197. Following the entry into force of the New Code of Criminal Procedure ( “ new CCP ” ), the Article 221 was repealed and replaced by current Article 292 which reads as follows:",
"“ A criminal investigation authority shall take action of its own motion if it learns ( afla ) about commission of a criminal offence from any source other than those referred to in Articles 289-291 [ in particular, criminal complaint and notification of the commission of an offence] and shall draw up a report in this regard. ”",
"A criminal complaint is defined in Article 289 of the new CCP as “ information laid by an individual or legal entity concerning damage sustained thereby as a result of a criminal offence ”. Notification of the commission of an offence is defined in Article 290 as a notification submitted by any individual or legal entity.",
"VI. RELEVANT INTERNATIONAL LAW",
"A. Vienna Convention on the Law of Treaties",
"198. Articles 26 and 27 of the Vienna Convention on the Law of Treaties (23 May 1969), to which Romania is a party, provide as follows:",
"Article 26 “ Pacta sunt servanda ”",
"“ Every treaty in force is binding upon the parties to it and must be performed by them in good faith. ”",
"Article 27 Internal law and observance of treaties",
"“ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... ”",
"B. International Covenant on Civil and Political Rights",
"199. Article 7 of the International Covenant on Civil and Political Rights ( “ ICCPR ” ), to which Romania is a party, reads as follows:",
"“ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. ”",
"200. Article 10 § 1 of the ICCPR reads as follows:",
"“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”",
"C. The UN Torture Convention",
"201. One hundred and forty-nine States are parties to the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( “ UNCAT ” ), including all member States of the Council of Europe. Article 1 of the Convention defines torture as:",
"“ any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ”",
"202. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law.",
"Article 3 provides:",
"“ 1. No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.",
"2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. ”",
"203. Article 12 provides that each State Party must ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.",
"Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.",
"D. UN Geneva Conventions",
"1. Geneva (III) Convention",
"204. Article 4 of the Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949 (“the Third Geneva Convention”), which defines prisoners of war, reads, in so far as relevant, as follows:",
"“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:",
"(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.",
"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:",
"(a) that of being commanded by a person responsible for his subordinates;",
"(b) that of having a fixed distinctive sign recognizable at a distance;",
"(c) that of carrying arms openly;",
"(d) that of conducting their operations in accordance with the laws and customs of war.",
"(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.",
"...”",
"205. Article 5 states:",
"“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.",
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”",
"206. Article 13 reads:",
"“Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.",
"Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.",
"Measures of reprisal against prisoners of war are prohibited.”",
"207. Article 21 reads, in so far as relevant:",
"“The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.”",
"2. Geneva (IV) Convention",
"208. Article 3 of the Geneva (IV) Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”) reads, in so far as relevant, as follows:",
"“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:",
"(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.",
"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:",
"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;",
"(b) taking of hostages;",
"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;",
"(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”",
"209. Article 4 reads, in so far as relevant, as follows:",
"“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.",
"Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ...”",
"E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts",
"210. The relevant parts of the Draft Articles (“the ILC Articles”), adopted on 3 August 2001 ( Yearbook of the International Law Commission, 2001, vol. II), read as follows:",
"Article lResponsibility of a State for its internationally wrongful acts",
"“Every internationally wrongful act of a State entails the international responsibility of that State.”",
"Article 2 Elements of an internationally wrongful act of a State",
"“There is an internationally wrongful act of a State when conduct consisting of an action or omission:",
"a. Is attributable to the State under international law; and",
"b. Constitutes a breach of an international obligation of the State.”",
"Article 7 Excess of authority or contravention of instructions",
"“The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.",
"...”",
"Article 14 Extension in time of the breach of an international obligation",
"“1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.",
"2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.",
"3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.”",
"Article 15 Breach consisting of a composite act",
"“1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.",
"2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.”",
"Article 16 Aid or assistance in the commission of an internationally wrongful act",
"“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:",
"( a ) that State does so with knowledge of the circumstances of the internationally wrongful act; and",
"( b ) the act would be internationally wrongful if committed by that State.”",
"F. UN General Assembly Resolution 60/147",
"211. The UN General Assembly ’ s Resolution 60/147 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted on 16 December 2005, reads, in so far as relevant, as follows:",
"“ 24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations ”.",
"VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001",
"212. The applicant and third-party interveners submitted a considerable number of reports and opinions of international governmental and non-governmental organisations, as well as articles and reports published in media, which raised concerns about alleged rendition, secret detentions and ill-treatment of al-Qaeda and Taliban detainees in US-run detention facilities in Guantánamo and Afghanistan. A summary of most relevant sources is given below.",
"A. United Nations",
"1. Statement of the UN High Commissioner for Human Rights on detention of Taliban and al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16 January 2002",
"213. The UN High Commissioner for Human Rights stated as follows:",
"“ All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention. ”",
"2. Statement of the International Rehabilitation Council for Torture",
"214. In February 2003 the UN Commission on Human Rights received reports from non-governmental organisations concerning ill-treatment of US detainees. The International Rehabilitation Council for Torture ( “ the IRCT ” ) submitted a statement in which it expressed its concern over the United States ’ reported use of “ stress and duress ” methods of interrogation, as well as the contraventions of refoulement provisions in Article 3 of the Convention Against Torture. The IRCT report criticised the failure of governments to speak out clearly to condemn torture; and emphasised the importance of redress for victims. The Commission on Human Rights communicated this document to the United Nations General Assembly on 8 August 2003.",
"3. UN Working Group on Arbitrary Detention, Opinion No. 29/2006, Mr Ibn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc. A/HRC/4/40/Add.1 at 103 (2006)",
"215. The UN Working Group found that the detention of the persons concerned, held in facilities run by the United States secret services or transferred, often by secretly run flights, to detention centres in countries with which the United States authorities cooperated in their fight against international terrorism, fell outside all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition, it found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance and extrajudicial killing.",
"B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003",
"216. The above resolution (“the 2003 PACE Resolution”) read, in so far as relevant, as follows:",
"“1. The Parliamentary Assembly:",
"1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States ’ military custody – some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities;",
"...",
"2. The Assembly is deeply concerned at the conditions of detention of these persons, which it considers unacceptable as such, and it also believes that as their status is undefined, their detention is consequently unlawful.",
"3. The United States refuses to treat captured persons as prisoners of war; instead it designates them as ‘ unlawful combatants ’ – a definition that is not contemplated by international law.",
"4. The United States also refuses to authorise the status of individual prisoners to be determined by a competent tribunal as provided for in Geneva Convention (III) relative to the Treatment of Prisoners of War, which renders their continued detention arbitrary.",
"5. The United States has failed to exercise its responsibility with regard to international law to inform those prisoners of their right to contact their own consular representatives or to allow detainees the right to legal counsel.",
"6. Whatever protection may be offered by domestic law, the Assembly reminds the Government of the United States that it is responsible under international law for the well-being of prisoners in its custody.",
"7. The Assembly restates its constant opposition to the death penalty, a threat faced by those prisoners in or outside the United States.",
"8. The Assembly expresses its disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amounts to a serious violation of the right to receive a fair trial and to an act of discrimination contrary to the United Nations International Covenant on Civil and Political Rights.",
"9. In view of the above, the Assembly strongly urges the United States to:",
"9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations;",
"9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status;",
"9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately.",
"10. The Assembly urges the United States to permit representatives of states which have nationals detained in Afghanistan and in Guantánamo Bay, accompanied by independent observers, to have access to sites of detention and unimpeded communication with detainees.",
"...",
"13. The Assembly further regrets that the United States is maintaining its contradictory position, claiming on the one hand that Guantánamo Bay is fully within US jurisdiction, but on the other, that it is outside the protection of the American Constitution. In the event of the United States ’ failure to take remedial actions before the next part-session, or to ameliorate conditions of detention, the Assembly reserves the right to issue appropriate recommendations.”",
"C. International non-governmental organisations",
"1. Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002",
"217. In this memorandum, Amnesty International expressed its concerns that the US Government had transferred and held people in conditions that might amount to cruel, inhuman or degrading treatment and that violated other minimum standards relating to detention, and had refused to grant people in its custody access to legal counsel and to the courts in order to challenge the lawfulness of their detention.",
"2. Human Rights Watch, “ United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees ”, Vol. 14, No. 4 (G), August 2002",
"218. This report included the following passage:",
"“ ... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence. ”",
"3. Human Rights Watch, “ United States: Reports of Torture of Al ‑ Qaeda Suspects ”, 26 December 2002",
"219. This report referred to the article in The Washington Post : “ U.S. Decries Abuse but Defends Interrogations ”, which described “ how persons held in the CIA interrogation centre at Bagram air base in Afghanistan were being subject to ‘ stress and duress ’ techniques, including ‘ standing or kneeling for hours ’ and being ‘ held in awkward, painful positions ’ ”.",
"It further stated:",
"“ The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur. ”",
"4. International Helsinki Federation for Human Rights, “ Anti ‑ terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11 ”, Report, April 2003",
"220. The relevant passage of this report read as follows:",
"“ Many ‘ special interest ’ detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates. ”",
"5. Amnesty International Report 2003 – United States of America, 28 May 2003",
"221. This report discussed the transfer of detainees to Guantánamo, Cuba in 2002, the conditions of their transfer ( “ prisoners were handcuffed, shackled, made to wear mittens, surgical masks and ear muffs, and were effectively blindfolded by the use of taped-over ski goggles ” ) and the conditions of detention ( “ they were held without charge or trial or access to courts, lawyers or relatives ” ). It further stated:",
"“ A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation. ”",
"6. Amnesty International, “ Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay ”, 29 May 2003",
"222. Amnesty International reported on the transfer of six Algerian men, by Bosnian Federation police, from Sarajevo Prison into US custody in Camp X-Ray, located in Guantánamo Bay, Cuba. It expressed its concerns that they had been arbitrarily detained in violation of their rights under the International Covenant on Civil and Political Rights. It also referred to the decision of the Human Rights Chamber of Bosnia and Herzegovina in which the latter had found that the transfer had been in violation of Article 5 of the Convention, Article 1 of Protocol No. 7 and Article 1 of Protocol No. 6.",
"7. Amnesty International, “ United States of America, The threat of a bad example: Undermining international standards as ‘ war on terror ’ detentions continue ”, 18 August 2003",
"223. The relevant passage of this report read as follows:",
"“ Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in ‘ irregular renditions ’, US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections. ”",
"8. Amnesty International, “ Incommunicado detention/Fear of ill ‑ treatment ”, 20 August 2003",
"224. The relevant passage of this report read as follows:",
"“ Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the ‘ rendering ’ of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law. ”",
"9. International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004",
"225. The ICRC expressed its position as follows:",
"“ Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization ’ s current detention work in Guantánamo and Afghanistan. ”",
"10. Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005",
"226. On 6 November 2005 the Human Rights Watch issued a “ Statement on US Secret Detention Facilities in Europe ” ( “ the 2005 HRW Statement ” ), which indicated Romania ’ s and Poland ’ s complicity in the CIA rendition programme. It was given two days after The Washington Post had published Dana Priest ’ s article revealing information of secret detention facilities designated for suspected terrorists run by the CIA outside the US, including “ Eastern European countries ” (see also paragraph 234 below).",
"227. The statement read, in so far as relevant, as follows:",
"“ Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates The Washington Post ’ s allegations that there were detention facilities in Eastern Europe.",
"Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P – a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 – landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research.",
"According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ...",
"On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ...",
"Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees.",
"Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.",
"Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al-Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 ....",
"Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings. ”",
"11. Human Rights Watch – List of “ Ghost Prisoners ” Possibly in CIA Custody of 30 November 2005",
"228. On 30 November 2005 the Human Rights Watch published a “ List of ‘ Ghost Prisoners ’ Possibly in CIA Custody ” ( “ the 2005 HRW List ” ), which included the applicant. The document reads, in so far as relevant, as follows:",
"“ The following is a list of persons believed to be in U.S. custody as ‘ ghost detainees ’ – detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other ‘ ghost detainees ’ held by the United States.",
"Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.",
"Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.",
"The current location of these prisoners is unknown.",
"List, as of December 1, 2005:",
"...",
"4. Abu Zubaydah (also known as Zain al-Abidin Muhammad Husain). Reportedly arrested in March 2002, Faisalabad, Pakistan. Palestinian (born in Saudi Arabia), suspected senior al-Qaeda operational planner. Listed as captured in ‘ George W. Bush: Record of Achievement. Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch.",
"...",
"9. Abd al-Rahim al-Nashiri (or Abdulrahim Mohammad Abda al-Nasheri, aka Abu Bilal al-Makki or Mullah Ahmad Belal). Reportedly arrested in November 2002, United Arab Emirates. Saudi or Yemeni, suspected al-Qaeda chief of operations in the Persian Gulf, and suspected planner of the USS Cole bombing, and attack on the French oil tanker, Limburg. Listed in ‘ George W. Bush: Record of Achievement, Waging and Winning the War on Terror ’, available on the White House website. Previously listed as ‘ disappeared ’ by Human Rights Watch. ... ”",
"VIII. SELECTED MEDIA REPORTS AND ARTICLES",
"229. The applicant and third-party interveners submitted a considerable number of articles and reports published in international and Romanian media, which raised concerns about alleged rendition, secret detentions and ill-treatment in US-run detention facilities for terrorist-suspects captured in the context of the “ war on terror ”. They also submitted materials concerning allegations of the CIA having a secret detention facility in Romania and rendition flights operating on Romanian territory. A summary of most relevant sources is given below.",
"A. International media",
"230. On 11 March 2002 The Washington Post published an article by R. Chandrasekaran and P. Finn entitled “ US Behind Secret Transfer of Terror Suspects ” which read, in so far as relevant, as follows:",
"“ Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families – that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said.",
"After September 11, these sorts of movements have been occurring all the time ’, a US diplomat told the Washington Post. ‘ It allows us to get information from terrorists in a way we can ’ t do on US soil ’. ...",
"U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries – known as ‘ rendition ’ – is not new. In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ... ”",
"231. On 12 March 2002 The Guardian published an article written by D. Campbell, entitled “ US sends suspects to face torture ” which was to an extent based on the above article in The Washington Post. It read, in so far as relevant, as follows:",
"“ The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks.",
"The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted.",
"According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been ‘ working very closely with other countries ’ – it ’ s a global fight against terrorism ’. ...",
"The seizing of suspects and taking them to a third country without due process of law is known as ‘ rendition ’. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ...",
"The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army. ”",
"232. On 2 April 2002 ABC News reported:",
"“ US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantánamo Bay or to a military ship at sea. Sources say it ’ s imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used. ”",
"233. Two Associated Press reports of 2 April 2002 stated:",
"“ Zubaydah is in US custody, but it ’ s unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantánamo Bay, Cuba, or will be transported to a separate location. ”",
"and:",
"“ US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantánamo Bay, Cuba, or transferred to a third country. ”",
"234. On 26 December 2002 The Washington Post published a detailed article entitled “ Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities ”. The article referred explicitly to the practice of rendition and summarised the situation as follows:",
"“ a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ...",
"‘ If you don ’ t violate someone ’ s human rights some of the time; you probably aren ’ t doing your job, ’ said one official who has supervised the capture and transfer of accused terrorists. ”",
"The article also noted that",
"“ there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services ”.",
"The Washington Post also gave details on the rendition process:",
"“ The takedown teams often ‘ package ’ prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape. ”",
"The article received worldwide exposure. In the first weeks of 2003 it was, among other things, the subject of an editorial in the Economist and a statement by the World Organisation against Torture.",
"235. On 28 February 2005 the Newsweek published an article by M. Hirsch, M. Hosenball and J. Barry, entitled “ Aboard Air CIA ”, stating that the CIA ran a secret charter service, shuttling detainees to interrogation facilities worldwide. While the article mainly gave an account of Mr El ‑ Masri capture, rendition, secret detention and further plight in CIA hands, Romania was for the first time mentioned as a transit country for the CIA planes suspected of transporting terrorist-suspects in the context of the flight N313P, Boeing 737, its rendition mission of 16-28 January 2004 and landing in Romania (see also paragraphs 326-328 below). It also stated:",
"“ ... NEWSWEEK has obtained previously unpublished flight plans indicating the agency has been operating a Boeing 737 as part of a top-secret global charter servicing clandestine interrogation facilities used in the war on terror. And the Boeing ’ s flight information, detailed to the day, seems to confirm Masri ’ s tale of abduction. ...",
"The evidence backing up Masri ’ s account of being ‘ snatched ’ by American operatives is only the latest blow to the CIA in the ongoing detention-abuse scandal. Together with previously disclosed flight plans of a smaller Gulfstream V jet, the Boeing 737 ’ s travels are further evidence that a global ‘ ghost ’ prison system, where terror suspects are secretly interrogated, is being operated by the CIA. Several of the Gulfstream flights allegedly correlate with other ‘ renditions ’, the controversial practice of secretly spiriting suspects to other countries without due process. ... ”",
"236. On 2 November 2005 The Washington Post reported that the United States had used secret detention facilities in Eastern Europe and elsewhere to hold illegally persons suspected of terrorism. The article, entitled “ CIA Holds Terror Suspects in Secret Prisons ” cited sources from the US Government, notably the CIA, but no specific locations in Eastern Europe were identified. It was written by Dana Priest, an American journalist. She referred to the countries involved as “ Eastern-European countries ”.",
"It read, in so far as relevant, as follows:",
"“ The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.",
"The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.",
"The hidden global internment network is a central element in the CIA ’ s unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA ’ s covert actions.",
"The existence and locations of the facilities – referred to as ‘ black sites ’ in classified White House, CIA, Justice Department and congressional documents – are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.",
"...",
"Although the CIA will not acknowledge details of its system, intelligence officials defend the agency ’ s approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay.",
"The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.",
"...",
"It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA ’ s internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.",
"Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA ’ s approved ‘ Enhanced Interrogation Techniques ’, some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ‘ waterboarding ’, in which a prisoner is made to believe he or she is drowning.",
"...",
"The contours of the CIA ’ s detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency ’ s prisons.",
"More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq.",
"The detainees break down roughly into two classes, the sources said.",
"About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category – in Thailand and on the grounds of the military prison at Guantánamo Bay – were closed in 2003 and 2004, respectively.",
"A second tier – which these sources believe includes more than 70 detainees – is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as ‘ rendition ’. While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction.",
"...",
"The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials.",
"...",
"The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others – mainly Russia and organized crime.",
"...",
"By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ... ”",
"237. On 5 December 2005, ABC News published a report, by Brian Ross and Richard Esposito, entitled “ Sources Tell ABC News Top Al Qaeda Figures Held in Secret CIA Prisons – 10 Out of 11 High-Value Terror Leaders Subjected to ‘ Enhanced Interrogation Techniques ’ ” and listing the names of top al-Qaeda terrorist suspects held in Poland and Romania, including the applicant and Mr Abu Zubaydah. This report was available on the Internet for only a very short time; it was withdrawn from ABC ’ s webpage shortly thereafter following the intervention of lawyers on behalf of the network ’ s owners. At present, the content is again publicly available and reads, in so far as relevant, as follows:",
"“ Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania.",
"Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert.",
"CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns.",
"The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country.",
"All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA ’ s secret arsenal, the so-called ‘ enhanced interrogation techniques ’ authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18.",
"Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor.",
"Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ‘ The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt ’, Rice said.",
"The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites.",
"But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ‘ My president has said there is no truth in these reports. ’",
"Ross asked: ‘ Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control? ’ Sikorski answered, ‘ I think this is as much as I can tell you about this ’.",
"In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate.",
"Sources tell ABC that the CIA ’ s secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation.",
"Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States.",
"These same sources also tell ABC News that U.S. intelligence also ships some ‘ unlawful combatants ’ to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations.",
"According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu Zabayda in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ... ”",
"238. On 8 December 2011 The Independent published an article written by A. Goldman and M. Apuzzo, entitled “ Inside Romania ’ s secret CIA prison ”. The article suggested that the building used by the National Registry Office for Classified Information ( Oficiul Registrului Naţional al Informaţiilor Secrete de Stat – “ ORNISS ” ) had hosted the CIA secret detention site in Romania. The relevant parts read:",
"“ In northern Bucharest, in a busy residential neighbourhood minutes from the heart of the capital city, is a secret the Romanian government has long tried to protect.",
"For years, the CIA used a government building — codenamed ‘ Bright Light ’ — as a makeshift prison for its most valuable detainees. ...",
"The existence of a CIA prison in Romania has been widely reported, but its location has never been made public. The Associated Press and German public television ARD located the former prison and learned details of the facility where harsh interrogation tactics were used. ARD ’ s programme on the CIA prison is set to air today.",
"The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation programme ended in 2009.",
"Unlike the CIA ’ s facility in Lithuania ’ s countryside or the one hidden in a Polish military installation, the CIA ’ s prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks.",
"The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from NATO and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building.",
"In an interview at the building in November [2011], senior ORNISS official Adrian Camarasan said the basement is one of the most secure rooms in all of Romania. But he said Americans never ran a prison there.",
"‘ No, no. Impossible, impossible, ’ he said in an ARD interview for its ‘ Panorama news broadcast, as a security official monitored the interview.",
"The CIA prison opened for business in the autumn of 2003, after the CIA decided to empty the black site in Poland, according to former US officials.",
"Shuttling detainees into the facility without being seen was relatively easy. After flying into Bucharest, the detainees were brought to the site in vans. CIA operatives then drove down a side road and entered the compound through a rear gate that led to the actual prison.",
"The detainees could then be unloaded and whisked into the ground floor of the prison and into the basement.",
"The basement consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca, the officials said. The cells were on springs, keeping them slightly off balance and causing disorientation among some detainees.",
"The CIA declined to comment on the prison. ...",
"Former US officials said that because the building was a government installation, it provided excellent cover. The prison didn ’ t need heavy security because area residents knew it was owned by the government. People wouldn ’ t be inclined to snoop in post - communist Romania, with its extensive security apparatus known for spying on the country ’ s own citizens.",
"Human rights activists have urged the Eastern European countries to investigate the roles their governments played in hosting the prisons in which interrogation techniques such as waterboarding were used. Officials from these countries continue to deny these prisons ever existed.",
"‘ We know of the criticism, but we have no knowledge of this subject ’, Romanian President Traian Băsescu said in a September [2011] interview with AP. ...",
"The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries. ”",
"B. Romanian media",
"239. On 22 January 2002 Adevărul, a Romanian daily newspaper based in Bucharest, published an article entitled “ Treatment applied to hostages in Afghanistan – ‘ inhuman ’ which read, in so far as relevant, as follows:",
"“ British officials who made a visit to the prison at Guantánamo at the end of last week presented a report to the British government on the manner in which Taliban and Al-Qaida prisoners are treated. The authorities in London are going to study it in detail given that criticism towards Americans has grown in recent days about the treatment applied to prisoners at Guantánamo. Films depicting prisoners blindfolded and chained by their hands and feet, with masks covering their mouth and nose and kneeling before their guards, have led to public concern and condemnation in many countries of the world. Great Britain, the main ally of the USA, was among the first countries in which politicians referred to the images as ‘ shocking ’ and the manner in which prisoners were treated as ‘ monstrous ’.",
"Following pressure from public opinion, the British Foreign Secretary, Jack Straw has asked the Americans to treat hostages from Afghanistan ‘ humanely ’. The USA stated that the images presented depicted prisoners at their time of arrival at Guantánamo and are not representative of how they are treated in prison on a daily basis. For now, the officials from London who visited the prison at Guantánamo stated that the three Britons being held there have not formulated ‘ any complaint ’ in relation to the manner in which they are treated.",
"Disputes between the Americans and British on this topic are the first visible sign of dissent between the two allies since the start of the anti-terrorist campaign. According to British officials, the 144 prisoners who have already arrived at Guantánamo are housed in spaces that look like cages, separated by wire. London is of the view that this kind of ‘ degrading ’ treatment ” is ‘ counterproductive ’, and diminishes the chances of the secret services of obtaining information on potential terrorists from the Muslim community. ... ”",
"240. On 5 February 2002 Adevărul published an article “ The treatment of prisoners at Guantánamo Bay attracts hundreds of new recruits to our ranks ”, which read, in so far as relevant, as follows:",
"“ The treatment of Taliban and Al-Qaida detainees by American troops at the X-Ray detention centre of the Guantánamo Bay American military base, Cuba ‘ will lead to a considerable increase in the number of recruits ’ that will join Islamic terrorist groups, stated Hassan Yousef on Sunday, the leader of Hamas, the extremist organization found on the list of targets in the war on terrorism drawn up by the United States. ... ‘ The Mirror ’, after the international press published a photograph at the end of last week of a detainee taken to interrogation strapped to a stretcher. ... Questioned even from the beginning by European allies, the treatment applied to prisoners captured by US forces in Afghanistan, creates new waves these days both in Europe and overseas. After the former American Secretary of State, Madeline Albright criticized the manner in which the Bush administration decided to treat Guantánamo Bay prisoners (Washington does not consider that the status of prisoner of war applies to Al-Qaida mercenaries). The latest spark to rekindle the controversy about the X-Ray detention center, the picture shown here, caused a powerful storm in Great Britain. On Sunday, Prime Minister Tony Blair made a fierce attack on the weekly newspaper ‘ The Mail on Sunday ’ accusing it of undermining the war on terrorism after this newspaper published an article on its first page in which it suggested that American investigators had interrogated detainees who were unconscious, or in other words, under the influence of drugs. According to experts however, the fact that the photographed detainee had his knees bent is proof that he was conscious at the time that he was photographed. ... ”",
"241. On 25 March 2002 Adevărul published an article entitled “ ‘ American Taliban ’ mistreated by authorities ” which read, in so far as relevant, as follows:",
"“ The ‘ American Taliban ’ John Walker Lindh has been mistreated by American authorities during the time he has been in detention, stated his lawyers in a document sent to the judge, reported newspaper ‘ The Los Angeles Times ’. ‘ The American Taliban ’, John Walker Lindh, stated in a document submitted to the Court that he had been mistreated by American Authorities during the time he has spent in detention. John Walker Lindh, aged 21 years of age, was captured in the North of Afghanistan. Lindh ‘ was blindfolded, and his handcuffs were so tight that they stopped his blood circulation ’, his lawyers added, who claimed that American soldiers ‘ threatened him with death and torture ’. He was given very little food and did not have the right to receive medical care. The defense claimed that ‘ The American Taliban ’ had his clothes cut up and remained ‘ completely naked ’ and was transported ‘ in a metal transport container ’ where there was no source of heat or lighting. ”",
"242. On 27 December 2002 Evenimentul Zilei, a Romanian newspaper based in Bucharestm published an article entitled “ Torture at the CIA? ” which read, in so far as relevant:",
"“ Investigators from the Central Intelligence Agency of the United States (CIA) used stressful and violent interrogation techniques against enemies captured in Afghanistan, that came somewhere between the ‘ boundary of legal and inhuman ’ writes The Washington Post newspaper. The prestigious American newspaper describes metal containers which it says were secret CIA interrogation centers at the Bagram airbase which was the Headquarters of the American forces involved in operations to capture members of al-Qaeda and Taliban leaders.",
"Prisoners who refused to cooperate were kept kneeling for several hours with their eyes covered with black cloth or by tinted glasses. On other occasions, prisoners were forced to adopt strange or painful positions and being also deprived of rest – ‘ were subject to a process known by the technical name ‘ stress and endurance ’. ... The CIA refrained from commenting on the article that appeared in The Washington Post.",
"According to the figures begrudgingly provided by the American authorities, approximately 3000 members have al-Qaeda have been arrested until now, of which 625 are being held at Guantánamo Bay and approximately 100 more have been ‘ transferred ’ to other countries. A few thousand prisoners were arrested and imprisoned with assistance from the United States in countries known and recognized for their brutal treatment of prisoners. The Washington Post adds the fact that the Bush administration applied this kind of policy which was contrary to publicly expressed values, because it had doubts that the American public would support its position. ”",
"243. On 20 May 2003 Evenimentul Zilei published an article entitled “ American torture using heavy metal ” which read, in so far as relevant, as follows:",
"“ American troops in Iraq used a refined form of torture to break the resistance of prisoners and make them talk, according to American magazine Newsweek. Stubborn prisoners were ‘ bombarded ’ with heavy metal music played at maximum volume over long periods of time until their nerves gave out. ... The idea is to break a person ’ s resistance by upsetting him with music that an Iraqi considers to be offensive from a cultural point of view, explained Sergeant Mark Hadsell. ‘ These people never listened to heavy metal in their life and they can ’ t stand it ’, he added. ...",
"Iraqis tortured in war camps",
"These revelations come two days after Amnesty International representatives returning from Iraq stated that many former prisoners, the majority of them civilians, complained that they have been tortured during their detention in camps set up by British and American troops. At least 20 prisoners stated that they were beaten hours on end, and another, a Saudi citizen, said that he was subjected to electric shocks. The Amnesty International Investigation is continuing, with a manager from the organization claiming that we are certainly talking about cases of torture. At the time that the report is completed, Amnesty International will ask American and British authorities to reply to the accusations made by prisoners. ”",
"C. Der Spiegel ’ s publications in 2014 and 2015",
"244. On 13 December 2014 Spiegel Online published an article entitled “ Black Site in Romania: Former spy chief admits existence of CIA camp ” which read as follows:",
"“ There was at least one CIA prison in Romania – that is what the US torture report says. Politicians of that country had always denied this. Now the former Romanian spy chief speaks about a ‘ transit centre ’ of the US secret service.",
"Romanian politicians denied it for almost a decade – but now there is, for the first time, a confession: there were CIA centres in Romania, in which captives were held and possibly also tortured.",
"The former Romanian spy chief Ioan Talpeş told SPIEGEL ONLINE that there were one or two locations in Romania, at which the CIA ‘ probably held persons, who were subjected to inhuman treatment ’. This was the case in the period from 2003 to 2006. Talpeş had previously confirmed the existence of ‘ CIA transit camp ’, as he calls them, in the Bucharest daily ‘ Adevărul ’.",
"Talpeş is 70 years old now. From 1992 to 1997 he led the Romanian secret service abroad, SIE, and from 2000 to 2004 he served as the Chief of the Presidential Administration as well as the head of the National Security Department.",
"Talpeş told SPIEGEL ONLINE that he had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation. In the context of these discussions it was agreed that the CIA could carry out its own activities in certain locations.",
"‘ It was up to the Americans what they did in these places ’",
"He did not know where this was and Romania was, expressly, not interested in what the CIA was doing there. The country wanted to prove its readiness to cooperate, Talpeş said, because it sought NATO-membership. ‘ It was up to the Americans what they did in these places ’, he said. First and foremost thanks to US advocacy, Romania was admitted into NATO in 2004.",
"Dick Marty, the Council of Europe special investigator concerning the secret CIA prisons, had accused Romania in 2005/2006 of hosting illegal CIA prisons for terrorism suspects on its territory. Amnesty International had previously made similar allegations. Among others, the key planner of 9/11, Khalid Sheikh Mohammed, is said to have been held there.",
"Romanian politicians, including Presidents Ion Iliescu (in office from 2000 to 2004) and Traian Băsescu (in office from 2004 to 2014) had always denied this. A commission of inquiry of the Romanian parliament reported in 2006: there were no CIA prisons in the country and no CIA captives were held there or transferred to other countries on transit flights via Romania.",
"Since 2001, the US army has had an air base close to Kogălniceanu in the South East of Romania. Apart from that base, the airports in Craiova in Southern Romania and in Temeswar in Western Romania are reported to have been used for the transport of CIA captives. Already in 2002 Romania signed an agreement with the USA, according to which the country would not extradite US soldiers to the International Criminal Court.",
"Even after the publication of the CIA torture report, in which a Romanian CIA prison is mentioned as a ‘ black site ’, Romanian politicians denied its existence. Victor Ponta, the head of the government, declined to comment on the CIA report.",
"The former Head-of-State Iliescu said on Wednesday that he had had no knowledge of a CIA prison. However, Ioan Talpeş told SPIEGEL ONLINE that he had informed President Iliescu in 2003 and 2004 that the CIA carried out ‘ certain activities ’ on Romanian territory. At that time, Talpeş continued, he himself did not think that the CIA could possibly torture captives. Therefore, ‘ no major significance ’ was attributed to information about the activities of the US secret service in Romania.",
"In response to the question why he had not shared his knowledge when the Council of Europe special investigator, Dick Marty, presented his report, Talpeş stated that he had been unable to speak for as long as the competent US authorities had not expressed themselves on the matter. In this respect he blamed Romanian politicians for denying the existence of the transit camps. ”",
"245. On 22 April 2015 Spiegel Online published an article entitled “ Torture in Romania: Former Head-of-State Iliescu admits existence of CIA prison ” which read:",
"“ The CIA tortured in Romania – that is an open secret. Only the country ’ s officials never wanted to acknowledge that. Now former Head-of-State Iliescu states in SPIEGEL ONLINE: he left a location to the secret service.",
"It is hardly disputed any longer that the CIA entertained one or more secret prisons in Romania following the attacks of 11 September 2001. The CIA report on torture of last December speaks, in a somewhat cryptic way, of ‘ Detention Site Black ’. Several of the most important CIA captives, among them the key planner of 9/11, Khalid Sheikh Mohammed, are said to have been held and tortured in Romania between 2002 and 2006.",
"Despite numerous indications, Romanian officials for years vehemently denied that there had been secret CIA prisons on the country ’ s territory. Now, the late confession concerning the Romanian ‘ Detention Site ’ comes from nobody less than the former Head-of-State Ion Iliescu, who was in office from 2000 to 2004.",
"In an interview with SPIEGEL ONLINE, Iliescu stated that around the turn of the year 2002/2003, ‘ our US allies asked us for a site ’. He, as Head-of-State, did, in principle, grant this request. The details were taken care of by Ioan Talpeş, who, at the time, was the head of the National Security Department and the chief of the Presidential Administration.",
"By virtue of this statement, the 85 year-old Iliescu becomes the second Head-of-State - following the former Polish Head-of-State Aleksander Kwaśniewski – to admit the former existence of a CIA prison on behalf of his country.",
"Iliescu explicitly wants to speak of a location/site ( ‘ Standort ’ ) – he claims not to have known of a prison. ‘ It was about a gesture of courtesy ahead of our accession to NATO ’, Iliescu told SPIEGEL ONLINE.",
"‘ We did not interfere with the activities of the USA on this site. This request seemed like a minor issue to me as the Head-of-State. We were allies, we went to war together in Afghanistan and in the Middle East. Therefore, I did not go into detail when our allies requested a specific site in Romania ’.",
"Had he known more at that time, Iliescu continued, the request would ‘ of course not ’ have been responded to positively. ‘ We learned from this experience to be more attentive in relation to such requests in the future and to ponder more scrupulously ’.",
"Iliescu gave the CIA ‘ plenty of rope ’",
"Talpeş, the former chief of Iliescu ’ s Presidential Administration, had previously led the Romanian secret service abroad, SIE. Vis-à-vis SPIEGEL ONLINE he admitted already last year, as the first Romanian official, the existence of ‘ CIA transit centres ’. Talpeş also confirmed Iliescu ’ s statements now.",
"He had received a request from a representative of the CIA in Romania at the turn of the year 2002/2003 for premises, which the US secret service needed for its own activities. Iliescu gave him ‘ plenty of rope ’ to take care of this request. He arranged for a building in Bucharest to be given to the CIA. This building was used by the CIA from 2003 to 2006. It did no longer exist. He would not reveal where exactly this building was located.",
"Talpeş thereby corrected his earlier statement that he did not know the location of the CIA transit centres. He now states that the only thing he did not know, was whether the CIA also used the US air base in Kogălniceanu in South East Romania. Also, he never visited any of the ‘ CIA sites ’ personally. With regard to the premises in Bucharest, he was aware that ‘ the matter [could] become dangerous ’. Therefore, he explicitly told the CIA representatives that Romania did not want to know anything about the activities on these premises. At the time, he wanted to prove Romania ’ s loyalty to the alliance in the period of the NATO accession through this measure.",
"The statements by Iliescu and Talpeş confirm the 2006/2007 reports by former special investigator of the Council of Europe concerning the secret CIA prisons, Dick Marty. Marty had, already at that time, accused Romania of hosting secret CIA prisons on its territory. Romanian officials and politicians, among them Iliescu, had disputed the allegations. According to Marty ’ s 2007 report, at least five high-ranking Romanian officials were informed about the existence of the secret CIA prisons. Besides Iliescu and Talpeş this included the former Head of State Traian Băsescu, who was in office from 2004 to 2014. Băsescu did not want to comment on the matter following a query from SPIEGEL ONLINE.",
"‘ We did not have any clues back then ’",
"In 2008 a commission of inquiry of the Romanian parliament had concluded that there had not been any secret CIA prisons in Romania and that there was no information on CIA-flights or transports of captives. The former head of this commission, the politician of the Liberals and current Member of the European Parliament, Norica Nicolai, adheres to this statement to the present day. ‘ We did not have any clues back then ’, Nicolai told SPIEGEL ONLINE.",
"However, the chairperson of the Romanian human rights organisation APADOR-CH, Maria Nicoleta Andreescu, describes the work of the commission as ‘ totally inefficient and frivolous ’. APADOR-CH, inter alia, represents the former CIA captive Abd al-Rahim al-Nashiri in Romania. He is said to have planned the attack on the destroyer U.S.S. ‘ Cole ’ in Yemen in October 2000. He was supposedly kept and tortured in Romania between 2003 and 2006. In 2012 Al-Nashiri took legal action against the State of Romania, which is still pending.",
"The APADOR-CH chairperson Andreescu describes Iliescu ’ s present confession on CIA prisons in Romania as a ‘ very important and significant statement ’. ‘ If the Romanian State is willing to clarify the question of CIA prisons, then the public prosecutor must open criminal investigations following this statement ’, Andreescu said. ”",
"IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA",
"A. Council of Europe",
"1. Procedure under Article 52 of the Convention",
"246. In November 2005, the Secretary General of the Council of Europe, Mr Terry Davis, acting under Article 52 of the Convention and in connection with reports of European collusion in secret rendition flights, sent a questionnaire to – at that time 45 – States Parties to the Convention, including Romania.",
"The States were asked to explain how their internal law ensured the effective implementation of the Convention on four issues: 1) adequate controls over acts by foreign agents in their jurisdiction; 2) adequate safeguards to prevent, as regards any person in their jurisdiction, unacknowledged deprivation of liberty, including transport, with or without the involvement of foreign agents; 3) adequate responses (including effective investigations) to any alleged infringements of ECHR rights, notably in the context of deprivation of liberty, resulting from conduct of foreign agents; 4) whether since 1 January 2002 any public official had been involved, by action or omission, in such deprivation of liberty or transport of detainees; whether any official investigation was under way or had been completed.",
"247. The Romanian Government replied on an unspecified date denying that any unacknowledged deprivation of liberty or illegal transport of prisoners had taken place on Romanian territory.",
"248. On 1 March 2006 the Secretary General released his report on the use of his powers under Article 52 of the Convention (SG/Inf (2006) 5) of 28 February 2006 based on the official replies from the member states.",
"2. Parliamentary Assembly ’ s inquiry - the Marty Inquiry",
"249. On 1 November 2005 the PACE launched an investigation into allegations of secret detention facilities being run by the CIA in many member states, for which Swiss Senator Dick Marty was appointed rapporteur.",
"On 15 December 2005 the Parliamentary Assembly requested an opinion from the Venice Commission on the legality of secret detention in the light of the member states ’ international legal obligations, particularly under the European Convention on Human Rights.",
"(a) The 2006 Marty Report",
"250. On 7 June 2006 Senator Dick Marty presented to the PACE his first report prepared in the framework of the investigation launched on 1 November 2005 (see paragraph 24 9 above), revealing what he called a global “ spider ’ s web ” of CIA detentions and transfers and alleged collusion in this system by 14 Council of Europe member states, including Romania. The document, as published by the PACE, was entitled “ Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states ” (Doc. 10957) and commonly referred to as “ the 2006 Marty Report ”.",
"251. Chapter 1.3 of the 2006 Marty Report, entitled “ Secret CIA prisons in Europe? ” read, in so far as relevant, as follows:",
"“ 7. This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), The Washington Post and the ABC television channel. Whereas The Washington Post did not name specific countries hosting, or allegedly having hosted, such detention centres, simply referring generically to ‘ eastern European democracies ’, HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following The Washington Post ’ s revelations. According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called enhanced interrogation techniques ’ ) before being transferred to CIA facilities in North Africa.",
"8. It is interesting to recall that this ABC report, confirming the use of secret detention camps in Poland and Romania by the CIA, was available on the Internet for only a very short time before being withdrawn following the intervention of lawyers on behalf of the network ’ s owners. The Washington Post subsequently admitted that it had been in possession of the names of the countries, but had refrained from naming them further to an agreement entered into with the authorities. It is thus established that considerable pressure was brought to bear to ensure that these countries were not named. It is unclear what arguments prevailed on the media outlets in question to convince them to comply. ... ”",
"252. Chapter 1.8, in paragraph 22, stated:",
"“ 22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states. ”",
"253. Chapter 2.6.1 referred to Romania. It stated, in so far as relevant, as follows:",
"“ 56. Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timișoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic Authority for confirming these flight movements.",
"...",
"58. We can likewise affirm that the plane was not carrying prisoners to further detention when it left Timișoara. Its next destination, after all, was Palma de Mallorca, a well-established “ staging point ”, also used for recuperation purposes in the midst of rendition circuits.",
"59. There is documentation in this instance that the passengers of the N313P plane, using US Government passports and apparently false identities, stayed in a hotel in Palma de Mallorca for two nights before returning to the United States. One can deduce that these passengers, in addition to the crew of the plane, comprised a CIA rendition team, the same team performing all renditions on this circuit.",
"60. The N313P plane stayed on the runway at Timișoara on the night of 25 January 2004 for barely one hour. Based on analysis of the flight capacity of N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is highly unlikely that the purpose of heading to Romania was to refuel. The plane had the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul that night – twice previously on the same circuit, it had already flown longer distances of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers).",
"61. It should be recalled that the rendition team stayed about 30 hours in Kabul after having ‘ rendered ’ Khaled El-Masri. Then, it flew to Romania on the same plane. Having eliminated other explanations – including that of a simple logistics flight, as the trip is a part of a well-established renditions circuit – the most likely hypothesis is that the purpose of this flight was to transport one or several detainees from Kabul to Romania.",
"62. We consider that while all these factual elements do not provide definitive evidence of secret detention centres, they do justify on their own a positive obligation to carry out a serious investigation, which the Romanian authorities do not seem to have done to date. ”",
"254. Chapter 6, entitled “ Attitude of governments ”, stated, among other things, the following:",
"“ 230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known. ”",
"255. In Chapter 8.2 concerning parliamentary investigations undertaken in certain member states, the report referred to Romania under the title “ Romania and “ the former Yugoslav Republic of Macedonia ” stating “ no parliamentary inquiry ” :",
"“ 253. To my knowledge, no parliamentary inquiry whatsoever has taken place in either country, despite the particularly serious and concrete nature of the allegations made against both. ... ”",
"256. Chapter 11 contained conclusions. It stated, inter alia, the following:",
"“ 280. Our analysis of the CIA rendition ’ programme has revealed a network that resembles a ‘ spider ’ s web ’ spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This ‘ web ’, shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.",
"...",
"282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications lead us to believe that they are likely to form part of the ‘ rendition circuits ’. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements – that these landings are detainee drop-off points that are near to secret detention centres.",
"...",
"287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘ guilty ’ for having tolerated secret detention sites, but rather it is to hold them ‘ responsible ’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations.",
"288. In this sense, it must be stated that to date, the following member States could be held responsible, to varying degrees, which are not always settled definitively, for violations of the rights of specific persons identified below (respecting the chronological order as far as possible):",
"- Sweden, in the cases of Ahmed Agiza and Mohamed Alzery;",
"- Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the ‘ Algerian six ’ );",
"- The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed;",
"- Italy, in the cases of Abu Omar and Maher Arar;",
"- ‘ The former Yugoslav Republic of Macedonia ’, in the case of Khaled El-Masri;",
"- Germany, in the cases of Abu Omar, of the ‘ Algerian six ’, and Khaled El-Masri;",
"- Turkey, in the case of the ‘ Algerian six ’.",
"289. Some of these above mentioned states, and others, could be held responsible for collusion – active or passive (in the sense of having tolerated or having been negligent in fulfilling the duty to supervise) - involving secret detention and unlawful inter-state transfers of a non-specified number of persons whose identity so far remains unknown:",
"- Poland and Romania, concerning the running of secret detention centres;",
"- Germany, Turkey, Spain and Cyprus for being ‘ staging points ’ for flights involving the unlawful transfer of detainees. ”",
"(b) The 2007 Marty Report",
"257. On 11 June 2007 the PACE (Committee on Legal Affairs and Human Rights) adopted the second report prepared by Senator Marty ( “ the 2007 Marty Report ” ) (doc. 11302.rev.), revealing that high-value detainees had been held in Romania and in Poland in secret CIA detention centres during the period from 2002 to 2005.",
"The report relied, inter alia, on the cross-referenced testimonies of over thirty serving and former members of intelligence services in the US and Europe, and on a new analysis of computer “ data strings ” from the international flight planning system.",
"258. The introductory remarks referring to the establishment of facts and evidence gathered, read, in so far as relevant:",
"“ 7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to ‘ eastern European democracies ’, although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to ‘ kill, capture and detain ’ terrorist suspects deemed to be of ‘ high value ’. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.",
"8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not ‘ need to know. ’ While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA ’ s illegal activities on their territories.",
"...",
"10. In most cases, the acts took place with the requisite permissions, protections or active assistance of government agencies. We believe that the framework for such assistance was developed around NATO authorisations agreed on 4 October 2001, some of which are public and some of which remain secret. According to several concurring sources, these authorisations served as a platform for bilateral agreements, which – of course – also remain secret.",
"11. In our view, the countries implicated in these programmes have failed in their duty to establish the truth: the evidence of the existence of violations of fundamental human rights is concrete, reliable and corroborative. At the very least, it is such as to require the authorities concerned at last to order proper independent and thorough inquiries and stop obstructing the efforts under way in judicial and parliamentary bodies to establish the truth. International organisations, in particular the Council of Europe, the European Union and NATO, must give serious consideration to ways of avoiding similar abuses in future and ensuring compliance with the formal and binding commitments which states have entered into in terms of the protection of human rights and human dignity.",
"12. Without investigative powers or the necessary resources, our investigations were based solely on astute use of existing materials – for instance, the analysis of thousands of international flight records – and a network of sources established in numerous countries. With very modest means, we had to do real ‘ intelligence ’ work. We were able to establish contacts with people who had worked or still worked for the relevant authorities, in particular intelligence agencies. We have never based our conclusions on single statements and we have only used information that is confirmed by other, totally independent sources. Where possible we have cross-checked our information both in the European countries concerned and on the other side of the Atlantic or through objective documents or data. Clearly, our individual sources were only willing to talk to us on the condition of absolute anonymity. At the start of our investigations, the Committee on Legal Affairs and Human Rights authorised us to guarantee our contacts strict confidentiality where necessary. ... The individuals concerned are not prepared at present to testify in public, but some of them may be in the future if the circumstances were to change. ... ”",
"259. In paragraph 30 of the report it is stressed that “ the HVD programme ha[d] depended on extraordinary authorisations – unprecedented in nature and scope – at both national and international levels. In paragraphs 75 and 83 it was added that:",
"“ 75. The need for unprecedented permissions, according to our sources, arose directly from the CIA ’ s resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades.",
"...",
"83. Based upon my investigations, confirmed by multiple sources in the governmental and intelligence sectors of several countries, I consider that I can assert that the means to cater to the CIA ’ s key operational needs on a multilateral level were developed under the framework of the North Atlantic Treaty Organisation (NATO).",
".... ”",
"260. In paragraphs 112-122 the 2007 Marty Report referred to bilateral agreements between the US and certain countries to host “ black sites ” for high value detainees. This part of the document read, in so far as relevant, as follows:",
"“ 112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.",
"...",
"115. The bilaterals at the top of this range are classified, highly guarded mandates for ‘ deep ’ forms of cooperation that afford – for example – ‘ infrastructure ’, ‘ material support and / or ‘ operational security ’ to the CIA ’ s covert programmes. This high-end category has been described to us as the intelligence sector equivalent of ‘ host nation ’ defence agreements – whereby one country is conducting operations it perceives as being vital to its own national security on another country ’ s territory.",
"116. The classified ‘ host nation ’ arrangements made to accommodate CIA ‘ black sites ’ in Council of Europe member states fall into the last of these categories.",
"117. The CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its High-Value Detainees (HVDs) in secret detention facilities on their respective territories. Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference.",
"118. We have not seen the text of any specific agreement that refers to the holding of High-Value Detainees in Poland or Romania. Indeed it is practically impossible to lay eyes on the classified documents in question or read the precise agreed language because of the rigours of the security-of-information regime, itself kept secret, by which these materials are protected.",
"119. However, we have spoken about the High-Value Detainee programme with multiple well-placed sources in the governments and intelligence services of several countries, including the United States, Poland and Romania. Several of these persons occupied positions of direct involvement in and/or influence over the negotiations that led to these bilateral arrangements being agreed upon. Several of them have knowledge at different levels of the operations of the HVD programme in Europe.",
"120. These persons spoke to us upon strict assurances of confidentiality, extended to them under the terms of the special authorisation I received from my Committee last year. For this reason, in the interests of protecting my sources and preserving the integrity of my investigations, I will not divulge individual names. Yet I can state unambiguously that their testimonies - insofar as they corroborate and validate one another – count as credible, plausible and authoritative. ”",
"261. Paragraphs 128-133 explained the US ’ s choice of European partners. This part of the report read, in so far as relevant, as follows:",
"“ 128. For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD programme should remain limited in size. Thus a ‘ second European site ’ was sought to which the CIA could transfer its detainees with ‘ no major logistical overhaul ’. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA ’ s Counterterrorist Centre remarked about the location of the proposed detention facility, ‘ our guys were familiar with the area ’.",
"...",
"130. Romania was developed into a site to which more detainees were transferred only as the HVD programme expanded. I understand that the Romanian ‘ black site ’ was incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations. ”",
"262. Paragraphs 211-218 contained conclusions as to who were the Romanian State officials responsible for authorising Romania ’ s role in the CIA ’ s HVD programme. These conclusions read, in so far as relevant, as follows:",
"“ 211. During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania. Based upon these discussions, my inquiry has concluded that the following individual office-holders knew about, authorised and stand accountable for Romania ’ s role in the CIA ’ s operation of ‘ out-of-theatre ’ secret detention facilities on Romanian territory, from 2003 to 2005: the former President of Romania (up to 20 December 2004), Ion ILIESCU, the current President of Romania (20 December 2004 onwards), Traian BASESCU, the Presidential Advisor on National Security (until 20 December 2004), Ioan TALPEŞ, the Minister of National Defence (Ministerial oversight up to 20 December 2004), Ioan Mircea PASCU, and the Head of Directorate for Military Intelligence, Sergiu Tudor MEDAR.",
"212. Collaborating with the CIA in this very small circle of trust, Romania ’ s leadership in the fields of national security and military intelligence effectively short-circuited the classic mechanisms of democratic accountability. Both of the political principals, President Iliescu and National Security Advisor Talpeş, sat on (and most often chaired) the CSAT - the Supreme Council of National Defence – throughout this period, yet they withheld the CIA ‘ partnership ’ from the other members of that body who did not have a ‘ need to know ’. This criterion excluded the majority of civilian office-holders in the Romanian Government from complicity at the time. Similarly, the Directors of the respective civilian intelligence agencies, the SRI and the SIE, were not briefed about the operational details and were thus granted ‘ plausible deniability ’.",
"213. We were told that the confidants on the military side, Defence Minister Pascu and General-Lieutenant Medar, had concealed important operational activities from senior figures in the Army and powerful structures to which they were subordinated. According to our sources, ‘ co-operation with America in the context of the NATO framework ’ was used as a general smokescreen behind which to hide the operations of the CIA programme.",
"...",
"216. Ioan Talpeş, the then Presidential Advisor on National Security ( Consilierul prezidențial pentru securitate națională ), was also an instrumental figure in the CIA programme from its inception. According to our sources, Talpeş guided President Iliescu ’ s every decision on issues of NATO harmonisation and bilateral relations with the United States; it has even been suggested that Talpeş was the one who initiated the idea of making facilities on Romanian soil available to US agencies for activities in pursuit of its ‘ war on terror ’. After December 2004, although Talpeş no longer acted as the Presidential Advisor on National Security, he quickly become Chair of the Senate Committee on Defence, Public Order and National Security, which meant that he exercised at least a theoretical degree of ‘ parliamentary oversight ’ over his own successor in the Advisor role.",
"217. Several of our Romanian sources commented that they felt proud to have been able to assist the United States in detaining ‘ high-value ’ terrorists – not only as a gesture of pro-American sentiment, but also because they thought it was ‘ in the best interests of Romania ’. ”",
"263. In paragraphs 219-226 the 2007 Marty Report described “ The anatomy of CIA secret transfers and detention in Romania ”. Those paragraphs read, in so far as relevant, as follows:",
"“ a. Creating a secure area for CIA transfers and detentions",
"219. When the United States Government made its approach for the establishment of a ‘ black site ’ in Romania – offering formidable US support for Romania ’ s full accession into the NATO Alliance as the ‘ biggest prize ’ in exchange – it relied heavily upon its key liaisons in the country to make the case to then President Iliescu. As one high-level Romanian official who was actually involved in the negotiations told us, it was ‘ proposed to the President that we should provide full protection for the United States from an intelligence angle. Nobody from the Romanian side should interfere in these [CIA] activities ’.",
"220. In line with its staunch support under the NATO framework, Romania entered a bilateral ‘ technical agreement ’ with the intention of giving the US the full extent of the permissions and protections it sought. According to one of our sources with knowledge of the arrangement, there was an ‘ ... order [given] to our [military] intelligence services, on behalf of the President, to provide the CIA with all the facilities they required and to protect their operations in whichever way they requested ... ’.",
"...",
"222. The precise location and character of the ‘ black site ’ were not, to the best of my knowledge, stipulated in the original classified bilateral arrangements between Romania and the United States. Our team discussed those questions with multiple sources and we believe that to name a location explicitly would go beyond what it is possible to confirm from the Romanian side. One senior source in military intelligence objected to the notion that anyone but the Americans would ‘ need to know ’ this information: ‘ But I tell you that our Romanian officers do not know what happened inside those areas, because we sealed it off and we had control. There were Americans operating there free from interference – only they saw, only they heard – about the prisoners. ... ’ ”",
"264. Paragraphs 227-230 referred to the persistent cover-up with regard to the transfer of detainees into Romania:",
"“ 227. Our efforts to obtain accurate actual flight records pertaining to the movements of aircraft associated with the CIA in Romania were characterised by obfuscation, inconsistency and genuine confusion. ...",
"228. Specifically I hold three principal concerns with the approach of the Romanian authorities towards the repeated allegations of secret detentions in Romania, and towards my inquiry in particular. In summary, my concerns are: far-reaching and unexplained inconsistencies in Romanian flight and airport data; the responsive and defensive posturing of the national parliamentary inquiry, which stopped short of genuine inquisitiveness; and the insistence of Romania on a position of sweeping, categorical denial of all the allegations, in the process overlooking extensive evidence to the contrary from valuable and credible sources.",
"229. First I was confounded by the clear inconsistencies in the flight data provided to my inquiry from multiple different Romanian sources. In my analysis I have considered data submitted directly from the Romanian Civil Aeronautical Authority (RCAA), data provided by the Romanian Senate Committee, and data gathered independently by our team in the course of its investigations. I have compared the data from these Romanian sources with the records maintained by Eurocontrol, comprehensive aeronautical ‘ data strings ’ generated by the international flight planning system, and my complete Marty Database. The disagreement between these sources is too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destination by Pilots-in-Command, which were communicated to one authority but not to another. There presently exists no truthful account of detainee transfer flights into Romania, and the reason for this situation is that the Romanian authorities probably do not want the truth to come out.",
"230. I found it especially disappointing that the Senate Inquiry Committee chose to interpret its mandate in the rather restrictive terms of defending Romania against what it called ‘ serious accusations against our country, based solely on “ indications ”, “ opinions ”, “ probabilities ”, “ extrapolations ” [and] “ logical deductions ” ‘. In particular, the Committee ’ s conclusions are not framed as coherent findings based on objective fact - finding, but rather as ‘ clear responses to the specific questions raised by Mr Dick Marty ’, referring to both my 2006 report and subsequent correspondence. Accordingly the categorical nature of the Committee ’ s ‘ General Conclusions ’, ‘ Conclusions based on field investigations and site visits ’ and ‘ Final Conclusions ’ cannot be sustained. The Committee ’ s work can thus be seen as an exercise in denial and rebuttal, without impartial consideration of the evidence. Particularly in the light of the material and testimony I have received from sources in Romania, the Committee does not appear to have engaged in a credible and comprehensive inquiry. ”",
"265. By a letter of 15 June 2007 the Delegation of Romania to the PACE submitted a dissenting opinion to the 2007 Marty Report stating, among other things, that “ in full transparency, in 2005, the Romanian authorities have also decided to allow and encourage investigations at all the locations suspected to have hosted CIA centres, on the territory of Romania. Therefore, the airports Mihail Kogălniceanu of Constanţa (including the military airbase) were inspected by representatives of international NGOs, as well as by Romanian and foreign journalists ”.",
"(c ) The 2011 Marty Report",
"266. On 16 September 2011 the PACE (Committee on Legal Affairs and Human Rights) adopted the third report prepared by Senator Marty, entitled “ Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations ” ( “ the 2011 Marty Report ” ), which described the effects of, and progress in, national inquiries into CIA secret detention facilities in some of the Council of Europe ’ s member states.",
"Paragraph 41 related to Romania. Its relevant part read:",
"“ 41. In Romania, parliament has also conducted no more than a superficial inquiry, of which a critical presentation was already given in my 2007 report. Unfortunately, there has been nothing to add since then. ”",
"267. On 6 October 2011, following the 2011 Marty Report, the PACE adopted its Resolution 1838 (2011) which, in part relating to Romania, read:",
"“ 11. With regard to judicial inquiries, the Assembly:",
"...",
"11.4. calls on the judicial authorities of Romania and of ‘ the former Yugoslav Republic of Macedonia ’ to finally initiate serious investigations following the detailed allegations of abductions and secret detentions in respect of those two countries, and on the American authorities to provide without further delay the judicial assistance requested by the prosecuting authorities of the European countries concerned.",
"...",
"12. With regard to parliamentary inquiries, the Assembly:",
"...",
"12.4. deplores the fact that the Polish and Romanian Parliaments confined themselves to inquiries whose main purpose seems to have been to defend the official position of the national authorities ... ”",
"B. European Parliament",
"1. The Fava Inquiry",
"268. On 18 January 2006 the European Parliament set up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners ( “ TDIP ” ) and appointed Mr Giovanni Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava Inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.",
"It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.",
"269. In the course of its work, the TDIP analysed specific cases of extraordinary rendition. According to the Fava Report, these cases “ involved the illegal transport of a prisoner by the secret services, or other specialist services, of a third country (including, but not exclusively, the CIA and other American security services) to various locations, outside any judicial oversight, where the prisoners have neither fundamental rights nor those guaranteed by various international conventions, such as all habeas corpus procedures, the right of the defence to be assisted by a lawyer, the right to due process within a reasonable time, etc. ”",
"The TDIP studied in detail the following cases of extraordinary rendition: Abu Omar (Hassan Mustafa Osama Nasr); Khaled El-Masri; Maher Arar; Mohammed El-Zari; Ahmed Agiza; the “ Six Algerians ” from Bosnia-Herzegovina; Murat Kurnaz; Mohammed Zammar; Abou Elkassim Britel; Binyam Mohammed; Bisher Al-Rawi; Jamil El-Banna; and Martin Mubanga.",
"The TDIP met the victims themselves, their lawyers, the heads of national judicial or parliamentary bodies responsible for specific cases of extraordinary rendition, representatives of European and international organisations or institutions, journalists who followed these cases, representatives of non-governmental organisations, experts in this area either during committee meetings or during official delegation visits.",
"270. The TDIP delegation visited Bucharest from 17 to 19 October 2006 and held meetings with a number of Romanian ’ s high-office holders, including Ms N. Nicolai, the chairman of the Romanian Senate ’ s Special Committee of Inquiry, Mr T. Meleșcanu, Vice-President of the Senate and member of the Special Committee of Inquiry, Mr A.C. Vierița, Secretary of State for EU Affairs at the Ministry of Foreign Affairs, Mr G. Maior, current Head of the Romanian Intelligence Service, Mr R. Timofte, former Head of the Romanian Intelligence Service, representatives of the Ministerial Department of Civil Aviation as well as representatives of various non-governmental organisations, including the Open Society Foundation and APADOR-CH and journalists.",
"271. As regards Romania, the Fava Report expressed, in paragraph 162, “ serious concern ” about the 21 stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come or were bound for “ countries linked with extraordinary rendition circuits and the transfer of detainees ”.",
"It further concluded, in paragraph 164, that based only on the statements made by Romanian authorities to the TDIP delegation to Romania, the possibility that the US secret services operated in Romania on a clandestine basis could not be excluded and that no definitive evidence had been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil.",
"272. Detailed information gathered during the Fava Inquiry was also included in working documents produced together with the Fava Report.",
"Working document no. 8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers prepared during the work of the TDIP (PE 380.984v02-00) contained an analysis of CIA flights having stopped over in Romania in 2003-2005. It named five airports involved and listed the stopovers and landings as filed in flight plans:",
"( a) Bucharest – Otopeni and Băneasa airports, 13 stopovers and 5 take ‑ offs;",
"( b) Timișoara: 1 landing;",
"( c) Constanţa – Kogălniceanu airport: 2 stopovers and 4 landings;",
"( d) Bacău: 1 stopover.",
"The stopovers involved 14 different CIA aircraft, which were identified as follows: N313P; N85VM; N379; N2189M; N8213G; N157A; N173S; N187D; N312ME; N4009L; N4456A; N478GS and N4466A.",
"It was noted, however, that according to Eurocontrol data flight logs concerning Romania had been filed with some inconsistencies; flight plans indicated a landing airport which did not correspond with the following taking off airport. The flight plans that were found to have been inconsistent concerned the following flights:",
"plane N313P",
"flight on 25-26 January 2004, from Kabul with the destination filed for Timișoara but the following take off from Bucharest to Palma de Mallorca",
"plane N85VM",
"( 1) flight on 26-27 January 2004 from Amman with the destination filed for Constanţa but the following take off from Bucharest to Barcelona;",
"( 2) flight on 12 April 2004 from Tenerife with the destination filed for Constanţa but the following take off from Bucharest to Casablanca;",
"plane N379",
"flight on 25 October 2003 from Prague with the destination filed for Constanţa but the following take off from Bucharest to Amman;",
"plane N1HC",
"flight on 5 November 2005 from Porto with the destination filed for Constanţa but the following take off from Bucharest to Amman.",
"273. Working document no. 8 further listed the total number of stopovers for each aircraft and identified three aircraft that were known to have been involved in the CIA rendition operations: N313P (two stopovers), used for the extraordinary rendition of Khaled El Masri (Skopje via Baghdad-Kabul on 24 January 2004) and Benyam Mohammad (Rabat ‑ Kabul 22 January 2004); N85 VM (three stopovers), used for the extraordinary rendition of Osama Mustafa Nasr aka Abu Omar (Ramstein ‑ Cairo 17 February 2003; see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N379P (one stopover), used for the extraordinary renditions of Ahmed Agiza and Mohammed al-Zari (Stockholm-Cairo 18 December 2001), Abu Al Kassem Britel (Islamabad-Rabat 25 May 2002), Benyamin Mohammed (Islamabad-Rabat 21 July 2002), Bisher Al Rawi and Jamil El Manna (Banjul-Kabul 9 December 2002).",
"It also listed flights from suspicious locations that stopped over in Romania in 2003-2005, with the first flight N313P on 22 September 2003 and the last flight N1HC on 5 November 2005. That list, in so far as relevant, read as follows:",
"“ Afghanistan, Kabul + Bagram US Air Base: 5 flights",
"N313P: Kabul– via Szymany, Poland – Bucharest, 22.09.2003",
"N313P: Kabul– Timișoara, 25.01.2004",
"N739P: Bucharest – via Amman, Jordan – Kabul, 25.10.2003",
"N478GS: Bucharest – Bagram US Air Base, 05.12.2004",
"N478GS: Bagram US Air Base - Bucharest, 06.12.2004",
"Jordan, Amman: 8 flights",
"N58VM: Amman – Constanţa, 26.01.2004",
"N58VM: Amman – Constanţa, 01.10.2004",
"N739P: Bucharest - Amman, 25.10.2003",
"N2189M: Amman – Constanţa, 13.06.2003",
"N2189M: Constanţa - Amman, 14.06.2003",
"N1HC: Bucharest – Amman, 05.11.2005",
"N187D: Bucharest – Amman, 27.08.2004",
"N4456A: Bucharest – via Athens, Greece – Amman, 25.08.2004",
"Morocco, Rabat + Casablanca: 2 flights",
"N313P: Bucharest – Rabat, 22.09.2003",
"N58VM: Bucharest – Casablanca, 12.04.2004",
"Cuba, Guantánamo :",
"N313P: Bucharest – via Rabat, Morocco – Guantánamo, 23.09.2003",
"N85VM: Guantánamo – via Tenerife, Spain – Constanţa, 12.04.2004. ”",
"274. Working document no. 9 on certain countries analysed during the work of the Temporary Committee (PE 382.420v02-00) in a section concerning Romania and allegations of the existence of a CIA detention facility on its territory, stated the following:",
"“ A) ALLEGED EXISTENCE OF DETENTION CENTRES",
"Suspected airports supposed to host secret detention centres have been mentioned in mass-media, in some NGOs ’ reports, in Council of Europe ’ s report and have also been inferred from Eurocontrol data, as well as from pictures taken via satellite. These airports are:",
"Timișoara - Gearmata",
"București - Băneasa",
"Constanţa - Kogălniceanu",
"Cataloi - Tulcea",
"Fetești - military ”",
"As regards the parliamentary inquiry conducted in Romania (see also paragraphs 16 5 -169 above), the document read, in so far as relevant, as follows:",
"“ B) NATIONAL OFFICIAL INQUIRIES",
"Parliament",
"A Temporary Inquiry Committee in the Romanian Senate on the Allegations Regarding the Existence of CIA Detention Centres or Flights over Romania ’ s Territory was set up on 21 st December 2005.",
"On 16 June 2006, Ms Norica Nicolai, president of the Special Inquiry Committee presented during a press conference the conclusions of the preliminary report. At that stage, only the chapter 7 of the report was made public and the rest of the report remained classified.",
"...",
"The Committee ’ s term of office has been extended by a Senate ’ s decision on 21 June 2006 following a number of incidents, such as the investigation of the accident involving the Gulfstream aircraft N478GS on 6 December 2004 and the televised statements made by a young Afghan claiming to have been detained in Romania. The Committee ’ s activity is ongoing and during the Senate sittings of 22 November 2006 a new deadline for submitting the final report has been settled: 05 March 2007. ”",
"275. Referring to the alleged involvement of the Romanian authorities in the CIA secret detentions, the document stated:",
"“ C) ROLE OR ATTITUDE OF ROMANIAN BODIES",
"Since the publication of the first news about alleged existence of the CIA prisons and illegal transportation of prisoners, Romanian official position has moved from a first categorical denial that CIA secret prisons could be hosted in Romania and that CIA flights could have landed in this country to a less firm and more doubtful attitude, which confirms that something clandestine, not supposed to be known by Romanian authorities, could have happened either on the planes or in the areas controlled by the American authorities.",
"Cooperation of official authorities with the Temporary Committee ’ s delegation was very high.",
"They claimed that nobody could have thought that human rights violations could have been taking place on Romanian territory and they confirmed that individuals, goods and other equipment circulating on Romanian territory were subject to checks by Romanian officials or military personnel.",
"On 10th November 2005, President Băsescu denied during his visit in Bratislava, the existence of CIA detention centres on Romanian territory. One week after, he declared to be at the disposal of any institution that would like to verify the existence of CIA secret detention sites in Romania. In the same line with the declaration of Mr Băsescu were also the declarations of former minister for external affairs, Mr. Mircea Geoană and of the spokesperson of Romanian Secret Service (SRI), Mr. Marius Beraru.",
"On 20th November 2005, former Romanian minister for defence, Mr Ioan Mircea Pascu, stated in an interview for Associated Press that the Romanian authorities did not have access to certain sites used by U.S. services in Romania. He came back to this declaration, later on, saying that his comments were taken out of the context.",
"Regarding the accident involving the Gulfstream aircraft N478GS on 6 December 2004 the position of the Romanian authorities differed in some extent: Ms Norica Nicolai, chairperson of the Romanian Senate ’ s Special Committee of Inquiry pretended not being able to make available to the delegation the report drawn up by the frontier police on the mentioned accident by invocating the law on data protection. On the other hand, Mr. Anghel Andreescu, Secretary of State for Public Order and Security at the Ministry of Interior and Public Administration, willingly agreed after meeting the TDIP delegation to forward this report and only the following day after receiving it Mr Coelho, chairman of the delegation, was informed that this document has to remain confidential. ”",
"276. The document also identified certain flights landing in Romania, which were associated with the CIA rendition operations:",
"“ D) FLIGHTS",
"Total Flights Number since 2001: 21",
"Principal airports : Kogălniceanu, Timișoara, Otopeni, Băneasa",
"Suspicious destinations and origins : Guantánamo, Cuba; Amman, Jordan; Kabul, Bagram US airbase, Afghanistan; Rabat, Morocco; Baghdad, Iraq.",
"Stopovers of planes transited through Romania and used in other occasions for extraordinary renditions :",
"N379P, used for the extraordinary renditions of: Al Rawi and El Banna; Benyam Mohammed; Kassim Britel and the expulsion of Agiza and El Zari: 1 stopover in Romania",
"N313P, used for the extraordinary renditions of Khalid El Masri and Benyamin Mohamed: 2 stopovers in Romania",
"N85VM, used for the rendition of Abu Omar: 3 stopovers in Romania. ”",
"277. The Fava Report was approved by the European Parliament with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.",
"2. The 2007 European Parliament Resolution",
"278. On 14 February 2007, following the examination of the Fava Report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) ( “ the 2007 EP Resolution ” ). Its general part read, in so far as relevant, as follows:",
"“ The European Parliament,",
"...",
"J. whereas on 6 September 2006, US President George W. Bush confirmed that the Central Intelligence Agency (CIA) was operating a secret detention programme outside the United States,",
"K. whereas President George W. Bush said that the vital information derived from the extraordinary rendition and secret detention programme had been shared with other countries and that the programme would continue, which raises the strong possibility that some European countries may have received, knowingly or unknowingly, information obtained under torture,",
"L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter, ”",
"279. The passages regarding the EU member states read, in so far as relevant:",
"“ 9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;",
"...",
"13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;",
"...",
"39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;",
"...",
"43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);",
"44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;",
"...",
"48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;",
"... ”",
"280. In respect of Romania, the resolution stated:",
"“ ROMANIA",
"[ The European Parliament ]",
"159. Welcomes the excellent hospitality and good cooperation extended by the Romanian authorities to the Temporary Committee, including meetings with members of the Romanian Government, as well as the establishment of an ad hoc inquiry committee of the Romanian Senate;",
"160. Notes, however, the reluctance on the part of the competent Romanian authorities to investigate thoroughly the existence of secret detention facilities on its territory;",
"161. Regrets that the report issued by the Romanian inquiry committee was entirely secret except for its conclusions, included in Chapter 7, categorically denying the possibility that secret detention facilities could be hosted on Romanian soil; regrets that the Romanian inquiry committee heard no testimony from journalists, NGOs, or officials working at airports, and has not yet provided the Temporary Committee with the report contrary to its commitment to do so; regrets that taking these elements into consideration, the conclusions drawn in the Romanian inquiry committee ’ s report appear premature and superficial; takes note, however, of the intention expressed by the Chairwoman of the inquiry committee to the Temporary Committee delegation to consider the conclusions provisional;",
"162. Regrets the lack of control of the Gulfstream aircraft with Registration Number N478GS that suffered an accident on 6 December 2004 when landing in Bucharest; recalls that the aircraft took off from Bagram Air Base in Afghanistan, and that its seven passengers disappeared following the accident; appreciates, however, the good cooperation of the Romanian authorities in handing over the accident report to the Temporary Committee;",
"163. Is deeply concerned to see that the Romanian authorities did not initiate an official investigation process into the case of a passenger on the aircraft Gulfstream N478GS, who was found carrying a Beretta 9 mm Parabellum pistol with ammunition;",
"164. Notes the 21 stopovers made by CIA-operated aircraft at Romanian airports, and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Romania of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri, Binyam Mohammed and Abu Omar and for the expulsion of Ahmed Agiza and Mohammed El Zari; is particularly concerned that, of the flights referred to, two originated from or were destined for Guantánamo; strongly encourages the Romanian authorities further to investigate those flights;",
"165. Is concerned about the doubts expressed in regard to the control exercised by the Romanian authorities over US activities at Kogălniceanu airport;",
"166. Cannot exclude, based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definitive evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil; ”",
"3. The 2011 European Parliament Resolution",
"281. On 9 June 2011 the European Parliament adopted its resolution on Guantánamo: imminent death penalty decision (doc. B70375/2011) relating to Mr Al Nashiri.",
"The European Parliament, while recognising that the applicant was accused of serious crimes, expressed its deep concern that the US authorities in his case had violated international law “ for the last 9 years ”. It called on the US Convening Authority not to apply the death penalty on him, “ on the grounds that the military commission trials do not meet the standards internationally required for the application of the death sentence ”.",
"The European Parliament further appealed to “ the particular responsibility of the Polish and Romanian Governments to make thoroughly inquiries into all indications relating to secret prisons and cases of extraordinary rendition on Polish soil and to insist with the US Government that the death penalty should on no account be applied to Mr Al Nashiri ”.",
"4. The Flautre Report and the 2012 European Parliament Resolution",
"282. On 11 September 2012 the European Union Parliament adopted a report prepared by Hélène Flautre within the Committee on Civil Liberties, Justice and Home Affairs ( “ LIBE ” ) – “ the Flautre Report ”, highlighting new evidence of secret detention centres and extraordinary renditions by the CIA in European Union member states. The report, which came five years after the Fava Inquiry, highlighted new abuses – notably in Romania, Poland and Lithuania, but also in the United Kingdom and other countries – and made recommendations to ensure proper accountability. The report included the Committee on Foreign Affairs ’ opinion and recommendations.",
"In the course of its work, on 27 March 2012, LIBE held a hearing on “ What is new on the alleged CIA illegal detention and transfers of prisoners in Europe ”. At that hearing Mr Crofton Black from the Bureau of Investigative Journalism was heard as an expert.",
"283. Following the examination of the Report the European Union Parliament adopted, on 11 September 2012, the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee report (2012/2033(INI)) ( “ the 2012 EP Resolution ” ).",
"284. Paragraph 13 of the 2012 EP Resolution, which refers to the criminal investigation in Romania, read:",
"“ [The European Parliament ,]",
"“ 12. Notes that the parliamentary inquiry carried out in Romania concluded that no evidence could be found to demonstrate the existence of a secret CIA detention site on Romanian territory; calls on the judicial authorities to open an independent inquiry into alleged CIA secret detention sites in Romania, in particular in the light of the new evidence on flight connections between Romania and Lithuania; ”",
"285. Paragraph 45, which concerns the applicant, read:",
"“ “ [The European Parliament ,]",
"45. Is particularly concerned by the procedure conducted by a US military commission in respect of Abd al-Rahim al-Nashiri, who could be sentenced to death if convicted; calls on the US authorities to rule out the possibility of imposing the death penalty on Mr al ‑ Nashiri and reiterates its long-standing opposition to the death penalty in all cases and under all circumstances; notes that Mr al-Nashiri ’ s case has been before the European Court of Human Rights since 6 May 2011; calls on the authorities of any country in which Mr al-Nashiri was held to use all available means to ensure that he is not subjected to the death penalty; urges the VP/HR to raise the case of Mr al-Nashiri with the US as a matter of priority, in application of the EU Guidelines on the Death Penalty; ”",
"5. The 2013 European Parliament Resolution",
"286. Having regard to the lack of response to the recommendations in the 2012 EP Resolution on the part of the European Commission, on 10 October 2013 the EU Parliament adopted the Resolution on alleged transportation and illegal detention of prisoners in European countries by the CIA (2013/2702(RSP) ( “ the 2013 EP Resolution ” ).",
"Its general part read, in so far as relevant, as follows:",
"“ [ The European Parliament],",
"...",
"G. whereas the in-depth investigative work broadcast on the Antena 1 television channel in April 2013 provided further indications of Romania ’ s central role in the prison network; whereas former national security advisor Ioan Talpeş stated that Romania provided logistical support for the CIA; whereas a former Romanian senator admitted the limitations of the previous parliamentary inquiry and called for prosecutors to initiate judicial proceedings; ”",
"Paragraph 5, which concerned Romania, read:",
"“ [ The European Parliament ,]",
"5. Urges the Romanian authorities to swiftly open an independent, impartial, thorough and effective investigation, to locate missing parliamentary inquiry documents and to cooperate fully with the ECtHR in the case of Al Nashiri v Romania; calls on Romania to comply fully with its fundamental rights obligations. ”",
"6. The 2015 European Parliament Resolution",
"287. Following the publication of the 2014 US Senate Committee Report (see paragraphs 77-96 ), on 11 February 2015 the European Parliament adopted the Resolution on the US Senate Committee Report on the use of torture by the CIA (2014/2997(RSP)) ( “ the 2015 EP Resolution ” ).",
"The European Parliament, while noting that the applicant ’ s application was pending before the ECHR, reiterated its calls on Member States to “ investigate the allegations that there were secret prisons on their territory where people were held under the CIA programme, and to prosecute those involved in these operations, taking into account all the new evidence that has come to light ”.",
"The European Parliament further expressed concern regarding the “ obstacles encountered by national parliamentary and judicial investigations into some Member States ’ involvement in the CIA programme ”.",
"7. LIBE delegation ’ s visit to Romania (24-25 September 2015)",
"288. As a follow up to the 2015 EP Resolution, a delegation from the LIBE visited Bucharest from 24 to 25 September 2015. The delegation was headed by Ms Tanja Fajon and comprised three other members (Ms Eva Joly, Ms Laura Ferrara and Mr Jeroen Lenaers and an accompanying member – Ms Ramona Mănescu). The delegation met with representatives of the Ministry of Foreign Affairs, the Prosecutor General, several members of the Romanian Parliament as well as representatives of civil society and investigative journalists.",
"In connection with the visit, Mr Crofton Black prepared a briefing of 15 September 2015 on “ CIA Detention in Romania and the Senate Intelligence Committee Report ( “ the 2015 LIBE Briefing ” ). The briefing described correlations between the 2014 US Senate Committee Report and other public data sources. It included a summary of flights through Romania and their links to the rendition programme, as well as of summary of data in the 2014 US Senate Committee Report relating to Romania (see also paragraphs 35 5 -35 8 below).",
"8. Follow-up to the visit",
"289. On 13 October 2015 the LIBE held a hearing on “ Investigation of alleged transportation and illegal detention of prisoners in European Countries by the CIA ”. The aim of the hearing was to analyse all past and ongoing parliamentary and judicial inquiries relating to Member States ’ involvement in the CIA programme. During the hearing a research paper was presented by the Policy Department C on the latest developments on Member States investigations into the CIA programme titled: “ A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme ”.",
"The Committee also heard a summary overview by Mr Crofton Black on what had been achieved with reference to CIA operated secret prisons in Europe. In particular, Mr Black stated that since the adoption of the 2012 EP Resolution and the publication of the US Senate ’ s report the evidence had been conclusive that the CIA had operated a prison in Romania from September 2003 to November 2005.",
"At a 13 October 2015 European Parliament hearing, Eva Joly, member of a European Parliament delegation that visited Romania to investigate its role in CIA secret detention operation observed:",
"“ The next morning we met with the Prosecutor General of Romania. He is called Mr. Tiberiu, Mihail Nitu. And he did hide behind the secrecy of the inquiry. But he was able to tell us that he had no proof whatsoever that Mr al Nashiri, who has an ongoing case in the European Court of Human Rights, that he has been detained in Romania. He was denying that, saying that no proof whatsoever. I am not optimistic as to what will come out of this inquiry. To my question on how many witnesses he had heard, how many hotels were in some kilometres around the supposed detention centre, I got the impression that no real inquiry was being carried out. And nobody wanted to help us to get access to the ORNISS centre. We really insisted meeting with the Secretary of State but there was clear instructions to deny us, and no argumentation whatsoever was received. ”",
"9. The 2016 European Parliament Resolution",
"290. On 8 June 2016 the European Parliament adopted a follow-up resolution to the 2015 EP Resolution (2016/2573(RSP)) ( “ the 2016 EP Resolution ” ).",
"Its general part read, in so far as relevant, as follows:",
"“ [The European Parliament ,]",
"“ N. whereas it is regrettable that the members of the fact-finding mission to Bucharest of Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs were not able to visit the National Registry Office for Classified Information (ORNISS) building, reported to have been used as a secret CIA detention site; ... ”",
"In respect of Romania, the resolution further stated:",
"“ [The European Parliament ,]",
"11. Urges Lithuania, Romania and Poland to conduct, as a matter of urgency, transparent, thorough and effective criminal investigations into CIA secret detention facilities on their respective territories, having taken into full consideration all the factual evidence that has been disclosed, to bring perpetrators of human rights violations to justice, to allow the investigators to carry out a comprehensive examination of the renditions flight network and of contact people publicly known to have organised or participated in the flights in question, to carry out forensic examination of the prison sites and the provision of medical care to detainees held at these sites, to analyse phone records and transfers of money, to consider applications for status/participation in the investigation from possible victims, and to ensure that all relevant crimes are considered, including in connection with the transfer of detainees, or to release the conclusions of any investigations undertaken to date;",
"...",
"13. Recalls that the former director of the Romanian secret services, Ioan Talpeş, admitted on record to the European Parliament delegation that he had been fully aware of the CIA ’ s presence on Romanian territory, acknowledging that he had given permission to ‘ lease ’ a government building to the CIA;",
"...",
"16. Welcomes the efforts made so far by Romania, and calls on the Romanian Senate to declassify the remaining classified parts of its 2007 report, namely the annexes on which the conclusions of the Romanian Senate inquiry were based; reiterates its call on Romania to investigate the allegations that there was a secret prison, to prosecute those involved in these operations, taking into account all the new evidence that has come to light, and to conclude the investigation as a matter of urgency;",
"...",
"18. Express its disappointment that, despite several requests (a letter to the Minister of Foreign Affairs of Romania from the Chair of Parliament ’ s Committee on Civil Liberties, Justice and Home Affairs, and another request at the time of the fact-finding mission to the Secretary of State), the members of the fact-finding mission were not able to visit ‘ Bright Light ’, a building repeatedly – and officially – reported to have been used as a detention site; ”",
"C. The 2007 ICRC Report",
"291. The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.",
"After the US President publicly confirmed on 6 September 200 6 that 14 terrorist suspects ( “ high-value detainees ” ) – including the applicant – detained under the CIA detention programme had been transferred to the military authorities in the US Guantánamo Bay Naval Base (see paragraph 60 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen “ High Value Detainees ” in CIA Custody of February 2007 – “ the 2007 ICRC Report ” – which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.",
"The report was (and formally remains) classified as “ strictly confidential ”. It was published by The New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU ’ s site.",
"292. Extracts from the 2007 ICRC Report giving a more detailed account of the applicant ’ s and other HVDs ’ treatment in CIA custody can be found in Al Nashiri v. Poland (cited above, § 282).",
"293. The sections relating to main elements of the HVD Programme, routine procedures for the detainees ’ transfers and their detention regime read, in so far as relevant, as follows:",
"“ 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM",
"... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.",
"...",
"2. ARREST AND TRANSFER",
"... Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006.",
"The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.",
"The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.",
"In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees ’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.",
"... [T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. ...",
"1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION",
"Throughout the entire period during which they were held in the CIA detention program – which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years – the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.",
"None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.",
"In addition, the detainees were denied access to an independent third party. ...",
"1.3. OTHER METHODS OF ILL-TREATMENT",
"... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.",
"...",
"1.4. FURTHER ELEMENTS OF THE DETENTION REGIME",
"The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.",
"In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.",
"The situation was further exacerbated by the following aspects of the detention regime:",
"• Deprivation of access to the open air",
"• Deprivation of exercise",
"• Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation",
"• Restricted access to the Koran linked with interrogation.",
"These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ... ”",
"D. United Nations",
"1. The 2010 UN Joint Study",
"294. On 19 February 2010 the Human Rights Council of United Nations Organisation released the “ Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and protection of Human Rights and Fundamental Freedoms while Countering Terrorism ” – “ the 2010 UN Joint Study ” (A/HRC/1342).",
"295. In the summary, the experts explained their methodology as follows:",
"“ In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.",
"In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well. ”",
"296. In relation to Romania, the report (in paragraphs 116-124) stated, among other things, the following:",
"“ 116. ... In [the 2004 CIA Report], the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that ‘ enhanced interrogation of al-Nashiri continued through 4 December 2002 ’ and another, partially redacted, which stated that ‘ however, after being moved, al-Nashiri was thought to have been withholding information ’, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri ’ s rendition - details which remain classified as ‘ Top Secret ’.",
"117. Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight ‘ circuit ’, during which it landed in and departed from six different foreign territories - the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco - as well as Guantánamo Bay, Cuba. Focus was also placed on a flight between the two listed European ‘ black site ’ locations - namely from Szymany (Poland) to Bucharest - on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit - beginning in Tashkent, concluding in Guantánamo - may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit.",
"119. In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania.",
"...",
"124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by The Washington Post and ABC news led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into ‘ war zone facilities ’ in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantánamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantánamo in September 2006. ”",
"2. The 2015 UN Committee against Torture ’ s Observations",
"297. The UN Committee against Torture ( “ CAT ” ), in its Concluding observations on the second periodic report of Romania adopted on 7 May 2015 – “ the 2015 UN CAT Observations ” – referred to the CIA HVD Programme ’ s operation in Romania in the following terms:",
"“ Secret detention centres and rendition flights",
"15. The Committee is concerned at persistent allegations of illegal detention of persons in secret detention facilities of the Central Intelligence Agency and of extraordinary rendition flights into and out of Romania in the context of the country ’ s international cooperation in countering terrorism. It is also concerned that, in his application filed in 2012 with the European Court of Human Rights, Abd al-Rahim Hussayn Muhammad Al-Nashiri claimed that he had been illegally detained and tortured in an Agency detention facility in Romania; this is currently being investigated by the Romanian Prosecutor General. The Committee is also concerned at the discrepancy between the information provided by the State party, and the statements made in December 2014 by the former head of the Romanian intelligence service which indicated that the authorities had allowed the Agency to operate detention facilities between 2003 and 2006 where inmates allegedly suffered inhumane treatment (arts. 2, 3, 12 and 16).",
"The Committee encourages the State party to continue its investigations into the allegations of its involvement in a programme of secret detention centres, and of the use of its airports and airspace by aeroplanes involved in ‘ extraordinary rendition ’, and to inform the Committee of their outcome. The Committee requests the State party to provide it with information about the outcome of any ongoing investigations regarding the case of Abd al-Rahim Hussayn Muhammad Al-Nashiri. ”",
"X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT",
"298. The respondent Government produced transcripts of the statements and testimony of witnesses heard by the prosecutor in the context of the criminal investigation concerning the alleged existence of CIA secret detention facilities in Romania, together with an English translation. At the Government ’ s request, confidentiality was imposed on this material, in accordance with Rule 33 § 2 of the Rules of Court (see also paragraph 12 above)",
"The Court and the applicant had access to the full versions of these documents. In the English version [1], reproduced below, the names, job titles, functions and other details that might lead to witnesses ’ identities being revealed to the public have been removed. The names of the witnesses have been anonymised by a single letter of the alphabet [2].",
"A. Transcript of witness X ’ s statement made on 18 September 2013",
"299. Witness X made the following statement to the prosecutor :",
"“ During the period 2003-2005, I was [ REDACTED ] and the duties attached to the post that I held included specific aspects concerning the security of civil aviation airports.",
"The [ REDACTED ], had partnerships with various similar institutions from other States, including equivalent structures in the United States of America. In the framework of these bilateral relations, civil aviation aircraft hired by the partner services on which their representatives travelled and landed at Bucharest Băneasa airport. My presence at the airport was aimed at ensuring protocol relations during processing as well as bilateral courtesy - setting according to diplomatic norms and international rules. ”",
"B. Transcript of testimony given by witness Y on 4 May 2015",
"300. The testimony given by witness Y to the prosecutor on 4 May 2015 reads, in so far as relevant, as follows:",
"“ I have been informed that I will be heard as a witness concerning: the existence on the Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America ’ s Central Intelligence Agency.",
"...",
"I declare the following:",
"I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahim Hussein Muhammad Al Nashiri, complained that he had allegedly been brought on the Romanian territory and held in illegal detention centre, administrated by officers of the Central Intelligence Agency (CIA) with help from the Romanian authorities.",
"It is for the first time that I have heard about such a criminal complaint by this citizen against the Romanian State. As a [ REDACTED ], I had never been asked by the authorities of the United States of America to allow, to approve, or to facilitate the hosting on the national territory of a location aimed at serving as a detention and interrogation centre of individual suspected of participating in, initiating or organising terrorist acts directed against the USA or its allies.",
"I do remember that, in the aftermath of the terrorist attacks of 11 September 2001 in the USA, myself and other officials of the Romanian State, at that time, went to the USA Embassy in Bucharest and we expressed our grief for what had happened and condolences for the loss of human lives; in the course of the same year, I visited UN headquarters, and on that occasion, I also visited the so-called ‘ Ground Zero ’. I do not remember any express request addressed to me, to the [ REDACTED ], to the Head of the [ REDACTED ], to the Head of [ REDACTED ], nor the Ministry [ REDACTED ], to intensify the cooperation with the American partners from the intelligence services in the sense of facilitating [the creation] of detention centres on the territory of Romania.",
"I must say that I consider to be an invention this accusation according to which Romania hosted CIA detention centres on its territory and also being a denigration against the Romanian State, because in the [ REDACTED ] meetings such request from the Americans had never been discussed. If such centres had existed, I would certainly have known about their existence on the national territory, for as long as I was [ REDACTED ]. Therefore, I restate that [REDACTED] never received such requests from the USA ’ s then Presidents, George Bush Jr. and Bill Clinton, nor from the three US ambassadors to Bucharest, during [ REDACTED ] and the impugned period [REDACTED].",
"Concerning my statement [ REDACTED ], I state that I did not maintain in that [REDACTED] that Romania had hosted CIA detention centres, but I only referred to the overflight permission ( drept de survol ) to [and from] the Mihail Kogălniceanu airport of Constanţa for the US military aircraft, in the context of Middle East operations, in which we cooperated (troops and equipment transport or others).",
"In the context of Romania ’ s strategic objective of integration into the North Atlantic Alliance and into the European Union, the exchange of information and the cooperation between the national intelligence services and their American counterparts was done in a natural way, as a necessity. In this context, it is possible that CIA offices were run on the national territory, but I cannot with certainty state it, nor deny it, because I never personally gave such authorisation. I see no reason for the Americans to request the setting-up of such facilities on Romanian territory.",
"I wish to state that the initiative of [ REDACTED ] was not mine; it was the initiative of that [ REDACTED ] citizen that [REDACTED] asked me to have a discussion on the general subject of the 25th anniversary of the Revolution; at least, it was that which I was expecting, but it was never mentioned as such to me. I did not expect to be questioned on the issue of the supposed existence of the CIA prisons in Romania.",
"I certainly consider that the heads of the main [ REDACTED ] services would have consulted [REDACTED ], should we have been asked to approve such detention facilities on the Romanian territory, also given the fact that both of them, [ REDACTED ] were members of the [ REDACTED ].",
"I heard about the statements publicly made by [ REDACTED ], and I intend to have a discussion with him, to clarify things on this issue, but because he had gone on holiday, I could not get in touch with him until now.",
"I have no other additional statements to make with regard to the object of this case.",
"... ”",
"C. Transcript of witness Z ’ s statement made on 17 September 2013",
"301. The statement made by witness Z to the prosecutor on 17 September 2013 reads, in so far as relevant, as follows:",
"“ I, the undersigned, [ Z ] ..., declare the following:",
"Between December 2000 and March 2004 I was the [ REDACTED ]. In this capacity I was appointed by the [ REDACTED ] to participate in the negotiations for the accession of Romania to NATO. From [REDACTED] 2004, I held the office of [ REDACTED ].",
"In this capacity, I had several meetings following which the first steps were taken towards setting up the military and intelligence agreements in order to fulfil the accession criteria. This was the co-called pre-accession phase, launched after the Prague meeting of 2 November 2002 during which the NATO Member States had decided that Romania was one of the next candidates for accession to NATO.",
"In this wide negotiation process, I was designated to prepare and negotiate those documents aimed at making Romania ready for its accession to the system, by adopting those necessary operative agreements that had to be effective by the time Romania was declared a NATO member. Concretely, I/we addressed various issues concerning the pre-accession, in the area of defence and intelligence cooperation.",
"Among those discussions, some developments or agreements took place in relation to the American flights to be operated by the CIA which had permission to fly over and land on Romanian territory. It was one of the steps that Romania had to take in order to become a NATO member and it meant fulfilling one of the conditions imposed on all partners of NATO members. From about 2003 onwards, several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions from those provided for by international customs. It should be understood that those flights had a special character and they were not under an obligation to obey the usual rules imposed on civil flights.",
"I state that according to the information I had at that time, such practice of [special] flights was current and particular to all NATO Member States.",
"Concerning the issue of some locations that were to be provided for exclusive use by our American partners, I state that I/we insisted, and it was agreed, that in all those locations the Romanian State should have no participation and all activities were to be undertaken exclusively by the American partners under their exclusive responsibility. This way of doing it was the natural outcome of complying with the condition of attitude between allies. All the discussions in which I participated only concerned the status of the [REDACTED ].",
"I have no knowledge about any detention centre or prisoners taken and located on Romanian territory or about any special treatment applied to such prisoners.",
"I only heard about this issue, and especially about prisoners taken on Romanian territory and detained here, from the press, when the international scandal exploded. I considered that those scandals were aimed at discrediting Romania ’ s accession to NATO and its capacity as a NATO member and as an ally of the United States.",
"I appreciate that by continuing those scandals someone mostly wants to generate disputes at a high political level in the Eastern European Countries that were accepted during the last NATO accession wave.",
"[signature] [REDACTED ] ”",
"D. Transcript of testimony given by witness Z on 18 June 2015",
"302. The testimony given by witness Z to the prosecutor on 18 June 2015 reads, in so far as relevant, as follows:",
"“ I have been informed that I will be heard as a witness concerning: the existence on Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America ’ s Central Intelligence Agency. ...",
"I declare the following:",
"I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahid Husseyn Mohammad Al Nashiri, complained to the Romanian judicial authorities about the fact that he, as well as other individuals suspected of being members of a terrorist organisation, had been brought to Romanian territory and held in illegal detention facilities, administered by officers of the Central Intelligence Agency (CIA) and subjected to physical and psychological torture in order for them to obtain information concerning terrorist organisations.",
"I do not know anything about the facts this complaint refers to and, as can be easily observed, it seems that the Saudi national himself does not know any factual elements that might substantiate his complaint.",
"I only heard about him when his complaint became a matter of public knowledge.",
"By virtue of the public offices of [ REDACTED ] that I previously held, among which the public office of [ REDACTED ] and that of [ REDACTED ], and that of [ REDACTED ], I firmly maintain that the allegations publicly spread concerning the supposed existence, on the territory of Romania, of illegal detention centres administered by the United States of America, through the CIA, centres in which several individuals suspected of being members of a terrorist organisation or of having committed terrorist acts have been held, are nothing but simple allegations or suppositions of some persons that have nothing to do with the realities of the Romanian State.",
"At the time of the terrorist attack of 11 September 2001 in New York, I held, as mentioned before, the office of [ REDACTED ]. On the day of the attack, the then [ REDACTED ], publicly expressed by means of an official statement the commitment of the Romanian authorities to support the USA in their fight against terrorism, by means that were to be subsequently established by common agreement, upon the request of US officials. Immediately after the terrorist attack, in the following 48 hours, [ REDACTED ] called for a meeting of the [ REDACTED], which endorsed the official statement of the [ REDACTED ]; following which Parliament also approved the [ REDACTED ] document.",
"Immediately after those terrorist attacks, our contacts with the representatives of the US diplomatic mission in Romania and other Western diplomatic missions increased and the steps taken by Romania in order to become a NATO member were accelerated.",
"Consequently, in November 2002, at the Prague conference of the NATO Member States, taking into account the progress made, the Heads of State and Government of the NATO Member States invited Romania to join the Alliance.",
"It is true that US Government officials asked the Romanian authorities to offer some locations, on Romanian territory, to be used for actions of combating international terrorist threats, by the representatives of the CIA, on the same pattern as that used in the other NATO Member States. This discussion was one of principle, and finally one single location was offered, without specifying the nature of that location, whether it should have been an office or an office building or land for building some facilities, or some other form. It was understood, at that stage, in 2003, that it should be an office building in Bucharest.",
"The requested site was to be identified and made available by the [ REDACTED].",
"I would make clear that I was directly in charge of these negotiations, having the coordinating role, while the person designated from the Ministry of [ REDACTED ], in charge of the discussions with the American partners, was the then [ REDACTED ].",
"As far as I know, [ REDACTED ] made available to the CIA, in Bucharest, one site which afterwards was converted into [REDACTED] in Romania; this is a method common to the relationships with other NATO Member States.",
"I maintain that I never publicly admitted that, in Romania, CIA illegal detention centres had existed, with the support of the Romanian governmental authorities, in which various persons had been illegally detained, during the US-initiated State detention programme.",
"I only stated that the Romanian authorities cooperated in the anti-terrorist war on an exchange of information basis with the American intelligence services, including the CIA, also by offering a site for the CIA activities.",
"I do not wish to comment on the information given by the mass-media in relation to the persons that were supposed to have been illegally detained on Romanian territory in CIA-run detention centres, the source of this information being the partially published US Senate Report on the detention and interrogation of terrorism suspects programme; I consider that it is the responsibility of the USA to clarify this issue, as long as I have no knowledge of such operations on Romanian territory and I do not know anyone in connection with such a matter.",
"The name of Abu Faraj Al-Libi, Hassan Gul, Janat Gul does not sound familiar to me, given the fact that, as stated before, I did not approve, I did not know and I was not informed of any operation for the transfer or detention of a foreign national by the CIA.",
"Concerning the public debate on the existence of CIA directly or indirectly controlled flights with a special destination on Romanian territory, I would like to say that such flights were operated also in German, English, Italian and other territories, and that they did not represent a Romanian particularity.",
"I have nothing else to state about the facts in this file. ... ”",
"E. Transcripts of statements from other witnesses",
"303. The Government produced twenty-four transcripts of statements from twenty-three witnesses obtained during the criminal investigation, together with an English translation (see also paragraphs 12 and 17 3 above). These statements were obtained at various dates at the end of July and beginning of August 2013 and, subsequently, in September 2015.",
"304. Five witnesses said that in 2003-2005 they “ [did] not know anything about the aircraft with American registration ”, “ [were not] informed about special flights ”, “ [had] no knowledge regarding the flights that came or went ” or “ [did] not know any details regarding the private flights ”.",
"305. The statements of the remaining eighteen witnesses, in so far as relevant, read as follows.",
"1. Witness A",
"306. The transcript of witness A ’ s statement of 30 July 2013 read:",
"“ ... I, the undersigned [ A ] [personal data], state that I work for the [ REDACTED ], as a [ REDACTED ].",
"From 2003 to 2005, I worked for the [ REDACTED ] at Bucharest Băneasa Airport, as [ REDACTED ]. As such, I worked mainly at the [REDACTED] and at other specific departments. In all the departments, my work was governed by the provisions of the [REDACTED] and by the working methodologies. For example, at [REDACTED], I worked in the booths placed on the entry or exit corridor, also I assisted the passengers at the boarding gate and I escorted them to the regular aircraft.",
"Being asked about the ... planes, I don ’ t recall having heard about the mentioned aspects, namely about the disembarkation of clandestine passengers and, implicitly, I did not go to the planes referred to in the questions.",
"There were some cases when private aircraft, according to flight plans, parked in front of the protocol lounge, where we went, together with customs officials, for the checking of documents. There were cases when, together with a RAS employee, we went to the protocol lounge for the checking of the passengers ’ documents – various officials. I declare that I do not recall cases of disembarkation of clandestine passengers. ”",
"2. Witness B",
"307. The transcript of witness B ’ s statement of 30 July 2013 read:",
"“ ... I, the undersigned [ B ], state as follows:",
"[ REDACTED ] founded [ REDACTED ] in 1994 with the purpose of providing handling services for the business aviation at Băneasa Airport. Together with the Airport, I promoted this type of traffic at Băneasa taking into consideration that there was hardly any traffic at the airport as the domestic Tarom flights had just moved to Otopeni. We provide handling services specific to business aviation, which means everything that is connected to the embarkation/disembarkation of passenger/cargo/mail aircraft.",
"For the business aviation there were some specific requests different from the regular commercial aviation, meaning that, usually, business flights ’ operators sent in advance a request for services which was confirmed by our operating agents.",
"At the specified time (2003-2005), [ REDACTED ] operating agents met the aircraft upon arrival and accompanied it upon departure together with the border guard and a customs official.",
"For the business aircraft, our operating agents accompanied the crew and undertook the embarkation/disembarkation of the passengers/luggage.",
"As for the transiting aircraft with American registrations, our personnel were joking about them saying that they were spies.",
"The majority of passengers on these aircraft were men.",
"Usually, our personnel servicing these aircraft did not enter the planes. Those responsible for the handling papers and for receiving the payment for the handling services and the airport taxes went to the aircraft and then, together with a member of the crew, came back to our office in the airport where the final handling sheet was drawn up and the payment was made. At the specified time, I was sometimes present at the airport making unannounced checks. As I did not have a uniform, I personally did not go to the aircraft.",
"In the airport I did not notice any illicit movements in relation to the embarkation/disembarkation of passengers unknown to us or of passengers that did not go through the normal process.",
"During the boom in private and commercial aviation, planes were parked according to their weight (the term ‘ the heavy ones ’ was used).",
"To the question whether it was possible for a passenger to be brought in outside the legal arrival process, I do not believe that such a thing is possible. The airport had a fixed and mobile security service.",
"I have not heard rumours about detainees being flown on the transiting aircraft with American registrations.",
"I indicate that I was asked to provide documents about the handling of these aircraft by a parliamentary commission and that I forwarded all kind of documents, but I did not testify.",
"Also, I would make mention of the fact that, unlike in the case of commercial aviation where the cargo is documented (by way of Pax Manifest, General Declaration, Cargo Manifest), for business aviation there are generally no documents drawn up concerning the identity of the cargo. ”",
"3. Witness C",
"308. The transcript of Witness C ’ s statement of 30 July 2013 read:",
"“ ... I, the undersigned [ C ] [personal data], state as follows:",
"From 2003 to 2005, I was employed by the Romanian Airport Services as [REDACTED ]. It was a [ REDACTED ] job and I was responsible for the documents necessary for take-off without going to the aircraft because I do not have a driving licence. Access to the aircraft is possible only by way of a vehicle.",
"After the landing of an aircraft, the practice began with the movement of the Border Police, the custom agents and the airport security agents and of the RAS operating agent.",
"With the crew ’ s approval, border police entered the aircraft and took the passports and the custom agents were present for the checking of the documents, if necessary. If the aircraft was inspected, the pilots were accompanied by the operating agent by car to the firm ’ s office. If need be, hotel reservations were made or, if they already had reservations, the agent accompanied them to the hotel without passing through the office.",
"For vehicles from outside the airport, access was permitted only after being checked by the security agents. Also, if such a vehicle had to enter the airport premises, access was allowed only accompanied by an agent of the airport security department.",
"I have no knowledge of any aircraft or transport of detainees undertaken by the American authorities on Romanian territory. ”",
"4. Witness D",
"309. The transcript of Witness D ’ s statement of 30 July 2013 read:",
"“ I, the undersigned [ D ] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa International Airport in the [ REDACTED ] as [ REDACTED ]. In this position, I was responsible for the access to airport premises of authorised persons and vehicles.",
"During that time, several private aircraft landed, but they did not come within my responsibility as I was working at a fixed point, without patrolling, and as such I had no contact with incoming/outgoing aircraft or passengers. I declare that during that time there was no patrol service in the proximity of the aircraft, the airport being guarded by the gendarmes and afterwards by a security firm.",
"I had no knowledge about the fact that these private flights were used for the transport in/out of Romania of detainees, finding out about these things many years later in the press. ... ”",
"5. Witness E",
"310. The Government produced transcripts of two statements given by Witness E; the first of 31 July 2013, the second one of an unspecified date.",
"311. The transcript of the statement given on 31 July 2013 read:",
"“ ... I, the undersigned [ E ] [personal data], state as follows:",
"From 2003 to 2005, I was [ REDACTED ] in the airport [ REDACTED ] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [ REDACTED ].",
"During that time, I had personal knowledge of some private flights that landed at night time at Bucharest-Băneasa airport as being flights with a special status.",
"These flights were parked on the airport platform for about 10-15 minutes, after which they took off.",
"I personally have knowledge of 3-4 such flights. The only person approaching these flights was [REDACTED] [ X ], who went to the aircraft in the SRI working van-type vehicle. Other persons on duty were informed early on about the arrival of these flights and did not have access to these planes.",
"I do not know exactly whether [ X ] entered the planes or just stayed by them. I did not see anyone embarking onto or disembarking from these aircraft.",
"The head of the security department at that time was [ REDACTED ], and the head of the control tower and air traffic navigation was [ REDACTED ]. .... ”",
"312. The transcript of Witness E ’ s statement of an unspecified date read:",
"“ ... I, the undersigned E [personal data], state as follows:",
"From 2003 to 2005, I was [ REDACTED ] in the airport [ REDACTED] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [ REDACTED].",
"During that time, I had personal knowledge of some private flights that landed at night time on Băneasa airport as being flights with a special status. ”",
"6. Witness F",
"313. The transcript of Witness F ’ s statement of 31 July 2013 read :",
"“ ... I, the undersigned [ F ] [personal data], state as follows:",
"From October 2001 to January 2007, I was employed by [REDACTED] (Băneasa Airport) as [ REDACTED ].",
"In this capacity, according to my job description, I was responsible for the access control of persons, in the airport area, access control of vehicles in the movement area and access control to the [ REDACTED ].",
"With regard to the access of vehicles on the airport premises, the access of vehicles had to be authorised, all the vehicles and also their drivers were registered, had a special tag and an access permit, so that access was permitted only to the person designated to drive the vehicle, on the basis of a special permit of access to the airport premises, the identification tag where the access areas were indicated, the driving licence and a personal identification document, and for the vehicle on the basis of the vehicle ’ s identification tag and the access permit for the movement area.",
"After the checking of the vehicle, it was necessary to obtain the authorisation of the deputy commander of the airport for access by the vehicle. After the deputy commander had given his approval, the vehicle was noted in a table, mentioning the time of entry, the number of the access permit, the identification number, and the destination within the airport ’ s premises.",
"After the access of the vehicles or of the vehicle a second check was operated by the SRI.",
"It follows that the access of the vehicles, as well as the access of the persons who were accompanied to the access areas of the airport for identification control, etc., was carried out according to the strict rules of the airport security. ”",
"7. Witness G",
"314. The transcript of Witness G ’ s statement of 1 August 2013 read:",
"“ ... I, the undersigned [ G ] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa Airport in the [ REDACTED ] Department as [ REDACTED ], receiving knowledge relating to the flights with the ‘ N ’ call sign, that were announced as special flights to which we were not requested.",
"Generally, these were night flights that arrived for refuelling, and to this effect the operator handling the refuelling would go to the plane. If there was a request for a handling agent, somebody from RAS would go. ... ”",
"8. Witness H",
"315. The transcript of Witness H ’ s statement of 1 August 2013 read:",
"“ ... I, the undersigned [ H ] [personal data], state the following:",
"Starting in 2003 and up to February 2004 I worked for the [ REDACTED ] of Băneasa International Airport as [ REDACTED ]. I handled the security checks of foreign and Romanian citizens entering/exiting Romania and who were in transit across the Romanian border, in compliance with the orders given by the shift chief and the flight plan established for each workday.",
"I processed according to the flight plan all the flights with the ‘ N ’ call sign, without them having a stop in Bucharest. All the passengers from the flights were processed pursuant to the law.",
"I did not see amongst the passengers of the planes individuals with special status, wanted at national or international level. ... ”",
"9. Witness I",
"316. The transcript of Witness I ’ s statement of 1 August 2013 read:",
"“ ... I, the undersigned [ I ] [personal data], state the following:",
"From 2003 to 2005 I worked for the Romanian Airport Services as [ REDACTED ]. I handled the servicing of planes that landed at or departed from Bucharest Airport. As part of my job assignment I also handled refuelling, catering, and receiving payments for handling services.",
"It is worth mentioning that a file exists with all the flight details for all the planes that landed or departed. If there is such a file, it means that that flight landed at or departed from Băneasa Airport.",
"Regarding the American flights with the ‘ N ’ call sign, as in the case of planes flying under other flags, my duty was to provide refuelling, crew transport from the airport to the hotel, catering services, weather reports.",
"Usually, when a technical stop was involved, I would go to the plane alone, accompanied only by the driver of the refuelling vehicle.",
"I declare that I never saw a detainee – passenger, especially of Arab origin, being boarded or disembarked onto/from a plane, American or otherwise. ... ”",
"10. Witness J",
"317. The transcript of Witness J ’ s statement of 2 August 2013 read :",
"“ ... I, the undersigned [ J ] [personal data], state the following:",
"From 2003 to 2005 I worked as [ REDACTED ] at [ REDACTED ] handling the checking of documents needed to cross the State border, in both directions. Regarding the private flights that landed in or departed from Romania, these were processed at the Protocol Lounge of the airport; the individuals were taken from the plane by an RAS car and were brought to the reception area and processed according to the work procedure.",
"I also declare that there was no need for an operational team to go to the plane, as the passengers were brought to the reception area. Likewise it is not possible for the passengers to be taken into unauthorised vehicles and leave the airport premises without passing through the specially designated checkpoints.",
"Personally, I did not see any individual who was boarded onto or disembarked from the American planes, other than the crew and the passengers that we checked. ... ”",
"11. Witness K",
"318. The transcript of Witness K ’ s statement of 2 August 2013 read :",
"“ ... I, the undersigned [ K ] [personal data], state the following:",
"From 2003 to 2005 I was employed at [ REDACTED ] and I handled the services being provided by the airport to planes that were arriving at or departing from Băneasa International Airport. The services included refuelling the planes, cleaning, handling crew transfer to and from the airport. In practice, communication was established with the crew who made the request for services and then we organised the teams, according to the request. Regarding the flights under the American flag, these were flights with a technical stop at Băneasa Airport (refuelling). I did not see any passengers disembarking from or boarding these planes. Also, in order for a car to have access to the parking platform outside the airport, they would require an authorisation issued by the airport administration. ... ”",
"12. Witness L",
"319. The transcript of Witness L ’ s statement of 2 August 2013 read:",
"“ ... I, the undersigned [L] [personal data], state the following:",
"– Between 2003 and 2005 I was an employee of Băneasa Airport [ REDACTED ].",
"– As part of my job description, I handled the access of employees and vehicles that entered the secure area of the airport.",
"– Regarding the private flights under the US flag, I declare that nothing suspicious caught my attention.",
"– I did not see any individuals that might have detainee status who were handcuffed and who were boarded onto or disembarked from the private flights that landed at the airport. ... ”",
"13. Witness M",
"320. The transcript of Witness M ’ s statement of 2 August 2013 read:",
"“ ... I, the undersigned [ M ] [personal data], state the following:",
"Between 2003 and 2005 I worked as [ REDACTED ] for Băneasa Airport [REDACTED] and I handled security inside the airport at personnel access and vehicle and personnel checkpoints; it was not part of my job description [illegible] activities with the planes that entered or exited the platform.",
"We were [not] informed about the special flights not even by the shift manager. They were handled by the deputy commander, the border police, transport police, customs and RIS. ... ”",
"14. Witness N",
"321. The transcript of Witness N ’ s statement of 5 August 2013 read :",
"“ ... I, the undersigned [ N ] [personal data], state the following:",
"From 2003 to 2005 I worked for the Ministry of [ REDACTED ] at Băneasa Airport, as [ REDACTED].",
"I declare that in 2006 I worked at REDACTED] and until that date I had processed documents alongside [petty –sic!] officers with more work experience as I had arrived in Bucharest from the [REDACTED].",
"I have knowledge of private planes landing at Băneasa Airport but I did not note anything out of the ordinary when they landed.",
"When private planes landed, RAS employees would go by bus, pick up the pilots and bring them to the Border for travel documents processing. ”",
"1 5. Witness O",
"322. The transcript of Witness O ’ s statement of 5 August 2013 read:",
"“ ... I, the undersigned [ O ] [personal data], state the following:",
"Between 2003 and 2005 I worked for [REDACTED ] as [ REDACTED ]; as part of my job I provided services to planes that landed at Băneasa International Airport, private and charter flights.",
"During that time, several private flights with US-registered aircraft were operated. These flights went according to plan, carrying business people. One evening, after dawn, a plane landed that was treated differently, as officials from the airport and from the Counter-terrorism squad asked us to stay in the office and not go out to the plane that was about to land. We complied with the request.",
"I cannot recall the date of the flight or the call sign.",
"I never saw a similar case in my time working for [ REDACTED ].",
"At that time I did not know the nature of those flights, and I also did not know whether similar flights were operated at Băneasa Airport.",
"After being asked, I can confirm that on the airport ’ s platform vehicles cannot gain access without prior approval/permission. ... ”",
"1 6. Witness P",
"323. The transcript of Witness P ’ s statement of 5 August 2013 read:",
"“ ... I, the undersigned [ P ] [personal data], state the following:",
"Between 2003 and 2005 I worked at [ Government Editor ’ s note : Bucharest - Băneasa International Airport – Aurel Vlaicu] in [ REDACTED ].",
"I know that special flights were operated at night and in the time frame noted above I saw a plane without a call sign that was positioned in the middle lane of AIBB – AU platform, on the north side.",
"I saw the following activity going on at the side of the plane:",
"- Activities carried out by RAS handling operators;",
"- A passenger disembarking accompanied by a dog, pit bull or Amstaff, and they walked around the plane and after approximately 10 minutes they boarded the plane.",
"I note that the procedure for transporting pets was violated. Pets can be transported in cages that are stored in the plane ’ s hold, in the plane only ... can travel.",
"The plane parked on the AIBB - AV was a GOLF that did not require a mobile stairway, the plane being equipped with an airstair on the plane ’ s door.",
"The individual who disembarked with the dog was dressed in dark overalls with military boots. ... ”",
"1 7. Witness Q",
"324. The transcript of Witness Q ’ s statement of 6 August 2013 read:",
"“ ... I, the undersigned [ Q ] [personal data], state the following:",
"Between 2003 - 2005 I worked for [REDACTED] as [ REDACTED ], being subsequently promoted to [ REDACTED ].",
"In this position, I serviced flights that operated at Băneasa Airport, namely check-in procedures, boarding/disembarking, luggage transport and passenger transport from the plane to the terminal and vice-versa and also providing the services requested by the crew (cesspool emptying, drinking water, catering, etc.).",
"Several flights under the US flag arrived during this time and there were no other special services provided that were different from those provided to any other flight that arrived at Bucharest Băneasa Airport.",
"I do not have any knowledge of any special activity that was provided for these flights. ... ”",
"1 8. Witness R",
"325. The transcript of Witness R ’ s statement of 8 September 2015 read:",
"“ ... I am [REDACTED], from the founding of this institution in [REDACTED] 2002 to the present day. The offices of the institution are found in Bucharest, [ REDACTED ]. From the setting up of the institution to the present day we have always had the same location (with an adjacent location, similar to an interior garden, plus 1 meter of ground all around). Since the time this building was assigned to its present purpose, there have been no major modifications, such as the building of annexes, of other buildings, interior redecoration, etc. From the analysis of the annual budgetary execution of the institution, one can observe that there were no major funds allocated that may be suspected of being used for the setting up of spaces that could be used as secret detention centres, as some media outlets absurdly assert.",
"In other words, since the founding of the institution, which was already mentioned, to the present, our headquarters have never been used as a detention centre for persons suspected of terrorist acts by the CIA or by other governmental institutions, national or foreign, and no activities in relation to this subject have taken place.",
"By its nature, the building [where the ORNISS is located] cannot be used for such a purpose.",
"I am aware of the information circulating in the public space, national or international, about the fact that the [ORNISS] building has been used as a location for the detention of persons suspected of terrorism by the CIA and I strongly affirm that these are merely fallacies.",
"I declare that the institution [ REDACTED ], including its location, is regularly subject to checks by the competent institutions within NATO and the European Union. During these checks, no indications regarding the involvement of the [ORNISS] in the detention of persons suspected of terrorism, from the setting up of the institution and afterwards, have been identified.",
"The activity of the institution is governed by the [ REDACTED]. Anyone [REDACTED] will notice that the [ORNISS] is not a part of the national system of preventing and countering terrorism or of the national system of public order and national security even though, due to the specific nature of its activity, it collaborates with institutions involved in the said systems.",
"Neither personally, nor institutionally, do I/we have relevant information about this subject (the prevention and fight against terrorism). I declare that, after the September 11 2001 attacks, we were never asked to participate in the activities meant to establish the type of help that Romania was to offer the United States of America to help with the prevention and fight against terrorism. ... ”",
"XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT",
"A. RCAA letter of 29 July 2009",
"326. The applicant produced the RCAA letter to the APADOR ‑ CH, dated 29 July 2009 (see also paragraph 11 3 above), which read, in so far as relevant, as follows:",
"“ The Romanian Civil Aeronautical Authority located in ... represented by ... in compliance with the stipulations of the court decision no. 3580 of 15 December 2008 pronounced by Bucharest District Court, we hereby present in the annex to this document the answers to your inquiries included in address no. 261/07.08.2008.",
"Annex to the address no. 19602 of 29.07.2009",
"General specification:",
"The data provided below do not indicate with certainty that these flights were carried out. According to the regulations in effect and applicable on the respective dates, AACR does not have any document that would identify the actual performance of these flights. The information represents planned intentions that AACR was notified about.",
"...",
"01.01.2003 – 31.12.2003",
"N313P – 2 flights",
"N478GS – 1 flight",
"N379P – 1 flight",
"N85VM – we do not have any records of the requested information",
"N227SV – we do not have any records of the requested information",
"N2189M – 2 flights",
"01.01.2004 – 31.12.2004",
"N313P – 2 flights",
"N478GS – we do not have any records of the requested information",
"N379P – we do not have any records of the requested information",
"N85VM – we do not have any records of the requested information",
"N227SV – we do not have any records of the requested information",
"N2189M – we do not have any records of the requested information",
"Answer for point 3:",
"01.01.2003 – 31.12.2003",
"N313P – 2 flights",
"1. Flight itinerary (departure sites, stop sites, destination place): Constanţa - Rabat",
"Airport(s) in Romania where it landed: Băneasa",
"The date of landing and the date on take-off: 23.09.2003; we do not hold any recordings of the date when it took off",
"Flight purpose: private non-commercial",
"Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:",
"- in Romania, it is not mandatory to report the number of people (crew and passengers)",
"- Crew –",
"- Passengers: 9 (according to the date provided by the applicant).",
"2. Flight itinerary (departure sites, stop sites, destination place): Szczytno – Constanţa",
"Airport(s) in Romania where it landed: Băneasa",
"The date of landing and the date of take-off: 22.09.2003; we do not hold any recordings of the date when it took off",
"Flight purpose: private non-commercial",
"Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:",
"- in Romania, it is not mandatory to report the number of people (crew and passengers)",
"- Crew –",
"- Passengers: 9 (according to the date provided by the applicant)",
"...",
"01.01.2004 – 31.12.2004",
"N313P – 2 flights",
"Flight itinerary (departure sites, stop sites, destination place): we do not hold any records of the departure site – Timişoara",
"Airport(s) in Romania where it landed: Timişoara",
"The date of landing and the date on take-off: 25.01.2004; we do not hold any recordings of the date when it took off",
"Flight purpose: maintenance refuelling stop",
"Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:",
"- Crew – we do not hold any records of the requested information",
"- Passengers – we do not hold any records of",
"... ”",
"B. List of twenty -one “ suspicious flights ” produced by the Government",
"327. As part of documents included in the investigation file, the Government produced tables containing details of twenty flights labelled as “ suspicious ”. The tables, which included such data as flight numbers, dates, types and purposes of flights, type of journey, final routes, flights operators, organisers, aircraft, crew, passengers as well as names of the Romanian handling personnel and the Border Police and airport security personnel were available to the Court and the applicant in a full, unredacted version.",
"For the purposes of the non-confidential part of the procedure before the Court, the flight data can be summarised as follows.",
"(a ) Four out of twenty -one flights occurred before 23 September 2003. The three landings en route from or to Baku took place in Bucharest Băneasa Airport on 24 April, 9 May and 16 June 2003, respectively. One landing, en route from Amman occurred in Constanţa Mihail Kogălniceanu Airport on 13 June 2003.",
"(b ) The remaining seventeen flights took place between 23 September 2003 and 5 November 2005.",
"(c) The fifteen flights into in Bucharest Băneasa Airport took place on the following dates:",
"- 23 September 2003, flight N313P",
"- 26 October 2003, flight N379P",
"- 25 January 2004, flight N313P",
"- 27 January 2004, flight N85VM",
"- 12/13 April 2004, flight N85VM",
"- 1 August 2004, flight N288KA",
"- 5 December 2004, flight N478GS",
"- 6 December 2004, flight N478GS",
"- 18 February 2005, flight N787WH",
"- 23 July 2005, flight M308AB",
"- 28 July 2005, flight N308 AB",
"- 21 August 2005, flight N860JB",
"- 6 October 2005, flight N308AB",
"- 20 October 2004, flight N789DK",
"- 5 November 2005, flight N1HC",
"(d) The two flights into Constanţa Mihail Kogălniceanu Airport took place on the following dates:",
"- 1 February 2004, flight N227SV",
"- 25 August 2004, flight N308AB",
"C. Documents concerning the N 313P rendition mission on 16 ‑ 28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation",
"328. In the course of their PowerPoint presentation (see also paragraphs 36 7 -37 6 below ), Senator Marty and Mr J.G.S. produced a number of documents, including flight logs for the N 313P rendition circuit on 16 ‑ 28 January 200 4, as well as a ground handling note and air navigation sheet filed by the Romanian authorities in connection with the N313P ’ s landing in Băneasa Bucharest City Airport on 26 January 2004.",
"According to the flight logs records, N313P departed from Washington on 16 January 2004 flying to Shannon, Ireland. On 17 January 2004 it left Shannon for Larnaca, Cyprus where it stayed for four days, until 21 January 2004. On the latter date, at 18:39 it took off for Rabat Morocco, arriving there at 23:48. It departed from Rabat to Kabul, Afghanistan on 22 January 2004 at 02:05, arriving there at 9:58 and then left Kabul for on the same day in the late afternoon for Alger, Algeria. After staying around one and a half hours in Alger, the plane left at 21.36 for Palma de Mallorca, Spain, landing there late in the evening. The next day, i.e. 23 January 2004 the plane left for Skopje, Macedonia, landing there at 19:51. On 24 January 2004 at 01:30 N313P departed from Skopje to Baghdad, Iraq and, after a stopover lasting some one hour, left for Kabul at 07:15. On 25 January 2004 it departed from Kabul at 18:23 and arrived at Băneasa Bucharest Airport on the same day at 23:51.",
"The plane stayed in Bucharest for slightly over one hour and took off from there to Palma de Mallorca on 26 January 2004 at 01:03. It stayed in Palma de Mallorca until 28 January 2004 and left for Washington at 10:08 on that day. The flight was operated by Stevens Express Leasing Inc..",
"329. The ground handling charge note (no. 00077/04) was issued for N313P (airline: “ Business Jet Solutions ” ) by the RAS in Băneasa -Bucharest City Airport on 26 January 2004 and included landing, lighting and navigation services fees amounting in total to EUR 2,678 / 3,416 US dollars (USD). It indicated the actual arrival date/time as “ 26.01.04 01:22 ” and an identical date and time as the “ estimated departure date/time ”.",
"330. The air navigation sheet (no. 174) was issued by the Romanian Air Traffic Services Administration ( “ ROMATSA ” ) on 26 January 2004 for N313P (airline: “ Business Jet Solutions ” ). It included navigation services amounting to USD 631.40.",
"It indicated the landing time as 23:35 on 25 January and the take-off time as 00:40 on 26 January 2004.",
"D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts)",
"331. The applicant produced a copy of the Lithuanian Parliament – Seimas – document setting out the Seimas Committee on National Security and Defence ( “ CNSD ” ) findings concerning the possible transportation of persons to and incarceration in the territory of the Republic of Lithuania by the CIA ( “ the CNSD Findings ” ). The document included findings made in the course of a parliamentary investigation conducted by the CNSD in connection with publicly voiced allegations concerning the CIA detention facilities in Lithuania, and those findings were endorsed by the Seimas in its resolution No. XI-4 59 adopted on 19 January 2010 (for further details see Abu Zubaydah v. Lithuania, cited above, § 17 4 ).",
"332. Sections relating to the CIA rendition aircraft relevant to the present case read as follows:",
"“ In the course of the investigation, the Committee established that three occasions of crossing of Lithuania ’ s airspace were omitted in the mentioned reply to Dick Marty, ..., and in the data provided by the state enterprise Oro navigacija :",
"...",
"(3) ’ Boeing 737 ’ no N787WH, landed in Vilnius on 6 October 2005;",
"... When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that:",
"Two CIA-related aircraft landed at Vilnius International Airport:",
"...",
"(2) ’ Boeing 737 ’, registration no N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter of Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 am and departed at 5.59 am. According to the documents of the SBGS [the State Border Guard Service], this aircraft arrived from Antalya and departed for Oslo).",
"...",
"During the investigation, three occasions were established on which, according to the testimony of the SSD [the State Security Department] officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD :",
"...",
"( 2) ’ Boeing 737 ’, registration No. N787WH, which landed in Vilnius on 6 October 2005. According to the data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board the aircraft. No customs inspection of the aircraft was carried out;",
"... ”",
"E. Mr Hammarberg ’ s affidavit of 17 April 2013",
"333. The applicant produced an affidavit made by Mr Hammarberg on 17 April 2013. That document read as follows:",
"Affidavit of Thomas Hammarberg",
"“ 1. I, Thomas Hammarberg, served as Council of Europe ’ s Commissioner for Human Rights during 2006-2012. I now work on specific human rights projects for the United Nations and the European Union.",
"2. During my tenure as the Council of Europe ’ s Commissioner for Human Rights, I obtained information on methods used in the efforts to respond to terrorist activities and to prevent further terrorist violence. I had to conclude that some of the governmental measures during these efforts contradicted agreed standards of human rights. I summarised my concerns in two ‘ Human Rights Comments ’, published in September 2011 ... (The two comments are submitted as Attachments A and B to this affidavit).",
"3. My office assembled a considerable amount of data and other information relating to CIA secret detention and extraordinary rendition in Europe through our contacts with credible confidential sources, investigative journalists, expert non-governmental organisations, and lawyers acting on behalf of prisoners. Information on flights associated with extraordinary rendition was obtained from the relevant flight control agency in Europe and could be compared with similar local airport data. I was assisted in the compiling of all of this data and information by an expert colleague, [Mr J.G.S.].",
"4. In the case of Romania, I became convinced that the information that we had obtained showed that the U.S. Central Intelligence Agency had kept suspects detained in a location in Bucharest for the purpose of interrogation. I raised this issue several times with Romanian diplomats asking for a serious investigation into this matter, to no avail.",
"5. On 30 March 2012, I delivered a dossier to the Romanian diplomatic mission in Strasbourg for the General Prosecutor in Bucharest. The purpose was to encourage the General Prosecutor to initiate such an investigation.",
"6. I had previously submitted information of a similar kind to the General Prosecutor in Warsaw which became part of its investigation into the CIA detention facility in Poland.",
"7. In the communication to the General Prosecutor in Bucharest, I had recommended that ‘ this important matter be subjected to judicial scrutiny, by means of opening a prosecutorial investigation, at the earliest possible juncture ’.",
"8. Neither myself nor my successor as Human Rights Commissioner received any formal response to the dossier.",
"9. The dossier submitted to the General Prosecutor at a minimum contains sufficient material to justify a serious investigation into serious human rights abuses associated with CIA secret detention and rendition operations in Romania.",
"10. I am of course aware that confidentiality is protected by governments on aspects of methods used in countering terrorism. This should be respected when relevant but not accepted as a justification for not addressing well substantiated requests for investigations into serious human rights violations, including torture. Such a policy will promote impunity.",
"11. I hereby officially submit the dossier I provided to the Romanian General Prosecutor, which was kept confidential until recently. (The dossier is submitted as Attachment C to this affidavit).",
"Tbilisi, 17 April 2013",
"Signed Thomas Hammarberg ”",
"F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General ( extracts )",
"334. An introductory part of the dossier (attached as Attachment C to the above-mentioned affidavit), read, in so far as relevant, as follows:",
"“ Introduction",
"1. My Office has prepared the present submission pursuant to some discussions with the Permanent Representative of Romania to the Council of Europe, which followed my publication of two Human Rights Comments in September 2011. I have assumed that it is in our common interest to establish the truth and secure accountability in respect of detention and interrogation activities reported to have been earned out at a secret prison facility ( ‘ Black Site ’ ) operated by the US Central Intelligence Agency ( ‘ CIA ’ ) on the territory of Romania in the context of the ‘ war on terror ’.",
"2. Within the terms of my mandate, I have attempted to assemble as much credible factual material as possible regarding the operations of the CIA Black Site in Romania Towards this end I have drawn upon original investigation and analysis undertaken by my Office during the six years of my mandate as Commissioner, as well as the work and findings of other Council of Europe bodies in the same period, notably the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick Marty, as reflected in his reports published in 2006 and 2007.",
"3. The sources for our submission include official US Government documents describing CIA operations (many of which have been declassified as a result of litigation under the Freedom of Information Act, or emerged from other court proceedings), flight records and aeronautical data amassed from diverse entities across the global aviation sector (and especially in the countries that hosted CIA operations), and excerpts of interviews with former CIA detainees earned out by delegates of the International Committee of the Red Cross (ICRC). Reports produced by investigative journalists, notably as a result of a collaboration between the Associated Press and German public television ARD Panorama, have also enabled specific elements of the CIA operations in Romania to be verified and corroborated. ...",
"4. It is my view that sufficient evidence has now been amassed to allow us to consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm that serious human rights abuses took place there. Nonetheless, it remains the role and responsibility of the Romanian authorities to establish the full circumstances of what happened, including the extent and nature of any crimes that occurred. In order to fulfil Romania ’ s positive obligations under the European Convention on Human Rights, I believe it is now imperative that the Romanian authorities conduct a prosecutorial investigation capable of leading to the identification and punishment of those responsible, whoever they might be. ... ”",
"335. The dossier described “ The Anatomy of detention operations at the CIA Black Site in Romania ”.",
"The section relating the opening of the “black site ” read, in so far as relevant as follows:",
"“ 6. The opening of the CIA Base codenamed ‘ Bright Light ’, and the start of detention operations at the CIA Black Site in Romania, was marked by a flight into Bucharest Băneasa Airport (LRBS) on the night of 22 September 2003. Flight records show that the Boeing 737 aircraft, registered with the FAA as N313P, arrived at Băneasa at 21h31m GMT that night in the course of a four-day flight ‘ circuit ’, during which it landed in and departed from a total of six different foreign territories, as well as the US naval installation at Guantánamo Bay, Cuba. ...",
"9. In particular, though, the highlighted route flown between Szymany, Poland - the airfield closest to the location of the CIA ’ s first European Black Site - and Bucharest, Romania was significant because it was the first time in the history of the CIA Rendition and Detention Program that the CIA engaged in its trademark practice of ‘ dummy ’ flight planning for its routes into and out of Romania. ... ”",
"336. It further referred to false flight plans made for N313P for the above circuit including Băneasa Airport on 23 September 2003:",
"“ 11. False flight plans in respect of Romania - customarily filed on behalf of the CIA by its well-known aviation services contractor Jeppesen International Trip Planning ( ‘ Jeppesen ’ ) – consistently featured an airport of departure (ADEP) and / or an airport of destination (ADES) that the aircraft never actually intended to visit. The CIA ’ s deliberate trend, which it began on 22 September 2003 and continued for more than two years, was to avoid listing Bucharest (LRBS) as its express destination. If Bucharest was mentioned at all in these flight plans, then it was usually only as an alternate, or back-up airport, on a route involving Constanţa (LRCK) or Timișoara (LRTR), for example. ...",
"13. It is noteworthy that in the penultimate line of this plan (highlighted yellow), Jeppesen invoked a very important ‘ special status ’, or STS, designation that is supposed to be used only in strictly limited circumstances: ‘ STS/STATE ’. In filing this designation, Jeppesen claimed an official status for N313P as a diplomatic or state aircraft, only one notch below the aircraft that carry Heads of State [STS/HEAD] The flight plan therefore confirms that the mission of N313P, as well as its cover-up, was known about and authorized in the highest echelons of the US Government, as well as in the authorities of the receiving state, Romania. N313P shares this STS designation with the majority of CIA detainee transfer flights into Europe we have analysed. ”",
"337. The dossier also listed further detainee renditions into the CIA ” black site ” in Romania, with sources of evidence being explained as follows :",
"“ Based on having unpicked the practice of ‘ dummy ’ flight planning and, in respect of several key landings of CIA rendition aircraft, having obtained original documentary records from agencies inside Romania, we have been able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of ‘ detainee drop-offs ’. Beginning with the landing of N313P that marked the opening of the CIA Black Site in Romania, the most significant of these flights can be summarised as follows. ... ”",
"The list of rendition flights included:",
"“ i. N313P landing at 21h31m GMT on the night of 22 September 2003, assessed to have been bringing in at least two CIA detainees from Szymany. POLAND, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK);",
"ii. N313P landing at 23h51m GMT on the night of 25 January 2004 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘ dummy ’ flight plans filed featuring Timisoara (LRTR);",
"iii. N85VM landing at 23h14m GMT on the night of 26 January 2004 (assessed to have been bringing in CIA detainee(s) from Amman. JORDAN, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK);",
"iv. N85VM landing at 21h47m GMT on the night of 12 April 2004 (assessed to have been bringing in CIA detainee(s) from US Naval Base, GUANTÁNAMO BAY, via a technical stopover in Tenerife, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK);",
"v. N288KA landing at 21h24m GMT on the night of 31 July 2004 (assessed to have been bringing in CIA detainee(s) from Kabul, AFGHANISTAN and from Amman, JORDAN, ‘ dummy ’ flight plans filed featuring an unspecified destination;",
"vi. N787WH landing at 09h45m GMT on 18 February 2005 (assessed to have been bringing in CIA detainee(s) from Rabat, MOROCCO, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK);",
"vii. N308AB landing at circa 21h00 GMT on 26 May 2005 (assessed to have been bringing in CIA detainee(s) from Amman, JORDAN, ‘ dummy flight plans filed featuring an unspecified destination );",
"viii. N860JB landing at 19h34m GMT on 21 August 2005 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, ‘ dummy ’ flight plans filed featuring Constanţa (LRCK). ”",
"338. The life-cycle of the CIA ” black site ” in Romania was described as follows:",
"“ 15. Our investigations into the CIA ’ s Black Sites in Europe have enabled us to understand the underlying transience of the CIA ’ s individual detention facilities. Simply put, we have found that each CIA Black Site had a unique individual life-cycle.",
"16. The timing of operations on each host territory of a CIA Black Site was highly sensitive and sometimes resulted from abrupt changes in conditions. Factors influencing not only the choice of location for a Black Site, but also the length of its life-cycle, included the CIA ’ s relationships with foreign liaison services/operational partners in the respective host territories, and the CIA ’ s determination to evade detection or exposure of any aspect of its RDI Program.",
"17. Such was the cyclical nature of the CIA ’ s Program, the mantle of most significant venue for detention and interrogation operations shifted from one host territory to another in periods measured by months. Thailand hosted ‘ Black Site No 1 ’ near Bangkok and was the sole ‘ Customized HVD Facility ’ for just under nine months (27 March to 4 December 2002). Poland, host of ‘ Black Site No 2 ’ at Stare Kiejkuty, followed immediately and remained in operation for just under ten months (5 December 2002 until 22 September 2003).",
"18. Such was the expansion of the CIA ’ s HVD Program in the course of 2003, it is not possible to say thereafter that one single site remained predominant for the entirety of its existence However, for a period of at least one year, beginning with its opening on 22 September 2003, the mantle of most significant site passed to Romania, which hosted ‘ Black Site No. 3 ’ in Bucharest.",
"19. Information otherwise gathered regarding the life-cycle of the CIA Black Site in Romania includes the following:",
"The CoE Marty Inquiry found that ‘ Romania was developed into a site to which more detainees were transferred only as the HVD Program expanded ’, and that ‘ the Romanian Black Site was incorporated into the Program in 2003, attained its greatest significance in 2004. and operated [at least] until the second half of 2005. ’",
"The Associated Press has reported that ‘ The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries. All the prisons were closed by May 2006, and the CIA ’ s detention and interrogation program ended m 2009 ’; and",
"ABC News reported on December 5, 2005 that ‘ two CIA secret prisons operat[ed] in Eastern Europe until [November 2005] ’ - presumed to have been in Romania and one other country - and that ‘ the United States scrambled to get all the [detained al-Qaeda ] suspects off European soil before Secretary of State Condoleezza Rice arrived there today. ”",
"339. The description of the operating conditions for the CIA “ black site ” in Romania and of its physical location, capacity and layout read, in so far as relevant, as follows:",
"“ 20. As a result of the aforementioned AP/ARD collaboration, the exact whereabouts, capacity and layout of the CIA Black Site in Romania have been established for the first time. The prison facility was operated in an underground basement that forms part of the building complex housing the National Registry Office for Classified Information (ORNISS), at No 4 Strada Mures, Sector 1, Bucharest.",
"21. It is significant that the facility was found to have been located in the northern part of downtown Bucharest, as this accords with the CIA methodology of maintaining only a short drive between the rendition airfield, Băneasa Airport, and the detention site. ”",
"340. Operating agreements and authorisations on the part of the Romanian authorities were related, in so far as relevant, as follows:",
"“ 23. Recent reporting appears to offer more information than was previously known about the proprietary character of the building(s) in which the CIA Black Site in Romania was housed, and the means by which the premises was appropriated and renovated. There is a precedent in this regard the equivalent CIA Black Site in Poland was a constituent part of an existing state facility that was ‘ loaned ’ to the CIA – situated inside the Polish military intelligence base at Stare Kiejkuty.",
"24. In the case of Romania, the creation and operation of the National Registry Office for Classified information (ORNISS), as a result of Romanian Government Emergency Ordinance No 153 of 7 November 2002, coincided with an important development in the operations of the CIA Rendition, Detention and Interrogation Program, as follows:",
"• The New York Times has reported that Kyle ‘ Dusty ’ Foggo, the then serving Chief of CIA Logistics in Europe (stationed in Frankfurt), agreed in March 2003 to an assignment to ‘ oversee construction ’ of CIA Black Sites in Romania and two other locations.",
"25. It is clear that there exists a set of official documents according to which the basis for the CIA ’ s operation of a secret detention facility on Romanian territory was agreed, and its operational permissions and protections were authorised. The Council of Europe ’ s understanding on this issue was contained in the Marty Report of 2007 in the following terms:",
"• ‘ that the most important documents at issue have the character of ‘ bilaterals ’, derived from the application of the wider NATO framework to US-Romanian counterterrorism cooperation m the course of the ‘ war on terror ’. ”",
"341. Section relating to treatment of detainees held in Romania reads, in so far as relevant:",
"“ 33. Notwithstanding the individual interrogation regimes designed specifically for individual detainees, the CIA reported to the US Department of Justice in 2005 that a set of six Standard Conditions of CIA Detention were being applied routinely to detainees held in the CIA ’ s detention facilities – including at the CIA Black Site in Romania. These conditions included forms of treatment that might in themselves have ramifications for compliance with the ECHR, including the use of blindfolding or hooding, forced shaving of hair, indefinite periods of incommunicado solitary confinement, continuous white noise, continuous illumination using powerful light bulbs, and continuous use of leg shackles (in some instances for 24 hours a day). ”",
"342. According to the dossier HVDs were brought to Romania either to be interrogated using EITs or after a prior interrogation at other “ black sites ”. The first category of the HVDs included Janat Gul and Mustafah Faraj Al-Azibi (Abu Faraj Al-Libi). The second included Khalid Sheikh Mohammed, Walid Bin Attash (aka “ Khallad ” ), Ramzi Binalshibh and Abd Al Rahim Al-Nashiri. It was added that the list of detainees included in the dossier was not exhaustive and that, according to some reports, there had been between two and four further detainees held in Romania at various junctures between 2003 and 2006. The section concerning the applicant read as follows:",
"“ Abd al-Rahim Al-Nashiri",
"• Arrested: October 2002 Dubai, UAE",
"• Previously held: Dubai, Afghanistan, Thailand, Poland, Morocco, Guantánamo Bay",
"•Subjected in Poland to several ‘ unauthorised techniques ’, including incidents described by the CIA Inspector General as the ‘ most significant abuses ’ in the CIA Program",
"Transferred to CIA Black Site in ROMANIA 12 April 2004 N85VM flight Guantánamo Bay (MUGM) – Bucharest (LRBS)",
"• Debriefing subsided considerably beyond February 2004 and is not known to have been subjected to EITs in Romania. ”",
"G. Mr Hammarberg ’ s replies to questions put to him in writing by the Court and the parties",
"343. The Court decided to hear evidence from Mr Hammarberg at the fact-finding hearing. However, since Mr Hammarberg was not available on the hearing date, the Court and the parties addressed questions to him in writing. Mr Hammarberg ’ s written replies were received at the Court ’ s Registry on 9 June 2016.",
"1. The Court ’ s questions",
"344. The Court ’ s questions started form the following introduction:",
"“ In your",
"( a) ’ Human Rights Comments - Europeans must account for their complicity in CIA secret detention and torture ’, published on 5 September 2011;",
"( b) Memorandum, entitled ‘ Advancing accountability in respect of the CIA Black Site in Romania ’ ( ‘ the Memorandum ’ ) of 30 March 2012; and",
"( c) affidavit ( ‘ the Affidavit ’ ) of 17 April 2013, produced by Mr Al Nashiri,",
"you refer, among other things, to Romania ’ s complicity in CIA secret detention, the operation of the CIA detention facility in Bucharest from 22 September 2003 to an unspecified date in the second half of 2005, presumably November 2005 and Mr Al Nashiri ’ s rendition to Romania on 12 April 2004. ”",
"Question 1:",
"“ On the basis of evidence known to you and, in particular, collected in 2006-2012, i.e. during your term as the Council of Europe ’ s Commissioner for Human Rights, can it be said that at the material time (22 September 2003- unspecified date in the second half of 2005, presumably November 2005) Romania knew, or ought to have known of the operation of the CIA rendition programme on its territory and was aware of the existence of the CIA detention facility in Bucharest, designed for interrogation of terrorist-suspects in CIA custody? ”",
"Answer:",
"“ As I stated in my Memorandum of 30 March 2012, it was my view in 2012 that sufficient evidence had been amassed to allow me to consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm that serious human rights abuses took place there (§ 4 of the Memorandum). These operations were, of course, conducted under extreme secrecy. In the case of Poland and Lithuania, it has been established that only a very few high level decision makers were at all informed and had given their confidential consent to the establishment of the interrogation centres. The operation of the centres was totally in hands of CIA officials. It is likely that the situation in Romania was similar.",
"The point I sought to make, at the time of transmitting the Memorandum to the Romanian Prosecutor, was that there was enough prima facie evidence to make it necessary to start a thorough investigation. My aim was to demonstrate the compelling need for a judicial investigation and to assist such procedure through sharing our information. ”",
"345. Question 2:",
"“ In the Memorandum you stated that Mr Al Nashiri was transferred to the ‘ black site ’ in Romania on 12 April 2004 on the CIA rendition plane N85VM.",
"On what kind of evidence was that finding based and how was it possible to establish that this particular individual was transferred to Romania on this specific date? ”",
"Answer:",
"“ The assertion that Mr Al Nashiri was transferred to the ‘ Black Site ’ in Romania on 12 April 2004 on the CIA rendition plane N85VM was made as a result of original investigation work and analysis which was carried out by Mr. J.G.S, an adviser in my Office from 2010 – 2012 (see the case of Al-Nashiri v Poland, application no. 28761/11, 24 July, § 324). The assertion was based on a number of different sources which were cross-referenced and not one piece of evidence in isolation. These sources included: official US Government documents describing CIA operations; flight records and aeronautical data amassed from diverse entities across the global aviation sector (current and former employees of national civil aviation authorities, airports, pilots, private charter companies, US government contractors and sub-contractors, and international organisations such as Eurocontrol); and excerpts of interviews with former CIA detainees carried out by delegates of the International Committee of the Red Cross. Media reports produced by investigative journalists, in particular by the Associated Press and German public television, ARD Panorama, have also enabled specific elements of the CIA ’ s operations in Romania to be verified and corroborated. The work and findings of other Council of Europe bodies in the same period, notably the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick Marty, as reflected in his reports published in 2006 and 2007 also informed my work, as well as original documentary records from agencies inside Romania which assisted enabled me to compile a substantial list of disguised rendition flights into Bucharest.",
"From the combination of these sources, we managed to draw the conclusion that the CIA opened an interrogation centre in Bucharest in September 2003 and that Mr. Al Nashiri was transferred there on 12 April 2004. ”",
"346. Question 3:",
"“ Why was no date, even approximate, of Mr Al Nashiri ’ s transfer from Romania, indicated in the Memorandum? ”",
"Answer:",
"“ The reason why no date, even approximate of Mr Al Nashiri ’ s transfer from Romania was indicated in the Memorandum was that our research did not manage to establish the precise dates for the closure of the centre in Bucharest nor for Mr. Al Nashiri ’ s departure from there. ”",
"347. Question 4:",
"“ In the Affidavit (§§ 4-5) you mentioned that – on several occasions but to no avail – you had raised with the Romanian diplomats the issue of the CIA black sites in Romania and you had informed them that materials in your possession had showed that the CIA had kept suspects detained in a location in Bucharest for the purpose of interrogation.",
"Could you specify, at least approximate, dates on which you raised that issue before delivering your dossier to the Romanian diplomatic mission and what was the authorities ’ response? ”",
"Answer:",
"“ I raised the issues reflected in the Memorandum in meetings with the Romanian Ambassador (Permanent Representative) to the Council of Europe on 5 September 2011, 30 January 2012 and 29 March 2012. These were confidential meetings held between myself as Commissioner for Human Rights and the Ambassador, as representative of the Romanian authorities. I do not feel in a position to disclose the precise contents of those discussions, save to underline that during the meeting on 29 March 2012, I handed over my Memorandum, which was addressed to the Prosecutor General in Bucharest. The Memorandum was then published a number of months later on 18 December 2012. ”",
"348. Question 5:",
"“ In the Affidavit (§§ 7-9) you mentioned that you had received no ‘ formal response ’ to the dossier that you had prepared for the Romanian Prosecutor General.",
"Did you receive any other response, even informal? Did you have an opportunity to discuss the question of instituting an investigation with the Romanian authorities at any further stage? If so, how did the authorities react to the information of the CIA ‘ black sites ’ on their territory which they had received from you? ”",
"Answer:",
"“ I received no response from the Romanian authorities, not even an informal one. ”",
"2. The Romanian Government ’ s questions",
"349. Question 1:",
"“ Having regard to the fact that the change of flight plans after being submitted represents a unilateral action of the flight operator and to the fact that the route changes are reflected in the documents issued by the Romanian authorities, which is the evidence that led to the conclusion that a simple change of flight plans (allowed by the relevant domestic and international regulations such as the IFPS Users Manual) represented a cover-up with the complicity of the Romanian authorities? ”",
"Question 2:",
"“ Having regard to the IFPS Users Manual provisions concerning the STS/STATE indicator, which were the domestic or international legislation or the relevant elements of fact that led to the conclusion that the flights with the STS/STATE indicator analysed in the Memorandum that landed on Romanian territory benefited from certain privileges and which were these privileges? ”",
"Answers to questions 1 and 2:",
"“ The changing of flight routes was systematic with the obvious purpose of protecting the secrecy of the operations. In our investigation work we were able to unpick the practice of such ‘ dummy ’ flight planning. In respect of several key landings of the CIA rendition aircraft we did obtain original documentary records from agencies inside Romania. We were also able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of ‘ detainee drop-offs ’.",
"Though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers. This is further underlined by the fact that the flights had been given the very important ‘ special status ’ - STS/STATE - a designation that is supposed to be used only in strictly limited circumstances: in attributing this designation, the CIA company claimed an official status for the plane, N313P, as a diplomatic or state aircraft, only one notch below the aircraft that carries Heads of State [STS/HEAD]. ”",
"350. Question 3:",
"“ Having regard to the fact that the Memorandum quotes the 2007 Marty report as a reliable source for many of its conclusions, which were the reasons that determined the author to dismiss Senator ’ s Marty supposition that a secret detention site was located in the area of the Mihail Kogălniceanu Airport (§§ 222-226 of the 2007 Marty Report)? What led the author of the 2012 Memorandum to conclude that the information provided by Senator ’ s Marty sources on this subject is less believable than the information provided on other aspects cited in the Memorandum? ”",
"Question 4:",
"“ Having regard to the fact that certain reports put forward several dates as the possible date of entry of the applicant on Romanian territory, which are the elements that justify the Memorandum ’ s conclusion that the applicant entered Romania on the 12th of April 2004? ”",
"Answers to questions 3 and 4:",
"“ The reports from 2006 and 2007 by Senator Dick Marty to the Parliamentary Assembly of the Council of Europe provided important background information to the Office of Commissioner for Human Rights as well as non-governmental human rights organizations and serious investigative media outfits to put together further information on this issue.",
"However, the Commissioner ’ s Office used multiple sources in its research. I refer back to my answer to Question 2 in response to the Court ’ s questions. ”",
"3. The applicant ’ s questions",
"351. Question 1:",
"“ Would Mr. Hammarberg like to supply further information relating to Romania ’ s participation in the CIA ’ s secret detention and extraordinary rendition programme, including its hosting of a secret CIA prison where the applicant was secretly detained? ”",
"Answer:",
"“ One aspect which should be mentioned is that the CIA rendition and interrogation programme was conducted behind a wall of extreme secrecy. Even after the closure of the programme it has been very difficult to establish facts about these activities. It is no secret that US authorities have taken extraordinary steps to prevent basic facts to be known, even in relation to judicial actors in other countries. ”",
"352. Question 2:",
"“ Given that the European Court of Human Rights has now made findings of fact that multiple European countries participated in a secret CIA rendition programme, does that have an impact on his assessment of the evidence and his conclusion that Romania was also a participant in that programme? ”",
"Answer:",
"“ 2. It is true that it is now established that multiple European countries participated in the secret CIA rendition program. Knowledge about the political relationship at the time between Washington and Bucharest may make it seem more likely that Romania was one of these countries. However, that in itself does not prove that that was the case. It does, however, underline the importance of an effective, independent investigation of evidence about such Romanian participation. ”",
"353. Question 3:",
"“ Would Mr. Hammarberg like to supply further information relating to Romania ’ s failure to conduct an effective investigation into its role in the CIA ’ s secret detention and extraordinary rendition programme? ”",
"Answer:",
"“ The human rights violations committed during the CIA rendition and interrogation activities at the time included illegal, secret detention and torture. Data presented by various sources, some of them mentioned in my Memorandum, indicate that an interrogation centre was indeed established in Bucharest. An official policy of total denial and non-response to the quest for a serious investigation appears contrary to the very spirit of internationally agreed human rights. The implied message might be understood as basic human rights – including the avoidance of impunity – is less important that than good cooperation between security agencies. ”",
"H. Senator Marty ’ s affidavit of 24 April 2013",
"354. The applicant produced an affidavit made by Senator Marty and dated 24 April 2013. That document read as follows:",
"“ Affidavit of Dr. Dick F. MARTY",
"1. I, Dick MARTY, served as a Senator in the Council of States of Switzerland for 16 years, from 1995 until 2011. For 14 of those years, I represented Switzerland as a delegate to the Parliamentary Assembly of the Council of Europe ( ‘ PACE ’ ). I held several leadership positions during my political career, including in Switzerland as Chairman of the Senate Foreign Affairs Committee, and in Strasbourg as Chairman of the PACE Committee on Legal Affairs & Human Rights and of the PACE Monitoring Committee.",
"2. Between 2005 and 2007 1 was the PACE Rapporteur on ‘ Secret detentions and illegal transfers of detainees involving Council of Europe member states ’. In this capacity, prepared two reports, both of which were adopted with resounding majorities in PACE Plenary Sessions: ‘ Alleged secret detentions and unlawful interstate transfers of detainees involving Council of Europe member states ’, dated 12 June 2006 (the ‘ 2006 PACE Report ’ ); and ‘ Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report ’, dated 7 June 2007 (the ‘ 2007 PACE Report ’ ).",
"These two reports focused on the secret detention and rendition operations carried out by the United States Central Intelligence Agency ( ‘ CIA ’ ) in its ‘ war on terror ’ and the extent to which European states were complicit in the resultant abuses of human rights.",
"3. In compiling my 2006 and 2007 PACE Reports, 1 spent considerable time investigating the existence of a CIA secret prison, or ‘ Black Site ’, on the territory of Romania. My findings in each Report were carefully considered and contained the factual elements that were supported by the information available to mc at the relevant time.",
"4. In my 2006 PACE Report, I included Romania (represented, notably, by a landing point at Băneasa Airport in Bucharest) as a key component of the ‘ global spider ’ s web ’ of secret detentions and renditions, having found it to be ‘ thus far the only Council of Europe member State to be located on one of the rendition circuits... and which bears all the characteristics of a detainee transferor drop-off point ’.",
"5. In my 2007 PACE Report, after several further months of inquiry including fieldwork in the countries concerned, I was able to present much more detailed and categorical findings regarding the operations of the CIA ’ s High-Value Detainee ( ‘ HVD ’ ) Programme in Europe. I concluded that there was, by that stage, ‘ enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania ’.",
"6. In a section of my 2007 PACE Report entitled ‘ Secret detention operations in Romania ’, I described at some length the means by which Romanian and American officials at various levels had colluded on the operations of the CIA ‘ Black Site ’. I also identified and named five senior office-holders in successive Romanian Governments who ‘ knew about, authorised and stand accountable for Romania ’ s role ’ and in doing so had ‘ short-circuited the classic mechanisms of democratic accountability ’.",
"7. By the end of my mandate as PACE Rapporteur on the subject, in 2007, my convictions regarding Romania ’ s participation in the CIA ’ s HVD Programme were unambiguous and unwavering. My key findings were stated in the strongest terms possible, supported by the most comprehensive information available to me at the time. Based on my 2007 Report, the PACE Committee on Legal Affairs & Human Rights considered it ‘ factually established ’ that Romania was one of the European countries that had hosted a CIA secret prison. The caveat I had previously inserted in my 2006 PACE Report, when I had surmised that there was ‘ [a]t this stage [in June 2006] ... no formal evidence, was rendered redundant by June 2007 ’. There is no such caveat in my 2007 PACE Report.",
"8. Up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports. Indeed my certitude that a CIA ‘ Black Site ’ existed in Romania has only increased since that time. Subsequent international investigations – notably by investigative journalists – into various aspects of the CIA ’ s HVD Programme have independently vindicated the conclusions of my PACE Reports, and / or have developed certain lines of inquiry regarding Romania even further than 1 was able to. My belief in the ‘ dynamics of truth ’ has remained firm.",
"9. I am duly informed about the Application in the case of Al-Nashiri v. Romania, filed on 12 August 2012 and currently pending before this Court. I am familiar with the applicant ’ s claims and with much of the evidentiary material on which he relies.",
"10. In addition I have read carefully the Romanian Government ’ s Written Observations ( ‘ Romanian Government Response ’, or ‘ RGR ’ ) in response to the Application, filed on 11 December 2012 and made available to me by the Applicant ’ s legal representatives.",
"11. I note that the Romanian Government has chosen to attack the veracity, credibility and consistency of my PACE Reports at numerous points in its Written Observations. This strategy is disappointing, albeit unsurprising to me. In fact, it is entirely typical of the ‘ responsive and defensive posturing... stop[ping] short of genuine inquisitiveness ’, which I highlighted in my 2007 PACE Report as one of my ‘ three principal concerns ’ with the approach of the Romanian authorities towards the repeated allegations of secret detentions in Romania, and towards my inquiry in particular.",
"12. I regret that the Romanian authorities continue to prefer attacking me than addressing their own wilful failure to carry out a full and thorough judicial investigation. In any case, the Romanian authorities ’ attacks on my PACE Reports are misguided, as I shall demonstrate point–by–point in the paragraphs that follow.",
"13. First, the Romanian Government repeatedly asserts, wrongly, that I based my PACE Reports on ‘ newspaper articles ’ or on ‘ feeble indications ’. On the contrary, my 2006 and 2007 PACE Reports were the products of one of the most intensive and far-reaching inquiries I have ever led - including in my 20-year career as a state prosecutor.",
"14. My inquiry team gathered and analysed information in a manner more analogous to law enforcement investigation or, as I wrote in my 2007 PACE Report, ‘ real “ intelligence ” work ’ – notwithstanding our modest means. The information we compiled was, with hindsight, more voluminous and more compelling in character than even that which serious Prosecutors, at national level, had been able to assemble. It bears mentioning that several such Prosecutors, in different countries, have gone on to regard our information as evidence, and to tender it as such in judicial proceedings.",
"15. A key strand of our information came from testimonial sources whom we identified, screened, located, approached and built relationships with during our in-country missions across Europe and in the United States. We made field visits to capital cities, to the vicinities of suspected detention sites and to repositories of official information; we met representatives of both political and intelligence structures and developed them as our sources, often working patiently over a period of months to hold multiple conversations of incrementally increasing value. We ultimately spoke with, and in many cases interviewed, ‘ over 30 one-time members (serving, retired or having carried out contract work) of intelligence services ’, the majority of whom were from the US, Poland or Romania.",
"16. With regard to the basis for my findings on Romania, I ensured in my 2007 PACE Report that I was as specific and explicit as possible about the nature of my sources: ‘ During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania.",
"17. I hereby affirm that our sources in Romania included persons who knew about the means by which the CIA HVD Programme was authorised and executed in their country precisely because they had a ‘ need-to-know ’, in accordance with the CIA ’ s strict secrecy and compartmentalisation policies. What the Romanian Government seeks to dismiss as a ‘ contradiction ’ is actually an inconvenient truth: 1 received confirmation of Romania ’ s role from the same persons who belonged to the ‘ very small circle of trust ’ inside the responsible Romanian authorities.",
"18. I further note that the Romanian Government has attempted to impugn my integrity by characterising my methodology as subjective and even ‘ pretended ’, and by attacking my conclusions, variously, as ‘ erroneous ’’, ‘ unsubstantiated ’ and containing ‘ a lot of contradictions ’. In my defence, I need only restate my professional credentials and reiterate that the methodology 1 employed was as rigorous as any I am aware of under an inquiry mechanism of this nature. In the introduction to my 2007 PACE Report, I explained in detail my policies on corroboration, as well as the strictly limited basis on which I was able to guarantee confidentiality to certain sources. I might only reflect, again with regret, that these parameters were ‘ imposed upon us because of the lack of collaboration from the states concerned ’.",
"19. Finally the Romanian Government seeks to attribute to my PACE Reports certain assertions on disputed points of fact that I never made. The first such instance regards the physical location of the CIA ‘ Black Site ’ in Romania, for which the Romanian Government states that ‘ the alleged sources changed their assumptions each time it was established that no secret detention facility ever existed in the indicated place. For my part, I explained in 2007 that I was not prepared to pronounce categorically on the precise location of the CIA ‘ Black Site ’ in Romania because I believed that ‘ to name a location explicitly would go beyond what it is possible to confirm from the Romanian side ’.",
"20. The second instance is where the Romanian Government states that ‘ according to the 2007 Marty ’ s Report, the applicant was delivered to detention in Romania on 22 September 2003, on board the aircraft N313P. This is plainly a misattribution; in my 2007 PACE Report, I stated that I was unable to place any particular detainee onto a given CIA rendition flight into Romania, on the basis that ‘ [t]here presently exists no truthful account of detainee transfer flights into Romania, and the reason for this situation is that the Romanian authorities probably do not want the truth to come out.",
"21. Thus, notwithstanding the strength of the information on which I relied, I maintain that in several areas of my Reports I understated my findings and – notably with regard to which detainees were held in Romania between which dates, and on which rendition flights they were transported – I stopped short of conclusions that could have been even more grave for Romania in the context of the present proceedings.",
"22. The reason for my restraint was my overriding concern for objectivity, which meant that every item of information in my PACE Reports had to be verified, validated and corroborated, not least in light of the potential legal ramifications. In short I was guided, as I am today, by a deep-rooted personal commitment to the values the Council of Europe has always worked to uphold.",
"I declare that the information I provide herein is true to the best of my knowledge and belief.",
"Signature: Dr Dick F. Marty Date: 24 April 2013 ”",
"I. The 2015 LIBE Briefing",
"355. The 2015 LIBE Briefing of 15 September 2015, prepared by Mr Crofton Black was produced by the Bureau of Investigative Journalism and the Rendition Project ( “ the TBIJ/TRP ” ) for the EU Parliament LIBE Committee Delegation to Romania (see paragraph 288 above), in connection with their continuing inquiry into the alleged transportation and illegal detention of prisoners in Europe committed by the CIA (see also paragraphs 2 68 -2 90 above).",
"The document described correlations between the 2014 US Senate Committee Report and other public data sources and consisted of two parts: a summary of flights with links to the rendition programme through Romania and a summary of data in that report which could be related to Romania. It stated that the 2014 US Senate Committee Report confirmed previous accounts of the CIA secret detention in Romania and the existing public source data on transfer dates of prisoners into and out of Romania, named some HVDs held in Romania and described torture inflicted on some prisoners held in Romania. In its appendices it contained recorded flight plan data for each trip of rendition flights concerned and main contracting documents relating to rendition missions executed by air companies for the CIA.",
"356. The 2015 LIBE Briefing stated that it was established beyond reasonable doubt that:",
"( a) a facility in Romania had been used by the CIA to hold prisoners;",
"( b) prisoners had been first transferred to this facility in September 2003;",
"( c) prisoners had last been transferred out of this facility in November 2005;",
"( d) other transfers of CIA prisoners between Romania and other countries had occurred between these dates;",
"( e) the 2014 US Senate Committee Report named five prisoners held in Romania. Several others had been named in other reporting.",
"( f) some transfers were carried out by planes operated by Aero Contractors/Stevens Express, two shell companies with strong links to the rendition programme (see also paragraphs 69-70 above);",
"( g) other transfers were carried out by a network of aviation companies working alongside prime contractor Computer Sciences Corporation, operating through a linked group of contracts;",
"( h) while in Romania, some prisoners had been tortured.",
"357. As regards the flights operated by Aero Contractors/Stevens Express, according to the 2015 LIBE Briefing two aircraft registered as N379P and N313P were active in the rendition programme between 2001 and 2004. Investigations by journalists, lawyers, NGOs and international bodies linked them to at least fifteen rendition missions. Three missions by these two aircraft related to prisoner transfers through Romania. The flights took place, respectively, on 22-23 September 2003, 25-26 October 2003 and 25 January 2004.",
"The relevant passages from the 2015 LIBE Briefing read:",
"“ On 22-23 September 2003, N313P flew from Afghanistan to Poland, Romania, Morocco and Guantánamo Bay. Authoritative sources summarized in the European Court of Human Rights ’ judgement in Husayn (Abu Zubaydah) v. Poland show that this was a rendition mission. Media reporting has suggested that, at various points, this mission transported Mustafa al-Hawsawi, Walid bin Attash, Abu Zubaydah, Abd al- Rahim al-Nashiri, Ramzi bin al-Shibh and Khaled Sheikh Mohamed. Research by TBIJ/TRP indicates that it also carried Samr al-Barq and possibly others. Of these, research indicates that Walid bin Attash, Khaled Sheikh Mohamed and Samr al-Barq were moved from Poland to Romania on this date.",
"On 25-26 October 2003, N379P flew from Romania to Jordan, Afghanistan and Iraq. As part of this mission, Mohamed Bashmilah was transferred from Jordan to Afghanistan. Research by TBIJ/TRP indicates that this flight also coincides with the transfer from Romania to Jordan of Samr al-Barq, and that after Bashmilah was brought into Afghanistan the plane took Hiwa Abdul Rahman Rashul and Aso Hawleri to Iraq.",
"On 25 January 2004, N313P flew from Afghanistan to Romania in the course of a long mission that also took it to Morocco, Algeria, Macedonia and Iraq. Research by TBIJ/TRP indicates that Hassan Ghul was transferred from Afghanistan to Romania on this flight. NGO reports and legal filings show that as part of the same mission Binyam Mohamed was transferred from Morocco to Kabul (22 January), Khaled el-Masri from Skopje to Kabul (24 January) and Khaled al -Maqtari from Baghdad to Kabul (24 January). Research by TBIJ/TRP also shows that this mission coincided with the rendition of Jamal Eldin Boudraa from Afghanistan to Algeria (22 January). ”",
"358. As regards flights operated by Computer Sciences Corporation, according to the 2015 LIBE Briefing between 2002 and 2006 they carried out rendition flights via an interlinked series of contracts. That network was revealed in the Richmor Aviation v. Sportsflight Air case, during which both parties discussed, in written pleadings and sworn testimony, the use of flights operated under this group of contracts to transport prisoners (see also paragraphs 67-70 above).",
"Research by TBIJ/TRP identified twelve key missions carried out in 2004 and 2005 by planes connected to this contracting network, linking Romania to other CIA prison host countries and/or known or suspected prisoner transfers. In the light of that research, contractual documentation showed decisively that most of these twelve missions took place under Computer Sciences Corporation ’ s renditions contract. The list of the trips, in so far as relevant, read as follows:",
"“ [D] Between 25 and 28 January 2004, N85VM flew from Saudi Arabia to Jordan and on to Romania. Research by TBIJ/TRP shows that this mission coincides closely to the entry into the detention programme of Muhammad Qurban Sayyid Ibrahim, and more approximately to that of Saud Memon.",
"[E] On 12-13 April 2004, N85VM flew from Guantánamo Bay to Romania and Morocco.",
"[F] On 29 July-1 August 2004, N288KA flew from Afghanistan to Jordan and Romania. Research by TBIJ/TRP indicates that Janat Gul was transferred on this flight.",
"[G] On 24 August 2004, N308AB flew from Romania to Morocco. After pausing in Dubai it then went from Afghanistan to Algeria on 26 August. In the second stage of the mission it transferred prisoner Laid Saidi to Algeria. No clear evidence exists as to who might have been transferred from Romania to Morocco at this time, although research by TBIJ/TRP indicates that this flight might coincide with the removal of Sayed Habib from CIA detention.",
"[H] On 1 October 2004, N227SV flew from Morocco to Jordan and Romania.",
"[I] On 18-20 October 2004, N789DK flew from Romania to Jordan and Afghanistan.",
"[J] On 18 February 2005, N787WH flew from Morocco to Romania and Lithuania. This coincided with another mission from Morocco to Jordan and Lithuania by N724CL. Lawyers for Abu Zubaydah have stated in his application to the European Court of Human Rights that he was transported on one of these two planes from Morocco to Lithuania.",
"[K] On 26 May 2005 two planes, N450DR and N308AB, carried out a joint mission between a) Afghanistan and Jordan and b) Tunisia, Jordan and Romania. Research by TBIJ/TRP indicates that these planes were used to transport Abu Faraj al-Libi and Abu Munthiral-Maghrebi from Afghanistan and Tunisia, respectively, to Romania.",
"[L] On 27 July 2005, N308AB flew from Romania to Egypt.",
"[M] On 21 August 2005, N860JB flew from Afghanistan to Romania.",
"[N] On 5-6 October 2005 two planes, N 308AB and N787VWH, flew from a) Romania to Albania and b) Albania to Lithuania. Research by TBIJ/TRP indicates that Khaled Sheikh Mohamed was transferred from Romania to Lithuania on these planes.",
"[ O ] On 5-6 November 2005, two planes, NIHC and N248AB, flew from a) Romania to Jordan and b) Jordan to Afghanistan. ”",
"XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT",
"359. On 28 June 2016 the Court took evidence from Mr Fava, Senator Marty, Mr J.G.S and Mr Black (see also paragraphs 12 and 1 8 above). The extracts from their testimony as reproduced below have been taken from the verbatim record of the fact-finding hearing. They are presented in the order in which evidence was taken.",
"A. Mr Fava",
"360. In 2006 and 2007 Mr Fava was the Rapporteur of the TDIP in the framework of the inquiry initiated by the European Parliament into the allegations concerning the existence of CIA secret detention facilities in Europe. In this connection, he prepared the Report of the TDIP, the so ‑ called “ Fava Report ”, on whose basis the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/22009INI) ( “ the 2007 EP Resolution ” ) on 14 February 2007 (see paragraphs 2 7 6-27 8 below).",
"On 2 December 2013 Mr Fava testified before the Court at the fact ‑ finding hearing held in Al Nashiri v. Poland (cited above, §§ 305-310).",
"Mr Fava responded to a number of questions from the Court and the parties.",
"361. He first replied to the judges ’ questions concerning records of the informal transatlantic meeting of the European Union and the North Atlantic Treaty Organisation foreign ministers, including Condoleezza Rice, of 7 December 2005, referred to in paragraph “ L ” of the 2007 EP Resolution (see paragraph 27 8 above) and “ confirming that Member States had knowledge of the programme of extraordinary rendition ”. This document was also described in Al Nashiri v. Poland as a “ debriefing ” and so referred to in the judgment ( ibid., § 306). In his reply he stated, among other things, as follows.",
"“ I do not remember the debriefing in detail, but I remember the subject matter of the [transatlantic] meeting, namely, the need for the US Secretary of State, Condoleezza Rice, to discuss with the ministers of all the EU Member States the issue of renditions, and to somehow share with each government the choices made by the US Government, which they had entrusted to their services, and in particular to the CIA, for operational reasons.",
"I do not remember the statements in detail, but two things emerged from the debriefing: firstly, at that stage, all the governments knew that this operational means had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism. The second point that emerged was a difference in views of the various governments: those that felt that they should support the policy of the US Government and the choice of extraordinary renditions, and then others that felt that the matter of protecting human rights and providing all necessary legal guarantees to terrorist suspects should continue to prevail, namely in accordance with the international treaties.",
"We never had doubts, both for the precision of the notes, and because, in our opinion, this affair had further confirmation in the course of our work. When, in the framework of our activity, we went on mission to Washington, we met Ms Rice ’ s legal advisor, Mr Bellinger, and Mr Bellinger said ‘ we never violated the sovereignty of any EU Member States or indeed any other associated States or any States in the process of accession to the EU ’, – because everything that was done, which President Bush had somehow claimed in those months, in September 2006, and Bush ’ s confirmation of the extraordinary renditions –, ‘ everything that we did was done by always informing and asking for the cooperation, and never trying to prevail over the will of the governments of the Member States ’. So, the circumstance that there was a broad knowledge about it, was confirmed by the way in which the US Government told us ‘ we had always acted in broad daylight, so to speak, not in relation to public opinion, but in relation to the EU Member States ’. ”",
"362. The next question from the judges concerned paragraph 162 of the Fava Report and the 2007 EP Resolution where “ a serious concern ” had been expressed about 21 stopovers made by the CIA operated aircraft shown to have been used by the CIA on other occasions for extraordinary renditions of several specific persons ” and, also, Working documents nos. 8 and 9 attached to the Fava Report (see paragraphs 2 71 -2 77 and 27 9 above ), listing flights from or to suspicious locations such as for example Kabul, Guantánamo and Amman that stopped over in Romania in 2003-2005.",
"In that context, they asked Mr Fava “ whether, having regard to the Fava Report ’ s and the 2007 EP Resolution ’ s conclusions as to the member States ’ knowledge of the rendition programme and evidence known to [him] through the Fava Inquiry, [could] it be said that Romania knew, or ought to have known, of the CIA rendition programme and its nature when it allegedly operated on its territory, that is to say already in 2003-2003 ” and “ if so, was this knowledge such as to enable Romania to be aware of the purposes of the 21 CIA aircraft stopovers on its territory?",
"Mr Fava responded as follows:",
"“ In the course of our investigations, we did not reach certainty, but we felt, within reasonable doubt, that the Romanian authorities were aware of the fact that there were unauthorised detention centres and that five Romanian airports were used for the transit of planes which were also transporting detainees. In particular, there was a statement by Pascu, the former Minister of Defence, who said shortly before our mission to Romania, that the Romanian authorities, as far as he knew in his position of Minister of Defence, did not have access to certain sites, which were under the control of the Army or the United States intelligence security forces in Romania. Subsequently, when we asked him to account for and if it was possible to go into more depth relating to that statement, the former Minister decided to partly deny it and said he had been misunderstood. The impression we had was that he had actually told the truth, also because Romania chose to undertake a rather superficial investigation of the accusations received.",
"These were very detailed accusations because, before the European Parliament Inquiry Committee had started its work, The Washington Post and ABC News had produced quite detailed reports where they talked about the existence of detention sites in certain European countries; in certain cases Poland and Romania were actually named. Brian Ross, the ABC journalist, during an audition in Washington, confirmed having received enormous pressure directly from the White House to remove the names of the countries from their programme and that the TV programme should only say ‘ there are unauthorised detention sites ’. But for national security reasons it was requested not to cite explicitly Poland and Romania, and that was the choice made by the TV network. In Romania, we realised that, when confronted with these facts, the attitude of the Committee of Inquiry, set up by the Senate, was acting opaquely, not least because only one chapter of all the conclusions, chapter 7, was actually made public, where every question, every doubt received a negative answer. We thought it was unusual, given the serious nature of the concerns, that the NGOs which had raised those complaints and the journalists who had written about it, had not been not heard. The feeling we had, within a courtesy of institutional relation, was that the matter was closed far too quickly, particularly given the evidence, as you recalled, of these 21 aircraft stopovers relating to all the CIA flights operated by front companies and out of these 21 stopovers, out of these 21 flights, 18 are considered suspicious because of either the destination or the country of origin.",
"In three cases, these planes were used for a number of extraordinary renditions. Eight victims of extraordinary renditions, among those we ascertained, were transported on planes which had landed in Romania in the course of their transport. Some of these stopovers had no technical justification. The N313P, for example, a Boeing 737, which was used to transport Binyam Mohamed, a British citizen, and El ‑ Masri, a German citizen, was collected in Skopje, and those flights could well have flown the whole distance without needing to make a stopover in Bucharest. From Kabul to Palma de Mallorca, the flight had full autonomy to reach its destination, the stopover was not technically necessary. Likewise, the plane from Rabat to Poland did not require a stopover in Bucharest. We did not get an answer to that, in that the data we provided the authorities with, in order for them to give us a clarification whether an evaluation on these flights had been made, received very vague replies.”",
"In that context, Mr Fava referred in particular to the plane N478GS ( see paragraphs 16 8 and 275 above) :",
"“ There was one specific case where the Romanian authorities had had to intervene. It was a plane which had a technical problem on landing, N478GS, which landed on the 6th of December [200 4 ], coming from Bagram in Afghanistan, a city where it was known that the Americans were detaining terrorist suspects. Initially they said they knew nothing about that flight, only that there was just this incident, there was no trace of a crew or of passengers. Only at a later stage, after we had insisted, they gave us a list of passengers, seven US citizens, all with a service passport. One had a Beretta gun and ammunitions. None of them was questioned about the purpose of the trip from Bagram, they returned home on an Air France flight the following day, and it seems that the plane was later transported by a Hercules to another European airport to be repaired. And also on that point – on which many newspapers were raising questions about a plane landing, carrying passengers, with a very special profile, without there being any request for explanations from the Romanian authorities – that point also remained unanswered in our opinion. ”",
"363. In response to the judges ’ question – referring, in particular, to paragraph 164 of the 2007 EP Resolution stating that “ [it] cannot exclude, based on the statements of the Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services operated in Romania on a clandestine basis and that no definite evidence has been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil ” (see also paragraph 2 80 above ) – whether the TDIP considered that in 2003-2005 a CIA detention facility had or had not existed in Romania, Mr Fava stated:",
"“ The conclusion we reached was a very strong suspicion that it existed, not the certainty – there was no smoking gun – but a very strong suspicion concerning the points I reported, because of what we were told by Pascu, the former Ministry of Defence, because of the attitude, the rather superficial attitude of the Committee of Inquiry. And also because of a number of considerations that we heard during the interviews : we heard many journalists, many non-governmental organisations. At that time, it was impossible to have any certainty, except if there was an admission by the Romanian Government. In that case however, the Romanian Government could not prove the opposite, either because of the approximate work of its Committee of Inquiry, or because of the acknowledgments that emerged between the lines by those who basically said – also people that we interviewed at the airport - ‘ we were not in a position to know what was happening ’.",
"An example I found in my notes is the testimony of the chief investigator for the incidents on behalf of the Ministry of Transport, Vulcan, who explained that, for example, in the case of the plane that had landed and had been damaged on landing, when it reached the airport there was no sign of the passengers who had been on that plane. All this was, let us say, outside the procedures and rules. This was a civilian air flight, it was not a State flight, it was not a police flight. Under the Chicago Convention, it was normal that the passengers be identified. The identification was eventually transmitted to us, but only after a considerable insistence on our side. What we were told was: ‘ we did not meet anyone, we don ’ t know anything ’. So, everything, all the information we received, gave us the impression that this matter was handled in a very opaque way and the conclusion we reached is that we could certainly not exclude the fact that a secret detention centre had existed in Romania. ”",
"364. In his replies to the Government ’ s questions as to how, in his view, the Government could “ prove that there had been no buildings on its soil ever used as ‘ black sites ’ ”, Mr Fava stated, among other things :",
"“ [By means of] an inquiry which was deep enough to match the seriousness of the charges, well, such an inquiry, according to practice and, let us say experience, which we had, and the work we were doing, could not limit itself to coming to a conclusion without hearing all those who could have produced further elements. The circumstance that this inquiry chose not to disclose its conclusion and its work, with the exception of a chapter, and not to hear, during the work, NGOs or airport staff or journalists, appeared to us to be a rather ambiguous attitude. An Inquiry Committee has the duty to ascertain the truth and use all possible means to get to that truth. It appeared to us, and that was confirmed by the President of the Committee, that it was chosen not to check all [emphasis while speaking] the facts and hear all the people who could have provided further elements. This obviously doesn ’ t give any certainty about the fact that there has been a secret detention centre, but it did not help excluding any suspicions about that. ”",
"He further added:",
"“ When we went to Bucharest to meet the Inquiry Committee, we were told that neither journalists nor NGOs nor airport officials had been heard. They didn ’ t mention the fact-finding missions on airport sites to us, but they did confirm the fact that a large part of those who could have provided a different point of view were not heard. Also the time during which the Committee worked, if I remember correctly well, we are talking about facts of ten years ago, was quite quick. Our Inquiry Committee worked for two full years to come to this final report, but it appears that the Senate Committee worked for far less time and that the conclusion was rather quickly reached, once the working session was set up. ”",
"365. In response to the Government ’ s question regarding the twenty one “ stopover flights ” (see also paragraphs 2 71 and 280 above), Mr Fava stated:",
"“ The evidence we have, through the information provided by the US Control Center and from Eurocontrol, concerns the stopover of 21 flights. But we do know also that in two cases the route of the flight registering the stopover in Bucharest coincided with the extraordinary rendition of two victims. This is the case of the N313P which, in September 2003, from the 21 st to the 23rd of September, flew from Washington to Prague, Tashkent, Kabul, Szymany, Bucharest, Rabat, Guantánamo. And during that route, one of the passengers in that plane was Benjamin Mohamed, who was then detained in Guantánamo. Another flight with the same aircraft, in January 2004 from Skopje, in Macedonia, to Baghdad, Kabul, Bucharest and then Palma de Mallorca, tallies with the period in which, on that plane, El Masri, German citizen, was transported, so in at least two cases we are not dealing with stopovers only but rather with an operational cycle of these planes within which, no doubt, these planes were carrying two rendition victims, and these are totally ascertained cases, not only during the judicial phase but also in the conclusions to which our Committee came to, namely that during those days, those persons were being illegally transported in that airplane. ”",
"366. In relation to the 2014 US Senate Committee Report and a question from the applicant ’ s lawyers, Mr Fava responded:",
"“ I testified before the American Senate ’ s Inquiry Committee, although in previous years, and I do recall that there was a strong determination to get to the truth as to what had happened and also a great determination to condemn a practice which, if ascertained, would have been considered to be totally illegal and, furthermore, totally inappropriate for combating terrorism. About this point, we realised in the years immediately following our mission of inquiry under the new administration of the White House that there was a global revision, a very different evaluation on the way they had operated until those years. Extraordinary renditions were very negatively assessed, and this evaluation has also been confirmed by certain CIA officials. We met Vincent Cannistraro, who was a former agent, the Head of Counter-Terrorism in the CIA, who told us that when they had chosen to proceed to extraordinary renditions within the agency, many people realised that this was a mistake because, as actually happened, not only would it create a climate of even greater hostility but it would also have led to the risk of terrible judicial errors, as actually happened subsequently, because often they were led to decide to abduct a suspected terrorist on the basis of information that the local services in Pakistan, Afghanistan, Syria, Morocco and Egypt were prepared to give to CIA colleagues. In certain cases, those were forms of mere manipulation.",
"We heard four victims of extraordinary rendition – we are the only international organisation that had the possibility to speak with them – and one of them told us about his 11 months spent in a secret prison in Syria, being tortured every day until they had to release him, because it was understood that a great judicial error had been committed. And we also know that we dealt with several cases, however only the cases of the more fortunate people, namely of those who were European citizens or people abducted in Europe, therefore with public evidence that could not be hushed up. But aside the many cases we dealt with, we fear that there are many other cases of citizens less protected, let ’ s say, by their nationality and we have no figures here. So, this was very much in the awareness of the American Senate ’ s Inquiry Committee, as a very heated discussion that developed within the CIA itself during those years, and of which we heard recollected traces, thanks to the availability of some former CIA officers to speak with our Committee. ”",
"B. Presentation by Senator Marty and Mr J.G.S. “ Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri ”",
"367. On 2 December 2013 Senator Marty and Mr J.G.S. gave a similar presentation before the Court in Al Nashiri v. Poland (cited above, §§ 311 ‑ 318) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305 ‑ 312).",
"368. Their oral presentation in the present case was recorded in its entirety and included in the verbatim record of the fact-finding hearing. The passages cited below are taken from the verbatim record.",
"369. The aim of the presentation was explained by the experts as follows:",
"“ The firm intention of our presentation today is not to reveal anything new or revolutionary, but rather to offer a cogent distillation of the available data and documentation in a manner which might allow the construction of a more coherent chronology of the CIA ’ s rendition, detention and interrogation programme. In particular, it is a chronology in which the applicant in today ’ s proceedings features prominently, and indeed one in which the territory of Romania, the High Contracting Party to today ’ s proceedings, also holds a prominent status.",
"The Court will recall, Madam President, the testimony provided by Senator Marty and myself in the cases before Section IV of the Court in December of 2013, in which today ’ s applicant, Abd al Rahim Al Nashiri, was joined by Abu Zubaydah in alleging violations of the Convention by the Republic of Poland. The ‘ black site ’ situated on the territory of the Republic of Poland will also be mentioned in today ’ s presentation, but I should like to request that the Court take note of the material presented on that earlier occasion, and indeed the judgments of the Court in those two applications, as a foundation to the material which I will present today. ”",
"370. This was followed by the presentation of the map showing a network of interconnected various locations, which was referred to as a “ global spider ’ s web ” in the 2006 and 2007 Marty Reports (see paragraph 25 0 above; see also and Al Nashiri v. Poland, cited above, §§ 321 et seq.):",
"“ It is important to understand the system in which this chronology resides, and it is for that reason that we commence our presentation by explaining the so-called ‘ global spider ’ s web ’ which was presented as part of the reports of the Marty Inquiry of the Council of Europe in 2006 and 2007. These are movements not only of military aircraft or conventional aircraft used in the pursuit of counter-terrorism or military operations, but also importantly charter aircraft, private aircraft, operated under the cover of business or private citizens ’ operations through a complex shell game, in which prime contractors, aviation subcontractors, flight planners and indeed the national authorities of Council of Europe Member States are complicit, ensuring that flight movements are impossible to track or record in real time and indeed extremely difficult to account for in retrospect. I shall use a graphic map to illustrate this system. ”",
"He further explained:",
"“ On this map, there are four categories of airports in which aircraft in this system landed. The first is described as ‘ stopover points ’. These are places at which aircraft would conventionally stop for a short period, usually several hours, in order to refuel en route to another location.",
"The second category, ‘ staging points ’, describes locations at which two or more aircraft often converged, crews convened and indeed rendition operations were planned.",
"The third category, ‘ pickup points ’ represent the outcomes of our investigation into specific rendition operations. In each of these places, a detainee was picked up by a rendition crew and rendered to a secret detention facility, usually in the Middle East or North Africa, by the CIA. Several of these, as situated in Europe, have already been accounted for by this Court in cases such as El Masri v ‘ the Former Yugoslav Republic of Macedonia ’, which is depicted here by Skopje, and most recently the case of Abu Omar, the cleric who was rendered after having been picked up on the street in Milan, Italy.",
"The final category on this list, however, is the most important. These are described as ‘ detainee transfer or drop-off points ’. They were, in short, the destinations of CIA rendition aircraft, places to which detainees were brought for the purpose of being detained secretly, interrogated and, in the majority of cases, ill-treated at the hands of CIA interrogation teams in a manner which, prima facie, would violate the European Convention on Human Rights.",
"The material interest of our inquiry was to establish in particular which sites in this category were situated on the territory of Council of Europe Member States, and as you can see from the graphic, there are ... two countries initially, implicated in Senator Marty ’ s inquiries. The first of those, Poland, was the subject of the earlier case of Al Nashiri and Abu Zubaydah v. Poland. The second country, which is depicted here by two airports, Timişoara and Bucharest, is the respondent in today ’ s proceedings, Romania. The motif of a global spider ’ s web derived from our efforts to track the movements of aircraft across this system, and I will demonstrate two specific rendition circuits in order to show how that picture is built up. ”",
"371. The presentation then focused on two rendition circuits, described in the order chosen by the experts, which were carried out by plane N313P on 16-28 January 2004 and 20-24 September 2003 (see also paragraphs 272, 276, 327-330 and 33 6 -33 7 above; and Husayn (Abu Zubaydah), cited above, §§ 108-116 and 285 ).",
"The 16-28 January 2004 circuit was related as follows:",
"“ The first of these [circuits] occurred in January 2004 and has become notorious because of the sheer number of detainees who were rendered, in the course of a 12 ‑ day period, between multiple different detention sites across the Middle East, North Africa and, indeed, Europe. The aircraft in question, N313P, was operated by the CIA ’ s own aviation services provider, Aero Contractors. Having departed from Washington, it stopped over in Shannon, before flying to a staging point in Larnaca, Cyprus. From there, its first detainee pickup occurred at the detention site in Rabat where, on 22 January 2004, the British resident Binyam Mohamed, was rendered from secret detention in Morocco to secret detention in Kabul. From Kabul the plane flew back in the direction of North Africa to Algiers, carrying with it a recently-released Algerian national from a US military detention site in Kabul. From Algiers it travelled to a second staging point in Europe, in Palma de Mallorca, whereupon the crew embarked on the rendition of Khaled El-Masri. He was picked up on the night of 23 to 24 January in Skopje in ‘ the Former Yugoslav Republic of Macedonia ’ and transported via Baghdad to four months of secret detention in Kabul. The same crew, the same aircraft, departed Kabul on the night of 24 January and flew in the direction of Europe to a landing in Romania. I shall explore this particular leg of this flight in extensive detail, later in my presentation. From Romania, the crew and the plane returned to a staging point in Palma de Mallorca, for further rest before returning to Washington. All of the flights depicted on this graphic, Madam President, occurred within the space of 12 days, in January 2004. ”",
"The 20-24 September 2003 circuit was related as follows:",
"“ A second rendition circuit, which occurred in September 2003, also implicates the territories of two Council of Europe ’ s Member States. Having departed from Washington, this aircraft, again N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe.",
"The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. Again, that particular leg will be the subject of further explanation later in the presentation. From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay. ”",
"The following explanation was added:",
"“ In illustrating those two rendition circuits, I am displaying a small fraction of the rendition flights and circuits that Senator Marty ’ s Inquiry uncovered in 2006 and 2007. The totality of these operations was to create this motif: that of the global spider ’ s web, a system in which rendition aircraft, criss-crossing across the globe, created an almost untraceable and unaccountable system of unlawful detainee transfers. ”",
"372. Using the above two rendition circuits as examples, the expert-witnesses further explained the practice of the so-called “ dummy flight planning ”, a process of intentional disguise of flight plans for rendition planes (see also paragraph 26 4 above; and Al Nashiri v. Poland, cited above, §§ 316 and 318):",
"“ One of the key discoveries of our inquiry in 2007 was that rendition aircraft had been very difficult to trace because of deliberate acts of disguise and deceit employed by the CIA and its partners in planning and executing their detainee transfer operations. In 2007, through months of rigorous analysis of aeronautical data, we were able to present evidence of the practice of dummy flight planning by the CIA in conjunction with partners in Polish air navigation services. Since the report of 2007 came out, and this work has been extended and indeed deepened, we are now in a position to demonstrate how the similar practice of dummy flight planning was used in respect of Bucharest Băneasa airport in Romania. ”",
"373. As regards the 16-28 January 2004 circuit:",
"“ This is the flight circuit of January 2004, which I demonstrated earlier in the presentation. In particular, we focus on the leg from Kabul, Afghanistan, towards Bucharest, Romania, and in this process I am using specific elements of a data strings analysis which was conducted using four data sources, including those of Eurocontrol and indeed Romanian authorities. At step 1, the first flight plan is filed. A company by the name of Jeppesen, which was the subject of a prominent case before the United States Supreme Court, brought by the American Civil Liberties Union, habitually filed false flight plans in order to disguise the routes of rendition aircraft. In this case, the first flight plan for 24 January 2004 was filed to Timişoara, Romania. But N313P, the aircraft in question, did not fly that route. Jeppesen filed a second dummy flight plan out of the same airport, Timişoara, to Palma de Mallorca in Spain. Again, this was a route which N313P had no honest intention to fly. Furthermore, a third and contradictory dummy flight plan was filed, this time in respect of Timişoara to Prague, and Romanian authorities, in their own efforts to understand the stated intentions of this aircraft, also made references to both legs 2 and 3 in their own filings on the aeronautical fixed telecommunications network. The aircraft did then embark on the evening of 24 January 2004. On board was a CIA detainee by the name of Hassan Ghul who had been handed to the CIA by United States military authorities. He was rendered out of a ‘ black site ’ in Kabul to the Romanian ‘ black site ’ situated in Bucharest. This landing in Bucharest was an undeclared landing, at no point had a valid flight plan for this route been filed in the international AFTN system. At this point, Romanian authorities, specifically the NOTAM office at Bucharest Băneasa Airport, began to file plans in respect of this aircraft. A plan was filed for the first time citing Bucharest airport, by the Romanian authorities, from Bucharest to Palma de Mallorca and indeed, that evening, having dropped off the detainee, the CIA aircraft flew the route filed by their Romania counterparts. Finally, Jeppesen, the CIA ’ s flight planner, resumed its duties of flight planning and carried the aircraft and its crew back in the direction of the United States. What this graphic represents, honourable judges, is not a one-off occasion. It is rather a systematic practice deployed by the CIA and its aviation service providers to disguise CIA flights into and out of its most sensitive operational locations. In our reporting in 2006 and 2007 we were often confounded by the apparently contradictory and inconsistent information provided to us by multiple sources of data, including those inside of Romania in the Senate Inquiry Committee and indeed among the various aviation authorities whose filings did not appear to add up. We now know that the reason for these inconsistencies and contradictions was the deliberate practice of dummy flight planning employed by the CIA. But they cannot execute this tactic alone. They depend upon, however discrete, a role played by the national counterpart authority, and just as in the case of Poland, demonstrated in the earlier proceedings, here the Romanian air navigation services filed plans in respect of an aircraft which was on its territory for the sole purpose of transporting detainees into secret detention.",
"Romanian documentary records demonstrate the landing of this aircraft at Băneasa Airport on 25 January, despite the absence of a valid flight plan. This document refers to the ‘ flown ’ flight path, the actual flight path, from Kabul to Bucharest, to Palma de Mallorca, but that was a route for which no flight plan existed in the international system of control. Further similar documents illustrate the ground handling and other services provided to this aircraft whilst it was on the ground for a short period on that night at Băneasa Airport, and through our investigations we have established that this disguised flight forms part of a recognised CIA rendition circuit. These are the individual routes which I have already demonstrated with the graphic, I shall provide the full detail to the Court in written form after the presentation. But as I stated, this was not a one-off, this was part of a systematic practice, and through our investigations we have generated numerous, up to twelve, individual instances on which CIA rendition aircraft have transferred detainees into, and out of, Bucharest, Romania ”",
"374. As regards the 20-24 September 2003 circuit:",
"“ This set of flight logs pertains to the unprecedented transfer I described earlier, in which detainees from Poland, including the presumed architect of the 9/11 attacks, Khalid Sheikh Mohammed, were transferred directly to Romania on the night of 22 September 2003, the opening of the Romanian site. This particular set of logs depicts an instance in which a detainee was transferred out of Bucharest and taken to further secret detention here in Amman, Jordan, and that practice again was prevalent because detainees did not tend to stay in one secret detention site for lengthy periods, counted in years; they were rather rotated and recycled through multiple different CIA secret detention sites, on periods averaging between six and twelve months. Here, a detainee brought to Romania in September was taken out in October and transferred to further secret detention in Jordan. I will provide all the flight logs and the evidence that supports them to the Court upon request. ”",
"375. The time-frame for the alleged operation of the CIA “ black site ” in Romania and its colour code-name assigned in the 2014 US Senate Committee Report were identified as follows:",
"“ The [2014] Senate Committee Report also provides extensive insight into the timeframe, the life span for which the ‘ black site ’ in Romania was operated. It is important at this point to state that the word ‘ Romania ’, the country name, does not appear openly in the declassified version of the report. Rather, as with all the sites in question, it is referred to by a colour code name.",
"The code name Detention Site Black corresponds in such precise and extensive detail with every one of the operations I have described in today ’ s presentation, from the first flight into Romania in September 2003 through the transfers of individual detainees, including Hassan Ghul, Khalid Sheikh Mohammed, Abu Faraj al-Libi, into Romania on specific dates in accordance with their interrogation schedules that Romania, its territory, its airspace, its detention facility, is inseparable from ‘ Detention Site Black ’. It is my premise, categorically, that it is the case that Romania is the site referred to as ‘ Detention Site Black ’. From that point of departure, we are able to find several specific references. Here is one, in a section which describes Detention Site Black and another CIA site, which states that ‘ CIA detainees were transferred to Detention Site Black in this country in the fall of 2003 ’. It goes on to state that this coincided with the closure of the predecessor ‘ Quartz ’ base, which is referred to in the report as Detention Site Blue. In terms of its closure, it is stated in the report that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, to which Senator Marty referred, dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. ”",
"376. In conclusion, referring to the Romanian authorities ’ knowledge of the operation of Detention Site Black, the experts added:",
"“ Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the [2014 US Senate Committee Report]. It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in the Washington Post, which went into intimate detail of the CIA ’ s operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black – and let me be clear – that is the authorities of Romania, must have known of the nature of operations occurring on their territory. ”",
"C. Senator Marty",
"377. Senator Marty was a member of PACE from 1998 until the beginning of 2012. He chaired the Legal Affairs and Human Rights Committee and, subsequently, the Monitoring Committee.",
"At the end of 2005 he was appointed Rapporteur in the investigation into the allegations of secret detentions and illegal transfers of detainees involving Council of Europe member States launched by the PACE (see also paragraphs 24 9 -26 7 above )",
"On 2 December 2013 Senator Marty testified before the Court at the fact ‑ finding hearing held in Al Nashiri v. Poland ( cited above, §§ 319-323) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305-317).",
"378. In the present case, in response to the questions from the Court and the parties, Senator Marty testified as follows.",
"379. In respect of sources of information that was collected during the Marty Inquiry and evidence on which findings of the 2006 and 2007 Marty Reports were based, Senator Marty stated:",
"“ We were fortunate enough to find sources, and this must be stated clearly, firstly in the United States, of a very high level. It is important to know that within the American administration and the intelligence services, especially those of the CIA, there were a lot of people who were not at all in agreement with what Rumsfeld and Dick Cheney had imposed upon the CIA. And I, who had already had many contacts as a prosecutor with American services, was thus able to obtain this information. What is important to say is that we devised a working methodology, we never relied on one source alone, but when you get important information from once source, it is much easier to activate and to receive further information given in confidence from other sources. In the end we had about thirty sources, if I recall, that are in different countries and notably in Romania, and there too at a rather surprising level. And in 2006 ... we were above all able to concentrate on the movements of rendition flights and we were able to trace this famous spider web, this spider ’ s web. This triggered off all sorts of other information that hailed from people who agreed to talk, of course, under the most rigorous confidentiality. Let me point out that many of these people risked a lot, several decades of imprisonment; they could have been accused of high treason in their countries. ...",
"The seriousness of the sources that provided us with information was strikingly confirmed by the Feinstein report, the report of the American Senate which was published some 10 years after my first report. In the Feinstein report there are absolutely extraordinary confirmations of what we had already described, in part at least, or in the essential parts. The Feinstein report sought to cover up the countries by giving them a colour. If we know a little about the events that are described, it is child ’ s play to see which countries lie behind these colours. ...",
"We focused our initial research on the United States because it seemed obvious to us that the leaks had occurred in the United States and knowing how serious the Washington Post is, in particular the journalist Dana Priest, who is one of the major US journalists, who we knew had contacts with certain highly placed people in the US administration and the secret services, we thought we ought to start digging in that direction. And the fact that Human Rights Watch, which is also a very serious NGO, had published the names of Poland and Romania, meant that they too had important sources of information. Our research ... enabled us to encounter not second-level agents but very important people in the US services. ...",
"When we were able to obtain that information, not just from one American source but from several, we tried to make contacts in other countries in Europe and when the people we had contacted understood that we already knew a lot and that we had got this information from the US secret services, those people were far more prepared to speak out. I think you need to understand the dynamic in this way: it was possible to obtain very high-level intelligence. I will not name the countries, but in some countries we were even up to the level of ministers who spoke to us. Of course, one of the fundamental aspects for my part was that I gave all possible guarantees of protecting our sources. So we took every possible precaution to protect our sources, to make it impossible for people to trace back to our sources. ... ”",
"380. As regards the Romanian high-office holders mentioned in paragraphs 211-218 of the 2007 Marty Report ( see paragraph 26 2 above ) as “ holding first-hand knowledge of CIA operations on the territory of Romania ”, including the former President of Romania, Mr Iliescu, and the Presidential Advisor on National Security, Mr Talpeş, and the question whether the Romanian authorities “ knew or ought to have known ” of the CIA rendition operations and purposes of the CIA aircraft landings on Romanian territory in 2003-2005, Senator Marty testified :",
"“ ... I would also like to point out that in the framework of the NATO system, for all these operations, NATO had applied the very highest degree of secrecy under the NATO code. This highest secrecy code can be summed up as the ‘ need to know ’ principle; it is only people who strictly need to know who should be aware of what is going on and they must only be aware in as far as it is necessary. So I do not think that the Romanian authorities knew that there was waterboarding, that there was torture, and so on. But the people [the high-office holders] I referred to, and this is based on extremely precise testimony, must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror. We never said that the Poles or the Romanians had run those prisons, we always said those prisons were exclusively managed by the CIA. And the CIA would not accept any intrusions, not even by any other American services. What we do say is that those people – probably the majority of the government – knew nothing about it but those people must of necessity have been aware that something very unusual was going on: planes were landing, people were being disembarked, and the like. Or in any event they did everything to see nothing, hear nothing and say nothing, and that is a classic approach which we have in all countries where there have been renditions or secret prisons. ”",
"381. In response to the question whether in the Marty Inquiry an exact physical location of the alleged CIA “ black site ” had been established, Senator Marty said:",
"“ No, because we did not have a specific indication. The site was, however, the most protected element secrecy-wise, even people who knew that this anti-terrorist operation was going on did not perforce know where the site was precisely located. For Poland, it was easier. We were even able to go in situ and were able to obtain information in situ. So, for [Romania], it was far more complicated. ”",
"In response to the Government ’ s questions concerning indications of such a location, he added:",
"“ I say it is true that at the time we were not in a position to indicate the place of detention, but that Romania participated in these CIA programmes, there is no shadow of a doubt in my mind about that. ”",
"D. Mr J.G.S.",
"382. Mr J.G.S. is a lawyer and investigator. He worked on multiple investigations under the mandate of the Council of Europe, including as advisor to the PACE ’ s Rapporteur Senator Marty (2006-2007) and as advisor to the former Commissioner for Human Rights, Mr Thomas Hammarberg (2010-2012). In 2008-2010 he served on the United Nations ’ international expert panel on protecting human rights while countering terrorism. He is presently engaged in official investigations into war crimes and organised crime cases.",
"On 28 March 2011, in El- Masri, Mr J.G.S. submitted an expert report detailing the factual findings of his investigations into the applicant ’ s case (see El-Masri, cited above, § 75). On 2 December 2013 Mr J.G.S. testified before the Court at the fact-finding hearing held in Al Nashiri v. Poland (cited above, §§ 324-331 ) and Husayn (Abu Zubaydah) v. Poland (cited above, §§ 305-312 and 318-325 ).",
"383. In his testimony before the Court, he stated, among other things, as follows.",
"384. In response to the judges ’ question whether on the basis of the evidence known to him, Romania “ knew or ought to have known ” of the nature of the CIA extraordinary rendition programme and that the programme operated on its territory, Mr J.G.S. stated:",
"“ It is quite clear to me that the Romanian authorities not only should have known, but in fact did know of the nature and purpose of the CIA ’ s secret operations on its territory. In our report of 2007, for the Marty Inquiry, we inferred this conclusion already then, 9 years ago, based upon excellent source information that we had procured from both sides of the Atlantic, multiply corroborated, validated and verified by documentary records, and rooted in our understanding of a conceptual framework, and a practical implementation of bilateral agreements struck between the CIA and its counterpart agency in Romania.",
"But I can say to the Court today that this is no longer an inference, it is no longer simply a collation of disparate sources, because the [US] Senate Committee of Inquiry, and I refer the Court to page 97 of that 499-page executive summary, has explicitly stated that the host authorities of the country in which Detention Site Black was located, provided co-operation and support for those activities, and indeed that the CIA, through its station in Romania, was able to provide a substantial sum of money, in the region of ten million United States dollars, as a ‘ subsidy ’ to its Romanian counterparts in recognition of their active participation.",
"In the report in 2007, we talked about the extraordinary permissions and protections that Romania provided. We talked notably about secure zones, of which there were several on Romanian territory, and of which we knew of the existence of at least one. We characterised this as being a level of cooperation that depended on authorisation from the highest levels of the Romanian state authorities. That aspect too, Your Honour, is confirmed by the US Senate Committee Inquiry. It talks about, explicitly in that same paragraph, on that same page, the highest levels of the country ’ s government. So what we heard from our sources who, incidentally, have remained credible upon our assessment, has now been formalised in the form of the reporting by the Senate Committee which, incidentally, had access to a vast array of classified information, which we did not have access to.",
"And so we wish to state, quite clearly, categorically, that the Romanian authorities, at the highest level, did know about the existence of secret detention on their territory and furthermore that they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which detainees were held in between their arrivals and their departures. ”",
"385. In response to the judges ’ question as to how a specific detainee could be linked with a specific flight and how it was possible to identify which specific person or persons had been transported on a specific rendition plane, the expert-witness stated:",
"“ I can confirm that I participated closely in the inquiry under Commissioner Hammarberg which led to the production of the memorandum in March 2012 and I can also confirm that, at that point, almost five years after the conclusion of our second Marty Report, we were in possession of substantially more information, notably through the declassification of reports from the United States, but also through an evolving process of developing sources, developing new relationships, filing requests for information with different authorities, and indeed benefiting from a wide range of partnerships and alliances in some of the countries in question and indeed in the United States.",
"The process of linking a specific detainee to a specific flight was, indeed, for a long time elusive. In order to make this connection, one requires both authoritative information about the planning and execution of the flight and furthermore, from the CIA itself, authoritative information as to the interrogation schedule, the process of debriefing or interrogating the detainee, and specific junctures in that detainee ’ s detention which constitute a move or a change or a development or a transition in that detainee ’ s treatment. As I demonstrated in my presentation with reference to the CIA Inspector General ’ s Report, there are occasions in the declassified documents on which moves are referred to explicitly, and indeed are given dates. When that move links a particular named individual, such as Al Nashiri, with a point of provenance, such as Thailand, and a point of destination, such as Poland, it is then possible, within a very small margin of error, to go looking for a flight that corresponds with those dates.",
"This example was indeed the breakthrough in that regard, this methodology, because for the first time in the Inspector General ’ s Report [in the present judgment referred to as ‘ the 2004 CIA Report ’ ], we were told that an interrogation schedule concluded on 4 December [2002]. The reason for its conclusion was a move, and furthermore that Al Nashiri, together with Abu Zubaydah, was taken to another ‘ black site ’. The only means of transportation that the CIA used to move detainees was rendition aircraft, and through our assessment and investigation of rendition aircraft over multiple years, we have been able to crack that system and to trace those movements using contractor documentation, international aeronautical services information, and all the other logs that I have used in the presentation. So the linking depends on a specific correlation of information from both the aviation side and the operational side in the CIA ’ s ‘ black sites ’ themselves. I would direct you, Your Honours, to the [US] Senate Committee Inquiry for multiple further specific date references and specific references to individuals being moved between different sites. ”",
"386. Replying to the judges ’ question as to how could Mr Al Nashiri could be differentiated as being rendered to Romania on 12 April 2004 from other detainees known to have been held in Guantánamo and rendered by the CIA from there at approximately the same time, Mr J.G.S. stated:",
"“ I can give you two specific examples. Ramzi bin al-Shibh, who had been in Morocco with Al Nashiri initially, in 2003, was taken back to Morocco, as was Ibn al-Shaykh al-Libi, who was the source of the now notorious intelligence on Iraq, which led Secretary of State Powell to make a case for war. He was held in Guantánamo Bay at the same time as Al Nashiri, but he was taken to Morocco. How do we know? Because he features in the further descriptive narrative regarding Morocco in the [US] Senate Committee Report, as does Bin al-Shibh. These two individuals are cited as having gone back to Morocco and having found the conditions of their detention there to be impossible to sustain because of abuse or cries of abuse they could hear taking place in adjacent cells, part of the Moroccan system. This again was a source of some acrimony, some misunderstanding, some difficult relations between the CIA and the Moroccan counterparts and as such features prominently in the Senate Committee ’ s Inquiry. There is no mention whatsoever of Al Nashiri there, and I maintain that is because he was in Romania. ”",
"387. Replying to the Government ’ s question as to which evidence had led him to the conclusion that a simple change in flight plans or in the use of ultimate destination represented a cover-up with the complicity of the national authorities, Mr J.G.S. stated:",
"“ Thank you for your question, Madam. This allows me to introduce to the Court some very important insights gleaned from the flight planning process at its point of origin in the United States and the documents of which are included in the materials before the Court by virtue of the docket in the New York State Court litigation between Sportsflight Air Inc. and Richmor Aviation.",
"In particular, there are documents within this docket which refer specifically and in advance to deliberate attempts to file false destinations for rendition aircraft. There is, for example, a differentiation between points of departure, points of destination, as Madam Agent rightly said, ‘ alternates ’, and then, what the CIA describes as ‘ hard arrival points ’. ‘ Hard arrival ’ were the real destinations, the real timings that the CIA demanded its contractors to fulfil. Everything else in the flight planning process, as was delegated to Jeppesen, Air Rutter International and other contractors, was allowed to have a veneer of compliance with international civil aviation rules, but was in fact nothing more than a cover, a shell, behind which these unlawful operations actually took place.",
"I shall address directly, Madam, your question: how can I differentiate between a simple in-flight change of plan? I could countenance such an alternative explanation if it were to have happened but once, perhaps twice or occasionally in a sequence of rendition flights. But in respect of Romania alone, this systematic practice was deployed up to twelve times, using every time the same methodology. Specifically the points of departure would be fixed because they were physically where the plane took off from, but points of destination, ADES, as they are called in the AFTN system, were never stated as the actual airport to which the rendition aircraft was destined. If at all Bucharest Băneasa appeared, it appeared only as an alternate, and on several occasions it did not appear at all in any flight plan, either as destination-in-chief or as alternate, despite the fact that trip sheets, government contracts, even pre-emptive billing invoices had been prepared in the United States by the CIA ’ s contractors, stating explicitly what the hard arrival airport and time was, and on each occasion Bucharest – Baneaşa was that hard arrival point. It cannot be put down to mere innocent coincidence, in-flight change of plan, when it is conceived of in advance, when there is only one purpose for which these rendition flights are being deployed, and when the only site that corresponds with the cables, the contracts, the flight plans, the instructions, the billing invoices and, indeed, the multiplicity of source testimony, is the ‘ black site ’ hosted on Romanian territory in Bucharest. So an alternative explanation does not fit in these circumstances; there is one clear and categorical truth, and that is, this was a deliberate act of deceit to disguise unlawful detainee transfer activity. ”",
"He further added:",
"“ ... [I]n the process of executing these renditions, the CIA did file flight plans for every aircraft in which dummy destinations were inserted into the planning text in order to provide the aircraft with a premise upon which to enter the airspace of the country in question. So, for example, as the Court heard in the proceedings against Poland, on multiple occasions, aircraft filed for destinations such as Prague in order to have a premise to enter Polish airspace, after which the Polish air navigation services would navigate them to a landing at Szymany. When the Polish authorities produced records of landings at Szymany, they stated explicitly in their own documentation that several of these landings had occurred ‘ brak FPL ’ ( ‘ without a flight plan ’ ), precisely the point that you have just suggested would be impossible. It happened. In Romania, as I demonstrated in my presentation today, flight plans were filed for alternative destinations which included other Romanian airports, Timişoara, Constanţa, but only in order to give that aircraft a premise upon which to enter Romanian airspace. From entering airspace, Romatsa and the counterparts in the Romanian authorities, navigated those aircraft to undeclared landings at Bucharest, Băneasa. I have this upon the first-hand authority of persons involved in the execution of those rendition flights. I also have Romanian documentation demonstrating these landings at Bucharest, Baneaşa, indisputably because a plane is physically on the ground in Bucharest and yet, for the same flights, having trawled all the multiple sources of aviation data in my possession, I have not found any flight plan valid for a landing at Băneasa. Hence, the same systematic practice, deliberate disguise and deceit, used by the CIA but dependent upon the complicity and cooperation of Romanian counterparts. ”",
"Lastly, in relation to the Government ’ s question relating to the “ STS ” special status designation accorded to some CIA rendition aircraft, Mr J.G.S. stated:",
"“ ... [T]hose aircraft used by the CIA in conjunction with its in-house aviation services provider, Aero Contractors, more often than not cited this special designation in their flight plans. There were two aircraft in particular, both of which travelled to Romania, N313P and N379P, which fall under this designation. It is explicitly stated and cited in the flight plans filed by Jeppesen Dataplan, the aviation services provider used for these aircraft, that STS or state indicator is averred as a special privilege vis-à-vis all authorities whose territories the aircraft will traverse or land in, in the course of its circuit.",
"What that status affords the flight is a different characterisation in the flight plans, but that is not to suggest that upon landing in Romania there would be any diplomatic reception or any form of special treatment, in fact. On the contrary, most of these aircraft landed without being subjected to basic border guard controls, basic customs inspections. They were not granted special treatment in the sense of a state designation, they were in fact granted special treatment of an entirely different sort, of a sort which indicates permission to perform unlawful detainee transfers. So you ask me, why did they invoke the STS indicator, or on what basis does it change the status? What it does, is that it creates a further layer of deceit as to the real purpose of these aircraft, it creates the impression that these aircraft are somehow untouchable and it creates the impression that they ought not to be scrutinised by their receptor authorities. But does it change how they are received on the ground? In itself, no, it does not. ”",
"E. Mr Black",
"388. Mr Black is an investigator with the Bureau of Investigative Journalism and with Reprieve, having extensive experience in the field of the CIA extraordinary rendition programme. On two occasions, in 2012 and 2015, he was heard as an expert in the LIBE inquiry into the alleged transportation and illegal detention of prisoners in European countries by the CIA. He was involved in the preparation of the 2015 LIBE Briefing (see also paragraphs 282, 289 and 355-358 above ). Since 2010 he has continuously carried out research on the CIA Eastern European “ black sites ”.",
"389. In his testimony before the Court he stated, among other things, as follows.",
"390. In response to the judges ’ question whether, on evidence that he had accumulated in the course of his research and had been known to him, it could be established beyond reasonable doubt that a CIA detention facility had indeed existed in Romania in 2003-2005, Mr Black stated:",
"“ I believe it is clear, beyond reasonable doubt, that there was a CIA detention facility in Romania. I am convinced on a wide array of different types of evidence that it operated from September 2003 until November 2005. I believe it is clear beyond reasonable doubt that, among others, Khalid Sheikh Mohammed was held in it, Hassan Ghul was held in it, Janat Gul was held in it, Abu Faraj Al-Libi was held in it, Al Nashiri was held in it, Walid Bin Attash was held in it, on two occasions in fact, Samr al-Barq was held in it, Abu Munthir al Maghrebi was held in it. I believe there are indications that others, including Hambali, Lilie, Mohammed Qurban Ibrahim, were held in it. All of these statements are backed by, if you will, an array of evidence which includes aviation data that can be categorically related to the US Government ’ s rendition programme. It includes statements made by the [US] Senate Committee Report that was declassified in 2014, it includes new material that has just recently been declassified by the government, by the US Government earlier this month.",
"My findings in which I discuss the evidential basis for these statements were most recently formulated in a briefing that I wrote for the LIBE Committee in September last year. I am not sure if the Court has seen that document, I understood that the LIBE Committee was going to publish it last year, but in fact I found that perhaps they did not. If the Court has not seen that document, then of course I would be happy to provide it. Since I wrote that, as I say, there have been some new developments in the last few months where further research on the basis of the [US] Senate Committee Report and newly declassified documents from the CIA that came out a few weeks ago, have further confirmed the findings that I made in the original briefing and have also added some new names and some new information to the list. But I mean, you know, I can give you, if you wish, I could give you the dates of when each of those specific individuals were held in Romania to the best of my knowledge and findings, but I mean the fact that those individuals were held in Romania at various points between 2003 and 2005 is absolutely beyond reasonable doubt, there cannot be any alternative narrative to that that makes any sense.",
"In terms of your question as to where precisely the facility was where they were held, this is not something that really I have exhaustively researched because it is not really something that the methodologies I use are particularly able to build up a picture of. I mean I would go so far as to say that it is likely, on the basis of all the evidence I have seen, that the facility was in Bucharest. We are all aware of the publication by Associated Press and others a few years ago that it was in the basement of the ORNISS building. I mean I cannot say that my researches would confirm that or deny that, certainly I have not seen anything that would tend to deny it. ”",
"391. Replying to the judges ’ question whether Romania “ knew or ought to have known ” of the nature of the CIA rendition programme, that it had operated on its territory and whether their knowledge had been such as to enable the Romanian authorities to be aware of the purposes of the CIA aircraft landings in Romania in 2003-2005, Mr Black stated:",
"“ I think it is clear that the authorities were aware of it because, among other things, they received money for it. They received more than eight million dollars, we can determine from a reading of the [US] Senate Committee Report, how much more than eight million dollars I do not know. And I think it is also clear from a reading of that report that they demanded its closure at a certain point in November 2005. And I believe it is normally common practice, as far as we can tell from the Senate Report which I take in this instance to be authoritative, that the host country ’ s officials were in the know about these facilities and the purposes of them. I think that it is clear, in the case of Romania, that there were officials who were aware that they had been paid money by the CIA to house prisoners and that the prisoners were being transported in by covert means. ”",
"392. Mr Black further identified the alleged CIA detention facility in Romania as the one referred to as “ Detention Site Black ” in the 2014 US Senate Committee Report:",
"“ I have gone into it in more detail in the briefing that I prepared for the LIBE Committee, but to kind of give a brief summary, Detention Site Black is the site that fulfils, in terms of its operating times, the flight paths that we know to have been connected to prisoner movements and to the CIA ’ s rendition programme. Detention Site Black is the one that correlates precisely with those flight paths that our research has discovered, has reconstructed, if you will. There are, there are other indicators which include cables that are sent from Detention Site Black that correspond to prisoners who were flown into Romania on flights that are connected via their contracts and invoice numbers to the CIA rendition programme, cables that specifically reference the behaviour of certain prisoners. For example, the Senate Report makes reference to a number of prisoners who were held at site ‘ Black ’ whose movements have been correlated with flights moving into Romania or out of Romania within the timeframe that makes sense. ”",
"393. Answering the Government ’ s question as to what differentiated – assuming that the flights in question were indeed rendition flights – ” stopover ” landing points from prisoners ’ transfers, Mr Black responded:",
"“ ... [T]here are a series of characteristics which, I mean, which prisoner transfers, as in the point of pick-up and the point of drop-off, they occur on specific days, on specific times that can be cross-correlated with documents relating to the movements of prisoners. They occur in specific destinations, which consistently match other accounts of the movements of prisoners. It is when you look at the totality of the evidence, it is clear, for example, that some destinations are commonly used as rest and recuperation. There are places where crews go before they carry out a transfer or after they have carried out a transfer, so those are destinations like Mallorca, Dubai, there are others, and there are destinations that are commonly technical refuelling destinations which tend to be in the Atlantic because they occur when the planes are moving from Washington D. C. to North Africa, the Middle East or Europe to carry out rendition flights, so those are typically places like the Azores or Ireland, Scotland. Now, in a sense, to answer that question fully we would have to go through each of these flights in sequence and say why it does not make sense that in any one of them Romania is the refuelling destination rather than the prisoner movement destination, but I mean rather than do that, I would say in summary that, when you take the totality of the evidence, the consistency with which the points of transit through Romania match the points of transit that we know apply to the movement of prisoners, is such that it does not really allow any alternative narrative. ”",
"THE LAW",
"I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION",
"A. Romania ’ s lack of jurisdiction and responsibility under the Convention in respect of the applicant ’ s alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania",
"394. Article 1 of the Convention states:",
"“ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention. ”",
"1. The Government",
"395. The Government, in their written and oral pleadings, asserted that the applicant had not demonstrated that at any time during his detention under the HVD programme he had fallen under Romania ’ s jurisdiction within the meaning of Article 1 of the Convention.",
"In that regard, they referred to the general standards for State responsibility set by international law, stressing that for an act to be characterised as an internationally wrongful act engaging State responsibility, it must be attributable to the State. In the light of the International Law Commission ’ s Draft Articles (see paragraph 210 above), there must be either direct knowledge and involvement in an internationally wrongful act on the part of the State, or indirect knowledge, inferred from the assumption that a State exercising its jurisdiction over its territory should not ignore the commission of an internationally wrongful act within its territorial jurisdiction.",
"In their view, for a better understanding of the responsibility that would have been engaged had there been a secret detention facility in Romania, it was still necessary to distinguish between different scenarios of the State ’ s attitude and conduct: its potential agreement to put a facility at the disposal of another State, its knowledge of the exact purpose of the operation of a secret detention facility, the exercise of the State ’ s authority over that facility, and whether it knowingly permitted the use of its territory for activities entailing human rights violations.",
"396. Accordingly, Convention responsibility could be attributed to Romania only if it had knowingly permitted its territory to be used by another State for activities entailing human rights violations.",
"In that scenario, the question to be resolved was whether, in view of the public awareness regarding the secret detention programme, the authorities should have become aware of the fact that the flights operating on the territory of Romania had been CIA-operated flights and whether, on this basis, they should have inferred that there had been a secret detention facility in Romania and have acted in accordance with their obligation of due diligence.",
"However, on the evidence before the Court, including the reports of the international inquiries or non-governmental sources, there was no indication that the Romanian authorities – autonomously or in cooperation with a third State – had put in place or run a secret detention facility. No evidence showed that the Romanian authorities had knowingly and expressly agreed, after being informed of the purpose or nature of activities to be performed in that facility, to put such a location at the disposal of third parties.",
"In support of their arguments, the Government relied on the Court ’ s case-law, in particular Ilascu and Others v. Moldova and Russia (no. 48787/99, 8 July 2004), Loizidou v. Turkey (no. 15318/89, 18 December 1996), and Soering v. the United Kingdom (no. 14038/88, 7 July 1989). They also cited the International Court of Justice ’ s ruling in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v. Serbia and Montenegro, judgment of 27 February 2007).",
"397. The Government also considered that the International Court of Justice ’ s judgment in the Corfu Channel case ( United Kingdom v. Albania, judgment of 9 April 1949, ICJ Reports 1949, p. 17) was particularly relevant to State responsibility since it had established the threshold required for circumstantial evidence. In particular, the International Court of Justice had held that a “ charge of such exceptional gravity against a State ” – and the charge laid by the applicant in the present case was one of such gravity – would require a “ degree of certainty ” that had not been reached in that case. Moreover, it had stated that (ibid., p. 18) “ it [could not] be concluded from the mere fact of the control exercised by a State over its territory and waters, that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact by itself and apart from other circumstances, neither involve[d] prima facie responsibility nor shift[ed] the burden of proof ”.",
"398. It was the Government ’ s firm position that the applicant had not produced any prima facie evidence capable of establishing a direct or indirect link between his rendition and detention under the CIA HVD Programme and any act or omission on the part of the Romanian authorities.",
"They asserted that the applicant had not entered Romanian territory, had not been held in a “ secret ” detention facility there and had never been transferred to or removed from Romania. No action concerning his transfer or detention had ever been taken jointly by the Romanian authorities and other foreign authorities.",
"This assertion, the Government added, was not meant to prevent the Romanian investigating authorities from reaching a different conclusion on the closure of the criminal investigation instituted in connection with the applicant ’ s allegations if any new convincing evidence had subsequently emerged. However, in the light of the evidence as it currently stood and the domestic authorities ’ findings so far, the applicant had never been on Romania ’ s territory or under the jurisdiction of the Romanian authorities.",
"399. In the Government ’ s submission, the applicant ’ s account of the facts amounted to mere suppositions because evidence presented by him mostly consisted of various excerpts from media news, international reports and non-governmental organisations ’ allegations. In fact, the so-called “ sources ” on which the applicant relied simply reiterated in different terms the same information as the article published in The Washington Post in November 2005. Such materials could not make up for the absence of official documents confirming his claims.",
"In this connection, the Government also contested the credibility of the 2006 and 2007 Marty Reports, Mr Hammarberg ’ s findings and memorandum, materials collected by Reprieve in the context of its rendition research activities, and the CIA sources (see also paragraphs 4 30 -43 5 below).",
"400. The Government did not dispute the existence of the HVD Programme and the fact that the applicant had been subjected to secret detention and ill-treatment under that programme. These were objectively established factual elements proven by several international inquiries and acknowledged by US officials. Nevertheless, in the present case there was no evidence and not even a mere presumption of fact indicating that the Romanian State had been an accessory to violations of human rights occurring during the CIA ’ s rendition operations. Nor was there any direct or indirect connection between the Romanian authorities and the HVD Programme.",
"401. At the oral hearing, following the taking of evidence from experts at the fact-finding hearing, the Government maintained their position. They considered that the experts had found arguments supporting their theories with surprising ease, without analysing contradictions and choosing from previous reports or inquiries only the convenient elements. In the Government ’ s view, no proof had yet emerged to confirm that the facts complained of had occurred under Romania ’ s jurisdiction.",
"In that context, they underlined that the negative conclusion as to the existence of suspicious flights or secret detention facilities in Romania had been reached by the national authorities after an inquiry conducted in a spirit of cooperation – cooperation that had not always been recognised by the bodies conducting international investigations.",
"402. In sum, the so-called “ evidence ” in the case was ambiguous and dubious and in reality constituted mere assumptions drawn from the fragmentation and interposition of various publicly accessible pieces of information disseminated by the media.",
"Accordingly, the Government invited the Court to declare the application inadmissible pursuant to Article 35 § 3(a) in conjunction with Article 1 of the Convention.",
"2. The applicant",
"403. The applicant replied that the Government ’ s arguments were without merit.",
"In his written submissions, he stated that Romania ’ s knowing and intentional participation in the CIA ’ s operations and its failure to act on its positive obligations had resulted in the applicant ’ s secret detention and ill-treatment on Romanian territory. Citing the Ilascu and Others v. Moldova and Russia judgment, the applicant stressed that “ the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate[d] the Convention rights of other individuals within its jurisdiction ” engaged the State ’ s responsibility under the Convention. Also, under Article 1 of the Convention, in addition to its duty to refrain from interfering with the enjoyment of the Convention rights and freedoms, the Romanian State had positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory.",
"404. In the applicant ’ s view, he had established more than a prima facie case that he had been detained and tortured in Romania under the CIA secret detention and extraordinary rendition programme. The burden now shifted to the Government to provide a “ satisfactory and convincing explanation ” as to whether he had been detained and ill-treated.",
"405. Notwithstanding the wealth of evidence confirming that Romania had hosted a secret CIA prison where he had been detained, the Romanian Government had not only categorically denied that they had hosted a CIA prison but also attempted to discredit findings issued by reputable officials such as the Council of Europe ’ s Commissioner for Human Rights and Senator Dick Marty, as well as evidence produced before the Court in general.",
"406. In that regard, the applicant emphasised that, as confirmed in the El - Masri judgment (cited above), while the Court generally applied the “ beyond reasonable doubt ” standard of proof in assessing evidence, there were no procedural barriers to the admissibility of evidence or pre ‑ determined formulae for its evaluation. The Court could rely on evidence of any kind and make its free assessment.",
"For instance, in El-Masri, a case where the applicant had likewise been subjected to rendition, secret detention and torture under the CIA HVD Programme, the Court had considered a variety of evidential sources, including the 2006 and 2007 Marty Reports, the 2007 Fava Report, a report by the Council of Europe ’ s Commissioner for Human Rights, Wikileaks cables, reports of the ICRC and non-governmental organisations such as Amnesty International and Human Rights Watch, and declassified CIA documents. The Court had specifically referred to a “ large amount of indirect evidence ” obtained during international inquiries, including aviation and flight logs, among many other materials that had corroborated Mr El ‑ Masri ’ s claims. The Court had been satisfied that there had been prima facie evidence in favour of the applicant ’ s version of events, that the burden of proof should shift to the respondent Government, and that the Government had failed to demonstrate conclusively why the evidence could not corroborate the applicant ’ s allegations. It had ultimately found “ the applicant ’ s allegations sufficiently convincing and established beyond reasonable doubt ”. The Court had adopted the same approach in Al Nashiri v. Poland.",
"407. The applicant considered that the Court ’ s findings of fact in Al Nashiri v. Poland were valid in the present case. He referred to the publicly available verbatim record of the fact-finding hearing in that case and the testimony of Senator Marty and Mr J.G.S. who had stated that there had been a secret CIA detention site in Bucharest. He further relied on the documents that had become public after the delivery of the Al Nashiri v. Poland judgment, in particular the 2014 US Senate Committee Report and materials collected by the European Parliament in connection with its LIBE Committee ’ s inquiry into allegations about the CIA secret detention facility in Romania.",
"408. At the oral hearing, in response to the Government ’ s submissions (see paragraphs 39 5 -40 2 above ), the applicant stated that, in the light of evidence gathered in the case, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison from September 2003 to November 2005 and that he had been secretly detained in that prison. The 2014 US Senate Committee Report and other documentary exhibits before this Court, as well as cogent and credible expert testimony, confirmed these facts.",
"The applicant ’ s torture and secret detention, together with his transfer from Romania in the face of real risks of further torture and undisclosed detention could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur.",
"409. In conclusion, the applicant asked the Court to reject the Government ’ s preliminary objection.",
"3. The Court ’ s assessment",
"410. The Court observes that in contrast to cases where objections that a State had no jurisdiction were based on the alleged lack of the respondent State ’ s effective control over the “ seceded ” territory on which the events complained of had taken place (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 300-30 4, ECHR 2004 ‑ VII ) or an alleged lack of attributability on the grounds that the events complained of had occurred outside the respondent State ’ s territory and were attributable to another entity (see Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 47 and 56 Series A no. 310; and Cyprus v. Turkey [GC], no. 25781/94, § § 69-70 ECHR 2001 ‑ IV), in the present case the Government ’ s objection in effect amounts to denying that the facts adduced by the applicant in respect of Romania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court (see paragraphs 39 5 -40 2 above).",
"The issue of the Romanian ’ s State responsibility under the Convention is therefore inherently connected with the establishment of the facts of the case and assessment of evidence. Consequently, in order to determine whether the facts alleged by the applicant are capable of falling within the jurisdiction of Romania under Article 1 of the Convention, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of indeed occurred on Romanian territory and, if so, whether they are attributable to the Romanian State. The Court will therefore rule on the Government ’ s objection in the light of its findings regarding the facts of the case (see paragraphs 600 -60 2 below).",
"B. Non- compliance with the rule of exhaustion of domestic remedies and the six-month rule",
"411. Article 35 § 1 of the Convention states:",
"“ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. ”",
"1. The Government",
"(a) Non-exhaustion of domestic remedies",
"412. In the Government ’ s submission, the applicant had made only a formal and superficial attempt to exhaust domestic remedies.",
"In their written pleadings they maintained that, pursuant to Article 222 of the CCP, the applicant should first have applied to the domestic authorities to obtain redress for a violation of his rights on account of the commission of any alleged offences. In that connection, they drew the Court ’ s attention to the fact that the applicant had lodged a criminal complaint on 29 May 2012 and merely two days later – on 1 June 2012 – had brought his application to the Court.",
"In the Government ’ s view, the applicant ’ s personal opinion that any attempt to exhaust domestic remedies would have been futile because the Romanian authorities had constantly denied the existence of “ secret detention facilities ” had not entitled him to address his grievances directly to the Court, thereby depriving Romania of the opportunity to pursue a criminal investigation into his allegations. As demonstrated by a number of examples from the Court ’ s judgments in Romanian cases, a criminal complaint was an effective remedy for the purposes of Article 35 § 1 and the Government saw no reason why it should not be effective in the applicant ’ s case. Given the complexity of the case, he could not realistically expect that his criminal complaint would immediately bring results.",
"413. At the oral hearing, the Government added that while in some cases the passage of time from the date of lodging the application could make a non-exhaustion objection obsolete, this was not so in the applicant ’ s case. The criminal investigation in Romania was still pending and a number of important actions had in the meantime been taken by the prosecution. However, the applicant ’ s representatives had so far displayed no more than a limited interest in the investigation. For two and a half years they had taken no step to participate in the proceedings and when they had finally had done so, they had asked only for information about the case-file number.",
"In the circumstances, the application had been and remained premature.",
"(b) Non-compliance with the six-month term",
"414. The Government next argued that the applicant had also failed to comply with the six-month rule in Article 35 § 1 of the Convention. If, as he claimed, a criminal complaint that he had filed on 29 May 2012 had not been an effective remedy for the purposes of this provision, according to the Court ’ s case-law he should have lodged his application within six months from the time when he had become aware of the fact that he had been detained in Romania.",
"In their view, that time-limit had begun to run on 6 May 2011, the date on which he had lodged his application with the Court against Poland. In that application, based on the same documents as his application against Romania, he had stated that after his detention in Poland “ he [had been] moved from Guantánamo Bay to Rabat and then to another CIA prison in Bucharest, Romania, sometime after 27 March 2004 ”.",
"Accordingly, his present application, being submitted on 1 June 2012, i.e. more than a year later, had been lodged out of time and should be rejected.",
"2. The applicant",
"415. The applicant asked the Court to dismiss the Government ’ s objections.",
"(a) Non-exhaustion of domestic remedies",
"416. As regards the exhaustion of domestic remedies, the applicant stressed that the national authorities had been on notice of a CIA secret prison on their territory at least since November 2005, when public records of such a prison had first resurfaced. The prosecution had shown a complete lack of interest in the matter. In addition, as set out in Mr Hammarberg ’ s affidavit, they had ignored his repeated requests for an investigation to be opened and had not responded to the dossier of evidence relating to the secret CIA prison that he had submitted to the Romanian Prosecutor General.",
"Viewed in the context of the Romanian authorities ’ pattern and practice of obfuscation and denial, it was apparent that the criminal investigation was plainly ineffective. As such, there was no merit to the Romanian Government ’ s claim that the application should be deemed inadmissible for non-exhaustion of domestic remedies.",
"(b) Non-compliance with the six-month rule",
"417. The applicant acknowledged that it was true that in his application against Poland he had summarily mentioned that he had been held in a secret detention facility in Bucharest. But at that time the facts relating to the precise location of the secret CIA prison in Romania and the treatment of detainees held there was still unknown and, consequently, there had not yet been sufficient information to file an application with the Court. Given the complexity of the case and the nature of the alleged human rights violations at stake, he was entitled to build an arguable case, which included obtaining critical information as to the location of the detention facility. It was not until 8 December 2011 that this location had become publicly known and named via news report in The Independent that cited former US intelligence officials familiar with the location. It had been the first time that the location of the prison, i.e. the building used by the National Registry Office for Classified Information, known as “ ORNISS ”, together with a description of its interior and details of ill-treatment of prisoners held there – including the applicant – had been publicly disclosed.",
"3. The Court ’ s assessment",
"418. The Court observes that the Government ’ s objections raise issues concerning the effectiveness of the applicant ’ s criminal complaint and the subsequent investigation into his allegations of torture and secret detention on Romanian territory and are thus closely linked to his complaint under the procedural limb of Article 3 of the Convention (see paragraph 3 above and paragraphs 602-604 below). That being so, the Court is of the view that the objections should be joined to the merits of that complaint and examined at a later stage (see, mutatis mutandis, Al Nashiri v. Poland, cited above, § 343 and Husayn (Abu Zubaydah) v. Poland, cited above, § 337, both with further references to the Court ’ s case-law).",
"II. THE COURT ’ S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE",
"A. The parties ’ positions on the facts and evidence",
"1. The Government",
"419. As noted above in respect of the Government ’ s arguments as to Romania ’ s lack of jurisdiction and responsibility under the Convention, they denied on all accounts the applicant ’ s allegations as being unsupported by any evidence and, consequently, having no factual basis. They also challenged the credibility of most part of the evidence gathered in the case and denied Romania ’ s knowledge of, and complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 39 5-402 above).",
"The Government ’ s conclusions on the facts and evidence were as follows.",
"(a) Lack of evidence demonstrating that a CIA ” black site ” operated in Romania",
"420. First of all, the Government maintained that there had been no evidence demonstrating that a CIA secret detention facility had ever existed in Romania. They maintained that all the applicant ’ s allegations to that effect were based on inconsistent and contradictory speculations.",
"(i) Contradictory statements as to the “ life cycle ” of the alleged CIA ” black site ” in Romania",
"421. The sources relied on by the applicant had given contradictory indications regarding the period during which a “ secret ” detention facility had allegedly operated in Romania. The 2007 Marty Report affirmed that that facility had been opened in 2003 and had become highly important in 2004. It mentioned that it had been closed in November or December 2005 following the Washington Post ’ s revelations. This contradicted the media sources indicating that the “ secret prison ” had been closed in the first part of 2006.",
"According to the article published in The Independent on 8 December 2011, secret detention centres in Romania had been closed by May 2006. Reprieve had taken an approach differing from that of ABC News, stating that the detainees had been moved out of identified European “ secret ” locations prior to Secretary of State Condoleezza Rice ’ s visit to Romania on 5 December 2005. On the other hand, the Council of Europe ’ s Commissioner for Human Rights, in his dossier, had described the “ life ‑ cycle ” of the site as a “ period of at least one year, beginning with its opening on 22 September 2003 ”.",
"Accordingly, the reliability and veracity of information concerning the period during which the alleged “ secret ” detention site had operated was extremely doubtful.",
"(ii) Contradictory statements as to the location of the alleged CIA ” black site ” in Romania",
"422. As regards the location of the alleged CIA detention facility in Romania, at first there had been suppositions that it might have been located near Timișoara Airport, Mihail Kogălniceanu Airport or Băneasa Airport. These locations had been mentioned in succession, each for several years.",
"The sources cited by the applicant had changed their assumptions each time it had been established that no “ secret ” detention facility had ever existed in the indicated place. Thus, a new location had subsequently been discovered.",
"423. In 2007 the Romanian Senate, following on-site inspections of the locations and after hearing witnesses, had established in its report that there had been no “ secret ” detention site near Mihail Kogălniceanu Airport in Constanţa, including the military airbase. Despite that fact, in 2011 some journalists had come up with another hypothesis, indicating the basement of the building used by the ORNISS, a public institution, as a secret prison. To justify their speculations, they had not, however, supplied any solid evidence, or even any credible indications.",
"424. In 2007 Senator Marty had seemed convinced, quoting “ reliable sources ” within the CIA, that a secure area for the CIA transfers and detentions had been created near Mihail Kogălniceanu Airport. In 2009, the New York Times had quoted “ officials ” as saying that “ one jail was a renovated building on a busy street in Bucharest ”. In 2011, other “ reliable sources ” indicated the ORNISS building – which, the Government added, was located in a residential area and not on a busy street – as the location of the secret CIA detention site in Bucharest.",
"425. Lastly, in the pending criminal investigation there had so far emerged no evidence that any location in Romania or, especially, in Bucharest as suggested by the applicant ’ s sources, could have been used by the CIA as a secret prison. In contrast, the prosecution had obtained a statement from an official working for the ORNISS – which had been produced before the Court – confirming that their building could never be, and had never been, used as a detention facility.",
"( b ) Inconsistencies in the applicant ’ s account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania",
"426. The Government next argued that the applicant ’ s account regarding the dates, circumstances and period of his alleged detention in Romania was inconsistent and therefore unreliable.",
"In his application, the applicant had stated that he had been arrested in 2002 in Dubai. Then he had been held in Afghanistan and Thailand and moved to Poland on 5 December 2002. On 6 June 2003 he had been moved from Poland to Rabat, Morocco and, subsequently, on 22 September 2003 to Guantánamo Bay where he had been detained until 2004. On 27 March 2004 he had been transferred to Morocco and afterwards, to Romania. In 2006, the applicant had again been moved to Guantánamo Bay. Finally, he alleged that he had been “ secretly ” detained on Romanian territory from 6 June 2003 until 6 September 2006.",
"427. Other sources advanced the idea that the applicant had been transferred to Romania in September 2003 but then Reprieve had indicated 12 April 2004 as the date of his transfer to Romania. According to the 2007 Marty Report, the applicant had been brought to the CIA ” black site ” in Bucharest on the flight N313P on 23 September 2003. Mr Hammarberg, for his part, had maintained that the opening of the CIA prison code-named “ Bright Light ” and the start of the CIA operations at the Romanian “ black site ” had been marked by the N313P flight on the night of 22 September 2003. However, in his opinion, the applicant had been transferred to Romania on the N85VM flight directly from Guantánamo to Bucharest on 12 April 2004.",
"428. The Government emphasised that the applicant had indicated no precise date of the flight on which he had allegedly been transferred out of Romania. He only mentioned that he had remained in Romania until around 6 September 2006, when he had been moved to Guantánamo. Nor had the experts heard at the fact-finding hearing been able to give a precise date for his transfer out of Romania.",
"429. It was therefore clear that there was no conclusive evidence in support of any of the above versions of the possible dates, circumstances or period of the applicant ’ s alleged detention in Romania.",
"(c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe ’ s Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents",
"430. In the Government ’ s opinion, there was a particular circuit of information concerning the alleged existence on Romanian territory of “ secret ” detention facilities. To begin with, mass media had launched accusations against certain States. Later on, this information had been reiterated as genuine by non-governmental organisations protecting human rights. These organisations had presented as evidence data extracted from records, invoices, and flight plans of planes allegedly used for transferring detainees. At the same time, these organisations had deliberately ignored the verifications performed by some European countries regarding the flights allegedly connected to the rendition programme. As a consequence, the information contained in official documents was not based on strong evidence, but on the sum of the data given by the mass media based on non ‑ verifiable sources.",
"431. The Government contested the credibility of sources relied on by Senator Marty in his reports of 2006 and 2007. They said that the Marty Reports included many inconsistencies and contradictions. For instance, even though the reports had stated that the materials analysed, i.e. satellite photographs, aircraft movements and witness accounts, had not constituted evidence in the formal sense of the term, the authors had nevertheless found that these elements had been sufficiently serious to assume that a CIA secret detention facility existed in Romania. In the Government ’ s opinion, Senator Marty had displayed reluctance to reveal his alleged sources of evidence and protected them under the plea of a strict policy of confidentiality. Statements given by anonymous witnesses were not challengeable and this impeded the Government in properly contesting their reliability and defending themselves against the accusations made in the Marty Reports.",
"432. Referring to the 2007 Marty Report, the Government saw inconsistencies in many respects. For instance, it was mentioned that the evidence had been obtained through alleged discussions with “ well-placed persons from the Government and the intelligence services ”. It was also stated that information had been classified by the Americans into “ tiny pieces of information ” in order to prevent any single foreign official from seeing a “ big picture ”. But it was further said that only the highly placed officials had been aware of the HVD Programme. In these circumstances, those “ well - placed persons ” had been in no position to offer any information.",
"The 2007 Marty Report spoke of the alleged “ operating agreements ” between the CIA and Romania to hold detainees. However, in the next paragraph Senator Marty had admitted that he had not seen the text of any such agreement.",
"Furthermore, statements of Romanian politicians had been taken out of context to support the report ’ s erroneous conclusions. Even a declaration of the Romanian President had been distorted into a “ formal approval ” of the agreement for the cooperation in the HVD Programme.",
"In sum, the 2007 Marty Report ’ s categorical conclusion that it “ [had been] finally established that secret detention centres [had] existed for some years in Romania ” seemed to have gone beyond the scant indications on which it had been based.",
"433. As regards Mr Hammarberg ’ s findings of 2009-2012, in particular those referred to in his affidavit and included in the dossier prepared for the Romanian Prosecutor General, the Government pointed out that they were – like Senator Marty ’ s conclusions – based on newspaper articles and sources that could not be verified. They were accordingly no more than unsubstantiated allegations. Also, in the same fashion as other experts before the Court, Mr Hammarberg had based his theories on selective materials, without analysing the existing contradictions. For instance, he had found support for his assertions as to the alleged use of the ORNISS building by the CIA in the fact that in Poland a State facility had hosted a secret detention site. This was concluded without having regard to obvious differences between a remote location and a building used on a daily basis by Government officials in a European capital.",
"434. Referring to Reprieve ’ s research and findings, the Government said that this non-governmental organisation represented the interests of some of the detainees held in Guantánamo and carried out a humanitarian project concerning persons who had been subjected to extraordinary rendition in the HVD Programme. Reprieve ’ s current case work involved representing fifteen prisoners from Guantánamo, assisting over seventy prisoners facing the death penalty around the world and conducting ongoing investigations into the rendition and the secret detention of “ ghost prisoners ” in the so-called “ war on terror ”. In these circumstances, Reprieve could not objectively state the facts in their documents and respective articles.",
"435. Lastly, the Government pointed out that the reliability of the CIA sources cited by the experts and various inquiries or media reports was open to doubt because even the 2014 US Senate Committee Report concluded that the CIA had leaked inaccurate information regarding the operation of the HVD Programme.",
"(d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions",
"436. The Government did not deny that several – allegedly “ suspicious ” – planes had landed at and taken off from Romanian airports; these flights had at least partly been documented by the 200 7 Romanian Senate Report. Also, publicly available evidence confirmed their stopovers on Romanian soil. However, the impugned flights had been of a private and non-commercial nature and had been treated accordingly. In all cases invoices, air navigation service sheets or ground handling charge notes had been issued for all the services provided. The flights had been included in the control lists of the navigation records. The declassified annexes to the 2007 Romanian Senate Report supported the conclusion that the purpose of the “ N ” flights ’ stops at Băneasa Airport had been mainly technical in nature.",
"For instance, as regards the alleged “ rendition flight ” N85VM of 12 April 2004, the available documents attested that the flight had been recorded in the table containing handling fees and in the control list of navigation records, that an invoice had been issued and that the payment had been made by card; a copy of the air routing card having been attached to the relevant documents.",
"437. Moreover, several witnesses who had worked in Băneasa Airport at the material time and who had made statements in the investigation had identified these flights as having had a technical stop for refuelling at the airport. The vast majority of the witnesses had stated that the “ N ” flights had been serviced by a civil handling agent as any normal flight. Even the witnesses who had noted aspects that would suggest that the US flights had gone through a different procedure had completed their declarations by stating that they had not seen any persons disembarking from these aircraft. It should be stressed that not all the witnesses had serviced the same flights and that, therefore, their declarations should not be seen as contradictory.",
"438. In contrast to the circumstances surrounding the CIA planes ’ landings as established by the Court in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights. As the documents in the investigation file showed, all the “ N ” flights had gone through the standard procedure. The procedure, as described in the witnesses ’ statements, had been entirely different from what had happened in Szymany in Poland. No foreign vehicles had been seen entering the premises of Băneasa Airport, there had been no military intervention in order to secure the airport perimeter and, most certainly, US officials had not assumed control of the airport on the dates in question. Nor had any HVDs been seen entering the country, as witnesses quoted in the 2007 Marty Report had stated with regard to the aircraft landings in Szymany.",
"439. As regards the importance attached by the international inquiries, media and experts heard by the Court to changes of flight plans, in the Government ’ s view this by itself could not suggest any involvement of the State in the applicant ’ s detention and ill-treatment.",
"The Government did not deny that the initial flight plans for the N313P flight on 22 September 2003 and the N85VM flight on 12 April 2004 indicating Constanţa as their destination had been changed and the planes had eventually landed at Băneasa Airport in Bucharest. Yet this could not be a proof of any consistent practice of the so-called “ dummy ” flight planning referred to in the Marty 2006 and 2007 Reports and the findings of the Council of Europe ’ s Commissioner for Human Rights.",
"In accordance with the relevant domestic and international regulations, every flight must have a flight plan, except for emergency issues. Each flight plan must indicate, in addition to the plane ’ s destination, an alternative destination. The flight plans had been established by the aircraft ’ s operators. The only potential involvement of the authorities had been limited to their assistance in transmitting the flight plan to the entity managing the integrated initial flight plan processing system. The decision to use the alternative destination or a change in flight plan had been a unilateral action by the flight operator. The acceptance of these changes in the flight plans was not indicative of any complicity of the Romanian authorities since such acceptance had in fact been automatic.",
"440. Similarly, the alleged STS/STATE indicators for the impugned flights could not be considered meaningful, even though various reports had emphasised their exceptional relevance. According to the applicable rules, that indicator should not automatically qualify for an exemption from any relevant flow regulations. Even Mr J.G.S. they added, although repeatedly asked, could not indicate any special privileges that the STS/STATE designation would entail.",
"(e) Lack of evidence demonstrating that the Romanian authorities entered into “ secret cooperation agreements ” with the CIA and cooperated in the execution of the HVD Programme",
"441. In the Government ’ s submission, the allegations regarding Romanian ’ s complicity in the HVD Programme, in particular by means of “ secret cooperation agreements ” were completely baseless. No such agreements existed.",
"In that context, the Government referred to the Romanian high-office holders ’ statements, in particular those made by former President of Romania, Ion Iliescu and his former security adviser, Ioan Talpeş in Der Spiegel in 2014 and 2015. Both of them had said that specific agreements had been concluded with the American authorities after 11 September 2001, including the Romanian support at the level of intelligence services – which had actually been very fruitful. This did not mean cooperation in running a secret prison. Furthermore, in the course of the criminal investigation their initially ambiguous statements had later been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania.",
"(f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights",
"442. Nor could it be said that the Romanian authorities had otherwise agreed – explicitly or implicitly – to the running of a secret detention facility by the CIA in Romania and that they had made available to them premises for that purpose. These were simply groundless assumptions unsupported by any evidence.",
"Referring again to the statements of Mr Iliescu and Mr Talpeş statements in Der Spiegel, the Government stressed that they had both clearly confirmed that they had had no knowledge of any CIA-run detention facility on Romanian territory.",
"(g) Lack of evidence of Romania ’ s knowledge of the CIA HVD Programme at the material time",
"443. No evidence had been produced to show the slightest degree of knowledge on the part of the Romanian authorities as to the alleged hidden purpose of the flights landing at and taking off from Romanian airports.",
"As attested by Mr J.G.S. at the fact-finding hearing, only at the beginning of November 2005 had there emerged the first information about the alleged existence in some “ Eastern European countries ” of secret detention facilities designated for suspected terrorists and run by the CIA. Before that time the only information available had concerned the detention facilities in Guantánamo Bay, Afghanistan, Egypt or Jordan and a specific case concerning the surrender of six Algerian men by Bosnian Federal Police into US custody. While information on the setting-up of military commissions for trying persons accused of terrorist acts had been in the public domain, the identities of those persons had been unknown. Nor had it been known what the US authorities ’ decision would be as to which of them would actually be tried before military commissions rather than before federal courts.",
"In sum, at the relevant time, from 2003 to 2005, there had been no information that would have allowed the European States to suspect that some of the US flights that had landed in Europe had been used for the transfer of prisoners.",
"2. The applicant",
"444. The applicant maintained that the international inquiries, the CIA declassified documents, the 2014 US Senate Committee Report, other abundant materials compiling most recent research on the operation of the HVD Programme and expert testimony obtained by the Court provided a wealth of compelling evidence supporting his allegations and rejecting the Government ’ s arguments as utterly untenable.",
"In his view, it was established beyond reasonable doubt that Romania had hosted a secret CIA prison in 2003-2005 and that he had been detained in that prison.",
"(a) As regards the existence of a CIA secret detention facility in Romania and the applicant ’ s secret detention in Romania",
"445. The 2014 US Senate Committee Report and other documentary exhibits before the Court, as well as cogent and credible expert testimony confirmed that the CIA detention site code-named “ Bright Light ” or “ Detention Site Black ” had been located in Romania. The fact that a CIA secret prison had been located in Romania had already been confirmed in the 2007 Marty Report. In the Al Nashiri v. Poland judgment the Court had quoted verbatim from the expert testimony of Senator Marty and Mr J.G.S. stating that there had been a secret CIA detention site in Bucharest.",
"446. As regards evidence that had emerged after the above judgment, the applicant attached particular importance to the 2014 US Senate Committee Report, adding that it fully confirmed the Court ’ s factual findings in Al Nashiri v. Poland, including those based on expert testimony and documentary evidence.",
"Although the report did not refer to Romania by name, it was established that publicly available information, when cross-referenced with references to Detention Site Black confirmed that this site was “ Bright Light ”, a secret CIA prison that had operated in Bucharest in 2003-2005. For example, the 2014 US Senate Committee Report stated that detainees had begun arriving at Detention Site Black “ in the fall of 2003 ”. It also stated that after publication on 2 November 2005 of the Washington Post article by Dana Priest disclosing that Eastern European countries had hosted CIA “ black sites ”, the country concerned had demanded the closure of Detention Site Black within hours and that the CIA had transferred the remaining CIA detainees out of the facility shortly thereafter.",
"447. Furthermore, the 2015 LIBE Briefing stated that it had been established beyond reasonable doubt that the CIA had used a facility in Romania to hold prisoners, that the first of them had been transferred to this facility on 22 September 2003 and that the last ones had been transferred out of the facility in November 200 5.",
"448. Lastly, the applicant relied on expert testimony at the fact-finding hearing. Senator Marty had stated that there had been no shadow of doubt that Romania had participated in the CIA programme. Mr J.G.S. had testified that with the exception of the “ black site ” in Afghanistan, the Romanian “ black site ” had operated for the longest period and held more detainees than any other CIA “ black site ”. Mr J.G.S. and Mr Black had confirmed that the applicant had been secretly detained in Romania. They had also confirmed that the wealth of details about “ Detention Site Black ” in the 2014 US Senate Committee Report all corresponded to details about the Bucharest prison that the CIA code-named “ Bright Light ”, where the applicant had been detained. As such, the report by itself, offered by no less than the United States ’ own Senate Intelligence Committee, based on exhaustive review of US Government documents, rendered untenable the Romanian Government ’ s claim that there was no evidence of a CIA prison on Romanian territory.",
"(b) As regards the alleged inconsistencies in the applicant ’ s account regarding the dates of his rendition to and from Romania and his secret detention in Romania",
"449. In response to the Government ’ s arguments (see paragraphs 42 6 ‑ 429 above), the applicant said that contrary to their assertions the application had not stated that he had been detained in Romania for the entire period between 6 June 2003 and 6 September 2006. Rather, it stated that he had been detained in Romania for some time during that period. Moreover, after the subsequent disclosure of the dossier submitted by Thomas Hammarberg, the precise date on which the applicant was transferred to a CIA “ black site ” in Romania had become clear – it had been 12 April 2004, on flight N85VM from Guantánamo Bay to Bucharest.",
"450. The applicant further emphasised that, as regards the location of the secret prison, it had become known only on 8 December 2011 when a news report had identified for the first time the precise location of the CIA prison in Romania, while at the same time confirming the applicant ’ s detention there, and providing details of the ill-treatment of detainees. The report had cited US intelligence officials familiar with the location and inner working of the prison.",
"(c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005",
"451. The applicant maintained that it had been established beyond reasonable doubt that planes associated with the CIA rendition operations had landed and taken off from Romania at the material time. The annex to the 2007 Romanian Senate Report listed forty-three flights that had been considered suspicious by the Romanian authorities.",
"452. The Fava Report had “ [e]xpresse[ d] serious concern about the 21 stopovers made by CIA-operated aircraft at Romanian airports ” which on many occasions had come from or had been bound for countries linked with extraordinary rendition circuits and the transfer of detainees. The list of rendition planes included flight N85VM of 12 April 2004 on which the applicant had been transferred to and from Romania.",
"The Fava Report further noted that a flight with registration number N478GS had suffered an accident on 6 December 2004 when landing in Bucharest. The aircraft had reportedly taken off from Bagram Air Base in Afghanistan, and its seven passengers had disappeared following the accident. The report expressed deep concern “ that Romanian authorities [had] not initiate[d] an official investigation process ... into the case of a passenger on the aircraft Gulfstream N478G5, who [had been] found carrying a Beretta 9 mm Parabellum pistol with ammunition ”.",
"453. Furthermore, the applicant pointed out that the international inquiries and the experts heard by the Court had identified the rendition flights on which he had been transferred to and from Romania.",
"The finding in Mr Hammarberg ’ s dossier for the Romanian Prosecutor General that the applicant had been transferred to Romania on 12 April 2004 on board N 85VM, a flight clearly and consistently associated with the rendition operations, had been confirmed by multiple reliable sources, including the 2014 US Senate Committee Report and the reconstruction by those experts of the applicant ’ s transfers in CIA custody.",
"454. As regards his possible transfer from Romania, the experts had given two dates, agreeing on the most probable date, which constituted sufficient evidence.",
"(d) As regards the Government ’ s allegation of a lack of credibility of sources of information and evidence",
"455. The applicant submitted that the Government ’ s arguments contesting the evidential value of the material before the Court should be rejected in their entirety.",
"In his view, the Government ’ s submissions simply constituted an attempt to discredit the findings of reputable officials like the Council of Europe ’ s Commissioner for Human Rights and Senator Dick Marty, by arguing that these findings were based solely on newspaper articles. In doing so, they failed to take into account the fact that Mr Hammarberg and Senator Marty had engaged in independent investigations and analysis of their own.",
"Indeed, Commissioner Hammarberg ’ s dossier for the Romanian Prosecutor General had expressly drawn on the “ original investigation and the analysis undertaken by [his] Office during the six of years of [his] mandate as Commissioner, among other sources of information ”. Similarly, the 2007 Marty Report had engaged in “ analysis of thousands of international flight records – and a network of sources established in numerous countries ”.",
"Further, as regards the statement in the 2007 Marty Report that Romania had entered into a bilateral agreement with the US authorities, the applicant pointed out that, contrary to the Government ’ s assertion, the fact that Senator Marty had not seen the actual document did not undermine the credibility of his claim that such an agreement had in fact existed, because its existence had been verified by credible sources, some of whom had been directly involved in negotiations that had led to this agreement. The fact that such an agreement had been brokered had recently been corroborated by the 2014 US Senate Committee Report.",
"( e ) As regards Romania ’ s ’ cooperation with the CIA and its complicity in the HVD Programme",
"456. For the applicant, there was no doubt that the Romanian authorities had cooperated with the CIA in the HVD Programme. They had granted licences and overflight permissions to facilitate the CIA rendition flights. The AACR ’ s officials had collaborated with Jeppesen (and, by extension, with Jeppesen ’ s client, the CIA) by accepting the task of navigating disguised flights into Romanian airports.",
"457. As set forth in the 2007 Marty Report, Romania had entered into a bilateral agreement with the United States. The report had named individual office-holders who had known about, authorised and stood accountable for Romania ’ s role in the CIA ’ s operation of secret detention facilities on Romanian territory from 2003 to 2005 as follows: the former President of Romania (up to 20 December 2004), Ion Iliescu; the then President of Romania (20 December 2004 onwards), Traian Băsescu; the Presidential Advisor on National Security (until 20 December 2004). Ioan Talpeş; the Minister of National Defence (ministerial oversight up to 20 December 2004), Ioan Mircea Pascu; and the Head of the Directorate for Military Intelligence, Sergiu Tudor Medar.",
"458. Romania had therefore participated in the applicant ’ s ill-treatment and incommunicado detention by entering into that agreement and giving the US the “ full extent of permissions and protections it sought ” for conducting secret detention and rendition operations on Romanian territory; issuing an order to Romanian military intelligence services on behalf of the President to provide the CIA with all the facilities they had required and to protect their operations in whichever way they had requested; providing the use of a Romanian Government building for hosting the secret prison where Al Nashiri had been detained; actively assisting the landing, departures and stopovers of secret CIA rendition flights including flights which had transported Al Nashiri in and out of Romania; and failing to disclose the truth and effectively investigate the existence of a secret CIA prison and rendition flights in Romania.",
"459. Consequently, the applicant ’ s torture and secret detention, as well as his transfer from Romania in the face of real risks of further torture, secret detention and the death penalty could be attributed to the Romanian State because these acts had occurred on Romanian territory with the acquiescence and connivance of the Romanian authorities and because Romania had failed to fulfil its positive obligations to prevent these acts, despite being on notice that they would occur.",
"460. Lastly, citing Al Nashiri v. Poland the applicant emphasised that in that case the Court had found that CIA rendition operations had “ largely depended on cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners and, last but not least, premises on which the prisoners could be securely detained and interrogated ” and that “ the cooperation and various forms of assistance of those authorities, such as for instance customising the premises for the CIA ’ s needs, ensuring security and providing the logistics [had been] the necessary condition for the effective operation of the CIA secret detention facilities ”. This was true with respect to Romania. Just as the Court had found it inconceivable that Poland had not known about the secret detention of prisoners on its territory, it was simply inconceivable that Romania had not known that it had been hosting a secret prison.",
"( f ) As regards Romania ’ s knowledge of the HVD Programme at the material time",
"461. The applicant contended that Romania had knowingly, intentionally, and actively collaborated and colluded with the CIA ’ s extraordinary rendition programme, thereby enabling the CIA to subject him to secret detention and ill-treatment in Romania.",
"462. The Romanian authorities should have known that high-value detainees would be tortured and ill-treated. Their close degree of cooperation with the CIA ’ s secret detention operations in Romania must have put Romanian authorities on notice of the prisoners being at risk of secret detention and ill-treatment.",
"In addition, Romania had had notice of the secret detention, torture and mistreatment of prisoners because of international and Romanian news reports, reports of the UN and human rights organisations and European legal cases that had documented US mistreatment of detainees suspected of terrorism at the material time. The Romanian Government were also presumed to have known of the CIA ’ s secret detention, torture, and ill-treatment of terrorism suspects through its diplomatic missions.",
"463. As the 2007 Marty Report had concluded, Romania had been “ knowingly complicit in the CIA ’ s secret detention programme ” and senior Romanian officials had “ [ known] about, authorised, and [stood] accountable for Romania ’ s role ” in the CIA ’ s secret detention and rendition operations on Romanian territory ”.",
"464. Furthermore, the 2014 US Senate Committee Report had confirmed that the Romanian authorities had known that they had been hosting a secret prison and had attempted to cover up this fact. Indeed, the report observed that the Romanian authorities had “ entered into an agreement ” in 2002 with the US to host the prison, and that the US had paid the Romanian authorities “ millions of dollars to host the prison ”. It also confirmed that within hours of The Washington Post reporting in November 2005 that Eastern European countries had hosted secret CIA prisons, the Romanian authorities had insisted on closing the CIA prison on their territory.",
"465. In the applicant ’ s submission, the evidence before the Court demonstrated that it was the Romanian authorities which had given the CIA permission to run a secret prison in Bucharest, it was the Romanian authorities who had given the CIA permission to use dummy flight plans to secretly land rendition planes carrying prisoners in and out of the country, and it was Romanian authorities who had given the CIA extraordinary security cover for their operations in Romania.",
"As expert J.G.S had said at the fact-finding hearing: “ it [was] quite clear that the Romanian authorities not only should have known but did know of the nature and purpose of the CIA ’ s secret operations on their territory ”. He had also testified that this level of cooperation had depended on authorisation by the highest levels in the Romanian Government. The 2014 US Senate Committee Report had confirmed this. Mr J.G.S and Mr Black had testified that the Romanian authorities had known the nature and purpose of the CIA activities on Romanian territory because the CIA had paid Romania millions of dollars as a subsidy to host the prisoners. Moreover, the 2014 US Senate Committee Report had also established that it had been at the insistence of the Romanian Government that Detention Site Black had been ultimately closed. The Romanian Government had demanded closure of the CIA prison within hours from the publication of the November 2005 Washington Post article disclosing that CIA “ black sites ” had existed in Eastern Europe. This clearly confirmed that for as long as the CIA prison had existed on Romanian territory, it had been there with the Romanian Government ’ s consent.",
"466. The applicant referred to the Court ’ s finding in Al Nashiri v. Poland (cited above) that by June 2003 it was widely known that the US rendition programme had involved secret detention in overseas locations. It stood to reason that Romania, which had hosted a secret CIA prison after Poland and had enabled the applicant ’ s transfers from its territory well after June 2003, indeed in 2005, had known by then that there had been substantial grounds for believing that the applicant had faced all of these risks.",
"467. As regards the statements of Mr Iliescu ’ s and Mr Talpeş, the applicant maintained that the Government ’ s submission was yet another example of their consistent refusal to acknowledge the truth about their hosting of a secret CIA prison on Romanian territory. In particular, the Government had quoted selectively from the statement of witness Z, denying that Romania had hosted a secret CIA prison. But a closer look at that statement revealed that Z had actually admitted that the Romanian authorities had supplied a “ location ” to the CIA.",
"468. In this connection, the applicant further referred to testimony given by witnesses X, Y and Z, saying that their statements expressly conceded that CIA flights had landed in Bucharest. In particular, X had said that Romania had partnership relations with similar institutions from other States, including equivalent structures in the United States of America. He also stated that in the framework of these bilateral relations, civil aircraft hired by the partner services on which their representatives travelled had landed at Bucharest Băneasa Airport. Witness Z had confirmed that US government officials had asked the Romanian authorities to provide some locations on Romania ’ s territory for the deployment of actions meant to fight the dangers of international terrorism and which were to be used by the CIA and that the authorities had “ offer[ed ] a location for CIA activities ” ‘. In his September 2013 statement Z had acknowledged that there had been “ concrete agreements ” that had made possible the operation of the special US flights in Romania and that those flights had not been “ under any obligation to obey usual rules imposed on civil flights ”.",
"Moreover, Y testified that, in the context of Romania ’ s strategic objective of “ NATO and European Union integration ”, it had been possible that CIA offices had been run on Romanian territory.",
"469. Lastly, the applicant reiterated that all the experts heard by the Court at the fact-finding hearing had stated, in unambiguous terms, that Romania not only ought to have known but must have known and had known of the nature and the purpose of the CIA ’ s secret operations occurring on its territory.",
"B. Joint submissions by Amnesty International ( AI ) and the International Commission of Jurists ( ICJ ) on public knowledge of the US practices in respect of captured terrorist suspects",
"470. Referring to any knowledge of the US authorities ’ practices in respect of suspected terrorist attributable to any Contracting State to the Convention at the relevant time, AI / ICJ pointed to, among other things, to the following facts that had been a matter of public knowledge.",
"471. The interveners first emphasised that they had shown in their submissions in El-Masri and Al Nashiri v. Poland (both cited above) that, at least by June 2003, there had been substantial credible evidence in the public domain that in the context of what the USA called the global “ war on terror ”, US forces had been engaging in enforced disappearances, secret detentions, arbitrary detentions, secret detainee transfers, and torture or other ill-treatment. Further, the submissions showed that, by presidential military order, the USA had established military commissions – executive tribunals with the power to hand down death sentences – for the prosecution of selected non-US nationals accused of involvement in terrorism in proceedings that would not comply with international fair trial standards.",
"472. A February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “ high-value ” were at particular risk of torture and other ill-treatment and “ high value detainees ” had been held for months in a facility at Baghdad International Airport in conditions that violated international law.",
"473. In its annual reports covering the years 2004 and 2005, distributed widely to governments and the media, AI had reported on the growing body of evidence of human rights violations committed by US forces in the counter- terrorism context and stated that these violations, including secret detention and rendition, were continuing. In addition to individual country entries, the global overview pages of both reports addressed US abuses in the “ war on terror ”. For example, in the report covering 2005 this overview showed how during the year, it had become “ increasingly clear how many countries had colluded or participated in supporting US abusive policies and practices in the ‘ war on terror ’, including torture, ill-treatment secret and unlimited detentions, and unlawful cross-border transfers ”.",
"474. In June 2004 The Washington Post published a leaked 1 August 2002 memorandum written in the US Department of Justice ’ s Office of Legal Counsel at the request of the CIA. The memo advised, inter alia, that “ under the circumstances of the current war against al Qaeda and its allies ”, presidential authority could override the US anti-torture law, that even if an interrogation method did violate that law “ necessity or self-defense could provide justifications that would eliminate any criminal liability ”, and that there was a “ significant range of acts ” that, while constituting cruel, inhuman or degrading treatment or punishment, “ fail to rise to the level of torture ” and need not be criminalised.",
"475. In October 2004 AI published a 200 - page long analysis of US violations in the “ war on terror ” and of the US Government documents that had come into the public domain, and including case details of secret transfers of detainees, the alleged existence of secret detention facilities and torture and other ill treatment.",
"476. In May 2005, AI published a 150-page long report on US abuses in the “ war on terror ”, which included cases of alleged torture or other ill ‑ treatment, deaths in custody, military commission proceedings, rendition flights, and the cases of “ high-value detainees ” allegedly held in CIA custody in secret locations in Afghanistan and elsewhere and being subjected to enforced disappearance. The cases described included those of Tanzanian national Ahmed Khalfan Ghailani and German national Khaled El-Masri.",
"477. In sum, as the Court held in Al Nashiri v. Poland (cited above), already by June 2003 it had been clear that States had known or should have known about the USA ’ s rendition and secret detention programme and about the grave human rights violations it entailed as well as allegations of torture and other ill-treatment by US personnel, the indefinite detention regime at Guantánamo and the prospect of unfair trials by the military commission. As detailed above, the body of evidence regarding the USA ’ s rendition and secret detention programme had only grown between June 2003 and September 2006. The USA ’ s use of the death penalty remained well-known during this period and the US administration pursued the death penalty from 2002 to 2006 in the high-profile federal prosecution of Zacarias Moussaoui for terrorism offences, as well as moving ahead with a military commission system with the power to hand down death sentences.",
"C. The parties ’ positions on the standard and burden of proof",
"478. The parties expressed opposing views on the issues concerning the standard and burden of proof to be applied in the present case.",
"1. The Government",
"479. The Government once again reiterated that there was no conclusive evidence that the Romanian authorities had in any way participated in the CIA rendition programme by hosting a secret prison for high-value detainees or by any other means.",
"They agreed with the applicant (see paragraph 48 8 below) that the Court had accepted that in its establishment of facts and assessment of evidence the co-existence of sufficiently strong, clear and coherent inferences might be considered a proof. Yet in the applicant ’ s case no such inferences existed.",
"480. In the Government ’ s view, the applicant had adopted a strategy of persuading the Court that the Romanian authorities, including the intelligence services and army, had shared the responsibility for gross violations of human rights during the so-called “ rendition programme ” based on the idea of, in his view, striking similarities between the present case and El-Masri ( cited above ).",
"However, in order for the Court to shift the burden of proof, the applicant was required to establish a prima facie case in favour of his version of events. In the El-Masri case, that applicant ’ s presence on Macedonian territory at the material time had not been disputed. His detention and interrogation in “ the former Yugoslav Republic of Macedonia ”, together with his surrender to the US authorities, had not been refuted either. In contrast, in the instant case no detention facility had been established with certainty, there was no certainty as to the flights on which the applicant had allegedly been transferred to and from Romania, and the exact period of the applicant ’ s alleged detention in Romania had remained unclear.",
"481. Furthermore, Mr El-Masri ’ s description of the circumstances of his detention and torture had been, as the Court held, “ very detailed, specific and consistent ”. Conversely, in the present case the Court was confronted with the applicant ’ s incoherent allegations.",
"As opposed to El-Masri, where a significant amount of evidence had corroborated the applicant ’ s allegations and had given rise to concordant inferences, in the present case no evidence had been put forward, save for the reports which relied on one another. It was true that the Court had held in the El-Masri judgment that it might examine a case by “ drawing inferences from the available material and the authorities ’ conduct ” and had concluded that the applicant had prevailed in his claims. Yet in the instant case there was no such material and the authorities ’ conduct had been, if not beyond any criticism, proactive and had demonstrated good faith. Without any intention to attack and discredit the reports of reputable officials or non-governmental organisations, the Government insisted that the truth emerged at the end of a process of gathering evidence, failing which all the allegations remained simple claims.",
"482. The Government further said that they were fully aware of the Court ’ s standards of proof in cases involving injuries, death or disappearances that occurred in detention in an area within the exclusive control of the authorities of the respondent State, if there was prima facie evidence that the State might be involved. Nevertheless, they contended that a serious explanation, even if not a final one, had already been provided by the Romanian authorities since a serious and independent investigation was still pending before the national authorities.",
"483. In view of the foregoing, the Government invited the Court to hold that there was no prima facie evidence in favour of the applicant ’ s version of events and that, therefore, the burden of proof could not be shifted.",
"They added, however, that they could not give a final version of the facts since the domestic investigation had not yet been completed.",
"2. The applicant",
"484. The applicant maintained that he had adduced strong, clear and concordant facts in support of his claims. In contrast, the Romanian Government had continued to cover up the truth. The Government had an unprecedented advantage over the applicant. They had all the relevant facts in their possession because they had entered into an agreement to host the secret CIA prison, because they had operationalised that agreement, and because they had covered it all up. In contrast, the applicant, still detained at the remote location of Guantánamo Bay, was gagged from speaking of his treatment in Romania.",
"485. The applicant reiterated that he had established more than a prima facie case that he had been detained and tortured in Romania under the HVD Programme (see paragraphs 40 4 -40 5 above). According to the Court ’ s case-law, the burden of proof now shifted to Romania, particularly because Romania had “ exclusive access to information ” and witnesses who could corroborate or refute the applicant ’ s case. However, the Government had failed to provide any such explanation; instead, they engaged in a pattern and practice of obfuscation and denial with respect to the events complained of. They had done so in the context of unprecedented secrecy maintained by the United States and its partner governments with respect to secret detention and extraordinary rendition operations.",
"486. Where, as in the present case, the events at issue lay wholly or in large part within the exclusive knowledge of the authorities, the burden of proof could be regarded as resting on the authorities to provide a satisfactory and convincing explanation. Where, as in this case, the authorities had failed to provide a convincing explanation and failed to conduct an effective investigation, despite being on notice, at least since November 2005, of the fact that Romania had hosted a secret CIA prison, the Court was entitled to draw inferences adverse to the authorities.",
"487. The applicant emphasised that the Court had consistently applied these principles in cases involving injuries, death or disappearances that occurred in detention, including cases where, as here, the Government denied that the individual had been in Government custody at the time of the events at issue. It had also applied these principles where persons had been found dead or injured, or had disappeared, in an area within the exclusive control of the authorities of the State and there had been prima facie evidence that the State might be involved. As the Grand Chamber reiterated in El-Masri, prima facie evidence could itself be provided by proof in the form of concordant inferences, based on which the burden of proof was shifted to the respondent Government.",
"488. Furthermore, in Al Nashiri v. Poland ( cited above ) the Court had established that it was appropriate to adopt a flexible approach towards the evaluation of evidence. The Court had observed that although it had adopted the “ beyond reasonable doubt ” standard of proof, it also “ adopt[ed] the conclusions that [were], in its view, supported by the free evaluation of all evidence, including such inferences as [might] flow from the facts and the parties submissions ”. Proof could thus “ follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ”. In addition, in assessing the evidence, the Court had also taken note of the unique set of constraints on the applicant which had precluded him from testifying about his detention before the Court and of “ the very nature and extreme secrecy of the CIA operations in the course of the ‘ war on terror ’ ”.",
"489. The applicant argued that the same constraints applied in his case against Romania. Indeed, he had been virtually isolated in Guantánamo and unable to talk publicly about his torture and ill-treatment or even submit a statement to the Court because the US authorities had taken the position that his thoughts and memories about his experiences under torture were classified information. Accordingly, they had prohibited him from sharing these experiences with anyone other than his US lawyers, who were prevented from revealing what they had been told by their client on pain of criminal sanction.",
"Despite the extreme secrecy associated with CIA operations and his inability to address the Court directly, the applicant considered that he had submitted ample evidence in support of his factual claims. Indeed, the documentary and expert evidence offered by him and heard by the Court in the present case was, in his view, akin to the evidence that had been given credence by the Court in Al Nashiri v. Poland.",
"D. The Court ’ s assessment of the facts and evidence",
"1. Applicable principles deriving from the Court ’ s case-law",
"490. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006 ‑ XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 96, 18 December 2012; El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393).",
"Nonetheless, in cases where there are conflicting accounts of events, the Court ’ s examination necessarily involves the task of establishing facts on which the parties disagree. In such situations the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court (see El-Masri, cited above, § 151; and Imakayeva, cited above, §§ 111-112).",
"491. In assessing evidence, the Court has adopted the standard of proof “ beyond reasonable doubt ”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties ’ submissions.",
"According to the Court ’ s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 4357 7/98 and 43579/98, § 147, ECHR 2005 ‑ VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali, cited above, § 119 ).",
"492. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395 ).",
"493. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court ’ s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220).",
"In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152).",
"2. Preliminary considerations concerning the establishment of the facts and assessment of evidence in the present case",
"494. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraph 1 6 above; also, compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156-167; Selmouni v. France [GC], no. 25803/94, § § 13-24, ECHR 1999 ‑ V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006 ‑ IX; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 188-211, ECHR 2004 ‑ VII).",
"495. The regime applied to high -value detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant ’ s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them incommunicado in continuous solitary confinement throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397-398; and paragraphs 48-58, 85 and 29 3 above ).",
"496. As held in Al Nashiri v. Poland (cited above, § 399) and as can be seen from the material cited above (see paragraphs 9 8 -140 above), since an unknown date in mid- October 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the military commission ’ s members and his US counsel. It has also been submitted that the applicant ’ s communications with the outside world are virtually non-existent and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified (see paragraph 482 above).",
"497. The above difficulties involved in gathering and producing evidence in the present case caused by the restrictions on the applicant ’ s contact with the outside world and the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before this Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources.",
"Consequently, the Court ’ s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Al Nashiri v. Poland, cited above, § 400, and Husayn (Abu Zubaydah) v. Poland, cited above, § 400 ).",
"498. It is also to be noted that while the Government have firmly denied the applicant ’ s allegations in so far as they concerned Romania and contested the credibility of various parts of the evidence before the Court, they have not disputed the fact that he was subjected to secret detention and ill-treatment under the HVD Programme. Nor have they disputed his version of the circumstances preceding his alleged rendition to Romania on 12 April 2004 (see paragraphs 395 -402 and 41 9 -44 3 above).",
"However, the facts complained of in the present case are part of a chain of events lasting from mid-October 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant ’ s detention and a sequence of alleged rendition flights to the countries concerned. As a result, the Court ’ s establishment of the facts and assessment of evidence cannot be limited to the events that according to the applicant allegedly took place in Romania but must, in so far as it is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Romania (see Al Nashiri v. Poland, cited above, §§ 401-417, and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-419 ).",
"3. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his transfers and secret detention by the CIA before his rendition to Romania ( mid ‑ October 2002-April 2004)",
"(a) Period from mid-October 2002 to 6 June 2003",
"499. The Court has already established beyond reasonable doubt the facts concerning the applicant ’ s capture, rendition and secret detention until 6 June 2003, the date of his rendition on plane N379P from Poland to another CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 401-417). The relevant passages from Al Nashiri v. Poland containing the Court ’ s findings of fact are cited above (see paragraph 9 8 above). Some additional elements, which are all fully consistent with the Court ’ s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 9 9 - 101 above).",
"(b) Whether the applicant ’ s allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo ) were proved before the Court",
"500. It is alleged that before being rendered by the CIA on 12 April 2004 from Guantánamo to Romania on board N85VM the applicant had been detained in other CIA secret detention facilities abroad (see paragraphs 11 5 -11 6 above).",
"501. In Al Nashiri v. Poland ( cited above, § § 408 and 417 ) the Court held as follows:",
"“ 408. In the light of that accumulated evidence, there can be no doubt that:",
"...",
"2) the N379P, also known as “ Guantánamo Express ”, a Gulfstream V with capacity for eighteen passengers but usually configured for eight, arrived in Szymany on 5 June 2003 at 01:00 from Kabul, Afghanistan. It stayed on the runway for over two hours and then departed for Rabat, Morocco.",
"...",
"417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:",
"...",
"4) on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P. ”",
"502. Referring to this point in time, the 2014 US Senate Committee Report states that from June 2003 onwards “ the CIA transferred Al Nashiri to five different CIA detention facilities before he was transferred to US military custody on 5 September 2006 ” (see paragraph 102 above). It further states that in 2003 the CIA arranged for a “ temporary patch ”, which meant placing the applicant and another detainee – Ramzi bin al-Shibh – in a country whose name was redacted and that by an unspecified – redacted – date in 2003 both of them were transferred out of that country to Guantánamo (see paragraph 10 9 above).",
"There can therefore be no doubt that between his transfer from Poland on 6 June 2003 and his transfer to Guantánamo on an unspecified later date in 2003 the applicant was for some time held by the CIA in another country – the first one out of five in which he would be secretly detained between 6 June 2003 and 5 September 2006.",
"503. Mr J.G.S. testified that the country in question was identifiable as Morocco and that on 6 June 2003 the plane N379P had taken the applicant and Ramzi bin al-Shibh from Poland to Rabat, Morocco to a facility that at that time had been let to the CIA by their Moroccan counterparts. He stated that the applicant had remained there until 23 September 2003, the date on which he had been transported on plane N313P from Rabat to Guantánamo (see paragraphs 10 7 - 10 8 and 1 10 above ).",
"504. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah) v. Poland, where the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA ‑ associated aircraft landings in Poland and the closure of the CIA “ black site ” codenamed “ Quartz ” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, § § 414 and 419 ). The collation of data from multiple sources shows that the plane left Washington D. C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It flew from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 11 1 -11 2, 27 4, 32 6, 33 7, 35 6 and 37 4 above).",
"According to the RCAA letter of 29 July 2009, N379P ’ s itinerary was Szczytno airport in Szymany, Poland - Constanţa - Rabat but the airport at which it landed in Romania was Băneasa Airport in Bucharest (see paragraphs 113 and 326 above). This information is consistent with evidence heard from Mr J.G.S., who in Husayn (Abu Zubaydah) v. Poland testified that “ this particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland ” and that “ since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania ” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 312; and paragraph 11 2 above).",
"505. The 2014 US Senate Committee Report confirms that “ beginning in September 2003 ” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two -digit – date in April 2004 “ all five CIA detainees were transferred from Guantánamo to other CIA detention facilities ” pending the US Supreme Court ’ s ruling in Rasul v. Bush which, as the US authorities expected, “ might grant habeas corpus rights to the five CIA detainees ”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 6 2 and 11 4 above).",
"506. In the light of the material in its possession, the Court finds no counter evidence capable of casting doubt on the accuracy of the expert ’ s conclusions regarding the above sequence of events, the places of the applicant ’ s secret detention and the dates of his transfers during the relevant period.",
"507. Accordingly, the Court finds it established beyond reasonable doubt that:",
"(1) on 6 June 2003 on board the rendition plane N379P the applicant was transferred by the CIA from Szymany, Poland to Rabat, Morocco;",
"(2) from 6 June to 23 September 2003 the applicant was detained in Morocco at a facility used by the CIA;",
"(3) on 23 September 2003 on board the rendition plane N313P the applicant was transferred by the CIA from Rabat to Guantánamo; and",
"(4) the applicant was detained in Guantánamo until a two-digit date in April 2004 (redacted in the 2014 US Senate Committee Report), then transferred by the CIA to another detention facility elsewhere.",
"4. As regards the establishments of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning his rendition by the CIA to Romania, secret detention in Romania and transfer by the CIA out of Romania (12 April 2004 to 6 October or 5 November 2005)",
"(a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant ( 22 September 2003 – beginning of November 2005)",
"508. It is alleged that a CIA secret detention facility operated in Romania from 2 2 September 2003 to the first days of November 2005, when it was closed following the publication of Dana Priest ’ s report on CIA overseas clandestine prisons in Eastern Europe in The Washington Post on 2 November 2005 (see, in particular, paragraphs 44 5-448 above). The Government denied that a CIA detention facility had ever existed on Romania ’ s territory (see, in particular, paragraphs 4 20 - 42 5 above).",
"509. The Court notes at the outset that the following facts are either uncontested or have been confirmed by the Court ’ s findings in Husayn ( Abu Zubaydah ) v. Poland and flight data from numerous sources, including the documents produced by the respondent Government:",
"( a) On 22 September 2003 plane N313P arrived in Szymany, Poland en route from Kabul, left on the same day for Romania and, having indicated in its flight plan Constanţa as its destination, in fact landed at Bucharest Băneasa Airport. On 23 September 2003 the plane took off from Bucharest for Rabat (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 408 and 419; and paragraphs 11 2 -11 3, 32 6 and 50 4 above).",
"( b) On 5 November 2005 plane N1HC, having indicated in its flight plan Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and on the same day took off from Bucharest for Amman.",
"( c) On 5 November 2005 plane N2 4 8AB arrived in Amman at 23:49 and on 6 November 2005, on the same night, left for Kabul;",
"( d) On the same night of 5-6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 (N1HC ’ s landing) and 00:55 ( N248AB ’ s departure) (see paragraph 13 5 above).",
"510. It has not been disputed by the Government that the Washington Post publication was the first one in which East European countries were mentioned in the context of the HVD Programme (see paragraphs 23 6 and 4 21 above).",
"It was followed by subsequent, more specific reports.",
"On 6 November 2005 Human Rights Watch, in the 2005 HRW Statement, indicated Poland and Romania as the CIA accomplices in the HVD Programme (see paragraphs 22 6 -22 7 above).",
"That statement was followed by the HRW List of 30 November 2005 which referred to “ ghost prisoners ”, including the applicant, considered to be possibly held in secret detention by the CIA (see paragraph 22 8 above).",
"A few days later, on 5 December 2005, an ABC News report named Poland and Romania as countries hosting CIA secret prisons and listed the names of eleven top al - Qaeda terrorist suspects, including the applicant, being held in CIA custody. It also stated that, according to the CIA sources, the US authorities had “ scrambled to get all the suspects off the European soil before Secretary of State Condoleezza Rice arrived there today ” (see paragraph 23 7 above).",
"511. Nor has it been disputed that the above disclosures soon triggered a number of international inquiries into the CIA rendition and secret detention operations and allegations of torture and ill-treatment of prisoners. The multiple investigations by international governmental organisations started with the Council of Europe ’ s inquiry under Article 52 of the Convention and the Marty Inquiry, followed by the European Parliament ’ s Fava Inquiry, the 2010 UN Joint Study and the investigative work of the Council of Europe ’ s Commissioner for Human Rights carried out until 2012. Also, in that context, the ICRC independently prepared its earlier, confidential reports and the 2007 ICRC Report (see paragraphs 24 6 - 2 80, 2 90 and 29 4 ‑ 29 6 above). As a follow-up to the Fava Report, the European Parliament LIBE Committee still continues to investigate the issue of the CIA secret prisons in Europe (see paragraphs 28 2 -2 90 above).",
"512. The initial 2006-2007 reports drawn up in the framework of the inquiries conducted by the international governmental organisations confirmed consistently, albeit in various terms, that there was at least a strong suspicion that a CIA clandestine detention site had operated in Romania.",
"(a) The 2006 Marty Report stated that, while the factual elements gathered so far had not provided definitive evidence of secret detention centres, Romania was “ thus far the only Council of Europe member state to be located on one of the rendition circuits ” which bore “ all the characteristics of a detainee drop-off point ”. The rendition circuit in question was executed on 25 January 2004 by plane N313P which, before landing in Romania, on 23 January 2004 rendered Mr El-Masri from Skopje to the CIA ” black site ” in Kabul (see paragraphs 25 3 and 32 7 -3 30 above and El Masri, cited above, §§ 21 and 157-158).",
"(b) The 2007 Marty Report affirmed that there was “ now enough evidence to state that secret detention facilities run by the CIA [had ] existed in Europe from 2003 to 2005, in particular in Poland and Romania ” (see paragraph 25 8 above). It stated that “ Romania [had been] developed into a site in which more detainees were transferred only as the HVD Programme [had] expanded ”. It was Senator Marty ’ s understanding that “ the Romanian “ black site ” [had been] incorporated into the programme in 2003, attained its greatest significance in 2004 and operated until the second half of 2005 ” (see paragraph 2 61 above).",
"The report also referred to the “ clear inconsistencies in the flight data ” provided by various Romanian sources, when compared with data gathered by the Marty Inquiry independently. The disagreement between these sources was found to be “ too fundamental and widespread to be explained away by simple administrative glitches, or even by in-flight changes of destinations by Pilots-in-Command, which were communicated to one authority but not to another ”. In sum, the report stated that “ presently there exist[ed] no truthful account of detainee transfer flights to Romania ” (see paragraph 26 4 above).",
"Senator Marty in the 2006 and 2007 Marty Reports, as well as in his affidavit of 24 April 2013 and testimony given at the fact-finding hearing before the Court explained comprehensively the methodology adopted in his inquiry and the sources of information on the basis of which the respective findings had been made (see paragraphs 25 8, 26 2, 35 4 and 37 9 above).",
"(c) The Fava Report expressed “ serious concern ” about twenty-one stopovers made by the CIA-operated aircraft at Romanian airports, which on most occasions had come from or been bound for countries linked with extraordinary rendition circuits.",
"It was also found that five flight plans had been filed with inconsistencies as they had indicated a landing airport which had not corresponded with the subsequent take -off airport (see paragraphs 2 71 and 27 4 above). Moreover, the Fava Report identified three aircraft with multiple stopovers in Romania that already at that early stage of the inquiries into the HVD Programme had been known to have been involved in the CIA rendition operations.",
"Among those aircraft was N85VM, conclusively identified as having been used for the rendition of Mr Osama Mustafa Nasr aka Abu Omar from Germany to Egypt on 17 February 2003 (see also Nasr and Ghali, cited above, §§ 39, 112 and 231) and N313P conclusively identified as having been used for the rendition of Mr El-Masri from Skopje to Kabul on 23 January 2004 (see El-Masri, cited above, §§ 67 and 157-159).",
"The report also listed flights from suspicious locations that stopped over in Romania in 2003-2005. The first flight N313P, from Szymany, Poland to Bucharest, en route to Rabat, took place on 22 September 2003, the last one, N1HC, from Bucharest to Amman, took place on 5 November 2005 (see paragraphs 2 71, 273 and 27 6 above).",
"The conclusion in the Fava Report was that it could not exclude, “ based only on the statements made by Romanian authorities to the Temporary Committee delegation to Romania, the possibility that US secret services [had] operated in Romania and that no definite evidence ha[d] been provided to contradict any of the allegations concerning the running of a secret detention facility on Romanian soil ” (see paragraphs 2 71 and 2 80 above).",
"With reference to that conclusion, Mr Fava testified at the fact-finding hearing that “ the conclusion we reached was a very strong suspicion that [a CIA detention facility] existed, not certainty – there was no smoking gun ” (see paragraph 36 3 above).",
"The Fava Report relied on comprehensive materials from multiple sources, comprising those collected during the TDIP delegation ’ s visits to the countries concerned, including Romania, extensive flight data, expert evidence, analysis of specific cases of several victims of the CIA extraordinary rendition, interviews with the victims and their lawyers and material acquired in the context of meetings with the national authorities (see paragraphs 268 -27 3 above).",
"513. The 2010 UN Study, referring to Romania, mentioned that the analysis of complex aeronautical data had demonstrated the circuit flown by N313P in September 2003 and that the experts had not been able to identify “ any definite evidence of a detainee transfer into Romania ” taking place prior to that flight (see paragraph 29 6 above).",
"514. Subsequent reports, which were based on fuller knowledge of the HVD Programme emerging from the CIA documents declassified in 2009 and 2010 and took into account progress in the research into rendition flights, contained more categorical conclusions.",
"(a) Mr Hammarberg, in his dossier of 30 March 2012 addressed to the Romanian Prosecutor General, stated that “ sufficient evidence ha[d] now been amassed to allow us to consider the existence of a CIA ” black site ” in Romania as a proven fact, and to affirm that serious human rights abuses [had taken] place there ”. According to Mr Hammarberg ’ s findings, the opening of the CIA prison, codenamed “ Bright Light ” and the start of the CIA detention operations in Bucharest was marked by the plane N313P landing in Bucharest on the night of 22 September 2003. The physical location was identified as the ORNISS building in Bucharest. The dossier included, in chronological order, a list of eight disguised rendition flights into Bucharest in respect of which “ dummy ” flight plans featuring Constanţa or Timișoara had been filed, starting from the N313P flight on 22 September 2003 and ending with the N860JB flight on 21 August 2005. No specific date of closure of the detention site was given; paragraph 18 of the dossier indicated that it had operated for “ a period of at least one year ” (see paragraphs 33 4 -33 9 ). In response to the Court ’ s question regarding this point, Mr Hammarberg explained that at that time their research had not managed to establish the precise dates for the closure of the Romanian “ black site ” nor for the applicant ’ s transfer from Romania (see paragraph 34 6 above).",
"Mr Hammarberg, in his written response to the Court ’ s questions, gave an account of the sources and methodology on which he relied in his findings. The conclusions as to the operation of a secret CIA ” black site ” in Romania were based on “ a number of different sources which were cross ‑ referenced and not on one piece of evidence in isolation ”. This included among other things, official US documents, flight records and aeronautical data amassed from diverse entities across the global aviation sector (see paragraph 34 5 above).",
"(b) The 2015 LIBE Briefing, which in addition to extensive flight data had been based on an analysis of a large amount of new material disclosed in the 2014 US Senate Committee Report, stated that it had been established beyond reasonable doubt that a facility in Romania had been used by the CIA to hold prisoners, that the first prisoners had been transferred to this facility in September 2003 and that the last prisoners had been transferred out of this facility in November 2005. The dossier included a list of fifteen rendition circuits through Romania, the first of which was executed by N313P on 22-23 September 2003, the last of which was executed on 5 ‑ 6 November 2005 and involved two planes N1HC (from Romania to Jordan) and N248AB (from Jordan to Afghanistan) (see paragraphs 35 5 -35 8 above).",
"515. Furthermore, in Husayn (Abu Zubaydah) v. Poland Senator Marty and Mr J.G.S., referring in their PowerPoint presentation to the “ final rendition circuit ” through Poland executed by N313P, testified that this particular circuit had marked the closure of the CIA ” black site ” in Poland and the opening of the CIA ’ s second secret detention site in Europe – located in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, § § 31 2 and 414; Al Nashiri v. Poland, cited above, § 414; and paragraph 11 2 above).",
"516. At the fact-finding hearing held in the present case the experts heard by the Court confirmed in clear and categorical terms that a secret detention facility had operated in Romania in the period indicated by the applicant. They stated that the N313P flight on 22-23 September 2003 had marked the opening of the site and that a “ double - plane switch ” circuit involving two planes, identified as N1HC and N248AB had indicated its closure, prompted by the publication of the Washington Post article referred to above (see paragraph 50 8 above). In the same categorical terms they identified the CIA detention facility located in Romania as the one referred to in the 2014 US Senate Committee Report as “ Detention Site Black ” (see also paragraphs 160 -164 above).",
"(a) Senator Marty and Mr J.G.S in their PowerPoint presentation, in support of the above conclusions, referred to the extensive flight data and their correlation, as well as to the 2014 US Senate Committee Report. In particular, Mr J.G.S. in connection with several specific references in that report stated that the code name “ Detention Site Black ” in the report corresponded in such “ precise and extensive detail ” to other multiple data concerning Romania that “ Romania, its territory, its airspace, its detention facility, [was] inseparable from Detention Site Black (see paragraphs 13 1, 3 71, 374-376 above)",
"(b) Mr Black stated that it was “ clear, beyond reasonable doubt that there was a CIA detention facility in Romania ” and that he was convinced on “ a wide array of different types of evidence ” that it operated from September 2003 until November 2005. He testified that there was no doubt that the flight in November 2005 – which had been a two-plane switch taking prisoners to Afghanistan – had signalled the end of the Romanian site and that that flight had come within 72 hours after the existence of the site had been revealed in the Washington Post article. He added that the 2014 US Senate Committee Report was very clear that at that point everyone who had been remaining in Romania had been “ shipped out to Afghanistan ” (see paragraphs 132 and 390 above).",
"In his testimony, he also mentioned specific HVDs, including the applicant, who had been detained in Romania between September 2003 and 2005, saying that “ the fact that those individuals [had been] held in Romania at various points between 2003 and 2005 [was] absolutely beyond reasonable doubt, there [could not] be any alternative narrative to that that [made] any sense ”. He further stated that “ Detention Site Black [was] the site that fulfil[ed], in terms of its operating times, the flight paths that we [knew] to have been connected to prisoner movements and to the CIA rendition programme. Detention Site Black [was] the one which correlate[d] precisely with those flight paths that our research [had] discovered, [had] reconstructed ” (see paragraphs 3 90 and 39 2 above).",
"517. The 2014 US Senate Committee Report includes several references to Detention Site Black. To begin with, the report confirms that CIA detainees were transferred to Detention Site Black in a country whose name was redacted “ in the fall of 2003 ”. It further confirms that the site still operated in “ the fall of 2004 ”, as well as in April and May 2005 (see paragraphs 1 60-164 above) and that Mr Al Nashiri was held there in October 2004 and June and July 2005 (see paragraphs 127, 15 8 and 16 2 -16 3 above).",
"Finally, it indicates that Detention Site Black was closed “ after publication of the Washington Post article ”, following the pressure from the country concerned, which demanded the closure within a number of hours which, although redacted in the text, clearly comprised two digits (see paragraph 13 3 above).",
"518. The Court observes that this indication in theory could mean any time between 10 and 99 hours. However, in reality, given that the CIA had to secure a safe, secret transfer of possibly several detainees by air to another consenting country, such demand could not be dealt with abruptly and immediately and, by the nature of things, inevitably required some preparation and handling of logistical problems. According to the 2014 US Senate Committee Report, the “ CIA transferred ... the remaining CIA detainees out of the facility shortly thereafter ” (see paragraph 13 3 above). Having regard to the fact that the Washington Post article was published on 2 November 2005, the dates on which the transfer could realistically have been carried out – that is to say, within the range of 24-9 9 hours – had to be situated in the short period from 3 to 6 November 2005. This coincides exactly with the flight identified by the experts as the one marking the closure of “ Detention Site Black ” in Romania, namely N1HC from Bucharest to Amman, executed on 5 November 2005 (see also paragraph 50 9 above).",
"519. Furthermore, all the materials in the Court ’ s possession, including the list of twenty -one “ suspicious flights ” produced by the Government unambiguously demonstrate that a series of CIA-associated aircraft landings at Bucharest Băneasa Airport started on 22 September 2003 with N313P and ended on 5 November 2005 with N1HC. Markedly, these two particular flight circuits were disguised by the so - called “ dummy flight planning ” – a practice that, as described by the experts and analysed by the Court in its previous judgments concerning the CIA rendition operations in Poland, consisted in filling false flight plans that indicated a route which the planes did not, or even intend to, fly. Both aircraft ’ s flight plans indicated Constanţa as their destination but in fact they landed at and took off from Bucharest Băneasa Airport (see paragraphs 11 2, with references to Husayn (Abu Zubaydah) v. Poland, and 1 30, 13 4 -13 5 and 37 2 -37 3 above; see also Al Nashiri v. Poland, cited above, § § 419- 422 ).",
"520. The Government acknowledged that on 22-23 September 2003 the flight plan for N313P, initially indicating Constanţa as its destination, had been changed to Bucharest Băneasa Airport when the plane had been en route (see paragraph 43 9 above). However, they did not see how the change of flight plans executed by the flight operator – a change on which the Romanian authorities had no influence – could be indicative of their complicity in the CIA rendition operations or, still less, of the existence of a CIA “ black site ” in Romania (see paragraphs 43 6 -4 40 above ).",
"521. Addressing the Government ’ s arguments, the Court finds it appropriate to reiterate certain findings concerning the operation of the CIA-associated flights in Romania emerging from the material in the case file.",
"(a) As already noted above (see paragraph 51 2 above), the Fava Report referred to twenty-one stopovers made by the CIA-operated aircraft at Romanian airports during the relevant period. Significantly, most stopovers (thirteen) and take-offs (five) found suspicious took place at Bucharest airports. Several of those flights are included in the Government ’ s list of twenty-one “ suspicious flights ” (see paragraphs 273 and 32 7 above). The Fava Inquiry also identified fourteen different CIA aircraft that landed in Romania at the material time and referred to at least five inconsistent flight plans, concerning, among others, the N1HC flight on 5 November 2005. All these plans indicated destinations filed for Constanţa or Timisoara; however, the aircraft real destination was Bucharest Băneasa Airport, at which those flights in fact landed and from which they took off subsequently (see paragraphs 271-274 and 27 6 above).",
"(b) Mr Hammarberg ’ s dossier for the Romanian Prosecutor General contained a – non-exhaustive – list of the most significant eight flights into Bucharest, starting from N313P on 22 September 2003. Destinations for all of them were disguised by the “ dummy ” flight planning. All bore the characteristics of “ detainee drop-offs ”, i.e. transportation of CIA prisoners into the country. All those planes are on the list of twenty-one “ suspicious flights ” furnished by the Government (see paragraphs 32 7 and 33 7 above).",
"(c) The 2015 LIBE Briefing identified fifteen rendition missions linking Romania to other CIA prison host countries or to known or suspected prisoner transfers. According to that report, the first such mission was executed by N313P on 22 September 2003, the last by N1HC on 5 November 2005 (see paragraphs 35 7 -35 8 and 51 4 above).",
"The list of fifteen rendition missions in the 2015 LIBE Briefing overlaps with the Government ’ s list of twenty -one “ suspicious flights ” ( see paragraphs 32 7 and 35 7 -35 8 above).",
"(d) In all the inquiries conducted by the international governmental and non-governmental organisations, which were extensively referred to above, most planes included in the Government ’ s list have been conclusively and definitely identified as carrying out the CIA rendition missions (see paragraphs 2 50 -26 4; 26 8 -2 90; 29 6; 32 7 -3 30; 33 4 -33 6; and 35 5 -35 8 above).",
"(e) It emerges from the comparison of the list of twenty-one “ suspicious flights ” with the above reports identifying the aircraft associated with the CIA ’ s transportation of prisoners that between 23 September 2003 and 5 November 2005 there was a continued, steady and concentrated flow of those planes through Bucharest Băneasa Airport. According to the material produced by the Government themselves, during that period fifteen CIA flights arrived at Bucharest Băneasa Airport and only two were recorded by the Romanian authorities as landing at Constanţa Mihail Kogălniceanu Airport. The CIA flights into Bucharest arrived at fairly regular intervals of between one and some three months (see paragraphs 32 7 and 35 7 -35 8 above).",
"522. Considering the material referred to above as a whole, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s allegation that the CIA secret detention site operated in Romania between 22 September 2003 and the beginning of November 2005. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165, and paragraphs 492- 49 3 above ).",
"523. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant ’ s allegations. Apart from their firm, albeit general, denial that the facts as presented by the applicant and disclosed in the international inquiries – to begin with the Marty Inquiry and Mr Hammarberg ’ s investigative work – never took place or were grossly distorted to Romania ’ s disadvantage, they have not offered any cogent reasons for the series of landings of CIA-associated aircraft at Bucharest between 22 September 2003 and 5 November 2005 (see also Al Nashiri v. Poland, cited above, § 414; and Husayn (Abu Zubaydah) v. Poland, cited above, § 414).",
"Likewise, the Government have not produced any evidence capable of contradicting the findings of the international inquiries and the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Romania. Nor have they refuted expert evidence to the effect that the CIA prison referred to in the 2014 US Senate Report as “ Detention Site Black ” was located in Romania (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415).",
"524. In that context, the Court cannot but note that all the international inquiries and other reports challenged by the Government were based on extensive, meticulous work which was done by the experts and politicians of the highest integrity and competence and whose only aim and mission was to reveal the facts and establish the truth about what had occurred in Europe during the CIA rendition operations. Their work was often impeded by the extreme secrecy surrounding the CIA operations, the uncooperative attitude of the national authorities and the lack of access to the necessary information – information which was revealed only gradually, over many years and which still remains incomplete due to the classification of essential documents, in particular the full version of the 2014 US Senate Committee Report. It is worth noting that the inquiries conducted in 2006 ‑ 2007 did not have the benefit of access to the CIA declassified documents, which were released in 2009-2010 (see paragraphs 36 -5 8 above) and which provided an important insight into the fate of specific HVDs, including Mr Al Nashiri, with such details as dates of detainees ’ transfers between the CIA “ black sites ” and interrogation schedules.",
"As regards the Government ’ s challenge to the impartiality and credibility of Reprieve, based on its involvement in ongoing investigations into CIA rendition and secret detention and case work regarding Guantánamo prisoners (see paragraph 43 4 above), the Court finds no ground whatsoever to consider that Reprieve and its experts, who have – as for instance Mr Black – also been involved in the European Parliament ’ s inquiry, lack objectivity in representing the facts concerning the operation of the HVD Programme in Europe and the plight of detainees, including the applicant.",
"In so far as the Government can be seen as impliedly contesting the credibility of evidence from other experts heard at the fact-finding hearing (see paragraphs 39 9 and 4 30 -43 5 above), the Court would wish to underline that Mr Fava, Senator Marty and Mr J.G.S. already gave evidence in Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland. The Court, in its examination of those cases, relied heavily on their testimonies considering them to be one of the most important parts of the evidence and finding them fully reliable and credible (see Al Nashiri v. Poland, cited above, §§ 404, 415, 434-436 and 441; and Husayn (Abu Zubaydah) v Poland, cited above, §§ 404, 415-416, 426-427, 434- 436, 439-440). Furthermore, in El-Masri the Court considered the expert report from Mr J.G.S. to be “ compelling evidence ” which was duly taken into account in its establishment of the facts in the case (see El-Masri, cited above, §§ 159 and 166).",
"Consequently, in the Court ’ s eyes, there is nothing in the Government ’ s submission that would be capable of shedding the doubt on the integrity and dependability of the experts whose testimony was taken in the present case.",
"525. The Government also argued that the fact that the sources relied on by the applicant, including the 2007 Marty Report and Mr Hammarberg ’ s dossier, had given different indications as to the exact location of the alleged “ black site ” in Romania deprived his allegations of credibility. Referring in particular to the ORNISS building, they relied on witness R ’ s statements obtained in the investigation denying that this location had, or could ever have been, used for the CIA prison (see paragraphs 32 5 and 42 2 ‑ 42 5 above).",
"The Court does not find these arguments convincing.",
"It is true that the applicant, relying on the press disclosures, indicated the ORNISS building as a probable CIA prison. However, considering the secrecy of the CIA operations it cannot be realistically expected that this kind of indication will be absolutely certain, unless the governments concerned decide to disclose such locations and formally “ officialise ” the information circulating in the public domain. In that regard, the Court would note in passing that the likelihood of the ORNISS building having hosted the CIA facility has also been considered in the inquiry conducted by the European Parliament; however, the Romanian authorities did not enable the LIBE delegation to visit the site during their fact-finding mission in September 2015 (see paragraphs 28 8 -2 90 above).",
"The Court will not speculate on that likelihood. Nor is it necessary for the purposes of its ruling to establish where the CIA facility was exactly located. Given the coherent and unrefuted evidence corroborating the applicant ’ s allegations as to the existence of the CIA “ black site ” in Romania, the fact that he did not state its precise location does not undermine the credibility of his allegations.",
"526. In view of the foregoing, the Government ’ s objection to the credibility of the evidence and sources relied on by the applicant (see paragraphs 4 30 -43 5 above) cannot be upheld.",
"527. Consequently, the Court considers the applicant ’ s allegations sufficiently convincing and, having regard to the above evidence from numerous sources corroborating his version, finds it established beyond reasonable doubt that:",
"( a) a CIA detention facility, codenamed Detention Site Black in the 2014 US Senate Committee Report, was located in Romania;",
"( b) the facility operated from 22 September 2003 and its opening was marked by flight N313P which took off from Szymany, Poland on 22 September 2003 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport on the same day; and",
"( c) the facility was closed on the Romanian authorities ’ demand and its closure was marked by flight N1HC which took off from Porto, Portugal on 5 November 2005 and, having disguised its destination by indicating Mihail Kogălniceanu International Airport in Constanţa, landed at Bucharest Băneasa Airport and on the same day took off for Amman, Jordan.",
"(b) Whether the applicant ’ s allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court",
"528. It is alleged that the applicant was transferred to Romania from Guantánamo on board N85VM on 12 April 2004 and that he was detained at Detention Site Black in Romania, also codenamed “ Bright Light ” or “ Britelite ” until at least 6 October 2005 or, at the latest, until 5 November 2005 (see paragraphs 11 5 -11 6 and 44 5 -4 51 above). The Government firmly contested this (see paragraphs 42 6 -42 9 and 43 6 -43 7 above).",
"(i) Preliminary considerations",
"529. The Court is mindful that, as regards the applicant ’ s actual presence in Romania, there is no direct evidence that it was the applicant who was transported on board the N 85VM flight from Guantánamo to Bucharest or that he was subsequently transferred from Bucharest to another CIA secret detention facility on 6 October or 5 November 2006, the two possible dates indicated by the experts (see paragraphs 12 9 -13 5 above ).",
"The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held.",
"No trace of the applicant can, or will, be found in any official flight or border police records in Romania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never appeared in a record of persons on board filed with any official institution ( see Al Nashiri v. Poland, cited above, §§ 410-411 ).",
"530. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Black in Romania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 49 9, 50 7 and 52 7 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant ’ s rendition and detention in 2003-2005 (see paragraphs 10 2 -1 40, 15 9-164, 16 7 -1 90 and 2 51 -39 3 above).",
"( ii) Transfers and secret detention",
"531. The Court observes that the following facts either are not disputed or have also been confirmed by flight data from numerous sources, including the documents produced by the respondent Government :",
"( a) On 12 April 2004 plane N85VM, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed in Băneasa Airport in Bucharest and took off from there on the same day (see paragraph 11 8 above);",
"( b) that on 5 October 2005 plane N308 AB, having indicated in its flight plans Mihail Kogălniceanu International Airport in Constanţa as its destination, in fact landed at Băneasa Airport in Bucharest and took off from Bucharest for Tirana on the same day;",
"( c) that on 5 October 2005 plane N787WH landed in Tirana at 05:52 and stayed there until 23:44, at which time it departed for Shannon;",
"( d) that on 5 October 2005 both N308AB and N787WH were in the same airport in Tirana between 22:38 (N308AB ’ s landing) and 23:44 (N787WH ’ s departure);",
"( e) that on 6 October 2005 N787WH, having indicated in its flight plans Tallinn, Estonia as its destination, in fact landed at Vilnius International Airport in Lithuania (see paragraphs 13 5 and 3 31 above).",
"532. As regards the rendition circuit of 5-6 November 2005, the Court would reiterate that it has already been established that :",
"- on 5 November 2005 N1HC, having disguised its destination as Constanţa, in fact landed at Bucharest Băneasa Airport and took off from there for Amman, arriving there in the night on 5 November 2005;",
"- N248AB arrived in Amman 6 November 2005, and on the same night, left for Kabul; and",
"- on the same night of 5/6 November 2005 both N1HC and N248AB were in the same airport in Amman between 00:21 and 00:55 (see paragraphs 50 9 and 52 7 above).",
"533. The Court has also established that after his transfers from Poland to Morocco and from Morocco to Guantánamo the applicant was detained in Guantánamo until an unspecified two-digit date in April 2004 (see paragraph 50 7 above). As noted above, the 2014 US Senate Committee Report states that by that date, “ all five CIA detainees were transferred from Guantánamo to other CIA detention facilities ” (see paragraphs 11 4 and 50 5 above, with further references ).",
"534. Mr J.G.S., in his testimony, explained that the use of the word “ facilities ” in the plural in the 2014 US Senate Committee Report was significant in the context of the applicant ’ s detention given that, as the very same report established, following his transfer from Poland, he had been held at five different CIA “ black sites ” (see also paragraphs 10 2 and 10 4 ‑ 10 8 above). Mr Al Nashiri could not, therefore, have been transferred from Guantánamo back to Morocco. Mr J.G.S. further explained that at the relevant time there had been two distinct detainee transfers from Guantánamo; the first which had taken some detainees to Rabat on 27 March 2004 and the second which had taken the remaining ones on plane N85VM to Romania, via a stopover in Tenerife, on 12 April 2004. This, he said, was the sole outward flight linking Guantánamo with Romania. Also, it emerged from the 2014 US Senate Committee Report and cables regarding the applicant ’ s treatment that he found himself at Detention Site Black in the third and fourth quarter of 2004 and in July 2005. Mr J.G.S concluded that, in order for the applicant to be at Detention Site Black or “ Britelite ” by that time, he had to have been brought to Romania on flight N85VM on 12 April 20 0 4 (see paragraphs 11 9 -1 20 above ).",
"Moreover, in respect of that flight the CIA had recourse to its systematic practice of disguised flight planning which, as the expert stated, “ in fact became a tell-tale sign of rendition or detainee transfer activity on such flights ” (see paragraph 11 9 above).",
"535. Mr Black stated that he was aware of two possible flights that could have taken the applicant into Romania and N 85VM was one of them. He indicated that there had been a potential other flight that had occurred in February 2005. While it was known for a fact that the applicant had been in Romania after February 2005 and in June 2005, there were also indications that he had been held in Romania before, in late 2004. That led Mr Black to prefer, of these two possibilities, the 12 April 2004 flight as being the more likely of the two (see paragraph 12 1 above).",
"536. The Government acknowledged that the flight plan for N85VM, initially indicating Constanţa as its destination, had been changed to Bucharest, Băneasa Airport when the plane had been en route but did not consider that this element could confirm the applicant ’ s secret detention in Romania (see paragraph 437 above). They produced documents issued by the RAS at Băneasa Airport in connection with the N85VM landing on 12 April 2004 (see paragraph 11 8 above).",
"As in respect of other allegedly “ suspicious ” flights, the Government asserted that the flight had been of a “ private and non-commercial nature ” and had not been executed in connection with the HVD Programme (see paragraph 43 6 above).",
"537. However, this assertion does not seem to be supported by the materials gathered in the present case. To the contrary, the Court finds that in addition to the expert evidence referred to above, there is other abundant evidence to the effect that on 12 April 2004 plane N85VM executed a rendition mission to Romania with the purpose of “ dropping off ” detainees from Guantánamo.",
"In that regard, the Court observes that since at least 2007 the findings of the international inquiries have clearly associated N85VM with the CIA rendition operations (see paragraphs 27 1 - 27 3, 337, 342 and 358 above). As already noted above, N85VM was conclusively identified as the plane used earlier for the rendition of Osama Mustafa Nasr otherwise known as Abu Omar (see paragraph 5 12 above). The former Council of Europe ’ s Commissioner for Human Rights dossier for the Romanian Prosecutor General included that flight among disguised rendition flights into Bucharest, bearing the character of detainee “ drop-off ” (see paragraph 33 7 above). The same dossier listed the applicant among HVDs who had been brought to a CIA “ black site ” in Romania and indicated 12 April 2004 as the date of his transfer to Romania (see paragraph 34 2 above).",
"The 2015 LIBE Briefing indicated flight N85VM on 12 April 2004 among the missions carried out under rendition contracts (see paragraph 35 8 above).",
"That flight is also listed among twenty-one “ suspicious flights ” in the document produced by the Government (see paragraph 32 7 above).",
"538. As to the applicant ’ s rendition by the CIA from Romania, the experts gave 6 October 2005 and 5 November 2005 as two possible dates of the applicant ’ s transfer (see paragraphs 129-13 2 above).",
"Mr J.G.S described in detail the CIA “ plane-switch ” operation that, according to him, had taken place in the course of the flight circuit on 5 ‑ 6 October 2005 and involved two aircraft: N308AB and N787WH. On this premise, on 5 October 2005 the applicant was taken on board N308AB from Băneasa Bucharest City Airport to Tirana and, subsequently, on board N787WH to Vilnius to a CIA ” black site ” in Lithuania, referred to as “ Detention Site Violet ” in the 2014 US Senate Committee Report (see paragraphs 1 30-131 above).",
"Mr Black considered both dates as probable, with the 6 October 2005 transfer of the applicant being more likely (see paragraph 13 2 above).",
"539. Having regard to all the various documentary and oral evidence referred to above, the Court is satisfied that there is prima facie evidence in favour of the applicant ’ s version of the events and that the burden of proof should shift to the Government.",
"540. Yet again in the Court ’ s view the Government have failed to give any convincing grounds to explain why the evidence considered above cannot support the applicant ’ s allegations. They asserted that the applicant ’ s version of events should be rejected as it was incoherent and that in his account of the facts there had been inconsistencies regarding the dates, circumstances and the exact period of his alleged detention in Romania (see paragraphs 42 6 -42 9 above).",
"The Court does not share the Government ’ s assessment.",
"While it is true that, with the passage of time, the applicant adduced newly disclosed facts relevant for his complaints or corrected the dates initially given for his detention (see paragraphs 11 5 -11 6 above), this does not by itself render his version of events inconsistent or incredible. In that context the Court would again refer to the fact that since his capture in mid ‑ October 2002 the applicant has been continually prevented from giving any direct account of his fate even to the counsel representing him before the Court (see paragraphs 494-49 7 above).",
"541. Furthermore, having regard to the above evidence demonstrating clearly, consistently and conclusively the chronology of the events preceding the applicant ’ s transfer to Romania, his transfer to Romania on 12 April 2004 and his presence at Detention Site Black located in Romania in 2004 and 2005 (see paragraphs 12 6 -12 7, 15 8 and 16 2 -16 3 above and 54 5 below), as well as expert evidence confirming that there were two – and only two – possible dates on which he could be taken by the CIA out of Romania, the Court does not find it indispensable to determine on which specific date the transfer occurred. It is certain and beyond any reasonable doubt that the applicant, once detained at Detention Site Black and, as confirmed by the 2014 US Senate Committee Report and the experts, still present there at least until July 2005, must have been transferred out of it at some later point before or when the site was definitely closed on 5 November 2005 (see paragraph 52 7 above). The experts ’ conclusions are founded on in-depth analysis of extensive international aviation data, contractual documents pertaining to rendition missions executed by the air companies used by the CIA and large amount of data released by the US authorities, including the CIA. On this basis, they gave a time-frame which is sufficiently accurate for the Court to conclude that the applicant must have been taken out of Romania either on 6 October 2005 or on 5 November 2005 to one of the – at the time two – remaining CIA detention facilities, referred to in the 2014 US Senate Committee Report as Detention Site Violet and Detention Site Brown.",
"542. Accordingly, the Court finds it established beyond reasonable doubt that:",
"( a) On 12 April 2004 the applicant was transferred by the CIA from Guantánamo to Romania on board N85VM.",
"( b) From 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005, the applicant was detained in the CIA detention facility in Romania code - named “ Detention Site Black ” according to the 2014 US Senate Committee Report.",
"( c) On 6 October 2005 on board N308AB or, at the latest, on 5 November 2005, on board N1HC via a double-plane switch the applicant was transferred by the CIA out of Romania to one of the two remaining CIA detention facilities, code - named Detention Site Violet and Detention Site Brown according to the 2014 US Senate Committee Report.",
"( iii ) The applicant ’ s treatment in CIA custody in Romania",
"543. It is alleged that during his secret detention in Romania the applicant was subjected to torture and other forms of treatment prohibited by Article 3 of the Convention. The Government have not addressed this issue.",
"544. The Court observes that, in contrast to Al Nashiri v. Poland where the treatment to which the applicant was subjected by the CIA during his detention in Poland could be established with certainty owing to the CIA ’ s declassified materials depicting in graphic detail the torture inflicted on him in the course of the interrogations (see Al Nashiri v. Poland, cited above, § § 416 and 514-516 ), in the present case there is no evidence demonstrating that at Detention Site Black in Romania he was subjected to EITs in connection with interrogations (see paragraphs 4 8 -5 5 above ).",
"545. As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report mentions in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006 ( see paragraph 9 4 above).",
"In respect of the applicant, the report states that in the “ final years ” of his detention “ most of the intelligence requirements for Al Nashiri involved showing [him] photographs ”. Those “ debriefings ” were suspended in June 2005 apparently because of the low value of intelligence obtained from him and “ because debriefings often were the ‘ catalyst ’ for his outbursts ” (see paragraphs 12 6 -12 7 above). Other heavily redacted passages in the report speak of “ feeding him rectally ”, which resulted from his “ short-lived hunger strike ” at some unspecified time in 2004. It is also mentioned that in October 2004 he underwent a psychological assessment in the context of “ management challenges ” posed to the CIA by psychological problems experienced by the detainees “ who had been held in austere conditions and in solitary confinement ”. The applicant ’ s assessment was used by the CIA in discussions on “ establishing an endgame ” for the HVD Programme (see paragraphs 12 6, 15 8 and 16 2 -16 3 above). In July 2005 the CIA expressed concern regarding the applicant ’ s “ continued state of depression and uncooperative attitude ”. Days later a psychologist established that the applicant was “ on the verge of a breakdown ” (see paragraph 15 8 above).",
"546. According to the experts, even though the applicant was in all likelihood no longer interrogated with the use of the EITs, he did, as Mr J.G.S. stated “ purely by virtue of the conditions in which he [had been] held ” suffer ill-treatment (see paragraph 12 4 above). Mr Black added that it was clear that the applicant, in particular when he had been in Romania, was experiencing serious psychological problems as a result of the treatment he had received (see paragraph 12 5 above).",
"547. As regards the Court ’ s establishment of the facts of the case, the detailed rules governing the conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 12 April 2004 to 6 October 2005 or 5 November 2005. The Court therefore finds it established beyond any reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 5 6 -5 8 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510).",
"While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Black for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court observes that the regime included at least “ six standard conditions of confinement ”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraph 5 6 -5 8 above).",
"5. As regards the establishment of the facts and assessment of evidence relevant to the applicant ’ s allegations concerning Romania ’ s knowledge of and complicity in the CIA HVD Programme",
"(a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a “ subsidy ” from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme",
"( i ) Agreement to host a CIA detention facility, request for and acceptance of a “ subsidy ” from the CIA and provision of premises for the CIA",
"548. The 2014 US Senate Committee Report, in the chapter giving details as to the establishment of Detention Site Black, states that in an unspecified month ( redacted the text ) in 2002 the CIA “ entered into an agreement ” with the country concerned “ to host a CIA detention facility ”.",
"While the terms of that agreement have not been disclosed, it appears from subsequent passages that, in order to demonstrate to the country ’ s authority ( or person ) whose name was redacted and to “ the highest levels of the Country ... government ” that the US authorities “ deeply appreciate[d] their cooperation and support for the detention program ”, the CIA station in the country was invited by their Headquarters “ to identify ways to support the ” – again redacted – country ’ s bodies ( presumably, or activities ) by financial means, defined as a “ subsidy ” (see paragraph 16 1 above).",
"549. The requested subsidy which was received in appreciation of “ cooperation and support ” amounted to a sum (redacted in the text) that was a multiple of USD million; in fact, the amount which was initially put on – in the report ’ s words – “ wish list ” presented on behalf of the country by the CIA station was later increased by a further ( redacted ) multiple of USD million ( see paragraph 16 1 above ).",
"The fact that such financial rewards were, as a matter of the general policy and practice, offered to the authorities of countries hosting CIA “ black sites ” is also confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “ to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials ” and that “ the CIA Headquarters encouraged CIA Stations to construct “ wish lists ” of proposed financial assistance ” and “ to ‘ think big ’ in terms of that assistance ” (see paragraph 9 7 above).",
"550. In that context, the Court would also wish to refer to its findings regarding the national authorities ’ knowledge of the CIA HVD Programme in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and the issue of the alleged existence of a bilateral agreement between Poland and the USA on the setting up and running of a secret CIA prison. In that case, the Court did not find it necessary for its examination of the case to establish whether such agreement or agreements existed and if so, in what format or what was specifically provided therein. It did, however, consider it inconceivable that the rendition aircraft could have crossed Polish airspace, landed at and departed from a Polish airport and that the CIA could have occupied the premises in Poland without some kind of pre-existing arrangement enabling the CIA operation in Poland to be first prepared and then executed (see Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430 ).",
"The same conclusion is valid in respect of Romania; moreover, in the present case it has been reinforced by evidence from the 2014 US Senate Committee Report, unambiguously demonstrating the existence of a bilateral agreement between Romania and the USA on hosting Detention Site Black on Romanian territory.",
"551. The Court would also add that the above- cited sections of the 2014 US Senate Committee Report further support the conclusions of the 2007 Marty Report, stating that “ the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level ”, that “ the CIA brokered ‘ operating agreements ’ with the Governments of Poland and Romania to hold its high-value detainees ... in secret detention facilities on their respective territories ” and that “ Poland and Romania agreed to provide the premises in which these facilities were established, the highest degrees of physical security and secrecy, and steadfast guarantees of non-interference ” (see paragraph 2 60 above; see also Al Nashiri v. Poland, cited above, §§ 423-428; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 425-430).",
"In his affidavit made several years later, on 24 April 2013, Senator Marty stated that his “ convictions regarding Romania ’ s participation in the CIA ’ s HVD Programme were unambiguous and unwavering ”, adding that “ up to the present day, I stand by every one of the factual findings I delivered in my 2006 and 2007 PACE Reports ” and that his “ certitude that a CIA ‘ black site ’ existed in Romania [had] only increased since that time ” (see paragraph 35 4 above).",
"At the fact-finding hearing he added that, based on “ extremely precise testimony ” obtained in the course of his inquiry, the Romanian officials “ must have known that the CIA used their territory for transfers of prisoners in the context of the war on terror ” (see paragraph 3 80 above)",
"552. In that regard, the Court notes that the 2007 Marty Report listed by name several individual high- office holders who “ knew about, authorised and stand accountable for Romania ’ s role in the CIA ’ s operation of ‘ out ‑ of ‑ theatre ’ secret detention facilities on Romanian territory, from 2003 to 2005 ” (see paragraph 26 2 above).",
"Two of those identified in the report, namely former President of Romania, Ion Iliescu and his former Advisor on National Security, Ioan Talpeş several years later made public statements relating to the CIA rendition operation in their interviews given to Spiegel Online in 2014 and 2015 (see paragraphs 24 4 and 24 5 above).",
"553. In December 2014, in the first Spiegel Online publication, Mr Talpeş was reported as saying that “ there were one or two locations in Romania at which the CIA probably held persons who were subjected to inhuman treatment ”. It was further reported that “ had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation ” and that in that context “ it was agreed that the CIA could carry out its own activities in certain locations ”. He did not know where they were and “ Romania was, expressly, not interested in what the CIA was doing there ”. Mr Talpeş also told Spiegel Online that in 2003 and 2004 he had informed President Iliescu that the CIA had carried out “ certain activities ” on Romanian territory; at that time “ he did not think that the CIA could possibly torture captives ” (see paragraph 24 4 above).",
"554. In April 2015, in the second Spiegel Online publication, Mr Iliescu was reported as stating that “ around the turn of the year 2002-2003, our allies asked us for a site ” and that he, as Head of State, had in principle granted that request but the details had been taken care of by Mr Talpeş. He added that “ we [had not interfered] with the activities of the USA on this site ”.",
"Spiegel Online further reported that Mr Talpeş had confirmed Mr Iliescu ’ s statements, adding that at the turn of 2002-2003 he had received a request from a representative of the CIA in Romania for premises, which the CIA needed for its own activities. He had arranged for a building in Bucharest to be given to the CIA. The building was used by the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not reveal its location (see paragraph 24 5 above).",
"555. In that context, it is also to be noted that the 2016 EP Resolution states that Mr Talpeş “ admitted on record to the European Parliament delegation that he had been fully aware of the CIA ’ s presence on Romanian territory, acknowledging that he had given permission to ‘ lease ’ a government building to the CIA ” ( see paragraph 2 90 above).",
"556. Referring to Mr Iliescu ’ s and Mr Talpeş ’ interviews in Spiegel Online, the Government argued that subsequently their initially ambiguous statements had been clarified to the effect that there had been no cooperation and no complicity in the CIA rendition and secret detention operations on the part of Romania. In that regard, the Government also relied on evidence from witnesses obtained in the criminal investigation conducted in Romania (see paragraphs 4 41 - 44 2 above).",
"557. The Court does not share this assessment.",
"It is true that certain Romanian officials, for instance Y and Z, who testified in the investigation in May and June 2015, denied receiving any such request or having any knowledge of the existence of the CIA prisons in the country (see paragraphs 300 -30 2 above).",
"Yet in that regard the Court cannot but note that witness Z in his testimony given on 18 June 2015 nevertheless confirmed that “ USA Government officials [had] asked the Romanian authorities to offer some locations on Romanian territory to be used for actions of combating the international terrorist threats by the representatives of the CIA, on the same pattern as that used in the other NATO Member States ” and that “ finally one single location [had been ] offered ”. It was understood “ at that stage, in 2003, that it should be an office building in Bucharest ” (see paragraph 30 2 above).",
"558. The accounts given by Mr Talpeş and Mr Iliescu to Spiegel Online in their interviews and Mr Talpeş ’ admission to the European Parliament ’ s delegation match the disclosures in the 2014 US Senate Committee Report, in particular regarding the date of the agreement to host a CIA secret detention site (2002), the fact that the Romanian authorities were asked for premises for the CIA, the time at which the premises were provided (2003) and the fact that they were informed of the purpose for which the premises that Romania offered were to be used (see paragraphs 16 1 and 54 8 above). They also correspond to the Court ’ s above findings as to the dates marking the opening of Detention Site Black in Romania (see paragraph 52 7 above).",
"559. The statements obtained in the investigation relied on by the Government are in a marked contrast to the disclosures made by the US authorities, Romania ’ s partner under the agreement. The Court does not see how the findings of the US Senate Intelligence Committee, based on a several-year - long investigation and in-depth analysis of first-hand evidence, which in most part came from classified “ top secret ” sources, including more than six million pages of CIA documents (see paragraphs 7 8 - 80 above) could be undermined by the material referred to by the Government.",
"(ii) Acquiescence with some elements of the HVD Programme",
"560. The 2014 US Senate Committee Report, in the chapter concerning the establishment of the CIA Detention Site Black (see paragraphs 16 1 and 54 8 above) also refers to several interventions vis-à-vis the CIA made by the US ambassador in the country in the context of the operation of the CIA HVD Programme in that country and public disclosures of ill - treatment of detainees in US custody. First, in August 2003, he expressed concern as to whether the State Department was aware of the CIA detention facility in the country and its “ potential impact ” on US policy in respect of the State concerned. The second and third interventions, prompted by “ revelations about US detainee abuses ” were made in May 2004 and in the “ fall of 2004 ”.",
"The report further states that “ while it is unclear how the ambassador ’ s concerns were resolved, he later joined the chief of Station in making a presentation ” to the country ’ s authorities ( or representatives ) whose names were redacted in the text. The presentation did not describe the EITs but “ represented that without the full range of these interrogation measures ” the US “ would not have succeeded in overcoming [the] resistance “ of Khalid Sheikh Mohammed ” and “ other equally resistant HVDs ”. The presentation also included representations “ attributing to CIA detainees critical information ” on several terror plots, including the “ Karachi Plot ”, the “ Heathrow Plot ” and the “ Second Wave Plot ”. Also, in the context of intelligence obtained, several well-known HVDs in US custody were mentioned by name (see paragraph 161 above).",
"561. The above information originated in an evidential source to which the Court attributes utmost credibility (see also paragraph 55 9 above). It gives a description of a concrete event – an oral presentation – that occurred at some time following “ the fall of 2004 ” and during which, in the context of the operation of Detention Site Black in the country, the Romanian authorities were presented with an outline of the CIA HVD Programme by the US officials. Even though the format of the meeting and names or functions of participants representing the host country have not been revealed, the disclosure clearly shows that the presentation included a fairly extensive account of the HVD Programme. To begin with, the US officials clearly spoke of intelligence that had been obtained from high-value detainees through “ overcoming resistance ” by means of a “ full range of interrogation measures ”. They also suggested that specific terrorist suspects in CIA custody had provided “ critical intelligence ” on prominent terror plots. CIA prisoners whose resistance was “ overcome ” as a result of interrogations were spoken of, to mention only Khalid Sheikh Mohammed, the top HVD in CIA custody, suspected of masterminding the 11 September 2001 terrorist attacks in the USA.",
"( b ) Assistance in disguising the CIA rendition aircraft ’ s routes through Romania by means of the so-called “ dummy ” flight planning",
"562. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities cooperated with the CIA in disguising the rendition aircraft ’ s actual routes and validated incomplete or false flight plans in order to cover up the CIA activities in the country was considered relevant for the Court ’ s assessment of the State authorities ’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424 ). The Court will follow that approach in analysing the facts of the present case.",
"563. It is to be reiterated that the Government acknowledged that in respect of two flights, namely N313 P on 2 2 September 2003 and NVM85 on 12 April 2004 the flight plans had been changed when the planes had been in the air. They denied that any role in the process had been played by the Romanian authorities, except for a passive, “ automatic ” acceptance of the change for which the plane operator had been solely responsible and assistance in transmitting the flight plans to the entity managing the integrated initial flight plan processing system (see paragraph 43 9 above).",
"564. However, as already noted above, the clear inconsistencies in the flight data pertaining to destinations where the CIA-associated aircraft were supposed to arrive and from where they actually took off presented by the Romanian authorities were already identified in the 2007 Marty Report and the Fava Report (see paragraphs 26 4 and 51 2 above). Also, Mr Hammarberg ’ s dossier addressed to the Romanian Prosecutor General listed eight rendition flight circuits occurring between 22 September 2003 and 21 August 2005 in respect of which false flight plans had been filed (see paragraph 33 7 above).",
"565. The practice of so-called “ dummy ” flight planning, i.e. a process of intentional disguise of flight plans for rendition aircraft used by the air companies contracted by the CIA, for instance Jeppesen Dataplan Inc. or Richmor Aviation (see paragraphs 6 3 - 70 above), was explained by Senator Marty and Mr J.G.S. in their testimony during the PowerPoint presentation on the basis of two examples of the CIA rendition circuits through Romania executed by plane N313P on 20-24 September 2003 and 16-28 January 2004 (see paragraphs 32 8 and 3 71 above). The experts described the “ dummy ” flight planning as “ a systematic practice deployed by the CIA and its aviation services providers to disguise CIA flights into and out of its most sensitive operational locations ”. They added that the CIA could not execute this tactic alone since it “ depended upon, however discrete, a role played by the national counterpart authority ”. The Romanian documentary records demonstrated the landing of N313P on 25 January 2004 at Bucharest Băneasa Airport despite the absence of a valid flight plan. According to the experts, “ this was part of a systematic practice and through our investigations we [had] generated numerous, up to twelve instances on which CIA rendition aircraft [had] transferred detainees into, and out of, Bucharest, Romania ” (see paragraph 37 3 above).",
"In this connection, the Court would also reiterate its above findings that the flights N313P and N1HC marking the opening and the closure of the CIA detention facility in Romania, flight N85VM, identified as the one that brought the applicant into Romania and flight N308AB, identified as one of the two possible flights on which the applicant was taken out of Romania were concealed by the “ dummy ” flight planning (see paragraphs 51 9, 52 7, 5 31, 534- 53 7 and 54 2 above)",
"566. As the Court found in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, the “ dummy ” flight planning, a deliberate effort to cover up the CIA flights, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country ’ s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424).",
"567. Consequently, the fact that the Romanian aviation authorities navigated the CIA flights into Bucharest, despite the fact that the relevant flight plans named Constanţa or Timișoara as the airports of destination and accepted flight plans naming those destinations but navigated the planes to Bucharest demonstrated that they knowingly assisted in the process of disguise of the CIA planes (ibid. ).",
"(c) Special procedure for CIA flights",
"568. The Government asserted that, in contrast to the circumstances in Al Nashiri v. Poland, in Romania there had been no special procedure for receiving the impugned flights (see paragraphs 43 6 -4 40 above).",
"In that regard they relied on evidence from witnesses heard in the investigation, who had not related any special treatment of the US flights that would deviate from routine procedures for any ordinary flight (see paragraphs 43 7 -43 8 above).",
"569. The Court notes that, indeed, several witnesses said that they had not heard about or seen any “ clandestine passengers ”, “ detainees ” or “ any passenger especially of Arab origin ” (see paragraphs 30 6 -30 9 and 31 7 -31 9 above) or that they had not noted “ anything out of the ordinary when the ‘ private planes ’ [had] landed ” or that there had been “ no special services provided ” (see paragraphs 3 20 and 32 3 above).",
"570. However, the statements of several other witnesses who referred to the “ special ” or “ N ” status flights with the US registrations contradict the Government ’ s assertion.",
"Witness E knew about three or four such flights that landed at night time and parked on the airport platform for about 10-15 minutes. He said that that the only person approaching them had been witness X.",
"Witness G knew of the “ N ” flights having been announced as special flights for which the staff had not been requested. Witness O spoke of one plane that had been treated differently and the staff had been asked to stay in the office and not go to the plane. Witness P knew that special flights had been “ carried out at night ”; also, on one night he had seen a plane without a call sign and a man in dark overalls and military boots walking a dog near the plane (see paragraphs 3 10, 31 4 and 3 22 - 32 3 above).",
"Witness X, apparently the only person who had been seen approaching the “ special planes ” did not explain in concrete terms what had in reality been going on but said that his presence in the airport had been connected with “ bilateral relations ” with the US ” equivalent structures ” and “ aimed at ensuring protocol relations during processing as well as bilateral courtesy-setting according to diplomatic norms and international rules ” (see paragraph 29 9 above).",
"571. Witness Z, in his statement of 17 September 2013 given to the prosecutor was more explicit. He confirmed that in the context of Romania ’ s forthcoming accession to NATO “ some developments or agreements [had taken] place in relation to the American flights to be operated by the CIA ” and that, “ from about 2003 onwards several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions than those provided for by international customs ”. He added that “ those flights [had] had a special character and they [had] not [been] under an obligation to obey usual rules imposed on civil flights ” (see paragraph 301 above).",
"572. Lastly, in the Court ’ s view, the way in which the Romanian authorities dealt with the accident on the landing of the aircraft N478GS that occurred on 6 December 2004 is one more element that contradicts the Government ’ s above assertion as to the lack of any special treatment of the CIA-associated flights. The incident was described in the Fava Report and the 2007 EP Resolution, and was also related by Mr Fava at the fact-finding hearing (see paragraphs 27 5, 2 80 and 36 2 above). The presence in Romania of seven passengers on the plane which came from Bagram, Afghanistan, was apparently concealed. Only on the TDIP ’ s considerable insistence did the Romanian authorities give them a list of passengers, all of them US citizens with service passports. One of them was armed with a Beretta gun and had ammunition on him. No questions were asked about the purpose of their trip from Bagram, a place reported as hosting a CIA detention site for the purposes of interrogations of captured terrorist-suspects (see paragraph 36 2 above).",
"( d ) Informal transatlantic meeting",
"573. As in Al Nashiri v. Poland ( cited above § 434) and Husayn (Abu Zubaydah) v. Poland (cited above § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State ’ s knowledge of the CIA rendition and secret detention operations in 2003-2005.",
"574. In his testimony in Al Nashiri v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including The Washington Post and ABC News disclosures of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly hosted CIA “ black sites ” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434). He also described the content of the “ debriefing ” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice ’ s statement “ we all know about these techniques ” made in the context of the CIA operations and interrogations of terrorist suspects which had been recorded in the debriefing that there had been an attempt on the USA ’ s part to share the “ weight of accusations ” (ibid.).",
"575. In the present case Mr Fava testified that it had emerged from the debriefing that, at that stage, all the governments had known that this “ operational means ” had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism.",
"Mr Fava further stated that the TDIP had “ never had doubts ” given the precision of the debriefing notes and the fact that in the course of their further work they had received confirmation from Mr Bellinger, legal advisor to Ms Rice, that the US had “ never violated the sovereignty of any EU Member States or indeed any States in in the process of accession to the EU ” and that everything what they had done “ [had been] done by always informing and asking for cooperation and never trying to prevail over the will of the governments of the Member States ” (see paragraph 3 61 above).",
"576. In the context of Romania ’ s knowledge of the CIA HVD Programme, Mr Fava moreover referred to a statement of Mr Pascu, listed in the 2007 Marty Report among the Romanian high-office holders “ who knew about, authorised and [stood] accountable ” for Romania ’ s role in the CIA HVD Programme (see paragraph 26 2 above). According to Mr Fava, Mr Pascu, as Minister of Defence, had been aware that the Romanian authorities had not had access to certain sites which had been under the control of the US army or intelligence services. In Mr Fava ’ s opinion, this statement, although later rectified by Mr Pascu, was truthful (see paragraph 36 3 above).",
"(e ) Circumstances routinely surrounding HVDs transfers and reception at the CIA “ black site ”",
"577. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland (both cited above), that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “ black sites ” in the host countries should be taken into account in the context of the State authorities ’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439 ).",
"It follows from the Court ’ s findings in the above cases and the CIA materials describing the routine procedure for transfers of detainees between the “ black sites ” (see paragraphs 48- 5 1 above) that for the duration of his transfer a HVD was “ securely shackled ” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and hood and that upon arrival at his destination was moved to the “ black site ” under the same conditions.",
"578. The Court finds it implausible that the transportation of prisoners on land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least the minimum assistance of the host country ’ s authorities, if only to secure the area near and around the landed planes and provide the conditions for the secret and safe transfer of passengers. Inevitably, the Romanian personnel responsible for security arrangements, in particular the reception of the flights and overland transit, must have witnessed at least some elements of the detainees ’ transfer to Detention Site Black, for instance the unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437).",
"Consequently, the Court concludes that the Romanian authorities who received the CIA personnel in the airport could not have been unaware that the persons brought by them to Romania were the CIA prisoners.",
"( f ) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 200 2 -2005",
"579. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “ war on terror ” which were available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234).",
"580. Before analysing that material, the Court wishes to refer to President ’ s Bush memorandum of 7 February 2002, stating that neither al ‑ Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions (see paragraph 204-209 above), did not apply to them. The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, although including a disclaimer that even detainees “ not legally entitled ” to be treated humanely would be so treated, also spoke of respecting the principles of the Geneva Conventions “ to the extent appropriate and consistent with military necessity ” (see paragraphs 3 1 -3 2 above). Consequently, already at this very early stage of the “ war on terror ” it was well known that “ military necessity ” was a parameter for determining the treatment to be received by the captured terrorist-suspects.",
"581. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to the detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “ stress and duress ” methods of interrogation and arbitrary and incommunicado detention. From January 2002 to the publication of the Washington Post report on 2 November 2005 the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ ’ s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 21 2 -22 5 and 470 -4 77 above).",
"Also, in the 2003 PACE Resolution of 26 June 2003 – of which Romania, one of the Council of Europe ’ s member States must have been aware – the Parliamentary Assembly of the Council of Europe was “ deeply concerned at the conditions of detention ” of captured “ unlawful combatants ” held in the custody of the US authorities (see paragraph 2 1 6 above).",
"582. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “ US overseas centres ” for interrogations was also often reported in the international and Romanian media (see paragraphs 2 30 - 243 above). In particular, between January 2002 and May 2003 the Romanian press published a number of articles concerning ill ‑ treatment of prisoners and the use of “ violent interrogation techniques ” against captured terrorists by the CIA (see paragraphs 23 9 -24 3 above).",
"6. The Court ’ s conclusions as to Romania ’ s alleged knowledge of and complicity in the CIA HVD Programme",
"583. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody have evolved over time, from 2002 to the present day. A considerable part of evidence before the Court emerged several years after the events complained of (see paragraphs 3 6 -5 9, 78-97, 251 -29 7, 33 3 -34 2 and 35 5 -35 8 above; see also Al Nashiri, cited above, § 440; and Husayn (Abu Zubaydah), cited above, § 442 ).",
"Romania ’ s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that it knew or ought to have known at or closely around the relevant time, that is to say between 22 September 20 03 and 5 November 2005. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant ’ s secret detention in Romania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose the facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442).",
"584. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above (see paragraphs 54 8 -5 82 above). Having regard to all these elements taken as a whole, the Court finds that it has been adequately demonstrated to the required standard of proof that the Romanian authorities knew that the CIA operated on Romanian territory a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “ war on terror ” operation by the US authorities.",
"This finding is primarily based on compelling and crucial evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, evidence from experts.",
"The passages of the report about the agreement brokered between the USA and the country hosting Detention Site Black leave no doubt as to the fact as to the Romanian high-office holders ’ prior acceptance of a CIA detention facility on their territory. Nor can there be any doubt that they provided “ cooperation and support ” for the “ detention programme ” and that, in appreciation, were offered and accepted a financial reward, referred to as a “ subsidy ” amounting to a redacted multiple of USD million (see paragraph 54 8 -54 9 above). The experts, with reference to the reward received by the Romanian authorities, spoke of a “ substantial sum, in the region of ten million United States dollars ” (see paragraph 38 4 above) or “ more than eight million dollars ” (see paragraph 3 91 above). However, for the purposes of its ruling, the Court does not need, nor does it intend, to determine the sum that was at stake.",
"585. The Court further attaches importance to the fact that the former Head of State Mr Iliescu and his national-security advisor Mr Talpeş, admitted publicly in the press interviews that the authorities had made available to the CIA premises which, as Mr Talpeş later explained, were located in Bucharest (see paragraphs 55 3 -55 4 above ). While it is true that Witness Y and Witness Z in their testimonies before the prosecutor contradicted the statements of Mr Iliescu and Mr Talpeş reported in Spiegel Online, in the Court ’ s view their denial cannot be considered credible as being in conflict with all other relevant materials cited above (see paragraphs 548 -55 9 above). In any event, as noted above, Witness Z confirmed that a location “ for actions of combating international terrorist threats ” was offered to the CIA (see paragraphs 302 and -55 7 above ).",
"586. Furthermore, the disclosure in the 2014 US Senate Committee Report demonstrates conclusively that in the autumn of 2004, when Detention Site Black had already been operating in Romania for around one year, the national authorities were given a presentation outlining the HVD Programme by the chief of the CIA station and the US ambassador. The content of that presentation as related in the report leaves no doubt as to the fact that at the very least the Romanian authorities had learnt from the CIA of a “ full range of interrogation measures ” being used against their detainees in order to “ overcome resistance ” in the context of obtaining intelligence (see paragraphs 5 60 -5 61 above ).",
"587. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various, including confidential, sources unanimously and categorically stated that Romania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country.",
"Senator Marty said that the authorities “ must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror ”. Mr J.G.S. stated that “ quite clearly, categorically the Romanian authorities, at the highest level, did know of the existence of secret detention on their territory ” and that “ they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which the detainees were held in between their arrivals and their departures ”. Mr Hammarberg stated that “ though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers ”. Mr Black said that it was “ clear that the authorities were aware of [the purposes of the CIA aircraft landings in Romania] because, among other things, they received money for it ” and that, based on the 2014 US Senate Committee Report, it was “ normally common practice ... that the host country ’ s officials were in the know about these facilities and the purposes of them ” (see paragraphs 34 4, 3 80, 38 4 and 391 above).",
"This did not mean, the experts added, that the Romanian authorities had known the details of what exactly went on inside Detention Site Black or witnessed treatment to which the CIA prisoners had been subjected in Romania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations had been exclusively the CIA ’ s responsibility (see paragraphs 34 4, 3 80 and 384 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443 ).",
"588. However, in the Court ’ s view, even if the Romanian authorities did not, or could not, have complete knowledge of the HVD Programme, the facts available to them, in particular those presented to them directly by their US partners, taken together with extensive and widely available information about torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist suspects in US custody which in 2002-2005 circulated in the public domain, including the Romanian press (see paragraphs 57 9 -5 82 above), enabled them to conjure up a reasonably accurate image of the CIA ’ s activities and, more particularly, the treatment to which the CIA were likely to have subjected their prisoners in Romania.",
"In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. Consequently, the Romanian authorities had good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on Romanian territory.",
"It further observes that it is – as previously found in respect of Poland – inconceivable that the rendition aircraft could have crossed the country ’ s airspace, landing at and departing from its airports, that the CIA occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on its territory. Nor can it stand to reason that activities of such a character and scale, possibly vital for the country ’ s military and political interests, could have been undertaken on Romanian territory without Romania ’ s knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State authorities (see Al Nashiri v. Poland, cited above, §§ 441-442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444).",
"589. The Court accordingly finds it established beyond reasonable doubt that:",
"(a) Romania knew of the nature and purposes of the CIA ’ s activities on its territory at the material time.",
"(b) Romania, by entering into an agreement with the CIA on hosting Detention Site Black, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory.",
"(c) Given its knowledge of the nature and purposes of the CIA ’ s activities on its territory and its involvement in the execution of that programme, Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.",
"III. ROMANIA ’ S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION",
"A. The parties ’ submissions",
"590. The parties ’ submissions regarding the Government ’ s objection that Romania lacked jurisdiction within the meaning of Article 1 of the Convention and, consequently, could not be responsible under the Convention are set out above (see paragraphs 395 -40 9 above).",
"B. The Court ’ s assessment",
"591. The Court notes that the applicant ’ s complaints relate both to the events that occurred on Romania ’ s territory and to the consequences of his transfer from Romania to other places where he was secretly detained (see paragraphs 11 5 -1 90 above).",
"In that regard, the Court would wish to reiterate the relevant applicable principles.",
"1. As regards jurisdiction",
"592. It follows from Article 1 that States parties must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “ jurisdiction ”.",
"The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.",
"In that regard, the Court would refer to its case-law to the effect that the concept of “ jurisdiction ” for the purposes of Article 1 of the Convention must be considered to reflect the term ’ s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001 ‑ XII; Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; and Ilaşcu and Others, cited above, §§ 311-312 ).",
"From the standpoint of public international law, the words “ within their jurisdiction ” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial, but also that jurisdiction is presumed to be exercised normally throughout the State ’ s territory (see Ilaşcu and Others, cited above, § 312 with further references to the Court ’ s case-law; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 149-150, ECHR 2015).",
"593. It must also be reiterated that, for the purposes of the Convention, the sole issue of relevance is the State ’ s international responsibility, irrespective of the national authority to which the breach of the Convention in the domestic system is attributable (see Assanidze, cited above, § 146, with further references to the Court ’ s case-law).",
"2. As regards the State ’ s responsibility for an applicant ’ s treatment and detention by foreign officials on its territory",
"594. In accordance with the Court ’ s settled case-law, the respondent State must be regarded as responsible under the Convention for internationally wrongful acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities (see Ilaşcu and Others, cited above, § 318; El-Masri, cited above, § 206; Al Nashiri v. Poland, cited above, § 452; Husayn (Abu Zubaydah) v. Poland, cited above, § 449; and Nasr and Ghali, cited above, § 241).",
"3. As regards the State ’ s responsibility for an applicant ’ s removal from its territory",
"595. The Court has repeatedly held that the decision of a Contracting State to remove a person – and, a fortiori, the actual removal itself – may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question would, if removed, face a real risk of being subjected to treatment contrary to that provision in the destination country (see Soering v. the United Kingdom, 7 July 1989, §§ 90 ‑ 91 and 113; Series A no. 161, § 91; Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 168, 10 April 2012; El ‑ Masri, cited above, §§ 212-214, with further references; Al Nashiri v. Poland, cited above, § 454; Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 242).",
"Where it has been established that the sending State knew, or ought to have known at the relevant time, that a person removed from its territory was being subjected to “ extraordinary rendition ”, that is, “ an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment ”, the possibility of a breach of Article 3 is particularly strong and must be considered intrinsic in the transfer (see El-Masri, cited above, § § 218- 221; Al Nashiri v. Poland, cited above, § 454 and Husayn (Abu Zubaydah) v. Poland, cited above, § 450; and Nasr and Ghali, cited above, § 243).",
"596. Furthermore, a Contracting State would be in violation of Article 5 of the Convention if it removed, or enabled the removal, of an applicant to a State where he or she was at real risk of a flagrant breach of that Article (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 23 3 and 285, ECHR 2012 (extracts); and El-Masri, cited above, § 239).",
"Again, that risk is inherent where an applicant has been subjected to “ extraordinary rendition ”, which entails detention “ outside the normal legal system ” and which, “ by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention ” (see El-Masri, ibid.; Al Nashiri v. Poland, cited above, § 455; Husayn (Abu Zubaydah) v. Poland, cited above, § 451; and Nasr and Ghali, cited above, § 244).",
"597. Similar principles apply to cases where there are substantial grounds for believing that, if removed from a Contracting State, an applicant would be exposed to a real risk of being subjected to a flagrant denial of justice (see Othman (Abu Qatada), cited above, §§ 261 and 285) or sentenced to the death penalty (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 123, ECHR 2010; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009; Al Nashiri v. Poland, cited above, § 456; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 453 ).",
"598. While the establishment of the host State ’ s responsibility inevitably involves an assessment of conditions in the destination country against the standards set out in the Convention, there is no question of adjudicating on or establishing the responsibility of the destination country, whether under general international law, under the Convention or otherwise.",
"In so far as any responsibility under the Convention is or may be incurred, it is responsibility incurred by the host Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment or other alleged violations of the Convention (see Soering, cited above, §§ 91 and 113; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 67 and 90, ECHR 2005 ‑ I, with further references; Othman (Abu Qatada), cited above, § 258; and El ‑ Masri, cited above, §§ 212 and 239).",
"599. In determining whether substantial grounds have been shown for believing that a real risk of the Convention violations exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material it has obtained proprio motu. It must examine the foreseeable consequences of sending the applicant to the destination country, bearing in mind the general situation there and his personal circumstances.",
"The existence of the alleged risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the removal. However, where the transfer has already taken place at the date of the Court ’ s examination, the Court is not precluded from having regard to information which comes to light subsequently (see Al-Saadoon and Mufdhi (cited above), § 125; El ‑ Masri, cited above, §§ 213-214, with further references; Al Nashiri v. Poland, cited above, § 458; Husayn (Abu Zubaydah) v. Poland, cited above, § 455; and Nasr and Ghali, cited above, § 246).",
"4. Conclusion as to the Romanian Government ’ s preliminary objection that Romania lacks jurisdiction and responsibility under the Convention",
"600. The Court has duly noted that the Government, while denying that the facts as alleged by the applicant occurred in Romania, accepted that Romania could be responsible under the Convention if it had knowingly permitted its territory to be used by another State for activities involving human rights violations and if, given the public awareness of the CIA HVD Programme, the authorities had become aware that the flights operating on Romanian ’ s territory had been used for the CIA rendition operations and that the CIA had run a secret detention facility in the country (see paragraph 39 6 above).",
"601. Following an extensive and detailed analysis of the evidence in the present case, the Court has established conclusively and beyond reasonable doubt that Romania hosted CIA Detention Site Black from 22 September 2003 to 5 November 2005; that the applicant was secretly detained there from 12 April 2004 to 6 October 2005, or, at the latest, to 5 November 2005; that Romania knew of the nature and purposes of the CIA ’ s activities in its country and cooperated in the execution of the HVD Programme; and that Romania knew that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see paragraphs 5 08 -58 9 above ).",
"The above findings suffice for the Court to conclude that the matters complained of in the present case fall within the “ jurisdiction ” of Romania within the meaning of Article 1 of the Convention and are capable of engaging the respondent State ’ s responsibility under the Convention.",
"Accordingly, the Government ’ s preliminary objection on these grounds must be dismissed.",
"602. The Court will accordingly examine the applicant ’ s complaints and the extent to which the events complained of are attributable to the Romanian State in the light of the above principles of State responsibility under the Convention, as deriving from its case-law (see also Al Nashiri v. Poland, cited above, § 459; and Husayn (Abu Zubaydah) v. Poland, cited above, § 456).",
"IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION",
"603. The applicant ’ s complaints under Article 3 of the Convention concerned both substantive and procedural aspects of this provision.",
"( 1) As regards his alleged ill-treatment and detention in Romania, he maintained that the respondent State had violated Article 3 in enabling his ill ‑ treatment on its territory. Romania knew or must have known about the CIA extraordinary rendition programme, the existence of the “ black site ” in Romania and the torture and inhuman and degrading treatment to which the CIA had subjected “ high-value detainees ” as part of this programme.",
"( 2) As regards his transfer from Romania, the applicant submitted that Romania had knowingly and intentionally enabled his transfer from its territory in spite of there being substantial grounds for believing that there had been a real risk of his being subjected to further treatment contrary to Article 3 in CIA custody.",
"( 3) The applicant also complained under Article 3 read alone and in conjunction with Article 13 of the Convention that the Romanian authorities had failed to conduct an effective investigation into his allegations of ill-treatment during his detention in a CIA-run detention facility in Romania. He also alleged that by its refusal to acknowledge, promptly and effectively investigate and disclose details of his ill-treatment, detention, enforced disappearance and rendition, Romania had violated his and the public ’ s right to the truth under Article 3.",
"604. Article 3 of the Convention states:",
"“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”",
"605. The Court will first examine the applicant ’ s complaint under the procedural aspect of Article 3 about the lack of an effective and thorough investigation into his allegations of ill-treatment when in CIA custody on Romania ’ s territory (see El-Masri, cited above, § 181; Al Nashiri v. Poland, cited above, § 462; and Husayn (Abu Zubaydah) v. Poland, cited above, § 459 ).",
"A. Procedural aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"606. In their written pleadings, the Government underlined that the Court had consistently held that the obligation to investigate allegations of ill-treatment was not one of result, but one of means: not every investigation should necessarily be successful or come to a conclusion which coincided with the claimant ’ s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations proved to be true, to the identification and punishment of those responsible. The Court had also acknowledged that the scope of the State ’ s procedural obligation under Article 3, as well as the particular form of investigation, might vary depending on the situation that had triggered that obligation.",
"In their view, both the parliamentary inquiry conducted by the Romanian Senate and the criminal investigation initiated by the applicant ’ s criminal complaint of 29 May 2012 had been prompt, thorough and independent, as required by Article 3 of the Convention. They added that in the criminal investigation the applicant ’ s rights as victim had been duly recognised and respected.",
"607. Referring to concerns and criticism regarding the allegedly superficial nature of the parliamentary inquiry and the alleged abuse of State secrecy and national security expressed in, among others, the Fava Report and the 2011 Marty Report, the Government maintained that the authorities had thoroughly investigated the issues of the suspicious flights and alleged secret detention facility. In contrast to what had been claimed in the above reports, the 2007 Romanian Senate Report had not been confined to the defence of Romania ’ s official position but constituted a comprehensive analysis of the vast material collected by the Romanian Senate Inquiry Committee during an extensive investigation.",
"In particular, between January 2006 and January 2007, the committee ’ s activity had consisted of twenty-one meetings for documentation review and analysis with the leaders of the institutions and of the specialised structures; over forty meetings with official delegations and members of the European Council and Commission, other politicians, and journalists; six trips of the committee ’ s delegations to the airports and military airbases alleged to have been used for secret detentions and illegal prisoner transfers; hearings involving over 200 persons, with attributions regarding flights records, verification, coordination, and on-ground security and services; study of over 4,200 pages, containing relevant information for the terms of reference of the committee.",
"608. As regards the submissions of the applicant and APADOR-CH regarding the alleged secrecy of annexes to the 2008 Romanian Senate Report (see paragraph 63 1 below), the Government maintained that, notwithstanding the classification of eleven annexes to the Report, most of the annexes had not been secret. Moreover, the information related to the alleged suspicious flights, included in the classified annexes, had been available to the official investigators of the PACE and the European Parliament. As could be seen from the 2007 Romanian Senate Report, the committee had investigated all the airports and airfields mentioned in Eurocontrol ’ s documents and examined the Marty Reports and flight plans of all the aircraft regarded as suspicious. The Romanian Senate Inquiry Committee had also had access to the classified documents on which the report ’ s conclusions relied.",
"In view of the foregoing, the Government asserted that the parliamentary inquiry had been thorough and expeditious.",
"609. Given that the 2007 Romanian Senate Report had conclusively established that there had been no CIA secret detention sites in Romania, that the allegedly suspicious flights had had nothing to do with the illegal transportation of prisoners and that there had been no evidence that Romanian institutions or persons had knowingly or by negligence participated in the rendition operations, there had been no legal or factual grounds on which to conduct a criminal investigation into those matters.",
"However, following the applicant ’ s criminal complaint, the prosecution had promptly opened an investigation. The proceedings had progressed without delay. The investigative authorities had taken several steps in order to clarify the facts related to the applicant ’ s complaint. In order to verify the matters complained of by the applicant, internal verifications had been performed, consisting in, among other things, sending letters to RCAA asking it to make available flight data relating to suspicious flights and to the relevant airports. Various ministries, for instance the Ministry of Defence, the Ministry of Transport and the Ministry of Foreign Affairs had been asked to provide information regarding the alleged existence of a CIA secret prison and any material that could be relevant. Many witnesses, including some high-ranking officials and the airport security and civil personnel, had been heard by the prosecutor. Furthermore, a number of requests for legal assistance had been addressed to the US authorities, asking for specific information about the applicant, namely, whether he had ever been brought to Romania under the US extraordinary rendition programme and whether Romania had been involved in that programme. Those requests had so far been unsuccessful.",
"610. In the Government ’ s submission, the material collected in the investigation had not revealed the existence of a CIA secret detention facility. Nevertheless, the Romanian investigative authorities were committed to taking into account the 2014 US Senate Committee Report published in December 2014 and the subsequent speculations concerning the so-called “ black sites ” on Romanian territory. The proceedings were ongoing and their outcome could not be anticipated by the Government.",
"611. As regards the length of the investigation, the Government submitted that it was true that the proceedings had been lengthy, but not unduly so, especially considering their exceptional complexity and the factors which had had an impact on their progress and which were beyond the Romanian prosecution authority ’ s control, such as a lack of response to requests for legal assistance on the part of the US authorities.",
"612. At the public hearing, the Government underlined that the conclusions of the 2007 Romanian Senate Report had not amounted to mere statements, but had been the result of real work done in the investigation extending from January 2006 to January 2007, and whose value should not be underestimated. They also underlined that the previously classified annexes to that report had been made publicly available, in particular in the proceedings before the Court. The annexes helped to shed some light on the work of the Romanian Senate Inquiry Committee and demonstrated the thorough nature of the parliamentary inquiry. The committee had requested, and received, information concerning the purpose of the allegedly suspicious flights, the service rendered by the civil handling agents, as well as the diplomatic overflight requests received by the Ministry of Defence from the United States Embassy from 2001 to 2005.",
"Even though the annexes had been classified up to a recent date, at no point had the Romanian authorities tried to hide behind a wall of “ State secrecy ” and national security. The relevant, albeit summarised, information contained in the classified annexes had been disclosed together with the report, being made available to all the interested parties.",
"613. The Government reiterated that the criminal investigation had been thorough and supervised by an independent body, and that it had offered the victim ’ s representatives the possibility of participating effectively in its conduct. In that regard, they stressed that, according to the Romanian Code of Criminal Procedure, the applicant ’ s representatives could have asked the prosecutor if they could be informed about any action taken in the criminal investigation and attend any examination of witnesses. However, no such request had so far been received.",
"614. From the beginning of the investigation, the Public Prosecutor ’ s Office had established an investigation plan, based on the content of the criminal complaint and on information available in the public domain. Most of the actions stated in this plan had already been carried out; only the requests for legal assistance to the US authorities had remained unanswered. All the institutions that could hold information about the flights that were considered suspicious in various reports had been contacted by the Public Prosecutor ’ s Office and requested to submit all the relevant data.",
"The Prosecutor ’ s Office had taken a particular interest in the identification of personnel working at Băneasa Airport on the dates of the flights allegedly used in rendition circuits; twenty-three witnesses working for the Border Police, for the private handling agent Romanian airport services and for the Airport Security Department, had been heard in relation to working procedures, rules of access and, in particular, about the “ N ” flights. On the basis of the witness statements, the Public Prosecutor ’ s Office had been able to determine the procedures for the landing of private non-commercial flights and the normal processing of passengers at the time, and whether there had been blatant breaches of these procedures in the case of the US-registered flights.",
"615. The Government were convinced that the investigation had been effective, that each and every possible lead had been considered and that evidence had been gathered in order to establish the facts.",
"They accordingly invited the Court to find that the criminal investigation in the present case had been effective and aimed at disclosing the truth in respect of the so-called rendition programme, the alleged involvement of the Romanian authorities in that programme and the applicant ’ s alleged secret detention in Romania.",
"(b) The applicant",
"616. The applicant maintained that Romania had failed to carry out an investigation that satisfied its obligations under Article 3 of the Convention. In spite of their duty to investigate of their own accord any arguable claims of Article 3 violations, and despite being on notice since November 2005 of possible torture, ill-treatment, and incommunicado detention in a prison on Romanian territory, the authorities had not commenced a criminal investigation into the prison until almost seven years later, i.e., until July 2012, when they issued a preliminary response stating that they would review the criminal complaint filed on behalf of the applicant with the Prosecutor General in May 2012. Several years later, the criminal investigation was still ongoing.",
"In that regard, the applicant emphasised that the Government had a continuing obligation to investigate allegations of the national authorities ’ involvement in serious human rights violations and to uncover the truth behind such involvement.",
"617. In the applicant ’ s view, the Government had offered no cogent explanation as to why the authorities had not initiated a criminal investigation into secret CIA prisons on Romanian territory shortly after public reports of such a prison had first surfaced and irrespective of the growing information on the existence of the HVD Programme and Romania ’ s involvement in that programme. The prosecution had shown a complete lack of interest in the topic. In addition, as set out in Mr Hammarberg ’ s affidavit, the Romanian authorities had ignored his repeated requests for an investigation and had not responded to his dossier of evidence relating to the secret CIA prison that he had submitted to the Prosecutor General.",
"618. Indeed, for several years following the applicant ’ s criminal complaint no serious efforts had been made to interview witnesses with likely knowledge of the secret CIA prison or of the suspicious rendition flights, to investigate the Government building where the “ Bright Light ” CIA detention site had been located, to speak to intelligence officials who might have had knowledge of any agreement with the USA, to investigate the building work that must have been done in order to convert it into a prison, to seek to speak to the multiple sources referenced in the Council of Europe ’ s and other official and unofficial investigations, or to look any further than the previously conducted Romanian Senate ’ s inquiry, which had been fundamentally flawed. To date the prosecution had made no attempt to communicate with the Office of the Human Rights Commissioner for the Council of Europe regarding the dossier of information relating to the CIA prison that former Commissioner Thomas Hammarberg had shared with the Prosecutor General in March 2012. Nor had the authorities spoken with Senator Marty about the findings in his two reports confirming that Romania had hosted a secret CIA prison or asked him whether he could supply relevant documents or witnesses ’ names.",
"619. The applicant further argued that, despite the fact that the Government had placed great weight on the Romanian Senate ’ s inquiry into secret prisons, this inquiry had by its very nature been ineffective because it had not been a criminal inquiry, and therefore had been incapable of “ leading to the identification and punishment of those responsible ”. As found in the Marty and Fava Reports, the inquiry had been superficial and not sufficiently independent or impartial. It did not constitute a genuine attempt to hold officials responsible; rather, it had been aimed at issuing categorical denials of allegations relating to the CIA prison on Romanian territory. It had overlooked extensive evidence to the contrary from valuable and credible sources.",
"620. The applicant asserted that the authorities had made no attempt to inform him of the conduct of the investigation or to involve him in the proceedings through his counsel. It was true that, given the applicant ’ s circumstances, contacting him directly would have been impossible. But there had been no attempt whatsoever even to contact the applicant ’ s representatives, let alone involve them in any way in the investigation or inform them on the progress in the proceedings.",
"Furthermore, the investigation lacked transparency and there had been no public scrutiny of the investigation. The investigative authorities in Romania had disclosed no information to the public about the terms of reference of the investigation, what stage it was at, which crimes were at issue, or when it was likely to conclude. As such, they had failed to fulfil the public scrutiny requirement of an effective investigation. In particular, in a case such as this, the public element of the investigation was essential to encourage other witnesses to come forward, such as those who might have been involved in the preparation and conversion of the ORNISS building into a secret prison.",
"621. At the public hearing, the applicant reiterated once again that since 6 November 2005, when the allegations regarding Romania ’ s involvement in the CIA rendition programme had been made public in the 2006 HRW Statement, Romania had been under an obligation, promptly and of its own motion, to initiate an investigation capable of determining all the circumstances and possible victims.",
"It would have been of utmost importance for the effectiveness of the criminal investigation to be initiated as early as possible, as the events had been recent and important evidence, such as fresh witness testimony, could have been gathered. If such investigations had been opened, it would have been possible for the domestic authorities to identify the applicant as one of the victims and to establish when he had been transferred out of Romania and to what treatment he had been subjected. Indeed, if independent investigators had been able to establish these facts during subsequent research into the materials available in the public domain, it would have been possible for official investigators as well, as long as there had been a will and effort to follow the matter.",
"622. Instead, the authorities had remained passive despite the fact that further information on the existence of the HVD Programme and the involvement of Romania had been disclosed to the public in the following years and that inquiries had been instituted by the Council of Europe and by the European Parliament, resulting in detailed reports. For example, Senator Marty ’ s reports had been quite specific in describing Romania ’ s involvement in the programme and in calling for an investigation. The only response had been a superficial parliamentary inquiry, falling short of all standards under Article 3 of the Convention. No criminal investigation had been initiated even though, under the Code of Criminal Procedure in force at the material time, the prosecutor could open such an investigation of his own motion and had not been bound by the findings of the parliamentary inquiry. Nor had the mounting evidence made public since then, including the US authorities ’ official acknowledgements of the CIA secret detention programme made as early as 2006, changed the Romanian authorities ’ attitude. It had only been after the applicant had lodged a formal criminal complaint in May 2012 that such an investigation had been opened. A closer scrutiny of the documents produced by the Government showed that some, although not significant, procedural steps had been taken only after notice of the application had been given to the Government. Even so, although several years had passed since, little progress had been achieved. In fact, the entry into force of a new Code of Criminal Procedure on 1 February 2014 had forced the prosecution to open the criminal investigation in rem; otherwise the case would have most probably remained at a preparatory phase. At present, the investigation was still pending against persons unknown, after more than ten years since the first reports of Romania ’ s involvement in the CIA programme had been made public.",
"623. The applicant considered that another example of the ineffectiveness of the investigation was the fact that there was no indication in the investigation file that the 2014 US Senate Committee Report – which had been widely publicised and must have been known to any diligent investigator – had been taken into account in any way in the proceedings or that there had been any effort to corroborate the information in the report by gathering any additional evidence.",
"In fact, it appeared that the investigation had been completely stalled for over two years. Except for obtaining two witness statements, nothing at all had happened since 2013-2014.",
"624. In view of the foregoing, the applicant asked the Court to find that the respondent State was in breach of Article 3 of the Convention since, despite his credible claim that he had been subjected to torture, ill-treatment and secret detention in Romania, the investigation conducted by the Romanian authorities was not prompt, thorough, effective and sufficiently transparent, as required by that provision.",
"2. The third-party interveners",
"(a) The UN Special Rapporteur",
"625. The UN Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism, stressing that the victim ’ s right to truth had been expressly recognised in a number of international instruments negotiated under the auspices of the United Nations, maintained that international law nowadays protected the legal right of the victim, his or her relatives, and the public at large to seek and obtain all relevant information concerning the commission of the alleged violation, including the fate and whereabouts of the victim and, where appropriate, the process by which the alleged violation had officially been authorised. It also included the right of the victim to adequate reparation (of which the establishment of the truth is an indispensable part). The payment of monetary compensation without full public exposure of the truth was not sufficient to discharge this obligation.",
"626. On the other side of the equation, international law imposed corresponding obligations on States which could conveniently be gathered under the rubric of the international law principle of accountability. This imposed specific duties on all three branches of government. The executive, the judiciary and parliamentary oversight bodies, as well as independent bodies entrusted with official responsibility for review of intelligence matters and/or the conduct of intelligence and law-enforcement agencies, each bore a share of the State ’ s responsibility to secure the realisation of the right to truth and the principle of accountability.",
"627. Where a plausible allegation was made that public officials had committed (or been complicit in the commission of) gross or systemic human rights violations, the executive authorities of the State(s) concerned were obliged under international law to carry out an official investigation which had to begin promptly, secure all relevant evidence, and be capable of leading to the identification and, where appropriate, the punishment of the perpetrator(s) and those on whose authority the violations had been committed. Any deficiency in the investigation which undermined its ability to establish the identity of the persons responsible would risk falling foul of the requisite legal standard.",
"628. The investigating authorities were obliged to allow the victims or (if deceased) their relatives, effective access to the investigative process, respecting their right to be informed and to participate, to disclose all relevant evidence and findings to the victims (subject only to legitimate national security limitations that were adjudged to be strictly necessary by an independent and impartial judicial or quasi -judicial tribunal); and to protect the physical and moral integrity of victims and witnesses against reprisals and threats.",
"To meet the requirements of international law, such an investigative body must be genuinely independent of the officials implicated in the violations. This implied not only a lack of hierarchical or institutional connection but also a practical independence.",
"629. In El-Masri the Court had acknowledged the existence of right to truth (as such) for the first time in its jurisprudence, treating it as an aspect of the State ’ s adjectival obligation under Article 3 of the Convention to conduct an official investigation into allegations of torture.",
"The experience of the past decade, however, showed that there were various means by which the right to truth and the principle of accountability could be (and had been) frustrated, thereby perpetuating impunity for the public officials implicated in such crimes. These included the grant of de facto or de jure immunities; the official destruction of relevant evidence; executive obstruction of (or interference in) independent investigations into past practices; the assertion by the executive of unjustified claims of secrecy on grounds of national security or the maintenance of good foreign relations; the suppression or delayed publication of reports of independent investigations whose findings might expose past official wrongdoing to public scrutiny; executive inertia motivated by a desire to “ draw a line ” under the past; the more or less oblique invocation of the “ superior orders ” defence, despite its prohibition under customary law and relevant international treaties; and excessive judicial deference to the executive on matters related to national security or the maintenance of good foreign relations, with the effect of excluding the right of access to court, or unjustifiably restricting the exposure of the facts, often on the basis of highly dubious legal reasoning.",
"(b) APADOR-CH",
"630. APADOR-CH submitted that both the parliamentary inquiry and criminal investigation in Romania had been inadequate for the purposes of Article 3 of the Convention.",
"631. As regards the parliamentary inquiry, they stressed that it had failed to demonstrate that it had been aimed at discovering the truth in relation to the allegations of rendition flight landings and the existence of the CIA secret detention facility in Romania. First of all, the Senate had clearly stated that it had not been part of its mandate to look into the reason why flights later proved to be used by the CIA had landed in Romania, although its mandate had been to investigate such flights. Second, the procedure adopted by the Romanian Senate Inquiry Committee had lacked transparency. In particular, the annexes to the 2007 Romanian Senate Report had never been declassified, nor had they been intended to be made public.",
"632. As regards the criminal investigation, APADOR-CH maintained that it should have been instituted promptly after the allegations of a secret CIA prison in Romania had emerged rather than being conditional on a criminal complaint filed by a victim.",
"(c) Joint submissions by Amnesty International ( AI ) and the International Commission of Jurists ( ICJ ) on “effective investigation”",
"633. AI/ICJ stressed that the Convention case-law had long established that Contracting Parties had an obligation to investigate any credible information disclosing evidence of violations of Convention rights. Any such investigation must be prompt, thorough, independent in law and in practice, allowing for the participation of the victim and “ capable of leading to the identification and punishment of those responsible ”.",
"In this context, the interveners also stressed the importance that such investigations be initiated ex officio, rather than relying on a criminal complaint lodged by the victims or their relatives.",
"634. In AC/ICJ ’ s submission, the above investigative obligations on Contracting States were of particular importance in cases of renditions or enforced disappearances in which the State authorities might be implicated in the human rights violations.",
"In cases involving rendition an individual typically experienced continuing violations of his rights outside the jurisdiction of the State where he had initially been apprehended. However, this did not divest Contracting Parties of their duty to investigate credible information disclosing evidence of involvement in renditions.",
"Therefore, in cases of such illegal transfers, as well as torture and enforced disappearance, where the act or omission of a Contracting Party had a direct causal connection with or was part of the operation of a rendition involving a continuing violation of Convention rights, taking place partly on its territory and partly elsewhere, the State had an obligation not only to prevent, but also to take such investigative and remedial measures as were available to it to investigate and remedy the continuing violation of Convention rights.",
"635. The right to an effective investigation and to an effective remedy under, inter alia, Articles 3 and 5, read together with Article 13, required disclosure of the truth concerning the violations of Convention rights perpetrated in the context of the secret detention and rendition programmes This was so, not only because of the scale and severity of the human rights violations concerned, but also and in particular because of the widespread impunity for these practices, and the suppression of information about them, which had persisted in multiple national jurisdictions.",
"Where renditions or secret detentions had taken place with the co-operation of Contracting Parties, or in violation of those States ’ positive obligations of prevention, the Convention obligations of those States to investigate and provide remedies required that they take all reasonable measures open to them to disclose to victims, their families and society as a whole, information about the human rights violations those victims had suffered within the context of these counter-terrorism operations.",
"(d) Media Groups",
"636. The Media Groups ’ submission focused on open justice and the accessibility to the public of documents adduced in the Court procedure. They also referred to the freedom of expression in the context of grave violations of human rights, in particular in relation to media reporting. In so far as the applicant ’ s allegations of a breach of procedural obligations under Article 3 were concerned, the third party criticised the lack of transparency of the parliamentary inquiry in Romania.",
"3. The Court ’ s assessment",
"(a) Admissibility",
"637. The Court takes the view that the applicant ’ s complaint under the procedural aspect of Article 3 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government ’ s objection based on non- compliance with the rule of exhaustion of domestic remedies and with the six-month rule should be joined to the merits of this complaint (see paragraph 41 8 above). Consequently, it cannot be considered that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, the complaint must therefore be declared admissible.",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"638. Where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of agents of the respondent State or, likewise, as a result of acts performed by foreign officials with that State ’ s acquiescence or connivance, that provision, read in conjunction with the Contracting States ’ general duty under Article 1 of the Convention to “ secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention ”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and – where appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII; Ilaşcu and Others, cited above, §§ 318, 442, 449 and 454; El ‑ Masri, cited above, § 182; Al Nashiri v. Poland, cited above, § 485; Husayn (Abu Zubaydah) v. Poland, cited above, § 479; Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 317, ECHR 2014 (extracts), Cestaro v. Italy, no. 6884/11, §§ 205-208, 7 April 2015; Nasr and Ghali, cited above, § 262; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, ECHR 2016 ).",
"639. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must act of their own motion once the matter has come to their attention and must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.",
"The investigation should be independent of the executive. Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms. Furthermore, the victim should be able to participate effectively in the investigation in one form or another (see, El-Masri, cited above, §§ 183 ‑ 185; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011; Al Nashiri v. Poland, cited above, § 486; Husayn (Abu Zubaydah) v. Poland, cited above, § 480; and Mocanu and Others, cited above, §§ 321-323 ).",
"640. Even if there is a strong public interest in maintaining the secrecy of sources of information or material, in particular in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. Where full disclosure is not possible, the difficulties that this causes should be counterbalanced in such a way that a party can effectively defend its interests (see Al Nashiri v. Poland, cited above, § § 494-495; and Husayn (Abu Zubaydah) v. Poland, cited above, § § 488-489, both judgments with further references to the Court ’ s case-law ).",
"641. Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened.",
"An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory (see El ‑ Masri, cited above, §§ 191-192; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489, with further references to the Court ’ s case ‑ law ).",
"(ii) Application of the above principles to the present case",
"642. The Court notes that the respondent Government argued that both the parliamentary inquiry conducted by the Romanian Senate and the criminal investigation instituted by the prosecution had been prompt, thorough, independent and effective, as required by Article 3 of the Convention (see paragraphs 60 6 -61 5 above).",
"It further notes that these two investigations were separated by several years. The Romanian Senate ’ s inquiry was initiated in late December 2005, following the PACE President ’ s appeal of 24 November 2005, asking the Romanian Parliament to investigate the allegations concerning the CIA extraordinary rendition operations in Europe and the disclosures in The Washington Post of 2 November 2005 and the 2005 HRW Statement of 6 November 2005, the latter naming Romania as one of the European countries allegedly hosting CIA secret prisons (see paragraphs 165 -166, 22 6 and 23 6 above). The criminal investigation, initiated by the applicant ’ s criminal complaint, began over some six years and eight months later, in late July 2012 (see paragraphs 17 1 -17 2 above).",
"643. Given that the parliamentary inquiry commenced within a mere three weeks after the disclosures suggesting that the CIA had run a secret detention site in Romania, it cannot be said that the respondent State failed to give a prompt response to the public allegations of Romania ’ s possible complicity in the CIA HVD Programme. The Court therefore accepts the Government ’ s argument that the reaction of the political bodies was swift and that the Romanian Senate Inquiry Committee ’ s work progressed reasonably quickly, in particular considering the voluminous materials gathered and examined, as well as a number of fact-finding missions carried out (see paragraphs 16 7 and 60 7 above). The work was accomplished within a year, from January 2006 to January 2007, and the deadline for the final report was set for the beginning of March 2007 (see paragraphs 16 5-167 above). The 2007 Romanian Senate Report was published at the beginning of May 2008, although its annexes remained classified which, in the view of the applicant and APADOR-CH, demonstrated a lack of transparency of the parliamentary procedure (see paragraphs 16 5 and 63 1 above).",
"644. The Court does not find it necessary to establish whether, and if so to what extent, restrictions on public access to the annexes impacted on the adequacy of the Romanian Senate ’ s inquiry. For the Court ’ s assessment the central question is whether that inquiry was capable of “ leading to the identification and punishment of those responsible ”, which is an indispensable element of an “ effective investigation ” for the purposes of Article 3 (see paragraph 6 38 above).",
"The Court has taken into account the applicant ’ s arguments regarding that issue (see paragraph 61 9 above). It has also had regard to the terms of reference of the Romanian Senate ’ s inquiry, which were defined as “ investigating statements regarding the existence of the CIA detention facilities or of some planes leased by the CIA on the territory of Romania ” (see paragraph 16 6 above). These terms of reference were further extended to include certain particular incidents, for instance the accident suffered by plane N478GS on landing in Bucharest on 6 December 2004 (see paragraphs 16 8, 27 5 and 36 2 above). The inquiry focused on eight principal questions regarding the existence of a CIA secret prison in Romania, illegal transfer of detainees, suspicious aircraft and possible participation of the Romanian authorities in the CIA scheme. They were answered in the negative in the 2007 Romanian Senate Report ’ s conclusions, except for the question relating to the need for a parliamentary inquiry (see paragraph 16 9 above). None of those questions concerned the establishment of possible responsibility of State officials in the event of their complicity in the CIA scheme, nor was the inquiry aimed at ensuring, even in general terms, the accountability of those who could have been involved in the execution of the alleged CIA operations in the country. Moreover, as can be seen from the letter of the President of the Romanian Senate to APADOR-CH of 13 October 2008, the inquiry was strictly limited to the issues set out in its terms of reference and did not collect information regarding the purpose of the flights in question (see paragraph 1 70 above).",
"645. In that connection, the Court would also observe that the investigative work of the Romanian Senate Inquiry Committee overlapped with international inquiries conducted in 2006-2007 by the PACE and the European Parliament (see paragraphs 16 5 -169, 24 6 -26 5 and 26 8 -2 80 above). It can therefore be reasonably assumed that all the simultaneously working bodies of inquiry had similar material at their disposal. For instance, as noted above, the list of twenty-one suspicious flights in the declassified annex to the 2007 Romanian Senate Report included the aircraft identified as carrying out rendition missions in the Fava Report (see paragraphs 27 2 -27 3, 27 6 and 32 7 above). Yet in contrast to the Romanian Senate ’ s categorical conclusions rejecting any possibility of a CIA detention facility having operated in Romania or the flights in question being used for extraordinary rendition, the findings in the 2006 Marty Report and the Fava Report pointed to a number of elements justifying at least a strong suspicion that such a facility had existed in Romania in 2003-2005 and conclusively identified some aircraft that stopped over in Romania as rendition planes (see paragraphs 2 51 -2 56 and 268-276 above). The 2007 EP Resolution expressly, although with regret, called the 2007 Romanian Senate Report ’ s conclusions “ premature and superficial ” (see paragraph 2 80 above). Mr Fava, at the fact-finding hearing pointed out in respect of the Romanian Senate ’ s work that “ it was chosen not to check all the facts and hear all the people who could have provided further elements ”, for instance non ‑ governmental organisations, airport staff or journalists (see paragraph 36 4 above).",
"646. Having regard to the foregoing and, in particular, to the limited scope of the inquiry, the Court finds that the measures taken by the Romanian Parliament cannot be regarded as an adequate and sufficient response to serious allegations of Romania ’ s implication in the CIA HVD Programme – a scheme which in the light of the widespread public knowledge involved undisclosed detention, torture and ill-treatment of terrorist-suspects.",
"647. It remains for the Court to determine whether the subsequent criminal investigation met the requirements of Article 3.",
"As noted above, the proceedings began in late July 2012, which was some six years and eight months after the public disclosures indicating Romania ’ s possible complicity in the CIA extraordinary rendition and secret detention operations and over five years after the closure of the parliamentary inquiry. The Government explained that in the light of the 2007 Romanian Senate Report ’ s conclusions, the authorities had had no legal or factual grounds on which to conduct of their own motion a criminal investigation into the same matters. However, following the applicant ’ s criminal complaint, the prosecution had promptly opened an investigation (see paragraph 60 9 above).",
"648. The Court does not share the Government ’ s point of view. On the contrary, it considers that the extremely grave nature of the allegations of human rights abuses committed during the operation of the HVD Programme and indications of Romania ’ s complicity in the CIA ’ s activities that emerged at the beginning of November 2005 taken together with the subsequent findings as to Romania ’ s possible role in that programme in the Fava Report and the 2006 Marty Report, required of the authorities to act of their initiative instantly, without waiting for a victim to bring the matter to their attention (see paragraph 6 3 9 above).",
"649. Pursuant to Article 221 of the old CCP, as applicable at the material time, a criminal investigation authority had a duty to take action of its own motion if it had discovered that an offence had been committed (see paragraph 19 6 above). The 2005 HRW Statement explicitly referred to “ extremely serious activities ”, “ incommunicado detention ”, “ torture ” ( describing the waterboarding interrogation technique) and “ mistreatment of detainees ” (see paragraph 22 6 above). In the face of public allegations of such serious criminal activity having been perpetrated on Romania ’ s territory, allegations which on account of the world-wide publicity could not have gone unperceived, the Romanian prosecution authorities had a duty to initiate promptly a criminal investigation into the matter, notwithstanding the conclusions of the parliamentary inquiry (see El-Masri, cited above, § 192; Al Nashiri v. Poland, cited above, § 491; and Husayn (Abu Zubaydah) v. Poland, cited above, § 485).",
"650. In spite of that duty and despite further disclosures and growing public knowledge of the CIA extraordinary rendition operations – to mention only the publication of the vast CIA declassified materials in 2009-2010 – the authorities remained passive from the finalisation of the 2007 Romanian Senate Report in March 2007 to 20 July 2012, when the applicant ’ s criminal complaint was registered (see paragraph 17 2 above). Having regard to the exceptional gravity and plausibility of the allegations, such delay must be considered inordinate (see Al Nashiri v. Poland, cited above, § 492; and Husayn (Abu Zubaydah) v. Poland, cited above, § 486). The fact that the applicant ’ s criminal complaint was lodged over six years after the closure of Detention Site Black in Romania is not decisive and does not change the Court ’ s conclusion that the authorities bear full responsibility for the significant delay in investigating the matter. As stated above, the information about serious violations of Article 3 possibly occurring in Romania in 2003-2005 which was brought to their knowledge already in November 2005 gave rise ipso facto to an obligation to carry out an effective investigation (see also El-Masri, cited above, § 186).",
"651. Furthermore, as rightly pointed out by the applicant (see paragraphs 62 1 -62 2 above ), the long delay in opening the criminal investigation most likely diminished the prospects of its effectiveness. For instance, owing to the passage of time, retention periods for storing certain data had already expired between 2008 and 2010. As a result, important aeronautical data was already erased from the records kept by the Romanian authorities (see paragraphs 1 80 -1 81 above).",
"While it is not possible to say with certainty what might have happened had it not been for the culpable delay on the part of the authorities, the authorities ’ inaction can be seen as a factor capable of affecting adversely the process of gathering evidence. It is entirely conceivable that more evidence could have been secured and obtained shortly after the closure of Detention Site Black in Romania if the prosecution authorities, with their full range of powers available under the criminal law – powers which are by definition stronger and more effective than those enjoyed by parliamentary investigative bodies – had decided to act promptly.",
"652. As regards the procedural activity displayed by the prosecution since May-July 2012, the Government maintained that there had been no undue procrastination and that the investigation had progressed swiftly, account being taken of the exceptional complexity of the case and the US authorities ’ unresponsive attitude to the requests for legal assistance. They added that a number of important procedural steps had been taken, such as taking evidence from a considerable number of witnesses and obtaining information as to the alleged existence of a CIA secret prison and suspicious flights from various Government ministries, State authorities, private companies and airports (see paragraphs 60 9 -6 10 and 61 4-615 above). The applicant argued that the case had lain dormant for the last two years and that since 2013-201 4 no meaningful progress had been achieved, save for taking statements from two witnesses. He also maintained that the authorities had not informed his counsel of the actions taken and that, by their failure to disclose to the public at least some elements, such as the terms of reference of the investigation, had not ensured public scrutiny of the proceedings (see paragraphs 6 20 and 62 2 -62 3 above).",
"653. The Court does not underestimate the difficulties faced by the Romanian prosecutors in their investigation, involving as it did a complex, secret scheme of rendition and detention with international ramifications, voluminous material from various sources, including classified documents, and last, but not least, issues of national security and cooperation between the Romanian and the US intelligence services. However, as noted above, the passage of time between the events and institution of the proceedings must have inevitably affected the authorities ’ ability to establish all the relevant circumstances and compounded the problems with collecting evidence. The proceedings, which have been pending for over six years, are apparently still directed against persons unknown and no individuals bearing responsibility for Romania ’ s role in the HVD Programme have so far been identified. Neither does it seem – and nor was it pleaded by the Government – that any information from the investigation or about its conduct has been disclosed to the public (see paragraphs 17 1 -1 90 above).",
"654. In that regard, the Court would emphasise that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Black on Romanian territory is conducive to maintaining confidence in the adherence by the Romanian State ’ s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition and secret detention operations in Romania and to find out what happened at the material time. A victim, such as the applicant in the present case, who had made a credible allegation of being subjected to ill-treatment in breach of Article 3 of the Convention, has the right to obtain an accurate account of the suffering endured and the role of those responsible for his ordeal (see paragraph 6 41 above; see also Association “ 21 December 1989 ” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011; Al Nashiri v. Poland, cited above, § 495; and Husayn (Abu Zubaydah) v. Poland, cited above, § 487 ). That right has to date been denied to the applicant.",
"655. Moreover, the importance and gravity of the issues involved require particularly intense public scrutiny of the investigation. The Romanian public has a legitimate interest in being informed of the criminal proceedings and their results. It therefore falls to the national authorities to ensure that, without compromising national security, a sufficient degree of public scrutiny is maintained in respect to the investigation (see Al Nashiri v. Poland, cited above, § 497; and Husayn (Abu Zubaydah) v. Poland, cited above, § 489 ).",
"656. Having regard to its above findings as to the inadequacy of the parliamentary inquiry and deficiencies in the criminal investigation, the Court considers that Romania has failed to comply with the requirements of a “ prompt ”, “ thorough ” and “ effective ” investigation for the purposes of Article 3 of the Convention.",
"Consequently, the Court dismisses the Government ’ s preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule (see paragraphs 41 2 -41 8 above) and finds that there has been a violation of Article 3 of the Convention, in its procedural aspect.",
"B. Substantive aspect of Article 3",
"1. The parties ’ submissions",
"(a) The Government",
"657. The Government contended that, having regard to Romania ’ s lack of jurisdiction and responsibility under the Convention as invoked above, it was impossible for them to make any observations on the merits of the applicant ’ s complaint under the substantive limb of Article 3 of the Convention.",
"(b) The applicant",
"658. The applicant submitted that Romania had known or must have known about the CIA ’ s secret detention and extraordinary rendition programme, the secret CIA prison in Romania, and the torture and cruel, inhuman and degrading treatment to which the CIA had subjected high-value detainees as part of this programme. Yet Romania had knowingly and intentionally assisted the CIA in detaining the applicant in Detention Site Black, thereby allowing the CIA to subject him on Romanian territory to treatment in violation of Article 3 of the Convention.",
"659. In respect of the nature of the ill-treatment inflicted on him in various CIA prisons, the applicant referred to the transcript of the hearing held by the Combatant Status Review Tribunal in Guantánamo on 14 March 2007, as released on 15 June 2016 (see paragraph 12 3 above). At that hearing he had stated that he had continually endured torture in the CIA ’ s hands from the time he had been arrested in mid-October 2002 until his transfer to military custody on 5 September 2006. During that time he had, among other things, been hung upside down for almost a month, subjected to waterboarding on numerous occasions, put inside a box for a week, hit against the wall, kept in stressful positions, subjected to nudity, held in stressful and painful positions, beaten, abused and ill-treated in many other ways.",
"660. As regards the ill-treatment inflicted on him in Romania, the applicant underlined that because of the unprecedented secrecy associated with CIA detention and rendition operations, the publicly available information was scarce and incomplete. Moreover, as he had already submitted, he had been deprived of any possibility of giving a direct account of his ordeal to the Court. However, it had transpired from the CIA declassified documents and the 2014 US Senate Committee Report that it was in Bucharest, in May 2004, where he was subjected to rectal feeding after he had tried to go on hunger strike. The 2014 US Senate Committee Report described rectal feeding as a practice applied by the CIA on detainees “ without evidence of medical necessity ” and as a means of “ behaviour control ”.",
"It had been in Bucharest where the applicant had been subjected to all of the standard abusive conditions of CIA detention: incommunicado solitary confinement, blindfolds and hooding, forced shaving, continuous noise, continuous light and leg shackling. It had been at Detention Site Black where during the first months of their detention CIA prisoners had been subjected to sleep deprivation, doused with water and slapped or forced to stand in painful positions. Moreover, he had inevitably faced the constant fear that the torture inflicted on him in Poland and other previous places of secret detention would be inflicted on him again, leaving him in a state of permanent anxiety caused by complete uncertainty about his fate at the hands of the CIA.",
"661. The applicant submitted that the Court had expressly recognised this form of ill-treatment in Abu Zubaydah v. Poland as being in breach of Article 3. Indeed, torture and prisoner abuse had been the hallmark, the standard operating procedure of the CIA secret detention programme. The predictability of the fate of the detainees under the programme gave sufficient grounds to believe that the applicant had been abused and ill ‑ treated in Romania, as well as after his transfer from the country.",
"662. Torture and ill-treatment endured by the applicant had caused him significant damage, as confirmed by his above statement given before the Combatant Stratus Review Tribunal and the fact that, as a result of his experiences during his secret detention, he had suffered from Post-Traumatic Stress Syndrome.",
"663. Lastly, the applicant contended that in the light of the Court ’ s case ‑ law, Romania had a positive obligation under Article 3 to protect him from treatment in violation of that provision on its territory and to prevent his transfer from Romania to other CIA secret detention facilities, thus exposing him to further, continuing violations of Article 3. Romania ’ s failure to stop or prevent the violations of his rights had amounted to a breach of that provision.",
"2. The Court ’ s assessment",
"(a) Admissibility",
"664. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"(b) Merits",
"(i) Applicable general principles deriving from the Court ’ s case-law",
"665. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in time of war or other public emergency threatening the life of the nation (see, among many other examples, Soering, cited above, § 88; Selmouni v. France, cited above, § 95; Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Ilaşcu and Others, cited above, § 424; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 375, ECHR 2005 ‑ III; El ‑ Masri, cited above, § 195; see also Al-Adsani v. the United Kingdom [GC], no. 35763/97, § § 26-31, ECHR 2001 ‑ XI).",
"Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Öcalan v. Turkey [GC], no. 46221/99, § 179 ECHR 2005 ‑ IV; El-Masri, cited above, § 195; Al Nashiri v. Poland, cited above, § 507; Husayn (Abu Zubaydah) v. Poland, cited above, § 499; and Nasr and Ghali, cited above, § 280).",
"666. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162; Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; and Jalloh v. Germany, cited above, § 67). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (compare, inter alia, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI; Egmez v. Cyprus, no. 30873/96, § 78, ECHR 2000-XII; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004; and El ‑ Masri, cited above, § 196).",
"Treatment has been held by the Court to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “ degrading ” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Labita, cited above, § 120).",
"In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “ torture ” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000 ‑ VII; El-Masri, cited above, § 197; Al Nashiri v. Poland, cited above, § 508; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 500).",
"667. Furthermore, a threat of conduct prohibited by Article 3, provided it is sufficiently real and immediate, may fall foul of that provision. Thus, to threaten an individual with torture may constitute at least inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 91, ECHR 2010; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 501).",
"668. The obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI and Z. and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). The State ’ s responsibility may therefore be engaged where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known (see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III; El-Masri, cited above, § 198; Al Nashiri v. Poland, § 509; and Husayn (Abu Zubaydah ) v. Poland, cited above, § 502; and Nasr and Ghali, cited above, § 283 ).",
"(ii) Application of the above principles to the present case",
"669. The Court has already found that the applicant ’ s allegations concerning his secret detention in Romania from 12 April 2004 to 6 October 2005 or, at the latest, 5 November 2005 and his transfer from Romania to another CIA black site on one of those latter dates have been proved before the Court and that those facts are established beyond reasonable doubt (see paragraphs 5 31 -54 2 above).",
"It remains to be determined whether the treatment to which he was subjected during his detention falls within the ambit of Article 3 of the Convention and, if so, whether and to what extent it can be attributed to the respondent State (see paragraphs 5 91 -60 2 above ).",
"( α ) Treatment to which the applicant was subjected at the relevant time",
"670. In the light of the material in its possession the Court has already found that it does not appear that at Detention Site Black the applicant was subjected to EITs in connection with interrogations (see paragraphs 54 5 -54 6 above). However, it has established beyond reasonable doubt that during his detention in Romania the applicant was kept – as any other CIA detainee – under the regime of “ standard conditions of confinement ” laid down in the DCI Confinement Guidelines. That regime included, as a matter of fixed, predictable routine, the blindfolding or hooding of detainees, which was designed to disorient them and keep them from learning of their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 5 6 -5 8 and 54 7 above). The conditions of confinement were an integral part of the CIA interrogation scheme and served the same purposes as interrogation measures, namely to “ dislocate psychologically ” the detainee, to “ maximise his feeling of vulnerability and helplessness ” and “ reduce or eliminate his will to resist ... efforts to obtain critical intelligence ” (see paragraphs 4 2, 5 3 and 5 6 -5 8 above).",
"671. A complementary description of the applicant ’ s conditions of detention throughout the entire period that he spent in CIA custody can also be found in the 2007 ICRC Report. According to that description, based on the applicant ’ s own account and on that of thirteen other high-value detainees, they “ had no knowledge of where they were being held, no contact with persons other than their interrogators or guards ”; and “ even the guards were usually masked and, other than the absolute minimum, did not communicate in any way with detainees ”. None of the detainees “ had any real – let alone regular – contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee ”. They had “ no access to news from the outside world, apart from the later stages of their detention when some of them occasionally received printouts of sports news from the Internet and one reported receiving newspapers ”. The situation was further exacerbated by other aspects of the detention regime, such as deprivation of access to open air and exercise, lack of appropriate hygiene facilities and deprivation of basic items in pursuance of interrogations (see paragraph 29 3 above).",
"672. Referring to the general situation in the CIA secret prisons, the 2014 US Senate Committee Report states that “ the conditions of confinement for CIA detainees were harsher that the CIA represented to the policymakers and others ” and describes them as being “ poor ” and “ especially bleak early in the programme ” (see paragraph 8 5 above). It further states that in respect of the conditions of detention the DCI Confinement Guidelines of 28 January set forth minimal standards and required only that the facility be sufficient to meet “ basic health needs ”. That, according to the report meant in practice that a facility in which detainees were kept shackled in complete darkness and isolation, with a bucket for human waste and without heat during the winter months, met that standard (see paragraph 5 6 above).",
"673. As regards the impact of the regime on the CIA detainees, the 2014 US Senate Committee Report states that “ multiple CIA detainees who were subjected to the CIA ’ s enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia insomnia and attempts at self-harm and self ‑ mutilation ” and that “ multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems ” (see paragraph 8 5 above). In the CIA ’ s declassified documents, adverse effects of extreme isolation to which HVDs were subjected have been recognised as imposing a “ psychological toll ” and capable of altering “ the detainee ’ s ability to interact with others ” (see paragraph 5 8 above).",
"674. As regards the applicant ’ s situation during his detention at Detention Site Black, the 2014 US Senate Committee Report confirms that in May 2004, following his hunger strike, the CIA “ responded by force feeding him rectally ” (see paragraphs 12 6 and 15 8 above). Also, according to the report, he clearly suffered serious psychological problems resulting from treatment inflicted on him during his detention, such as “ outbursts ” during debriefings ” and a “ continued state of depression ”. He displayed behaviour described as “ unpredictable ”, “ disruptive ” and “ repeated belligerent acts ”. In July 2005 he was assessed as being “ on the verge of a breakdown ” (see paragraphs 12 7 and 15 8 above).",
"675. For the purposes of its ruling the Court does not find it necessary to analyse each and every aspect of the applicant ’ s treatment in detention, the physical conditions in which he was detained in Romania, or the conditions in which he was transferred to and out of Romania. The predictability of the CIA ’ s regime of confinement and treatment routinely applied to the high ‑ value detainees give sufficient grounds for the Court to conclude that the above - described standard measures were used in respect of the applicant in Romania and likewise elsewhere, following his transfer from Romania, as an integral part of the HVD Programme (see also Al Nashiri v. Poland, cited above, §§ 514-515).",
"Considering all the elements, the Court finds that during his detention in Romania the applicant was subjected to an extremely harsh detention regime, including a virtually complete sensory isolation from the outside world, and suffered from permanent emotional and psychological distress and anxiety caused by the past experience of torture and cruel treatment in the CIA ’ s hands and fear of his future fate. Even though during that period he had not been subjected to interrogations with the use of the harshest methods but “ debriefings ”, the applicant – having beforehand experienced the most brutal torture, for instance waterboarding, mock executions, hanging upside down and prolonged confinement in a box (see Al Nashiri v. Poland, cited above, §§ 86-89, 99-102, 401 and 416-417) – inevitably faced the constant fear that, if he failed to “ comply ”, the previous cruel treatment would at any given time be inflicted on him again. Thus, Article 3 of the Convention does not refer exclusively to the infliction of physical pain but also to that of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily assault (see El-Masri, cited above, § 202; and Husayn (Abu Zubaydah) v. Poland, cited above, § § 509 ‑ 510).",
"Consequently, having regard to the treatment to which the applicant must have been subjected and its cumulative effects on him, the Court finds that it is to be characterised as intense physical and mental suffering falling within the notion of “ inhuman treatment ” under Article 3 of the Convention (see paragraph 665 above).",
"( β ) Court ’ s conclusion as to Romania ’ s responsibility",
"676. The Court has already found that Romania knew of the nature and purposes of the CIA ’ s activities on its territory at the material time and cooperated in the preparation and execution of the CIA extraordinary rendition, secret detention and interrogation operations on Romanian territory. It has also found that, given its knowledge and its involvement in the execution of the HVD Programme Romania knew that, by enabling the CIA to detain terrorist-suspects on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see paragraph 5 89 above).",
"677. It is true that in the assessment of the experts – which the Court accepts – the Romanian authorities did not know the details of what exactly happened inside Detention Site Black or witnessed treatment to which the CIA ’ s detainees were subjected. The running of the detention facility was entirely in the hands of and controlled by the CIA. It was the CIA personnel who were responsible for the physical conditions of confinement, interrogations, debriefings, ill-treatment and inflicting torture on detainees (see paragraphs 34 4, 3 80, 38 4 and 58 7 above).",
"However, under Article 1 of the Convention, taken together with Article 3, Romania was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see paragraph 66 8 above)",
"Notwithstanding the above Convention obligation, Romania, for all practical purposes, facilitated the whole process of the operation of the HVD Programme on its territory, created the conditions for it to happen and made no attempt to prevent it from occurring. As found above, on the basis of their own knowledge of the CIA activities deriving from Romanian ’ s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “ war on terror ” to terrorist suspects in US custody the authorities – even if they did not see or participate in the specific acts of ill-treatment and abuse endured by the applicant and other HVDs – must have been aware of the serious risk of treatment contrary to Article 3 occurring in the CIA detention facility on Romanian territory.",
"Accordingly, Romania, on account of its “ acquiescence and connivance ” in the HVD Programme must be regarded as responsible for the violation of the applicant ’ s rights under Article 3 of the Convention committed on its territory (see paragraph 59 4 above; see also El-Masri, cited above, §§ 206 and 211; Al Nashiri v. Poland, cited above, § 517; and Husayn (Abu Zubaydah) v. Poland, cited above, § 512 ).",
"678. Furthermore, Romania was aware that the transfer of the applicant to and from its territory was effected by means of “ extraordinary rendition ”, that is, “ an extrajudicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment ” (see El-Masri, cited above, § 221; Al Nashiri v Poland, cited above, § 518; and Husayn (Abu Zubaydah) v. Poland, cited above, § 513 ).",
"In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer (see paragraph 59 5 above). Consequently, by enabling the CIA to transfer the applicant out of Romania to another detention facility, the authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention.",
"679. There has accordingly been a violation of Article 3 of the Convention, in its substantive aspect.",
"V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"680. The applicant complained that Romania had enabled the CIA to hold him on its territory in secret, unacknowledged detention, which had been imposed and implemented outside any legal procedures. Moreover, by enabling the CIA to transfer him from Romanian territory to other secret CIA detention facilities elsewhere, it had exposed him to a real and serious of risk of further undisclosed detention.",
"He alleged a breach of Article 5 of the Convention, which reads as follows:",
"“ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. ”",
"A. The parties ’ submissions",
"1. The Government",
"681. The Government reiterated their position that Romania lacked jurisdiction and refrained from making any observations on the admissibility and merits of the complaint.",
"2. The applicant",
"682. The applicant submitted that his secret detention in Romania had violated Article 5 § 1 because it had not been “ in accordance with a procedure prescribed by law ”. Romania had entered into an agreement with the CIA to permit it to fly in and secretly detain detainees, including the applicant on Romanian territory. It had also provided extraordinary security cover for these secret detention operations.",
"He underlined that the Court had repeatedly held, including in El-Masri (cited above), that unacknowledged detention was a “ complete negation ” of Article 5 guarantees and “ a most grave violation of article 5 ”. The Grand Chamber had further reiterated in El-Masri that “ Article 5 of the Convention laid down an obligation on the State not only to refrain from active infringements of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone in its jurisdiction ”.",
"683. The respondent State had known and should have known that the applicant had not received any legal process for his detention in the light of the extraordinary secrecy associated with the CIA ’ s rendition and detention operations. It had been on notice of the secret detention of prisoners from its own negotiations concerning the hosting of a detention facility with the US authorities, as well as from public sources and its diplomatic missions. Yet Romania had assisted the CIA secret detention operations, including by providing a detention site and extraordinary security cover for the CIA and maintaining the secrecy associated with these operations. It had also failed to take measures to protect the applicant from incommunicado detention while he had been on Romanian territory. Accordingly, Romania had violated his rights under Article 5 of the Convention.",
"684. Moreover, Romania ’ s participation in the applicant ’ s transfer from the country had exposed him to the further continuing risk of incommunicado detention in violation of Article 5 § 1. Romania had known and should have known that the CIA had been likely to continue to subject its prisoners – including the applicant – to incommunicado detention after their transfer from Romanian territory. By failing to meet its positive obligation to protect him from detention in violation of Article 5 and knowingly and intentionally participating in his transfer despite the above risk Romania was responsible for the length of arbitrary detention he had endured after being transferred from its territory.",
"B. The Court ’ s assessment",
"1. Admissibility",
"685. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"686. The guarantees contained in Article 5 are of fundamental importance for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, cited above, § 118; and El-Masri, cited above, § 230 ). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; and El-Masri, cited above, § 230 ).",
"687. It must also be stressed that the authors of the Convention reinforced the individual ’ s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4 with their emphasis on promptness and judicial supervision assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy, cited above, § 76). What is at stake is both the protection of the physical liberty of individuals and their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection (see El-Masri, cited above, § 231; Al Nashiri v. Poland, cited above, § 528; Husayn (Abu Zubaydah) v. Poland, cited above, § 522; and Nasr and Ghali, cited above, § 297 ).",
"688. Although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that they have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention ’ s supervisory institutions, whenever they consider that there has been a terrorist offence (see Aksoy, cited above, § 78; and El-Masri, cited above, § 232 ).",
"The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v Turkey, 25 May 1998, § § 123-124, Reports of Judgments and Decisions 1998 ‑ III; and El-Masri, cited above, § 233; see also Al Nashiri v. Poland, cited above, § 529; Husayn (Abu Zubaydah) v. Poland, cited above, § 523; and Nasr and Ghali, cited above, § 298 ).",
"(b) Application of the above principles to the present case",
"689. In the previous cases concerning similar allegations of a breach of Article 5 arising from secret detention under the CIA HVD Programme in other European countries the Court found that the respondent States ’ responsibility was engaged and that they were in violation of that provision on account of their complicity in that programme and cooperation with the CIA (see El-Masri, cited above, § 241; Al Nashiri v. Poland, cited above, §§ 531-532; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 525-526; and Nasr and Ghali, cited above, §§ 302-303). The Court does not see any reason to hold otherwise in the present case.",
"690. As the Court has held in Al Nashiri v. Poland (cited above, § 530 ) and Husayn (Abu Zubaydah) v. Poland (cited above, § 524), secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rationale behind the programme was specifically to remove those persons from any legal protection against torture and enforced disappearance and to strip them of any safeguards afforded by both the US Constitution and international law against arbitrary detention, to mention only the right to be brought before a judge and be tried within a reasonable time or the habeas corpus guarantees. To this end, the whole scheme had to operate outside the jurisdiction of the US courts and in conditions securing its absolute secrecy, which required setting up, in cooperation with the host countries, overseas detention facilities (see also paragraphs 2 2-23, 2 8 - 59, 62 and 7 8 -9 7 above ).",
"The rendition operations had largely depended on the cooperation, assistance and active involvement of the countries which put at the USA ’ s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated and ensured the secrecy and smooth operation of the HVD Programme. While, as noted above, the interrogations of captured terrorist suspects was the CIA ’ s exclusive responsibility and the local authorities were not to be involved, the cooperation and various forms of assistance provided by those authorities, such as customising the premises for the CIA ’ s needs, ensuring security and providing the logistics were the necessary condition for the effective operation of the CIA secret detention facilities (see Al Nashiri v. Poland, cited above, § 530; and Husayn (Abu Zubaydah) v. Poland, cited above, § 524 ).",
"691. In respect of the applicant ’ s complaint under the substantive aspect of Article 3 the Court has already found that Romania was aware that he had been transferred from its territory by means of “ extraordinary rendition ” and that the Romanian authorities, by enabling the CIA to transfer the applicant to its other secret detention facilities, exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 of the Convention (see paragraph 6 78 above). These conclusions are likewise valid in the context of the applicant ’ s complaint under Article 5. In consequence, Romania ’ s responsibility under the Convention is engaged in respect of both the applicant ’ s secret detention on its territory and his transfer from Romania to CIA detention elsewhere.",
"692. There has accordingly been a violation of Article 5 of the Convention.",
"VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"693. The applicant further complained that Romania had violated his rights under Article 8 by enabling the CIA to ill-treat and detain him incommunicado on its territory and to deprive him of any contact with his family.",
"Article 8 of the Convention reads as follows:",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"A. The parties ’ submissions",
"1. The Government",
"694. The Government restated their position that Romania lacked jurisdiction and responsibility under the Convention. They refrained from making any observations on the admissibility and merits of the complaint.",
"2. The applicant",
"695. The applicant contended that his incommunicado secret detention in Romania with no access to or contact with his family had violated Article 8 of the Convention.",
"Romania had known or must have known from public sources and its diplomatic missions of the possible torture, abuse and secret detention of the US terrorist suspects. Nonetheless, it had agreed to host a secret CIA prison and provide security for the CIA ’ s secret detention and rendition operations. Romania had known or must have known that detainees like the applicant had been deprived of access to their family as it had helped maintain secrecy regarding these operations. Clearly, a secret prison outside the law did not allow for family visits. By participating in the CIA ’ s secret detention of prisoners and failing to take measures to protect the applicant from such detention without access to his family while he had been on Romanian territory, Romania had violated his rights under Article 8.",
"B. The Court ’ s assessment",
"1. Admissibility",
"696. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"697. The notion of “ private life ” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. These aspects of the concept extend to situations of deprivation of liberty (see El-Masri, cited above, § 248, with further references to the Court ’ s case-law; Al Nashiri v. Poland, cited above, § 538; and Husayn (Abu Zubaydah) v. Poland, cited above, § 532 ).",
"Article 8 also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “ the very essence of the Convention is respect for human dignity and human freedom ” (see Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002 - III). Furthermore, the mutual enjoyment by members of a family of each other ’ s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see El-Masri, cited above, § 248; Al Nashiri v. Poland, ibid.; and Husayn (Abu Zubaydah) v. Poland, ibid. ).",
"698. Having regard to its conclusions concerning the respondent State ’ s responsibility under Articles 3 and 5 of the Convention (see paragraphs 676 ‑ 67 9 and 69 1 above), the Court is of the view that Romania ’ s actions and omissions in respect of the applicant ’ s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the interference with the applicant ’ s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “ in accordance with the law ” and as inherently lacking any conceivable justification under paragraph 2 of that Article (see El-Masri, cited above, § 249; Al Nashiri v. Poland, cited above, § 539, and Husayn (Abu Zubaydah) v. Poland, cited above, § 533 ).",
"699. There has accordingly been a violation of Article 8 of the Convention.",
"VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION",
"700. The applicant complained that Romania had been in breach of Article 13 of the Convention, taken separately and in conjunction with Articles 3, 5 and 8 on account of having failed to carry out an effective, prompt and thorough investigation into his allegations of serious violations of Articles 3, 5 and 8 of the Convention.",
"Article 13 of the Convention reads as follows:",
"“ Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ”",
"A. The parties ’ submissions",
"701. The parties essentially reiterated their observations concerning the procedural aspect of Article 3 of the Convention.",
"702. The Government maintained that that the parliamentary inquiry and criminal investigation had been thorough and effective and had, therefore, met the requirements of an “ effective remedy ” for the purposes of Article 13 of the Convention.",
"703. The applicant disagreed and said that the investigation had been initiated after a considerable delay and with marked reluctance on the part of the Romanian authorities Despite the fact that the investigation had been pending for over five years, no meaningful progress had been achieved.",
"B. The Court ’ s assessment",
"1. Admissibility",
"704. The Court notes that this complaint is linked to the complaint under the procedural aspect of Article 3, which has been found admissible (see paragraph 6 37 above). It must likewise be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"705. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “ effective ” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among other authorities, Kaya v. Turkey, 19 February 1998, § 106, Reports of Judgments and Decisions 1998 ‑ I; and Mahmut Kaya, cited above, § 124).",
"706. Where an individual has an arguable claim that he has been ill ‑ treated by agents of the State, the notion of an “ effective remedy ” entails, in addition to the payment of compensation where appropriate, a procedure enabling a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002; Assenov and Others, cited above, §§ 114 et seq.; Aksoy, cited above, §§ 95 and 98; and El-Masri, cited above, § 255).",
"707. The requirements of Article 13 are broader than a Contracting State ’ s obligation under Articles 3 and 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible (see El-Masri, cited above, § 255, with further references to the Court ’ s case-law).",
"708. Given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of the claim of, or on behalf of, the individual concerned that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant his expulsion or to any perceived threat to the national security of the State from which the person is to be removed (see Chahal, cited above, § 151; and El-Masri, cited above, § 257; see also Al Nashiri v. Poland, cited above, §§ 546-548; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 540-543 ).",
"(b) Application of the above principles to the present case",
"709. The Court has already concluded that the respondent State is responsible for violations of the applicant ’ s rights under Articles 3, 5 and 8 of the Convention (see paragraphs 676-67 9, 69 1 and 69 8 above). The complaints under these Articles are therefore “ arguable ” for the purposes of Article 13 and that he should accordingly have been able to avail himself of effective practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, as required by that provision (see paragraph 705 above; see also El-Masri, cited above, § 259; Al Nashiri v. Poland, cited above, § 550; and Husayn (Abu Zubaydah) v. Poland, cited above, § 544 ).",
"For the reasons set out in detail above, the Court has found that the criminal investigation in Romania fell short of the standards of the “ effective investigation ” that should have been carried out in accordance with Article 3 ( see paragraph 65 6 above). In these circumstances, the remedy relied on by the Government (see paragraphs 41 2 -41 3 above) cannot be regarded as “ effective ” in practice. For the reasons that prompted the Court to dismiss the Government ’ s preliminary objection of non-exhaustion of domestic remedies (see paragraphs 64 2 -65 6 above), the Court must also find that the requirements of Article 13 of the Convention were not satisfied in the present case and that the applicant did not have available to him in Romania an “ effective remedy ” to ventilate his claims of a violation of Articles 3, 5 and 8 of the Convention.",
"710. Consequently, there has been a violation of Article 13, taken in conjunction with Articles 3, 5 and 8 of the Convention.",
"VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"711. The applicant complained that Romania, by enabling the CIA to transfer him from its territory, had exposed to him to a real and serious risk of being transferred to a jurisdiction where he would be subjected to a flagrantly unfair trial, in breach of Article 6 § 1 of the Convention. That provision, in so far as relevant, reads as follows:",
"“ In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial by an independent and impartial tribunal established by law. ”",
"A. The parties ’ submissions",
"1. The Government",
"712. The Government reiterated their position that Romania lacked jurisdiction and refrained from making observations on the admissibility and merits of the complaint.",
"2. The applicant",
"713. The applicant maintained that by the time of his transfer from Romania, the Romanian authorities had known or must have known that there were substantial grounds for believing that he had faced a real risk of being subjected to a flagrant denial of justice. The deficiencies of the military commission rules applicable to terrorist - suspects in US custody at that time had been publicly criticised by the Council of Europe, the Human Rights Chamber for Bosnia and Herzegovina, various non-governmental organisations and also in news reports. The US Government had also published documents detailing the rules for military commissions under which the applicant was likely to be tried.",
"The military commissions had been flagrantly unfair because they had not been sufficiently independent and impartial, had been contrary to US law and discriminatory, had admitted evidence obtained from torture and inhuman and degrading treatment, had not respected the principle of equality of arms, had not been public and had admitted hearsay evidence. Despite knowing the flagrant unfairness of the US military commissions which would be likely to try the applicant, Romania had assisted in his transfer out of its territory.",
"714. Although military commission rules applicable to the applicant had changed since the time he had been transferred from Romania, they retained a number of deficiencies which, especially when considered in the context of a death penalty case, cumulatively amounted to a flagrant denial of justice under Article 6 of the Convention.",
"B. The Court ’ s assessment",
"1. Admissibility",
"715. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"716. In the Court ’ s case-law, the term “ flagrant denial of justice ” is synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (see, among other examples, Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006 ‑ II, and Othman (Abu Qatada), cited above, § 258 ).",
"In Othman (Abu Qatada ), citing many examples from its case-law, the Court referred to certain forms of unfairness that could amount to a flagrant denial of justice. These include conviction in absentia with no subsequent possibility to obtain a fresh determination of the merits of the charge; a trial which is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed, and deliberate and systematic denial of access to a lawyer, especially for an individual detained in a foreign country (ibid. § 259).",
"In other cases, the Court has also attached importance to the fact that if a civilian has to appear before a court composed, even only in part, of members of the armed forces taking orders from the executive, the guarantees of impartiality and independence are open to serious doubt (see Incal v. Turkey, 9 June 1998, § § 68 et seq. Reports of Judgments and Decisions 1998 ‑ IV, and Öcalan, cited above, § 112).",
"717. However, “ flagrant denial of justice ” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see Othman (Abu Qatada), cited above, § 260 )",
"718. The Court has taken a clear, constant and unequivocal position on the admission of torture evidence. No legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence irreparably damages that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded in order to protect the integrity of the trial process and, ultimately, the rule of law itself. The prohibition of the use of torture is fundamental (see Othman (Abu Qatada, cited above, § § 264-265).",
"Statements obtained in violation of Article 3 are intrinsically unreliable. Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture (see Söylemez v. Turkey, no. 466 61/99, § 122, 21 September 2006; and Othman (Abu Qatada), cited above, § 264).",
"The admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome.",
"It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial ( see Othman (Abu Qatada), cited above, § 267; see also Al Nashiri v. Poland, cited above, § 564; and Husayn (Abu Zubaydah) v. Poland, cited above, § 554).",
"(b) Application of the above principles to the present case",
"719. In Al Nashiri v. Poland the Court examined a similar complaint and found a violation of Article 6 § 1 of the Convention on the following grounds.",
"At the time of the applicant ’ s transfer from Poland, the procedure before military commissions was governed by the Military Order of 13 November 2001 and the Military Commission Order no. 1 of 21 March 2002 (see also paragraphs 7 1 -7 2 above).",
"The commissions were set up specifically to try “ certain non-citizens in the war against terrorism ”, outside the US federal judicial system. They were composed exclusively of commissioned officers of the United States armed forces. The appeal procedure was conducted by a review panel likewise composed of military officers. The commission rules did not exclude any evidence, including that obtained under torture, if it “ would have probative value to a reasonable person ”.",
"On 29 June 2006 the US Supreme Court ruled in Hamdan v. Rumsfeld that the military commission “ lacked power to proceed ” and that the scheme had violated both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949 (see also paragraph 7 3 above).",
"The Court considered that at the time of the applicant ’ s transfer from Poland there was a real risk that his trial before the military commission would amount to a flagrant denial of justice having regard to the following elements:",
"( i ) the military commission did not offer guarantees of impartiality of independence of the executive as required of a “ tribunal ” under the Court ’ s case-law (see also paragraph 71 6 above, with references to the Court ’ s case ‑ law );",
"( ii ) it did not have legitimacy under US and international law resulting in, as the Supreme Court found, its lacking the “ power to proceed ” and, consequently, it was not “ established by law ” for the purposes of Article 6 § 1; and",
"( ii ) there was a sufficiently high probability of admission of evidence obtained under torture in trials against terrorist suspects (see Al Nashiri v. Poland, cited above, §§ 566- 567).",
"720. The Court has also attached importance to the fact that at the material time, in the light of publicly available information, it was evident that any terrorist suspect would be tried before a military commission. Furthermore, the procedure before the commission raised serious worldwide concerns among human rights organisations and the media (ibid. § 568; see also paragraphs 7 5 -7 7 above).",
"721. Having regard to the fact that the applicant was transferred out of Romania on 6 October 2005 or, at the latest, on 5 November 2005 when the same rules governing the procedure before the military commission applied (see paragraphs 71-74 and 54 2 above), the same considerations are valid in the present case.",
"As in Al Nashiri v. Poland, the Court would also refer to the 2003 PACE Resolution of 26 June 2003, expressing “ disapproval that those held in detention may be subject to trial by a military commission, thus receiving a different standard of justice than United States nationals, which amount[ed] to a serious violation of the right to receive a fair trial ” (see paragraph 2 1 6 above). Romania, as any other member State of the Council of Europe, must have necessarily been aware of the underlying circumstances that gave rise to the grave concerns stated in the resolution.",
"Also, given the strong, publicly expressed concerns regarding the procedure before the military commission in 2001-2003 (see paragraphs 7 5 ‑ 7 6 above), it must have been a matter of common knowledge that trials before the commissions did not offer the most basic guarantees required by Article 6 § 1 of the Convention.",
"In view of the foregoing, the Court finds that Romania ’ s cooperation and assistance in the applicant ’ s transfer from its territory, despite a real and foreseeable risk that he could face a flagrant denial of justice engaged its responsibility under Article 6 § 1 of the Convention (see also paragraphs 5 97 - 598 above, with references to the Court ’ s case-law).",
"722. There has accordingly been a violation of Article 6 § 1 of the Convention.",
"IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION",
"A. The parties ’ submissions",
"1. The Government",
"723. The Government reiterated their position that Romania lacked jurisdiction and made no observations on the admissibility and merits of the complaint.",
"2. The applicant",
"724. The applicant submitted that Romania ’ s participation in his transfer out of its territory despite substantial grounds for believing that there had been a real risk that he would be subjected to the death penalty had violated his right to life under Article. In previous cases, the Court had found that Article 2 prohibited the transfer of an individual to another State in such circumstances. It had also previously found that the implementation of the death penalty in respect of a person who had not had a fair trial would violate Article 2.",
"Furthermore, in other cases the Court had found a violation of Article 3 on account of the psychological suffering associated with a post-transfer risk of being subjected to the death penalty. It had also held that the imposition of the death penalty following an unfair trial violated Article 3 and that there was a further violation of Article 3 where the transferred individual was at risk of being subjected to the “ death row phenomenon ”.",
"Romania had assisted the CIA in transporting the applicant out of Romania despite being on notice that terrorist suspects in US custody had been likely to be subjected to the death penalty as well as an unfair trial by the military commission. Romania ’ s participation in the applicant ’ s transfer out of its territory also violated Article 1 of Protocol No. 6.",
"Lastly, the applicant emphasised that since his trial was still pending he continued to be at risk of having the death penalty imposed on him. Romania was therefore under a post-transfer duty to use all available means to ensure that he would not be subjected to that penalty.",
"B. The Court ’ s assessment",
"1. Admissibility",
"725. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"2. Merits",
"(a) Applicable general principles deriving from the Court ’ s case-law",
"726. Article 2 of the Convention prohibits any transfer of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see, mutatis mutandis, Soering, cited above, § 111; Kaboulov v. Ukraine, cited above, § 99; Al Saadoon and Mufdhi, cited above, § 123; Al Nashiri v. Poland, cited above, § 576; see also paragraph 59 7 above ).",
"727. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “ convinced that everyone ’ s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings ” ( see Al- Saadoon and Mufdhi, cited above, § 115; and Al Nashiri v. Poland, cited above, § 577 ).",
"(b) Application of the above principles to the present case",
"728. As in Al Nashiri v. Poland (cited above, § 578), the Court finds that at the time of the applicant ’ s transfer from Romania there was a substantial and foreseeable risk that he could be subjected to the death penalty following his trial before the military commission (see also paragraphs 7 1 ‑ 7 2 above). Considering the fact that the applicant was indicted on capital charges on 20 April 2011, that those charges were approved on 28 September 2011 and that since then he has been on trial facing the prospect of the death penalty being imposed on him (see paragraphs 15 2 -15 6 above), that risk has not diminished.",
"Having regard to its conclusions concerning the respondent State ’ s responsibility for exposing the applicant to the risk of a flagrant denial of justice in breach of Article 6 § 1 of the Convention on account of his transfer to the military commission ’ s jurisdiction, the Court considers that Romania ’ s actions and omissions likewise engaged its responsibility under Article 2 taken together with Article 1 of Protocol No. 6 and under Article 3 of the Convention (see paragraph 7 21 above)..",
"729. There has accordingly been a violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention.",
"X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"730. Lastly, the applicant complained under Article 10 of the Convention that Poland, by its refusal to acknowledge, disclose and promptly and effectively investigate details of his secret detention, ill ‑ treatment and rendition, had violated his and the public ’ s right to the truth under Articles 2, 3, 5 and 10 of the Convention.",
"Article 10 of the Convention provides:",
"“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.",
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”",
"731. The Court observes that similar complaints were raised in El-Masri and Al Nashiri v. Poland and were declared inadmissible as being manifestly ill-founded (see El-Masri, cited above, § 264-265; and Al Nashiri v. Poland, cited above, §§ 581-582 ).",
"732. It finds no reason to hold otherwise in the present case and concludes that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.",
"XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION",
"733. Article 46 of the Convention reads, in so far as relevant, as follows:",
"“ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. .. ”",
"A. The parties ’ submissions",
"734. The applicant submitted that the Romanian Government was under an obligation to use all available means at its disposal to ensure that the USA would not subject him to the death penalty. He relied, among other things, on the Court ’ s judgment in Al-Saadoon and Mufdhi (cited above). In his submission, those means should include but not be limited to:",
"(i) making written submissions against the death penalty to the US Secretary of Defense, copied to the applicant ’ s military defence counsel;",
"(ii) obtaining diplomatic assurances from the US Government that they would not subject him to the death penalty;",
"(iii) taking all possible steps to establish contact with the applicant in Guantánamo Bay, including by sending delegates to meet him and monitor his treatment in custody; and",
"(iv) retaining – and bearing the costs of – lawyers authorised and admitted to practice in the relevant jurisdictions in order to take all necessary action to protect the applicant ’ s rights while in US custody, including in military, criminal or other proceedings involving his case.",
"735. In the applicant ’ s view, the nature and severity of the violations sustained by him were comparable to the Convention violations established the Court ’ s judgment in Association “ 21 December 1989 ” and Others v. Romania (cited above). He was the victim of a large, multi- State programme of secret transfers and detention that raised fundamental questions under the Convention system. This was a situation that, as in Kelly and Others v. the United Kingdom (no. 30054/96, § 118, 4 May 2001) ... “ cried out for an explanation ” and Romania had an ongoing duty to conduct an effective investigation into this case. He thus argued that, accordingly, Romania must put an end to the continuing violation of his rights through an effective investigation, also taking into account the importance for society in Romania and beyond to know the truth about his ill-treatment and secret detention in Romania.",
"736. The Government first emphasised that the requested measures were entirely related to the enforcement of a judgment of the Court. As the Court had held on many occasions, this issue fell under the competence of the States, which retained the choice of the means by which they would discharge their legal obligation, subject to monitoring by the Committee of Ministers.",
"Secondly, as opposed to Al-Saadoon and Mufdhi, in the instant case there was no compelling evidence that the applicant had been transferred to the USA from Romania. There was therefore no obligation on the part of the Romanian Government to obtain binding assurances that the death penalty would not be imposed on the applicant.",
"Thirdly, some of the measures suggested by the applicant would be nonsense or would even go against international law. As the Court had already held in Iskandarov v. Russia (no. 17185/05, judgment of 23 September 2010, § 161) “ the individual measure sought by the applicant would require the respondent Government to interfere with the internal affairs of a sovereign State ”. There was no reason to depart from these findings in the present, similar case.",
"737. In sum, the Government invited the Court to find that the applicant ’ s request for individual measures had no merit and to reject it as unsubstantiated.",
"B. The Court ’ s assessment",
"738. The present case concerns the removal of an applicant from the territory of the respondent State by means of extraordinary rendition. The general principles deriving from the Court ’ s case-law under Article 46 as to when, in such a situation, the Court may be led to indicate to the State concerned the adoption of individual measures, including the taking of “all possible steps” to obtain the appropriate diplomatic assurances from the destination State have been summarised in Al Nashiri v. Poland (cited above, §§ 586-588, with further references to the Court ’ s case-law, in particular Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 209, ECHR 2012; Assanidze v. Georgia [GC], no. 71503/01, §§ 198 and 202, ECHR 2004-II; see Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 138, 252-254 and 256, ECHR 2013 (extracts); and Al-Saadoon and Mufdhi, cited above, § 170).",
"739. The Court has already found that, through the actions and inaction of the Romanian authorities in the context of their complicity in the operation of the CIA HVD Programme on Romania ’ s territory, the applicant has been exposed to the risk of the death penalty being imposed on him (see paragraph 72 8 above). Even though the proceedings against him before the military commissions are still pending and the outcome of the trial remains uncertain, that risk still continues. For the Court, compliance with their obligations under Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention requires the Romanian Government to endeavour to remove that risk as soon as possible, by seeking assurances from the US authorities that he will not be subjected to the death penalty (see also Al Nashiri v. Poland, cited above, § 589).",
"740. The applicant also contended that the Romanian authorities were obliged under Article 46 of the Convention to put an end to the continuing violation of his rights by carrying out an effective investigation (see paragraph 735 above). In this connection, it can be inferred from the Court ’ s case-law that the obligation of a Contracting State to conduct an effective investigation under Article 3, as under Article 2, of the Convention persists as long as such an investigation remains feasible but has not been carried out or has not met the Convention standards (see, for instance, Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 202, 24 May 2011; Benzer and Others v. Turkey, no. 23502/06, §§ 218 ‑ 219, 12 November 2013; Mocanu and Others, cited above, §§ 314 ‑ 326; see also, mutatis mutandis, Jeronovičs v. Latvia GC , no. 44898/10, §§ 107 and 118, 5 July 2016). An ongoing failure to provide the requisite investigation will be regarded as a continuing violation of that provision (see, mutatis mutandis, Cyprus v. Turkey, cited above, § 136; and Aslakhanova and Others v. Russia, cited above, §§ 214 and 230).",
"741. In the present case, given the deficiencies of the investigative procedures carried out in the applicant ’ s case, the Court has concluded that to date Romania has failed to comply with the requirements of a “prompt”, “thorough” and “effective” investigation for the purposes of Article 3 of the Convention. In particular, it has found that, in the light of the material before it, no individuals bearing responsibility for Romanian ’ s role in the HVD Programme have so far been identified (see paragraphs 647 -65 6 above). On the basis of the elements in the case-file, there appear to be no insurmountable practical obstacles to the hitherto lacking effective investigation being carried out (see Abuyeva and Others v. Russia, no. 27065/05, §§ 240- 241, 2 December 2010).",
"742. Referring to its case - law cited above (see paragraph 7 40 above) regarding the kind of exceptional circumstances capable of justifying the indication to the respondent State of individual measures under Article 46 of the Convention, the Court considers it appropriate to give the following indications.",
"First of all, having regard in particular to the nature of the procedural violation of Article 3 found in the present case, the obligation incumbent on Romania under Article 46 inevitably requires that all necessary steps to reactivate the still pending criminal investigation be taken without delay. Thereafter, in accordance with the applicable Convention principles (see paragraphs 63 8 -64 1 above, with references to the Court ’ s case-law), the criminal investigation should be brought to a close as soon as possible, once, in so far as this proves feasible, the circumstances and conditions under which the applicant was brought into Romania, treated in Romania and thereafter removed from Romania have been elucidated further, so as to enable the identification and, where appropriate, punishment of those responsible.",
"743. It is not, however, for the Court to give any detailed, prescriptive injunctions in that regard. It falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see, mutatis mutandis, Abuyeva and Others v. Russia, cited above, § 243); and Al Nashiri v. Poland (cited above), § 586, with further references to the Court ’ s case-law).",
"XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"744. Article 41 of the Convention provides:",
"“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”",
"A. Damage",
"745. The applicant made no claim for pecuniary damage.",
"746. As regards non-pecuniary damage, he submitted that Romania ’ s acts and omissions had resulted in his suffering very substantial pain and had caused significant harm to his mental health and overall well-being.",
"747. Emphasising the severity of the ill-treatment to which he had been subjected in Romania and the fact that he had endured incommunicado detention and the violation of his right to respect for his private and family life during his detention in Romania for a period of one year and some six months, he asked the Court to make an award of 300,000 euros (EUR) in that respect. In support of his claim, he cited a number of the Court ’ s judgments, including Assanidze, Selmouni (both cited above), Mikheyev v. Russia (no. 77617/01, judgment of 26 January 2006) and El-Masri (cited above). As regards the latter, the applicant maintained that Mr El-Masri, a victim of extremely serious violations of the Convention committed in the framework of the extraordinary rendition operations, had endured his ordeal for a period of four months, whereas the applicant had been secretly detained in Romania for a much longer period. In addition, he was subject to a criminal process, which entailed a violation of Article 6 § 1 and faced the death penalty if convicted. Consequently, the non-pecuniary damage that he had sustained was more severe.",
"748. The Government asked the Court to find that the claim was unsubstantiated since there had been no violation of the applicant ’ s rights under the Convention. Should the Court consider that the application was admissible and that the interference with his rights called for an award of just satisfaction, they maintained that the sum asked for was excessive in comparison, for instance, to the award made in El-Masri.",
"749. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.",
"In the present case the Court has found serious violations of several Convention provisions by the respondent State. It has held that the responsibility of the respondent State is engaged in respect of the applicant ’ s treatment contrary to Article 3 and his secret detention in breach of Article 5. The respondent State has also failed to carry out an effective investigation as required under Articles 3 and 13 of the Convention. In addition, the Court has found a violation of the applicant ’ s rights under Article 8. Furthermore, the respondent State has been found responsible for enabling the CIA to transfer him from its territory, despite the serious risk that he could have a flagrantly unfair trial in breach of Article 6 § 1 and that the death penalty could be imposed on him, in violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention (see paragraphs 656, 67 8 -67 9, 69 1 -69 2, 69 8 -69 9, 7 10, 72 2 and 72 9 above).",
"In view of the foregoing, the Court considers that the applicant has undeniably sustained non-pecuniary damage which cannot be made good by the mere finding of a violation.",
"750. Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicant has been a victim and ruling on an equitable basis, as required by Article 41 of the Convention (see El-Masri, cited above, § 270; Al Nashiri v. Poland, cited above, § 595; Husayn (Abu Zubaydah) v. Poland, cited above, § 567; and Nasr and Ghali, cited above, § 348 ), the Court awards him EUR 100,000, plus any tax that may be chargeable on that amount.",
"B. Costs and expenses",
"751. The applicant made no claim for the costs and expenses incurred in the proceedings.",
"752. Accordingly, there is no call to award him any sum on that account.",
"C. Default interest",
"753. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
250 | Aksoy v. Turkey | 18 December 1996 | The applicant complained in particular that his detention in 1992 on suspicion of aiding and abetting PKK (Workers’ Party of Kurdistan) terrorists was unlawful and that he had been tortured (“Palestinian hanging" i.e. stripped naked, with arms tied together behind back, and suspended by arms). | The Court, considering that the treatment inflicted to the applicant had been of such a serious and cruel nature that it could only be described as torture, held that there had been a violation of Article 3 (prohibition of torture) of the Convention. It also found a violation of Article 5 (right to liberty and security) and a violation of Article 13 (right to an effective remedy) of the Convention in the present case. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. Circumstances of the case",
"A. The applicant",
"7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).",
"B. The situation in the South-East of Turkey",
"8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.",
"9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.",
"C. The detention of the applicant",
"10. The facts in the case are in dispute.",
"11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.",
"12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.",
"13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.",
"He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.",
"14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: \"If you don ’ t know him now, you will know him under torture.\"",
"According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as \"Palestinian hanging\". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.",
"During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.",
"15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.",
"16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.",
"17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.",
"18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.",
"According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.",
"The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.",
"D. Events on the applicant ’ s release",
"19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.",
"He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.",
"20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.",
"21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.",
"E. The death of the applicant",
"22. Mr Aksoy was shot dead on 16 April 1994.",
"According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.",
"The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.",
"A suspect, allegedly a member of the PKK, has been charged with the murder.",
"F. The Commission ’ s findings of fact",
"23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.",
"After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:",
"a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.",
"b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.",
"c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.",
"d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as \"Palestinian hanging\".",
"e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.",
"f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries.",
"g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation."
] | [
"II. Relevant domestic law and practice",
"A. Criminal-law provisions against torture",
"24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).",
"25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"\"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.\"",
"26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).",
"B. Administrative law remedies",
"27. Article 125 of the Turkish Constitution provides as follows:",
"\"All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.\"",
"By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.",
"C. Civil proceedings",
"28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.",
"D. The law relating to detention in police custody",
"29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.",
"The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).",
"In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).",
"30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.",
"E. The Turkish derogation from Article 5 of the Convention (art. 5)",
"31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:",
"\"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).",
"During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.",
"The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces.",
"Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.",
"To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.",
"The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.",
"This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights.\"",
"Attached to this letter was a \"descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425\". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:",
"\"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ...\"",
"32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.",
"33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:",
"\"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13).",
"Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25).",
"35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25).",
"The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention.",
"37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50).",
"AS TO THE LAW",
"I. THE COURT ’ S ASSESSMENT OF THE FACTS",
"38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78).",
"39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81).",
"40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"A. The arguments of those appearing before the Court",
"41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides:",
"\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"",
"The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies.",
"42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above).",
"43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody.",
"Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct.",
"44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody.",
"45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts.",
"46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice.",
"In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34).",
"47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common.",
"In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg.",
"48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands.",
"The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required.",
"49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above).",
"50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks.",
"In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses.",
"B. The Court ’ s assessment",
"51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65).",
"52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.",
"However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \"generally recognised rules of international law\" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67).",
"53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69).",
"54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.",
"55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor.",
"56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above).",
"It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels.",
"57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention.",
"III. THE MERITS",
"A. Alleged violation of Article 3 of the Convention (art. 3)",
"58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"",
"The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured.",
"59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed.",
"For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks.",
"60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back (\"Palestinian hanging\"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging.",
"He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him.",
"In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment.",
"61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).",
"62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79).",
"63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of \"torture\" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167).",
"64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to \"Palestinian hanging\", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above).",
"In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.",
"In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment.",
"In conclusion, there has been a violation of Article 3 of the Convention (art. 3).",
"B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3)",
"65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...\"",
"66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of \"promptness\".",
"67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1).",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above).",
"1. The Court ’ s approach",
"68. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.",
"Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43).",
"2. Existence of a public emergency threatening the life of the nation",
"69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency \"threatening the life of the nation\" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide.",
"70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a \"public emergency threatening the life of the nation\" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47).",
"3. Whether the measures were strictly required by the exigencies of the situation",
"a) The length of the unsupervised detention",
"71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above).",
"72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody.",
"73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region.",
"74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals.",
"75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power.",
"76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms.",
"77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.",
"In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above).",
"78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.",
"b) Safeguards",
"79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight.",
"80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (\" Turkey : a Policy of Denial\", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region.",
"81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.",
"82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63).",
"83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.",
"84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.",
"4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3)",
"85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor.",
"86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter.",
"5. Conclusion",
"87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3).",
"C. Alleged lack of remedy",
"88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant:",
"\"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law",
"...\"",
"In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available.",
"90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above).",
"91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13).",
"1. Article 6 para. 1 of the Convention (art. 6-1)",
"92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the \"right to a court\", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).",
"93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them.",
"In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above).",
"94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention.",
"2. Article 13 of the Convention (art. 13)",
"95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be \"effective\" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.",
"96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77).",
"97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.",
"98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.",
"Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an \"effective remedy\" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a \"prompt and impartial\" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an \"effective remedy\" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).",
"99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries.",
"Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.",
"100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.",
"In conclusion, there has been a violation of Article 13 of the Convention (art. 13).",
"D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)",
"101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states:",
"\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"",
"102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above).",
"103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above).",
"104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing.",
"105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105).",
"106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court.",
"The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1).",
"E. Alleged administrative practice of violating the Convention",
"107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention.",
"108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards.",
"Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1).",
"Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3).",
"109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1).",
"IV. Application of Article 50 of the Convention (art. 50)",
"110. Under Article 50 of the Convention (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling).",
"In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice.",
"He also requested payment of his legal fees and expenses which totalled £20,710.",
"112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims.",
"A. Damage",
"113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment).",
"B. Costs and expenses",
"114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.",
"C. Default interest",
"115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment.",
"As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment."
] |
251 | Aksoy v. Turkey | 18 December 1996 (judgment) | Since 1985 serious disturbances had raged in south-eastern Turkey between the security forces and members of the PKK. At the time when the Court examined the case, ten out of the eleven provinces of that part of Turkey had, since 1987, been subjected to emergency rule. The applicant alleged in particular that his detention in 1992, on suspicion of aiding and abetting PKK terrorists, had been illegal. The Turkish Government stated that there had been no violation of Article 5 (right to liberty and security) of the Convention, having regard to the derogation notified by Turkey in 1990 in accordance with Article 15 of the Convention. They argued in particular that there had been, in south-eastern Turkey, a public emergency threatening the life of the nation, which was not disputed by the applicant, although he asserted that, in the main, it was a question for the Convention organs to address. | The Court found, in the light of all the evidence at his disposal, that the extent and particular effects of the PKK terrorist activity in south-eastern Turkey had undoubtedly created, in the region concerned, a public emergency threatening the life of the nation. It reiterated, among other things, that it fell to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life was threatened by a "public emergency" and, if so, how far it was necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities were in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation had to be left to the national authorities. Nonetheless, States did not enjoy an unlimited discretion. It was for the Court to rule whether, inter alia, the States had gone beyond the "extent strictly required by the exigencies" of the crisis. In exercising this European supervision, the Court had to give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation. | Derogation in time of emergency | (1) The right of derogation can be invoked only in time of war or other public emergency threatening the life of the nation | [
"I. Circumstances of the case",
"A. The applicant",
"7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).",
"B. The situation in the South-East of Turkey",
"8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.",
"9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.",
"C. The detention of the applicant",
"10. The facts in the case are in dispute.",
"11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.",
"12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.",
"13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.",
"He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.",
"14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: \"If you don ’ t know him now, you will know him under torture.\"",
"According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as \"Palestinian hanging\". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.",
"During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.",
"15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.",
"16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.",
"17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.",
"18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.",
"According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.",
"The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.",
"D. Events on the applicant ’ s release",
"19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.",
"He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.",
"20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.",
"21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.",
"E. The death of the applicant",
"22. Mr Aksoy was shot dead on 16 April 1994.",
"According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.",
"The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.",
"A suspect, allegedly a member of the PKK, has been charged with the murder.",
"F. The Commission ’ s findings of fact",
"23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.",
"After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:",
"a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.",
"b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.",
"c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.",
"d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as \"Palestinian hanging\".",
"e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.",
"f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries.",
"g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation."
] | [
"II. Relevant domestic law and practice",
"A. Criminal-law provisions against torture",
"24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).",
"25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"\"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.\"",
"26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).",
"B. Administrative law remedies",
"27. Article 125 of the Turkish Constitution provides as follows:",
"\"All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.\"",
"By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.",
"C. Civil proceedings",
"28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.",
"D. The law relating to detention in police custody",
"29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.",
"The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).",
"In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).",
"30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.",
"E. The Turkish derogation from Article 5 of the Convention (art. 5)",
"31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:",
"\"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).",
"During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.",
"The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces.",
"Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.",
"To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.",
"The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.",
"This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights.\"",
"Attached to this letter was a \"descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425\". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:",
"\"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ...\"",
"32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.",
"33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:",
"\"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13).",
"Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25).",
"35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25).",
"The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention.",
"37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50).",
"AS TO THE LAW",
"I. THE COURT ’ S ASSESSMENT OF THE FACTS",
"38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78).",
"39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81).",
"40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"A. The arguments of those appearing before the Court",
"41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides:",
"\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"",
"The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies.",
"42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above).",
"43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody.",
"Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct.",
"44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody.",
"45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts.",
"46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice.",
"In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34).",
"47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common.",
"In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg.",
"48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands.",
"The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required.",
"49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above).",
"50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks.",
"In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses.",
"B. The Court ’ s assessment",
"51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65).",
"52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.",
"However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \"generally recognised rules of international law\" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67).",
"53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69).",
"54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.",
"55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor.",
"56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above).",
"It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels.",
"57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention.",
"III. THE MERITS",
"A. Alleged violation of Article 3 of the Convention (art. 3)",
"58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"",
"The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured.",
"59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed.",
"For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks.",
"60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back (\"Palestinian hanging\"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging.",
"He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him.",
"In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment.",
"61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).",
"62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79).",
"63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of \"torture\" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167).",
"64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to \"Palestinian hanging\", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above).",
"In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.",
"In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment.",
"In conclusion, there has been a violation of Article 3 of the Convention (art. 3).",
"B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3)",
"65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...\"",
"66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of \"promptness\".",
"67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1).",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above).",
"1. The Court ’ s approach",
"68. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.",
"Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43).",
"2. Existence of a public emergency threatening the life of the nation",
"69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency \"threatening the life of the nation\" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide.",
"70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a \"public emergency threatening the life of the nation\" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47).",
"3. Whether the measures were strictly required by the exigencies of the situation",
"a) The length of the unsupervised detention",
"71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above).",
"72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody.",
"73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region.",
"74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals.",
"75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power.",
"76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms.",
"77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.",
"In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above).",
"78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.",
"b) Safeguards",
"79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight.",
"80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (\" Turkey : a Policy of Denial\", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region.",
"81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.",
"82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63).",
"83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.",
"84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.",
"4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3)",
"85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor.",
"86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter.",
"5. Conclusion",
"87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3).",
"C. Alleged lack of remedy",
"88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant:",
"\"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law",
"...\"",
"In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available.",
"90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above).",
"91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13).",
"1. Article 6 para. 1 of the Convention (art. 6-1)",
"92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the \"right to a court\", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).",
"93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them.",
"In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above).",
"94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention.",
"2. Article 13 of the Convention (art. 13)",
"95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be \"effective\" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.",
"96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77).",
"97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.",
"98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.",
"Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an \"effective remedy\" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a \"prompt and impartial\" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an \"effective remedy\" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).",
"99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries.",
"Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.",
"100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.",
"In conclusion, there has been a violation of Article 13 of the Convention (art. 13).",
"D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)",
"101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states:",
"\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"",
"102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above).",
"103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above).",
"104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing.",
"105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105).",
"106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court.",
"The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1).",
"E. Alleged administrative practice of violating the Convention",
"107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention.",
"108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards.",
"Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1).",
"Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3).",
"109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1).",
"IV. Application of Article 50 of the Convention (art. 50)",
"110. Under Article 50 of the Convention (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling).",
"In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice.",
"He also requested payment of his legal fees and expenses which totalled £20,710.",
"112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims.",
"A. Damage",
"113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment).",
"B. Costs and expenses",
"114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.",
"C. Default interest",
"115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment.",
"As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment."
] |
252 | Aksoy v. Turkey | 18 December 1996 (judgment) | In the present case the applicant had been held for at least fourteen days without being brought before a judge or other judicial officer. The Turkish Government sought to justify this measure by the particular demands of police investigations in a vast region in the grips of a terrorist organisation receiving outside support. While not presenting any detailed arguments against the validity of the Turkish derogation as a whole, the applicant, for his part, cast doubt on the need, in south-eastern Turkey, to hold suspects in custody for fourteen days or more without any judicial supervision. In his view, the judges in that part of Turkey would not run any risk if they were able and obliged to review the lawfulness of detention at more frequent intervals. | As regards the duration of detention without supervision, the Court observed that the Turkish Government had not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable. While the Court took the view that the investigation of terrorist offences undoubtedly presented the authorities with special problems, it could not accept that it was necessary to hold a suspect for fourteen days without judicial intervention. This period was exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture. As to the safeguards afforded by the Turkish legal system, the Court took account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it was not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. | Derogation in time of emergency | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | [
"I. Circumstances of the case",
"A. The applicant",
"7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).",
"B. The situation in the South-East of Turkey",
"8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.",
"9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.",
"C. The detention of the applicant",
"10. The facts in the case are in dispute.",
"11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.",
"12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.",
"13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.",
"He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.",
"14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: \"If you don ’ t know him now, you will know him under torture.\"",
"According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as \"Palestinian hanging\". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.",
"During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.",
"15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.",
"16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.",
"17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.",
"18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.",
"According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.",
"The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.",
"D. Events on the applicant ’ s release",
"19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.",
"He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.",
"20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.",
"21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.",
"E. The death of the applicant",
"22. Mr Aksoy was shot dead on 16 April 1994.",
"According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.",
"The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.",
"A suspect, allegedly a member of the PKK, has been charged with the murder.",
"F. The Commission ’ s findings of fact",
"23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.",
"After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:",
"a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.",
"b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.",
"c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.",
"d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as \"Palestinian hanging\".",
"e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.",
"f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries.",
"g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation."
] | [
"II. Relevant domestic law and practice",
"A. Criminal-law provisions against torture",
"24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).",
"25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"\"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.\"",
"26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).",
"B. Administrative law remedies",
"27. Article 125 of the Turkish Constitution provides as follows:",
"\"All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.\"",
"By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.",
"C. Civil proceedings",
"28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.",
"D. The law relating to detention in police custody",
"29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.",
"The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).",
"In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).",
"30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.",
"E. The Turkish derogation from Article 5 of the Convention (art. 5)",
"31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:",
"\"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).",
"During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.",
"The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces.",
"Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.",
"To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.",
"The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.",
"This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights.\"",
"Attached to this letter was a \"descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425\". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:",
"\"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ...\"",
"32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.",
"33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:",
"\"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13).",
"Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25).",
"35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25).",
"The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention.",
"37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50).",
"AS TO THE LAW",
"I. THE COURT ’ S ASSESSMENT OF THE FACTS",
"38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78).",
"39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81).",
"40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"A. The arguments of those appearing before the Court",
"41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides:",
"\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"",
"The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies.",
"42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above).",
"43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody.",
"Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct.",
"44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody.",
"45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts.",
"46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice.",
"In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34).",
"47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common.",
"In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg.",
"48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands.",
"The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required.",
"49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above).",
"50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks.",
"In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses.",
"B. The Court ’ s assessment",
"51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65).",
"52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.",
"However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \"generally recognised rules of international law\" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67).",
"53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69).",
"54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.",
"55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor.",
"56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above).",
"It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels.",
"57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention.",
"III. THE MERITS",
"A. Alleged violation of Article 3 of the Convention (art. 3)",
"58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"",
"The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured.",
"59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed.",
"For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks.",
"60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back (\"Palestinian hanging\"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging.",
"He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him.",
"In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment.",
"61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).",
"62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79).",
"63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of \"torture\" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167).",
"64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to \"Palestinian hanging\", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above).",
"In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.",
"In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment.",
"In conclusion, there has been a violation of Article 3 of the Convention (art. 3).",
"B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3)",
"65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...\"",
"66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of \"promptness\".",
"67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1).",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above).",
"1. The Court ’ s approach",
"68. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.",
"Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43).",
"2. Existence of a public emergency threatening the life of the nation",
"69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency \"threatening the life of the nation\" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide.",
"70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a \"public emergency threatening the life of the nation\" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47).",
"3. Whether the measures were strictly required by the exigencies of the situation",
"a) The length of the unsupervised detention",
"71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above).",
"72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody.",
"73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region.",
"74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals.",
"75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power.",
"76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms.",
"77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.",
"In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above).",
"78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.",
"b) Safeguards",
"79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight.",
"80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (\" Turkey : a Policy of Denial\", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region.",
"81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.",
"82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63).",
"83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.",
"84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.",
"4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3)",
"85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor.",
"86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter.",
"5. Conclusion",
"87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3).",
"C. Alleged lack of remedy",
"88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant:",
"\"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law",
"...\"",
"In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available.",
"90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above).",
"91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13).",
"1. Article 6 para. 1 of the Convention (art. 6-1)",
"92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the \"right to a court\", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).",
"93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them.",
"In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above).",
"94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention.",
"2. Article 13 of the Convention (art. 13)",
"95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be \"effective\" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.",
"96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77).",
"97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.",
"98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.",
"Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an \"effective remedy\" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a \"prompt and impartial\" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an \"effective remedy\" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).",
"99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries.",
"Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.",
"100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.",
"In conclusion, there has been a violation of Article 13 of the Convention (art. 13).",
"D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)",
"101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states:",
"\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"",
"102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above).",
"103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above).",
"104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing.",
"105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105).",
"106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court.",
"The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1).",
"E. Alleged administrative practice of violating the Convention",
"107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention.",
"108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards.",
"Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1).",
"Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3).",
"109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1).",
"IV. Application of Article 50 of the Convention (art. 50)",
"110. Under Article 50 of the Convention (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling).",
"In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice.",
"He also requested payment of his legal fees and expenses which totalled £20,710.",
"112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims.",
"A. Damage",
"113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment).",
"B. Costs and expenses",
"114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.",
"C. Default interest",
"115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment.",
"As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment."
] |
253 | Aksoy v. Turkey | 18 December 1996 (judgment) | On 6 August 1990 the Turkish Government had sent a letter to the Secretary General of the Council of Europe informing him among other things that Turkey was exposed to threats to its national security in South-East Anatolia and that it had enacted, on 10 May 1990, two decrees with force of law (nos. 424 and 425) applying to the region subjected to a state of emergency and which might result in derogating from the obligations enshrined in the certain provisions of the Convention. In a second letter of 3 January 1991 the Turkish Government informed the Secretary General of the enactment of Decree no. 430, limiting the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425. | None of those appearing before the Court had contested that the Turkish Republic’s notice of derogation complied with the formal requirements of Article 15 § 3, namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor. The Court reiterated that it was competent to examine this issue of its own motion and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial supervision, to satisfy the requirements of Article 15 § 3. However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see above), the Court found it unnecessary to rule on this matter. | Derogation in time of emergency | Information on the measures taken and reasons given | [
"I. Circumstances of the case",
"A. The applicant",
"7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).",
"B. The situation in the South-East of Turkey",
"8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.",
"9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.",
"C. The detention of the applicant",
"10. The facts in the case are in dispute.",
"11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.",
"12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.",
"13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.",
"He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.",
"14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: \"If you don ’ t know him now, you will know him under torture.\"",
"According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as \"Palestinian hanging\". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.",
"During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.",
"15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.",
"16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.",
"17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.",
"18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.",
"According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.",
"The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.",
"D. Events on the applicant ’ s release",
"19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.",
"He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.",
"20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.",
"21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.",
"E. The death of the applicant",
"22. Mr Aksoy was shot dead on 16 April 1994.",
"According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.",
"The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.",
"A suspect, allegedly a member of the PKK, has been charged with the murder.",
"F. The Commission ’ s findings of fact",
"23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.",
"After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:",
"a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.",
"b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.",
"c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.",
"d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as \"Palestinian hanging\".",
"e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.",
"f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries.",
"g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation."
] | [
"II. Relevant domestic law and practice",
"A. Criminal-law provisions against torture",
"24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).",
"25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"\"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.\"",
"26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).",
"B. Administrative law remedies",
"27. Article 125 of the Turkish Constitution provides as follows:",
"\"All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.\"",
"By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.",
"C. Civil proceedings",
"28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.",
"D. The law relating to detention in police custody",
"29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.",
"The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).",
"In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).",
"30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.",
"E. The Turkish derogation from Article 5 of the Convention (art. 5)",
"31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:",
"\"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).",
"During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.",
"The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces.",
"Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.",
"To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.",
"The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.",
"This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights.\"",
"Attached to this letter was a \"descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425\". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:",
"\"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ...\"",
"32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.",
"33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:",
"\"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13).",
"Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25).",
"35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25).",
"The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention.",
"37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50).",
"AS TO THE LAW",
"I. THE COURT ’ S ASSESSMENT OF THE FACTS",
"38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78).",
"39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81).",
"40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"A. The arguments of those appearing before the Court",
"41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides:",
"\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"",
"The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies.",
"42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above).",
"43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody.",
"Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct.",
"44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody.",
"45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts.",
"46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice.",
"In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34).",
"47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common.",
"In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg.",
"48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands.",
"The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required.",
"49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above).",
"50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks.",
"In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses.",
"B. The Court ’ s assessment",
"51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65).",
"52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.",
"However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \"generally recognised rules of international law\" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67).",
"53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69).",
"54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.",
"55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor.",
"56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above).",
"It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels.",
"57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention.",
"III. THE MERITS",
"A. Alleged violation of Article 3 of the Convention (art. 3)",
"58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"",
"The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured.",
"59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed.",
"For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks.",
"60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back (\"Palestinian hanging\"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging.",
"He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him.",
"In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment.",
"61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).",
"62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79).",
"63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of \"torture\" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167).",
"64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to \"Palestinian hanging\", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above).",
"In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.",
"In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment.",
"In conclusion, there has been a violation of Article 3 of the Convention (art. 3).",
"B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3)",
"65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...\"",
"66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of \"promptness\".",
"67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1).",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above).",
"1. The Court ’ s approach",
"68. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.",
"Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43).",
"2. Existence of a public emergency threatening the life of the nation",
"69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency \"threatening the life of the nation\" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide.",
"70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a \"public emergency threatening the life of the nation\" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47).",
"3. Whether the measures were strictly required by the exigencies of the situation",
"a) The length of the unsupervised detention",
"71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above).",
"72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody.",
"73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region.",
"74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals.",
"75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power.",
"76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms.",
"77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.",
"In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above).",
"78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.",
"b) Safeguards",
"79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight.",
"80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (\" Turkey : a Policy of Denial\", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region.",
"81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.",
"82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63).",
"83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.",
"84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.",
"4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3)",
"85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor.",
"86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter.",
"5. Conclusion",
"87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3).",
"C. Alleged lack of remedy",
"88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant:",
"\"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law",
"...\"",
"In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available.",
"90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above).",
"91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13).",
"1. Article 6 para. 1 of the Convention (art. 6-1)",
"92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the \"right to a court\", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).",
"93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them.",
"In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above).",
"94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention.",
"2. Article 13 of the Convention (art. 13)",
"95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be \"effective\" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.",
"96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77).",
"97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.",
"98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.",
"Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an \"effective remedy\" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a \"prompt and impartial\" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an \"effective remedy\" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).",
"99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries.",
"Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.",
"100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.",
"In conclusion, there has been a violation of Article 13 of the Convention (art. 13).",
"D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)",
"101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states:",
"\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"",
"102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above).",
"103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above).",
"104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing.",
"105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105).",
"106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court.",
"The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1).",
"E. Alleged administrative practice of violating the Convention",
"107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention.",
"108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards.",
"Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1).",
"Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3).",
"109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1).",
"IV. Application of Article 50 of the Convention (art. 50)",
"110. Under Article 50 of the Convention (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling).",
"In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice.",
"He also requested payment of his legal fees and expenses which totalled £20,710.",
"112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims.",
"A. Damage",
"113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment).",
"B. Costs and expenses",
"114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.",
"C. Default interest",
"115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment.",
"As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment."
] |
254 | Aksoy v. Turkey | 18 December 1996 (judgment) | In November 1992 the applicant was arrested and taken into police custody on suspicion of aiding and abetting the PKK. He complained of various forms of ill-treatment: of having been kept blindfolded during interrogation; of having been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); of having been given electric shocks, exacerbated by having water thrown over him; and lastly of having been subjected to beatings, slapping and verbal abuse. | The Court found that there had been a violation of Article 3 of the Convention; the treatment was of such a serious and cruel nature that it could only be described as torture. It observed in particular as follows: “Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention ... Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation …” (paragraph 62 of the judgment). | Derogation in time of emergency | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | [
"I. Circumstances of the case",
"A. The applicant",
"7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above).",
"B. The situation in the South-East of Turkey",
"8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.",
"9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.",
"C. The detention of the applicant",
"10. The facts in the case are in dispute.",
"11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.",
"12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.",
"13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters.",
"He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day.",
"14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: \"If you don ’ t know him now, you will know him under torture.\"",
"According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as \"Palestinian hanging\". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes.",
"During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive.",
"15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission.",
"16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident.",
"17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody.",
"18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor.",
"According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured.",
"The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands.",
"D. Events on the applicant ’ s release",
"19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back.",
"He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him.",
"20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged.",
"21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant.",
"E. The death of the applicant",
"22. Mr Aksoy was shot dead on 16 April 1994.",
"According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application.",
"The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions.",
"A suspect, allegedly a member of the PKK, has been charged with the murder.",
"F. The Commission ’ s findings of fact",
"23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995.",
"After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts:",
"a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days.",
"b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged.",
"c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital.",
"d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as \"Palestinian hanging\".",
"e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police.",
"f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries.",
"g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation."
] | [
"II. Relevant domestic law and practice",
"A. Criminal-law provisions against torture",
"24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment).",
"25. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"\"No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of an individual to claim indemnity from the State for damage suffered by them without justification.\"",
"26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285).",
"B. Administrative law remedies",
"27. Article 125 of the Turkish Constitution provides as follows:",
"\"All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.\"",
"By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property.",
"C. Civil proceedings",
"28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts.",
"D. The law relating to detention in police custody",
"29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.",
"The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987).",
"In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983).",
"30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.",
"E. The Turkish derogation from Article 5 of the Convention (art. 5)",
"31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that:",
"\"The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15).",
"During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.",
"The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces.",
"Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.",
"To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey.",
"The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate.",
"This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights.\"",
"Attached to this letter was a \"descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425\". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows:",
"\"The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ...\"",
"32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425.",
"33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that:",
"\"As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13).",
"Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25).",
"35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25).",
"The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention.",
"37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50).",
"AS TO THE LAW",
"I. THE COURT ’ S ASSESSMENT OF THE FACTS",
"38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78).",
"39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81).",
"40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention.",
"II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION",
"A. The arguments of those appearing before the Court",
"41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides:",
"\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"",
"The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies.",
"42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above).",
"43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody.",
"Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct.",
"44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody.",
"45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts.",
"46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice.",
"In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34).",
"47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common.",
"In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg.",
"48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands.",
"The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required.",
"49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above).",
"50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks.",
"In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses.",
"B. The Court ’ s assessment",
"51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65).",
"52. Under Article 26 (art. 26), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.",
"However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \"generally recognised rules of international law\" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67).",
"53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69).",
"54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.",
"55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor.",
"56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above).",
"It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels.",
"57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention.",
"III. THE MERITS",
"A. Alleged violation of Article 3 of the Convention (art. 3)",
"58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"",
"The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured.",
"59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed.",
"For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks.",
"60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back (\"Palestinian hanging\"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging.",
"He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him.",
"In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment.",
"61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).",
"62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79).",
"63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, this distinction would appear to have been embodied in the Convention to allow the special stigma of \"torture\" to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167).",
"64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to \"Palestinian hanging\", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above).",
"In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.",
"In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment.",
"In conclusion, there has been a violation of Article 3 of the Convention (art. 3).",
"B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3)",
"65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...\"",
"66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of \"promptness\".",
"67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision (art. 15-1).",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above).",
"1. The Court ’ s approach",
"68. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.",
"Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43).",
"2. Existence of a public emergency threatening the life of the nation",
"69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency \"threatening the life of the nation\" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide.",
"70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a \"public emergency threatening the life of the nation\" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47).",
"3. Whether the measures were strictly required by the exigencies of the situation",
"a) The length of the unsupervised detention",
"71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above).",
"72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody.",
"73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region.",
"74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals.",
"75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power.",
"76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms.",
"77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.",
"In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above).",
"78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.",
"b) Safeguards",
"79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight.",
"80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (\" Turkey : a Policy of Denial\", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region.",
"81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.",
"82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63).",
"83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.",
"84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.",
"4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3)",
"85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor.",
"86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter.",
"5. Conclusion",
"87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3).",
"C. Alleged lack of remedy",
"88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant:",
"\"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law",
"...\"",
"In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available.",
"90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above).",
"91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13).",
"1. Article 6 para. 1 of the Convention (art. 6-1)",
"92. The Court recalls that Article 6 para. 1 (art. 6-1) embodies the \"right to a court\", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).",
"93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them.",
"In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above).",
"94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention.",
"2. Article 13 of the Convention (art. 13)",
"95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 13) must be \"effective\" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.",
"96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77).",
"97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired.",
"98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.",
"Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an \"effective remedy\" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a \"prompt and impartial\" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an \"effective remedy\" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).",
"99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries.",
"Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed.",
"100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture.",
"In conclusion, there has been a violation of Article 13 of the Convention (art. 13).",
"D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)",
"101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states:",
"\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"",
"102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above).",
"103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above).",
"104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing.",
"105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105).",
"106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court.",
"The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1).",
"E. Alleged administrative practice of violating the Convention",
"107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention.",
"108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards.",
"Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1).",
"Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3).",
"109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1).",
"IV. Application of Article 50 of the Convention (art. 50)",
"110. Under Article 50 of the Convention (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling).",
"In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice.",
"He also requested payment of his legal fees and expenses which totalled £20,710.",
"112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims.",
"A. Damage",
"113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment).",
"B. Costs and expenses",
"114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.",
"C. Default interest",
"115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment.",
"As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment."
] |
255 | Öcalan v. Turkey | 12 May 2005 (Grand Chamber) | This case concerned, among others, the conditions of the transfer from Kenya to Turkey and the subsequent detention on the island of İmralı of Abdullah Öcalan, former leader of the PKK (Kurdistan Workers’ Party), an illegal organisation, who had been sentenced to death for activities aimed at bringing about the secession of part of Turkish territory. The applicant complained in particular that the conditions in which he was detained at İmralı Prison amounted to inhuman treatment. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the conditions of the applicant’s detention at İmralı Prison. While concurring with the European Committee for the Prevention of Torture‘s recommendations that the long-term effects of the applicant’s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, the Court found that the general conditions in which the applicant was being detained had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey ). Prior to his arrest, he was the leader of the PKK ( Workers'Party of Kurdistan ).",
"The facts of the case, as submitted by the parties, may be summarised as follows.",
"A. The applicant's arrest and transfer to Turkey",
"14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision.",
"15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day ( 2 February 1999 ), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply.",
"16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya.",
"The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall.",
"The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject.",
"17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him.",
"On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m.",
"18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice ( Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life.",
"On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons.",
"19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace.",
"The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi.",
"B. Police custody on the island of İmralı",
"20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed.",
"21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999.",
"22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval.",
"23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched.",
"24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services.",
"C. Appearance before a judge and pre-trial detention",
"25. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions.",
"D. Contact with the outside world during the judicial investigation and conditions at İmralı Prison",
"26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers.",
"27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey.",
"28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later.",
"29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour).",
"30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence.",
"31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence.",
"32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically.",
"33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week.",
"34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport.",
"E. The trial at the National Security Court",
"35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors'offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.",
"36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey.",
"37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation.",
"38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction.",
"39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey ”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds'cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court.",
"40. The applicant's lawyers'applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics.",
"41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999.",
"The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere.",
"42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code.",
"The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed.",
"43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts.",
"44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings.",
"Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court.",
"45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges.",
"46. On 29 June 1999, after hearing the applicant's final representations, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed.",
"F. The appeal on points of law",
"47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation.",
"48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons.",
"49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK ) and a military wing (the ARNK ), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died.",
"50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon.",
"G. Commutation of the death penalty to life imprisonment",
"51. In October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts.",
"The Nationalist Action Party ( MHP – Milliyetçi Hareket Partisi ), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Provisions on National Security Courts",
"52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges.",
"53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:",
"“... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors.",
"The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...”",
"54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date.",
"B. Article 125 of the Turkish Criminal Code",
"“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”",
"C. Review of the lawfulness of detention",
"55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released.",
"56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides:",
"“Compensation shall be paid by the State in respect of all damage sustained by persons:",
"(1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute;",
"(2) who have not been immediately informed of the reasons for their arrest or detention;",
"(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;",
"(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;",
"(5) whose close family have not been immediately informed of their arrest or detention;",
"(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial;",
"(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...”",
"57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings.",
"D. The Council of Europe and the death penalty",
"58. Protocol No. 6 to the Convention provides (Article 1) : “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides:",
"“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”",
"Protocol No. 6 has been ratified by forty- four member States of the Council of Europe and signed by two others ( Monaco and Russia ).",
"Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads:",
"“The member States of the Council of Europe signatory hereto,",
"Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;",
"Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as'the Convention');",
"Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;",
"Being resolved to take the final step in order to abolish the death penalty in all circumstances,",
"Have agreed as follows :",
"...”",
"Article 1 of Protocol No. 13 states:",
"“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”",
"Protocol No. 13 has been signed by forty- three member States of the Council of Europe and ratified by twenty- nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe ( Armenia, Azerbaijan and Russia ) have not yet signed it.",
"In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to:",
"“ 2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death- penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law. ”",
"It further noted:",
"“ 5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions. ”",
"59. Article X § 2 of the “ Guidelines on human rights and the fight against terrorism ”, issued by the Committee of Ministers of the Council of Europe on 11 July 2002, reads:",
"“Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.”",
"E. Other international developments concerning the death penalty",
"60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty.",
"In Reid v. Jamaica (no. 250/1987), the Committee stated as follows:",
"“[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.”",
"Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica ( Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]).",
"In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated:",
"“134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that'[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it.",
"135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life.",
"136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.”",
"In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002 ), the Inter-American Court stated:",
"“Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake. ” (paragraph 148)",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"61. The applicant complained of violations of Article 5 §§ 1, 3 and 4 of the Convention, the relevant provisions of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"The Government pleaded a failure to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1, 3 and 4. The Grand Chamber considers this preliminary objection to be closely linked to the merits of the complaint under Article 5 § 4 and will therefore examine it with that complaint, which – like the Chamber – it will deal with first.",
"A. Article 5 § 4 of the Convention",
"62. The applicant complained that, contrary to Article 5 § 4 of the Convention, he had not had an opportunity to take proceedings by which the lawfulness of his detention in police custody could be decided.",
"1. The applicant's submissions",
"63. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had an effective remedy by which to have the lawfulness of his detention in police custody decided. He said that during the first ten days of his detention he had been held incommunicado and had been unable to contact his lawyers. He did not have the legal training that would have enabled him to lodge an appeal without the assistance of his lawyers. Nor had he been given access to the documents concerning his arrest that he needed to enable him to prepare such an appeal. The applicant maintained that in his case an application to a district judge or a judge of the National Security Court would have been an inadequate and illusory remedy that was bound to fail.",
"2. The Government's submissions",
"64. On this point, the Government contested the Chamber's reasons for finding that there had been a violation of Article 5 § 4. As they had done in the Chamber proceedings, they also raised a preliminary objection of failure to exhaust domestic remedies with regard to all the Article 5 complaints. Neither the applicant's lawyers nor his close relatives had lodged an application with the Mudanya Court of First Instance or a judge of the Ankara National Security Court to challenge his arrest or detention by the police, the length of such detention, or the order requiring his detention pending trial. The Government referred to Article 128 § 4 of the Code of Criminal Procedure, which entitled suspects to apply to the district judge to have the lawfulness of their detention decided or to challenge an order by the public prosecutor's office that they should remain in custody. If the district judge considered the application well-founded, he could order the police not to question the suspect further and to bring him or her before the public prosecutor forthwith. The Government added that by virtue of Article 144 of the Code of Criminal Procedure the applicant's representatives did not require a written authority to make such an application.",
"65. The Government provided the Grand Chamber with examples of decisions in which the courts had examined applications from persons in police custody for a decision on the lawfulness of their detention and, in the absence of an order from the public prosecutor authorising their continued detention, had made an order for the prisoners to be brought before the judge responsible for pre-trial detention at the end of the statutory period for which they could be held in police custody. Each of the applications referred to by the Government was decided on the papers, in the absence of the prisoner.",
"3. The Court's assessment",
"66. The remedy required by Article 5 § 4 must be of a judicial nature, which implies that “the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60). Furthermore, Article 5 § 4 requires that the court invited to rule on the lawfulness of the detention should have jurisdiction to order release if the detention is unlawful (see Weeks v. the United Kingdom, judgment of 2 March 1 987, Series A no. 114, p. 30, § 61).",
"67. In addition, in accordance with the generally recognised rules of international law, there may be special grounds for releasing the applicant from the obligation to exhaust the available domestic remedies (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, §§ 36-40).",
"68. Having examined the examples of judicial decisions produced by the Government, the Court finds that the domestic courts'review of the lawfulness of the detention in these cases (which concerned the arrest, the police custody or the length of such custody) did not comply with the requirements of Article 5 § 4 in two respects. Firstly, in none of the decisions did the domestic courts order the prisoner's release, not even when they found that the statutory period had expired or the public prosecutor had failed to order the prisoner's continued detention. They merely referred the persons concerned to the judge responsible for pre-trial detention.",
"Secondly, in none of the proceedings that resulted in the decisions cited by the Government did the person detained appear before the court. The judge's review was carried out solely on the papers following an application by the lawyer concerned.",
"69. The judicial decisions on which the Government relied in seeking to demonstrate the effectiveness of this remedy were delivered in 2001 and 2003, that is to say at least two years after the applicant's arrest and detention in the present case.",
"70. As regards the special circumstances in which the applicant found himself while in police custody, the Court sees no reason to disagree with the Chamber's finding that the circumstances of the case made it impossible for the applicant to have effective recourse to the remedy referred to by the Government. In its judgment, the Chamber reasoned as follows (see the judgment of 12 March 2003, §§ 72-74):",
"“ ... Firstly, the conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer.",
"... Secondly, as regards the suggestion that the lawyers instructed by the applicant or by his close relatives could have challenged his detention without consulting him, the Court observes that the movements of the sole member of the applicant's legal team to possess an authority to represent him were obstructed by the police ... The other lawyers, who had been retained by the applicant's family, found it impossible to contact him while he was in police custody. Moreover, in view of the unusual circumstances of his arrest, the applicant was the principal source of direct information on events in Nairobi that would have been relevant, at that point in the proceedings, for the purposes of challenging the lawfulness of his arrest.",
"... Lastly, solely with regard to the length of time the applicant was held in police custody, the Court takes into account the seriousness of the charges against him and the fact that the period spent in police custody did not exceed that permitted by the domestic legislation. It considers that, in those circumstances, an application on that issue to a district judge would have had little prospect of success.”",
"71. As to the Government's assertion before the Chamber that the applicant could have claimed compensation under Law no. 466, the Grand Chamber also considers that such a claim cannot constitute proceedings of the type required by Article 5 § 4 for the reasons set out in paragraph 75 of the Chamber judgment, namely the court's lack of jurisdiction to order release if the detention is unlawful or to award reparation for a breach of the Convention if the detention complies with domestic law.",
"72. For the aforementioned reasons, the Court dismisses the preliminary objection in respect of the complaints under Article 5 §§ 1, 3 and 4 of the Convention. It further holds for the same reasons that there has been a violation of Article 5 § 4.",
"B. Article 5 § 1 of the Convention",
"73. The applicant complained that he had been deprived of his liberty unlawfully, without the applicable extradition procedure being followed. He alleged a violation of Article 5 § 1 of the Convention on that account.",
"1. The applicant's submissions",
"74. The applicant contested the Chamber's findings that his detention by Turkish officials was lawful and that his interception by Kenyan officials and transfer to the Turkish aircraft where Turkish officials were waiting for him could not be regarded as a violation of Kenyan sovereignty or international law.",
"In that connection, he maintained that there was prima facie evidence that he had been abducted by the Turkish authorities operating abroad, beyond their jurisdiction, and that it was for the Government to prove that the arrest was not unlawful. The fact that arrest warrants had been issued by the Turkish authorities and a Red Notice circulated by Interpol did not give officials of the Turkish State jurisdiction to operate abroad. On that point, the applicant denied that he was a terrorist and affirmed that his activities were part of the Kurds'struggle to assert their rights.",
"75. The applicant pointed out that no proceedings had been brought to extradite him from Kenya and that the Kenyan authorities had denied all responsibility for his transfer to Turkey. Mere collusion between Kenyan officials operating without authority and the Turkish government could not constitute inter-State cooperation. The Kenyan Minister for Foreign Affairs had stated on 15 February 1999 that the Kenyan authorities had played no role in the applicant's departure and that there had been no Turkish troops in Kenyan territory. The applicant submitted that the Chamber should have attached greater importance to that ministerial announcement, which, in his submission, showed there had been no cooperation between the two governments.",
"The applicant further suggested that the Kenyan officials involved in his arrest had been bribed by Turkish agents and had acted without the authority of the Kenyan government.",
"76. The applicant referred to the case-law of the Convention institutions in Cyprus v. Turkey (no. 800 7/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85) and Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240, p. 29, § 91), and submitted that Turkey was responsible for acts performed by its officials beyond its borders. He maintained that he had been arrested as a result of an operation that had been planned in Turkey, Italy, Greece and other States.",
"77. Referring to Bozano v. France (judgment of 18 December 1986, Series A no. 111, p. 23, § 54), the applicant stressed the need to protect individuals'liberty and security from arbitrariness. He said that in the instant case his forced expulsion had amounted to extradition in disguise and had deprived him of all procedural and substantive protection. He pointed out in that connection that the requirement of lawfulness under Article 5 § 1 applied to both international and domestic law. Contracting States were under an obligation not just to apply their laws in a non-arbitrary manner, but also to ensure that their laws complied with public international law. The applicant added that the guarantees against wrongful deprivation of liberty to which everyone was entitled could not be extinguished by certainty as to the defendant's guilt.",
"78. In his submission, the Commission's decision in Sánchez Ramirez v. France (no. 28780/95, Commission decision of 24 June 1996, DR 86 - B, p. 155) was not relevant to the present case. Whereas in the aforementioned case there had been cooperation between France and Sudan, the Kenyan authorities had not cooperated with the Turkish authorities in the instant case. In the former case, the Commission had taken the view that the applicant was indisputably a terrorist, whereas Mr Öcalan and the PKK had had recourse to force in order to assert the right of the population of Kurdish origin to self-determination.",
"79. Relying on the case-law of various national courts (the House of Lord's decision in R. v. Horseferry Road Magistrates'Court, ex parte Bennett [1994] 1 Appeal Cases 42; the decision of the Court of Appeal of New Zealand in Reg. v. Hartley [1978] 2 New Zealand Law Reports 199; the decision of the United States Court of Appeals (2nd Circuit, 1974) in United States v. Toscanino 555 Federal Reporter (Second Series) 267-68; the decision of 28 May 2001 of the Constitutional Court of South Africa in Mohamed and Dalvie v. President of the Republic of South Africa and Others 2001 (3) South African Law Reports 893 ( CC ) ), the applicant maintained that the arrest procedures that had been followed did not comply with Kenyan law or the rules established by international law, that his arrest amounted to an abduction, and that his detention and trial, which were based on that unlawful arrest, had to be regarded as null and void.",
"80. The applicant also submitted that, contrary to what the Chamber had found, he could not be expected to prove “beyond reasonable doubt” that the operation by Turkish officials on Kenyan territory in the instant case had violated Kenyan sovereignty. He was merely required to adduce prima facie evidence that it had in order for the burden of proof to shift to the respondent Government to show that there had been no violation of Kenyan sovereignty.",
"2. The Government's submissions",
"81. The Government agreed with and supported the Chamber's view that in this type of case cooperation between States confronted with terrorism was normal and did not infringe the Convention.",
"On that point, they maintained that the applicant had been arrested and detained in accordance with a procedure prescribed by law, following cooperation between two States, Turkey and Kenya. They noted that the applicant had entered Kenya not as an asylum-seeker, but by using false identity papers, and added that since Kenya was a sovereign State, Turkey had no means of exercising its authority there. They also pointed out that there was no extradition treaty between Kenya and Turkey.",
"The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities by way of cooperation between the two States. On his arrival in Turkey, he had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, in order to be brought before a judge (the Turkish courts had issued seven warrants for the applicant's arrest before his capture and Interpol had circulated a Red Notice with regard to him ).",
"There had been no extradition in disguise: Turkey had accepted the Kenyan authorities'offer to hand over the applicant, who was in any event an illegal immigrant in Kenya.",
"82. The applicant had thus been brought before a Turkish judicial authority at the end of a lawful procedure, in conformity with customary international law and the policy of cooperation between sovereign States in the prevention of terrorism.",
"3. The Court's assessment",
"(a) General principles",
"83. The Court will consider the complaint in the light of the following principles.",
"On the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person” (see, among other authorities, Bozano, cited above, p. 23, § 54, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24).",
"84. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 753, § 41, and Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49).",
"85. An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned's individual rights to security under Article 5 § 1 (see, to the same effect, Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, opinion of the Commission, p. 24, § 167).",
"86. The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any specific rights recognised in the Convention ( ibid., pp. 24-25, § 169).",
"87. As regards extradition arrangements between States when one is a party to the Convention and the other is not, the rules established by an extradition treaty or, in the absence of any such treaty, the cooperation between the States concerned are also relevant factors to be taken into account for determining whether the arrest that has led to the subsequent complaint to the Court was lawful. The fact that a fugitive has been handed over as a result of cooperation between States does not in itself make the arrest unlawful and does not therefore give rise to any problem under Article 5 (see Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 250; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 225; and Reinette v. France, no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189).",
"88. Inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person, but also tend to undermine the foundations of extradition (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 89).",
"89. The Convention contains no provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. Subject to it being the result of cooperation between the States concerned and provided that the legal basis for the order for the fugitive's arrest is an arrest warrant issued by the authorities of the fugitive's State of origin, even an atypical extradition cannot as such be regarded as being contrary to the Convention (see Sánchez Ramirez, cited above ).",
"90. Irrespective of whether the arrest amounts to a violation of the law of the State in which the fugitive has taken refuge – a question that only falls to be examined by the Court if the host State is a party to the Convention – the Court requires proof in the form of concordant inferences that the authorities of the State to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law (see, mutatis mutandis, Stocké, cited above, p. 19, § 54). Only then will the burden of proving that the sovereignty of the host State and international law have been complied with shift to the respondent Government. However, the applicant is not required to adduce proof “beyond all reasonable doubt” on this point, as was suggested by the Chamber ( see paragraph 92 of the Chamber judgment ).",
"(b) Application of the principles to the present case",
"(i) Whether the arrest complied with Turkish law",
"91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport.",
"It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v. Belgium and Others ( dec. ) [GC], no. 52207/99, ECHR 2001- XII ).",
"92. As to whether the arrest complied with Turkish domestic law, the Court notes that the Turkish criminal courts had issued seven warrants for the applicant's arrest while Interpol had put out a Red Notice. In each of these documents, the applicant was accused of criminal offences under the Turkish Criminal Code, namely founding an armed gang with a view to undermining the territorial integrity of the State and instigating a series of terrorist acts that had resulted in the loss of life. Following his arrest and on the expiry of the statutory period for which he could be held in police custody the applicant was brought before a court. Subsequently, he was charged, tried and convicted of offences under Article 125 of the Criminal Code. It follows that his arrest and detention complied with orders that had been issued by the Turkish courts “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”.",
"(ii) Interception by Kenyan agents",
"93. The Court must decide in the light of the parties'arguments whether the applicant's interception in Kenya immediately before he was handed over to Turkish officials on board the aircraft at Nairobi Airport was the result of acts by Turkish officials that violated Kenyan sovereignty and international law (as the applicant submitted), or of cooperation between the Turkish and Kenyan authorities in the absence of any extradition treaty between Turkey and Kenya laying down a formal procedure (as the Government submitted).",
"94. The Court will begin by examining the evidence on the actual role played by the Kenyan authorities in the present case. The applicant entered Kenya without declaring his identity to the immigration officers. However, once they had been informed of the applicant's presence at the Greek embassy in Nairobi, the Kenyan authorities invited the Greek ambassador, with whom the applicant was staying in Nairobi, to arrange for the applicant to leave Kenyan territory. Shortly before the applicant was due to leave Kenya, more precisely as he was being transferred from the Greek embassy to the airport, Kenyan officials intervened and separated the applicant from the Greek ambassador. The car in which the applicant was travelling was driven by a Kenyan official, who took him to the aircraft in which Turkish officials were waiting to arrest him.",
"95. The Kenyan authorities did not perceive the applicant's arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty. In sum, neither aspect of the applicant's detention – whether his interception by the Kenyan authorities before his transfer to the airport, or his arrest by the Turkish officials in the aircraft – led to an international dispute between Kenya and Turkey or to any deterioration in their diplomatic relations. The Kenyan authorities did not lodge any protest with the Turkish government on these points or claim any redress from Turkey, such as the applicant's return or compensation.",
"96. The Kenyan authorities did, however, issue a formal protest to the Greek government, accompanied by a demand for the Greek ambassador's immediate recall, on the grounds that the applicant had entered Kenya illegally with the help of Greek officials and was unlawfully staying there. The applicant was not welcome in Kenya and the Kenyan authorities were anxious for him to leave.",
"97. These aspects of the case lead the Court to accept the Government's version of events: it considers that at the material time the Kenyan authorities had decided either to hand the applicant over to the Turkish authorities or to facilitate such a handover.",
"98. The applicant has not adduced evidence enabling concordant inferences (see paragraph 90 above) to be drawn that Turkey failed to respect Kenyan sovereignty or to comply with international law in the present case. The Grand Chamber agrees with the Chamber's finding that:",
"“ ... The Court is not persuaded by the statement by the Kenyan Minister for Foreign Affairs on 16 February 1999 that, contrary to what the applicant maintained, the Kenyan authorities had had no involvement in the applicant's arrest or transfer ... While it is true that the applicant was not arrested by the Kenyan authorities, the evidence before the Court indicates that Kenyan officials had played a role in separating the applicant from the Greek ambassador and in transporting him to the airport immediately preceding his arrest on board the aircraft.” (see paragraph 100 of the Chamber judgment)",
"99. Consequently, the applicant's arrest on 15 February 1999 and his detention were in accordance with “a procedure prescribed by law” for the purposes of Article 5 § 1 of the Convention. There has, therefore, been no violation of that provision.",
"C. Article 5 § 3 of the Convention",
"100. The applicant alleged that, contrary to Article 5 § 3 of the Convention, he had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power.",
"1. The applicant's submissions",
"101. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation under this provision as there had been no need for him to be detained for seven days before being brought before a judge. He said that he had been arrested before 11 p.m. on 15 February 1999 and brought before a judge on 23 February 1999. The weather report produced by the Government which spoke of bad weather conditions concerned only the afternoon of 23 February 1999.",
"2. The Government's submissions",
"102. The Government contested the Chamber's finding of a violation in respect of this complaint. They pointed out that at the material time the Turkish rules of criminal procedure permitted police custody to be extended to seven days when the person detained was suspected of terrorist-related offences. In the instant case, the applicant had been arrested on 16 February 1999 and taken into police custody for an initial period of four days ending on 20 February 1999. On the latter date, a court order had been made extending the period to be spent in police custody by three days, that is to say until 23 February 1999. Owing to adverse weather conditions (there was a storm in the region), the representatives of the public prosecutor's office and judge of the National Security Court did not reach the island of İmralı until 22 February 1999. The public prosecutor had questioned the applicant that same day. The applicant had appeared before the judge the following day ( 23 February 1999 ) and the judge had ordered his detention pending trial after hearing his representations.",
"3. The Court's assessment",
"103. The Grand Chamber notes at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A no. 258-B, p. 55, §§ 62-63; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 ‑ III; Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 ‑ B, pp. 31-32, § 58; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000- VIII ).",
"104. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the Chamber's findings, which were as follows:",
"“106. The Court has already noted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems ( see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61; Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58; and Aksoy v. Turkey, [ judgment of 18 December 1996, Reports 1996-VI ], p. 2282, § 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved ( see Sakık and Others v. Turkey, [ judgment of 26 November 1997, Reports 1997-VII ], pp. 2623-24, § 44).",
"107. The Court notes that the police custody in issue commenced with the applicant's arrest either very late on 15 February 1999 or very early on 16 February 1999. The applicant was held in police custody for four days until 20 February 1999. On that date a judicial order was made extending the period by three days, that is to say until 23 February 1999. The public prosecutor questioned the applicant on 22 February 1999. The applicant appeared before a judge for the first time on 23 February 1999 and the judge, who was without any doubt an'officer'within the meaning of Article 5 § 3 (see, among other authorities, Sakık and Others, cited above, p. 2615, § 12, and p. 2624, § 45 ), ordered his detention pending trial. The total period thus spent by the applicant in police custody before being brought before a judge came to a minimum of seven days.",
"108. The Court notes that in Brogan and Others it held that a period of four days and six hours in police custody without judicial supervision fell outside the strict constraints as to time permitted by Article 5 § 3, even when the aim was to protect the community as a whole from terrorism (see Brogan and Others, cited above, p. 33, § 62).",
"109. The Court cannot accept the Government's argument that adverse weather conditions were largely responsible for the period of seven days it took for the applicant to be brought before a judge. No evidence has been adduced before the Court that establishes that the judge attempted to reach the island on which the applicant was being held so that the latter could be brought before him within the total statutory period of seven days allowed for police custody. The Court observes in that connection that the police custody ran its ordinary course under the domestic rules. In addition to the four days ordered by the public prosecutor's office itself, the judge granted an additional period of three days after examining the case on the basis of the file. It seems unlikely that the judge would have granted the additional time had he intended to have the applicant brought before him before it expired.",
"110. The Court cannot, therefore, accept that it was necessary for the applicant to be detained for seven days without being brought before a judge.”",
"105. In the light of all the foregoing considerations, the Court holds that there has been a violation of Article 5 § 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"A. Whether the Ankara National Security Court, which convicted the applicant, was independent and impartial",
"106. The applicant alleged that he had not been tried by an independent and impartial tribunal, since a military judge had sat on the bench during part of the proceedings in the National Security Court. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...”",
"1. The applicant's submissions",
"107. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation on this issue. He said that a judge holding the rank of colonel in the army had sat on the bench of the National Security Court during most of the proceedings. The military judge had been replaced by a civilian judge just one week before the applicant's conviction and two months after the hearings before the National Security Court had started. In the meantime, in a case that concerned a conflict between the organisation led by the applicant and the army in which the military judge was an officer, the military judge had taken part in important interlocutory rulings and discussed the case with the other judges, thereby potentially influencing the conduct and outcome of the proceedings.",
"2. The Government's submissions",
"108. The Government contested the Chamber's finding that the last-minute replacement of the military judge was incapable of curing the defect in the composition of the court or of remedying the resulting violation of Article 6.",
"They pointed out that the military judge had left the National Security Court following legislative amendments. All the members of the court that had convicted the applicant were civilian judges. As regards the period prior to the military judge's replacement, the Government noted that a civilian substitute judge had been following the proceedings from the start and had attended the hearings. In addition, the military judge had been replaced by the substitute judge before the stage in the proceedings in which evidence was gathered had ended. Had the substitute judge considered that the National Security Court needed to make further investigations, he could have voted against making an order to close that stage of the proceedings.",
"109. The Government invited the Grand Chamber to follow the Court's decision in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), in which it held that the replacement of a military judge by a civilian judge in the course of criminal proceedings had solved the problem regarding the independence and impartiality of the national security court concerned.",
"110. They objected in particular to the Chamber's use of the “last minute” criterion in its judgment in the present case. That criterion would have been valid had the new judge not been given sufficient time to examine the interlocutory decisions taken up to that point or been precluded from issuing new ones. However, in the Government's submission, the replacement judge had been given both the time and the means necessary to play an active role in the decision-making process.",
"111. The Government further maintained that the applicant himself had had no doubts about the independence and impartiality of the National Security Court. He had in fact expressed his confidence in that court at a hearing at which the military judge had been present. It mattered little that the applicant's lawyers had subsequently contradicted Mr Öcalan's remark in their submissions. The most important point was that that remark – which had been made of the applicant's own free will and expressed his confidence in the court – had been sincere.",
"3. The Court's assessment",
"112. The Court has consistently held that certain aspects of the status of military judges sitting as members of the national security courts made their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998 - VII, p. 3073, § 39).",
"113. It is understandable that the applicant – prosecuted in a national security court for serious offences relating to national security – should have been apprehensive about being tried by a bench that included a regular army officer belonging to the military legal service. On that account he could legitimately fear that the National Security Court might allow itself to be unduly influenced by considerations that had nothing to do with the nature of the case (see, among other authorities, Iprahim Ülger v. Turkey, no. 57250/00, 29 July 2004 ).",
"114. As to whether the military judge's replacement by a civilian judge in the course of the proceedings before the verdict was delivered remedied the situation, the Court considers, firstly, that the question whether a court is seen to be independent does not depend solely on its composition when it delivers its verdict. In order to comply with the requirements of Article 6 regarding independence, the court concerned must be seen to be independent of the executive and the legislature at each of the three stages of the proceedings, namely the investigation, the trial and the verdict (those being the three stages in Turkish criminal proceedings according to the Government).",
"115. Secondly, when a military judge has participated in one or more interlocutory decisions that continue to remain in effect in the criminal proceedings concerned, the accused has reasonable cause for concern about the validity of the entire proceedings, unless it is established that the procedure subsequently followed in the national security court sufficiently dispelled that concern. More specifically, where a military judge has participated in an interlocutory decision that forms an integral part of proceedings against a civilian, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court.",
"116. In its previous judgments, the Court attached importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces ( see, among other authorities, Incal, cited above, p. 1573, § 72). Such a situation seriously affects the confidence the courts must inspire in a democratic society (see, mutatis mutandis, Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).",
"117. In the instant case, the Court notes that before his replacement on 23 June 1999 the military judge was present at two preliminary hearings and six hearings on the merits, when interlocutory decisions were taken. It further notes that none of the decisions were renewed after the replacement of the military judge and that all were validated by the replacement judge.",
"118. In these circumstances, the Court cannot accept that the replacement of the military judge before the end of the proceedings dispelled the applicant's reasonably held concern about the trial court's independence and impartiality. In so far as the decision or reasoning in İmrek, cited above, may be regarded as inconsistent with this conclusion, the Grand Chamber will not follow the decision and the reasoning in that case.",
"Consequently, there has been a violation of Article 6 § 1 of the Convention on this point.",
"B. Whether the proceedings in the National Security Court were fair",
"119. The applicant complained that the provisions of Article 6 §§ 1, 2 and 3 of the Convention had been infringed owing to the restrictions and difficulties he had encountered in securing assistance from his lawyers, gaining access – for both himself and his lawyers – to the case file, calling defence witnesses and securing access for his lawyers to all the information held by the prosecution. He also alleged that the media had influenced the judges to his detriment.",
"120. The relevant part of Article 6 of the Convention reads as follows:",
"“1. ... everyone is entitled to a fair ... hearing within a reasonable time ...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"...”",
"1. The applicant's submissions",
"121. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had a fair trial. He set out the principal reasons why he considered that his trial failed to satisfy the requirements of Article 6.",
"He observed that unfettered, confidential and prompt access to legal assistance of one's choosing at all stages of the proceedings from the instant a person is detained was one of the fundamental requirements of a fair hearing in a democratic society. In the present case, however, he had had difficulty contacting his lawyers and that had affected his defence rights. In that connection, he explained that his lawyers had not been allowed to visit him until ten days after his arrest, by which time he had already made statements to the judicial authorities. He had also encountered difficulties in appointing lawyers of his choice, and that process had taken some time. His first meeting with his lawyers had taken place in the presence of members of the security forces. The other visits by his lawyers had been overseen and listened in to by the authorities and filmed with a video camera. Ultimately, the applicant considered that he had not been able to confer in private with his lawyers, in breach of the mandatory provisions of the Code of Criminal Procedure. After two short initial visits, contact with his lawyers had been limited to two weekly visits of an hour each. In proceedings that had been conducted extremely quickly and had produced an enormous case file, the total duration of the visits had been manifestly insufficient for him to prepare his defence. In any event, the applicant's lawyers had not enjoyed the same facilities as the members of the prosecution for travelling to the place of detention and the trial centre.",
"122. The applicant stressed that for the purposes of preparing the defence it had been vital for him and his lawyers to be given full, effective access to all the documents in the case file, including documents whose relevance to the issues of guilt and sentencing was only potential. However, his lawyers had not been permitted to provide him with a copy of the trial papers or any other material that would assist him in the preparation of his defence. He had been obliged to write out his defence by hand, without having access to any of the documents in the case file other than the bill of indictment, with which he had already been provided.",
"123. Furthermore, because of the speed with which the proceedings had been conducted, his lawyers had had difficulty in consulting all the documents in the file. They were given access to the case file, which ran to 17,000 pages, just sixteen days before the hearings started. The defence's ability to analyse the documents had been further hampered by, inter alia, the restrictions imposed throughout the investigation on communications between the applicant and his lawyers. The National Security Court had nonetheless dismissed an application by the applicant's lawyers for additional evidence to be taken. The applicant added that, while before the National Security Court he had accepted political responsibility for the PKK's general policy, he had denied criminal liability for acts of violence that went beyond the PKK's stated policy. It had been with a view to highlighting the rapprochement between the PKK and the government that the applicant had made a request for the members of the government team that had led the negotiations with the PKK to be heard as defence witnesses.",
"124. In conclusion, the applicant said that he had not enjoyed equality of arms with the prosecution in preparing his defence, in particular as a result of the difficulties that had prevented him and his lawyers from having sufficient time to confer in private, obtaining effective access to the case file and putting forward his defence in a secure environment.",
"2. The Government's submissions",
"125. The Government disagreed with the Chamber's findings regarding the fairness of the applicant's trial; in their submission, it had been fair. In that connection, they observed firstly that the applicant had been convicted under Article 125 of the Criminal Code, the aim of which was to protect the democratic values of the Republic. The Criminal Divisions of the Turkish Court of Cassation, sitting in plenary session, had held that the PKK was an organisation that resorted to force and acts of violence with a view to bringing about the secession of part of Turkish territory to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The acts of violence perpetrated by the PKK and acknowledged by the applicant at his trial had involved some 6,036 armed attacks on civilians, 8,257 armed confrontations with the security forces, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings. Those acts came within the list of terrorist acts set out in Articles 1 and 2 of the European Convention on the Suppression of Terrorism. The Government noted that the applicant had admitted before the courts that he had played a role in the creation and organisation of the PKK and in the planning and perpetration of acts of violence committed by members of that organisation.",
"126. As regards the rights of the defence, the Government noted that the applicant had had a public hearing, had been able to participate fully in the hearings with the help of the special measures taken to ensure his safety, had addressed the court without being interrupted, and had said everything he wished to say in his defence. They said that the applicant had been provided with every facility for the preparation of his defence: he had been able to consult the lawyers of his choice during both the preliminary investigation and the trial and, with the exception of the first visit, the only restrictions to which his lawyers'visits had been subject were those set out in the Code of Criminal Procedure. Furthermore, the applicant's lawyers had made no request to see their client at more frequent intervals. There had been no restrictions on the applicant's correspondence and he had been able to lodge with the National Security Court eighty pages of defence submissions he had drafted himself.",
"127. As regards the applicant's access to the case file, the Government maintained that even before the hearings on the island of İmralı the applicant's lawyers had been given an opportunity to photocopy all the documents in the case file. The 17,000 -page case file had, in fact, been compiled from the case files in seven sets of criminal proceedings that had already been instituted in various national security courts several years before the applicant's arrest, and the applicant was already familiar with the papers. In any event, very few new documents had been added to the case file. The Government asserted that the National Security Court had communicated all the relevant documents to the applicant and allowed him to study the case file and any annexes he wished to see under the supervision of two officials. It had also informed the applicant that it would provide him with a copy of any document he thought might assist him with his defence. The applicant had in fact had sufficient time (twenty days) in which to acquaint himself with the relevant material in the case file.",
"128. On this point, the Government also argued that, contrary to what the Chamber had found, the Court's case-law in Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B, p. 42, § 52) and Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168, pp. 39 -40, § 88) was applicable in the instant case. There was no requirement under that case-law for the accused to be given direct access to the case file. It was sufficient for him to be apprised of its content by his representatives. Requiring such access to be afforded in the prosecution of organised crime would discriminate against those accused of ordinary offences.",
"Furthermore, the applicant had acknowledged his responsibility for the acts of the PKK, the organisation he had led before his arrest. Even if he had examined the acts of the other PKK members in greater detail, he would not have found any evidence to assist him in his defence.",
"129. Among the other facilities that had been made available to assist the applicant with his defence, a photocopier had been installed in the hearing room for the use of the lawyers, on the instructions of the President of the National Security Court. Furthermore, the lawyers had been taken to the island of İmralı by boat, embarking at a private quay for security reasons. Hotel rooms had been reserved for them near the embarkation point. If the lawyers were not present at a hearing, transcripts of the hearing and copies of any fresh documentary evidence had been delivered to them the next day. Counsel for the applicant had thanked the President of the National Security Court for establishing a dispassionate atmosphere.",
"3. The Court's assessment",
"130. The Court considers that in order to determine whether the rights of the defence were respected in the criminal proceedings against the applicant, it is necessary to examine the legal assistance available to him and the access he and his lawyers were given to the case file.",
"(a) Legal assistance",
"(i) The applicant's lack of access to a lawyer while in police custody",
"131. The Grand Chamber sees no reason to disagree with the Chamber's finding that the applicant's lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows:",
"“ ... The Court reiterates that Article 6 may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it ( see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing ( see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63).",
"... In the present case, the applicant was questioned by the security forces, a public prosecutor and a judge of the National Security Court while being held in police custody in Turkey for almost seven days, from 16 February 1999 to 23 February 1999. He received no legal assistance during that period and made several self-incriminating statements that were subsequently to become crucial elements of the indictment and the public prosecutor's submissions and a major contributing factor in his conviction.",
"... As to whether the applicant had waived his right to consult a lawyer, the Court notes that on the day after his arrest, his lawyer in Turkey, Mr Feridun Çelik (who already possessed a valid authority), sought permission to visit him. However, Mr Çelik was prevented from travelling by members of the security forces. In addition, on 22 February 1999 sixteen lawyers who had been retained by the applicant's family sought permission from the National Security Court to visit the applicant, but their request was turned down by the authorities on 23 February 1999.",
"... In these circumstances, the Court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of Article 6 ( see, mutatis mutandis, Magee [ v. the United Kingdom, no. 28135/95 ], §§ 44-45 [, ECHR 2000-VI] ).”",
"(ii) Consultation with his lawyers out of the hearing of third parties",
"132. In the absence of any specific observations by the parties on this point in the proceedings before it, the Grand Chamber endorses the Chamber's findings:",
"“ ... the applicant's first visit from his lawyers took place under the supervision and within sight and hearing of members of the security forces and a judge, all of whom were present in the same room as the applicant and his lawyers. The security forces restricted the visit to twenty minutes. The record of the visit was sent to the National Security Court.",
"... As regards subsequent visits, ... the Court accepts that meetings between the applicant and his lawyers after the initial visit took place within hearing of members of the security forces, even though the security officers concerned were not in the room where the meetings took place.”",
"133. The Grand Chamber agrees with the Chamber's assessment of the effects of the applicant's inability to consult his lawyers out of the hearing of third parties:",
"“ ... an accused's right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective ( see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, pp. 15- 16, § 48). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, as stated above ... restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.",
"... In the present case, the Court accepts ... that the applicant and his lawyers were unable to consult out of the hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that might prove important to the preparation of his defence. The rights of the defence were thus significantly affected.",
"... The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the National Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of the hearing of third parties.",
"... As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security.”",
"Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence.",
"(iii) Number and length of the visits by the applicant's lawyers",
"134. After the first two visits by his lawyers, which were approximately two weeks apart, contact between the applicant and his lawyers was restricted to two one-hour visits per week.",
"135. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the following findings of the Chamber:",
"“ ... while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to'defend himself in person or through legal assistance ...', it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial ( see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). In this respect, it must be remembered that the Convention is designed to'guarantee not rights that are theoretical or illusory but rights that are practical and effective'and that assigning a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15- 16, § 33). The Court also points out that the manner in which Article 6 §§ 1 and 3 (c) are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( see Imbrioscia, cited above, pp. 13- 14, § 38).",
"... The Court observes that, in the instant case, the charges against the applicant included numerous acts of violence perpetrated by an illegal armed organisation and that he was alleged to be the leader of that organisation and the principal instigator of its acts. The Court further notes that the presentation of those highly complex charges generated an exceptionally voluminous case file ... It considers that in order to prepare his defence to those charges the applicant required skilled legal assistance equal to the complex nature of the case. It finds that the special circumstances of the case did not justify restricting the applicant to a rhythm of two one-hour meetings per week with his lawyers in order to prepare for a trial of that magnitude.",
"... With respect to the Government's argument that visits took place in accordance with the frequency and departure times of the ferries between the island of İmralı and the coast, the Court considers that, while the Government's decision to hold the applicant in an island prison far from the coast is understandable in view of the exceptional security considerations in the case, restricting visits to two one-hour visits a week is less easily justified. It notes that the Government have not explained why the authorities did not permit the lawyers to visit their client more often or why they failed to provide more adequate means of transport, thereby increasing the length of each individual visit, when such measures were called for as part of the'diligence'the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner ( see Colozza [ v. Italy, judgment of 12 February 1985, Series A no. 89 ], pp. 14- 15, § 28).",
"... As to the Government's argument that the applicant's lawyers organised press conferences after each visit and acted as spokespersons for the PKK, the Court holds that any such conduct on their part could not justify the restrictions in issue, since restrictions cannot be placed on the rights of the defence for reasons that are not directly related to the trial. In addition, there is no evidence before the Court that any complaint was lodged in Turkey against the applicant's lawyers for acting as spokespersons for the PKK.”",
"136. The Government's argument before the Grand Chamber that the applicant's lawyers had not asked to see him at more frequent intervals must also be rejected. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention must be established in an unequivocal manner (see, mutatis mutandis, Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16 -17, § 37). It notes that there was in fact a complaint by the applicant's lawyers to the National Security Court about the difficulties they had encountered in communicating with their client.",
"137. Consequently, the Court considers that the restriction on the number and length of the applicant's meetings with his lawyers was one of the factors that made the preparation of his defence difficult.",
"(b) The applicant's access to the case file",
"138. The Court must next examine whether the fact that the applicant was prevented from obtaining communication of the documents in the case file (apart from the bill of indictment) until 4 June 1999 violated the rights of the defence, as guaranteed by Article 6 § 1, taken together with the rights guaranteed by Article 6 § 3, as it was not until the hearing on that date that the National Security Court gave the applicant permission to consult the case file under the supervision of two registrars and gave his lawyers permission to provide him with copies of certain documents.",
"139. The Court will first examine the submission made by the Government before the Grand Chamber that the decisions in Kremzow and Kamasinski, both cited above, are applicable in the instant case. These authorities establish that an accused does not have to be given direct access to the case file, it being sufficient for him to be informed of the material in the file by his representatives. The Court also notes that, relying on those same authorities, the Government have already argued before the Chamber that restricting the right to inspect the court file to an accused's lawyer is not incompatible with the rights of the defence.",
"140. When examining these issues, the Court will have regard to its case-law to the effect that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, § 47). The Court further considers that respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see, mutatis mutandis, Kremzow, cited above, p. 44, § 63).",
"141. As regards the relevant facts in the present case, the Grand Chamber agrees with the following findings of the Chamber:",
"“ ... in the instant case, the applicant was not permitted to inspect the evidence produced by the prosecution personally before the hearings. When the applicant's lawyers made their comments on that evidence, they had yet to obtain the applicant's observations following a direct inspection of the documentation. The fact that the applicant was given permission on 2 June 1999 to consult the case file under the supervision of two registrars did little to remedy that situation, in view of the considerable volume of documents concerned and the short time available to the applicant.”",
"142. The Grand Chamber therefore considers that the present case is distinguishable from Kremzow, in which the applicant had twenty-one days in which to examine forty-nine pages, in contrast to Mr Öcalan, who had twenty days in which to examine a case file containing some 17,000 pages. The present case is also distinguishable from Kamasinski, in which the applicant's lawyer was able to pass on to his client copies of all the documents he considered relevant. Mr Öcalan's lawyers were not able to provide him with any documents before submitting their comments on the prosecution evidence.",
"143. The Government's argument that a more detailed examination by the applicant of the material relating to the acts of the other members of the PKK would not have permitted him to find evidence to assist him in his defence as he had already acknowledged responsibility for the acts of the PKK also warrants examination by the Court. It should be noted that while the applicant admitted before the National Security Court that he was the leader of the PKK, an armed separatist organisation, and responsible for the general policy of that organisation, he did not specifically comment on each act of violence committed by PKK members. He did say in his defence, however, that certain acts of violence had been committed against his will or beyond his control.",
"It is thus reasonable to assume that, had he been permitted to study the prosecution evidence directly for a sufficient period, the applicant would have been able to identify arguments relevant to his defence other than those his lawyers advanced without the benefit of his instructions.",
"144. The Court therefore holds that the fact that the applicant was not given proper access to any documents in the case file other than the bill of indictment also served to compound the difficulties encountered in the preparation of his defence.",
"(c) Access by the applicant's lawyers to the court file",
"145. Together with the issue of the applicant's access to his case file, the Court must also determine whether, in the instant case, the lawyers'access to the documents in the case file was restricted, either formally or in practice, and, if so, whether the restrictions affected the fairness of the proceedings.",
"146. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment on them (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, pp. 27 -28, §§ 66-67).",
"147. In the present case, the bill of indictment was served on the applicant and his lawyers on 24 April 1999. The court file was placed at the disposal of the applicant's lawyers on 7 May 1999, but they were not provided with a copy. The applicant's lawyers finished photocopying the documents on 15 May 1999. They were in possession of the full file in the case from that date onwards. Two weeks later, on 31 May 1999, the hearings before the National Security Court began. The applicant's lawyers were invited to make their final submissions – in reply to the prosecution's submissions – at the eighth substantive hearing, which was held on 23 June 1999.",
"In these circumstances, the Grand Chamber agrees with the Chamber's findings regarding the difficulties the applicant's lawyers encountered in gaining access to the court file, which were exacerbated by the same kinds of problem the applicant had experienced:",
"“ ... the applicant's lawyers received a 17,000- page file approximately two weeks before the beginning of the trial in the National Security Court. Since the restrictions imposed on the number and length of their visits made it impossible for the applicant's lawyers to communicate the documents in the file to their client before 2 June 1999 or to involve him in its examination and analysis, they found themselves in a situation that made the preparation of the defence case particularly difficult. Subsequent developments in the proceedings did not permit them to overcome those difficulties: the trial proceeded apace; the hearings continued without interruption until 8 June 1999; and on 23 June 1999 the applicant's lawyers were invited to present their submissions on all the evidence in the file, including that taken at the hearings.”",
"(d) The Court's conclusion regarding the fairness of the trial",
"148. Accordingly, the applicant's trial was unfair for the following reasons : he had no assistance from his lawyers during questioning in police custody; he was unable to communicate with his lawyers out of the hearing of third parties; he was unable to gain direct access to the case file until a very late stage in the proceedings; restrictions were imposed on the number and length of his lawyers'visits; and, lastly, his lawyers were given proper access to the case file belatedly. The Court finds that the overall effect of these difficulties taken as a whole so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, was contravened. There has therefore been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b) and (c).",
"149. As regards the other complaints under Article 6 of the Convention, the Court considers that it has already dealt with the applicant's main grievances arising out of the proceedings against him in the domestic courts. It therefore holds that it is unnecessary to examine the other complaints under Article 6 relating to the fairness of the proceedings.",
"III. DEATH PENALTY: ALLEGED VIOLATION OF ARTICLES 2, 3 AND 14 OF THE CONVENTION",
"150. The applicant maintained that the imposition and/or execution of the death penalty constituted a violation of Article 2 of the Convention – which should be interpreted as no longer permitting capital punishment – as well as an inhuman and degrading punishment in violation of Article 3. He also claimed that his execution would be discriminatory and, therefore, in breach of Article 14. The relevant parts of these provisions provide:",
"Article 2",
"“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.",
"... ”",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Implementation of the death penalty",
"151. In his initial application, the applicant complained that any recourse to the death penalty would violate both Articles 2 and 3 of the Convention.",
"152. In its judgment, the Chamber said that it considered that the threat of implementation of the death sentence had been effectively removed (see paragraphs 184- 85 of the Chamber judgment).",
"153. The parties did not comment on this issue in the subsequent proceedings.",
"154. In this connection, the Court notes that the death penalty has been abolished in Turkey and the applicant's sentence has been commuted to life imprisonment. Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6 to the Convention concerning the abolition of the death penalty.",
"155. In these circumstances, the complaints the applicant made in his initial application of violations of Articles 2, 3 and 14 on account of the implementation of the death penalty must be dismissed. Accordingly, there has been no violation of those provisions on that account.",
"B. Imposition of the death penalty",
"156. The Grand Chamber agrees with the Chamber that no separate issue arises under Article 2 with respect to the imposition of the death penalty. It will therefore examine this point under Article 3.",
"1. The parties'submissions",
"(a) The applicant",
"157. The applicant asked the Grand Chamber to pursue the reasoning of the Chamber as regards the abolitionist trend established by the practice of the Contracting States and to take it a stage further by concluding that the States had, by their practice, abrogated the exception set out in the second sentence of Article 2 § 1 of the Convention and that the death penalty constituted inhuman and degrading treatment within the meaning of Article 3. In that connection, he repeated the observations he had submitted to the Chamber (see paragraphs 175- 79 of the Chamber judgment).",
"When the Convention was signed in 1950, the death penalty was not perceived as a degrading and inhuman punishment in Europe and was provided for in the legislation of a number of States. Since that time there had been de facto abolition throughout Europe. Such developments should be seen as an agreement by Contracting States to amend Article 2 § 1.",
"158. No construction of Article 2 should permit a State to inflict inhuman and degrading treatment since the death penalty per se constituted such treatment in breach of Article 3 of the Convention. In that latter respect, the following submissions were made.",
"159. Developments in international and comparative law showed that the death penalty could also be seen to be contrary to international law. In that respect, reference was made, inter alia, to a judgment of the South African Constitutional Court in which it was held that the death penalty was contrary to the South African Constitution's prohibition of cruel, inhuman or degrading treatment ( see S. v. Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665), and to the judgment of the Canadian Supreme Court in United States v. Burns [ 2001 ] Supreme Court Reports 283, where that court, in a case concerning the extradition of a fugitive to the United States of America, considered capital punishment to amount to cruel and unusual punishment. The United Nations Human Rights Committee had also held that execution of a death sentence constituted cruel and inhuman treatment contrary to Article 6 of the International Covenant on Civil and Political Rights (see paragraph 60 above). Reference was also made to similar statements by the Hungarian Constitutional Court and the Constitutional Courts of Ukraine, Albania, Lithuania and Republika Srpska (within Bosnia and Herzegovina ).",
"160. Finally, the applicant maintained that the imposition of the death penalty by a court that failed to satisfy the requisite standards of the Convention and permitted violations of the applicant's rights under Article 6 also violated Articles 2 and 3.",
"(b) The Government",
"161. The Government disagreed with the Chamber's finding that the imposition of the death penalty following an unfair trial constituted a violation of Article 3.",
"They observed, firstly, that neither the applicant nor his lawyers had presented any argument on this point. Secondly, even assuming that the Court had decided of its own motion to examine the case under Article 3, it would be difficult if not impossible to do so in view of the nature of Article 3. Inhuman treatment within the meaning of Article 3 was based on a subjective concept, that is to say fear and anguish felt by the applicant that reached the level proscribed by Article 3. In the absence of such a complaint, it was not possible for the Court to put itself in the applicant's position.",
"In the Government's submission, the conclusion reached by the Chamber was contrary to an earlier admissibility decision of the Commission in Çınar v. Turkey ( no. 178 64/91, Commission decision of 5 September 1994, DR 79 -A, p. 5) and to Sertkaya v. Turkey ( (dec.), no. 77113/01, 11 December 2003 ). In those decisions, the Convention institutions found that the applicants had not felt fear or anguish as the moratorium on the implementation of the death penalty had eliminated any risk of their being executed.",
"The applicant's situation was identical to that of Mr Çınar and Mr Sertkaya, and the guarantees that the death penalty would not be carried out were, if anything, firmer in his case: as the applicant's case file had never been sent to Parliament, the procedure allowing the death penalty to be implemented was never set in motion. In addition, the Turkish government's moratorium on the implementation of the death penalty was unconditional and no offences or individuals were excluded from its scope. The Government had complied with the interim measure ordered by the Court under Rule 39 requiring them to stay the applicant's execution. There was a broad consensus in Parliament in Turkey that the applicant should not be executed, the composition of Parliament at the material time being the same as when it abolished the death penalty.",
"The Government submitted that there was no evidential basis for the Chamber's finding, nor could it be justified by the Court's request for a stay of execution of the death penalty.",
"Lastly, the Turkish government's decision to comply with the European norms on capital punishment had eliminated all risk that the applicant would be executed.",
"2. The Court's assessment",
"(a) Legal significance of the practice of the Contracting States as regards the death penalty",
"162. The Court must first address the applicant's submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103).",
"163. The Grand Chamber agrees with the following conclusions of the Chamber on this point (see paragraphs 19 0 - 96 of the Chamber judgment):",
"“ ... The Court reiterates that it must be mindful of the Convention's special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case.",
"... It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 ( ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04).",
"... The applicant takes issue with the Court's approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6.",
"... The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).",
"... It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 195 3 and indeed since the Court's judgment in Soering in 1989.",
"... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia [ [1] ]. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment.",
"... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.”",
"164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.",
"165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.",
"(b) Unfair proceedings and the death penalty",
"(i) Under Article 2",
"166. As regards the reference in Article 2 of the Convention to “the execution of a sentence of a court”, the Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201- 04 of the Chamber judgment):",
"“ ... Since the right to life in Article 2 of the Convention ranks as one of the most fundamental provisions of the Convention – one from which there can be no derogation in peacetime under Article 15 – and enshrines one of the basic values of the democratic societies making up the Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), a fortiori the second sentence of Article 2 § 1.",
"... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that'[e] veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention ( see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59).",
"... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the'execution of a sentence of a court', that the'court'which imposes the penalty be an independent and impartial tribunal within the meaning of the Court's case-law ( see Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154), and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty is irreversible, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the decisions of the United Nations Human Rights Committee ...; also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of Human Rights on'The right to information on consular assistance in the framework of the guarantee of due process of law', §§ 135 ‑ 36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148 ...). Lastly, the requirement in Article 2 § 1 that the penalty be'provided by law'means not only that there must exist a basis for the penalty in domestic law but that the requirement of the quality of the law be fully respected, namely that the legal basis be'accessible'and'foreseeable'as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).",
"... It follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible.”",
"(ii) Under Article 3",
"167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances.",
"168. As the Court has previously noted in connection with Article 3, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering, cited above, p. 41, § 104).",
"169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention.",
"(iii) Application of these principles to the present case",
"170. The Court notes that there has been a moratorium on the implementation of the death penalty in Turkey since 1984 and that in the present case the Government complied with the Court's interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted that the applicant's file was not sent to Parliament for approval of the death sentence, as was then required by the Turkish Constitution.",
"171. The Court has also had regard, in this context, to Çınar ( cited above ) in which the Commission rejected a claim that Article 3 had been violated in the case of an applicant who had been sentenced to death in Turkey. In its reasoning, the Commission took into account the long-standing moratorium on the death penalty and concluded in the circumstances of that case that the risk of the penalty being implemented was illusory.",
"172. The Grand Chamber agrees with the Chamber that the special circumstances of the instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant's background as the founder and leader of the PKK, an organisation that had been engaged in a sustained campaign of violence causing many thousands of casualties, had made him Turkey's most wanted person. In view of the fact that the applicant had been convicted of the most serious crimes existing in the Turkish Criminal Code and of the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it is not possible to rule out the possibility that the risk that the sentence would be implemented was a real one. In practical terms, the risk remained for more than three years of the applicant's detention in İmralı, from the date of the Court of Cassation's judgment of 25 November 1999 affirming the applicant's conviction until the Ankara National Security Court's judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to imprisonment.",
"173. As to the nature of the applicant's trial, the Court refers to its conclusions on the applicant's complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers'visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly.",
"174. The death penalty has thus been imposed on the applicant following an unfair procedure which cannot be considered to conform to the strict standards of fairness required in cases involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of that sentence for nearly three years.",
"175. Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION: CONDITIONS OF DETENTION",
"176. The applicant further complained that the conditions in which he had been transferred from Kenya to Turkey and detained on the island of İmralı amounted to treatment contrary to Article 3 of the Convention, which provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Conditions in which the applicant was transferred from Kenya to Turkey",
"1. The applicant's submissions",
"177. The applicant said that he had been “abducted” in Kenya by Turkish officials and that his abduction necessarily constituted a violation of his right to respect for his physical integrity. He added that the circumstances in which the arrest had been effected also amounted to degrading and inhuman treatment. In his submission, the fact that he had been abducted for political reasons was in itself capable of constituting a breach of Article 3.",
"2. The Government's submissions",
"178. The Government asked the Grand Chamber to uphold the Chamber's finding that the conditions in which the applicant was transferred from Kenya to Turkey did not infringe Article 3.",
"3. The Court's assessment",
"(a) General principles",
"179. Article 3 of the Convention enshrines one of the fundamental values of democratic societies (see Soering, cited above, pp. 34 -35, § 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their populations from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Article 3 makes no provision for exceptions and no derogation from it is permissible even under Article 15 of the Convention in time of war or other national emergency ( see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79).",
"180. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., pp. 64 ‑ 65, § 161).",
"181. Treatment will be considered to be “inhuman” within the meaning of Article 3 where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).",
"182. Handcuffing, one of the forms of treatment complained of in the present case, does not normally give rise to an issue under Article 3 of the Convention where it has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage. In addition, the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration ( see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Raninen, cited above, p. 2822, § 56).",
"183. Artificially depriving prisoners of their sight by blindfolding them for lengthy periods spread over several days may, when combined with other ill-treatment, subject them to strong psychological and physical pressure. The Court must examine the effect of such treatment in the special circumstances of each case (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/ 93, § 132, ECHR 2000-VII).",
"(b) Application of the above principles to the instant case",
"184. The Grand Chamber has examined the Chamber's findings and, in the absence of any additional arguments by the parties in support of their views, adopts them:",
"“ ... the applicant was forced to wear handcuffs from the moment of his arrest by the Turkish security forces on the aircraft until his arrival at the prison on the island of İmralı. [The Court] also notes that he was suspected of being the leader of an armed separatist movement that was engaged in an armed struggle against the Turkish security forces and that he was considered dangerous. The Court accepts the Government's submission that the sole purpose of requiring the applicant to wear handcuffs as one of the security measures taken during the arrest phase was to prevent him from attempting to abscond or causing injury or damage to himself or others.",
"... As regards the blindfolding of the applicant during his journey from Kenya to Turkey, the Court observes that that was a measure taken by the members of the security forces in order to avoid being recognised by the applicant. They also considered that it was a means of preventing the applicant from attempting to escape or injuring himself or others. The applicant was not questioned by the security forces when he was blindfolded. The Court accepts the Government's explanation that the purpose of that precaution was not to humiliate or debase the applicant but to ensure that the transfer proceeded smoothly and it acknowledges that, in view of the applicant's character and the reaction to his arrest, considerable care and proper precautions were necessary if the operation was to be a success.",
"... The Court's view on this point is not altered by the fact that the applicant was photographed wearing a blindfold in the aircraft that took him back to Turkey. It points out that there had been fears for the applicant's life following his arrest and the photographs, which the Government say were intended for use by the police, served to reassure those concerned about his welfare. The Court notes, lastly, that the applicant was not wearing a blindfold when he was photographed in Turkey shortly before his transfer to the prison.",
"... The applicant said that he was under sedation when he was transferred from Kenya to Turkey, the drugs having been administered to him either at the Greek embassy in Nairobi before he boarded the plane or in the aircraft that had taken him to Turkey. The Government rejected the latter suggestion. The Court notes that there is no evidence in the case file to substantiate the allegation that the Turkish security forces administered drugs to the applicant. Since the applicant also seems to think that the most probable explanation is that he was drugged before he was put on board the flight from Nairobi to Turkey, the Court considers that this allegation against the Turkish officials has not been established.",
"... Furthermore, at the hearing on 31 May 1999 the applicant stated in the National Security Court :'Since my arrest I have not up to now been subjected to torture, ill-treatment or verbal abuse .'While the applicant's vulnerability at the time as a result of his being on trial for a capital offence means that that statement does not by itself conclusively establish the facts, it does support the Government's submissions.",
"... Lastly, since the applicant's arrest was lawful under Turkish law, the Court cannot accept the applicant's submission that his'abduction'abroad on account of his political opinions constituted inhuman or degrading treatment within the meaning of Article 3.",
"... That being so, the Court considers that it has not been established'beyond all reasonable doubt'that the applicant's arrest and the conditions in which he was transferred from Kenya to Turkey exceeded the usual degree of humiliation that is inherent in every arrest and detention or attained the minimum level of severity required for Article 3 of the Convention to apply.”",
"185. Consequently, there has been no violation of Article 3 on that account.",
"B. Conditions of detention on the island of İmralı",
"1. The applicant's submissions",
"186. The applicant disagreed with the Chamber's finding that the conditions of his detention on the island of İmralı did not infringe Article 3. He submitted that the conditions were inhuman within the meaning of Article 3 or at the very least entailed disproportionate interference with the exercise of his rights under Article 8. He had been the sole inmate in the prison for more than five years and his social isolation was made worse by the ban on his having a television set or communicating by telephone, and by the practical obstacle inadequate sea transport facilities posed to visits by his lawyers and members of his family. The applicant pointed out that the CPT's recommendations for reduced social isolation had not been followed by the prison authorities. His prison conditions were, in his submission, harsher than those of other prisoners.",
"The applicant said that his health had deteriorated as a result of the particular weather conditions that prevailed on the island of İmralı and that the Government's insistence on keeping him in that prison had more to do with their repressive attitude than security. There was no justification for the Government's refusal to transfer him to an ordinary prison or to allow visitors to travel to the island by helicopter.",
"2. The Government's submissions",
"187. The Government invited the Grand Chamber to endorse the Chamber's finding that the conditions of the applicant's detention on the island of İmralı did not infringe Article 3. They pointed out that the applicant had at no stage been held in cellular confinement. He received visits from his lawyers and members of his family every week. The adverse maritime weather conditions in the winter of 200 2- 03 that had been responsible for the cancellation of some visits were highly unusual.",
"188. The Government produced photographs which in their submission showed that the applicant's cell was suitably furnished. They pointed out that the applicant had been tried and convicted of being the head of a major armed separatist organisation that continued to regard him as its leader. All the restrictions imposed on his telephone communications were intended to prevent the applicant from continuing to run the organisation from his prison cell, and that was a national security issue. However, he was able to read books and daily newspapers of his choice and to listen to the radio. No restrictions had been placed on his written communications with the outside world. As to the applicant's health, he was examined frequently by doctors and psychologists, whose daily medical reports were sent to the Court on a regular basis.",
"189. The Government asserted that the applicant was treated in strict conformity with European standards governing conditions of detention. In the cases in which the Court had found a violation of Article 3, the conditions of detention were far worse than in Mr Öcalan's case (for instance, Poltoratskiy v. Ukraine, no. 38812/97, ECHR 2003- V, and Kuznetsov v. Ukraine, no. 39042/97, 29 April 2003 ).",
"3. The Court's assessment",
"190. The Court must first determine the period of the applicant's detention to be taken into consideration when examining his complaints under Article 3. It points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber's decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 56, ECHR 2003-II). More specifically, within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 223, § 44; Chahal, cited above, p. 1856, § 86; and Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, p. 2207, § 43). There is no justification for excluding from the scope of that general jurisdiction events that took place up to the date of the Grand Chamber's judgment, provided that they are directly related to the complaints declared admissible.",
"Furthermore, in the instant case, the applicant has already made submissions in the proceedings before the Chamber outlining his arguments on the effects his prolonged social isolation while in custody were likely to have.",
"The Court will therefore take into consideration the conditions of the applicant's detention between 16 February 1999 and the date this judgment is adopted. The fact that the applicant has in the interim lodged a new application concerning the latter part of his detention does not alter the position.",
"191. Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V).",
"192. In the present case, it is true that the applicant's detention posed exceptional difficulties for the Turkish authorities. The applicant, as the leader of a large, armed separatist movement, is considered in Turkey to be the most dangerous terrorist in the country. Reactions to his arrest and differences of opinion that have come to light within his own movement show that his life is genuinely at risk. It is also a reasonable presumption that his supporters will seek to help him escape from prison. In those circumstances, it is understandable that the Turkish authorities should have found it necessary to take extraordinary security measures to detain the applicant.",
"193. The applicant's prison cell is indisputably furnished to a standard that is beyond reproach. From the photographs in its possession and the findings of the delegates of the CPT, who inspected the applicant's prison during their visit to Turkey from 2 to 14 September 2001, the Court notes that the cell the applicant occupies alone is large enough to accommodate a prisoner and furnished with a bed, table, armchair and bookshelves. It is also air-conditioned, has washing and toilet facilities and a window overlooking an inner courtyard. The applicant appears to be under medical supervision that is both strict and regular. The Court considers that these conditions do not give rise to any issue under Article 3 of the Convention.",
"194. Further, the Court considers that the applicant cannot be regarded as being kept in sensory isolation or cellular confinement. It is true that, as the sole inmate, his only contact is with prison staff. He has books, newspapers and a radio at his disposal. He does not have access to television programmes or a telephone. He does, however, communicate with the outside world by letter. He sees a doctor every day and his lawyers and members of his family once a week (his lawyers were allowed to see him twice a week during the trial). The difficulties in gaining access to İmralı Prison in adverse weather conditions appear to have been resolved, as the prison authorities were provided with a suitable craft at the end of 2004.",
"195. The Court notes the CPT's recommendations that the applicant's relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives. However, like the Chamber, the Grand Chamber is also mindful of the Government's concerns that the applicant may seek to take advantage of communications with the outside world to renew contact with members of the armed separatist movement of which he was leader. These concerns cannot be said to be unfounded. An added consideration is the Government's fear that it would be difficult to protect the applicant's life in an ordinary prison.",
"196. While concurring with the CPT's recommendations that the long ‑ term effects of the applicant's relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account.",
"V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"197. The applicant complained that he had been hindered in the exercise of his right of individual application in that his lawyers in Amsterdam had not been permitted to contact him after his arrest and that the Government had delayed in replying to the Court's request for information. He alleged a violation of Article 34 of the Convention, which reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"198. The Government asked the Court to dismiss those complaints.",
"199. The Court is called upon to decide whether the two matters raised by the applicant genuinely hindered him in the effective exercise of his right of application.",
"200. As regards his inability to communicate with his lawyers in Amsterdam following his arrest, the Court notes that a group of representatives composed of lawyers chosen by the applicant, including the lawyers in Amsterdam, subsequently applied to the Court and put forward all the applicant's allegations concerning the period in which he had had no contact with his lawyers. There is therefore nothing to indicate that the applicant was hindered in the exercise of his right of individual application to any significant degree.",
"201. As to the Government's delay in replying to the Chamber's second request for information, the Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I ). However, though regrettable, the Government's failure to supply the information requested by the Court earlier did not, in the special circumstances of the case, prevent the applicant from setting out his complaints about the criminal proceedings that had been brought against him. Accordingly, the applicant has not been obstructed in the exercise of his right of individual application.",
"202. In conclusion, there has been no violation of Article 34 in fine of the Convention.",
"VI. OTHER COMPLAINTS",
"203. Relying on the same facts, the applicant also alleged a violation of Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention.",
"204. Repeating the arguments set out above with regard to the other complaints, the Government submitted that those complaints too were ill ‑ founded and had to be dismissed.",
"205. The applicant wished to pursue his complaints.",
"206. Having examined the complaints, which, incidentally, are not set out in any detail in the applicant's submissions, the Court notes that they have virtually the same factual basis as the complaints it has examined in previous sections of this judgment.",
"Consequently, it considers that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with Articles 2, 3, 5 and 6, is necessary.",
"VII. ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46 of the Convention",
"207. Article 46 of the Convention provides:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”",
"208. In the event of the Court finding a violation of Article 6, the applicant requested a retrial by an independent and impartial court in which he would enjoy full defence rights. In the event of the Court finding a violation of Article 3 on account of the conditions of his detention, he requested a transfer to a prison on the mainland, and the facilitation of contact with other prisoners, members of his family and his lawyers.",
"209. While reaffirming their view that there had been no violation of the Convention provisions relied on by the applicant, the Government submitted, in the alternative, that a finding of a violation could constitute in itself sufficient just satisfaction for the applicant.",
"210. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).",
"However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V).",
"In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above, § 202).",
"In the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, Chambers of the Court have indicated in certain judgments that were delivered after the Chamber judgment in the present case that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requests (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). It is also to be noted that a Chamber of the Court has adopted a similar stance in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV).",
"The Grand Chamber endorses the general approach adopted in the above ‑ mentioned case-law. It considers that where an individual, as in the instant case, has been convicted by a court that did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court's judgment in that case, and with due regard to the above case-law of the Court.",
"B. Article 41 of the Convention",
"211. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"212. The Court notes that the applicant has not put forward any claim in respect of pecuniary or non-pecuniary damage and concludes that any damage the applicant may have sustained has been sufficiently compensated for by its findings of a violation of Articles 3 (as regards the imposition of the death penalty following an unfair trial), 5 and 6 of the Convention.",
"2. Costs and expenses",
"213. During the proceedings before the Chamber, the applicant had claimed compensation of 1,123,933.96 euros (EUR) for the costs and expenses he had incurred for the seven lawyers and three trainee lawyers who had acted for him outside Turkey and the costs and expenses of six of his lawyers in Turkey.",
"The Chamber awarded him EUR 100,000 under that head.",
"The applicant claimed an additional EUR 75,559.32 in respect of the proceedings under Article 43 of the Convention. He explained that that sum was broken down into EUR 65,978.60 for the fees of his lawyers and their assistants and EUR 9,580.72 for sundry expenses, such as translation costs and travel expenses.",
"214. The Government submitted that those claims were manifestly unreasonable, in particular as regards the amount of the lawyers'fees.",
"215. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002 ).",
"216. In the present case, the Court notes that it has upheld only some of the applicant's complaints under the Convention. It therefore notes that not all the time or all the meetings for which the applicant's main lawyers claimed remuneration were spent solely on the complaints in respect of which a violation has been found.",
"217. The Court considers that the applicant should only be reimbursed part of his costs incurred before the Court. Having regard to the circumstances of the case, the fee scales applicable in the United Kingdom and in Turkey and the complexity of certain issues raised by the application, and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 120,000 in respect of the complaints put forward by all his legal representatives. That sum is to be paid into bank accounts nominated by his Turkish and United Kingdom representatives.",
"3. Default interest",
"218. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
256 | Öcalan v. Turkey | 18 March 2014 | The applicant, the founder of the PKK (Kurdistan Workers’ Party), an illegal organisation, complained mainly about the irreducible nature of his sentence to life imprisonment, and about the conditions of his detention (in particular his social isolation and the restrictions on his communication with members of his family and his lawyers) in the prison on the island of İmralı. He also complained of restrictions on his telephone communications, on his correspondence and on visits from his relatives and lawyers. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as to the conditions of the applicant’s detention up to 17 November 2009 and that there had been no violation of Article 3 as regards the conditions of his detention during the period subsequent to that date. On the one hand, in view of a certain number of aspects, such as the lack of communication facilities that would have overcome the applicant’s social isolation, together with the persisting major difficulties for his visitors to gain access to the prison, the Court found that the conditions of detention imposed on the applicant up to 17 November 2009 had constituted inhuman treatment. On the other hand, having regard in particular to the arrival of other detainees at the İmralı prison and to the increased frequency of visits, it came to the opposite conclusion as regards his detention subsequent to that date. The Court also held that there had been a violation of Article 3 as regards the applicant’s sentence to life imprisonment without any possibility of conditional release, finding that, in the absence of any review mechanism, the life prison sentence imposed on the applicant constituted an “irreducible” sentence that amounted to inhuman treatment. The Court further held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, considering that in view of the Turkish Government’s legitimate fear that the applicant might use communications with the outside world to contact members of the PKK, the restrictions on his right to respect for private and family life had not exceeded what was necessary for the prevention of disorder or crime. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison.",
"6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows.",
"7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons.",
"8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial.",
"A. The trial",
"9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.",
"10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety.",
"11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment.",
"13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances.",
"B. Conditions of detention after 12 May 2005",
"1. Conditions of detention in İmralı Prison",
"14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196).",
"15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built.",
"16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison.",
"( a) Before 17 November 2009",
"17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ).",
"19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison.",
"20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons.",
"21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored.",
"22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted.",
"23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months.",
"( b) Since 17 November 2009",
"24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities.",
"25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light.",
"26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners.",
"27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.",
"28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners.",
"29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight.",
"30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set.",
"2. Restrictions to visits by the applicant ’ s lawyers and relatives",
"( a) Visit frequency",
"31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”.",
"32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks.",
"33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers.",
"34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions).",
"35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns.",
"In 2012 the applicant received a few visits from his brother, and none from his lawyers.",
"( b) Visits by lawyers",
"36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing.",
"i. Procedure during visits by the applicant ’ s lawyers",
"37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge.",
"38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination.",
"39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”.",
"40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination.",
"41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation.",
"42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute.",
"ii. Content of the exchanges between the applicant and his lawyers",
"43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met.",
"44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics.",
"45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement.",
"The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement.",
"iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers",
"46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009.",
"47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language.",
"48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days.",
"49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation.",
"50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law.",
"51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected.",
"( c) Visits by members of the applicant ’ s family",
"52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time.",
"53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.",
"54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions.",
"3. Proceedings brought against some of the applicant ’ s lawyers",
"( a) Ban on some lawyers representing the applicant",
"55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers.",
"56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers.",
"57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year.",
"58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision.",
"( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation",
"59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders.",
"4. Alleged poisoning of the applicant",
"60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium.",
"61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION",
"79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a ) The applicant",
"81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books.",
"82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention.",
"83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation.",
"( b ) The Government",
"84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff.",
"85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light.",
"86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities.",
"87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations.",
"88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures.",
"89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day.",
"90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation.",
"91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law.",
"92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight.",
"2. The Court ’ s assessment",
"( a) Period of detention to be taken into consideration",
"93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3.",
"94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI).",
"95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion:",
"“While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ”",
"96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention.",
"( b) General principles",
"97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79).",
"98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001).",
"99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161).",
"100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II).",
"101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119).",
"103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II).",
"104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138).",
"105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes.",
"106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139).",
"107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows :",
"“ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .”",
"( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3).",
"Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention :",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ”",
"( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ).",
"( c) Application of these principles to the present case",
"i. Specific nature of the case",
"108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison.",
"109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant.",
"ii. Physical conditions of detention",
"110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement.",
"111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall.",
"113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ).",
"114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day.",
"115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account.",
"iii. The nature of the applicant ’ s isolation",
"– Access to information",
"116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation.",
"117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored.",
"118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight.",
"119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term.",
"– Communication with prison staff",
"120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship.",
"121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy.",
"122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored.",
"123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation.",
"– Communication with the other inmates",
"124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties.",
"125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates.",
"126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities.",
"– Communication with family members",
"127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother.",
"128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions ”.",
"129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194).",
"130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table.",
"– Communication with lawyers and other persons",
"131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests.",
"132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns.",
"133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored.",
"134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge.",
"135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence.",
"– Conclusion on the nature of the solitary confinement imposed on the applicant",
"136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers.",
"iv. Duration of the applicant ’ s social isolation",
"137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months.",
"138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136).",
"139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted.",
"140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader.",
"141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146).",
"142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment.",
"143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building.",
"144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture.",
"145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation.",
"In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners.",
"v. Conclusions",
"- Prior to 17 November 2009",
"146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment.",
"In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009.",
"- After 17 November 2009",
"148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009.",
"The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS",
"1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits.",
"151. Article 8 of the Convention provides :",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits.",
"...",
"B. Merits",
"154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61).",
"155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ).",
"156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246).",
"157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”.",
"158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime.",
"159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII).",
"160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication.",
"161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside.",
"162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant.",
"163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities.",
"164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention.",
"There has therefore been no violation of Article 8 of the Convention on this account.",
"III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides:",
"“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ”",
"A. The parties",
"166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years.",
"In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life).",
"167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention.",
"168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole.",
"B. The Court ’ s assessment",
"...",
"2. Merits",
"( a) General principles",
"171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C).",
"172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII).",
"173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54).",
"175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109).",
"176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty.",
"( b) Application of these principles to the present case",
"177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ).",
"178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence.",
"179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984.",
"180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172).",
"181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it.",
"It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence.",
"182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole.",
"183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”.",
"184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment.",
"185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle.",
"186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding.",
"187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases.",
"188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested.",
"189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE",
"190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment.",
"191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners.",
"...",
"B. Merits",
"193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97).",
"194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).",
"195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108):",
"“ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ”",
"196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109).",
"197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review :",
"“ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.",
"112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ...",
"113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ...",
"Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .”",
"198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3:",
"“ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.",
"120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ...",
"121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.",
"122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ”",
"199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention.",
"200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention.",
"201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention).",
"202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds.",
"203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129).",
"204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration.",
"205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above).",
"206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant.",
"207. There has accordingly been a violation of Article 3 of the Convention on this point.",
"Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness.",
"..."
] |
257 | Öcalan v. Turkey | 4 September 2018 (decision on the admissibility) | This case mainly concerned allegations by Abdullah Öcalan8 that he had been subjected to ill-treatment in 2008 during a search of his cell. The applicant complained in particular that he had been subjected to ill-treatment, both physical and verbal, during the search of his cell and that the investigation into his complaints had been ineffective. | The Court declared the application inadmissible as being manifestly ill-founded. As regards the allegations of ill-treatment, it found that there was no arguable claim that the applicant had been subjected to treatment in breach of Article 3 (inhuman or degrading treatment) of the Convention by prison warders on 7 October 2008. The Court observed in particular that, on the day of the alleged incidents and on the following days, the applicant had been examined by a number of doctors, who had not found any signs of physical injury or mental distress. Nor had the applicant himself mentioned anything of the sort. In addition, he had not personally filed a complaint with the prison administration or the public prosecutor responsible for the prison. As to the investigation, the Court explained that in the absence of any arguable claims, the national authorities did not have any obligation to conduct an effective investigation. | Detention conditions and treatment of prisoners | Ill-treatment by prison officers | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison.",
"6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows.",
"7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons.",
"8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial.",
"A. The trial",
"9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.",
"10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety.",
"11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment.",
"13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances.",
"B. Conditions of detention after 12 May 2005",
"1. Conditions of detention in İmralı Prison",
"14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196).",
"15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built.",
"16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison.",
"( a) Before 17 November 2009",
"17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ).",
"19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison.",
"20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons.",
"21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored.",
"22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted.",
"23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months.",
"( b) Since 17 November 2009",
"24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities.",
"25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light.",
"26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners.",
"27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.",
"28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners.",
"29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight.",
"30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set.",
"2. Restrictions to visits by the applicant ’ s lawyers and relatives",
"( a) Visit frequency",
"31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”.",
"32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks.",
"33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers.",
"34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions).",
"35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns.",
"In 2012 the applicant received a few visits from his brother, and none from his lawyers.",
"( b) Visits by lawyers",
"36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing.",
"i. Procedure during visits by the applicant ’ s lawyers",
"37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge.",
"38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination.",
"39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”.",
"40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination.",
"41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation.",
"42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute.",
"ii. Content of the exchanges between the applicant and his lawyers",
"43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met.",
"44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics.",
"45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement.",
"The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement.",
"iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers",
"46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009.",
"47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language.",
"48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days.",
"49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation.",
"50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law.",
"51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected.",
"( c) Visits by members of the applicant ’ s family",
"52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time.",
"53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.",
"54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions.",
"3. Proceedings brought against some of the applicant ’ s lawyers",
"( a) Ban on some lawyers representing the applicant",
"55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers.",
"56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers.",
"57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year.",
"58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision.",
"( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation",
"59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders.",
"4. Alleged poisoning of the applicant",
"60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium.",
"61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION",
"79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a ) The applicant",
"81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books.",
"82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention.",
"83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation.",
"( b ) The Government",
"84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff.",
"85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light.",
"86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities.",
"87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations.",
"88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures.",
"89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day.",
"90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation.",
"91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law.",
"92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight.",
"2. The Court ’ s assessment",
"( a) Period of detention to be taken into consideration",
"93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3.",
"94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI).",
"95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion:",
"“While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ”",
"96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention.",
"( b) General principles",
"97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79).",
"98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001).",
"99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161).",
"100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II).",
"101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119).",
"103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II).",
"104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138).",
"105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes.",
"106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139).",
"107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows :",
"“ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .”",
"( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3).",
"Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention :",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ”",
"( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ).",
"( c) Application of these principles to the present case",
"i. Specific nature of the case",
"108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison.",
"109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant.",
"ii. Physical conditions of detention",
"110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement.",
"111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall.",
"113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ).",
"114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day.",
"115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account.",
"iii. The nature of the applicant ’ s isolation",
"– Access to information",
"116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation.",
"117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored.",
"118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight.",
"119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term.",
"– Communication with prison staff",
"120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship.",
"121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy.",
"122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored.",
"123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation.",
"– Communication with the other inmates",
"124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties.",
"125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates.",
"126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities.",
"– Communication with family members",
"127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother.",
"128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions ”.",
"129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194).",
"130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table.",
"– Communication with lawyers and other persons",
"131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests.",
"132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns.",
"133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored.",
"134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge.",
"135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence.",
"– Conclusion on the nature of the solitary confinement imposed on the applicant",
"136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers.",
"iv. Duration of the applicant ’ s social isolation",
"137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months.",
"138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136).",
"139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted.",
"140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader.",
"141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146).",
"142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment.",
"143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building.",
"144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture.",
"145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation.",
"In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners.",
"v. Conclusions",
"- Prior to 17 November 2009",
"146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment.",
"In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009.",
"- After 17 November 2009",
"148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009.",
"The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS",
"1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits.",
"151. Article 8 of the Convention provides :",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits.",
"...",
"B. Merits",
"154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61).",
"155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ).",
"156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246).",
"157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”.",
"158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime.",
"159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII).",
"160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication.",
"161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside.",
"162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant.",
"163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities.",
"164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention.",
"There has therefore been no violation of Article 8 of the Convention on this account.",
"III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides:",
"“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ”",
"A. The parties",
"166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years.",
"In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life).",
"167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention.",
"168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole.",
"B. The Court ’ s assessment",
"...",
"2. Merits",
"( a) General principles",
"171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C).",
"172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII).",
"173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54).",
"175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109).",
"176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty.",
"( b) Application of these principles to the present case",
"177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ).",
"178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence.",
"179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984.",
"180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172).",
"181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it.",
"It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence.",
"182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole.",
"183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”.",
"184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment.",
"185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle.",
"186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding.",
"187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases.",
"188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested.",
"189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE",
"190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment.",
"191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners.",
"...",
"B. Merits",
"193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97).",
"194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).",
"195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108):",
"“ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ”",
"196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109).",
"197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review :",
"“ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.",
"112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ...",
"113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ...",
"Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .”",
"198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3:",
"“ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.",
"120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ...",
"121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.",
"122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ”",
"199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention.",
"200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention.",
"201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention).",
"202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds.",
"203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129).",
"204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration.",
"205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above).",
"206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant.",
"207. There has accordingly been a violation of Article 3 of the Convention on this point.",
"Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness.",
"..."
] |
258 | Öcalan v. Turkey | 18 March 2014 | The applicant, the founder of the PKK (Kurdistan Workers’ Party), an illegal organisation, complained in particular about the conditions of his detention (in particular his social isolation and the restrictions on his communication with members of his family and his lawyers) in the prison on the island of İmralı, where he was held in solitary confinement until 17 November 2009, when five other inmates were transferred there. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as to the conditions of the applicant’s detention up to 17 November 2009 and that there had been no violation of Article 3 as regards the conditions of his detention during the period subsequent to that date. On the one hand, in view of a certain number of aspects, such as the lack of communication facilities that would have overcome the applicant’s social isolation, together with the persisting major difficulties for his visitors to gain access to the prison, the Court found that the conditions of detention imposed on the applicant up to 17 November 2009 had constituted inhuman treatment. On the other hand, having regard in particular to the arrival of other detainees at the İmralı prison and to the increased frequency of visits, it came to the opposite conclusion as regards his detention subsequent to that date. | Detention conditions and treatment of prisoners | Solitary confinement | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison.",
"6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows.",
"7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons.",
"8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial.",
"A. The trial",
"9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.",
"10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety.",
"11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment.",
"13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances.",
"B. Conditions of detention after 12 May 2005",
"1. Conditions of detention in İmralı Prison",
"14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196).",
"15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built.",
"16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison.",
"( a) Before 17 November 2009",
"17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ).",
"19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison.",
"20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons.",
"21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored.",
"22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted.",
"23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months.",
"( b) Since 17 November 2009",
"24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities.",
"25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light.",
"26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners.",
"27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.",
"28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners.",
"29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight.",
"30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set.",
"2. Restrictions to visits by the applicant ’ s lawyers and relatives",
"( a) Visit frequency",
"31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”.",
"32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks.",
"33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers.",
"34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions).",
"35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns.",
"In 2012 the applicant received a few visits from his brother, and none from his lawyers.",
"( b) Visits by lawyers",
"36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing.",
"i. Procedure during visits by the applicant ’ s lawyers",
"37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge.",
"38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination.",
"39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”.",
"40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination.",
"41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation.",
"42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute.",
"ii. Content of the exchanges between the applicant and his lawyers",
"43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met.",
"44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics.",
"45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement.",
"The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement.",
"iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers",
"46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009.",
"47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language.",
"48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days.",
"49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation.",
"50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law.",
"51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected.",
"( c) Visits by members of the applicant ’ s family",
"52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time.",
"53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.",
"54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions.",
"3. Proceedings brought against some of the applicant ’ s lawyers",
"( a) Ban on some lawyers representing the applicant",
"55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers.",
"56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers.",
"57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year.",
"58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision.",
"( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation",
"59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders.",
"4. Alleged poisoning of the applicant",
"60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium.",
"61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION",
"79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a ) The applicant",
"81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books.",
"82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention.",
"83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation.",
"( b ) The Government",
"84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff.",
"85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light.",
"86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities.",
"87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations.",
"88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures.",
"89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day.",
"90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation.",
"91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law.",
"92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight.",
"2. The Court ’ s assessment",
"( a) Period of detention to be taken into consideration",
"93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3.",
"94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI).",
"95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion:",
"“While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ”",
"96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention.",
"( b) General principles",
"97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79).",
"98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001).",
"99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161).",
"100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II).",
"101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119).",
"103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II).",
"104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138).",
"105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes.",
"106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139).",
"107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows :",
"“ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .”",
"( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3).",
"Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention :",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ”",
"( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ).",
"( c) Application of these principles to the present case",
"i. Specific nature of the case",
"108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison.",
"109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant.",
"ii. Physical conditions of detention",
"110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement.",
"111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall.",
"113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ).",
"114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day.",
"115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account.",
"iii. The nature of the applicant ’ s isolation",
"– Access to information",
"116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation.",
"117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored.",
"118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight.",
"119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term.",
"– Communication with prison staff",
"120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship.",
"121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy.",
"122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored.",
"123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation.",
"– Communication with the other inmates",
"124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties.",
"125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates.",
"126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities.",
"– Communication with family members",
"127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother.",
"128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions ”.",
"129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194).",
"130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table.",
"– Communication with lawyers and other persons",
"131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests.",
"132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns.",
"133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored.",
"134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge.",
"135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence.",
"– Conclusion on the nature of the solitary confinement imposed on the applicant",
"136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers.",
"iv. Duration of the applicant ’ s social isolation",
"137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months.",
"138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136).",
"139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted.",
"140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader.",
"141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146).",
"142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment.",
"143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building.",
"144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture.",
"145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation.",
"In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners.",
"v. Conclusions",
"- Prior to 17 November 2009",
"146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment.",
"In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009.",
"- After 17 November 2009",
"148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009.",
"The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS",
"1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits.",
"151. Article 8 of the Convention provides :",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits.",
"...",
"B. Merits",
"154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61).",
"155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ).",
"156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246).",
"157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”.",
"158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime.",
"159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII).",
"160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication.",
"161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside.",
"162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant.",
"163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities.",
"164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention.",
"There has therefore been no violation of Article 8 of the Convention on this account.",
"III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides:",
"“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ”",
"A. The parties",
"166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years.",
"In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life).",
"167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention.",
"168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole.",
"B. The Court ’ s assessment",
"...",
"2. Merits",
"( a) General principles",
"171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C).",
"172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII).",
"173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54).",
"175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109).",
"176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty.",
"( b) Application of these principles to the present case",
"177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ).",
"178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence.",
"179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984.",
"180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172).",
"181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it.",
"It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence.",
"182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole.",
"183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”.",
"184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment.",
"185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle.",
"186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding.",
"187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases.",
"188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested.",
"189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE",
"190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment.",
"191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners.",
"...",
"B. Merits",
"193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97).",
"194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).",
"195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108):",
"“ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ”",
"196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109).",
"197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review :",
"“ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.",
"112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ...",
"113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ...",
"Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .”",
"198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3:",
"“ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.",
"120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ...",
"121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.",
"122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ”",
"199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention.",
"200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention.",
"201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention).",
"202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds.",
"203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129).",
"204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration.",
"205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above).",
"206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant.",
"207. There has accordingly been a violation of Article 3 of the Convention on this point.",
"Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness.",
"..."
] |
260 | Öcalan v. Turkey | 12 May 2005 (Grand Chamber) | Abdullah Öcalan is a Turkish national serving a life sentence in a Turkish prison. Prior to his arrest, he was the leader of the PKK (the Workers’ Party of Kurdistan, an illegal organisation). Apprehended in Kenya in disputed circumstances on the evening of 15 February 1999, he was flown to Turkey where he was sentenced to death in June 1999 for actions aimed at bringing about the separation of the Turkish territory. Following the August 2002 abolition in Turkish law of the death penalty in peace time, the Ankara State Security Court commuted – in October 2002 – the applicant’s death sentence to life imprisonment. He complained about the imposition and/or execution of the death penalty in his regard. | Application of the death penalty: The Court held that there had been no violation of Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) or 14 (prohibition of discrimination) of the Convention, as the death penalty had been abolished and the applicant’s sentence commuted to life imprisonment. Convention States’ practice concerning the death penalty: The Court held that the death penalty in peacetime had come to be regarded in Europe as an unacceptable form of punishment which was no longer permissible under Article 2 of the Convention. However, no firm conclusion was reached in respect of whether the States Parties to the Convention had established a practice of considering the execution of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention. In any event, the Court held that it would be contrary to the Convention, even if Article 2 were to be interpreted as still permitting the death penalty, to implement a death sentence following an unfair trial. Death penalty following an unfair trial: The Court noted that Article 2 of the Convention precluded the execution of the death penalty in respect of a person who had not had a fair trial. The fear and uncertainty about the future generated by a death sentence, where there existed a real possibility that the sentence would be enforced, inevitably caused strong human anguish to people. Such anguish could not be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life was at stake, became unlawful under the Convention. In the applicant’s case, a moratorium on the execution of the death penalty had been in force in Turkey since 1984 and the Turkish Government had stayed his execution in accordance with the Court’s interim measure. Yet, given that the applicant had been Turkey’s most wanted person, a real risk that his sentence might be implemented had existed for more than three years prior to the decision to abolish the death penalty. Consequently, the imposition of the death sentence following an unfair trial by a court whose independence and impartiality were open to doubt had amounted to inhuman treatment, in violation of Article 3 of the Convention. | Death penalty abolition | Death penalty as a result of unfair trial | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison.",
"6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows.",
"7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons.",
"8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial.",
"A. The trial",
"9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed.",
"10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety.",
"11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment.",
"13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances.",
"B. Conditions of detention after 12 May 2005",
"1. Conditions of detention in İmralı Prison",
"14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196).",
"15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built.",
"16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison.",
"( a) Before 17 November 2009",
"17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ).",
"19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison.",
"20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons.",
"21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored.",
"22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted.",
"23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months.",
"( b) Since 17 November 2009",
"24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities.",
"25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light.",
"26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners.",
"27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week.",
"28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners.",
"29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight.",
"30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set.",
"2. Restrictions to visits by the applicant ’ s lawyers and relatives",
"( a) Visit frequency",
"31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”.",
"32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks.",
"33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers.",
"34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions).",
"35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns.",
"In 2012 the applicant received a few visits from his brother, and none from his lawyers.",
"( b) Visits by lawyers",
"36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing.",
"i. Procedure during visits by the applicant ’ s lawyers",
"37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge.",
"38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination.",
"39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”.",
"40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination.",
"41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation.",
"42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute.",
"ii. Content of the exchanges between the applicant and his lawyers",
"43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met.",
"44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics.",
"45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement.",
"The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement.",
"iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers",
"46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009.",
"47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language.",
"48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days.",
"49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation.",
"50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law.",
"51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected.",
"( c) Visits by members of the applicant ’ s family",
"52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time.",
"53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement.",
"54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions.",
"3. Proceedings brought against some of the applicant ’ s lawyers",
"( a) Ban on some lawyers representing the applicant",
"55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers.",
"56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers.",
"57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year.",
"58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision.",
"( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation",
"59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders.",
"4. Alleged poisoning of the applicant",
"60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium.",
"61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health.",
"..."
] | [
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION",
"79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"...",
"B. Merits",
"1. The parties ’ submissions",
"( a ) The applicant",
"81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books.",
"82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention.",
"83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation.",
"( b ) The Government",
"84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff.",
"85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light.",
"86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities.",
"87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations.",
"88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures.",
"89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day.",
"90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation.",
"91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law.",
"92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight.",
"2. The Court ’ s assessment",
"( a) Period of detention to be taken into consideration",
"93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3.",
"94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI).",
"95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion:",
"“While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ”",
"96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention.",
"( b) General principles",
"97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79).",
"98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001).",
"99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161).",
"100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II).",
"101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119).",
"103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II).",
"104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138).",
"105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes.",
"106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139).",
"107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows :",
"“ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .”",
"( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3).",
"Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention :",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ”",
"( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ).",
"( c) Application of these principles to the present case",
"i. Specific nature of the case",
"108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison.",
"109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant.",
"ii. Physical conditions of detention",
"110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement.",
"111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp.",
"112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall.",
"113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ).",
"114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day.",
"115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account.",
"iii. The nature of the applicant ’ s isolation",
"– Access to information",
"116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation.",
"117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored.",
"118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight.",
"119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term.",
"– Communication with prison staff",
"120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship.",
"121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy.",
"122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored.",
"123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation.",
"– Communication with the other inmates",
"124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties.",
"125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates.",
"126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities.",
"– Communication with family members",
"127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother.",
"128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland” and “the inability of the boats to cope with prevailing weather conditions ”.",
"129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194).",
"130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table.",
"– Communication with lawyers and other persons",
"131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests.",
"132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns.",
"133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored.",
"134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge.",
"135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence.",
"– Conclusion on the nature of the solitary confinement imposed on the applicant",
"136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers.",
"iv. Duration of the applicant ’ s social isolation",
"137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months.",
"138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136).",
"139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted.",
"140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader.",
"141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146).",
"142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment.",
"143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building.",
"144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture.",
"145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation.",
"In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners.",
"v. Conclusions",
"- Prior to 17 November 2009",
"146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment.",
"In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009.",
"- After 17 November 2009",
"148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009.",
"The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS",
"1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits.",
"151. Article 8 of the Convention provides :",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”",
"152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits.",
"...",
"B. Merits",
"154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61).",
"155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ).",
"156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246).",
"157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”.",
"158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime.",
"159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII).",
"160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication.",
"161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside.",
"162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant.",
"163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities.",
"164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention.",
"There has therefore been no violation of Article 8 of the Convention on this account.",
"III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides:",
"“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ”",
"A. The parties",
"166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years.",
"In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life).",
"167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention.",
"168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole.",
"B. The Court ’ s assessment",
"...",
"2. Merits",
"( a) General principles",
"171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C).",
"172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII).",
"173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54).",
"175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109).",
"176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty.",
"( b) Application of these principles to the present case",
"177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ).",
"178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence.",
"179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984.",
"180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172).",
"181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it.",
"It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence.",
"182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole.",
"183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”.",
"184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment.",
"185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle.",
"186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding.",
"187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases.",
"188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested.",
"189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE",
"190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment.",
"191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners.",
"...",
"B. Merits",
"193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97).",
"194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).",
"195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108):",
"“ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ”",
"196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109).",
"197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review :",
"“ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated.",
"112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ...",
"113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ...",
"Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .”",
"198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3:",
"“ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.",
"120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ...",
"121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.",
"122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ”",
"199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention.",
"200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention.",
"201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention).",
"202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds.",
"203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129).",
"204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration.",
"205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above).",
"206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant.",
"207. There has accordingly been a violation of Article 3 of the Convention on this point.",
"Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness.",
"..."
] |
261 | Öcalan v. Turkey | 18 March 2014 (judgment) | The applicant, founder of the illegal organisation PKK complained in particular about the irreducible nature of his sentence to life imprisonment, and about the conditions of his detention (in particular his social isolation and the restrictions on his communication with members of his family and his lawyers, whether by telephone or through visits) in the prison on the island of İmralı. | The Court found that there had been a violation of Article 3 of the Convention, as the conditions of detention imposed on the applicant up to 17 November 2009 constituted inhuman treatment, but no violation of Article 3 as regards the subsequent period. It observed in particular as follows: “Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ... In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention ..., Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation” (see paragraphs 97-98 of the judgment). | Derogation in time of emergency | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | [
"I. THE CIRCUMSTANCES OF THE CASE",
"13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey ). Prior to his arrest, he was the leader of the PKK ( Workers'Party of Kurdistan ).",
"The facts of the case, as submitted by the parties, may be summarised as follows.",
"A. The applicant's arrest and transfer to Turkey",
"14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision.",
"15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day ( 2 February 1999 ), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply.",
"16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya.",
"The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall.",
"The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject.",
"17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him.",
"On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m.",
"18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice ( Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life.",
"On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons.",
"19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace.",
"The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi.",
"B. Police custody on the island of İmralı",
"20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed.",
"21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999.",
"22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval.",
"23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched.",
"24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services.",
"C. Appearance before a judge and pre-trial detention",
"25. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions.",
"D. Contact with the outside world during the judicial investigation and conditions at İmralı Prison",
"26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers.",
"27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey.",
"28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later.",
"29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour).",
"30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence.",
"31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence.",
"32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically.",
"33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week.",
"34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport.",
"E. The trial at the National Security Court",
"35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors'offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.",
"36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey.",
"37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation.",
"38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction.",
"39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey ”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds'cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court.",
"40. The applicant's lawyers'applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics.",
"41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999.",
"The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere.",
"42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code.",
"The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed.",
"43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts.",
"44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings.",
"Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court.",
"45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges.",
"46. On 29 June 1999, after hearing the applicant's final representations, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed.",
"F. The appeal on points of law",
"47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation.",
"48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons.",
"49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK ) and a military wing (the ARNK ), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died.",
"50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon.",
"G. Commutation of the death penalty to life imprisonment",
"51. In October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism.",
"By Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison.",
"By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts.",
"The Nationalist Action Party ( MHP – Milliyetçi Hareket Partisi ), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Provisions on National Security Courts",
"52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges.",
"53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:",
"“... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors.",
"The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...”",
"54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date.",
"B. Article 125 of the Turkish Criminal Code",
"“Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.”",
"C. Review of the lawfulness of detention",
"55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released.",
"56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides:",
"“Compensation shall be paid by the State in respect of all damage sustained by persons:",
"(1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute;",
"(2) who have not been immediately informed of the reasons for their arrest or detention;",
"(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;",
"(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;",
"(5) whose close family have not been immediately informed of their arrest or detention;",
"(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial;",
"(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...”",
"57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings.",
"D. The Council of Europe and the death penalty",
"58. Protocol No. 6 to the Convention provides (Article 1) : “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides:",
"“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”",
"Protocol No. 6 has been ratified by forty- four member States of the Council of Europe and signed by two others ( Monaco and Russia ).",
"Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads:",
"“The member States of the Council of Europe signatory hereto,",
"Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;",
"Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as'the Convention');",
"Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;",
"Being resolved to take the final step in order to abolish the death penalty in all circumstances,",
"Have agreed as follows :",
"...”",
"Article 1 of Protocol No. 13 states:",
"“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”",
"Protocol No. 13 has been signed by forty- three member States of the Council of Europe and ratified by twenty- nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe ( Armenia, Azerbaijan and Russia ) have not yet signed it.",
"In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to:",
"“ 2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death- penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law. ”",
"It further noted:",
"“ 5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions. ”",
"59. Article X § 2 of the “ Guidelines on human rights and the fight against terrorism ”, issued by the Committee of Ministers of the Council of Europe on 11 July 2002, reads:",
"“Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.”",
"E. Other international developments concerning the death penalty",
"60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty.",
"In Reid v. Jamaica (no. 250/1987), the Committee stated as follows:",
"“[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.”",
"Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica ( Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]).",
"In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated:",
"“134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that'[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it.",
"135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life.",
"136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.”",
"In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002 ), the Inter-American Court stated:",
"“Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake. ” (paragraph 148)",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"61. The applicant complained of violations of Article 5 §§ 1, 3 and 4 of the Convention, the relevant provisions of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"The Government pleaded a failure to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1, 3 and 4. The Grand Chamber considers this preliminary objection to be closely linked to the merits of the complaint under Article 5 § 4 and will therefore examine it with that complaint, which – like the Chamber – it will deal with first.",
"A. Article 5 § 4 of the Convention",
"62. The applicant complained that, contrary to Article 5 § 4 of the Convention, he had not had an opportunity to take proceedings by which the lawfulness of his detention in police custody could be decided.",
"1. The applicant's submissions",
"63. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had an effective remedy by which to have the lawfulness of his detention in police custody decided. He said that during the first ten days of his detention he had been held incommunicado and had been unable to contact his lawyers. He did not have the legal training that would have enabled him to lodge an appeal without the assistance of his lawyers. Nor had he been given access to the documents concerning his arrest that he needed to enable him to prepare such an appeal. The applicant maintained that in his case an application to a district judge or a judge of the National Security Court would have been an inadequate and illusory remedy that was bound to fail.",
"2. The Government's submissions",
"64. On this point, the Government contested the Chamber's reasons for finding that there had been a violation of Article 5 § 4. As they had done in the Chamber proceedings, they also raised a preliminary objection of failure to exhaust domestic remedies with regard to all the Article 5 complaints. Neither the applicant's lawyers nor his close relatives had lodged an application with the Mudanya Court of First Instance or a judge of the Ankara National Security Court to challenge his arrest or detention by the police, the length of such detention, or the order requiring his detention pending trial. The Government referred to Article 128 § 4 of the Code of Criminal Procedure, which entitled suspects to apply to the district judge to have the lawfulness of their detention decided or to challenge an order by the public prosecutor's office that they should remain in custody. If the district judge considered the application well-founded, he could order the police not to question the suspect further and to bring him or her before the public prosecutor forthwith. The Government added that by virtue of Article 144 of the Code of Criminal Procedure the applicant's representatives did not require a written authority to make such an application.",
"65. The Government provided the Grand Chamber with examples of decisions in which the courts had examined applications from persons in police custody for a decision on the lawfulness of their detention and, in the absence of an order from the public prosecutor authorising their continued detention, had made an order for the prisoners to be brought before the judge responsible for pre-trial detention at the end of the statutory period for which they could be held in police custody. Each of the applications referred to by the Government was decided on the papers, in the absence of the prisoner.",
"3. The Court's assessment",
"66. The remedy required by Article 5 § 4 must be of a judicial nature, which implies that “the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60). Furthermore, Article 5 § 4 requires that the court invited to rule on the lawfulness of the detention should have jurisdiction to order release if the detention is unlawful (see Weeks v. the United Kingdom, judgment of 2 March 1 987, Series A no. 114, p. 30, § 61).",
"67. In addition, in accordance with the generally recognised rules of international law, there may be special grounds for releasing the applicant from the obligation to exhaust the available domestic remedies (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, §§ 36-40).",
"68. Having examined the examples of judicial decisions produced by the Government, the Court finds that the domestic courts'review of the lawfulness of the detention in these cases (which concerned the arrest, the police custody or the length of such custody) did not comply with the requirements of Article 5 § 4 in two respects. Firstly, in none of the decisions did the domestic courts order the prisoner's release, not even when they found that the statutory period had expired or the public prosecutor had failed to order the prisoner's continued detention. They merely referred the persons concerned to the judge responsible for pre-trial detention.",
"Secondly, in none of the proceedings that resulted in the decisions cited by the Government did the person detained appear before the court. The judge's review was carried out solely on the papers following an application by the lawyer concerned.",
"69. The judicial decisions on which the Government relied in seeking to demonstrate the effectiveness of this remedy were delivered in 2001 and 2003, that is to say at least two years after the applicant's arrest and detention in the present case.",
"70. As regards the special circumstances in which the applicant found himself while in police custody, the Court sees no reason to disagree with the Chamber's finding that the circumstances of the case made it impossible for the applicant to have effective recourse to the remedy referred to by the Government. In its judgment, the Chamber reasoned as follows (see the judgment of 12 March 2003, §§ 72-74):",
"“ ... Firstly, the conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer.",
"... Secondly, as regards the suggestion that the lawyers instructed by the applicant or by his close relatives could have challenged his detention without consulting him, the Court observes that the movements of the sole member of the applicant's legal team to possess an authority to represent him were obstructed by the police ... The other lawyers, who had been retained by the applicant's family, found it impossible to contact him while he was in police custody. Moreover, in view of the unusual circumstances of his arrest, the applicant was the principal source of direct information on events in Nairobi that would have been relevant, at that point in the proceedings, for the purposes of challenging the lawfulness of his arrest.",
"... Lastly, solely with regard to the length of time the applicant was held in police custody, the Court takes into account the seriousness of the charges against him and the fact that the period spent in police custody did not exceed that permitted by the domestic legislation. It considers that, in those circumstances, an application on that issue to a district judge would have had little prospect of success.”",
"71. As to the Government's assertion before the Chamber that the applicant could have claimed compensation under Law no. 466, the Grand Chamber also considers that such a claim cannot constitute proceedings of the type required by Article 5 § 4 for the reasons set out in paragraph 75 of the Chamber judgment, namely the court's lack of jurisdiction to order release if the detention is unlawful or to award reparation for a breach of the Convention if the detention complies with domestic law.",
"72. For the aforementioned reasons, the Court dismisses the preliminary objection in respect of the complaints under Article 5 §§ 1, 3 and 4 of the Convention. It further holds for the same reasons that there has been a violation of Article 5 § 4.",
"B. Article 5 § 1 of the Convention",
"73. The applicant complained that he had been deprived of his liberty unlawfully, without the applicable extradition procedure being followed. He alleged a violation of Article 5 § 1 of the Convention on that account.",
"1. The applicant's submissions",
"74. The applicant contested the Chamber's findings that his detention by Turkish officials was lawful and that his interception by Kenyan officials and transfer to the Turkish aircraft where Turkish officials were waiting for him could not be regarded as a violation of Kenyan sovereignty or international law.",
"In that connection, he maintained that there was prima facie evidence that he had been abducted by the Turkish authorities operating abroad, beyond their jurisdiction, and that it was for the Government to prove that the arrest was not unlawful. The fact that arrest warrants had been issued by the Turkish authorities and a Red Notice circulated by Interpol did not give officials of the Turkish State jurisdiction to operate abroad. On that point, the applicant denied that he was a terrorist and affirmed that his activities were part of the Kurds'struggle to assert their rights.",
"75. The applicant pointed out that no proceedings had been brought to extradite him from Kenya and that the Kenyan authorities had denied all responsibility for his transfer to Turkey. Mere collusion between Kenyan officials operating without authority and the Turkish government could not constitute inter-State cooperation. The Kenyan Minister for Foreign Affairs had stated on 15 February 1999 that the Kenyan authorities had played no role in the applicant's departure and that there had been no Turkish troops in Kenyan territory. The applicant submitted that the Chamber should have attached greater importance to that ministerial announcement, which, in his submission, showed there had been no cooperation between the two governments.",
"The applicant further suggested that the Kenyan officials involved in his arrest had been bribed by Turkish agents and had acted without the authority of the Kenyan government.",
"76. The applicant referred to the case-law of the Convention institutions in Cyprus v. Turkey (no. 800 7/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85) and Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240, p. 29, § 91), and submitted that Turkey was responsible for acts performed by its officials beyond its borders. He maintained that he had been arrested as a result of an operation that had been planned in Turkey, Italy, Greece and other States.",
"77. Referring to Bozano v. France (judgment of 18 December 1986, Series A no. 111, p. 23, § 54), the applicant stressed the need to protect individuals'liberty and security from arbitrariness. He said that in the instant case his forced expulsion had amounted to extradition in disguise and had deprived him of all procedural and substantive protection. He pointed out in that connection that the requirement of lawfulness under Article 5 § 1 applied to both international and domestic law. Contracting States were under an obligation not just to apply their laws in a non-arbitrary manner, but also to ensure that their laws complied with public international law. The applicant added that the guarantees against wrongful deprivation of liberty to which everyone was entitled could not be extinguished by certainty as to the defendant's guilt.",
"78. In his submission, the Commission's decision in Sánchez Ramirez v. France (no. 28780/95, Commission decision of 24 June 1996, DR 86 - B, p. 155) was not relevant to the present case. Whereas in the aforementioned case there had been cooperation between France and Sudan, the Kenyan authorities had not cooperated with the Turkish authorities in the instant case. In the former case, the Commission had taken the view that the applicant was indisputably a terrorist, whereas Mr Öcalan and the PKK had had recourse to force in order to assert the right of the population of Kurdish origin to self-determination.",
"79. Relying on the case-law of various national courts (the House of Lord's decision in R. v. Horseferry Road Magistrates'Court, ex parte Bennett [1994] 1 Appeal Cases 42; the decision of the Court of Appeal of New Zealand in Reg. v. Hartley [1978] 2 New Zealand Law Reports 199; the decision of the United States Court of Appeals (2nd Circuit, 1974) in United States v. Toscanino 555 Federal Reporter (Second Series) 267-68; the decision of 28 May 2001 of the Constitutional Court of South Africa in Mohamed and Dalvie v. President of the Republic of South Africa and Others 2001 (3) South African Law Reports 893 ( CC ) ), the applicant maintained that the arrest procedures that had been followed did not comply with Kenyan law or the rules established by international law, that his arrest amounted to an abduction, and that his detention and trial, which were based on that unlawful arrest, had to be regarded as null and void.",
"80. The applicant also submitted that, contrary to what the Chamber had found, he could not be expected to prove “beyond reasonable doubt” that the operation by Turkish officials on Kenyan territory in the instant case had violated Kenyan sovereignty. He was merely required to adduce prima facie evidence that it had in order for the burden of proof to shift to the respondent Government to show that there had been no violation of Kenyan sovereignty.",
"2. The Government's submissions",
"81. The Government agreed with and supported the Chamber's view that in this type of case cooperation between States confronted with terrorism was normal and did not infringe the Convention.",
"On that point, they maintained that the applicant had been arrested and detained in accordance with a procedure prescribed by law, following cooperation between two States, Turkey and Kenya. They noted that the applicant had entered Kenya not as an asylum-seeker, but by using false identity papers, and added that since Kenya was a sovereign State, Turkey had no means of exercising its authority there. They also pointed out that there was no extradition treaty between Kenya and Turkey.",
"The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities by way of cooperation between the two States. On his arrival in Turkey, he had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, in order to be brought before a judge (the Turkish courts had issued seven warrants for the applicant's arrest before his capture and Interpol had circulated a Red Notice with regard to him ).",
"There had been no extradition in disguise: Turkey had accepted the Kenyan authorities'offer to hand over the applicant, who was in any event an illegal immigrant in Kenya.",
"82. The applicant had thus been brought before a Turkish judicial authority at the end of a lawful procedure, in conformity with customary international law and the policy of cooperation between sovereign States in the prevention of terrorism.",
"3. The Court's assessment",
"(a) General principles",
"83. The Court will consider the complaint in the light of the following principles.",
"On the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person” (see, among other authorities, Bozano, cited above, p. 23, § 54, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24).",
"84. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 753, § 41, and Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49).",
"85. An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned's individual rights to security under Article 5 § 1 (see, to the same effect, Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, opinion of the Commission, p. 24, § 167).",
"86. The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any specific rights recognised in the Convention ( ibid., pp. 24-25, § 169).",
"87. As regards extradition arrangements between States when one is a party to the Convention and the other is not, the rules established by an extradition treaty or, in the absence of any such treaty, the cooperation between the States concerned are also relevant factors to be taken into account for determining whether the arrest that has led to the subsequent complaint to the Court was lawful. The fact that a fugitive has been handed over as a result of cooperation between States does not in itself make the arrest unlawful and does not therefore give rise to any problem under Article 5 (see Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 250; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 225; and Reinette v. France, no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189).",
"88. Inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person, but also tend to undermine the foundations of extradition (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 89).",
"89. The Convention contains no provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. Subject to it being the result of cooperation between the States concerned and provided that the legal basis for the order for the fugitive's arrest is an arrest warrant issued by the authorities of the fugitive's State of origin, even an atypical extradition cannot as such be regarded as being contrary to the Convention (see Sánchez Ramirez, cited above ).",
"90. Irrespective of whether the arrest amounts to a violation of the law of the State in which the fugitive has taken refuge – a question that only falls to be examined by the Court if the host State is a party to the Convention – the Court requires proof in the form of concordant inferences that the authorities of the State to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law (see, mutatis mutandis, Stocké, cited above, p. 19, § 54). Only then will the burden of proving that the sovereignty of the host State and international law have been complied with shift to the respondent Government. However, the applicant is not required to adduce proof “beyond all reasonable doubt” on this point, as was suggested by the Chamber ( see paragraph 92 of the Chamber judgment ).",
"(b) Application of the principles to the present case",
"(i) Whether the arrest complied with Turkish law",
"91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport.",
"It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v. Belgium and Others ( dec. ) [GC], no. 52207/99, ECHR 2001- XII ).",
"92. As to whether the arrest complied with Turkish domestic law, the Court notes that the Turkish criminal courts had issued seven warrants for the applicant's arrest while Interpol had put out a Red Notice. In each of these documents, the applicant was accused of criminal offences under the Turkish Criminal Code, namely founding an armed gang with a view to undermining the territorial integrity of the State and instigating a series of terrorist acts that had resulted in the loss of life. Following his arrest and on the expiry of the statutory period for which he could be held in police custody the applicant was brought before a court. Subsequently, he was charged, tried and convicted of offences under Article 125 of the Criminal Code. It follows that his arrest and detention complied with orders that had been issued by the Turkish courts “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”.",
"(ii) Interception by Kenyan agents",
"93. The Court must decide in the light of the parties'arguments whether the applicant's interception in Kenya immediately before he was handed over to Turkish officials on board the aircraft at Nairobi Airport was the result of acts by Turkish officials that violated Kenyan sovereignty and international law (as the applicant submitted), or of cooperation between the Turkish and Kenyan authorities in the absence of any extradition treaty between Turkey and Kenya laying down a formal procedure (as the Government submitted).",
"94. The Court will begin by examining the evidence on the actual role played by the Kenyan authorities in the present case. The applicant entered Kenya without declaring his identity to the immigration officers. However, once they had been informed of the applicant's presence at the Greek embassy in Nairobi, the Kenyan authorities invited the Greek ambassador, with whom the applicant was staying in Nairobi, to arrange for the applicant to leave Kenyan territory. Shortly before the applicant was due to leave Kenya, more precisely as he was being transferred from the Greek embassy to the airport, Kenyan officials intervened and separated the applicant from the Greek ambassador. The car in which the applicant was travelling was driven by a Kenyan official, who took him to the aircraft in which Turkish officials were waiting to arrest him.",
"95. The Kenyan authorities did not perceive the applicant's arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty. In sum, neither aspect of the applicant's detention – whether his interception by the Kenyan authorities before his transfer to the airport, or his arrest by the Turkish officials in the aircraft – led to an international dispute between Kenya and Turkey or to any deterioration in their diplomatic relations. The Kenyan authorities did not lodge any protest with the Turkish government on these points or claim any redress from Turkey, such as the applicant's return or compensation.",
"96. The Kenyan authorities did, however, issue a formal protest to the Greek government, accompanied by a demand for the Greek ambassador's immediate recall, on the grounds that the applicant had entered Kenya illegally with the help of Greek officials and was unlawfully staying there. The applicant was not welcome in Kenya and the Kenyan authorities were anxious for him to leave.",
"97. These aspects of the case lead the Court to accept the Government's version of events: it considers that at the material time the Kenyan authorities had decided either to hand the applicant over to the Turkish authorities or to facilitate such a handover.",
"98. The applicant has not adduced evidence enabling concordant inferences (see paragraph 90 above) to be drawn that Turkey failed to respect Kenyan sovereignty or to comply with international law in the present case. The Grand Chamber agrees with the Chamber's finding that:",
"“ ... The Court is not persuaded by the statement by the Kenyan Minister for Foreign Affairs on 16 February 1999 that, contrary to what the applicant maintained, the Kenyan authorities had had no involvement in the applicant's arrest or transfer ... While it is true that the applicant was not arrested by the Kenyan authorities, the evidence before the Court indicates that Kenyan officials had played a role in separating the applicant from the Greek ambassador and in transporting him to the airport immediately preceding his arrest on board the aircraft.” (see paragraph 100 of the Chamber judgment)",
"99. Consequently, the applicant's arrest on 15 February 1999 and his detention were in accordance with “a procedure prescribed by law” for the purposes of Article 5 § 1 of the Convention. There has, therefore, been no violation of that provision.",
"C. Article 5 § 3 of the Convention",
"100. The applicant alleged that, contrary to Article 5 § 3 of the Convention, he had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power.",
"1. The applicant's submissions",
"101. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation under this provision as there had been no need for him to be detained for seven days before being brought before a judge. He said that he had been arrested before 11 p.m. on 15 February 1999 and brought before a judge on 23 February 1999. The weather report produced by the Government which spoke of bad weather conditions concerned only the afternoon of 23 February 1999.",
"2. The Government's submissions",
"102. The Government contested the Chamber's finding of a violation in respect of this complaint. They pointed out that at the material time the Turkish rules of criminal procedure permitted police custody to be extended to seven days when the person detained was suspected of terrorist-related offences. In the instant case, the applicant had been arrested on 16 February 1999 and taken into police custody for an initial period of four days ending on 20 February 1999. On the latter date, a court order had been made extending the period to be spent in police custody by three days, that is to say until 23 February 1999. Owing to adverse weather conditions (there was a storm in the region), the representatives of the public prosecutor's office and judge of the National Security Court did not reach the island of İmralı until 22 February 1999. The public prosecutor had questioned the applicant that same day. The applicant had appeared before the judge the following day ( 23 February 1999 ) and the judge had ordered his detention pending trial after hearing his representations.",
"3. The Court's assessment",
"103. The Grand Chamber notes at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A no. 258-B, p. 55, §§ 62-63; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 ‑ III; Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 ‑ B, pp. 31-32, § 58; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000- VIII ).",
"104. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the Chamber's findings, which were as follows:",
"“106. The Court has already noted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems ( see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61; Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58; and Aksoy v. Turkey, [ judgment of 18 December 1996, Reports 1996-VI ], p. 2282, § 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved ( see Sakık and Others v. Turkey, [ judgment of 26 November 1997, Reports 1997-VII ], pp. 2623-24, § 44).",
"107. The Court notes that the police custody in issue commenced with the applicant's arrest either very late on 15 February 1999 or very early on 16 February 1999. The applicant was held in police custody for four days until 20 February 1999. On that date a judicial order was made extending the period by three days, that is to say until 23 February 1999. The public prosecutor questioned the applicant on 22 February 1999. The applicant appeared before a judge for the first time on 23 February 1999 and the judge, who was without any doubt an'officer'within the meaning of Article 5 § 3 (see, among other authorities, Sakık and Others, cited above, p. 2615, § 12, and p. 2624, § 45 ), ordered his detention pending trial. The total period thus spent by the applicant in police custody before being brought before a judge came to a minimum of seven days.",
"108. The Court notes that in Brogan and Others it held that a period of four days and six hours in police custody without judicial supervision fell outside the strict constraints as to time permitted by Article 5 § 3, even when the aim was to protect the community as a whole from terrorism (see Brogan and Others, cited above, p. 33, § 62).",
"109. The Court cannot accept the Government's argument that adverse weather conditions were largely responsible for the period of seven days it took for the applicant to be brought before a judge. No evidence has been adduced before the Court that establishes that the judge attempted to reach the island on which the applicant was being held so that the latter could be brought before him within the total statutory period of seven days allowed for police custody. The Court observes in that connection that the police custody ran its ordinary course under the domestic rules. In addition to the four days ordered by the public prosecutor's office itself, the judge granted an additional period of three days after examining the case on the basis of the file. It seems unlikely that the judge would have granted the additional time had he intended to have the applicant brought before him before it expired.",
"110. The Court cannot, therefore, accept that it was necessary for the applicant to be detained for seven days without being brought before a judge.”",
"105. In the light of all the foregoing considerations, the Court holds that there has been a violation of Article 5 § 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"A. Whether the Ankara National Security Court, which convicted the applicant, was independent and impartial",
"106. The applicant alleged that he had not been tried by an independent and impartial tribunal, since a military judge had sat on the bench during part of the proceedings in the National Security Court. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...”",
"1. The applicant's submissions",
"107. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation on this issue. He said that a judge holding the rank of colonel in the army had sat on the bench of the National Security Court during most of the proceedings. The military judge had been replaced by a civilian judge just one week before the applicant's conviction and two months after the hearings before the National Security Court had started. In the meantime, in a case that concerned a conflict between the organisation led by the applicant and the army in which the military judge was an officer, the military judge had taken part in important interlocutory rulings and discussed the case with the other judges, thereby potentially influencing the conduct and outcome of the proceedings.",
"2. The Government's submissions",
"108. The Government contested the Chamber's finding that the last-minute replacement of the military judge was incapable of curing the defect in the composition of the court or of remedying the resulting violation of Article 6.",
"They pointed out that the military judge had left the National Security Court following legislative amendments. All the members of the court that had convicted the applicant were civilian judges. As regards the period prior to the military judge's replacement, the Government noted that a civilian substitute judge had been following the proceedings from the start and had attended the hearings. In addition, the military judge had been replaced by the substitute judge before the stage in the proceedings in which evidence was gathered had ended. Had the substitute judge considered that the National Security Court needed to make further investigations, he could have voted against making an order to close that stage of the proceedings.",
"109. The Government invited the Grand Chamber to follow the Court's decision in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), in which it held that the replacement of a military judge by a civilian judge in the course of criminal proceedings had solved the problem regarding the independence and impartiality of the national security court concerned.",
"110. They objected in particular to the Chamber's use of the “last minute” criterion in its judgment in the present case. That criterion would have been valid had the new judge not been given sufficient time to examine the interlocutory decisions taken up to that point or been precluded from issuing new ones. However, in the Government's submission, the replacement judge had been given both the time and the means necessary to play an active role in the decision-making process.",
"111. The Government further maintained that the applicant himself had had no doubts about the independence and impartiality of the National Security Court. He had in fact expressed his confidence in that court at a hearing at which the military judge had been present. It mattered little that the applicant's lawyers had subsequently contradicted Mr Öcalan's remark in their submissions. The most important point was that that remark – which had been made of the applicant's own free will and expressed his confidence in the court – had been sincere.",
"3. The Court's assessment",
"112. The Court has consistently held that certain aspects of the status of military judges sitting as members of the national security courts made their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998 - VII, p. 3073, § 39).",
"113. It is understandable that the applicant – prosecuted in a national security court for serious offences relating to national security – should have been apprehensive about being tried by a bench that included a regular army officer belonging to the military legal service. On that account he could legitimately fear that the National Security Court might allow itself to be unduly influenced by considerations that had nothing to do with the nature of the case (see, among other authorities, Iprahim Ülger v. Turkey, no. 57250/00, 29 July 2004 ).",
"114. As to whether the military judge's replacement by a civilian judge in the course of the proceedings before the verdict was delivered remedied the situation, the Court considers, firstly, that the question whether a court is seen to be independent does not depend solely on its composition when it delivers its verdict. In order to comply with the requirements of Article 6 regarding independence, the court concerned must be seen to be independent of the executive and the legislature at each of the three stages of the proceedings, namely the investigation, the trial and the verdict (those being the three stages in Turkish criminal proceedings according to the Government).",
"115. Secondly, when a military judge has participated in one or more interlocutory decisions that continue to remain in effect in the criminal proceedings concerned, the accused has reasonable cause for concern about the validity of the entire proceedings, unless it is established that the procedure subsequently followed in the national security court sufficiently dispelled that concern. More specifically, where a military judge has participated in an interlocutory decision that forms an integral part of proceedings against a civilian, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court.",
"116. In its previous judgments, the Court attached importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces ( see, among other authorities, Incal, cited above, p. 1573, § 72). Such a situation seriously affects the confidence the courts must inspire in a democratic society (see, mutatis mutandis, Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).",
"117. In the instant case, the Court notes that before his replacement on 23 June 1999 the military judge was present at two preliminary hearings and six hearings on the merits, when interlocutory decisions were taken. It further notes that none of the decisions were renewed after the replacement of the military judge and that all were validated by the replacement judge.",
"118. In these circumstances, the Court cannot accept that the replacement of the military judge before the end of the proceedings dispelled the applicant's reasonably held concern about the trial court's independence and impartiality. In so far as the decision or reasoning in İmrek, cited above, may be regarded as inconsistent with this conclusion, the Grand Chamber will not follow the decision and the reasoning in that case.",
"Consequently, there has been a violation of Article 6 § 1 of the Convention on this point.",
"B. Whether the proceedings in the National Security Court were fair",
"119. The applicant complained that the provisions of Article 6 §§ 1, 2 and 3 of the Convention had been infringed owing to the restrictions and difficulties he had encountered in securing assistance from his lawyers, gaining access – for both himself and his lawyers – to the case file, calling defence witnesses and securing access for his lawyers to all the information held by the prosecution. He also alleged that the media had influenced the judges to his detriment.",
"120. The relevant part of Article 6 of the Convention reads as follows:",
"“1. ... everyone is entitled to a fair ... hearing within a reasonable time ...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"...”",
"1. The applicant's submissions",
"121. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had a fair trial. He set out the principal reasons why he considered that his trial failed to satisfy the requirements of Article 6.",
"He observed that unfettered, confidential and prompt access to legal assistance of one's choosing at all stages of the proceedings from the instant a person is detained was one of the fundamental requirements of a fair hearing in a democratic society. In the present case, however, he had had difficulty contacting his lawyers and that had affected his defence rights. In that connection, he explained that his lawyers had not been allowed to visit him until ten days after his arrest, by which time he had already made statements to the judicial authorities. He had also encountered difficulties in appointing lawyers of his choice, and that process had taken some time. His first meeting with his lawyers had taken place in the presence of members of the security forces. The other visits by his lawyers had been overseen and listened in to by the authorities and filmed with a video camera. Ultimately, the applicant considered that he had not been able to confer in private with his lawyers, in breach of the mandatory provisions of the Code of Criminal Procedure. After two short initial visits, contact with his lawyers had been limited to two weekly visits of an hour each. In proceedings that had been conducted extremely quickly and had produced an enormous case file, the total duration of the visits had been manifestly insufficient for him to prepare his defence. In any event, the applicant's lawyers had not enjoyed the same facilities as the members of the prosecution for travelling to the place of detention and the trial centre.",
"122. The applicant stressed that for the purposes of preparing the defence it had been vital for him and his lawyers to be given full, effective access to all the documents in the case file, including documents whose relevance to the issues of guilt and sentencing was only potential. However, his lawyers had not been permitted to provide him with a copy of the trial papers or any other material that would assist him in the preparation of his defence. He had been obliged to write out his defence by hand, without having access to any of the documents in the case file other than the bill of indictment, with which he had already been provided.",
"123. Furthermore, because of the speed with which the proceedings had been conducted, his lawyers had had difficulty in consulting all the documents in the file. They were given access to the case file, which ran to 17,000 pages, just sixteen days before the hearings started. The defence's ability to analyse the documents had been further hampered by, inter alia, the restrictions imposed throughout the investigation on communications between the applicant and his lawyers. The National Security Court had nonetheless dismissed an application by the applicant's lawyers for additional evidence to be taken. The applicant added that, while before the National Security Court he had accepted political responsibility for the PKK's general policy, he had denied criminal liability for acts of violence that went beyond the PKK's stated policy. It had been with a view to highlighting the rapprochement between the PKK and the government that the applicant had made a request for the members of the government team that had led the negotiations with the PKK to be heard as defence witnesses.",
"124. In conclusion, the applicant said that he had not enjoyed equality of arms with the prosecution in preparing his defence, in particular as a result of the difficulties that had prevented him and his lawyers from having sufficient time to confer in private, obtaining effective access to the case file and putting forward his defence in a secure environment.",
"2. The Government's submissions",
"125. The Government disagreed with the Chamber's findings regarding the fairness of the applicant's trial; in their submission, it had been fair. In that connection, they observed firstly that the applicant had been convicted under Article 125 of the Criminal Code, the aim of which was to protect the democratic values of the Republic. The Criminal Divisions of the Turkish Court of Cassation, sitting in plenary session, had held that the PKK was an organisation that resorted to force and acts of violence with a view to bringing about the secession of part of Turkish territory to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The acts of violence perpetrated by the PKK and acknowledged by the applicant at his trial had involved some 6,036 armed attacks on civilians, 8,257 armed confrontations with the security forces, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings. Those acts came within the list of terrorist acts set out in Articles 1 and 2 of the European Convention on the Suppression of Terrorism. The Government noted that the applicant had admitted before the courts that he had played a role in the creation and organisation of the PKK and in the planning and perpetration of acts of violence committed by members of that organisation.",
"126. As regards the rights of the defence, the Government noted that the applicant had had a public hearing, had been able to participate fully in the hearings with the help of the special measures taken to ensure his safety, had addressed the court without being interrupted, and had said everything he wished to say in his defence. They said that the applicant had been provided with every facility for the preparation of his defence: he had been able to consult the lawyers of his choice during both the preliminary investigation and the trial and, with the exception of the first visit, the only restrictions to which his lawyers'visits had been subject were those set out in the Code of Criminal Procedure. Furthermore, the applicant's lawyers had made no request to see their client at more frequent intervals. There had been no restrictions on the applicant's correspondence and he had been able to lodge with the National Security Court eighty pages of defence submissions he had drafted himself.",
"127. As regards the applicant's access to the case file, the Government maintained that even before the hearings on the island of İmralı the applicant's lawyers had been given an opportunity to photocopy all the documents in the case file. The 17,000 -page case file had, in fact, been compiled from the case files in seven sets of criminal proceedings that had already been instituted in various national security courts several years before the applicant's arrest, and the applicant was already familiar with the papers. In any event, very few new documents had been added to the case file. The Government asserted that the National Security Court had communicated all the relevant documents to the applicant and allowed him to study the case file and any annexes he wished to see under the supervision of two officials. It had also informed the applicant that it would provide him with a copy of any document he thought might assist him with his defence. The applicant had in fact had sufficient time (twenty days) in which to acquaint himself with the relevant material in the case file.",
"128. On this point, the Government also argued that, contrary to what the Chamber had found, the Court's case-law in Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B, p. 42, § 52) and Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168, pp. 39 -40, § 88) was applicable in the instant case. There was no requirement under that case-law for the accused to be given direct access to the case file. It was sufficient for him to be apprised of its content by his representatives. Requiring such access to be afforded in the prosecution of organised crime would discriminate against those accused of ordinary offences.",
"Furthermore, the applicant had acknowledged his responsibility for the acts of the PKK, the organisation he had led before his arrest. Even if he had examined the acts of the other PKK members in greater detail, he would not have found any evidence to assist him in his defence.",
"129. Among the other facilities that had been made available to assist the applicant with his defence, a photocopier had been installed in the hearing room for the use of the lawyers, on the instructions of the President of the National Security Court. Furthermore, the lawyers had been taken to the island of İmralı by boat, embarking at a private quay for security reasons. Hotel rooms had been reserved for them near the embarkation point. If the lawyers were not present at a hearing, transcripts of the hearing and copies of any fresh documentary evidence had been delivered to them the next day. Counsel for the applicant had thanked the President of the National Security Court for establishing a dispassionate atmosphere.",
"3. The Court's assessment",
"130. The Court considers that in order to determine whether the rights of the defence were respected in the criminal proceedings against the applicant, it is necessary to examine the legal assistance available to him and the access he and his lawyers were given to the case file.",
"(a) Legal assistance",
"(i) The applicant's lack of access to a lawyer while in police custody",
"131. The Grand Chamber sees no reason to disagree with the Chamber's finding that the applicant's lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows:",
"“ ... The Court reiterates that Article 6 may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it ( see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing ( see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63).",
"... In the present case, the applicant was questioned by the security forces, a public prosecutor and a judge of the National Security Court while being held in police custody in Turkey for almost seven days, from 16 February 1999 to 23 February 1999. He received no legal assistance during that period and made several self-incriminating statements that were subsequently to become crucial elements of the indictment and the public prosecutor's submissions and a major contributing factor in his conviction.",
"... As to whether the applicant had waived his right to consult a lawyer, the Court notes that on the day after his arrest, his lawyer in Turkey, Mr Feridun Çelik (who already possessed a valid authority), sought permission to visit him. However, Mr Çelik was prevented from travelling by members of the security forces. In addition, on 22 February 1999 sixteen lawyers who had been retained by the applicant's family sought permission from the National Security Court to visit the applicant, but their request was turned down by the authorities on 23 February 1999.",
"... In these circumstances, the Court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of Article 6 ( see, mutatis mutandis, Magee [ v. the United Kingdom, no. 28135/95 ], §§ 44-45 [, ECHR 2000-VI] ).”",
"(ii) Consultation with his lawyers out of the hearing of third parties",
"132. In the absence of any specific observations by the parties on this point in the proceedings before it, the Grand Chamber endorses the Chamber's findings:",
"“ ... the applicant's first visit from his lawyers took place under the supervision and within sight and hearing of members of the security forces and a judge, all of whom were present in the same room as the applicant and his lawyers. The security forces restricted the visit to twenty minutes. The record of the visit was sent to the National Security Court.",
"... As regards subsequent visits, ... the Court accepts that meetings between the applicant and his lawyers after the initial visit took place within hearing of members of the security forces, even though the security officers concerned were not in the room where the meetings took place.”",
"133. The Grand Chamber agrees with the Chamber's assessment of the effects of the applicant's inability to consult his lawyers out of the hearing of third parties:",
"“ ... an accused's right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective ( see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, pp. 15- 16, § 48). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, as stated above ... restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.",
"... In the present case, the Court accepts ... that the applicant and his lawyers were unable to consult out of the hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that might prove important to the preparation of his defence. The rights of the defence were thus significantly affected.",
"... The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the National Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of the hearing of third parties.",
"... As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security.”",
"Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence.",
"(iii) Number and length of the visits by the applicant's lawyers",
"134. After the first two visits by his lawyers, which were approximately two weeks apart, contact between the applicant and his lawyers was restricted to two one-hour visits per week.",
"135. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the following findings of the Chamber:",
"“ ... while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to'defend himself in person or through legal assistance ...', it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial ( see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). In this respect, it must be remembered that the Convention is designed to'guarantee not rights that are theoretical or illusory but rights that are practical and effective'and that assigning a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15- 16, § 33). The Court also points out that the manner in which Article 6 §§ 1 and 3 (c) are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( see Imbrioscia, cited above, pp. 13- 14, § 38).",
"... The Court observes that, in the instant case, the charges against the applicant included numerous acts of violence perpetrated by an illegal armed organisation and that he was alleged to be the leader of that organisation and the principal instigator of its acts. The Court further notes that the presentation of those highly complex charges generated an exceptionally voluminous case file ... It considers that in order to prepare his defence to those charges the applicant required skilled legal assistance equal to the complex nature of the case. It finds that the special circumstances of the case did not justify restricting the applicant to a rhythm of two one-hour meetings per week with his lawyers in order to prepare for a trial of that magnitude.",
"... With respect to the Government's argument that visits took place in accordance with the frequency and departure times of the ferries between the island of İmralı and the coast, the Court considers that, while the Government's decision to hold the applicant in an island prison far from the coast is understandable in view of the exceptional security considerations in the case, restricting visits to two one-hour visits a week is less easily justified. It notes that the Government have not explained why the authorities did not permit the lawyers to visit their client more often or why they failed to provide more adequate means of transport, thereby increasing the length of each individual visit, when such measures were called for as part of the'diligence'the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner ( see Colozza [ v. Italy, judgment of 12 February 1985, Series A no. 89 ], pp. 14- 15, § 28).",
"... As to the Government's argument that the applicant's lawyers organised press conferences after each visit and acted as spokespersons for the PKK, the Court holds that any such conduct on their part could not justify the restrictions in issue, since restrictions cannot be placed on the rights of the defence for reasons that are not directly related to the trial. In addition, there is no evidence before the Court that any complaint was lodged in Turkey against the applicant's lawyers for acting as spokespersons for the PKK.”",
"136. The Government's argument before the Grand Chamber that the applicant's lawyers had not asked to see him at more frequent intervals must also be rejected. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention must be established in an unequivocal manner (see, mutatis mutandis, Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16 -17, § 37). It notes that there was in fact a complaint by the applicant's lawyers to the National Security Court about the difficulties they had encountered in communicating with their client.",
"137. Consequently, the Court considers that the restriction on the number and length of the applicant's meetings with his lawyers was one of the factors that made the preparation of his defence difficult.",
"(b) The applicant's access to the case file",
"138. The Court must next examine whether the fact that the applicant was prevented from obtaining communication of the documents in the case file (apart from the bill of indictment) until 4 June 1999 violated the rights of the defence, as guaranteed by Article 6 § 1, taken together with the rights guaranteed by Article 6 § 3, as it was not until the hearing on that date that the National Security Court gave the applicant permission to consult the case file under the supervision of two registrars and gave his lawyers permission to provide him with copies of certain documents.",
"139. The Court will first examine the submission made by the Government before the Grand Chamber that the decisions in Kremzow and Kamasinski, both cited above, are applicable in the instant case. These authorities establish that an accused does not have to be given direct access to the case file, it being sufficient for him to be informed of the material in the file by his representatives. The Court also notes that, relying on those same authorities, the Government have already argued before the Chamber that restricting the right to inspect the court file to an accused's lawyer is not incompatible with the rights of the defence.",
"140. When examining these issues, the Court will have regard to its case-law to the effect that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, § 47). The Court further considers that respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see, mutatis mutandis, Kremzow, cited above, p. 44, § 63).",
"141. As regards the relevant facts in the present case, the Grand Chamber agrees with the following findings of the Chamber:",
"“ ... in the instant case, the applicant was not permitted to inspect the evidence produced by the prosecution personally before the hearings. When the applicant's lawyers made their comments on that evidence, they had yet to obtain the applicant's observations following a direct inspection of the documentation. The fact that the applicant was given permission on 2 June 1999 to consult the case file under the supervision of two registrars did little to remedy that situation, in view of the considerable volume of documents concerned and the short time available to the applicant.”",
"142. The Grand Chamber therefore considers that the present case is distinguishable from Kremzow, in which the applicant had twenty-one days in which to examine forty-nine pages, in contrast to Mr Öcalan, who had twenty days in which to examine a case file containing some 17,000 pages. The present case is also distinguishable from Kamasinski, in which the applicant's lawyer was able to pass on to his client copies of all the documents he considered relevant. Mr Öcalan's lawyers were not able to provide him with any documents before submitting their comments on the prosecution evidence.",
"143. The Government's argument that a more detailed examination by the applicant of the material relating to the acts of the other members of the PKK would not have permitted him to find evidence to assist him in his defence as he had already acknowledged responsibility for the acts of the PKK also warrants examination by the Court. It should be noted that while the applicant admitted before the National Security Court that he was the leader of the PKK, an armed separatist organisation, and responsible for the general policy of that organisation, he did not specifically comment on each act of violence committed by PKK members. He did say in his defence, however, that certain acts of violence had been committed against his will or beyond his control.",
"It is thus reasonable to assume that, had he been permitted to study the prosecution evidence directly for a sufficient period, the applicant would have been able to identify arguments relevant to his defence other than those his lawyers advanced without the benefit of his instructions.",
"144. The Court therefore holds that the fact that the applicant was not given proper access to any documents in the case file other than the bill of indictment also served to compound the difficulties encountered in the preparation of his defence.",
"(c) Access by the applicant's lawyers to the court file",
"145. Together with the issue of the applicant's access to his case file, the Court must also determine whether, in the instant case, the lawyers'access to the documents in the case file was restricted, either formally or in practice, and, if so, whether the restrictions affected the fairness of the proceedings.",
"146. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment on them (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, pp. 27 -28, §§ 66-67).",
"147. In the present case, the bill of indictment was served on the applicant and his lawyers on 24 April 1999. The court file was placed at the disposal of the applicant's lawyers on 7 May 1999, but they were not provided with a copy. The applicant's lawyers finished photocopying the documents on 15 May 1999. They were in possession of the full file in the case from that date onwards. Two weeks later, on 31 May 1999, the hearings before the National Security Court began. The applicant's lawyers were invited to make their final submissions – in reply to the prosecution's submissions – at the eighth substantive hearing, which was held on 23 June 1999.",
"In these circumstances, the Grand Chamber agrees with the Chamber's findings regarding the difficulties the applicant's lawyers encountered in gaining access to the court file, which were exacerbated by the same kinds of problem the applicant had experienced:",
"“ ... the applicant's lawyers received a 17,000- page file approximately two weeks before the beginning of the trial in the National Security Court. Since the restrictions imposed on the number and length of their visits made it impossible for the applicant's lawyers to communicate the documents in the file to their client before 2 June 1999 or to involve him in its examination and analysis, they found themselves in a situation that made the preparation of the defence case particularly difficult. Subsequent developments in the proceedings did not permit them to overcome those difficulties: the trial proceeded apace; the hearings continued without interruption until 8 June 1999; and on 23 June 1999 the applicant's lawyers were invited to present their submissions on all the evidence in the file, including that taken at the hearings.”",
"(d) The Court's conclusion regarding the fairness of the trial",
"148. Accordingly, the applicant's trial was unfair for the following reasons : he had no assistance from his lawyers during questioning in police custody; he was unable to communicate with his lawyers out of the hearing of third parties; he was unable to gain direct access to the case file until a very late stage in the proceedings; restrictions were imposed on the number and length of his lawyers'visits; and, lastly, his lawyers were given proper access to the case file belatedly. The Court finds that the overall effect of these difficulties taken as a whole so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, was contravened. There has therefore been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b) and (c).",
"149. As regards the other complaints under Article 6 of the Convention, the Court considers that it has already dealt with the applicant's main grievances arising out of the proceedings against him in the domestic courts. It therefore holds that it is unnecessary to examine the other complaints under Article 6 relating to the fairness of the proceedings.",
"III. DEATH PENALTY: ALLEGED VIOLATION OF ARTICLES 2, 3 AND 14 OF THE CONVENTION",
"150. The applicant maintained that the imposition and/or execution of the death penalty constituted a violation of Article 2 of the Convention – which should be interpreted as no longer permitting capital punishment – as well as an inhuman and degrading punishment in violation of Article 3. He also claimed that his execution would be discriminatory and, therefore, in breach of Article 14. The relevant parts of these provisions provide:",
"Article 2",
"“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.",
"... ”",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Article 14",
"“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”",
"A. Implementation of the death penalty",
"151. In his initial application, the applicant complained that any recourse to the death penalty would violate both Articles 2 and 3 of the Convention.",
"152. In its judgment, the Chamber said that it considered that the threat of implementation of the death sentence had been effectively removed (see paragraphs 184- 85 of the Chamber judgment).",
"153. The parties did not comment on this issue in the subsequent proceedings.",
"154. In this connection, the Court notes that the death penalty has been abolished in Turkey and the applicant's sentence has been commuted to life imprisonment. Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6 to the Convention concerning the abolition of the death penalty.",
"155. In these circumstances, the complaints the applicant made in his initial application of violations of Articles 2, 3 and 14 on account of the implementation of the death penalty must be dismissed. Accordingly, there has been no violation of those provisions on that account.",
"B. Imposition of the death penalty",
"156. The Grand Chamber agrees with the Chamber that no separate issue arises under Article 2 with respect to the imposition of the death penalty. It will therefore examine this point under Article 3.",
"1. The parties'submissions",
"(a) The applicant",
"157. The applicant asked the Grand Chamber to pursue the reasoning of the Chamber as regards the abolitionist trend established by the practice of the Contracting States and to take it a stage further by concluding that the States had, by their practice, abrogated the exception set out in the second sentence of Article 2 § 1 of the Convention and that the death penalty constituted inhuman and degrading treatment within the meaning of Article 3. In that connection, he repeated the observations he had submitted to the Chamber (see paragraphs 175- 79 of the Chamber judgment).",
"When the Convention was signed in 1950, the death penalty was not perceived as a degrading and inhuman punishment in Europe and was provided for in the legislation of a number of States. Since that time there had been de facto abolition throughout Europe. Such developments should be seen as an agreement by Contracting States to amend Article 2 § 1.",
"158. No construction of Article 2 should permit a State to inflict inhuman and degrading treatment since the death penalty per se constituted such treatment in breach of Article 3 of the Convention. In that latter respect, the following submissions were made.",
"159. Developments in international and comparative law showed that the death penalty could also be seen to be contrary to international law. In that respect, reference was made, inter alia, to a judgment of the South African Constitutional Court in which it was held that the death penalty was contrary to the South African Constitution's prohibition of cruel, inhuman or degrading treatment ( see S. v. Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665), and to the judgment of the Canadian Supreme Court in United States v. Burns [ 2001 ] Supreme Court Reports 283, where that court, in a case concerning the extradition of a fugitive to the United States of America, considered capital punishment to amount to cruel and unusual punishment. The United Nations Human Rights Committee had also held that execution of a death sentence constituted cruel and inhuman treatment contrary to Article 6 of the International Covenant on Civil and Political Rights (see paragraph 60 above). Reference was also made to similar statements by the Hungarian Constitutional Court and the Constitutional Courts of Ukraine, Albania, Lithuania and Republika Srpska (within Bosnia and Herzegovina ).",
"160. Finally, the applicant maintained that the imposition of the death penalty by a court that failed to satisfy the requisite standards of the Convention and permitted violations of the applicant's rights under Article 6 also violated Articles 2 and 3.",
"(b) The Government",
"161. The Government disagreed with the Chamber's finding that the imposition of the death penalty following an unfair trial constituted a violation of Article 3.",
"They observed, firstly, that neither the applicant nor his lawyers had presented any argument on this point. Secondly, even assuming that the Court had decided of its own motion to examine the case under Article 3, it would be difficult if not impossible to do so in view of the nature of Article 3. Inhuman treatment within the meaning of Article 3 was based on a subjective concept, that is to say fear and anguish felt by the applicant that reached the level proscribed by Article 3. In the absence of such a complaint, it was not possible for the Court to put itself in the applicant's position.",
"In the Government's submission, the conclusion reached by the Chamber was contrary to an earlier admissibility decision of the Commission in Çınar v. Turkey ( no. 178 64/91, Commission decision of 5 September 1994, DR 79 -A, p. 5) and to Sertkaya v. Turkey ( (dec.), no. 77113/01, 11 December 2003 ). In those decisions, the Convention institutions found that the applicants had not felt fear or anguish as the moratorium on the implementation of the death penalty had eliminated any risk of their being executed.",
"The applicant's situation was identical to that of Mr Çınar and Mr Sertkaya, and the guarantees that the death penalty would not be carried out were, if anything, firmer in his case: as the applicant's case file had never been sent to Parliament, the procedure allowing the death penalty to be implemented was never set in motion. In addition, the Turkish government's moratorium on the implementation of the death penalty was unconditional and no offences or individuals were excluded from its scope. The Government had complied with the interim measure ordered by the Court under Rule 39 requiring them to stay the applicant's execution. There was a broad consensus in Parliament in Turkey that the applicant should not be executed, the composition of Parliament at the material time being the same as when it abolished the death penalty.",
"The Government submitted that there was no evidential basis for the Chamber's finding, nor could it be justified by the Court's request for a stay of execution of the death penalty.",
"Lastly, the Turkish government's decision to comply with the European norms on capital punishment had eliminated all risk that the applicant would be executed.",
"2. The Court's assessment",
"(a) Legal significance of the practice of the Contracting States as regards the death penalty",
"162. The Court must first address the applicant's submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103).",
"163. The Grand Chamber agrees with the following conclusions of the Chamber on this point (see paragraphs 19 0 - 96 of the Chamber judgment):",
"“ ... The Court reiterates that it must be mindful of the Convention's special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case.",
"... It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 ( ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04).",
"... The applicant takes issue with the Court's approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6.",
"... The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).",
"... It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 195 3 and indeed since the Court's judgment in Soering in 1989.",
"... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia [ [1] ]. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment.",
"... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.”",
"164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.",
"165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.",
"(b) Unfair proceedings and the death penalty",
"(i) Under Article 2",
"166. As regards the reference in Article 2 of the Convention to “the execution of a sentence of a court”, the Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201- 04 of the Chamber judgment):",
"“ ... Since the right to life in Article 2 of the Convention ranks as one of the most fundamental provisions of the Convention – one from which there can be no derogation in peacetime under Article 15 – and enshrines one of the basic values of the democratic societies making up the Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), a fortiori the second sentence of Article 2 § 1.",
"... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that'[e] veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention ( see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59).",
"... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the'execution of a sentence of a court', that the'court'which imposes the penalty be an independent and impartial tribunal within the meaning of the Court's case-law ( see Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154), and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty is irreversible, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the decisions of the United Nations Human Rights Committee ...; also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of Human Rights on'The right to information on consular assistance in the framework of the guarantee of due process of law', §§ 135 ‑ 36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148 ...). Lastly, the requirement in Article 2 § 1 that the penalty be'provided by law'means not only that there must exist a basis for the penalty in domestic law but that the requirement of the quality of the law be fully respected, namely that the legal basis be'accessible'and'foreseeable'as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V).",
"... It follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible.”",
"(ii) Under Article 3",
"167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances.",
"168. As the Court has previously noted in connection with Article 3, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering, cited above, p. 41, § 104).",
"169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention.",
"(iii) Application of these principles to the present case",
"170. The Court notes that there has been a moratorium on the implementation of the death penalty in Turkey since 1984 and that in the present case the Government complied with the Court's interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted that the applicant's file was not sent to Parliament for approval of the death sentence, as was then required by the Turkish Constitution.",
"171. The Court has also had regard, in this context, to Çınar ( cited above ) in which the Commission rejected a claim that Article 3 had been violated in the case of an applicant who had been sentenced to death in Turkey. In its reasoning, the Commission took into account the long-standing moratorium on the death penalty and concluded in the circumstances of that case that the risk of the penalty being implemented was illusory.",
"172. The Grand Chamber agrees with the Chamber that the special circumstances of the instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant's background as the founder and leader of the PKK, an organisation that had been engaged in a sustained campaign of violence causing many thousands of casualties, had made him Turkey's most wanted person. In view of the fact that the applicant had been convicted of the most serious crimes existing in the Turkish Criminal Code and of the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it is not possible to rule out the possibility that the risk that the sentence would be implemented was a real one. In practical terms, the risk remained for more than three years of the applicant's detention in İmralı, from the date of the Court of Cassation's judgment of 25 November 1999 affirming the applicant's conviction until the Ankara National Security Court's judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to imprisonment.",
"173. As to the nature of the applicant's trial, the Court refers to its conclusions on the applicant's complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers'visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly.",
"174. The death penalty has thus been imposed on the applicant following an unfair procedure which cannot be considered to conform to the strict standards of fairness required in cases involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of that sentence for nearly three years.",
"175. Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION: CONDITIONS OF DETENTION",
"176. The applicant further complained that the conditions in which he had been transferred from Kenya to Turkey and detained on the island of İmralı amounted to treatment contrary to Article 3 of the Convention, which provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Conditions in which the applicant was transferred from Kenya to Turkey",
"1. The applicant's submissions",
"177. The applicant said that he had been “abducted” in Kenya by Turkish officials and that his abduction necessarily constituted a violation of his right to respect for his physical integrity. He added that the circumstances in which the arrest had been effected also amounted to degrading and inhuman treatment. In his submission, the fact that he had been abducted for political reasons was in itself capable of constituting a breach of Article 3.",
"2. The Government's submissions",
"178. The Government asked the Grand Chamber to uphold the Chamber's finding that the conditions in which the applicant was transferred from Kenya to Turkey did not infringe Article 3.",
"3. The Court's assessment",
"(a) General principles",
"179. Article 3 of the Convention enshrines one of the fundamental values of democratic societies (see Soering, cited above, pp. 34 -35, § 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their populations from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Article 3 makes no provision for exceptions and no derogation from it is permissible even under Article 15 of the Convention in time of war or other national emergency ( see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79).",
"180. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., pp. 64 ‑ 65, § 161).",
"181. Treatment will be considered to be “inhuman” within the meaning of Article 3 where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).",
"182. Handcuffing, one of the forms of treatment complained of in the present case, does not normally give rise to an issue under Article 3 of the Convention where it has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage. In addition, the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration ( see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Raninen, cited above, p. 2822, § 56).",
"183. Artificially depriving prisoners of their sight by blindfolding them for lengthy periods spread over several days may, when combined with other ill-treatment, subject them to strong psychological and physical pressure. The Court must examine the effect of such treatment in the special circumstances of each case (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/ 93, § 132, ECHR 2000-VII).",
"(b) Application of the above principles to the instant case",
"184. The Grand Chamber has examined the Chamber's findings and, in the absence of any additional arguments by the parties in support of their views, adopts them:",
"“ ... the applicant was forced to wear handcuffs from the moment of his arrest by the Turkish security forces on the aircraft until his arrival at the prison on the island of İmralı. [The Court] also notes that he was suspected of being the leader of an armed separatist movement that was engaged in an armed struggle against the Turkish security forces and that he was considered dangerous. The Court accepts the Government's submission that the sole purpose of requiring the applicant to wear handcuffs as one of the security measures taken during the arrest phase was to prevent him from attempting to abscond or causing injury or damage to himself or others.",
"... As regards the blindfolding of the applicant during his journey from Kenya to Turkey, the Court observes that that was a measure taken by the members of the security forces in order to avoid being recognised by the applicant. They also considered that it was a means of preventing the applicant from attempting to escape or injuring himself or others. The applicant was not questioned by the security forces when he was blindfolded. The Court accepts the Government's explanation that the purpose of that precaution was not to humiliate or debase the applicant but to ensure that the transfer proceeded smoothly and it acknowledges that, in view of the applicant's character and the reaction to his arrest, considerable care and proper precautions were necessary if the operation was to be a success.",
"... The Court's view on this point is not altered by the fact that the applicant was photographed wearing a blindfold in the aircraft that took him back to Turkey. It points out that there had been fears for the applicant's life following his arrest and the photographs, which the Government say were intended for use by the police, served to reassure those concerned about his welfare. The Court notes, lastly, that the applicant was not wearing a blindfold when he was photographed in Turkey shortly before his transfer to the prison.",
"... The applicant said that he was under sedation when he was transferred from Kenya to Turkey, the drugs having been administered to him either at the Greek embassy in Nairobi before he boarded the plane or in the aircraft that had taken him to Turkey. The Government rejected the latter suggestion. The Court notes that there is no evidence in the case file to substantiate the allegation that the Turkish security forces administered drugs to the applicant. Since the applicant also seems to think that the most probable explanation is that he was drugged before he was put on board the flight from Nairobi to Turkey, the Court considers that this allegation against the Turkish officials has not been established.",
"... Furthermore, at the hearing on 31 May 1999 the applicant stated in the National Security Court :'Since my arrest I have not up to now been subjected to torture, ill-treatment or verbal abuse .'While the applicant's vulnerability at the time as a result of his being on trial for a capital offence means that that statement does not by itself conclusively establish the facts, it does support the Government's submissions.",
"... Lastly, since the applicant's arrest was lawful under Turkish law, the Court cannot accept the applicant's submission that his'abduction'abroad on account of his political opinions constituted inhuman or degrading treatment within the meaning of Article 3.",
"... That being so, the Court considers that it has not been established'beyond all reasonable doubt'that the applicant's arrest and the conditions in which he was transferred from Kenya to Turkey exceeded the usual degree of humiliation that is inherent in every arrest and detention or attained the minimum level of severity required for Article 3 of the Convention to apply.”",
"185. Consequently, there has been no violation of Article 3 on that account.",
"B. Conditions of detention on the island of İmralı",
"1. The applicant's submissions",
"186. The applicant disagreed with the Chamber's finding that the conditions of his detention on the island of İmralı did not infringe Article 3. He submitted that the conditions were inhuman within the meaning of Article 3 or at the very least entailed disproportionate interference with the exercise of his rights under Article 8. He had been the sole inmate in the prison for more than five years and his social isolation was made worse by the ban on his having a television set or communicating by telephone, and by the practical obstacle inadequate sea transport facilities posed to visits by his lawyers and members of his family. The applicant pointed out that the CPT's recommendations for reduced social isolation had not been followed by the prison authorities. His prison conditions were, in his submission, harsher than those of other prisoners.",
"The applicant said that his health had deteriorated as a result of the particular weather conditions that prevailed on the island of İmralı and that the Government's insistence on keeping him in that prison had more to do with their repressive attitude than security. There was no justification for the Government's refusal to transfer him to an ordinary prison or to allow visitors to travel to the island by helicopter.",
"2. The Government's submissions",
"187. The Government invited the Grand Chamber to endorse the Chamber's finding that the conditions of the applicant's detention on the island of İmralı did not infringe Article 3. They pointed out that the applicant had at no stage been held in cellular confinement. He received visits from his lawyers and members of his family every week. The adverse maritime weather conditions in the winter of 200 2- 03 that had been responsible for the cancellation of some visits were highly unusual.",
"188. The Government produced photographs which in their submission showed that the applicant's cell was suitably furnished. They pointed out that the applicant had been tried and convicted of being the head of a major armed separatist organisation that continued to regard him as its leader. All the restrictions imposed on his telephone communications were intended to prevent the applicant from continuing to run the organisation from his prison cell, and that was a national security issue. However, he was able to read books and daily newspapers of his choice and to listen to the radio. No restrictions had been placed on his written communications with the outside world. As to the applicant's health, he was examined frequently by doctors and psychologists, whose daily medical reports were sent to the Court on a regular basis.",
"189. The Government asserted that the applicant was treated in strict conformity with European standards governing conditions of detention. In the cases in which the Court had found a violation of Article 3, the conditions of detention were far worse than in Mr Öcalan's case (for instance, Poltoratskiy v. Ukraine, no. 38812/97, ECHR 2003- V, and Kuznetsov v. Ukraine, no. 39042/97, 29 April 2003 ).",
"3. The Court's assessment",
"190. The Court must first determine the period of the applicant's detention to be taken into consideration when examining his complaints under Article 3. It points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber's decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 56, ECHR 2003-II). More specifically, within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 223, § 44; Chahal, cited above, p. 1856, § 86; and Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, p. 2207, § 43). There is no justification for excluding from the scope of that general jurisdiction events that took place up to the date of the Grand Chamber's judgment, provided that they are directly related to the complaints declared admissible.",
"Furthermore, in the instant case, the applicant has already made submissions in the proceedings before the Chamber outlining his arguments on the effects his prolonged social isolation while in custody were likely to have.",
"The Court will therefore take into consideration the conditions of the applicant's detention between 16 February 1999 and the date this judgment is adopted. The fact that the applicant has in the interim lodged a new application concerning the latter part of his detention does not alter the position.",
"191. Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V).",
"192. In the present case, it is true that the applicant's detention posed exceptional difficulties for the Turkish authorities. The applicant, as the leader of a large, armed separatist movement, is considered in Turkey to be the most dangerous terrorist in the country. Reactions to his arrest and differences of opinion that have come to light within his own movement show that his life is genuinely at risk. It is also a reasonable presumption that his supporters will seek to help him escape from prison. In those circumstances, it is understandable that the Turkish authorities should have found it necessary to take extraordinary security measures to detain the applicant.",
"193. The applicant's prison cell is indisputably furnished to a standard that is beyond reproach. From the photographs in its possession and the findings of the delegates of the CPT, who inspected the applicant's prison during their visit to Turkey from 2 to 14 September 2001, the Court notes that the cell the applicant occupies alone is large enough to accommodate a prisoner and furnished with a bed, table, armchair and bookshelves. It is also air-conditioned, has washing and toilet facilities and a window overlooking an inner courtyard. The applicant appears to be under medical supervision that is both strict and regular. The Court considers that these conditions do not give rise to any issue under Article 3 of the Convention.",
"194. Further, the Court considers that the applicant cannot be regarded as being kept in sensory isolation or cellular confinement. It is true that, as the sole inmate, his only contact is with prison staff. He has books, newspapers and a radio at his disposal. He does not have access to television programmes or a telephone. He does, however, communicate with the outside world by letter. He sees a doctor every day and his lawyers and members of his family once a week (his lawyers were allowed to see him twice a week during the trial). The difficulties in gaining access to İmralı Prison in adverse weather conditions appear to have been resolved, as the prison authorities were provided with a suitable craft at the end of 2004.",
"195. The Court notes the CPT's recommendations that the applicant's relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives. However, like the Chamber, the Grand Chamber is also mindful of the Government's concerns that the applicant may seek to take advantage of communications with the outside world to renew contact with members of the armed separatist movement of which he was leader. These concerns cannot be said to be unfounded. An added consideration is the Government's fear that it would be difficult to protect the applicant's life in an ordinary prison.",
"196. While concurring with the CPT's recommendations that the long ‑ term effects of the applicant's relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account.",
"V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"197. The applicant complained that he had been hindered in the exercise of his right of individual application in that his lawyers in Amsterdam had not been permitted to contact him after his arrest and that the Government had delayed in replying to the Court's request for information. He alleged a violation of Article 34 of the Convention, which reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"198. The Government asked the Court to dismiss those complaints.",
"199. The Court is called upon to decide whether the two matters raised by the applicant genuinely hindered him in the effective exercise of his right of application.",
"200. As regards his inability to communicate with his lawyers in Amsterdam following his arrest, the Court notes that a group of representatives composed of lawyers chosen by the applicant, including the lawyers in Amsterdam, subsequently applied to the Court and put forward all the applicant's allegations concerning the period in which he had had no contact with his lawyers. There is therefore nothing to indicate that the applicant was hindered in the exercise of his right of individual application to any significant degree.",
"201. As to the Government's delay in replying to the Chamber's second request for information, the Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I ). However, though regrettable, the Government's failure to supply the information requested by the Court earlier did not, in the special circumstances of the case, prevent the applicant from setting out his complaints about the criminal proceedings that had been brought against him. Accordingly, the applicant has not been obstructed in the exercise of his right of individual application.",
"202. In conclusion, there has been no violation of Article 34 in fine of the Convention.",
"VI. OTHER COMPLAINTS",
"203. Relying on the same facts, the applicant also alleged a violation of Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention.",
"204. Repeating the arguments set out above with regard to the other complaints, the Government submitted that those complaints too were ill ‑ founded and had to be dismissed.",
"205. The applicant wished to pursue his complaints.",
"206. Having examined the complaints, which, incidentally, are not set out in any detail in the applicant's submissions, the Court notes that they have virtually the same factual basis as the complaints it has examined in previous sections of this judgment.",
"Consequently, it considers that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with Articles 2, 3, 5 and 6, is necessary.",
"VII. ARTICLES 46 AND 41 OF THE CONVENTION",
"A. Article 46 of the Convention",
"207. Article 46 of the Convention provides:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”",
"208. In the event of the Court finding a violation of Article 6, the applicant requested a retrial by an independent and impartial court in which he would enjoy full defence rights. In the event of the Court finding a violation of Article 3 on account of the conditions of his detention, he requested a transfer to a prison on the mainland, and the facilitation of contact with other prisoners, members of his family and his lawyers.",
"209. While reaffirming their view that there had been no violation of the Convention provisions relied on by the applicant, the Government submitted, in the alternative, that a finding of a violation could constitute in itself sufficient just satisfaction for the applicant.",
"210. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).",
"However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V).",
"In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above, § 202).",
"In the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, Chambers of the Court have indicated in certain judgments that were delivered after the Chamber judgment in the present case that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requests (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). It is also to be noted that a Chamber of the Court has adopted a similar stance in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV).",
"The Grand Chamber endorses the general approach adopted in the above ‑ mentioned case-law. It considers that where an individual, as in the instant case, has been convicted by a court that did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court's judgment in that case, and with due regard to the above case-law of the Court.",
"B. Article 41 of the Convention",
"211. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"1. Damage",
"212. The Court notes that the applicant has not put forward any claim in respect of pecuniary or non-pecuniary damage and concludes that any damage the applicant may have sustained has been sufficiently compensated for by its findings of a violation of Articles 3 (as regards the imposition of the death penalty following an unfair trial), 5 and 6 of the Convention.",
"2. Costs and expenses",
"213. During the proceedings before the Chamber, the applicant had claimed compensation of 1,123,933.96 euros (EUR) for the costs and expenses he had incurred for the seven lawyers and three trainee lawyers who had acted for him outside Turkey and the costs and expenses of six of his lawyers in Turkey.",
"The Chamber awarded him EUR 100,000 under that head.",
"The applicant claimed an additional EUR 75,559.32 in respect of the proceedings under Article 43 of the Convention. He explained that that sum was broken down into EUR 65,978.60 for the fees of his lawyers and their assistants and EUR 9,580.72 for sundry expenses, such as translation costs and travel expenses.",
"214. The Government submitted that those claims were manifestly unreasonable, in particular as regards the amount of the lawyers'fees.",
"215. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002 ).",
"216. In the present case, the Court notes that it has upheld only some of the applicant's complaints under the Convention. It therefore notes that not all the time or all the meetings for which the applicant's main lawyers claimed remuneration were spent solely on the complaints in respect of which a violation has been found.",
"217. The Court considers that the applicant should only be reimbursed part of his costs incurred before the Court. Having regard to the circumstances of the case, the fee scales applicable in the United Kingdom and in Turkey and the complexity of certain issues raised by the application, and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 120,000 in respect of the complaints put forward by all his legal representatives. That sum is to be paid into bank accounts nominated by his Turkish and United Kingdom representatives.",
"3. Default interest",
"218. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
262 | Ramirez Sanchez v. France | 4 July 2006 (Grand Chamber) | Better known as “Carlos the Jackal” and viewed during the 1970s as the most dangerous terrorist in the world, the applicant complained about his solitary confinement for eight years following his conviction for terrorist-related offences. | The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention on account of the length of time the applicant had spent in solitary confinement. While sharing the European Committee for the Prevention of Torture‘s concerns about the possible long-term effects of the applicant’s isolation, the Court nevertheless considered that, having regard in particular to his character and the danger he posed, the conditions in which the applicant was held during the period under consideration had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. The Court further found in this case a violation of Article 13 (right to an effective remedy) of the Convention, on account of the lack of a remedy in French law that would have allowed the applicant to contest the decision to prolong his detention in solitary confinement. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1949 and is currently in Clairvaux Prison.",
"A. The applicant ’ s solitary confinement",
"10. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994. He was placed under judicial investigation in connection with a series of terrorist attacks in France and was given a life sentence on 25 December 1997 for the murder of two police officers and an acquaintance on 27 June 1975.",
"11. He was held in solitary confinement from the moment he was first taken into custody in mid-August 1994 until 17 October 2002, notably in La Santé Prison (Paris).",
"12. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area. The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole permitted activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 metres wide at the base, receding to 1 metre at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. The only visits he received were from his lawyers and, once a month, a priest. The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had gone missing, although it had not been officially confiscated, and he had not received a winter jacket that had been brought to the prison for him in October 1999 until 16 February 2000.",
"13. The Government did not dispute these facts. They said that the cell was lit by natural light, a ceiling light and a reading lamp. None of the members of the applicant ’ s family had ever applied for permission to visit. Only two requests to visit had been turned down, both from journalists.",
"14. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison.",
"His current representative, who is also his wife under Islamic law, visited him more than 640 times between 27 June 1997 and 29 April 2002.",
"15. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods.",
"16. The first was taken when the applicant was first detained ( 15 August 1994 ). It consists of a form on which the following boxes were ticked: “Need to prevent communication with one or more other prisoners” and “Undermining of order and discipline in the prison ”. There were no observations by the applicant. The same day, a doctor issued a medical certificate stating:",
"“ [The applicant ’ s] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days. ”",
"17. A decision dated 3 November 1994 to prolong the applicant ’ s solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director ’ s Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations:",
"“ I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner. ”",
"In a medical certificate issued the same day, a doctor",
"“ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement ”.",
"18. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director ’ s Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor",
"“ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement for administrative reasons ”.",
"19. A decision dated 25 April 1995, which was approved by the Regional Director ’ s Office and was applicable from 15 May to 15 August 1995, spoke of the “ need to prevent communication with one or more other prisoners ” and a “ security measure ”. The applicant was transferred that day to Fresnes Prison.",
"20. A proposal to prolong the measure dated 26 July 1995 cited the “ need to prevent communication with one or more other prisoners ”.",
"On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating:",
"“Health currently compatible with continued solitary confinement. ”",
"21. On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995.",
"22. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant ’ s health was satisfactory and compatible with solitary confinement.",
"A further proposal to prolong the measure dated the same day referred to “ the undermining of order or discipline in the prison ”.",
"23. On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995.",
"24. A proposal of 24 January 1996 for a further extension referred to “ the need to prevent communication with one or more other prisoners ”.",
"On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was satisfactory.",
"25. On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996.",
"26. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in the segregation unit.",
"On 7 May 1996 the measure was extended for a period of three months commencing on 15 May 1996. A proposal dated 17 April 1996 mentioned a “ precautionary or security measure required for one or more of the following reasons: need to prevent communication with one or more other prisoners ”.",
"27. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation:",
"“ I do not think it right that I should be asked to sign more than five months late. ”",
"28. On 15 July 1996 the applicant was notified of a measure which referred to the “ need to prevent communication with one or more other prisoners ” and to “ international terrorism ”.",
"29. On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in solitary confinement.",
"30. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “ need to prevent communication with one or more other prisoners ”. The applicant made the following observations on the notification slip:",
"“ I note that Mr ..., the director, has already replied to these observations, even before I have made them, it is stated below: 07.11.1996 before the Sentence Enforcement Board in the prison. Consequently, the remarks I am required to make have become superfluous. Even so, my solitary confinement is a form of torture. ”",
"This measure was authorised by the head of the Prison Service at the Ministry of Justice on 14 November 1996, as were those that followed.",
"31. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health to be compatible with solitary confinement.",
"32. A proposal made on 20 January 1997 referred to the “ need to protect [the applicant] from the rest of the prison population ” and the “ need to prevent communication with one or more other prisoners ”. The applicant made the following remarks:",
"“ I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement. ”",
"33. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant.",
"34. The following reasons were given for a proposal for a further extension dated 25 April 1997 :",
"“Precautionary or security measure for one or more of the following reasons:",
"(i) need to protect you from the rest of the prison population;",
"(ii) need to prevent communication with one or more other prisoners. ”",
"The applicant made the following comments :",
"“ I have not had a check-up, been weighed or had my blood pressure taken, etc. ... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up. ”",
"35. A decision of 21 July 1997 referred in addition to “ the undermining of order and discipline in the prison ” and “ potential dangerousness linked to acts of terrorism”. The applicant made the following comments:",
"“ I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me. I request an immediate interview with the governor. ”",
"36. A decision of 13 August 1997 again cited the “ need to prevent communication with one or more other prisoners ”.",
"37. On 14 October 1997 a doctor at Fresnes Prison issued a certificate certifying that the applicant ’ s health was satisfactory.",
"Proposals of 21 October 1997 and 23 January 1998 were in the same terms as the decision of 13 August 1997. On signing the proposal of 21 October, the applicant stated:",
"“ I sign under protest against an unjust repressive measure (decision) against a political prisoner held hostage by the French State. ”",
"38. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant ’ s health was satisfactory.",
"39. It was followed by a further certificate on 22 April 1998 stating that the applicant was fit enough to remain in solitary confinement and a certificate of 23 July 1998 stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement.",
"40. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “ precautionary and security measures in view of the prisoner ’ s character and record ”.",
"The applicant commented as follows on the proposal of 22 April 1998 :",
"“ I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy. ”",
"On the proposal of 19 October 1998, he noted:",
"“ The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me. ”",
"41. The measure dated 19 October 1998 referred to “ precautionary and security measures in view of the prisoner ’ s character and record ”.",
"42. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated:",
"“ The applicant ’ s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment. ”",
"Proposals made on 14 January and 8 April 1999 stated:",
"“ The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases. ”",
"43. The Ministry of Justice stated in decisions of 20 January and 20 April 1999 :",
"“ The character of this prisoner, who is an HSP [ high-security prisoner ] and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds. ”",
"44. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read:",
"“ The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year ’ s confinement. Last certificate issued on ( illegible ). I do not, therefore, need to append a certificate regarding prolongation to this note. ”",
"45. On 23 April 1999 another prison doctor certified that the applicant ’ s health was compatible with his detention or continued detention in solitary confinement.",
"46. A further certificate dated 20 July 1999 confirmed that the applicant ’ s health was compatible with his continued detention in solitary confinement.",
"47. A decision of 22 July 1999 cited the following reasons:",
"“ You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as an HSP, and the nature of your convictions and of the cases currently pending. ”",
"48. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows:",
"“ It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal. ”",
"The applicant made the following observations:",
"“ I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and with Law itself. ALLOUHA AKBAR. ”",
"49. On 1 February 2000 the authorities relied on",
"“ order and security grounds, in view of your character, your classification as an HSP and the offences for which you have been imprisoned ”.",
"50. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the end of the sentence read “ given your access to outside help ”.",
"51. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read:",
"“ I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement.",
"However, it is not proper for a patient ’ s doctor to be required to issue a certificate that ought to be a matter for expert opinion. It is very difficult for a doctor to sanction solitary confinement on administrative, rather than medical, grounds. ”",
"52. On 3 October 2000 another doctor issued a certificate in the following terms:",
"“ I, the undersigned, ... certify that I have today examined [the applicant].",
"No clinical examination was carried out. However, in view of his current mental condition, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ”",
"53. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the governors of Fleury-Mérogis and La Santé Prisons, dated 30 December 2000 and 22 January 2001 respectively, to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer.",
"54. The following reasons were stated in the decision of 22 January 2001 :",
"“ Regard has been had to your personality, your classification as an HSP, the length of your sentence ( LI [life imprisonment] ), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ”",
"55. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added:",
"“ However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ”",
"On 28 March 2001 the applicant commented as follows:",
"“ I have once again filled in this form, having already done so on 19 March ... I denounce ‘ the white torture ’ of perpetual solitary confinement which, following the ‘ serious provocation of 28 December 2000 ’, has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30 o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of ‘ lese-humanity ’. ”",
"56. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate:",
"“ I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement. ”",
"57. On 22 April 2001 it was decided to prolong the solitary confinement",
"“ in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help ”.",
"The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms.",
"58. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit (“the OCTU”) wrote to the governor of La Santé Prison in these terms:",
"“ I have met Mr Ilich Ramirez Sanchez ... as I was asked for an opinion on whether there is any contraindication to this patient ’ s remaining in solitary confinement.",
"Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm.",
"It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision.",
"... ”",
"59. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in similar terms.",
"60. The following reasons were stated in a decision that was applicable from 22 July 2001 :",
"“ ... in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help. ”",
"61. On 20 September 2001 the doctor in charge of the OCTU issued a medical certificate after examining the applicant “ for the purposes of the medical opinion required for continued solitary confinement ”. He stated that the applicant presented",
"“ a physical and mental condition that was entirely reasonable after seven years in solitary confinement ”,",
"adding, however, that",
"this opinion does not constitute an expert opinion, which I am not qualified to give ”.",
"62. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001 :",
"“ It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. ”",
"In his observations, the applicant noted in particular:",
"“ More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken. ”",
"63. On 20 December 2001 the measure was renewed for a further three months on the following grounds:",
"“ Regard has been had to your character, your classification as an HSP, the length of your sentence ( LI), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ”",
"64. Decisions of 10 January, 25 March and 8 July 2002 read as follows:",
"“ It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high- security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement. ”",
"65. On 13 June 2002 an assistant doctor from the OCTU at La Santé Prison issued a medical certificate in the following terms:",
"“ I, the undersigned, Doctor ..., an assistant doctor from the OCTU at La Santé Prison in Paris, certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for him to remain in solitary confinement.",
"From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner ’ s physical and mental health. ”",
"66. On 29 July 2002 the doctor in charge of the OCTU at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving:",
"“ This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code.",
"He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health.",
"In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit.",
"He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses.",
"He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ...",
"Biological tests are performed regularly. ...",
"The treatment Mr Ramirez Sanchez has been receiving can be equated to comfort treatment: ...",
"It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service].",
"... ”",
"67. In September 2002 a further decision to prolong the solitary confinement was taken “ in order to preserve security and order, which are under serious threat owing to the applicant ’ s implication in terrorist networks, his dangerousness and the risk of his escaping ”.",
"68. On 17 October 2002 the applicant was transferred to Saint-Maur Prison ( département of Indre), where his solitary confinement ended. On 13 May 2003 he lodged a fresh application with the Court, in which he complained of the new conditions in which he was being held and, in particular, of the distance from Paris.",
"69. In June 2003 a book that had been written by the applicant with the help of a journalist was published under the title L ’ islam révolutionnaire ( “ Revolutionary Islam ” ).",
"70. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health:",
"“ Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002.",
"He has at no stage been placed in solitary confinement in Saint-Maur Prison.",
"As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request.",
"As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The RMPS have not recommended any follow- up to that appointment. ”",
"71. On 18 March 2004 the applicant was transferred to Fresnes Prison in the Paris area where he was again placed in solitary confinement. This followed a television programme in which, in the course of a telephone interview with a journalist, the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “ no innocent victims ”.",
"72. On 6 August 2004 a doctor at Fresnes Prison issued a medical certificate in the following terms:",
"“ I, the undersigned, ... certify that the prolonged period of solitary confinement to which Mr Ilich Ramirez Sanchez, who was born on 12 October 1949, is subject is detrimental to his mental health.",
"Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests. ”",
"73. On 20 December 2005 another doctor issued a medical certificate which read:",
"“ I, the undersigned, ... regularly see Mr Ilich Ramirez Sanchez, a prisoner in the segregation unit.",
"His continued solitary confinement is damaging his health; it has now lasted for several years and it would appear desirable from the medical standpoint for it to cease. ”",
"74. On 24 January 2005 the applicant was transferred to Fleury-Mérogis Prison and on 24 November 2005 to La Santé Prison. In both institutions he was kept in solitary confinement with the measure being periodically renewed, including on 17 February 2005 (see below).",
"75. On 30 June and 5 October 2005 the senior doctor at the OCTU at Fleury-Mérogis Prison issued two medical certificates in exactly the same terms:",
"“ I, the undersigned, ... certify that Mr Ramirez Sanchez Ilich, who was born on 12 October 1949, has been in my care since his arrival at the prison.",
"The problems which Mr Ramirez Sanchez has had with his physical health are now stable.",
"Mr Ramirez Sanchez continues to make the same complaints about the difficulties of being held in full solitary confinement.",
"Since he does not wish to be treated by the Regional Medical and Psychological Service at Fleury- Mérogis Prison and I am not qualified to determine the impact of the conditions in which he is detained on his mental state, a medical and psychological assessment would be desirable.",
"Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law. ”",
"76. On 5 January 2006 the applicant was transferred to Clairvaux Prison, where he is held under the ordinary prison regime.",
"B. The applicant ’ s requests for judicial review",
"77. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside.",
"78. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court rejected the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside.",
"79. The applicant lodged an application for an order setting aside, on the grounds of formal invalidity, the decision of 17 February 2005 to keep him in solitary confinement. In a judgment of 15 December 2005, the Paris Administrative Court held as follows.",
"“ Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on 4 February 2005 in favour of prolonging Mr Ramirez Sanchez ’ s solitary confinement, there is no evidence in the file to show that the regional director obtained the opinion of the Sentence Enforcement Board before delivering his reasoned report to the Minister of Justice, even though, by virtue of the aforementioned provisions of Article D. 283-1 of the Code of Criminal Procedure, the Board is the only body empowered to decide whether solitary confinement should continue beyond a year. It follows that Mr Ramirez Sanchez ’ s argument that the decision of 17 February 2005 to prolong his solitary confinement was defective and must be set aside is well-founded.",
"As regards the submissions on the issue of compensation.",
"Although the formal invalidity of a solitary- confinement measure constitutes a fault capable of engaging the State ’ s responsibility, such a fault cannot entitle the person subjected to the measure to compensation for his or her loss if the circumstances of the case were such as to justify in law the decision to place the prisoner in solitary confinement as the alleged loss cannot be considered to have been a consequence of the defect in the decision.",
"The investigation shows that Mr Ramirez Sanchez has been sentenced to life imprisonment for the murder of police officers. He has been placed under investigation in connection with various terrorist cases, inter alia, for voluntary homicide and using an explosive device to destroy movable property. The applicant might use communications in Fleury-Mérogis Prison or on the outside to re-establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape. That being so, the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for a period of three months. The damage alleged by Mr Ramirez Sanchez, which included the loss of contact with other prisoners, cannot, therefore, be considered to have been a consequence of the procedural defect in the decision of 17 February 2005, so that his request for an order requiring the State to compensate him for the damage he claims to have sustained is unfounded. ... ”",
"II. PROCEDURE IN SOLITARY CONFINEMENT CASES",
"...",
"1.4. Content of the decision",
"The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. The sheet contains two sections, one for the reasons and the other for the prisoner ’ s observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision.",
"...",
"2.2. Copies of documents for the authorities",
"Article D. 283-1, sub - paragraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay.",
"A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation.",
"3. Lifting of the measure",
"Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply.",
"In view of the harmful effects of prolonged solitary confinement, the prison governor and regional director must closely monitor the length of the measure.",
"The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure.",
"The prisoner must be notified of a decision to lift the measure. If the prisoner has asked to be placed in solitary confinement, his or her observations (if any) must be obtained.",
"4. Prolongation of the measure",
"Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ...",
"4.1. Proposals to prolong the measure",
"The prolongation procedure must be set in motion three weeks before the three-month period expires.",
"Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose. They are then notified of the proposal.",
"No prolongation may be proposed without a prior assessment of the prisoner ’ s situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement.",
"If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing:",
"(i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the Sentence Enforcement Board and the date of transmission to the regional director.",
"(ii) The liaison form.",
"(iii) The report on the prisoner ’ s behaviour in solitary confinement based, in particular, on the record of observation.",
"Any report by the medical team or opinion by the doctor will be appended to the proposal file.",
"4.2. The regional director ’ s investigation",
"The file should be sent to the Regional Director ’ s Office at least fifteen days before the three-month period expires. The Regional Director ’ s Office will examine the file and, if necessary, request additional documents or information. It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure.",
"The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned.",
"If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary regime.",
"The prisoner will be given a copy of the decision to prolong the measure on being notified of it.",
"The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision.",
"The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible.",
"When a decision to prolong solitary confinement has already been taken by a regional director, the measure may be lifted during the statutory periods only by a decision of the same authority, unless it automatically lapses under Chapter 3. In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for.",
"5. Prolongation after a year",
"Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, sub - paragraph 6.",
"5.1. Proposals to prolong solitary confinement",
"The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the Regional Director ’ s Office and the central authority time to examine it thoroughly.",
"A doctor ’ s opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal.",
"The prison governor will submit the proposal to the Sentence Enforcement Board for an opinion, which the latter will indicate on the proposal form.",
"The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal.",
"The prison governor must append to the proposal a summary report on the prisoner ’ s behaviour since the initial decision was made.",
"Lastly, the liaison record (III.3) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure.",
"5.2. The regional director ’ s report",
"The regional director should draw up a report on the basis of the prison governor ’ s proposal and give a reasoned opinion on whether the measure should be prolonged beyond a year.",
"Before doing so, the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers.",
"He or she may also recommend other measures, such as a transfer.",
"The file containing the proposal to prolong solitary confinement must be sent to the head office of the Prison Service at least one month before the preceding measure expires. The central authority must be given time to examine the file and to seek alternatives.",
"5.3. The decision of the Minister of Justice",
"The central authority will send the Minister of Justice ’ s decision (which will normally be taken by the director of the Prison Service under delegated authority) to the Regional Director ’ s Office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time.",
"The prisoner should be provided with a copy of the decision and an original should be placed in the file.",
"A verbal report on the final decision should be made to the Sentence Enforcement Board.",
"The head office of the Prison Service will retain the power to decide on further quarterly extensions beyond a year. The matter will be referred back to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end.",
"Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority.",
"...",
"IV. THE SOLITARY CONFINEMENT REGIME",
"1. European and national recommendations",
"Following its visit to France of 6 to 18 October 1996, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘ a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime ’, in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities, including outdoor activities.",
"These recommendations tie in with the findings of the working groups that have been set up by or at the request of the Prison Service.",
"2. Implementation of the ordinary prison regime",
"In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime.",
"1 o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communication referred to in Article 145- 4 cannot apply to communication with lawyers.",
"2 o The right to relations with members of one ’ s family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement.",
"There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner ’ s classification as a high-security risk in accordance with Article D. 276-1 of the Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch.",
"Similarly, prisoners ’ rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement.",
"3 o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions.",
"If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit.",
"4 o Religious observance.",
"Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain.",
"5 o Health.",
"The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle:",
"(i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure.",
"(ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary- regime prisoners.",
"(iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table.",
"2.6. Activities in the segregation unit",
"Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times.",
"Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner ’ s placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned.",
"Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training.",
"...",
"4. Monitoring of and dialogue with prisoners in solitary confinement",
"4.1. Monitoring",
"A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner ’ s behaviour in solitary confinement.",
"The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner.",
"Staff should consult it regularly and in any event if it is intended to propose prolonging the measure.",
"A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure.",
"All prisons shall be responsible for creating a record of observation meeting the stated objective or, if one already exists, improving it.",
"4.2. Dialogue",
"In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement. Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner ’ s character.",
"For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners. ”",
"82. 3. Case-law of the Conseil d ’ Etat",
"In a judgment of 30 July 2003, the Conseil d ’ Etat departed from its previous case-law when it held:",
"“ The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged. In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice ’ s submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of Bois d ’ Arcy Prison to place him in solitary confinement is unfounded.",
"The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this Court.",
"It follows from the foregoing that the Minister of Justice is not entitled to make an order setting aside the impugned judgment.",
"It is appropriate in the circumstances of this case to make an order requiring the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code. ”",
"III. INTERNATIONAL MATERIALS",
"83. Extracts from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the responses of the government of the French Republic (unofficial translation)",
"Report on the visit of 6 to 18 October 1996",
"“ 158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible.",
"159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé ... It met a number of prisoners who had been held in solitary confinement for long, and in some instances very long, periods.",
"... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101).",
"As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders.",
"As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory.",
"160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded. Doctors were required to inform the prison governor in writing if they considered the prisoner ’ s physical or mental health to be at risk.",
"In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996 ) would establish new rules for gaining access to a doctor and assessing a prisoner ’ s condition.",
"161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another. ... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief.",
"162. In the light of the foregoing, the CPT recommends that the French authorities:",
"(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact;",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report;",
"(iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds).",
"The CPT would also like to know whether the decree announced by the French authorities has come into force and to receive a copy if it has. ”",
"Responses of the government of the French Republic to the 1996 report",
"Observations (interim report)",
"“ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162)",
"The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure.",
"Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year.",
"The entry into force of this Article, which will be included in a vast decree amending more than 300 Articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform.",
"It is intended that a draft circular will be issued when the decree comes into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of regular meetings. The provision of individual teaching or training programmes will also be recommended.",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162)",
"A draft circular is being prepared.",
"(iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162)",
"A draft circular is being prepared. ”",
"Follow-up report",
"“ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162)",
"The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation.",
"It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care.",
"Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia :",
"(a) full compliance with prisoners ’ ordinary rights to relations with their family, representatives and others;",
"(b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings;",
"(c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes.",
"This draft was prepared after wide consultation of decentralised services. An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree.",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162)",
"The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation.",
"Any event with suspensive effect that either entails release or is for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner ’ s return to ordinary detention.",
"(iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162)",
"The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT. ”",
"report on the visit from 14 to 26 may 2000",
"“ 111. In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158- 63 of the reports). Subsequently, in a circular dated 14 December 1998, the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits.",
"Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice.",
"The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities).",
"112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting.",
"113. The ministerial instructions state: ‘ The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit ’ (point 4.1). They further state, inter alia : ‘ there shall be no restrictions on prison visits ’ (point 4.2.2) and ‘ prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times ’, that ‘ it is for the prison governor to assess how and when such groups may be organised ’ and ‘ individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged ’ (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: ‘ in order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement ’ (point 4.4.2).",
"From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room).",
"The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular.",
"114. The CPT also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: ‘ serious damage to property belonging to the prison that put prison security at risk ’ ) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ( ‘ to maintain order in the prison ’ or ‘ risk of escape ’ ). In one case the prisoner had been held in solitary confinement since 1997 ‘ because of the nature of the offences of which he had been convicted ’.",
"In summary, it would appear that the ministerial instructions, namely ‘ Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm ’, are not always fully complied with (cf. point 1.4.2).",
"The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons.",
"115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf. paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority.",
"The CPT recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation). ”",
"Response of the government of the French Republic",
"“ (i) take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular (paragraph 113)",
"(ii) carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons (paragraph 114)",
"Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year.",
"There are currently 77 prisoners who have been in solitary confinement for more than a year. Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners.",
"The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned.",
"Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the ‘ 4 000 programme ’ will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular.",
"Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the Prison Service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement. In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits.",
"(iii) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge (paragraph 115)",
"Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons. ”",
"84. Extracts from the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002",
"“ III. Lawfulness of anti-terrorist measures",
"1. All measures taken by States to combat terrorism must be lawful.",
"2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued.",
"IV. Absolute prohibition of torture",
"The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.",
"...",
"XI. Detention",
"1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.",
"2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:",
"(i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;",
"(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;",
"(iii) the separation of such persons within a prison or among different prisons,",
"on condition that the measure taken is proportionate to the aim to be achieved. ”",
"85. 1. Extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules adopted on 11 January 2006",
"“ The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,",
"Having regard to the European Convention on Human Rights and the case- law of the European Court of Human Rights;",
"Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports;",
"Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law;",
"Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society;",
"...",
"Recommends that governments of member States:",
"– be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules:",
"...",
"Appendix to Recommendation Rec(2006)2",
"...",
"Basic principles",
"1. All persons deprived of their liberty shall be treated with respect for their human rights.",
"2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.",
"3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.",
"...",
"18.2 In all buildings where prisoners are required to live, work or congregate:",
"a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;",
"b. artificial light shall satisfy recognised technical standards; ...",
"...",
"23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.",
"...",
"23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.",
"...",
"24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.",
"24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.",
"...",
"24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.",
"...",
"24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case.",
"...",
"25.1 The regime provided for all prisoners shall offer a balanced programme of activities.",
"25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.",
"25.3 This regime shall also provide for the welfare needs of prisoners.",
"...",
"27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.",
"27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.",
"27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.",
"27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment.",
"27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them.",
"27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.",
"27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities.",
"...",
"29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.",
"...",
"37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their State.",
"...",
"39. Prison authorities shall safeguard the health of all prisoners in their care.",
"...",
"40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.",
"...",
"40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.",
"40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.",
"...",
"43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff.",
"43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement.",
"...",
"51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.",
"51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.",
"51.3 As soon as possible after admission, prisoners shall be assessed to determine:",
"a. the risk that they would present to the community if they were to escape;",
"b. the risk that they will try to escape either on their own or with external assistance.",
"51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.",
"51.5 The level of security necessary shall be reviewed at regular intervals throughout a person ’ s imprisonment.",
"Safety",
"52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.",
"52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.",
"...",
"53.1 Special high security or safety measures shall only be applied in exceptional circumstances.",
"53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.",
"53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.",
"53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.",
"53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.",
"53.6 Such measures shall be applied to individuals and not to groups of prisoners.",
"53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.",
"...",
"70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.",
"...",
"70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.",
"... ”",
"2. Extracts from the report by Mr Alvaro Gil- Robles, Commissioner for Human Rights of the Council of Europe, on the effective respect for human rights in France following his visit from 5 to 21 September 2005 (published on 15 February 2006)",
"“ 123. ... At the same time, another administrative procedure, which comes fully under the responsibility of the prison administration, is totally lacking in transparency and calls for rapid action on the part of the legislature. This is the procedure for placing prisoners in solitary confinement.",
"124. When one visits prisons, and more specifically the disciplinary blocks, one can usually see the solitary confinement blocks close by. Every prison has them. Under the law, any prisoner may be placed in solitary confinement either at his/her own request or as a precautionary or security measure [1]. In some cases, this regime is used to remove prisoners who are troublesome, under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence.",
"125. According to the legislation currently in force, solitary confinement is not a disciplinary measure [2]. Prisoners in solitary confinement must be subject to the ordinary prison regime. However, they must not have contact with other prisoners, except by express decision of the prison director, to take part in one-off activities with other solitary confinement prisoners. The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way. In a few establishments, solitary confinement prisoners may engage in a gainful occupation by doing work in their cells. Usually, however, they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside. All solitary confinement prisoners may, however, receive visits and exchange correspondence in the normal way.",
"126. There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘ because of [their] involvement in organised crime or in a terrorist movement or [their] legal and criminal background ’. It is for the prison director to determine which solitary confinement prisoners fall within this category. They are subject to particular security measures. Some are regularly transferred from one prison to another, roughly every six months. They remain constantly in solitary confinement and never mix with other prisoners.",
"127. Solitary confinement is usually ordered by the prison director. It may also be ordered by an investigating judge in the course of an investigation. Here I should like to dwell on the administrative procedure for which the prison director is responsible, because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement.",
"128. It emerged from most of my discussions with prisoners, lawyers, representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director. There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it, particularly by ensuring that they are given a hearing and the assistance of a lawyer.",
"129. In principle, there is general legislation which should govern this situation. This is Article 24 of the Law of 12 April 2000 on the rights of citizens in their dealings with the public administration. Under this provision, representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice, specifying the reasons for the procedure. The person in question must have the opportunity to submit written observations or, if he/she so wishes, oral observations and has the right to be assisted by a lawyer or a representative (approved or not). He/she may also have access to his/her file.",
"130. Clearly, the decision to place a prisoner in solitary confinement would normally be covered by this. However, we were told that this legislation has remained inoperative where solitary confinement is concerned. At present, therefore, the prison director retains sole discretion where solitary confinement is concerned.",
"131. According to what we heard in the course of our discussions, at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement. They usually only have an hour in which to prepare their observations before being given a hearing, without any legal assistance, by the prison director. I believe that, as things stand, this procedure must be described as being contrary to the recommendations of the Committee for the Prevention of Torture (CPT). Furthermore, the purely administrative and non-adversarial nature of this procedure greatly increase the risk of abuses of prisoners ’ rights. I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with European standards.",
"132. Furthermore, it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period, despite its frequently harmful effects on the mental state of the persons subjected to it. The initial period of solitary confinement ordered by the prison director may not exceed three months. It may be extended beyond that period only after a report to the Sentence Enforcement Board and following a decision by the regional director of prisons. In exceptional cases, solitary confinement may be extended beyond one year following an initial decision by the Minister for Justice. In such cases, the prison director compiles a file including, among other things, the opinion of the prison doctor and of the Sentence Enforcement Board. The minister is responsible for subsequent extensions, for three months at a time, in accordance with the same procedure.",
"133. As may be seen, this procedure is entirely administrative. At present, there is no judicial involvement whatsoever. Yet it is a particularly serious measure, because, although it is not recognised as punishment, the solitary confinement regime imposes significant material restrictions on prisoners ’ rights, not to mention its psychological impact. During the visit, I had the opportunity to talk with persons placed in solitary confinement. Some complained about the harshness of their living conditions. According to them, being unable to communicate with anyone for long periods, sometimes well in excess of a year, is hard to bear. Prisoners placed in solitary confinement have no effective administrative remedy at their disposal, and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment. In the course of the visit I met people who had been in total solitary confinement for several years.",
"134. It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners. In view of the fact that one of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners, it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment, which should clearly be the case for those in solitary confinement. For example, to allow them to use the library or a sports hall, care must be taken to ensure that no one else enters these premises at the same time. As we know, owing to prison overcrowding, it is already quite difficult to ensure access for ordinary prisoners to these services. Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled. The same applies to the possibility of engaging in a gainful occupation. In theory, prisoners in solitary confinement are entitled to that, but in practice they may only do so inside their own cell, which is highly problematical in view of the scarcity of work opportunities in general.",
"135. Lastly, the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block. We visited one such area at Fleury-Mérogis short-stay prison. It is located on the roof of one of the prison buildings, closed in by concrete walls on all sides and covered by wire netting. It is so small that it is more a room in the open air than anything else.",
"136. I should like to stress that we are talking here about people who are not subject to a disciplinary measure. Furthermore, the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal. I therefore call on the French authorities to take rapid action to bring solitary confinement into line with European standards, in particular those upheld by the CPT. I think there is a need for legislative provisions or regulations to govern the solitary- confinement procedure. The adversarial system already introduced for disciplinary punishments should apply to the solitary- confinement procedure. Lastly, I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure, for example the judge responsible for sentence enforcement.",
"137. Furthermore, without waiting for legislative reform, the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities, particularly as regards work, culture and sports. Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole, and not for prisoners being held in disciplinary cells. Excluding prisoners from these activities amounts to a disguised punishment. Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited.",
"... ”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"80. 1. Code of Criminal Procedure",
"Article D. 270",
"“ Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner ’ s presence.",
"At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty. ”",
"Article D. 272",
"“ Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor. ”",
"Article D. 283-1",
"[ The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998. ]",
"“ Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure.",
"Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner ’ s confinement or objection to a request for his or her confinement.",
"The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences.",
"The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner ’ s health, he or she shall give an opinion on whether solitary confinement should cease.",
"Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides.",
"Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor.",
"The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections. ”",
"Article D. 283-2",
"[ Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998 ]",
"“ Solitary confinement shall not constitute a disciplinary measure.",
"Prisoners in solitary confinement shall be subject to the ordinary prison regime. ”",
"81. 2. Circulars",
"Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure",
"“ 4. Solitary confinement as a precautionary or security measure",
"Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner ’ s request or on the governor ’ s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons.",
"4.1. The need to state reasons",
"Since the Conseil d ’ Etat ’ s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘ giving cause for complaint ’.",
"Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘ internal administrative measures ’ that are not amenable to review.",
"The courts consider on the basis of Article D. 283-2 that ‘ solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held ’ ( Conseil d ’ Etat, 28 February 1996, Fauqueux, and Conseil d ’ Etat, 22 September 1997, Trébutien ).",
"4.2. Nature of the reasons",
"It is not sufficient simply to repeat the succinct ‘ as a precautionary or security measure ’ formula used in Article D. 283-1.",
"... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm.",
"The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement.",
"4.3. Invalid reasons",
"An order for solitary confinement cannot be made solely for the following reasons.",
"4.3.1. Nature of the offence",
"The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement.",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"86. The applicant complained, firstly, that his prolonged solitary confinement from 15 August 1994 to 17 October 2002 and from 18 March 2004 to 6 January 2006 constituted inhuman and degrading treatment and had therefore violated Article 3 of the Convention.",
"Article 3 provides:",
"“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”",
"A. The Chamber judgment",
"87. The Chamber held that there had been no violation of Article 3 of the Convention. It found that the applicant had not been kept in complete sensory isolation or total social isolation. Having regard in particular to the applicant ’ s character and the exceptional danger he posed, it further found that the conditions in which he was being held and the length of time he had spent in solitary confinement had not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"B. The parties ’ submissions",
"1. The applicant",
"88. The applicant contested the conclusion that had been reached by the Chamber.",
"He submitted that the Chamber had been wrong to accept, without any prima facie evidence, the Government ’ s claim that there was a danger he would engage in proselytism or plan an escape. In his submission, it could not be maintained that solitary confinement had made such conduct impossible, just as it was impossible to draw any conclusion from the period in which he had ceased to be in solitary confinement.",
"89. He also considered that the Chamber should not have referred to his “ character ” or “ exceptional dangerousness ” in the absence of any concrete evidence from the Government to back up the “ abstract ” profile that had systematically been relied on in all the decisions to keep him in solitary confinement. Likewise, the reference to a possible ascendancy over the other prisoners showed that the reasons that had been given for keeping him in solitary confinement were fictitious.",
"90. In his submission, the systematic renewal of his solitary confinement had resulted in its continuation for a period that did not conform with the CPT ’ s recommendations or the undertakings that had been given by the Government after the CPT ’ s visit in 1996.",
"Furthermore, he had never been convicted of a terrorist offence and was entitled to the presumption of innocence on that point, in accordance with Article 6 § 2 of the Convention.",
"91. As regards the conditions in which he was detained, he said that the strict ban on his communicating with other people, including prison warders, had resulted in his total social isolation. He had been refused permission to have French lessons, even on an individual basis, and none of his family had been officially informed of his imprisonment or his whereabouts. He alleged that the investigating file showed that it was the French authorities ’ intention to arrest any member of his family who travelled to France.",
"As to the visits from the clergyman, the applicant said that initially they had been allowed only occasionally; subsequently, however, he had been permitted visits approximately once a month. He pointed out that visits by diplomatic representatives were a legal entitlement and that the Venezuelan authorities had not been informed of his situation until a late stage.",
"With regard to sanitary conditions, the applicant said that he took showers at the same intervals as other prisoners and had not requested a special regime. He had been forced to stop going to the cardio -training room after being provoked and assaulted, although he did not identify those responsible.",
"92. The visits he had received from his lawyers were not social visits, but an indefeasible means of exercising his defence rights. He said that the Chamber had been wrong to accept that the visits had reduced his isolation and added that there had been numerous instances of delay in his lawyers ’ being granted permission to visit him. Arguing that the Government ’ s production of the list of visits of just one of his lawyers was misrepresentative, he furnished a list of all 58 lawyers and of the more than 860 visits they had made between 16 August 1994 and 29 April 2002.",
"The visits from his lawyers had only been made with any frequency during his stay in La Santé Prison in Paris. On his transfer to the other prisons, such visits had become far less frequent because of the distance involved. Since October 2002, he had been receiving visits on a weekly basis.",
"93. The applicant further pointed out that, although the circular of 8 December 1998 to which the Chamber had referred in its judgment provided that a doctor ’ s opinion should be obtained prior to each extension, the Government had not produced evidence to show that the necessary medical examination had taken place.",
"94. He added that, in saying that the conditions in which he was detained were dictated by the layout of La Santé, the Government had sought to suggest that it would have been more appropriate to hold him in a maximum security prison, although these were all at some distance from Paris.",
"95. The applicant added that his excellent mental and physical health was due to his strength of character and the efforts he had made to keep his mind active and to retain mental balance. The adverse physical effects had, however, taken the form of broken sleep cycles as a result of his being noisily awoken by warders at hourly intervals from midnight to 6 a.m. throughout his stay in solitary confinement. He had also suffered from recurring respiratory and skin allergies as a result of the prison conditions.",
"96. His lawyer pointed out that it had been discovered in January 2004 that he was suffering from diabetes, a condition he had not previously had. She also said that he had lost 20 kilograms between March and December 2004.",
"2. The Government",
"97. The Government invited the Grand Chamber to endorse the Chamber ’ s finding that keeping the applicant in solitary confinement did not contravene Article 3.",
"98. Firstly, the applicant ’ s prison regime was wholly exceptional and dictated by the fact that, as a unique figure known internationally for acts of terrorism, there was a danger he would cause serious disruption within the prison population by engaging in proselytism, or even planning an escape.",
"99. In any event, the regime for prisoners in solitary confinement at La Santé Prison was strictly aligned to the rules applicable to ordinary prisoners, the only restrictions being those entailed by the fact that prisoners in the segregation unit had no possibility of meeting one another or of being in the same room together.",
"100. Referring to the facts as established (see paragraphs 11 and 12 above), the Government submitted that the physical conditions of the applicant ’ s detention complied with Article 3 of the Convention.",
"101. With regard to visits, the Government explained that the applicant had been a remand prisoner until 30 January 2000 and that by virtue of Article D. 64 of the Code of Criminal Procedure visits could only be authorised by the judge in charge of the investigation. Once the applicant ’ s conviction became final on 30 January 2000 the power to authorise visits had been transferred to the prison governor.",
"102. The applicant ’ s family, who did not reside in France, had never made contact.",
"Furthermore, the applicant was allowed to see a priest – subject to one being available – whenever he wished, and received regular visits from consular authorities, in particular the Venezuelan Ambassador ’ s representative.",
"103. The Government added that the applicant had had very frequent meetings with his lawyer, who had become his fiancée and later his wife under Islamic law, as she had visited him more than 6 4 0 times in four years and ten months (see paragraph 14 above). They added that visits from lawyers took place in special conference rooms without any barrier between the prisoner and his or her lawyer.",
"Lastly, although the applicant had been refused access to a communal class to learn French, he had been offered individual lessons, which he had declined.",
"104. The Government pointed out that by virtue of the Law of 18 January 1994 responsibility for the organisation and provision of health care for prisoners had been transferred to the public health service and social welfare protection had been made available to all prisoners.",
"105. In addition to any consultations requested by the prisoner or prison staff, medical care included mandatory check-ups (for new arrivals in a prison or for prisoners in the disciplinary unit). Prisoners in solitary confinement were systematically seen by a doctor twice a week.",
"Relations between prisoners and doctors were covered by medical confidentiality. Accordingly, the medical information the Government had supplied was non-confidential information which the medical team responsible for the applicant ’ s health had communicated to the French authorities.",
"106. From the strictly somatic standpoint, the applicant had attended the Outpatient Consultation and Treatment Unit ( “the OCTU ” ) for specialist dental and ophthalmologic care. He had never complained of impaired eyesight as a result of his solitary confinement.",
"From the psychiatric standpoint, the medical team had at no stage during the eight years the applicant had been held in solitary confinement mentioned any disorder, while the applicant had said that he was perfectly sane.",
"107. It was clear from the medical certificates that were issued regularly on each renewal of the solitary confinement that the doctors had at no stage found any contraindication to the measure.",
"108. The vast majority of the certificates drawn up between August 1994 and July 2000 had expressly stated that the applicant ’ s health was compatible with his continued confinement. In many instances, the certificates had been signed by different doctors who would necessarily have examined the applicant with a fresh pair of eyes. Lastly, the certificate of 13 July 2000 had even added that the applicant “ is in quite astounding physical and mental condition after six years in solitary confinement ”.",
"109. With regard to the period from July 2000 to September 2002, the Government did not deny that some of the certificates had referred to the problem of the possible physical and mental consequences of prolonged solitary confinement. However, the certificates did not state that the applicant had suffered any definite, actual harm as a result of his solitary confinement. The certificate of 20 September 2001 said that the applicant ’ s physical and mental condition was entirely reasonable after seven years in solitary confinement and in a later certificate dated 29 July 2002 the same practitioner stated that the applicant was in excellent somatic health. He also said that the applicant had refused any psychological counselling from the Regional Medical and Psychological Service (“the RMPS”), which in the Government ’ s submission showed that he had not felt the need for any counselling.",
"110. The Government further denied that the applicant had been woken at hourly intervals throughout the night, as he alleged. They referred to Articles D. 270 and D. 272 of the Code of Criminal Procedure, which governed prison rounds at night, and said that the applicant had been subjected to the same surveillance and checks as other prisoners in solitary confinement, as no special instructions had been issued in his case. In particular, when performing their night rounds, warders were not authorised to open cells unless there was good reason or imminent danger. The applicant could not, therefore, assert that he had been noisily woken at hourly intervals throughout the night on a regular basis. At most, it was possible that warders had shone a light into his cell briefly to check that he was there and what he was doing. Further, the applicant had never complained to a domestic authority about night-time surveillance, whereas he had complained on a number of occasions during his spell in solitary confinement about the conditions in which he was being held.",
"111. The Government concluded from all these factors that the applicant ’ s health did not appear to have been affected by solitary confinement and that the conditions in which the applicant was being held had not attained the minimum level of severity required to fall foul of Article 3 of the Convention, despite the CPT ’ s finding that the general conditions in which prisoners in solitary confinement were held in France were not entirely satisfactory.",
"C. The Court ’ s assessment",
"112. The Court must first determine the period of detention to be taken into consideration when examining the complaint under Article 3. It points out that the “ case ” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “ case ” being limited only by the Chamber ’ s decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II; and Öcalan v. Turkey [ GC], no. 46221/99, ECHR 2005 ‑ IV ). More specifically, within the compass thus delimited by the decision on the admissibility of the decision, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996 ‑ V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996 ‑ VI).",
"113. In the present case, the applicant ’ s solitary confinement was interrupted between 17 October 2002 and 18 March 2004 when he was detained in Saint-Maur Prison, near Châteauroux, under normal prison conditions. He was then held in solitary confinement successively in Fresnes, Fleury-Mérogis and La Santé. Since 6 January 2006 he has been in Clairvaux Prison, where normal conditions have been restored.",
"The parties have not provided any information on the conditions in which the applicant was kept in solitary confinement in the various prisons to which he was transferred during the period from March 2004 to January 2006. Nor has the applicant ever challenged his solitary confinement on the merits since that became possible on 30 July 2003 (see paragraph 82 above). In particular, he did not make use of any remedy on the merits during this latter period ( March 2004 to January 2006 ) although he could have done so from the moment he returned to solitary confinement. The Court will return to this point when it examines the complaint under Article 13.",
"114. In these specific circumstances, the Grand Chamber, like the Chamber, considers it appropriate to restrict its examination to the conditions in which the applicant was held from 15 August 1994 to 17 October 2002 ( contrast Öcalan, cited above, § 190).",
"1. General principles",
"115. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.",
"116. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999- V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal, cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001 ).",
"117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “ beyond reasonable doubt ”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.",
"118. The Court has considered treatment to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “ degrading ” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI). In considering whether a punishment or treatment is “ degrading ” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III).",
"119. In order for a punishment or treatment associated with it to be “ inhuman ” or “ degrading ”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004 ‑ VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, § § 92- 94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 200 2 - VI ). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued.",
"Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).",
"120. The applicant ’ s allegations in the present case specifically concern the length of time spent in solitary confinement.",
"The European Commission of Human Rights expressed the following opinion on this particular aspect of detention in Ensslin, Baader and Raspe v. Germany (nos. 7572/76, 758 6/76 and 7587/76, Commission decision of 8 July 1978, Decisions and Reports ( DR ) 14, p. 64) :",
"“ The Commission has already been confronted with a number of such cases of isolation (cf. Decisions on Applications No. 1392/62 v. FRG, Coll. 17, p. 1; No. 5006/71 v. UK, Coll. 39, p. 91; No. 2749/66 v. UK, Yearbook X, p. 382; No. 6038/73 v. FRG, Coll. 44, p. 155; No. 4448/70 “ Second Greek Case ” Coll. 34, p. 70). It has stated that prolonged solitary confinement is undesirable, especially where the person is detained on remand (cf. Decision on Application No. 6038/73 v. FRG, Coll. 44, p. 151). However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality; thus it constitutes a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition on torture and inhuman treatment contained in Article 3 being absolute in character (cf. the Report of the Commission on Application No. 5310/71, Ireland v. the United Kingdom; Opinion, p. 379). ”",
"121. In Kröcher and Möller v. Switzerland (no. 8463/78, Commission ’ s report of 16 December 1982, DR 34, p. 24), the Commission also considered the length of the solitary confinement, which lasted for approximately ten and a half months. It observed:",
"“ With regard to the duration of their detention on remand and detention under security conditions, the Commission finds that each of these periods was fairly brief considering the circumstances of the case. As to the special isolation measures to which the applicants were subjected, neither the duration nor the severity of these exceeded the legitimate requirements of security. In any case, the applicants ’ exclusion from the prison community was not prolonged excessively. ”",
"122. The Commission reiterated in a later case that prolonged solitary confinement was undesirable ( see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported ).",
"123. Similarly, the Court has for its part established the circumstances in which the solitary confinement of even a dangerous prisoner will constitute inhuman or degrading treatment (or even torture in certain instances).",
"It has thus observed:",
"“ ... complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. ” ( see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; Öcalan, cited above, § 191; and Ilaşcu and Others, cited above, § 432 )",
"124. Similarly, in Ilaşcu and Others, the Court stated:",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ..., in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ... and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 43 8; contrast Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 )",
"2. Application of the principles to the present case",
"125. As to the present case, the Court accepts that the applicant ’ s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world ’ s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures.",
"(a) Conditions in which the applicant was held",
"(i) Physical conditions",
"126. The physical conditions in which the applicant was held must be taken into account when examining the nature and duration of his solitary confinement.",
"127. The Court notes that the cell which the applicant occupied when in solitary confinement at La Santé Prison was large enough to accommodate a prisoner, was furnished with a bed, table and chair, and had sanitary facilities and a window giving natural light.",
"128. In addition, the applicant had books, newspapers, a reading light and a television set at his disposal. He had access to the exercise yard two hours a day and to a cardio -training room one hour a day.",
"129. These conditions of detention contrast with those that were examined by the Court in the case of Mathew, in which the Court found a violation of Article 3. The applicant in that case had been detained in conditions similar to solitary confinement for more than two years in a cell on the last ( second ) floor of the prison. For seven or eight months, a large hole in the ceiling allowed rain to enter. In addition, the fact that the cell was directly under the roof exposed the applicant to the tropical heat. Lastly, since he had difficulty going up or down stairs, he was frequently prevented from going to the exercise yard or even outside ( see Mathew v. the Netherlands, no. 24919/03, ECHR 2005 -IX ).",
"130. In the present case, the Court finds that the physical conditions in which the applicant was detained were proper and complied with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. These conditions were also considered to be “ globally acceptable ” by the CPT (see its report on the visit from 14 to 26 May 2000, cited at paragraph 83 above). Accordingly, no violation of Article 3 can be found on this account.",
"( ii ) Nature of the applicant ’ s solitary confinement",
"131. In the present case, the applicant received twice- weekly visits from a doctor, a once - monthly visit from a priest and very frequent visits from one or more of his 58 lawyers, including more than 640 visits over a period of four years and ten months from his representative in the proceedings before the Court, now his wife under Islamic law, and more than 860 visits in seven years and eight months from his other lawyers (see paragraphs 14 and 92 above).",
"Furthermore, the applicant ’ s family, who are not subject to any restrictions on visiting rights, have never requested permission to visit and the only two requests which have been refused came from journalists. Nor has the applicant provided any evidence in support of his allegations that members of his family risk arrest if they set foot in France. As to the allegation that the family has never been officially informed of the applicant ’ s imprisonment or place of detention, the Court notes that it is not certain that the French authorities had the names and addresses of his family members and it considers that the consular authorities, the applicant himself and his lawyers were in any event perfectly capable of informing them themselves.",
"132. The Court notes that the conditions of solitary confinement in which the applicant was held were not as harsh as those it has had occasion to examine in connection with other applications, such as in the cases of Messina (no. 2) and Argenti, in which the applicants, who had been in solitary confinement for four and a half years and twelve years respectively, were subject to a ban on communicating with third parties, a restriction on receiving visits – behind a glass screen – from members of their families (with a maximum of a one-hour visit per month), and bans on receiving or sending money over a certain amount, on receiving parcels from outside containing anything other than linen, on buying groceries that required cooking and on spending more than two hours outdoors (see Messina (no. 2), cited above, and Argenti v. Italy, no. 56317/00, § 7, 10 November 2005).",
"133. Likewise, in the case of Öcalan, in which the isolation was stricter, the Court noted that the applicant, who had been the sole inmate of an island prison for six years when the judgment was adopted, had no access to a television and that his lawyers, who were only allowed to visit him once a week, had often been prevented from doing so by adverse weather conditions that meant that the boat was unable to make the crossing. It found that in the circumstances of the case the conditions of detention were not incompatible with Article 3 of the Convention ( see Öcalan, cited above, in particular §§ 190- 96 ).",
"134. The Court considers that the applicant ’ s conditions are closer to those it examined in Rohde in which it held that there had been no violation of Article 3 of the Convention. The applicant in that case was held in solitary confinement for eleven and a half months. He had access to television and newspapers, was excluded from activities with other prisoners, had language lessons, was able to meet the prison chaplain and received a visit once a week from his lawyer and some members of his family ( Rohde, cited above, § 97).",
"135. The Court accordingly concludes that the applicant cannot be considered to have been in complete sensory isolation or total social isolation. His isolation was partial and relative.",
"(b) Duration of the solitary confinement",
"136. It is true that the applicant ’ s situation was far removed from that of the applicants in the aforementioned case of Ilaşcu and Others and that he was not subjected to complete sensory isolation or to total social isolation, but to relative social isolation (see also on this point, Messina (no. 2), cited above).",
"However, the Court cannot but note with concern that in the present case he was held in solitary confinement from 15 August 1994 to 17 October 2002, a period of eight years and two months.",
"In view of the length of that period, a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement.",
"137. Reasons for keeping a prisoner in solitary confinement are required by the circular of 8 December 1998 which refers to “ genuine grounds ” and “ objective concordant evidence of a risk of the prisoner causing ... serious harm ”. In the instant case, the reasons given for renewing the measure every three months were his dangerousness, the need to preserve order and security in the prison and the risk of his escaping from a prison in which general security measures were less extensive than in a high- security prison.",
"The circular also provides that solitary confinement should only continue for more than a year in exceptional circumstances. However, regrettably there is no upper limit on the duration of solitary confinement.",
"138. It is true that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of the prison community together with tighter controls (see Kröcher and Möller, cited above ).",
"139. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by.",
"Furthermore, such measures, which are a form of “ imprisonment within the prison ”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement.",
"140. The Court notes that the applicant has received very regular visits from doctors, in accordance with the instructions set out in the circular of 8 December 1998.",
"141. While it is true that, after 13 July 2000 the doctors no longer sanctioned his solitary confinement, none of the medical certificates issued on the renewals of the applicant ’ s solitary confinement up to October 2002 expressly stated that his physical or mental health had been affected, or expressly requested a psychiatric report.",
"142. In addition, on 29 July 2002 the doctor in charge of the OCTU at La Santé Prison noted in his report on the treatment the applicant had been receiving that the applicant had refused “ any psychological help from the RMPS”.",
"143. Likewise, in his findings following an examination of the applicant on 17 October 2002 on his arrival at Saint-Maur Prison, the Indre Health Inspector said that, from the psychiatric standpoint, the applicant had been seen by a psychiatrist from the RMPS as part of the standard induction procedure. No follow-up treatment had been prescribed at the time and the applicant had not asked to see a psychiatrist since. The applicant had been examined on 26 August 2003, but no follow-up to that appointment had been recommended.",
"144. The Court notes in this connection that the applicant refused the psychological counselling he was offered (see paragraph 70 above) and has not alleged that the treatment he received for his diabetes was inappropriate. Nor has he shown that his prolonged solitary confinement has led to any deterioration in his health, whether physical or mental.",
"Furthermore, the applicant himself stated in his observations in reply that he was in excellent mental and physical health (see paragraph 95 above).",
"145. The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003. The Court will return to this point when it examines the complaint made under Article 13. It also refers in this connection to the conclusions of the CPT and of the Human Rights Commissioner of the Council of Europe (see paragraphs 83 and 85 above).",
"146. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate.",
"147. The Court notes with interest on this point that the authorities twice transferred the applicant to prisons in which he was held in normal conditions. It emerges from what the Government have said that it was as a result of an interview which the applicant gave over the telephone to a television programme in which he refused among other things to express any remorse to the victims of his crimes (he put the number of dead at between 1,500 and 2,000), that he was returned to solitary confinement in a different prison. The authorities do not, therefore, appear to have sought to humiliate or debase him by systematically prolonging his solitary confinement, but to have been looking for a solution adapted to his character and the danger he posed.",
"148. The Court notes that when the applicant was being held in normal conditions in Saint-Maur Prison, his lawyer sent a letter to the Registry of the Court in which she complained of “ dangerous company, particularly in the form of drug addicts, alcoholics, and sexual offenders who are unable to control their behaviour ” and alleged a violation of human rights.",
"Furthermore, the applicant complained during that period of being too far away from Paris, which, he said, made visits from his lawyers more difficult, less frequent and more costly and inevitably caused another form of isolation.",
"149. Lastly, the Government ’ s concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape also have to be taken into account. These concerns cannot be said to have been without basis or unreasonable (see on this point, Messina (no. 2), in which the Court noted, before declaring the complaints about the conditions of detention inadmissible, “ the applicant was placed under the special regime because of the very serious offences of which he [was] convicted ”, a statement that is equally applicable to the applicant in the present case; see also Gallico v. Italy, no. 53723/00, 28 June 2005 ).",
"150. The Court shares the CPT ’ s concerns about the possible long-term effects of the applicant ’ s isolation. It nevertheless considers that, having regard to the physical conditions of the applicant ’ s detention, the fact that his isolation is “ relative ”, the authorities ’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since 5 January 2006 he has been held under the ordinary prison regime (see paragraph 76 above), a situation which, in the Court ’ s view, should not in principle be changed in the future. Overall, having regard to all the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"151. The applicant complained that he had not had a remedy available to challenge his continued solitary confinement. He relied on Article 13, which provides:",
"“ Everyone whose rights and freedoms as set forth in th[e] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ”",
"A. The Chamber judgment",
"152. The Chamber found a violation of Article 13 of the Convention. It noted in particular that prior to the Conseil d ’ Etat ’ s judgment of 30 July 2003, prisoners in solitary confinement did not have any remedy available to challenge the original measure or any renewal of it.",
"B. The parties ’ submissions",
"153. The applicant invited the Grand Chamber to endorse the Chamber ’ s finding of a violation. He also alleged that the authorities had not followed the procedure laid down by Article D. 283-1 of the Code of Criminal Procedure for prolonging solitary confinement. He added that on a number of occasions he had been forced to complain because he not been given the requisite medical check-up before the decision to prolong his solitary confinement was taken. Lastly, he said that the proposals and decisions to prolong the measure were almost systematically based on the nature of the offences for which he was in prison and that the authorities had been unable to provide the genuine grounds or evidence of objective and concordant incidents required by the applicable provisions.",
"154. The Government noted that in a judgment of 30 July 2003 the Conseil d ’ Etat had ruled that a decision to place a prisoner in solitary confinement could be the subject of judicial review owing to the effect such decisions had on the conditions of detention. That judgment was part of a continuing process which had seen the scope of internal administrative measures increasingly circumscribed.",
"155. They added that the applicant had to date challenged only one order renewing his solitary confinement, that being the decision of 17 February 2006. Even then he had only contested the formal validity of the measure, not the underlying reasons. Consequently, he had never sought to challenge the measure in the administrative courts on the merits by arguing that it violated Article 3 of the Convention.",
"The Paris Administrative Court, which gave its judgment on 15 December 2005, had set the decision aside on the ground that the regional director of the Prison Service had omitted to obtain the opinion of the Sentence Enforcement Board, as he was required to do by Article D. 283 ‑ 1 of the Code of Criminal Procedure, before lodging his report with the Minister of Justice.",
"156. The Government said in conclusion that it left it to the Court ’ s discretion to decide whether or not an effective remedy had existed prior to the Conseil d ’ Etat ’ s decision of 30 July 2003.",
"C. The Court ’ s assessment",
"157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “ arguable complaint ” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157).",
"158. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint. However, the remedy must be “ effective ” in practice as well as in law (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII).",
"159. The “ effectiveness ” of a “ remedy ” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “ authority ” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no. 61, and Chahal, cited above, § 145).",
"160. The Court must now determine whether it was possible under French law for the applicant to complain about the decisions to prolong his solitary confinement and about any procedural irregularities, and whether the remedies were “ effective ” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred.",
"161. The Government accepted that, under the settled case-law of the Conseil d ’ Etat prior to 30 July 2003, decisions to place a prisoner in solitary confinement were equated to internal administrative measures in respect of which no appeal lay to the administrative courts.",
"162. The applicant lodged an appeal with the Administrative Court on 14 September 1996. However, this was dismissed in a judgment of 25 November 1998 on the ground that it was an internal measure that could not be referred to the administrative courts.",
"163. The Court notes on this point that the decision was consistent with the settled case-law of the Conseil d ’ Etat at the material time which the Government have themselves cited.",
"164. It was not until 30 July 2003 that the Conseil d ’ Etat changed its jurisprudence and ruled that an application for judicial review could be made in respect of decisions concerning solitary confinement and the decision quashed if appropriate.",
"165. The Court notes that the applicant has made only one application to the Administrative Court since the change in the case-law. Although he only challenged the lawfulness of the measure imposed on him on 17 February 2005, it is of the view that, having regard to the serious repercussions which solitary confinement has on the conditions of detention, an effective remedy before a judicial body is essential. The aforementioned change in the case-law, which would warrant being brought to the attention of a wider audience, did not in any event have retrospective effect and could not have any bearing on the applicant ’ s position.",
"166. The Court accordingly considers that in this case there has been a violation of Article 13 of the Convention on account of the lack of a remedy in domestic law that would have allowed the applicant to challenge the decisions to prolong his solitary confinement taken between 15 August 1994 and 17 October 2002.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"167. Article 41 of the Convention provides:",
"“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”",
"A. Damage",
"168. The applicant made no claim for compensation.",
"B. Costs and expenses",
"169. The applicant ’ s lawyer submitted an invoice for the total cost of visiting the applicant between June 1997 and October 2002. This included the hourly rates for the visits, travel expenses and procedural disbursements. The invoice came to a total of 426,852.40 euros (EUR).",
"The second lawyer who represented the applicant at the hearing produced a statement showing the cost of visits made to the applicant between 22 May 1998 and 7 October 2002 in the amount of EUR 87,308, comprising EUR 69,846.40 for the visits themselves and EUR 17,461.60 for travel and the costs of formalities.",
"The first lawyer expressed regret that the Chamber should have refused that request without taking into account lawyers ’ fixed overheads and asked the Court to grant it.",
"170. The account for costs and expenses incurred in presenting the application to the Court came to EUR 41, 860, to which were to be added EUR 8 0 0 for travel and accommodation for the two lawyers for the hearing in Strasbourg.",
"171. The Government submitted that the applicant ’ s claims were unreasonable and referred to their previous submissions.",
"172. They pointed out, firstly, that he had provided no evidence to show that he had actually paid the costs and expenses.",
"173. They added that the amount sought in respect of the visits had been calculated for the period from 1997 to 2002, although the application had not been lodged until 20 July 2000. There was consequently no causal link between the work done on the application and the visits that had been made prior to that date.",
"174. The Government also pointed out that, in view of the considerable number of hours (1,830) that had been claimed for visits without any breakdown, it was impossible to distinguish between visits by Ms Coutant Peyre in her capacity as a lawyer and those she had made personally as the applicant ’ s partner. They concluded that that claim had to be dismissed.",
"175. As to the claim for costs and expenses, the Government submitted that it must necessarily include the costs of visits made in a professional capacity. Noting that this claim was not based on a verifiable calculation either, they said that accordingly it could not be upheld.",
"In conclusion, the Government proposed a payment of EUR 6,000 to the applicant for his costs and expenses in the event of the Court finding a violation in the case.",
"176. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, 25 August 1998, Reports 1998-VI, and Yvon v. France, no. 44962/98, ECHR 2003 ‑ V), provided they have been necessarily incurred, the requisite vouchers have been produced and they are reasonable as to quantum (see, among other authorities, Kress v. France [GC], no. 39594/98, ECHR 2001 ‑ VI).",
"177. The Court notes that no explanation or evidence has been provided in the present case in support of the claim for reimbursement of the costs of the visits. Accordingly, it cannot make any award under this head.",
"178. The Court notes that no details or vouchers whatsoever have been provided in support of the claim for the costs and expenses incurred in presenting the application to it.",
"However, having regard to the complexity of the questions raised by the application and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 10, 0 00 in respect of all his costs incurred in the proceedings before the Court.",
"C. Default interest",
"179. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
263 | Ramirez Sanchez v. France | 4 July 2006 (Grand Chamber) | The applicant, an international terrorist – known as “Carlos the Jackal” – was detained in solitary confinement in France for eight years following his conviction for terrorist-related offences. He was segregated from other prisoners, but had access to TV and newspapers, and was allowed to receive visits from family and lawyers. | The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found that, having regard in particular to the applicant’s character and the danger he posed, the conditions in which he had been held had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment. The Court took note of the fact that, several months before its judgment, France had ended the solitary confinement. At the same time, the Court shared concerns by the European Committee for the Prevention of Torture (CPT) about the possible long-term effects of the applicant’s isolation and underlined that solitary confinement, even in cases entailing only relative isolation, could not be imposed on a prisoner indefinitely. A State had to periodically review a prisoner’s solitary confinement, give reasons for any decision to continue segregation and monitor the prisoner’s physical and mental condition. | Detention conditions and treatment of prisoners | Solitary confinement | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1949 and is currently in Clairvaux Prison.",
"A. The applicant ’ s solitary confinement",
"10. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994. He was placed under judicial investigation in connection with a series of terrorist attacks in France and was given a life sentence on 25 December 1997 for the murder of two police officers and an acquaintance on 27 June 1975.",
"11. He was held in solitary confinement from the moment he was first taken into custody in mid-August 1994 until 17 October 2002, notably in La Santé Prison (Paris).",
"12. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area. The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole permitted activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 metres wide at the base, receding to 1 metre at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. The only visits he received were from his lawyers and, once a month, a priest. The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had gone missing, although it had not been officially confiscated, and he had not received a winter jacket that had been brought to the prison for him in October 1999 until 16 February 2000.",
"13. The Government did not dispute these facts. They said that the cell was lit by natural light, a ceiling light and a reading lamp. None of the members of the applicant ’ s family had ever applied for permission to visit. Only two requests to visit had been turned down, both from journalists.",
"14. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison.",
"His current representative, who is also his wife under Islamic law, visited him more than 640 times between 27 June 1997 and 29 April 2002.",
"15. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods.",
"16. The first was taken when the applicant was first detained ( 15 August 1994 ). It consists of a form on which the following boxes were ticked: “Need to prevent communication with one or more other prisoners” and “Undermining of order and discipline in the prison ”. There were no observations by the applicant. The same day, a doctor issued a medical certificate stating:",
"“ [The applicant ’ s] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days. ”",
"17. A decision dated 3 November 1994 to prolong the applicant ’ s solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director ’ s Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations:",
"“ I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner. ”",
"In a medical certificate issued the same day, a doctor",
"“ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement ”.",
"18. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director ’ s Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor",
"“ certif[ied] that [the applicant ’ s] health [was] compatible with his continued solitary confinement for administrative reasons ”.",
"19. A decision dated 25 April 1995, which was approved by the Regional Director ’ s Office and was applicable from 15 May to 15 August 1995, spoke of the “ need to prevent communication with one or more other prisoners ” and a “ security measure ”. The applicant was transferred that day to Fresnes Prison.",
"20. A proposal to prolong the measure dated 26 July 1995 cited the “ need to prevent communication with one or more other prisoners ”.",
"On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating:",
"“Health currently compatible with continued solitary confinement. ”",
"21. On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995.",
"22. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant ’ s health was satisfactory and compatible with solitary confinement.",
"A further proposal to prolong the measure dated the same day referred to “ the undermining of order or discipline in the prison ”.",
"23. On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995.",
"24. A proposal of 24 January 1996 for a further extension referred to “ the need to prevent communication with one or more other prisoners ”.",
"On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was satisfactory.",
"25. On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996.",
"26. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in the segregation unit.",
"On 7 May 1996 the measure was extended for a period of three months commencing on 15 May 1996. A proposal dated 17 April 1996 mentioned a “ precautionary or security measure required for one or more of the following reasons: need to prevent communication with one or more other prisoners ”.",
"27. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation:",
"“ I do not think it right that I should be asked to sign more than five months late. ”",
"28. On 15 July 1996 the applicant was notified of a measure which referred to the “ need to prevent communication with one or more other prisoners ” and to “ international terrorism ”.",
"29. On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant ’ s health was compatible with his detention in solitary confinement.",
"30. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “ need to prevent communication with one or more other prisoners ”. The applicant made the following observations on the notification slip:",
"“ I note that Mr ..., the director, has already replied to these observations, even before I have made them, it is stated below: 07.11.1996 before the Sentence Enforcement Board in the prison. Consequently, the remarks I am required to make have become superfluous. Even so, my solitary confinement is a form of torture. ”",
"This measure was authorised by the head of the Prison Service at the Ministry of Justice on 14 November 1996, as were those that followed.",
"31. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health to be compatible with solitary confinement.",
"32. A proposal made on 20 January 1997 referred to the “ need to protect [the applicant] from the rest of the prison population ” and the “ need to prevent communication with one or more other prisoners ”. The applicant made the following remarks:",
"“ I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement. ”",
"33. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant.",
"34. The following reasons were given for a proposal for a further extension dated 25 April 1997 :",
"“Precautionary or security measure for one or more of the following reasons:",
"(i) need to protect you from the rest of the prison population;",
"(ii) need to prevent communication with one or more other prisoners. ”",
"The applicant made the following comments :",
"“ I have not had a check-up, been weighed or had my blood pressure taken, etc. ... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up. ”",
"35. A decision of 21 July 1997 referred in addition to “ the undermining of order and discipline in the prison ” and “ potential dangerousness linked to acts of terrorism”. The applicant made the following comments:",
"“ I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me. I request an immediate interview with the governor. ”",
"36. A decision of 13 August 1997 again cited the “ need to prevent communication with one or more other prisoners ”.",
"37. On 14 October 1997 a doctor at Fresnes Prison issued a certificate certifying that the applicant ’ s health was satisfactory.",
"Proposals of 21 October 1997 and 23 January 1998 were in the same terms as the decision of 13 August 1997. On signing the proposal of 21 October, the applicant stated:",
"“ I sign under protest against an unjust repressive measure (decision) against a political prisoner held hostage by the French State. ”",
"38. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant ’ s health was satisfactory.",
"39. It was followed by a further certificate on 22 April 1998 stating that the applicant was fit enough to remain in solitary confinement and a certificate of 23 July 1998 stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement.",
"40. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “ precautionary and security measures in view of the prisoner ’ s character and record ”.",
"The applicant commented as follows on the proposal of 22 April 1998 :",
"“ I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy. ”",
"On the proposal of 19 October 1998, he noted:",
"“ The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me. ”",
"41. The measure dated 19 October 1998 referred to “ precautionary and security measures in view of the prisoner ’ s character and record ”.",
"42. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated:",
"“ The applicant ’ s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment. ”",
"Proposals made on 14 January and 8 April 1999 stated:",
"“ The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases. ”",
"43. The Ministry of Justice stated in decisions of 20 January and 20 April 1999 :",
"“ The character of this prisoner, who is an HSP [ high-security prisoner ] and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds. ”",
"44. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read:",
"“ The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year ’ s confinement. Last certificate issued on ( illegible ). I do not, therefore, need to append a certificate regarding prolongation to this note. ”",
"45. On 23 April 1999 another prison doctor certified that the applicant ’ s health was compatible with his detention or continued detention in solitary confinement.",
"46. A further certificate dated 20 July 1999 confirmed that the applicant ’ s health was compatible with his continued detention in solitary confinement.",
"47. A decision of 22 July 1999 cited the following reasons:",
"“ You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as an HSP, and the nature of your convictions and of the cases currently pending. ”",
"48. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows:",
"“ It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal. ”",
"The applicant made the following observations:",
"“ I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and with Law itself. ALLOUHA AKBAR. ”",
"49. On 1 February 2000 the authorities relied on",
"“ order and security grounds, in view of your character, your classification as an HSP and the offences for which you have been imprisoned ”.",
"50. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the end of the sentence read “ given your access to outside help ”.",
"51. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read:",
"“ I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement.",
"However, it is not proper for a patient ’ s doctor to be required to issue a certificate that ought to be a matter for expert opinion. It is very difficult for a doctor to sanction solitary confinement on administrative, rather than medical, grounds. ”",
"52. On 3 October 2000 another doctor issued a certificate in the following terms:",
"“ I, the undersigned, ... certify that I have today examined [the applicant].",
"No clinical examination was carried out. However, in view of his current mental condition, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ”",
"53. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the governors of Fleury-Mérogis and La Santé Prisons, dated 30 December 2000 and 22 January 2001 respectively, to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer.",
"54. The following reasons were stated in the decision of 22 January 2001 :",
"“ Regard has been had to your personality, your classification as an HSP, the length of your sentence ( LI [life imprisonment] ), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ”",
"55. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added:",
"“ However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement. ”",
"On 28 March 2001 the applicant commented as follows:",
"“ I have once again filled in this form, having already done so on 19 March ... I denounce ‘ the white torture ’ of perpetual solitary confinement which, following the ‘ serious provocation of 28 December 2000 ’, has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30 o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of ‘ lese-humanity ’. ”",
"56. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate:",
"“ I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement. ”",
"57. On 22 April 2001 it was decided to prolong the solitary confinement",
"“ in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help ”.",
"The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms.",
"58. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit (“the OCTU”) wrote to the governor of La Santé Prison in these terms:",
"“ I have met Mr Ilich Ramirez Sanchez ... as I was asked for an opinion on whether there is any contraindication to this patient ’ s remaining in solitary confinement.",
"Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm.",
"It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision.",
"... ”",
"59. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in similar terms.",
"60. The following reasons were stated in a decision that was applicable from 22 July 2001 :",
"“ ... in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help. ”",
"61. On 20 September 2001 the doctor in charge of the OCTU issued a medical certificate after examining the applicant “ for the purposes of the medical opinion required for continued solitary confinement ”. He stated that the applicant presented",
"“ a physical and mental condition that was entirely reasonable after seven years in solitary confinement ”,",
"adding, however, that",
"this opinion does not constitute an expert opinion, which I am not qualified to give ”.",
"62. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001 :",
"“ It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. ”",
"In his observations, the applicant noted in particular:",
"“ More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken. ”",
"63. On 20 December 2001 the measure was renewed for a further three months on the following grounds:",
"“ Regard has been had to your character, your classification as an HSP, the length of your sentence ( LI), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds. ”",
"64. Decisions of 10 January, 25 March and 8 July 2002 read as follows:",
"“ It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high- security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement. ”",
"65. On 13 June 2002 an assistant doctor from the OCTU at La Santé Prison issued a medical certificate in the following terms:",
"“ I, the undersigned, Doctor ..., an assistant doctor from the OCTU at La Santé Prison in Paris, certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for him to remain in solitary confinement.",
"From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner ’ s physical and mental health. ”",
"66. On 29 July 2002 the doctor in charge of the OCTU at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving:",
"“ This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code.",
"He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health.",
"In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit.",
"He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses.",
"He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ...",
"Biological tests are performed regularly. ...",
"The treatment Mr Ramirez Sanchez has been receiving can be equated to comfort treatment: ...",
"It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service].",
"... ”",
"67. In September 2002 a further decision to prolong the solitary confinement was taken “ in order to preserve security and order, which are under serious threat owing to the applicant ’ s implication in terrorist networks, his dangerousness and the risk of his escaping ”.",
"68. On 17 October 2002 the applicant was transferred to Saint-Maur Prison ( département of Indre), where his solitary confinement ended. On 13 May 2003 he lodged a fresh application with the Court, in which he complained of the new conditions in which he was being held and, in particular, of the distance from Paris.",
"69. In June 2003 a book that had been written by the applicant with the help of a journalist was published under the title L ’ islam révolutionnaire ( “ Revolutionary Islam ” ).",
"70. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health:",
"“ Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002.",
"He has at no stage been placed in solitary confinement in Saint-Maur Prison.",
"As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request.",
"As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The RMPS have not recommended any follow- up to that appointment. ”",
"71. On 18 March 2004 the applicant was transferred to Fresnes Prison in the Paris area where he was again placed in solitary confinement. This followed a television programme in which, in the course of a telephone interview with a journalist, the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “ no innocent victims ”.",
"72. On 6 August 2004 a doctor at Fresnes Prison issued a medical certificate in the following terms:",
"“ I, the undersigned, ... certify that the prolonged period of solitary confinement to which Mr Ilich Ramirez Sanchez, who was born on 12 October 1949, is subject is detrimental to his mental health.",
"Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests. ”",
"73. On 20 December 2005 another doctor issued a medical certificate which read:",
"“ I, the undersigned, ... regularly see Mr Ilich Ramirez Sanchez, a prisoner in the segregation unit.",
"His continued solitary confinement is damaging his health; it has now lasted for several years and it would appear desirable from the medical standpoint for it to cease. ”",
"74. On 24 January 2005 the applicant was transferred to Fleury-Mérogis Prison and on 24 November 2005 to La Santé Prison. In both institutions he was kept in solitary confinement with the measure being periodically renewed, including on 17 February 2005 (see below).",
"75. On 30 June and 5 October 2005 the senior doctor at the OCTU at Fleury-Mérogis Prison issued two medical certificates in exactly the same terms:",
"“ I, the undersigned, ... certify that Mr Ramirez Sanchez Ilich, who was born on 12 October 1949, has been in my care since his arrival at the prison.",
"The problems which Mr Ramirez Sanchez has had with his physical health are now stable.",
"Mr Ramirez Sanchez continues to make the same complaints about the difficulties of being held in full solitary confinement.",
"Since he does not wish to be treated by the Regional Medical and Psychological Service at Fleury- Mérogis Prison and I am not qualified to determine the impact of the conditions in which he is detained on his mental state, a medical and psychological assessment would be desirable.",
"Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law. ”",
"76. On 5 January 2006 the applicant was transferred to Clairvaux Prison, where he is held under the ordinary prison regime.",
"B. The applicant ’ s requests for judicial review",
"77. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside.",
"78. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court rejected the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside.",
"79. The applicant lodged an application for an order setting aside, on the grounds of formal invalidity, the decision of 17 February 2005 to keep him in solitary confinement. In a judgment of 15 December 2005, the Paris Administrative Court held as follows.",
"“ Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on 4 February 2005 in favour of prolonging Mr Ramirez Sanchez ’ s solitary confinement, there is no evidence in the file to show that the regional director obtained the opinion of the Sentence Enforcement Board before delivering his reasoned report to the Minister of Justice, even though, by virtue of the aforementioned provisions of Article D. 283-1 of the Code of Criminal Procedure, the Board is the only body empowered to decide whether solitary confinement should continue beyond a year. It follows that Mr Ramirez Sanchez ’ s argument that the decision of 17 February 2005 to prolong his solitary confinement was defective and must be set aside is well-founded.",
"As regards the submissions on the issue of compensation.",
"Although the formal invalidity of a solitary- confinement measure constitutes a fault capable of engaging the State ’ s responsibility, such a fault cannot entitle the person subjected to the measure to compensation for his or her loss if the circumstances of the case were such as to justify in law the decision to place the prisoner in solitary confinement as the alleged loss cannot be considered to have been a consequence of the defect in the decision.",
"The investigation shows that Mr Ramirez Sanchez has been sentenced to life imprisonment for the murder of police officers. He has been placed under investigation in connection with various terrorist cases, inter alia, for voluntary homicide and using an explosive device to destroy movable property. The applicant might use communications in Fleury-Mérogis Prison or on the outside to re-establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape. That being so, the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for a period of three months. The damage alleged by Mr Ramirez Sanchez, which included the loss of contact with other prisoners, cannot, therefore, be considered to have been a consequence of the procedural defect in the decision of 17 February 2005, so that his request for an order requiring the State to compensate him for the damage he claims to have sustained is unfounded. ... ”",
"II. PROCEDURE IN SOLITARY CONFINEMENT CASES",
"...",
"1.4. Content of the decision",
"The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. The sheet contains two sections, one for the reasons and the other for the prisoner ’ s observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision.",
"...",
"2.2. Copies of documents for the authorities",
"Article D. 283-1, sub - paragraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay.",
"A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation.",
"3. Lifting of the measure",
"Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply.",
"In view of the harmful effects of prolonged solitary confinement, the prison governor and regional director must closely monitor the length of the measure.",
"The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure.",
"The prisoner must be notified of a decision to lift the measure. If the prisoner has asked to be placed in solitary confinement, his or her observations (if any) must be obtained.",
"4. Prolongation of the measure",
"Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ...",
"4.1. Proposals to prolong the measure",
"The prolongation procedure must be set in motion three weeks before the three-month period expires.",
"Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose. They are then notified of the proposal.",
"No prolongation may be proposed without a prior assessment of the prisoner ’ s situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement.",
"If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing:",
"(i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the Sentence Enforcement Board and the date of transmission to the regional director.",
"(ii) The liaison form.",
"(iii) The report on the prisoner ’ s behaviour in solitary confinement based, in particular, on the record of observation.",
"Any report by the medical team or opinion by the doctor will be appended to the proposal file.",
"4.2. The regional director ’ s investigation",
"The file should be sent to the Regional Director ’ s Office at least fifteen days before the three-month period expires. The Regional Director ’ s Office will examine the file and, if necessary, request additional documents or information. It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure.",
"The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned.",
"If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary regime.",
"The prisoner will be given a copy of the decision to prolong the measure on being notified of it.",
"The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision.",
"The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible.",
"When a decision to prolong solitary confinement has already been taken by a regional director, the measure may be lifted during the statutory periods only by a decision of the same authority, unless it automatically lapses under Chapter 3. In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for.",
"5. Prolongation after a year",
"Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, sub - paragraph 6.",
"5.1. Proposals to prolong solitary confinement",
"The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the Regional Director ’ s Office and the central authority time to examine it thoroughly.",
"A doctor ’ s opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal.",
"The prison governor will submit the proposal to the Sentence Enforcement Board for an opinion, which the latter will indicate on the proposal form.",
"The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal.",
"The prison governor must append to the proposal a summary report on the prisoner ’ s behaviour since the initial decision was made.",
"Lastly, the liaison record (III.3) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure.",
"5.2. The regional director ’ s report",
"The regional director should draw up a report on the basis of the prison governor ’ s proposal and give a reasoned opinion on whether the measure should be prolonged beyond a year.",
"Before doing so, the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers.",
"He or she may also recommend other measures, such as a transfer.",
"The file containing the proposal to prolong solitary confinement must be sent to the head office of the Prison Service at least one month before the preceding measure expires. The central authority must be given time to examine the file and to seek alternatives.",
"5.3. The decision of the Minister of Justice",
"The central authority will send the Minister of Justice ’ s decision (which will normally be taken by the director of the Prison Service under delegated authority) to the Regional Director ’ s Office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time.",
"The prisoner should be provided with a copy of the decision and an original should be placed in the file.",
"A verbal report on the final decision should be made to the Sentence Enforcement Board.",
"The head office of the Prison Service will retain the power to decide on further quarterly extensions beyond a year. The matter will be referred back to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end.",
"Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority.",
"...",
"IV. THE SOLITARY CONFINEMENT REGIME",
"1. European and national recommendations",
"Following its visit to France of 6 to 18 October 1996, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘ a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime ’, in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities, including outdoor activities.",
"These recommendations tie in with the findings of the working groups that have been set up by or at the request of the Prison Service.",
"2. Implementation of the ordinary prison regime",
"In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime.",
"1 o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communication referred to in Article 145- 4 cannot apply to communication with lawyers.",
"2 o The right to relations with members of one ’ s family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement.",
"There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner ’ s classification as a high-security risk in accordance with Article D. 276-1 of the Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch.",
"Similarly, prisoners ’ rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement.",
"3 o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions.",
"If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit.",
"4 o Religious observance.",
"Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain.",
"5 o Health.",
"The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle:",
"(i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure.",
"(ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary- regime prisoners.",
"(iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table.",
"2.6. Activities in the segregation unit",
"Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times.",
"Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner ’ s placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned.",
"Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training.",
"...",
"4. Monitoring of and dialogue with prisoners in solitary confinement",
"4.1. Monitoring",
"A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner ’ s behaviour in solitary confinement.",
"The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner.",
"Staff should consult it regularly and in any event if it is intended to propose prolonging the measure.",
"A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure.",
"All prisons shall be responsible for creating a record of observation meeting the stated objective or, if one already exists, improving it.",
"4.2. Dialogue",
"In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement. Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner ’ s character.",
"For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners. ”",
"82. 3. Case-law of the Conseil d ’ Etat",
"In a judgment of 30 July 2003, the Conseil d ’ Etat departed from its previous case-law when it held:",
"“ The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged. In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice ’ s submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of Bois d ’ Arcy Prison to place him in solitary confinement is unfounded.",
"The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this Court.",
"It follows from the foregoing that the Minister of Justice is not entitled to make an order setting aside the impugned judgment.",
"It is appropriate in the circumstances of this case to make an order requiring the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code. ”",
"III. INTERNATIONAL MATERIALS",
"83. Extracts from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the responses of the government of the French Republic (unofficial translation)",
"Report on the visit of 6 to 18 October 1996",
"“ 158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible.",
"159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé ... It met a number of prisoners who had been held in solitary confinement for long, and in some instances very long, periods.",
"... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101).",
"As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders.",
"As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory.",
"160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded. Doctors were required to inform the prison governor in writing if they considered the prisoner ’ s physical or mental health to be at risk.",
"In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996 ) would establish new rules for gaining access to a doctor and assessing a prisoner ’ s condition.",
"161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another. ... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief.",
"162. In the light of the foregoing, the CPT recommends that the French authorities:",
"(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact;",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report;",
"(iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds).",
"The CPT would also like to know whether the decree announced by the French authorities has come into force and to receive a copy if it has. ”",
"Responses of the government of the French Republic to the 1996 report",
"Observations (interim report)",
"“ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162)",
"The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure.",
"Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year.",
"The entry into force of this Article, which will be included in a vast decree amending more than 300 Articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform.",
"It is intended that a draft circular will be issued when the decree comes into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of regular meetings. The provision of individual teaching or training programmes will also be recommended.",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162)",
"A draft circular is being prepared.",
"(iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162)",
"A draft circular is being prepared. ”",
"Follow-up report",
"“ (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162)",
"The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation.",
"It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care.",
"Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia :",
"(a) full compliance with prisoners ’ ordinary rights to relations with their family, representatives and others;",
"(b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings;",
"(c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes.",
"This draft was prepared after wide consultation of decentralised services. An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree.",
"(ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162)",
"The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation.",
"Any event with suspensive effect that either entails release or is for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner ’ s return to ordinary detention.",
"(iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162)",
"The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT. ”",
"report on the visit from 14 to 26 may 2000",
"“ 111. In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158- 63 of the reports). Subsequently, in a circular dated 14 December 1998, the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits.",
"Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice.",
"The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities).",
"112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting.",
"113. The ministerial instructions state: ‘ The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit ’ (point 4.1). They further state, inter alia : ‘ there shall be no restrictions on prison visits ’ (point 4.2.2) and ‘ prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times ’, that ‘ it is for the prison governor to assess how and when such groups may be organised ’ and ‘ individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged ’ (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: ‘ in order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement ’ (point 4.4.2).",
"From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room).",
"The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular.",
"114. The CPT also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: ‘ serious damage to property belonging to the prison that put prison security at risk ’ ) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ( ‘ to maintain order in the prison ’ or ‘ risk of escape ’ ). In one case the prisoner had been held in solitary confinement since 1997 ‘ because of the nature of the offences of which he had been convicted ’.",
"In summary, it would appear that the ministerial instructions, namely ‘ Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm ’, are not always fully complied with (cf. point 1.4.2).",
"The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons.",
"115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf. paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority.",
"The CPT recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation). ”",
"Response of the government of the French Republic",
"“ (i) take measures without delay to give full effect to the Minister of Justice ’ s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular (paragraph 113)",
"(ii) carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons (paragraph 114)",
"Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year.",
"There are currently 77 prisoners who have been in solitary confinement for more than a year. Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners.",
"The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned.",
"Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the ‘ 4 000 programme ’ will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular.",
"Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the Prison Service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement. In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits.",
"(iii) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge (paragraph 115)",
"Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons. ”",
"84. Extracts from the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002",
"“ III. Lawfulness of anti-terrorist measures",
"1. All measures taken by States to combat terrorism must be lawful.",
"2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued.",
"IV. Absolute prohibition of torture",
"The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.",
"...",
"XI. Detention",
"1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.",
"2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:",
"(i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;",
"(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;",
"(iii) the separation of such persons within a prison or among different prisons,",
"on condition that the measure taken is proportionate to the aim to be achieved. ”",
"85. 1. Extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules adopted on 11 January 2006",
"“ The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,",
"Having regard to the European Convention on Human Rights and the case- law of the European Court of Human Rights;",
"Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports;",
"Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law;",
"Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society;",
"...",
"Recommends that governments of member States:",
"– be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules:",
"...",
"Appendix to Recommendation Rec(2006)2",
"...",
"Basic principles",
"1. All persons deprived of their liberty shall be treated with respect for their human rights.",
"2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.",
"3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.",
"...",
"18.2 In all buildings where prisoners are required to live, work or congregate:",
"a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;",
"b. artificial light shall satisfy recognised technical standards; ...",
"...",
"23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.",
"...",
"23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.",
"...",
"24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.",
"24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.",
"...",
"24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.",
"...",
"24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case.",
"...",
"25.1 The regime provided for all prisoners shall offer a balanced programme of activities.",
"25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.",
"25.3 This regime shall also provide for the welfare needs of prisoners.",
"...",
"27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.",
"27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.",
"27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.",
"27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment.",
"27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them.",
"27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.",
"27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities.",
"...",
"29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.",
"...",
"37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their State.",
"...",
"39. Prison authorities shall safeguard the health of all prisoners in their care.",
"...",
"40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.",
"...",
"40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.",
"40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.",
"...",
"43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff.",
"43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement.",
"...",
"51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.",
"51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.",
"51.3 As soon as possible after admission, prisoners shall be assessed to determine:",
"a. the risk that they would present to the community if they were to escape;",
"b. the risk that they will try to escape either on their own or with external assistance.",
"51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.",
"51.5 The level of security necessary shall be reviewed at regular intervals throughout a person ’ s imprisonment.",
"Safety",
"52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.",
"52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.",
"...",
"53.1 Special high security or safety measures shall only be applied in exceptional circumstances.",
"53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.",
"53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.",
"53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.",
"53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.",
"53.6 Such measures shall be applied to individuals and not to groups of prisoners.",
"53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.",
"...",
"70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.",
"...",
"70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.",
"... ”",
"2. Extracts from the report by Mr Alvaro Gil- Robles, Commissioner for Human Rights of the Council of Europe, on the effective respect for human rights in France following his visit from 5 to 21 September 2005 (published on 15 February 2006)",
"“ 123. ... At the same time, another administrative procedure, which comes fully under the responsibility of the prison administration, is totally lacking in transparency and calls for rapid action on the part of the legislature. This is the procedure for placing prisoners in solitary confinement.",
"124. When one visits prisons, and more specifically the disciplinary blocks, one can usually see the solitary confinement blocks close by. Every prison has them. Under the law, any prisoner may be placed in solitary confinement either at his/her own request or as a precautionary or security measure [1]. In some cases, this regime is used to remove prisoners who are troublesome, under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence.",
"125. According to the legislation currently in force, solitary confinement is not a disciplinary measure [2]. Prisoners in solitary confinement must be subject to the ordinary prison regime. However, they must not have contact with other prisoners, except by express decision of the prison director, to take part in one-off activities with other solitary confinement prisoners. The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way. In a few establishments, solitary confinement prisoners may engage in a gainful occupation by doing work in their cells. Usually, however, they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside. All solitary confinement prisoners may, however, receive visits and exchange correspondence in the normal way.",
"126. There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘ because of [their] involvement in organised crime or in a terrorist movement or [their] legal and criminal background ’. It is for the prison director to determine which solitary confinement prisoners fall within this category. They are subject to particular security measures. Some are regularly transferred from one prison to another, roughly every six months. They remain constantly in solitary confinement and never mix with other prisoners.",
"127. Solitary confinement is usually ordered by the prison director. It may also be ordered by an investigating judge in the course of an investigation. Here I should like to dwell on the administrative procedure for which the prison director is responsible, because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement.",
"128. It emerged from most of my discussions with prisoners, lawyers, representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director. There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it, particularly by ensuring that they are given a hearing and the assistance of a lawyer.",
"129. In principle, there is general legislation which should govern this situation. This is Article 24 of the Law of 12 April 2000 on the rights of citizens in their dealings with the public administration. Under this provision, representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice, specifying the reasons for the procedure. The person in question must have the opportunity to submit written observations or, if he/she so wishes, oral observations and has the right to be assisted by a lawyer or a representative (approved or not). He/she may also have access to his/her file.",
"130. Clearly, the decision to place a prisoner in solitary confinement would normally be covered by this. However, we were told that this legislation has remained inoperative where solitary confinement is concerned. At present, therefore, the prison director retains sole discretion where solitary confinement is concerned.",
"131. According to what we heard in the course of our discussions, at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement. They usually only have an hour in which to prepare their observations before being given a hearing, without any legal assistance, by the prison director. I believe that, as things stand, this procedure must be described as being contrary to the recommendations of the Committee for the Prevention of Torture (CPT). Furthermore, the purely administrative and non-adversarial nature of this procedure greatly increase the risk of abuses of prisoners ’ rights. I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with European standards.",
"132. Furthermore, it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period, despite its frequently harmful effects on the mental state of the persons subjected to it. The initial period of solitary confinement ordered by the prison director may not exceed three months. It may be extended beyond that period only after a report to the Sentence Enforcement Board and following a decision by the regional director of prisons. In exceptional cases, solitary confinement may be extended beyond one year following an initial decision by the Minister for Justice. In such cases, the prison director compiles a file including, among other things, the opinion of the prison doctor and of the Sentence Enforcement Board. The minister is responsible for subsequent extensions, for three months at a time, in accordance with the same procedure.",
"133. As may be seen, this procedure is entirely administrative. At present, there is no judicial involvement whatsoever. Yet it is a particularly serious measure, because, although it is not recognised as punishment, the solitary confinement regime imposes significant material restrictions on prisoners ’ rights, not to mention its psychological impact. During the visit, I had the opportunity to talk with persons placed in solitary confinement. Some complained about the harshness of their living conditions. According to them, being unable to communicate with anyone for long periods, sometimes well in excess of a year, is hard to bear. Prisoners placed in solitary confinement have no effective administrative remedy at their disposal, and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment. In the course of the visit I met people who had been in total solitary confinement for several years.",
"134. It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners. In view of the fact that one of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners, it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment, which should clearly be the case for those in solitary confinement. For example, to allow them to use the library or a sports hall, care must be taken to ensure that no one else enters these premises at the same time. As we know, owing to prison overcrowding, it is already quite difficult to ensure access for ordinary prisoners to these services. Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled. The same applies to the possibility of engaging in a gainful occupation. In theory, prisoners in solitary confinement are entitled to that, but in practice they may only do so inside their own cell, which is highly problematical in view of the scarcity of work opportunities in general.",
"135. Lastly, the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block. We visited one such area at Fleury-Mérogis short-stay prison. It is located on the roof of one of the prison buildings, closed in by concrete walls on all sides and covered by wire netting. It is so small that it is more a room in the open air than anything else.",
"136. I should like to stress that we are talking here about people who are not subject to a disciplinary measure. Furthermore, the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal. I therefore call on the French authorities to take rapid action to bring solitary confinement into line with European standards, in particular those upheld by the CPT. I think there is a need for legislative provisions or regulations to govern the solitary- confinement procedure. The adversarial system already introduced for disciplinary punishments should apply to the solitary- confinement procedure. Lastly, I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure, for example the judge responsible for sentence enforcement.",
"137. Furthermore, without waiting for legislative reform, the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities, particularly as regards work, culture and sports. Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole, and not for prisoners being held in disciplinary cells. Excluding prisoners from these activities amounts to a disguised punishment. Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited.",
"... ”"
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"80. 1. Code of Criminal Procedure",
"Article D. 270",
"“ Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner ’ s presence.",
"At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty. ”",
"Article D. 272",
"“ Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor. ”",
"Article D. 283-1",
"[ The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998. ]",
"“ Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure.",
"Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner ’ s confinement or objection to a request for his or her confinement.",
"The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences.",
"The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner ’ s health, he or she shall give an opinion on whether solitary confinement should cease.",
"Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides.",
"Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor.",
"The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections. ”",
"Article D. 283-2",
"[ Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998 ]",
"“ Solitary confinement shall not constitute a disciplinary measure.",
"Prisoners in solitary confinement shall be subject to the ordinary prison regime. ”",
"81. 2. Circulars",
"Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure",
"“ 4. Solitary confinement as a precautionary or security measure",
"Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner ’ s request or on the governor ’ s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons.",
"4.1. The need to state reasons",
"Since the Conseil d ’ Etat ’ s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘ giving cause for complaint ’.",
"Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘ internal administrative measures ’ that are not amenable to review.",
"The courts consider on the basis of Article D. 283-2 that ‘ solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held ’ ( Conseil d ’ Etat, 28 February 1996, Fauqueux, and Conseil d ’ Etat, 22 September 1997, Trébutien ).",
"4.2. Nature of the reasons",
"It is not sufficient simply to repeat the succinct ‘ as a precautionary or security measure ’ formula used in Article D. 283-1.",
"... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm.",
"The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement.",
"4.3. Invalid reasons",
"An order for solitary confinement cannot be made solely for the following reasons.",
"4.3.1. Nature of the offence",
"The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement.",
"...",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"86. The applicant complained, firstly, that his prolonged solitary confinement from 15 August 1994 to 17 October 2002 and from 18 March 2004 to 6 January 2006 constituted inhuman and degrading treatment and had therefore violated Article 3 of the Convention.",
"Article 3 provides:",
"“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”",
"A. The Chamber judgment",
"87. The Chamber held that there had been no violation of Article 3 of the Convention. It found that the applicant had not been kept in complete sensory isolation or total social isolation. Having regard in particular to the applicant ’ s character and the exceptional danger he posed, it further found that the conditions in which he was being held and the length of time he had spent in solitary confinement had not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention.",
"B. The parties ’ submissions",
"1. The applicant",
"88. The applicant contested the conclusion that had been reached by the Chamber.",
"He submitted that the Chamber had been wrong to accept, without any prima facie evidence, the Government ’ s claim that there was a danger he would engage in proselytism or plan an escape. In his submission, it could not be maintained that solitary confinement had made such conduct impossible, just as it was impossible to draw any conclusion from the period in which he had ceased to be in solitary confinement.",
"89. He also considered that the Chamber should not have referred to his “ character ” or “ exceptional dangerousness ” in the absence of any concrete evidence from the Government to back up the “ abstract ” profile that had systematically been relied on in all the decisions to keep him in solitary confinement. Likewise, the reference to a possible ascendancy over the other prisoners showed that the reasons that had been given for keeping him in solitary confinement were fictitious.",
"90. In his submission, the systematic renewal of his solitary confinement had resulted in its continuation for a period that did not conform with the CPT ’ s recommendations or the undertakings that had been given by the Government after the CPT ’ s visit in 1996.",
"Furthermore, he had never been convicted of a terrorist offence and was entitled to the presumption of innocence on that point, in accordance with Article 6 § 2 of the Convention.",
"91. As regards the conditions in which he was detained, he said that the strict ban on his communicating with other people, including prison warders, had resulted in his total social isolation. He had been refused permission to have French lessons, even on an individual basis, and none of his family had been officially informed of his imprisonment or his whereabouts. He alleged that the investigating file showed that it was the French authorities ’ intention to arrest any member of his family who travelled to France.",
"As to the visits from the clergyman, the applicant said that initially they had been allowed only occasionally; subsequently, however, he had been permitted visits approximately once a month. He pointed out that visits by diplomatic representatives were a legal entitlement and that the Venezuelan authorities had not been informed of his situation until a late stage.",
"With regard to sanitary conditions, the applicant said that he took showers at the same intervals as other prisoners and had not requested a special regime. He had been forced to stop going to the cardio -training room after being provoked and assaulted, although he did not identify those responsible.",
"92. The visits he had received from his lawyers were not social visits, but an indefeasible means of exercising his defence rights. He said that the Chamber had been wrong to accept that the visits had reduced his isolation and added that there had been numerous instances of delay in his lawyers ’ being granted permission to visit him. Arguing that the Government ’ s production of the list of visits of just one of his lawyers was misrepresentative, he furnished a list of all 58 lawyers and of the more than 860 visits they had made between 16 August 1994 and 29 April 2002.",
"The visits from his lawyers had only been made with any frequency during his stay in La Santé Prison in Paris. On his transfer to the other prisons, such visits had become far less frequent because of the distance involved. Since October 2002, he had been receiving visits on a weekly basis.",
"93. The applicant further pointed out that, although the circular of 8 December 1998 to which the Chamber had referred in its judgment provided that a doctor ’ s opinion should be obtained prior to each extension, the Government had not produced evidence to show that the necessary medical examination had taken place.",
"94. He added that, in saying that the conditions in which he was detained were dictated by the layout of La Santé, the Government had sought to suggest that it would have been more appropriate to hold him in a maximum security prison, although these were all at some distance from Paris.",
"95. The applicant added that his excellent mental and physical health was due to his strength of character and the efforts he had made to keep his mind active and to retain mental balance. The adverse physical effects had, however, taken the form of broken sleep cycles as a result of his being noisily awoken by warders at hourly intervals from midnight to 6 a.m. throughout his stay in solitary confinement. He had also suffered from recurring respiratory and skin allergies as a result of the prison conditions.",
"96. His lawyer pointed out that it had been discovered in January 2004 that he was suffering from diabetes, a condition he had not previously had. She also said that he had lost 20 kilograms between March and December 2004.",
"2. The Government",
"97. The Government invited the Grand Chamber to endorse the Chamber ’ s finding that keeping the applicant in solitary confinement did not contravene Article 3.",
"98. Firstly, the applicant ’ s prison regime was wholly exceptional and dictated by the fact that, as a unique figure known internationally for acts of terrorism, there was a danger he would cause serious disruption within the prison population by engaging in proselytism, or even planning an escape.",
"99. In any event, the regime for prisoners in solitary confinement at La Santé Prison was strictly aligned to the rules applicable to ordinary prisoners, the only restrictions being those entailed by the fact that prisoners in the segregation unit had no possibility of meeting one another or of being in the same room together.",
"100. Referring to the facts as established (see paragraphs 11 and 12 above), the Government submitted that the physical conditions of the applicant ’ s detention complied with Article 3 of the Convention.",
"101. With regard to visits, the Government explained that the applicant had been a remand prisoner until 30 January 2000 and that by virtue of Article D. 64 of the Code of Criminal Procedure visits could only be authorised by the judge in charge of the investigation. Once the applicant ’ s conviction became final on 30 January 2000 the power to authorise visits had been transferred to the prison governor.",
"102. The applicant ’ s family, who did not reside in France, had never made contact.",
"Furthermore, the applicant was allowed to see a priest – subject to one being available – whenever he wished, and received regular visits from consular authorities, in particular the Venezuelan Ambassador ’ s representative.",
"103. The Government added that the applicant had had very frequent meetings with his lawyer, who had become his fiancée and later his wife under Islamic law, as she had visited him more than 6 4 0 times in four years and ten months (see paragraph 14 above). They added that visits from lawyers took place in special conference rooms without any barrier between the prisoner and his or her lawyer.",
"Lastly, although the applicant had been refused access to a communal class to learn French, he had been offered individual lessons, which he had declined.",
"104. The Government pointed out that by virtue of the Law of 18 January 1994 responsibility for the organisation and provision of health care for prisoners had been transferred to the public health service and social welfare protection had been made available to all prisoners.",
"105. In addition to any consultations requested by the prisoner or prison staff, medical care included mandatory check-ups (for new arrivals in a prison or for prisoners in the disciplinary unit). Prisoners in solitary confinement were systematically seen by a doctor twice a week.",
"Relations between prisoners and doctors were covered by medical confidentiality. Accordingly, the medical information the Government had supplied was non-confidential information which the medical team responsible for the applicant ’ s health had communicated to the French authorities.",
"106. From the strictly somatic standpoint, the applicant had attended the Outpatient Consultation and Treatment Unit ( “the OCTU ” ) for specialist dental and ophthalmologic care. He had never complained of impaired eyesight as a result of his solitary confinement.",
"From the psychiatric standpoint, the medical team had at no stage during the eight years the applicant had been held in solitary confinement mentioned any disorder, while the applicant had said that he was perfectly sane.",
"107. It was clear from the medical certificates that were issued regularly on each renewal of the solitary confinement that the doctors had at no stage found any contraindication to the measure.",
"108. The vast majority of the certificates drawn up between August 1994 and July 2000 had expressly stated that the applicant ’ s health was compatible with his continued confinement. In many instances, the certificates had been signed by different doctors who would necessarily have examined the applicant with a fresh pair of eyes. Lastly, the certificate of 13 July 2000 had even added that the applicant “ is in quite astounding physical and mental condition after six years in solitary confinement ”.",
"109. With regard to the period from July 2000 to September 2002, the Government did not deny that some of the certificates had referred to the problem of the possible physical and mental consequences of prolonged solitary confinement. However, the certificates did not state that the applicant had suffered any definite, actual harm as a result of his solitary confinement. The certificate of 20 September 2001 said that the applicant ’ s physical and mental condition was entirely reasonable after seven years in solitary confinement and in a later certificate dated 29 July 2002 the same practitioner stated that the applicant was in excellent somatic health. He also said that the applicant had refused any psychological counselling from the Regional Medical and Psychological Service (“the RMPS”), which in the Government ’ s submission showed that he had not felt the need for any counselling.",
"110. The Government further denied that the applicant had been woken at hourly intervals throughout the night, as he alleged. They referred to Articles D. 270 and D. 272 of the Code of Criminal Procedure, which governed prison rounds at night, and said that the applicant had been subjected to the same surveillance and checks as other prisoners in solitary confinement, as no special instructions had been issued in his case. In particular, when performing their night rounds, warders were not authorised to open cells unless there was good reason or imminent danger. The applicant could not, therefore, assert that he had been noisily woken at hourly intervals throughout the night on a regular basis. At most, it was possible that warders had shone a light into his cell briefly to check that he was there and what he was doing. Further, the applicant had never complained to a domestic authority about night-time surveillance, whereas he had complained on a number of occasions during his spell in solitary confinement about the conditions in which he was being held.",
"111. The Government concluded from all these factors that the applicant ’ s health did not appear to have been affected by solitary confinement and that the conditions in which the applicant was being held had not attained the minimum level of severity required to fall foul of Article 3 of the Convention, despite the CPT ’ s finding that the general conditions in which prisoners in solitary confinement were held in France were not entirely satisfactory.",
"C. The Court ’ s assessment",
"112. The Court must first determine the period of detention to be taken into consideration when examining the complaint under Article 3. It points out that the “ case ” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “ case ” being limited only by the Chamber ’ s decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II; and Öcalan v. Turkey [ GC], no. 46221/99, ECHR 2005 ‑ IV ). More specifically, within the compass thus delimited by the decision on the admissibility of the decision, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996 ‑ V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996 ‑ VI).",
"113. In the present case, the applicant ’ s solitary confinement was interrupted between 17 October 2002 and 18 March 2004 when he was detained in Saint-Maur Prison, near Châteauroux, under normal prison conditions. He was then held in solitary confinement successively in Fresnes, Fleury-Mérogis and La Santé. Since 6 January 2006 he has been in Clairvaux Prison, where normal conditions have been restored.",
"The parties have not provided any information on the conditions in which the applicant was kept in solitary confinement in the various prisons to which he was transferred during the period from March 2004 to January 2006. Nor has the applicant ever challenged his solitary confinement on the merits since that became possible on 30 July 2003 (see paragraph 82 above). In particular, he did not make use of any remedy on the merits during this latter period ( March 2004 to January 2006 ) although he could have done so from the moment he returned to solitary confinement. The Court will return to this point when it examines the complaint under Article 13.",
"114. In these specific circumstances, the Grand Chamber, like the Chamber, considers it appropriate to restrict its examination to the conditions in which the applicant was held from 15 August 1994 to 17 October 2002 ( contrast Öcalan, cited above, § 190).",
"1. General principles",
"115. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.",
"116. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999- V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal, cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001 ).",
"117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “ beyond reasonable doubt ”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.",
"118. The Court has considered treatment to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “ degrading ” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI). In considering whether a punishment or treatment is “ degrading ” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III).",
"119. In order for a punishment or treatment associated with it to be “ inhuman ” or “ degrading ”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004 ‑ VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003).",
"In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, § § 92- 94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 200 2 - VI ). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued.",
"Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).",
"120. The applicant ’ s allegations in the present case specifically concern the length of time spent in solitary confinement.",
"The European Commission of Human Rights expressed the following opinion on this particular aspect of detention in Ensslin, Baader and Raspe v. Germany (nos. 7572/76, 758 6/76 and 7587/76, Commission decision of 8 July 1978, Decisions and Reports ( DR ) 14, p. 64) :",
"“ The Commission has already been confronted with a number of such cases of isolation (cf. Decisions on Applications No. 1392/62 v. FRG, Coll. 17, p. 1; No. 5006/71 v. UK, Coll. 39, p. 91; No. 2749/66 v. UK, Yearbook X, p. 382; No. 6038/73 v. FRG, Coll. 44, p. 155; No. 4448/70 “ Second Greek Case ” Coll. 34, p. 70). It has stated that prolonged solitary confinement is undesirable, especially where the person is detained on remand (cf. Decision on Application No. 6038/73 v. FRG, Coll. 44, p. 151). However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality; thus it constitutes a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition on torture and inhuman treatment contained in Article 3 being absolute in character (cf. the Report of the Commission on Application No. 5310/71, Ireland v. the United Kingdom; Opinion, p. 379). ”",
"121. In Kröcher and Möller v. Switzerland (no. 8463/78, Commission ’ s report of 16 December 1982, DR 34, p. 24), the Commission also considered the length of the solitary confinement, which lasted for approximately ten and a half months. It observed:",
"“ With regard to the duration of their detention on remand and detention under security conditions, the Commission finds that each of these periods was fairly brief considering the circumstances of the case. As to the special isolation measures to which the applicants were subjected, neither the duration nor the severity of these exceeded the legitimate requirements of security. In any case, the applicants ’ exclusion from the prison community was not prolonged excessively. ”",
"122. The Commission reiterated in a later case that prolonged solitary confinement was undesirable ( see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported ).",
"123. Similarly, the Court has for its part established the circumstances in which the solitary confinement of even a dangerous prisoner will constitute inhuman or degrading treatment (or even torture in certain instances).",
"It has thus observed:",
"“ ... complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. ” ( see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; Öcalan, cited above, § 191; and Ilaşcu and Others, cited above, § 432 )",
"124. Similarly, in Ilaşcu and Others, the Court stated:",
"“ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ..., in which it described isolation for so many years as indefensible.",
"The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ... and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 43 8; contrast Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 )",
"2. Application of the principles to the present case",
"125. As to the present case, the Court accepts that the applicant ’ s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world ’ s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures.",
"(a) Conditions in which the applicant was held",
"(i) Physical conditions",
"126. The physical conditions in which the applicant was held must be taken into account when examining the nature and duration of his solitary confinement.",
"127. The Court notes that the cell which the applicant occupied when in solitary confinement at La Santé Prison was large enough to accommodate a prisoner, was furnished with a bed, table and chair, and had sanitary facilities and a window giving natural light.",
"128. In addition, the applicant had books, newspapers, a reading light and a television set at his disposal. He had access to the exercise yard two hours a day and to a cardio -training room one hour a day.",
"129. These conditions of detention contrast with those that were examined by the Court in the case of Mathew, in which the Court found a violation of Article 3. The applicant in that case had been detained in conditions similar to solitary confinement for more than two years in a cell on the last ( second ) floor of the prison. For seven or eight months, a large hole in the ceiling allowed rain to enter. In addition, the fact that the cell was directly under the roof exposed the applicant to the tropical heat. Lastly, since he had difficulty going up or down stairs, he was frequently prevented from going to the exercise yard or even outside ( see Mathew v. the Netherlands, no. 24919/03, ECHR 2005 -IX ).",
"130. In the present case, the Court finds that the physical conditions in which the applicant was detained were proper and complied with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. These conditions were also considered to be “ globally acceptable ” by the CPT (see its report on the visit from 14 to 26 May 2000, cited at paragraph 83 above). Accordingly, no violation of Article 3 can be found on this account.",
"( ii ) Nature of the applicant ’ s solitary confinement",
"131. In the present case, the applicant received twice- weekly visits from a doctor, a once - monthly visit from a priest and very frequent visits from one or more of his 58 lawyers, including more than 640 visits over a period of four years and ten months from his representative in the proceedings before the Court, now his wife under Islamic law, and more than 860 visits in seven years and eight months from his other lawyers (see paragraphs 14 and 92 above).",
"Furthermore, the applicant ’ s family, who are not subject to any restrictions on visiting rights, have never requested permission to visit and the only two requests which have been refused came from journalists. Nor has the applicant provided any evidence in support of his allegations that members of his family risk arrest if they set foot in France. As to the allegation that the family has never been officially informed of the applicant ’ s imprisonment or place of detention, the Court notes that it is not certain that the French authorities had the names and addresses of his family members and it considers that the consular authorities, the applicant himself and his lawyers were in any event perfectly capable of informing them themselves.",
"132. The Court notes that the conditions of solitary confinement in which the applicant was held were not as harsh as those it has had occasion to examine in connection with other applications, such as in the cases of Messina (no. 2) and Argenti, in which the applicants, who had been in solitary confinement for four and a half years and twelve years respectively, were subject to a ban on communicating with third parties, a restriction on receiving visits – behind a glass screen – from members of their families (with a maximum of a one-hour visit per month), and bans on receiving or sending money over a certain amount, on receiving parcels from outside containing anything other than linen, on buying groceries that required cooking and on spending more than two hours outdoors (see Messina (no. 2), cited above, and Argenti v. Italy, no. 56317/00, § 7, 10 November 2005).",
"133. Likewise, in the case of Öcalan, in which the isolation was stricter, the Court noted that the applicant, who had been the sole inmate of an island prison for six years when the judgment was adopted, had no access to a television and that his lawyers, who were only allowed to visit him once a week, had often been prevented from doing so by adverse weather conditions that meant that the boat was unable to make the crossing. It found that in the circumstances of the case the conditions of detention were not incompatible with Article 3 of the Convention ( see Öcalan, cited above, in particular §§ 190- 96 ).",
"134. The Court considers that the applicant ’ s conditions are closer to those it examined in Rohde in which it held that there had been no violation of Article 3 of the Convention. The applicant in that case was held in solitary confinement for eleven and a half months. He had access to television and newspapers, was excluded from activities with other prisoners, had language lessons, was able to meet the prison chaplain and received a visit once a week from his lawyer and some members of his family ( Rohde, cited above, § 97).",
"135. The Court accordingly concludes that the applicant cannot be considered to have been in complete sensory isolation or total social isolation. His isolation was partial and relative.",
"(b) Duration of the solitary confinement",
"136. It is true that the applicant ’ s situation was far removed from that of the applicants in the aforementioned case of Ilaşcu and Others and that he was not subjected to complete sensory isolation or to total social isolation, but to relative social isolation (see also on this point, Messina (no. 2), cited above).",
"However, the Court cannot but note with concern that in the present case he was held in solitary confinement from 15 August 1994 to 17 October 2002, a period of eight years and two months.",
"In view of the length of that period, a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement.",
"137. Reasons for keeping a prisoner in solitary confinement are required by the circular of 8 December 1998 which refers to “ genuine grounds ” and “ objective concordant evidence of a risk of the prisoner causing ... serious harm ”. In the instant case, the reasons given for renewing the measure every three months were his dangerousness, the need to preserve order and security in the prison and the risk of his escaping from a prison in which general security measures were less extensive than in a high- security prison.",
"The circular also provides that solitary confinement should only continue for more than a year in exceptional circumstances. However, regrettably there is no upper limit on the duration of solitary confinement.",
"138. It is true that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of the prison community together with tighter controls (see Kröcher and Möller, cited above ).",
"139. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by.",
"Furthermore, such measures, which are a form of “ imprisonment within the prison ”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement.",
"140. The Court notes that the applicant has received very regular visits from doctors, in accordance with the instructions set out in the circular of 8 December 1998.",
"141. While it is true that, after 13 July 2000 the doctors no longer sanctioned his solitary confinement, none of the medical certificates issued on the renewals of the applicant ’ s solitary confinement up to October 2002 expressly stated that his physical or mental health had been affected, or expressly requested a psychiatric report.",
"142. In addition, on 29 July 2002 the doctor in charge of the OCTU at La Santé Prison noted in his report on the treatment the applicant had been receiving that the applicant had refused “ any psychological help from the RMPS”.",
"143. Likewise, in his findings following an examination of the applicant on 17 October 2002 on his arrival at Saint-Maur Prison, the Indre Health Inspector said that, from the psychiatric standpoint, the applicant had been seen by a psychiatrist from the RMPS as part of the standard induction procedure. No follow-up treatment had been prescribed at the time and the applicant had not asked to see a psychiatrist since. The applicant had been examined on 26 August 2003, but no follow-up to that appointment had been recommended.",
"144. The Court notes in this connection that the applicant refused the psychological counselling he was offered (see paragraph 70 above) and has not alleged that the treatment he received for his diabetes was inappropriate. Nor has he shown that his prolonged solitary confinement has led to any deterioration in his health, whether physical or mental.",
"Furthermore, the applicant himself stated in his observations in reply that he was in excellent mental and physical health (see paragraph 95 above).",
"145. The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003. The Court will return to this point when it examines the complaint made under Article 13. It also refers in this connection to the conclusions of the CPT and of the Human Rights Commissioner of the Council of Europe (see paragraphs 83 and 85 above).",
"146. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate.",
"147. The Court notes with interest on this point that the authorities twice transferred the applicant to prisons in which he was held in normal conditions. It emerges from what the Government have said that it was as a result of an interview which the applicant gave over the telephone to a television programme in which he refused among other things to express any remorse to the victims of his crimes (he put the number of dead at between 1,500 and 2,000), that he was returned to solitary confinement in a different prison. The authorities do not, therefore, appear to have sought to humiliate or debase him by systematically prolonging his solitary confinement, but to have been looking for a solution adapted to his character and the danger he posed.",
"148. The Court notes that when the applicant was being held in normal conditions in Saint-Maur Prison, his lawyer sent a letter to the Registry of the Court in which she complained of “ dangerous company, particularly in the form of drug addicts, alcoholics, and sexual offenders who are unable to control their behaviour ” and alleged a violation of human rights.",
"Furthermore, the applicant complained during that period of being too far away from Paris, which, he said, made visits from his lawyers more difficult, less frequent and more costly and inevitably caused another form of isolation.",
"149. Lastly, the Government ’ s concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape also have to be taken into account. These concerns cannot be said to have been without basis or unreasonable (see on this point, Messina (no. 2), in which the Court noted, before declaring the complaints about the conditions of detention inadmissible, “ the applicant was placed under the special regime because of the very serious offences of which he [was] convicted ”, a statement that is equally applicable to the applicant in the present case; see also Gallico v. Italy, no. 53723/00, 28 June 2005 ).",
"150. The Court shares the CPT ’ s concerns about the possible long-term effects of the applicant ’ s isolation. It nevertheless considers that, having regard to the physical conditions of the applicant ’ s detention, the fact that his isolation is “ relative ”, the authorities ’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since 5 January 2006 he has been held under the ordinary prison regime (see paragraph 76 above), a situation which, in the Court ’ s view, should not in principle be changed in the future. Overall, having regard to all the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"151. The applicant complained that he had not had a remedy available to challenge his continued solitary confinement. He relied on Article 13, which provides:",
"“ Everyone whose rights and freedoms as set forth in th[e] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ”",
"A. The Chamber judgment",
"152. The Chamber found a violation of Article 13 of the Convention. It noted in particular that prior to the Conseil d ’ Etat ’ s judgment of 30 July 2003, prisoners in solitary confinement did not have any remedy available to challenge the original measure or any renewal of it.",
"B. The parties ’ submissions",
"153. The applicant invited the Grand Chamber to endorse the Chamber ’ s finding of a violation. He also alleged that the authorities had not followed the procedure laid down by Article D. 283-1 of the Code of Criminal Procedure for prolonging solitary confinement. He added that on a number of occasions he had been forced to complain because he not been given the requisite medical check-up before the decision to prolong his solitary confinement was taken. Lastly, he said that the proposals and decisions to prolong the measure were almost systematically based on the nature of the offences for which he was in prison and that the authorities had been unable to provide the genuine grounds or evidence of objective and concordant incidents required by the applicable provisions.",
"154. The Government noted that in a judgment of 30 July 2003 the Conseil d ’ Etat had ruled that a decision to place a prisoner in solitary confinement could be the subject of judicial review owing to the effect such decisions had on the conditions of detention. That judgment was part of a continuing process which had seen the scope of internal administrative measures increasingly circumscribed.",
"155. They added that the applicant had to date challenged only one order renewing his solitary confinement, that being the decision of 17 February 2006. Even then he had only contested the formal validity of the measure, not the underlying reasons. Consequently, he had never sought to challenge the measure in the administrative courts on the merits by arguing that it violated Article 3 of the Convention.",
"The Paris Administrative Court, which gave its judgment on 15 December 2005, had set the decision aside on the ground that the regional director of the Prison Service had omitted to obtain the opinion of the Sentence Enforcement Board, as he was required to do by Article D. 283 ‑ 1 of the Code of Criminal Procedure, before lodging his report with the Minister of Justice.",
"156. The Government said in conclusion that it left it to the Court ’ s discretion to decide whether or not an effective remedy had existed prior to the Conseil d ’ Etat ’ s decision of 30 July 2003.",
"C. The Court ’ s assessment",
"157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “ arguable complaint ” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157).",
"158. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint. However, the remedy must be “ effective ” in practice as well as in law (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII).",
"159. The “ effectiveness ” of a “ remedy ” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “ authority ” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no. 61, and Chahal, cited above, § 145).",
"160. The Court must now determine whether it was possible under French law for the applicant to complain about the decisions to prolong his solitary confinement and about any procedural irregularities, and whether the remedies were “ effective ” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred.",
"161. The Government accepted that, under the settled case-law of the Conseil d ’ Etat prior to 30 July 2003, decisions to place a prisoner in solitary confinement were equated to internal administrative measures in respect of which no appeal lay to the administrative courts.",
"162. The applicant lodged an appeal with the Administrative Court on 14 September 1996. However, this was dismissed in a judgment of 25 November 1998 on the ground that it was an internal measure that could not be referred to the administrative courts.",
"163. The Court notes on this point that the decision was consistent with the settled case-law of the Conseil d ’ Etat at the material time which the Government have themselves cited.",
"164. It was not until 30 July 2003 that the Conseil d ’ Etat changed its jurisprudence and ruled that an application for judicial review could be made in respect of decisions concerning solitary confinement and the decision quashed if appropriate.",
"165. The Court notes that the applicant has made only one application to the Administrative Court since the change in the case-law. Although he only challenged the lawfulness of the measure imposed on him on 17 February 2005, it is of the view that, having regard to the serious repercussions which solitary confinement has on the conditions of detention, an effective remedy before a judicial body is essential. The aforementioned change in the case-law, which would warrant being brought to the attention of a wider audience, did not in any event have retrospective effect and could not have any bearing on the applicant ’ s position.",
"166. The Court accordingly considers that in this case there has been a violation of Article 13 of the Convention on account of the lack of a remedy in domestic law that would have allowed the applicant to challenge the decisions to prolong his solitary confinement taken between 15 August 1994 and 17 October 2002.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"167. Article 41 of the Convention provides:",
"“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”",
"A. Damage",
"168. The applicant made no claim for compensation.",
"B. Costs and expenses",
"169. The applicant ’ s lawyer submitted an invoice for the total cost of visiting the applicant between June 1997 and October 2002. This included the hourly rates for the visits, travel expenses and procedural disbursements. The invoice came to a total of 426,852.40 euros (EUR).",
"The second lawyer who represented the applicant at the hearing produced a statement showing the cost of visits made to the applicant between 22 May 1998 and 7 October 2002 in the amount of EUR 87,308, comprising EUR 69,846.40 for the visits themselves and EUR 17,461.60 for travel and the costs of formalities.",
"The first lawyer expressed regret that the Chamber should have refused that request without taking into account lawyers ’ fixed overheads and asked the Court to grant it.",
"170. The account for costs and expenses incurred in presenting the application to the Court came to EUR 41, 860, to which were to be added EUR 8 0 0 for travel and accommodation for the two lawyers for the hearing in Strasbourg.",
"171. The Government submitted that the applicant ’ s claims were unreasonable and referred to their previous submissions.",
"172. They pointed out, firstly, that he had provided no evidence to show that he had actually paid the costs and expenses.",
"173. They added that the amount sought in respect of the visits had been calculated for the period from 1997 to 2002, although the application had not been lodged until 20 July 2000. There was consequently no causal link between the work done on the application and the visits that had been made prior to that date.",
"174. The Government also pointed out that, in view of the considerable number of hours (1,830) that had been claimed for visits without any breakdown, it was impossible to distinguish between visits by Ms Coutant Peyre in her capacity as a lawyer and those she had made personally as the applicant ’ s partner. They concluded that that claim had to be dismissed.",
"175. As to the claim for costs and expenses, the Government submitted that it must necessarily include the costs of visits made in a professional capacity. Noting that this claim was not based on a verifiable calculation either, they said that accordingly it could not be upheld.",
"In conclusion, the Government proposed a payment of EUR 6,000 to the applicant for his costs and expenses in the event of the Court finding a violation in the case.",
"176. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, 25 August 1998, Reports 1998-VI, and Yvon v. France, no. 44962/98, ECHR 2003 ‑ V), provided they have been necessarily incurred, the requisite vouchers have been produced and they are reasonable as to quantum (see, among other authorities, Kress v. France [GC], no. 39594/98, ECHR 2001 ‑ VI).",
"177. The Court notes that no explanation or evidence has been provided in the present case in support of the claim for reimbursement of the costs of the visits. Accordingly, it cannot make any award under this head.",
"178. The Court notes that no details or vouchers whatsoever have been provided in support of the claim for the costs and expenses incurred in presenting the application to it.",
"However, having regard to the complexity of the questions raised by the application and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 10, 0 00 in respect of all his costs incurred in the proceedings before the Court.",
"C. Default interest",
"179. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
264 | Chahal v. the United Kingdom | 15 November 1996 | The applicant, an advocate of the Sikh separatist cause who was served with a deportation order on grounds of national security, alleged that he faced a real risk of ill-treatment if he were to be deported to India. | The Court held that there would be a violation of Article 3 (prohibition of inhuman and degrading treatment) if the deportation order to India were to be enforced. The Court was not satisfied by the assurances given by the Indian Government. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. The applicants",
"12. The four applicants are members of the same family and are Sikhs. The first applicant, Karamjit Singh Chahal, is an Indian citizen who was born in 1948. He entered the United Kingdom illegally in 1971 in search of employment. In 1974 he applied to the Home Office to regularise his stay and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973. Since 16 August 1990 he has been detained for the purposes of deportation in Bedford Prison.",
"The second applicant, Darshan Kaur Chahal, is also an Indian citizen who was born in 1956. She came to England on 12 September 1975 following her marriage to the first applicant in India, and currently lives in Luton with the two children of the family, Kiranpreet Kaur Chahal (born in 1977) and Bikaramjit Singh Chahal (born in 1978), who are the third and fourth applicants. By virtue of their birth in the United Kingdom the two children have British nationality.",
"13. The first and second applicants applied for British citizenship in December 1987. Mr Chahal's request was refused on 4 April 1989 but that of Mrs Chahal is yet to be determined.",
"B. Background: the conflict in Punjab",
"14. Since the partition of India in 1947 many Sikhs have been engaged in a political campaign for an independent homeland, Khalistan, which would approximate to the Indian province of Punjab. In the late 1970s, a prominent group emerged under the leadership of Sant Jarnail Singh Bhindranwale, based at the Golden Temple in Amritsar, the holiest Sikh shrine. The Government submit that Sant Bhindranwale, as well as preaching the tenets of orthodox Sikhism, used the Golden Temple for the accumulation of arms and advocated the use of violence for the establishment of an independent Khalistan.",
"15. The situation in Punjab deteriorated following the killing of a senior police officer in the Golden Temple in 1983. On 6 June 1984 the Indian army stormed the temple during a religious festival, killing Sant Bhindranwale and approximately 1,000 other Sikhs. Four months later the Indian Prime Minister, Mrs Indira Gandhi, was shot dead by two Sikh members of her bodyguard. The ensuing Hindu backlash included the killing of over 2,000 Sikhs in riots in Delhi.",
"16. Since 1984, the conflict in Punjab has reportedly claimed over 20,000 lives, peaking in 1992 when, according to Indian press reports collated by the United Kingdom Foreign and Commonwealth Office, approximately 4,000 people were killed in related incidents in Punjab and elsewhere. There is evidence of violence and human rights abuses perpetrated by both Sikh separatists and the security forces (see paragraphs 45-56 below).",
"C. Mr Chahal's visit to India in 1984",
"17. On 1 January 1984 Mr Chahal travelled to Punjab with his wife and children to visit relatives. He submits that during this visit he attended at the Golden Temple on many occasions, and saw Sant Bhindranwale preach there approximately ten times. On one occasion he, his wife and son were afforded a personal audience with him. At around this time Mr Chahal was baptised and began to adhere to the tenets of orthodox Sikhism. He also became involved in organising passive resistance in support of autonomy for Punjab.",
"18. On 30 March 1984 he was arrested by the Punjab police. He was taken into detention and held for twenty-one days, during which time he was, he contended, kept handcuffed in insanitary conditions, beaten to unconsciousness, electrocuted on various parts of his body and subjected to a mock execution. He was subsequently released without charge.",
"He was able to return to the United Kingdom on 27 May 1984, and has not visited India since.",
"D. Mr Chahal's political and religious activities in the United Kingdom",
"19. On his return to the United Kingdom, Mr Chahal became a leading figure in the Sikh community, which reacted with horror to the storming of the Golden Temple. He helped organise a demonstration in London to protest at the Indian Government's actions, became a full-time member of the committee of the\" gurdwara\" (temple) in Belvedere ( Erith, Kent ) and travelled around London persuading young Sikhs to be baptised.",
"20. In August 1984 Mr Jasbir Singh Rode entered the United Kingdom. He was Sant Bhindranwale's nephew, and recognised by Sikhs as his successor as spiritual leader. Mr Chahal contacted him on his arrival and toured the United Kingdom with him, assisting at baptisms performed by him. Mr Rode was instrumental in setting up branches of the International Sikh Youth Federation (\"ISYF\") in the United Kingdom, and the applicant played an important organisational role in this endeavour. The ISYF was established to be the overseas branch of the All India Sikh Students' Federation. This latter organisation was proscribed by the Indian Government until mid-1985, and is reportedly still perceived as militant by the Indian authorities.",
"21. In December 1984 Mr Rode was excluded from the United Kingdom on the ground that he publicly advocated violent methods in pursuance of the separatist campaign. On his return to India he was imprisoned without trial until late 1988. Shortly after his release it became apparent that he had changed his political views; he now argued that Sikhs should pursue their cause using constitutional methods, a view which, according to the applicants, was unacceptable to many Sikhs. The former followers of Mr Rode therefore became divided.",
"22. In the United Kingdom, according to the Government, this led to a split in the ISYF along broadly north/south lines. In the north of England most branches followed Mr Rode, whereas in the south the ISYF became linked with another Punjab political activist, Dr Sohan Singh, who continued to support the campaign for an independent homeland. Mr Chahal and, according to him, all major figures of spiritual and intellectual standing within the United Kingdom Sikh community were in the southern faction.",
"E. Mr Chahal's alleged criminal activities",
"23. In October 1985 Mr Chahal was detained under the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"PTA\") on suspicion of involvement in a conspiracy to assassinate the Indian Prime Minister, Mr Rajiv Gandhi, during an official visit to the United Kingdom. He was released for lack of evidence.",
"In 1986 he was arrested and questioned twice (once under the PTA), because he was believed to be involved in an ISYF conspiracy to murder moderate Sikhs in the United Kingdom. On both occasions he was released without charge. Mr Chahal denied involvement in any of these conspiracies.",
"24. In March 1986 he was charged with assault and affray following disturbances at the East Ham gurdwara in London. During the course of his trial on these charges in May 1987 there was a disturbance at the Belvedere gurdwara, which was widely reported in the national press. Mr Chahal was arrested in connection with this incident, and was brought to court in handcuffs on the final day of his trial. He was convicted on both charges arising out of the East Ham incident, and served concurrent sentences of six and nine months.",
"He was subsequently acquitted of charges arising out of the Belvedere disturbance.",
"On 27 July 1992 the Court of Appeal quashed the two convictions on the grounds that Mr Chahal's appearance in court in handcuffs had been seriously prejudicial to him.",
"F. The deportation and asylum proceedings",
"1. The notice of intention to deport",
"25. On 14 August 1990 the Home Secretary (Mr Hurd ) decided that Mr Chahal ought to be deported because his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism.",
"A notice of intention to deport was served on the latter on 16 August 1990. He was then detained for deportation purposes pursuant to paragraph 2 (2) of Schedule III of the Immigration Act 1971 (see paragraph 64 below) and has remained in custody ever since.",
"2. Mr Chahal's application for asylum",
"26. Mr Chahal claimed that if returned to India he had a well-founded fear of persecution within the terms of the United Nations 1951 Convention on the Status of Refugees (\"the 1951 Convention\" - see paragraph 61 below) and applied for political asylum on 16 August 1990. He was interviewed by officials from the Asylum Division of the Home Office on 11 September 1990 and his solicitors submitted written representations on his behalf.",
"He claimed that he would be subjected to torture and persecution if returned to India, and relied upon the following matters, inter alia:",
"(a) his detention and torture in Punjab in 1984 (see paragraph 18 above);",
"(b) his political activities in the United Kingdom and his identification with the regeneration of the Sikh religion and the campaign for a separate Sikh State (see paragraphs 19-22 above);",
"(c) his links with Sant Bhindranwale and Jasbir Singh Rode; (see paragraphs 17 and 20 above);",
"(d) evidence that his parents, other relatives and contacts had been detained, tortured and questioned in October 1989 about Mr Chahal's activities in the United Kingdom and that others connected to him had died in police custody;",
"(e) the interest shown by the Indian national press in his alleged Sikh militancy and proposed expulsion from the United Kingdom;",
"(f) consistent evidence, including that contained in the reports of Amnesty International, of the torture and murder of those perceived to be Sikh militants by the Indian authorities, particularly the Punjab police (see paragraphs 55-56 below).",
"27. On 27 March 1991 the Home Secretary refused the request for asylum. In a letter to the applicant, he expressed the view that the latter's known support of Sikh separatism would be unlikely to attract the interest of the Indian authorities unless that support were to include acts of violence against India. He continued that he was",
"\"not aware of any outstanding charges either in India or elsewhere against [Mr Chahal ] and on the account [Mr Chahal ] has given of his political activities, the Secretary of State does not accept that there is a reasonable likelihood that he would be persecuted if he were to return to India. The media interest in his case may be known by the Indian authorities and, given his admitted involvement in an extremist faction of the ISYF, it is accepted that the Indian Government may have some current and legitimate interest in his activities\".",
"The Home Secretary did not consider that Mr Chahal's experiences in India in 1984 had any continued relevance, since that had been a time of particularly high tension in Punjab.",
"28. Mr Chahal's solicitors informed the Home Secretary that he intended to make an application for judicial review of the refusal of asylum, but would wait until the advisory panel had considered the national security case against him.",
"3. The advisory panel",
"29. Because of the national security elements of the case, there was no right of appeal against the deportation order (see paragraphs 58 and 60 below). However, on 10 June 1991, the matter was considered by an advisory panel, chaired by a Court of Appeal judge, Lord Justice Lloyd, and including a former president of the Immigration Appeal Tribunal.",
"30. The Home Office had prepared statements on 5 April and 23 May 1991 containing an outline of the grounds for the notice of intention to deport, which were sent to the applicant. The principal points were as follows:",
"(a) Mr Chahal had been the central figure in directing the support for terrorism organised by the London-based faction of the ISYF which had close links with Sikh terrorists in the Punjab;",
"(b) he had played a leading role in the faction's programme of intimidation directed against the members of other groups within the United Kingdom Sikh community;",
"(c) he had been involved in supplying funds and equipment to terrorists in Punjab since 1985;",
"(d) he had a public history of violent involvement in Sikh terrorism, as evidenced by his 1986 convictions and involvement in disturbances at the Belvedere gurdwara (see paragraph 24 above). These disturbances were related to the aim of gaining control of gurdwara funds in order to finance support and assistance for terrorist activity in Punjab;",
"(e) he had been involved in planning and directing terrorist attacks in India, the United Kingdom and elsewhere.",
"Mr Chahal was not informed of the sources of and the evidence for these views, which were put to the advisory panel.",
"31. In a letter dated 7 June 1991, Mr Chahal's solicitors set out a written case to be put before the advisory panel, including the following points:",
"(a) the southern branch of the ISYF had a membership of less than 200 and was non-violent both in terms of its aims and history;",
"(b) the ISYF did not attempt to gain control of gurdwaras in order to channel funds into terrorism; this was a purely ideological struggle on the part of young Sikhs to have gurdwaras run according to Sikh religious values;",
"(c) Mr Chahal denied any involvement in the disturbances at the East Ham and Belvedere gurdwaras (see paragraph 24 above) or in any other violent or terrorist activity in the United Kingdom or elsewhere.",
"32. He appeared before the panel in person, and was allowed to call witnesses on his behalf, but was not allowed to be represented by a lawyer or to be informed of the advice which the panel gave to the Home Secretary (see paragraph 60 below).",
"33. On 25 July 1991 the Home Secretary (Mr Baker) signed an order for Mr Chahal's deportation, which was served on 29 July.",
"4. Judicial review",
"34. On 9 August 1991 Mr Chahal applied for judicial review of the Home Secretaries' decisions to refuse asylum and to make the deportation order. Leave was granted by the High Court on 2 September 1991. The asylum refusal was quashed on 2 December 1991 and referred back to the Home Secretary. The court found that the reasoning behind it was inadequate, principally because the Home Secretary had neglected to explain whether he believed the evidence of Amnesty International relating to the situation in Punjab and, if not, the reasons for such disbelief. The court did not decide on the validity of the deportation order. Mr Justice Popplewell expressed \"enormous anxiety\" about the case.",
"35. After further consideration, on 1 June 1992 the Home Secretary (Mr Clarke) took a fresh decision to refuse asylum. He considered that the breakdown of law and order in Punjab was due to the activities of Sikh terrorists and was not evidence of persecution within the terms of the 1951 Convention. Furthermore, relying upon Articles 32 and 33 of that Convention (see paragraph 61 below), he expressed the view that, even if Mr Chahal were at risk of persecution, he would not be entitled to the protection of the 1951 Convention because of the threat he posed to national security.",
"36. Mr Chahal applied for judicial review of this decision, but then requested a postponement on 4 June 1992, which was granted.",
"37. In a letter dated 2 July 1992, the Home Secretary informed the applicant that he declined to withdraw the deportation proceedings, that Mr Chahal could be deported to any international airport of his choice within India and that the Home Secretary had sought and received an assurance from the Indian Government (which was subsequently repeated in December 1995) in the following terms:",
"\"We have noted your request to have a formal assurance to the effect that, if Mr Karamjit Singh Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities.",
"I have the honour to confirm the above.\"",
"38. On 16 July 1992 the High Court granted leave to apply for judicial review of the decisions of 1 June 1992 to maintain the refusal of asylum and of 2 July 1992 to proceed with the deportation. An application for bail was rejected on 23 July (the European Court of Human Rights was not provided with details of this ruling).",
"39. The Court of Appeal (Criminal Division) quashed Mr Chahal's 1987 convictions on 27 July 1992 (see paragraph 24 above). The Home Secretary reviewed the case in the light of this development, but concluded that it was right to proceed with the deportation.",
"40. The hearing of the application for judicial review took place between 18 and 21 January 1993. It was refused on 12 February 1993 by Mr Justice Potts in the High Court, as was a further application for bail (the European Court of Human Rights was not provided with details of this ruling either).",
"41. Mr Chahal appealed to the Court of Appeal. The appeal was heard on 28 July 1993 and dismissed on 22 October 1993 (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107).",
"The court held that the combined effect of the 1951 Convention and the Immigration Rules (see paragraphs 61-62 below) was to require the Home Secretary to weigh the threat to Mr Chahal's life or freedom if he were deported against the danger to national security if he were permitted to stay. In the words of Lord Justice Nolan:",
"\"The proposition that, in deciding whether the deportation of an individual would be in the public good, the Secretary of State should wholly ignore the fact that the individual has established a well-founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable. Of course there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well-being become virtually irrelevant. Nonetheless one would expect that the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favour of the former.\"",
"The Home Secretary appeared to have taken into account the evidence that the applicant might be persecuted and it was not possible for the court to judge whether his decision to deport was irrational or perverse because it did not have access to the evidence relating to the national security risk posed by Mr Chahal. As Lord Justice Neill remarked:",
"\"The court has the right to scrutinise a claim that a person should be deported in the interests of national security but in practice this scrutiny may be defective or incomplete if all the relevant facts are not before the court.\"",
"In the absence of evidence of irrationality or perversity, it was impossible under English law to set aside the Home Secretary's decision (see paragraph 66 below).",
"42. The Court of Appeal refused leave to appeal to the House of Lords, and this was also refused by the House of Lords on 3 March 1994.",
"43. Following the report of the Commission, the applicant applied for temporary release pending the decision of the European Court of Human Rights, by way of habeas corpus and judicial review proceedings in the Divisional Court (see paragraph 65 below). The Secretary of State opposed the application on the following grounds:",
"\"The applicant was detained in August 1990 and served with notice of intention to deport because the then Secretary of State was satisfied that he represented a substantial threat to national security. The Secretary of State remains satisfied that such a threat persists ... Given the reasons for the applicant's deportation, the Secretary of State remains satisfied that his temporary release from detention would not be justified. He has concluded the applicant could not be safely released, subject to restrictions, in view of the nature of the threat posed by him.\"",
"Judgment was given on 10 November 1995",
"(R. v. Secretary of State for the Home Department, ex parte Chahal, unreported). Mr Justice MacPherson in the Divisional Court rejected the application for habeas corpus, on the ground that \"the detention per se was plainly lawful because the Secretary of State [had] the power to detain an individual who [was] the subject of a decision to make a deportation order\". In connection with the application for judicial review of the Secretary of State's decision to detain Mr Chahal, the Judge remarked:",
"\"I have to look at the decision of the Secretary of State and judge whether, in all the circumstances, upon the information available, he has acted unlawfully, or with procedural impropriety, or perversely to the point of irrationality. I am wholly unable to say that there is a case for such a decision, particularly bearing in mind that I do not know the full material on which the decisions have been made ... [I]t is obvious and right that in certain circumstances the Executive must be able to keep secret matters which they deem to be necessary to keep secret ... There are no grounds, in my judgment, for saying or even suspecting that there are not matters which are present in the Secretary of State's mind of that kind upon which he was entitled to act ...\"",
"G. Current conditions in India and in Punjab",
"44. The current position with regard to the protection of human rights in India generally and in Punjab more specifically was a matter of dispute between the parties. A substantial amount of evidence was presented to the Court on this issue, some of which is summarised below.",
"1. Material submitted by the Government",
"45. The Government submitted that it appeared from Indian press reports collated by the Foreign and Commonwealth Office that the number of lives lost in Punjab from terrorism had decreased dramatically. In 1992 the figure was 4,000, in 1993 it was 394, and in 1994 it was 51. The former Chief Minister of Punjab, Mr Beant Singh, was assassinated in August 1995; that aside, there was little terrorist activity and only four terrorist-related deaths in the region in 1995.",
"46. Furthermore, democracy had returned to the State: almost all factions of the Akali Dal, the main Sikh political party, had united and were set to contest the next general election as one entity and the Gidderbaha by-election passed off peacefully, with a turn-out of 88%.",
"47. The United Kingdom High Commission continued to receive complaints about the Punjab police. However, in recent months these had related mainly to extortion rather than to politically-motivated abuses and they were consistently told that there was now little or no politically-motivated police action in Punjab.",
"48. Steps had been taken by the Indian authorities to deal with the remaining corruption and misuse of power in Punjab; for example, there had been a number of court judgments against police officers, a\" Lok Pal\" (ombudsman) had been appointed and the new Chief Minister had promised to \"ensure transparency and accountability\". The Indian National Human Rights Commission (\"NHRC\"), which had reported on Punjab (see below) continued to strengthen and develop.",
"2. The Indian National Human Rights Commission reports",
"49. The NHRC visited Punjab in April 1994 and reported as follows:",
"\"The complaints of human rights violations made to the Commission fall broadly into three categories. Firstly, there were complaints against the police, of arbitrary arrests, disappearances, custodial deaths and fake encounters resulting in killings ...",
"There was near unanimity in the views expressed by the public at large that terrorism has been contained ... [A] feeling was now growing that it was time for the police to cease operating under the cover of special laws. There were very strong demands for normalising the role and functioning of the police and for re-establishing the authority of the District Magistrates over the police. The impression that the Commission has gathered is that ... the Magistracy at District level is not at present in a position to inquire into complaints of human rights violations by the police. In the public mind there is a prevailing feeling of the police being above the law, working on its own steam and answerable to none ... The Commission recommends that the Government examine this matter seriously and ensure that normalcy is restored ...\"",
"50. In addition, in its annual report for 1994/1995, the NHRC recommended, as a matter of priority, a systematic reform, retraining and reorganisation of the police throughout India, having commented: \"The issue of custodial death and rape, already high in the priorities of the Commission, was set in the wider context of the widespread mistreatment of prisoners resulting from practices that can only be described as cruel, inhuman or degrading.\"",
"3. Reports to the United Nations",
"51. The reports to the United Nations in 1994 and 1995 of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and in 1994 of the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Working Group on enforced and involuntary disappearances recounted that human rights violations on the part of the security forces were widespread in India.",
"For example, in his 1995 report, the Special Rapporteur on torture commented on the practice of torture in police custody:",
"\"It is apparent that few incidents, in what is credibly alleged to be a widespread, if not endemic, phenomenon are prosecuted and even fewer lead to conviction of the perpetrators. It is to be noted that very many cases that come to the attention of the Special Rapporteur are those that result in death, in other words, those where torture may have been applied with the most extreme results. This must be a minority of cases of torture in the country [ India ].\"",
"4. The United States'Department of State reports",
"52. The 1995 United States'Department of State report on India told of human rights abuses perpetrated by the Punjab police acting outside their home State: \"Punjab police hit teams again in 1994 pursued Sikh militants into other parts of India. On June 24, Punjab police shot and killed Karnail Singh Kaili, a man they identified as a Sikh terrorist ... in West Bengal. The Government of West Bengal claimed that it had not been informed of the presence of Punjab police in West Bengal, seized Kaili's body and weapons and barred the departure of the police team until the Punjab Chief Minister apologised.\"",
"53. In contrast, the most recent Department of State report (March 1996) declared that insurgent violence had largely disappeared in Punjab and that there was visible progress in correcting patterns of abuse by the police. It continued:",
"\"Killings of Sikh militants by police in armed encounters appear to be virtually at an end. During the first eight months of [1995], only two persons were killed in police encounters. Attention was focused on past abuses in Punjab by press reports that hundreds of bodies, many allegedly those of persons who died in unacknowledged police custody, were cremated as 'unclaimed' during 1991-1993 or discovered at the bottom of recently drained canals.\"",
"5. The Immigration Appeal Tribunal",
"54. The United Kingdom Immigration Appeal Tribunal took account of allegations of the extra-territorial activities of the Punjab police in the case of Charan Singh Gill v. Secretary of State for the Home Department (14 November 1994, unreported), which related to an appeal by a politically active Sikh against the Secretary of State's refusal to grant him political asylum. The appellant drew the attention of the tribunal to a story in the Punjab Times of 10 May 1994, which reported the killing by the Punjab police of two Sikh fighters in West Bengal. The chairman of the tribunal remarked:",
"\"We should say that we do not accept [the representative of the Home Office's] view of this document, that it was more probably based on imaginative journalism than on fact. In our view, it affords valuable retrospective corroboration of the material set out above, demonstrating that the Punjab police are very much a law unto themselves, and are ready to track down anyone they regard as subversive, as and when the mood takes them, anywhere in India .\"",
"6. The reports of Amnesty International",
"55. In its report of May 1995, \"Punjab police: beyond the bounds of the law\", Amnesty International similarly alleged that the Punjab police were known to have carried out abductions and executions of suspected Sikh militants in other Indian States outside their jurisdiction. The Supreme Court in New Delhi had reportedly taken serious note of the illegal conduct of the Punjab police, publicly accusing them of \"highhandedness and tyranny\" and had on several occasions between 1993 and 1994 ordered investigations into their activities. Following the killing of a Sikh in Calcutta in May 1994, which provoked an angry reaction from the West Bengal State Government, the Union Home Secretary had convened a meeting of all director generals of police on 5 July 1994 to discuss concerns expressed by certain States following the intrusion by the Punjab police into their territories. One of the stated aims of the meeting was to try to work out a formula whereby the Punjab police would conduct their operations in cooperation with the respective State governments.",
"56. In its October 1995 report,\" India : Determining the fate of the 'disappeared' in Punjab \", Amnesty International claimed that high-profile individuals continued to \"disappear\" in police custody. Among the examples cited were the general secretary of the human rights wing of the Sikh political party, the Akali Dal, who was reportedly arrested on 6 September 1995 and had not been seen since."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. DEPORTATION",
"57. By section 3 (5) (b) of the Immigration Act 1971 (\"the 1971 Act\"), a person who is not a British citizen is liable to deportation inter alia if the Secretary of State deems this to be \"conducive to the public good\".",
"B. Appeal against deportation and the advisory panel procedure",
"58. There is a right of appeal to an adjudicator, and ultimately to an appeal tribunal, against a decision to make a deportation order (section 15 (1) of the 1971 Act) except in cases where the ground of the decision to deport was that the deportation would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature (section 15(3) of the 1971 Act).",
"59. This exception was maintained in the Asylum and Immigration Appeals Act 1993, which came into force in July 1993.",
"60. Cases in which a deportation order has been made on national security or political grounds are subject to a non-statutory advisory procedure, set out in paragraph 157 of the Statement of Changes in Immigration Rules (House of Commons Paper 251 of 1990).",
"The person concerned is given an opportunity to make written and/or oral representations to an advisory panel, to call witnesses on his behalf, and to be assisted by a friend, but he is not permitted to have legal representation before the panel. The Home Secretary decides how much information about the case against him may be communicated to the person concerned. The panel's advice to the Home Secretary is not disclosed, and the latter is not obliged to follow it.",
"C. The United Nations 1951 Convention on the Status of Refugees",
"61. The United Kingdom is a party to the United Nations 1951 Convention on the Status of Refugees (\"the 1951 Convention\"). A \"refugee\" is defined by Article 1 of the Convention as a person who is outside the country of his nationality due to \"a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion\".",
"Article 32 of the 1951 Convention provides:",
"\"1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law ...\"",
"Article 33 provides:",
"\" 1. No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.",
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.\"",
"62. Rule 161 of the Immigration Rules (House of Commons Paper 251 of 1990) provides that:",
"\"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees ...\"",
"63. In a case where a person to be deported for national security reasons claims asylum, the Secretary of State must balance the interest of the individual as a refugee against the risk to national security (R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration Appeal Reports, p. 107 - see paragraph 41 above).",
"D. Detention pending deportation",
"64. A person may be detained under the authority of the Secretary of State after the service upon him of a notice of intention to deport and pending the making of a deportation order, and also after the making of an order, pending his removal or departure from the country (paragraphs 2 (2) and (3) of Schedule III to the 1971 Act).",
"65. Any person in detention is entitled to challenge the lawfulness of his detention by way of a writ of habeas corpus. This is issued by the High Court to procure the production of a person in order that the circumstances of his detention may be inquired into. The detainee must be released if unlawfully detained (Habeas Corpus Act 1679 and Habeas Corpus Act 1816, section 1). Only one application for habeas corpus on the same grounds may be made by an individual in detention, unless fresh evidence is adduced in support (Administration of Justice Act 1960, section 14 (2)).",
"In addition, a detainee may apply for judicial review of the decision to detain him (see paragraphs 43 above and 66-67 below).",
"In conjunction with either an application for habeas corpus or judicial review, it is possible to apply for bail (that is, temporary release) pending the decision of the court.",
"E. Judicial review",
"66. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law.",
"These principles do not permit the court to make findings of fact on matters within the province of the Secretary of State or to substitute its discretion for the Minister's. The court may quash his decision only if he failed to interpret or apply English law correctly, if he failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King's Bench Reports, p. 223).",
"67. Where national security issues are involved, the courts retain a power of review, but it is a limited one because:",
"\"the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide, not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security\"",
"(Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases, p. 374, at p. 402).",
"See also R. v. Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All England Reports, p. 9, where a similar approach was taken by the Court of Appeal.",
"PROCEEDINGS BEFORE THE COMMISSION",
"68. In the application of 27 July 1993 (no. 22414/93) to the Commission (as declared admissible), the first applicant complained that his deportation to India would expose him to a real risk of torture or inhuman or degrading treatment in violation of Article 3 of the Convention (art. 3); that his detention had been too long and that the judicial control thereof had been ineffective and slow in breach of Article 5 paras. 1 and 4 (art. 5-1, art. 5-4); and that, contrary to Article 13 (art. 13), he had had no effective domestic remedy for his Convention claims because of the national security elements in his case. All the applicants also complained that the deportation of the first applicant would breach their right to respect for family life under Article 8 (art. 8), for which Convention claim they had no effective domestic remedy, contrary to Article 13 (art. 13).",
"69. On 1 September 1994 the Commission declared the application admissible. In its report of 27 June 1995 (Article 31) (art. 31) it expressed the unanimous opinion that there would be violations of Articles 3 and 8 (art. 3, art. 8) if the first applicant were deported to India; that there had been a violation of Article 5 para. 1 (art. 5-1) by reason of the length of his detention; and that there had been a violation of Article 13 (art. 13). The Commission also concluded (by sixteen votes to one) that it was not necessary to examine the complaints under Article 5 para. 4 of the Convention (art. 5-4).",
"The full text of the Commission's opinion and of the partly dissenting opinion contained in the report is reproduced as annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"70. At the hearing on 25 March 1996 the Government, as they had done in their memorial, invited the Court to hold that the deportation order, if implemented, would not amount to a violation of Articles 3 and 8 of the Convention (art. 3, art. 8), and that there had been no breaches of Articles 5 and 13 (art. 5, art. 13).",
"71. On the same occasion the applicants reiterated their requests to the Court, set out in their memorial, to find violations of Articles 3, 5, 8 and 13 (art. 3, art. 5, art. 8, art. 13) and to award them just satisfaction under Article 50 (art. 50).",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)",
"72. The first applicant complained that his deportation to India would constitute a violation of Article 3 of the Convention (art. 3), which states:",
"\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\" The Commission upheld this complaint, which the Government contested.",
"A. Applicability of Article 3 (art. 3) in expulsion cases",
"73. As the Court has observed in the past, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).",
"74. However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70, and the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103).",
"The Government contested this principle before the Commission but accepted it in their pleadings before the Court.",
"B. Expulsion cases involving an alleged danger to national security",
"75. The Court notes that the deportation order against the first applicant was made on the ground that his continued presence in the United Kingdom was unconducive to the public good for reasons of national security, including the fight against terrorism (see paragraph 25 above). The parties differed as to whether, and if so to what extent, the fact that the applicant might represent a danger to the security of the United Kingdom affected that State's obligations under Article 3 (art. 3).",
"76. Although the Government's primary contention was that no real risk of ill-treatment had been established (see paragraphs 88 and 92 below), they also emphasised that the reason for the intended deportation was national security. In this connection they submitted, first, that the guarantees afforded by Article 3 (art. 3) were not absolute in cases where a Contracting State proposed to remove an individual from its territory. Instead, in such cases, which required an uncertain prediction of future events in the receiving State, various factors should be taken into account, including the danger posed by the person in question to the security of the host nation. Thus, there was an implied limitation to Article 3 (art. 3) entitling a Contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed, if such removal was required on national security grounds. The Government based this submission in the first place on the possibility of implied limitations as recognised in the Court's case-law, particularly paragraphs 88 and 89 of its above-mentioned Soering judgment. In support, they furthermore referred to the principle under international law that the right of an alien to asylum is subject to qualifications, as is provided for, inter alia, by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).",
"In the alternative, the threat posed by an individual to the national security of the Contracting State was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This approach took into account that in these cases there are varying degrees of risk of ill-treatment. The greater the risk of ill-treatment, the less weight should be accorded to the threat to national security. But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to national security could weigh heavily in the balance to be struck between protecting the rights of the individual and the general interests of the community. This was the case here: it was at least open to substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his deportation.",
"77. The applicant denied that he represented any threat to the national security of the United Kingdom, and contended that, in any case, national security considerations could not justify exposing an individual to the risk of ill-treatment abroad any more than they could justify administering torture to him directly.",
"78. The Commission, with whom the intervenors (see paragraph 6 above) agreed, rejected the Government's arguments. It referred to the Court's Vilvarajah and Others judgment (cited at paragraph 73 above, p. 36, para. 108) and expressed the opinion that the guarantees afforded by Article 3 (art. 3) were absolute in character, admitting of no exception.",
"At the hearing before the Court, the Commission's Delegate suggested that the passages in the Court's Soering judgment upon which the Government relied (see paragraph 76 above) might be taken as authority for the view that, in a case where there were serious doubts as to the likelihood of a person being subjected to treatment or punishment contrary to Article 3 (art. 3), the benefit of that doubt could be given to the deporting State whose national interests were threatened by his continued presence. However, the national interests of the State could not be invoked to override the interests of the individual where substantial grounds had been shown for believing that he would be subjected to ill-treatment if expelled.",
"79. Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (see the above-mentioned Soering judgment, p. 34, para. 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, and also the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 42, para. 115).",
"80. The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion (see the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103). In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).",
"81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 (art. 3) is engaged.",
"82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security.",
"C. Application of Article 3 (art. 3) in the circumstances of the case",
"1. The point of time for the assessment of the risk",
"83. Although there were differing views on the situation in India and in Punjab (see paragraphs 87-91 below), it was agreed that the violence and instability in that region reached a peak in 1992 and had been abating ever since. For this reason, the date taken by the Court for its assessment of the risk to Mr Chahal if expelled to India is of importance.",
"84. The applicant argued that the Court should consider the position in June 1992, at the time when the decision to deport him was made final (see paragraph 35 above). The purpose of the stay on removal requested by the Commission (see paragraph 4 above) was to prevent irremediable damage and not to afford the High Contracting Party with an opportunity to improve its case. Moreover, it was not appropriate that the Strasbourg organs should be involved in a continual fact-finding operation.",
"85. The Government, with whom the Commission agreed, submitted that because the responsibility of the State under Article 3 of the Convention (art. 3) in expulsion cases lies in the act of exposing an individual to a real risk of ill-treatment, the material date for the assessment of risk was the time of the proposed deportation. Since Mr Chahal had not yet been expelled, the relevant time was that of the proceedings before the Court.",
"86. It follows from the considerations in paragraph 74 above that, as far as the applicant's complaint under Article 3 (art. 3) is concerned, the crucial question is whether it has been substantiated that there is a real risk that Mr Chahal, if expelled, would be subjected to treatment prohibited by that Article (art. 3). Since he has not yet been deported, the material point in time must be that of the Court's consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive.",
"2. The assessment of the risk of ill-treatment",
"(a) The arguments",
"( i ) General conditions",
"87. It was the applicant's case that the Government's assessment of conditions in India and Punjab had been profoundly mistaken throughout the domestic and Strasbourg proceedings. He referred to a number of reports by governmental bodies and by intergovernmental and non-governmental organisations on the situation in India generally and in Punjab in particular, with emphasis on those reports concerning 1994 and 1995 (see paragraphs 49-56 above) and argued that this material established the contention that human rights abuse in India by the security forces, especially the police, remained endemic.",
"In response to the Government's offer to return him to the part of India of his choice, he asserted that the Punjab police had abducted and killed militant Sikhs outside their home State in the past.",
"Although he accepted that there had been some improvements in Punjab since the peak of unrest in 1992, he insisted that there had been no fundamental change of regime. On the contrary, what emerged from the above reports was the continuity of the practices of the security agencies. In this respect he pointed to the fact that the director general of the Punjab police, who had been responsible for many human rights abuses during his term of office between 1992 and 1995, had been replaced upon his retirement by his former deputy and intelligence chief.",
"88. The Government contended that there would be no real risk of Mr Chahal being ill-treated if the deportation order were to be implemented and emphasised that the latter was to be returned to whichever part of India he chose, and not necessarily to Punjab. In this context they pointed out that they regularly monitored the situation in India through the United Kingdom High Commission in New Delhi. It appeared from this information that positive concrete steps had been taken and continued to be taken to deal with human rights abuses. Specific legislation had been introduced in this regard; the National Human Rights Commission, which performed an important function, continued to strengthen and develop; and steps had been taken by both the executive and judicial authorities to deal with the remaining misuse of power. The situation in India generally was therefore such as to support their above contention.",
"Furthermore, with reference to the matters set out in paragraphs 45-48 above, they contended that the situation in Punjab had improved substantially in recent years. They stressed that there was now little or no terrorist activity in that State. An ombudsman had been established to look into complaints of misuse of power and the new Chief Minister had publicly declared the government's intentions to stamp out human rights abuses. Legal proceedings had been brought against police officers alleged to have been involved in unlawful activity.",
"89. Amnesty International in its written submissions informed the Court that prominent Sikh separatists still faced a serious risk of \"disappearance\", detention without charge or trial, torture and extrajudicial execution, frequently at the hands of the Punjab police. It referred to its 1995 report which documented a pattern of human rights violations committed by officers of the Punjab police acting in under-cover operations outside their home State (see paragraph 55 above).",
"90. The Government, however, urged the Court to proceed with caution in relation to the material prepared by Amnesty International, since it was not possible to verify the facts of the cases referred to. Furthermore, when studying these reports it was tempting to lose sight of the broader picture of improvement by concentrating too much on individual cases of alleged serious human rights abuses. Finally, since the situation in Punjab had changed considerably in recent years, earlier reports prepared by Amnesty and other organisations were now of limited use.",
"91. On the basis of the material before it, the Commission accepted that there had been an improvement in the conditions prevailing in India and, more specifically, in Punjab. However, it was unable to find in the recent material provided by the Government any solid evidence that the Punjab police were now under democratic control or that the judiciary had been able fully to reassert its own independent authority in the region.",
"(ii) Factors specific to Mr Chahal",
"92. Those appearing before the Court also differed in their assessment of the effect which Mr Chahal's notoriety would have on his security in India.",
"In the Government's view, the Indian Government were likely to be astute to ensure that no ill-treatment befell Mr Chahal, knowing that the eyes of the world would be upon him. Furthermore, in June 1992 and December 1995 they had sought and received assurances from the Indian Government (see paragraph 37 above).",
"93. The applicant asserted that his high profile would increase the danger of persecution. By taking the decision to deport him on national security grounds the Government had, as was noted by Mr Justice Popplewell in the first judicial review hearing (see paragraph 34 above), in effect publicly branded him a terrorist. Articles in the Indian press since 1990 indicated that he was regarded as such in India, and a number of his relatives and acquaintances had been detained and ill-treated in Punjab because of their connection to him. The assurances of the Indian Government were of little value since that Government had shown themselves unable to control the security forces in Punjab and elsewhere. The applicant also referred to examples of well-known personalities who had recently \"disappeared\".",
"94. For the Commission, Mr Chahal, as a leading Sikh militant suspected of involvement in acts of terrorism, was likely to be of special interest to the security forces, irrespective of the part of India to which he was returned.",
"(b) The Court's approach",
"95. Under the Convention system, the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area (see the Cruz Varas and Others judgment mentioned at paragraph 74 above, p. 29, para. 74).",
"96. However, the Court is not bound by the Commission's findings of fact and is free to make its own assessment. Indeed, in cases such as the present the Court's examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 (art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see the Vilvarajah and Others judgment mentioned at paragraph 73 above, p. 36, para. 108).",
"97. In determining whether it has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3 (art. 3), the Court will assess all the material placed before it and, if necessary, material obtained of its own motion (see the above-mentioned Vilvarajah and Others judgment, p. 36, para. 107). Furthermore, since the material point in time for the assessment of risk is the date of the Court's consideration of the case (see paragraph 86 above), it will be necessary to take account of evidence which has come to light since the Commission's review.",
"98. In view of the Government's proposal to return Mr Chahal to the airport of his choice in India, it is necessary for the Court to evaluate the risk of his being ill-treated with reference to conditions throughout India rather than in Punjab alone. However, it must be borne in mind that the first applicant is a well-known supporter of Sikh separatism. It follows from these observations that evidence relating to the fate of Sikh militants at the hands of the security forces outside the State of Punjab is of particular relevance.",
"99. The Court has taken note of the Government's comments relating to the material contained in the reports of Amnesty International (see paragraph 90 above). Nonetheless, it attaches weight to some of the most striking allegations contained in those reports, particularly with regard to extrajudicial killings allegedly perpetrated by the Punjab police outside their home State and the action taken by the Indian Supreme Court, the West Bengal State Government and the Union Home Secretary in response (see paragraph 55 above). Moreover, similar assertions were accepted by the United Kingdom Immigration Appeal Tribunal in Charan Singh Gill v. Secretary of State for the Home Department (see paragraph 54 above) and were included in the 1995 United States' State Department report on India (see paragraph 52 above). The 1994 National Human Rights Commission's report on Punjab substantiated the impression of a police force completely beyond the control of lawful authority (see paragraph 49 above).",
"100. The Court is persuaded by this evidence, which has been corroborated by material from a number of different objective sources, that, until mid-1994 at least, elements in the Punjab police were accustomed to act without regard to the human rights of suspected Sikh militants and were fully capable of pursuing their targets into areas of India far away from Punjab.",
"101. The Commission found in paragraph 111 of its report that there had in recent years been an improvement in the protection of human rights in India, especially in Punjab, and evidence produced subsequent to the Commission's consideration of the case indicates that matters continue to advance.",
"In particular, it would appear that the insurgent violence in Punjab has abated; the Court notes the very substantial reduction in terrorist-related deaths in the region as indicated by the respondent Government (see paragraph 45 above). Furthermore, other encouraging events have reportedly taken place in Punjab in recent years, such as the return of democratic elections, a number of court judgments against police officers, the appointment of an ombudsman to investigate abuses of power and the promise of the new Chief Minister to \"ensure transparency and accountability\" (see paragraphs 46 and 48 above). In addition, the 1996 United States' State Department report asserts that during 1995 \"there was visible progress in correcting patterns of abuse by the [Punjab] police\" (see paragraph 53 above).",
"102. Nonetheless, the evidence demonstrates that problems still persist in connection with the observance of human rights by the security forces in Punjab. As the respondent Government themselves recounted, the United Kingdom High Commission in India continues to receive complaints about the Punjab police, although in recent months these have related mainly to extortion rather than to politically motivated abuses (see paragraph 47 above). Amnesty International alleged that \"disappearances\" of notable Sikhs at the hands of the Punjab police continued sporadically throughout 1995 (see paragraph 56 above) and the 1996 State Department report referred to the killing of two Sikh militants that year (see paragraph 53 above).",
"103. Moreover, the Court finds it most significant that no concrete evidence has been produced of any fundamental reform or reorganisation of the Punjab police in recent years. The evidence referred to above (paragraphs 49-56) would indicate that such a process was urgently required, and indeed this was the recommendation of the NHRC (see paragraph 49 above). Although there was a change in the leadership of the Punjab police in 1995, the director general who presided over some of the worst abuses this decade has only been replaced by his former deputy and intelligence chief (see paragraph 87 above).",
"Less than two years ago this same police force was carrying out well-documented raids into other Indian States (see paragraph 100 above) and the Court cannot entirely discount the applicant's claims that any recent reduction in activity stems from the fact that key figures in the campaign for Sikh separatism have all either been killed, forced abroad or rendered inactive by torture or the fear of torture. Furthermore, it would appear from press reports that evidence of the full extent of past abuses is only now coming to light (see paragraph 53 above).",
"104. Although the Court is of the opinion that Mr Chahal, if returned to India, would be most at risk from the Punjab security forces acting either within or outside State boundaries, it also attaches significance to the fact that attested allegations of serious human rights violations have been levelled at the police elsewhere in India. In this respect, the Court notes that the United Nations' Special Rapporteur on torture has described the practice of torture upon those in police custody as \"endemic\" and has complained that inadequate measures are taken to bring those responsible to justice (see paragraph 51 above). The NHRC has also drawn attention to the problems of widespread, often fatal, mistreatment of prisoners and has called for a systematic reform of the police throughout India (see paragraph 50 above).",
"105. Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem (see paragraph 104 above).",
"Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.",
"106. The Court further considers that the applicant's high profile would be more likely to increase the risk to him of harm than otherwise. It is not disputed that Mr Chahal is well known in India to support the cause of Sikh separatism and to have had close links with other leading figures in that struggle (see paragraphs 17 and 20 above). The respondent Government have made serious, albeit untested, allegations of his involvement in terrorism which are undoubtedly known to the Indian authorities. The Court is of the view that these factors would be likely to make him a target of interest for hard-line elements in the security forces who have relentlessly pursued suspected Sikh militants in the past (see paragraphs 49-56 above).",
"107. For all the reasons outlined above, in particular the attested involvement of the Punjab police in killings and abductions outside their State and the allegations of serious human rights violations which continue to be levelled at members of the Indian security forces elsewhere, the Court finds it substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he is returned to India.",
"Accordingly, the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3).",
"II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION (art. 5)",
"A. Article 5 para. 1 (art. 5-1)",
"108. The first applicant complained that his detention pending deportation constituted a violation of Article 5 para. 1 of the Convention (art. 5-1), which provides (so far as is relevant):",
"\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(f) the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation ...\"",
"109. Mr Chahal has been held in Bedford Prison since 16 August 1990 (see paragraph 25 above). It was not disputed that he had been detained \"with a view to deportation\" within the meaning of Article 5 para. 1 (f) (art. 5-1-f). However, he maintained that his detention had ceased to be \"in accordance with a procedure prescribed by law\" for the purposes of Article 5 para. 1 (art. 5-1) because of its excessive duration.",
"In particular, the applicant complained about the length of time (16 August 1990 - 27 March 1991) taken to consider and reject his application for refugee status; the period (9 August 1991 - 2 December 1991) between his application for judicial review of the decision to refuse asylum and the national court's decision; and the time required (2 December 1991 - 1 June 1992) for the fresh decision refusing asylum.",
"110. The Commission agreed, finding that the above proceedings were not pursued with the requisite speed and that the detention therefore ceased to be justified.",
"111. The Government, however, asserted that the various proceedings brought by Mr Chahal were dealt with as expeditiously as possible.",
"112. The Court recalls that it is not in dispute that Mr Chahal has been detained \"with a view to deportation\" within the meaning of Article 5 para. 1 (f) (art. 5-1-f) (see paragraph 109 above). Article 5 para. 1 (f) (art. 5-1-f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 para. 1 (f) (art. 5-1-f) provides a different level of protection from Article 5 para. 1 (c) (art. 5-1-c).",
"Indeed, all that is required under this provision (art. 5-1-f) is that \"action is being taken with a view to deportation\". It is therefore immaterial, for the purposes of Article 5 para. 1 (f) (art. 5-1-f), whether the underlying decision to expel can be justified under national or Convention law.",
"113. The Court recalls, however, that any deprivation of liberty under Article 5 para. 1 (f) (art. 5-1-f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para. 1 (f) (art. 5-1-f) (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 19, para. 48, and also the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 55, para. 36).",
"It is thus necessary to determine whether the duration of the deportation proceedings was excessive.",
"114. The period under consideration commenced on 16 August 1990, when Mr Chahal was first detained with a view to deportation. It terminated on 3 March 1994, when the domestic proceedings came to an end with the refusal of the House of Lords to allow leave to appeal (see paragraphs 25 and 42 above). Although he has remained in custody until the present day, this latter period must be distinguished because during this time the Government have refrained from deporting him in compliance with the request made by the Commission under Rule 36 of its Rules of Procedure (see paragraph 4 above).",
"115. The Court has had regard to the length of time taken for the various decisions in the domestic proceedings.",
"As regards the decisions taken by the Secretary of State to refuse asylum, it does not consider that the periods (that is, 16 August 1990 - 27 March 1991 and 2 December 1991 - 1 June 1992) were excessive, bearing in mind the detailed and careful consideration required for the applicant's request for political asylum and the opportunities afforded to the latter to make representations and submit information (see paragraphs 25-27 and 34-35 above).",
"116. In connection with the judicial review proceedings before the national courts, it is noted that Mr Chahal's first application was made on 9 August 1991 and that a decision was reached on it by Mr Justice Popplewell on 2 December 1991. He made a second application on 16 July 1992, which was heard between 18 and 21 December 1992, judgment being given on 12 February 1993. The Court of Appeal dismissed the appeal against this decision on 22 October 1993 and refused him leave to appeal to the House of Lords. The House of Lords similarly refused leave to appeal on 3 March 1994 (see paragraphs 34, 38 and 40-42 above).",
"117. As the Court has observed in the context of Article 3 (art. 3), Mr Chahal's case involves considerations of an extremely serious and weighty nature. It is neither in the interests of the individual applicant nor in the general public interest in the administration of justice that such decisions be taken hastily, without due regard to all the relevant issues and evidence.",
"Against this background, and bearing in mind what was at stake for the applicant and the interest that he had in his claims being thoroughly examined by the courts, none of the periods complained of can be regarded as excessive, taken either individually or in combination. Accordingly, there has been no violation of Article 5 para. 1 (f) of the Convention (art. 5-1-f) on account of the diligence, or lack of it, with which the domestic procedures were conducted.",
"118. It also falls to the Court to examine whether Mr Chahal's detention was \"lawful\" for the purposes of Article 5 para. 1 (f) (art. 5-1-f), with particular reference to the safeguards provided by the national system.",
"Where the \"lawfulness\" of detention is in issue, including the question whether \"a procedure prescribed by law\" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5), namely to protect the individual from arbitrariness.",
"119. There is no doubt that Mr Chahal's detention was lawful under national law and was effected \"in accordance with a procedure prescribed by law\" (see paragraphs 43 and 64 above). However, in view of the extremely long period during which Mr Chahal has been detained, it is also necessary to consider whether there existed sufficient guarantees against arbitrariness.",
"120. In this context, the Court observes that the applicant has been detained since 16 August 1990 on the ground, essentially, that successive Secretaries of State have maintained that, in view of the threat to national security represented by him, he could not safely be released (see paragraph 43 above). The applicant has, however, consistently denied that he posed any threat whatsoever to national security, and has given reasons in support of this denial (see paragraphs 31 and 77 above).",
"121. The Court further notes that, since the Secretaries of State asserted that national security was involved, the domestic courts were not in a position effectively to control whether the decisions to keep Mr Chahal in detention were justified, because the full material on which these decisions were based was not made available to them (see paragraph 43 above).",
"122. However, in the context of Article 5 para. 1 of the Convention (art. 5-1), the advisory panel procedure (see paragraphs 29-32 and 60 above) provided an important safeguard against arbitrariness. This panel, which included experienced judicial figures (see paragraph 29 above) was able fully to review the evidence relating to the national security threat represented by the applicant. Although its report has never been disclosed, at the hearing before the Court the Government indicated that the panel had agreed with the Home Secretary that Mr Chahal ought to be deported on national security grounds. The Court considers that this procedure provided an adequate guarantee that there were at least prima facie grounds for believing that, if Mr Chahal were at liberty, national security would be put at risk and thus that the executive had not acted arbitrarily when it ordered him to be kept in detention.",
"123. In conclusion, the Court recalls that Mr Chahal has undoubtedly been detained for a length of time which is bound to give rise to serious concern. However, in view of the exceptional circumstances of the case and the facts that the national authorities have acted with due diligence throughout the deportation proceedings against him and that there were sufficient guarantees against the arbitrary deprivation of his liberty, this detention complied with the requirements of Article 5 para. 1 (f) (art. 5-1-f).",
"It follows that there has been no violation of Article 5 para. 1 (art. 5-1).",
"B. Article 5 para. 4 (art. 5-4)",
"124. The first applicant alleged that he was denied the opportunity to have the lawfulness of his detention decided by a national court, in breach of Article 5 para. 4 of the Convention (art. 5-4), which provides:",
"\"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\"",
"He submitted that the reliance placed on national security grounds as justification for his detention pending deportation prevented the domestic courts from considering whether it was lawful and appropriate. However, he developed this argument more thoroughly in connection with his complaint under Article 13 of the Convention (art. 13) (see paragraphs 140-41 below).",
"125. The Commission was of the opinion that it was more appropriate to consider this complaint under Article 13 (art. 13) and the Government also followed this approach (see paragraphs 142-43 below).",
"126. The Court recalls, in the first place, that Article 5 para. 4 (art. 5-4) provides a lex specialis in relation to the more general requirements of Article 13 (art. 13) (see the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60). It follows that, irrespective of the method chosen by Mr Chahal to argue his complaint that he was denied the opportunity to have the lawfulness of his detention reviewed, the Court must first examine it in connection with Article 5 para. 4 (art. 5-4).",
"127. The Court further recalls that the notion of \"lawfulness\" under paragraph 4 of Article 5 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1), so that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see the E. v. Norway judgment of 29 August 1990, Series A no. 181-A, p. 21, para. 49).",
"The scope of the obligations under Article 5 para. 4 (art. 5-4) is not identical for every kind of deprivation of liberty (see, inter alia, the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 24, para. 60); this applies notably to the extent of the judicial review afforded. Nonetheless, it is clear that Article 5 para. 4 (art. 5-4) does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the \"lawful\" detention of a person according to Article 5 para. 1 (art. 5-1) (see the above-mentioned E. v. Norway judgment, p. 21, para. 50).",
"128. The Court refers again to the requirements of Article 5 para. 1 (art. 5-1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (art. 5-4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law.",
"129. The notion of \"lawfulness\" in Article 5 para. 1 (f) (art. 5-1-f) does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5 (art. 5) (see paragraph 118 above). The question therefore arises whether the available proceedings to challenge the lawfulness of Mr Chahal's detention and to seek bail provided an adequate control by the domestic courts.",
"130. The Court recollects that, because national security was involved, the domestic courts were not in a position to review whether the decisions to detain Mr Chahal and to keep him in detention were justified on national security grounds (see paragraph 121 above). Furthermore, although the procedure before the advisory panel undoubtedly provided some degree of control, bearing in mind that Mr Chahal was not entitled to legal representation before the panel, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraphs 30, 32 and 60 above), the panel could not be considered as a \"court\" within the meaning of Article 5 para. 4 (art. 5-4) (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 26, para. 61).",
"131. The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved (see, mutatis mutandis, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 17, para. 34, and the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, para. 58). The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13 (art. 13) (see paragraph 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.",
"132. It follows that the Court considers that neither the proceedings for habeas corpus and for judicial review of the decision to detain Mr Chahal before the domestic courts, nor the advisory panel procedure, satisfied the requirements of Article 5 para. 4 (art. 5-4). This shortcoming is all the more significant given that Mr Chahal has undoubtedly been deprived of his liberty for a length of time which is bound to give rise to serious concern (see paragraph 123 above).",
"133. In conclusion, there has been a violation of Article 5 para. 4 of the Convention (art. 5-4).",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)",
"134. All four of the applicants complained that if Mr Chahal were deported to India this would amount to a violation of Article 8 of the Convention (art. 8), which states (so far as is relevant):",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security ...\"",
"135. It was not contested by the Government that the deportation would constitute an interference with the Article 8 para. 1 (art. 8-1) rights of the applicants to respect for their family life.",
"The applicants, for their part, conceded that the interference would be \"in accordance with the law\" and would pursue a legitimate aim for the purposes of Article 8 para. 2 (art. 8-2).",
"The only material question in this connection was, therefore, whether the interference (that is, the deportation) would be \"necessary in a democratic society in the interests of national security\", within the meaning of Article 8 para. 2 (art. 8-2).",
"136. The Government asserted that Mr Chahal's deportation would be necessary and proportionate in view of the threat he represented to the national security of the United Kingdom and the wide margin of appreciation afforded to States in this type of case.",
"137. The applicants denied that Mr Chahal's deportation could be justified on national security grounds and emphasised that, if there were cogent evidence that he had been involved in terrorist activity, a criminal prosecution could have been brought against him in the United Kingdom.",
"138. The Commission acknowledged that States enjoy a wide margin of appreciation under the Convention where matters of national security are in issue, but was not satisfied that the grave recourse of deportation was in all the circumstances necessary and proportionate.",
"139. The Court recalls its finding that the deportation of the first applicant to India would constitute a violation of Article 3 of the Convention (art. 3) (see paragraph 107 above). Having no reason to doubt that the respondent Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to India, there would also be a violation of the applicants' rights under Article 8 of the Convention (art. 8).",
"IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)",
"140. In addition, the applicants alleged that they were not provided with effective remedies before the national courts, in breach of Article 13 of the Convention (art. 13), which reads:",
"\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"141. The applicants maintained that the only remedy available to them in respect of their claims under Articles 3, 5 and 8 of the Convention (art. 3, art. 5, art. 8) was judicial review, the advisory panel procedure (see paragraphs 29 and 60 above) being neither a \"remedy\" nor \"effective\".",
"They submitted, first, that the powers of the English courts to put aside an executive decision were inadequate in all Article 3 (art. 3) asylum cases, since the courts could not scrutinise the facts to determine whether substantial grounds had been shown for belief in the existence of a real risk of ill-treatment in the receiving State, but could only determine whether the Secretary of State's decision as to the existence of such a risk was reasonable according to the\" Wednesbury\" principles (see paragraph 66 above).",
"This contention had particular weight in cases where the executive relied upon arguments of national security. In the instant case, the assertion that Mr Chahal's deportation was necessary in the interests of national security entailed that there could be no effective judicial evaluation of the risk to him of ill-treatment in India or of the issues under Article 8 (art. 8). That assertion likewise prevented any effective judicial control on the question whether the applicant's continued detention was justified.",
"142. The Government accepted that the scope of judicial review was more limited where deportation was ordered on national security grounds. However, the Court had held in the past that, where questions of national security were in issue, an \"effective remedy\" under Article 13 (art. 13) must mean \"a remedy that is effective as can be\", given the necessity of relying upon secret sources of information (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 31, para. 69, and the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 32, para. 84).",
"Furthermore, it had to be borne in mind that all the relevant material, including the sensitive material, was examined by the advisory panel whose members included two senior judicial figures - a Court of Appeal judge and a former president of the Immigration Appeal Tribunal (see paragraph 29 above). The procedure before the panel was designed, on the one hand, to satisfy the need for an independent review of the totality of the material on which the perceived threat to national security was based and, on the other hand, to ensure that secret information would not be publicly disclosed. It thus provided a form of independent, quasi-judicial scrutiny.",
"143. For the Commission, the present case could be distinguished from that of Vilvarajah and Others (cited at paragraph 73 above, p. 39, paras. 122-26) where the Court held that judicial review in the English courts amounted to an effective remedy in respect of the applicants' Article 3 (art. 3) claims. Because the Secretary of State invoked national security considerations as grounds for his decisions to deport Mr Chahal and to detain him pending deportation, the English courts' powers of review were limited. They could not themselves consider the evidence on which the Secretary of State had based his decision that the applicant constituted a danger to national security or undertake any evaluation of the Article 3 (art. 3) risks. Instead, they had to confine themselves to examining whether the evidence showed that the Secretary of State had carried out the balancing exercise required by the domestic law (see paragraph 41 above).",
"144. The intervenors (see paragraph 6 above) were all of the view that judicial review did not constitute an effective remedy in cases involving national security. Article 13 (art. 13) required at least that some independent body should be appraised of all the facts and evidence and entitled to reach a decision which would be binding on the Secretary of State.",
"In this connection, Amnesty International, Liberty, the AIRE Centre and JCWI (see paragraph 6 above) drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.",
"145. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Vilvarajah and Others judgment cited at paragraph 73 above, p. 39, para. 122).",
"Moreover, it is recalled that in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (art. 13) (see, inter alia, the above-mentioned Leander judgment, p. 30, para. 77).",
"146. The Court does not have to examine the allegation of a breach of Article 13 taken in conjunction with Article 5 para. 1 (art. 13+5-1), in view of its finding of a violation of Article 5 para. 4 (art. 5-4) (see paragraph 133 above). Nor is it necessary for it to examine the complaint under Article 13 in conjunction with Article 8 (art. 13+8), in view of its finding concerning the hypothetical nature of the complaint under the latter provision (art. 8) (see paragraph 139 above).",
"147. This leaves only the first applicant's claim under Article 3 combined with Article 13 (art. 13+3). It was not disputed that the Article 3 (art. 3) complaint was arguable on the merits and the Court accordingly finds that Article 13 (art. 13) is applicable (see the above-mentioned Vilvarajah and Others judgment, p. 38, para. 121).",
"148. The Court recalls that in its Vilvarajah and Others judgment (ibid., p. 39, paras. 122-26), it found judicial review proceedings to be an effective remedy in relation to the applicants' complaints under Article 3 (art. 3). It was satisfied that the English courts could review a decision by the Secretary of State to refuse asylum and could rule it unlawful on the grounds that it was tainted with illegality, irrationality or procedural impropriety (see paragraph 66 above). In particular, it was accepted that a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take (ibid., para. 123).",
"149. The Court further recalls that in assessing whether there exists a real risk of treatment in breach of Article 3 (art. 3) in expulsion cases such as the present, the fact that the person is perceived as a danger to the national security of the respondent State is not a material consideration (see paragraph 80 above).",
"150. It is true, as the Government have pointed out, that in the cases of Klass and Others and Leander (both cited at paragraph 142 above), the Court held that Article 13 (art. 13) only required a remedy that was \"as effective as can be\" in circumstances where national security considerations did not permit the divulging of certain sensitive information. However, it must be borne in mind that these cases concerned complaints under Articles 8 and 10 of the Convention (art. 8, art. 10) and that their examination required the Court to have regard to the national security claims which had been advanced by the Government. The requirement of a remedy which is \"as effective as can be\" is not appropriate in respect of a complaint that a person's deportation will expose him or her to a real risk of treatment in breach of Article 3 (art. 3), where the issues concerning national security are immaterial.",
"151. In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3 (art. 3), the notion of an effective remedy under Article 13 (art. 13) requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (art. 3). This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State.",
"152. Such scrutiny need not be provided by a judicial authority but, if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective (see the above-mentioned Leander judgment, p. 29, para. 77).",
"153. In the present case, neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security considerations. On the contrary, the courts' approach was one of satisfying themselves that the Home Secretary had balanced the risk to Mr Chahal against the danger to national security (see paragraph 41 above). It follows from the above considerations that these cannot be considered effective remedies in respect of Mr Chahal's Article 3 (art. 3) complaint for the purposes of Article 13 of the Convention (art. 13).",
"154. Moreover, the Court notes that in the proceedings before the advisory panel the applicant was not entitled, inter alia, to legal representation, that he was only given an outline of the grounds for the notice of intention to deport, that the panel had no power of decision and that its advice to the Home Secretary was not binding and was not disclosed (see paragraphs 30, 32 and 60 above). In these circumstances, the advisory panel could not be considered to offer sufficient procedural safeguards for the purposes of Article 13 (art. 13).",
"155. Having regard to the extent of the deficiencies of both the judicial review proceedings and the advisory panel, the Court cannot consider that the remedies taken together satisfy the requirements of Article 13 in conjunction with Article 3 (art. 13+3).",
"Accordingly, there has been a violation of Article 13 (art. 13).",
"V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)",
"156. The applicants asked the Court to grant them just satisfaction under Article 50 of the Convention (art. 50), which provides as follows:",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"A. Non-pecuniary damage",
"157. The applicants claimed compensation for non-pecuniary damage for the period of detention suffered by Mr Chahal at a rate of £30,000-£50,000 per annum.",
"The Government submitted that a finding of violation would be sufficient just satisfaction in respect of the claim for non-pecuniary damage.",
"158. In view of its decision that there has been no violation of Article 5 para. 1 (art. 5-1) (see paragraph 123 above), the Court makes no award for non-pecuniary damage in respect of the period of time Mr Chahal has spent in detention. As to the other complaints, the Court considers that the findings that his deportation, if carried out, would constitute a violation of Article 3 (art. 3) and that there have been breaches of Articles 5 para. 4 and 13 (art. 5-4, art. 13) constitute sufficient just satisfaction.",
"B. Legal costs and expenses",
"159. In addition, the applicants claimed the reimbursement of the legal costs of the Strasbourg proceedings, totalling £77,755.97 (inclusive of value-added tax, \"VAT\").",
"With regard to the legal costs claimed, the Government observed that a substantial proportion of these were not necessarily incurred because the applicants had produced a large amount of peripheral material before the Court. They proposed instead a sum of £20,000, less legal aid.",
"160. The Court considers the legal costs claimed by the applicants to be excessive and decides to award £45,000 (inclusive of VAT), less the 21,141 French francs already paid in legal aid by the Council of Europe.",
"C. Default interest",
"161. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum."
] |
265 | Saadi v. Italy | 28 February 2008 (Grand Chamber) | This case concerned the risk of ill-treatment if the applicant were to be deported to Tunisia, where he claimed to have been sentenced in absentia in 2005 to 20 years’ imprisonment for membership of a terrorist organisation. | The Court observed that it could not underestimate the danger of terrorism and noted that States were facing considerable difficulties in protecting their communities from terrorist violence. However, that should not call into question the absolute nature of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. In the present case, there were substantial grounds for believing that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 if he were to be deported to Tunisia. The Court further noted that the Tunisian authorities had not provided the diplomatic assurances requested by the Italian Government. Lastly, even if the Tunisian authorities had given the diplomatic assurances, that would not have absolved the Court from the obligation to examine whether such assurances provided a sufficient guarantee that the applicant would be protected against the risk of treatment. Consequently, the Court found that the decision to deport the applicant to Tunisia would breach Article 3 if it were enforced. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"9. The applicant was born in 1974 and lives in Milan.",
"10. The applicant, who entered Italy at some unspecified time between 1996 and 1999, held a residence permit issued for “family reasons” by the Bologna police authority ( questura ) on 29 December 2001. This permit was due to expire on 11 October 2002.",
"A. The criminal proceedings against the applicant in Italy and Tunisia",
"11. On 9 October 2002 the applicant was arrested on suspicion of involvement in international terrorism (Article 270 bis of the Criminal Code), among other offences, and placed in pre-trial detention. He and five others were subsequently committed for trial in the Milan Assize Court.",
"12. The applicant faced four charges. The first of these was conspiracy to commit acts of violence (including attacks with explosive devices) in States other than Italy with the aim of spreading terror. It was alleged that between December 2001 and September 2002 the applicant had been one of the organisers and leaders of the conspiracy, had laid down its ideological doctrine and given the necessary orders for its objectives to be met. The second charge concerned falsification “of a large number of documents such as passports, driving licences and residence permits”. The applicant was also accused of receiving stolen goods and of attempting to aid and abet the entry into Italian territory of an unknown number of aliens in breach of the immigration legislation.",
"13. At his trial the prosecution called for the applicant to be sentenced to thirteen years ’ imprisonment. The applicant ’ s lawyer asked the Assize Court to acquit his client of international terrorism and left determination of the other charges to the court ’ s discretion.",
"14. In a judgment of 9 May 2005, the Milan Assize Court altered the legal classification of the first offence charged. It took the view that the acts of which he stood accused did not constitute international terrorism but criminal conspiracy. It sentenced the applicant to four years and six months ’ imprisonment for that offence, and for the forgery and receiving offences. It acquitted the applicant of aiding and abetting clandestine immigration, ruling that the acts he stood accused of had not been committed.",
"15. As a secondary penalty, the Assize Court banned the applicant from exercising public office for a period of five years and ordered that after serving his sentence he was to be deported.",
"16. In the reasons for its judgment, which ran to 331 pages, the Assize Court observed that the evidence against the applicant included intercepts of telephone and radio communications, witness statements and numerous false documents that had been seized. Taken together, this evidence proved that the applicant had been engaged in a conspiracy to receive and falsify stolen documents, an activity from which he derived his means of subsistence. On the other hand, it had not been established that the documents in question had been used by the persons in whose names they had been falsely made out to enter Italian territory illegally.",
"17. As regards the charge of international terrorism, the Assize Court firstly noted that a conspiracy was “terrorist” in nature where its aim was to commit violent acts against civilians or persons not actively participating in armed conflict with the intention of spreading terror or obliging a government or international organisation to perform or refrain from performing any act, or where the motive was political, ideological or religious in nature. In the present case it was not known whether the violent acts that the applicant and his accomplices were preparing to commit, according to the prosecution submissions, were to be part of an armed conflict or not.",
"18. In addition, the evidence taken during the investigation and trial was not capable of proving beyond a reasonable doubt that the accused had begun to put into practice their plan of committing acts of violence, or that they had provided logistical or financial support to other persons or organisations having terrorist aims. In particular, such evidence was not provided by the telephone and radio intercepts. These proved only that the applicant and his accomplices had links with persons and organisations belonging to Islamic fundamentalist circles, that they were hostile to “infidels” (and particularly those present in territories considered to be Muslim) and that their relational world was made up of “brothers” united by identical religious and ideological beliefs.",
"19. Using coded language the defendants and their correspondents had repeatedly mentioned a “football match”, intended to strengthen their faith in God. For the Assize Court it was quite obvious that this was not a reference to some sporting event but to an action applying the principles of the most radical form of Islam. However, it had not been possible to ascertain what particular “action” was meant or where it was intended to take place.",
"20. Moreover, the applicant had left Milan on 17 January 2002 and, after a stopover in Amsterdam, made his way to Iran, from where he had returned to Italy on 14 February 2002. He had also spoken of a “leader of the brothers” who was in Iran. Some members of the group to which the applicant belonged had travelled to “training camps” in Afghanistan and had procured weapons, explosives, and observation and video - recording equipment. In the applicant ’ s flat and those of his co-defendants, the police had seized propaganda about jihad – or holy war – on behalf of Islam. In addition, in telephone calls to members of his family in Tunisia made from the place where he was being detained in Italy, the applicant had referred to the “martyrdom” of his brother Fadhal Saadi; in other conversations he had mentioned his intention to take part in holy war.",
"21. However, no further evidence capable of proving the existence and aim of a terrorist organisation had been found. In particular, there was no evidence that the applicant and his accomplices had decided to channel their fundamentalist faith into violent action covered by the definition of a terrorist act. Their desire to join a jihad and eliminate the enemies of Islam could very well be satisfied through acts of war in the context of an armed conflict, that is, acts not covered by the concept of “terrorism”. It had not been established whether the applicant ’ s brother had really died in a suicide bombing or whether that event had been the “football match” which the defendants had repeatedly referred to.",
"22. The applicant and the prosecution appealed. The applicant asked to be acquitted of all the charges, while the prosecution wanted him to be convicted of international terrorism and aiding and abetting clandestine immigration as well.",
"23. In the prosecution ’ s appeal it was submitted that, according to the case-law of the Court of Cassation, the constituent elements of the crime of international terrorism were made out even where no act of violence had occurred, the existence of a plan to commit such an act being sufficient. In addition, an action could be terrorist in nature even if it was intended to be carried out in the context of an armed conflict, provided that the perpetrators were not members of the “armed forces of a State” or an “insurrectionary group”. In the present case, it was apparent from the documents in the file that the applicant and his associates had procured for themselves and others false documents, weapons, explosives and money in order to commit violent acts intended to affirm the ideological values of fundamentalist Islam. In addition, the accused had maintained contacts with persons and organisations belonging to the sphere of international terrorism and had planned a violent and unlawful action, due to be carried out in October 2002 as part of a “holy war” and in a country other than Italy. Only the defendants ’ arrest had prevented the plan from being implemented. Furthermore, at that time the armed conflict in Afghanistan had ended and the one in Iraq had not yet started.",
"24. The prosecution further submitted that the applicant ’ s brother, Mr Fadhal Saadi, had been detained in Iran; the applicant had visited him there in either January or February 2002. After his release Mr Fadhal Saadi had settled in France and stayed in contact with the applicant. He had then died in a suicide bombing, a fact which was a source of pride for the applicant and the other members of his family. That was revealed by the content of the telephone conversations intercepted in the prison where the applicant was being held.",
"25. Lastly, the prosecution requested leave to produce new evidence, namely letters and statements from a person suspected of terrorist activities and recordings transmitted by radio microphone from inside a mosque in Milan.",
"26. On 13 March 2006 the Milan Assize Court of Appeal asked the Constitutional Court to rule on the constitutionality of Article 593 § 2 of the Code of Criminal Procedure. As amended by Law no. 46 of 20 February 2006, that provision permitted the defence and the prosecution to appeal against acquittals only where, after the close of the first-instance proceedings, new evidence had come to light or been discovered. The Assize Court of Appeal stayed the proceedings pending a ruling by the Constitutional Court.",
"27. In judgment no. 26 of 6 February 2007, the Constitutional Court declared the relevant provisions of Italian law unconstitutional in that they did not allow the prosecution to appeal against all acquittals and because they provided that appeals lodged by the prosecuting authorities before the entry into force of Law no. 46 of 20 February 2006 were inadmissible. The Constitutional Court observed in particular that Law no. 46 did not maintain the fair balance that should exist in a criminal trial between the rights of the defence and those of the prosecution.",
"28. The first hearing before the Milan Assize Court of Appeal was set down for 10 October 2007.",
"29. In the meantime, on 11 May 2005, two days after delivery of the Milan Assize Court ’ s judgment, a military court in Tunis had sentenced the applicant in his absence to twenty years ’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. He was also deprived of his civil rights and made subject to administrative supervision for a period of five years. The applicant asserted that he had not learned of his conviction until its operative part was served on his father on 2 July 2005, when the judgment had already become final.",
"30. The applicant alleged that his family and his lawyer were not able to obtain a copy of the judgment by which the applicant had been convicted by the Tunis military court. In a letter of 22 May 2007 to the President of Tunisia and the Tunisian Minister of Justice and Human Rights, his representatives before the Court asked to be sent a copy of the judgment in question. The result of their request is not known.",
"B. The order for the applicant ’ s deportation and his appeals against its enforcement and for the issue of a residence permit and/or the granting of refugee status",
"31. On 4 August 2006, after being imprisoned uninterruptedly since 9 October 2002, the applicant was released.",
"32. On 8 August 2006 the Minister of the Interior ordered him to be deported to Tunisia, applying the provisions of Legislative Decree no. 144 of 27 July 2005 (entitled “Urgent measures to combat international terrorism” and later converted to statute law in the form of Law no. 155 of 31 July 2005 ). He observed that “it was apparent from the documents in the file” that the applicant had played an “active role” in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist Islamist cells in Italy and abroad. Consequently, his conduct was disturbing public order and threatening national security.",
"33. The Minister made it clear that the applicant could not return to Italy except on the basis of an ad hoc ministerial authorisation.",
"34. The applicant was taken to a temporary holding centre ( centro di permanenza temporanea ) in Milan. On 11 August 2006 the deportation order was confirmed by the Milan justice of the peace.",
"35. On 11 August 2006 the applicant requested political asylum. He alleged that he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and “political and religious reprisals”. By a decision of 16 August 2006, the Head of the Milan police authority ( questore ) declared the request inadmissible on the ground that the applicant was a danger to national security.",
"36. On 6 September 2006 the Director of the non-governmental organisation World Organisation Against Torture (known by its French initials – OMCT) wrote to the Italian Prime Minister to tell him the OMCT was “extremely concerned” about the applicant ’ s situation, and that it feared that, if deported to Tunisia, he would be tried again for the same offences he stood accused of in Italy. The OMCT also pointed out that, under the terms of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.",
"37. On 12 September 2006 the President of the non-governmental organisation Collective of the Tunisian Community in Europe appealed to the Italian government to “end its policy of mass deportation of Tunisian immigrants [who were] practising adherents of religious faiths”. He alleged that the Italian authorities were using inhuman methods and had grounded a number of decisions against Tunisians on their religious convictions. He went on to say that it was “obvious” that on arrival in Tunisia the persons concerned would be “tortured and sentenced to lengthy terms of imprisonment, on account of the fact that the Italian authorities falsely suspect them of terrorism”. The applicant ’ s name appeared in a list of persons at imminent risk of expulsion to Tunisia which was appended to the letter of 12 September 2006.",
"38. The Chief Constable ’ s decision of 16 August 2006 (see paragraph 35 above) was served on the applicant on 14 September 2006. The applicant did not appeal. However, on 12 September 2006 he had produced documents, including the OMCT ’ s letter of 6 September 2006 and the reports on Tunisia by Amnesty International and the US Department of State, requesting that these be passed on to the local refugee status board. On 15 September 2006 the Milan police authority informed the applicant orally that as his asylum request had been refused the documents in question could not be taken into consideration.",
"39. On 14 September 2006, pleading Rule 39 of the Rules of Court, the applicant asked the Court to suspend or annul the decision to deport him to Tunisia. On 15 September 2006 the Court decided to ask the Government to provide it with information, covering in particular the question whether the applicant ’ s conviction by the Tunis military court was final and also whether in Tunisian law there was a remedy whereby it was possible to obtain the reopening of proceedings or a retrial.",
"40. The Government ’ s reply was received at the Registry on 2 October 2006. According to the Italian authorities, in the event of a conviction in the absence of the accused, Tunisian law gave the person convicted the right to have the proceedings reopened. The Government referred in particular to a fax of 29 September 2006 from the Italian ambassador in Tunis stating that, according to the information supplied by the Director of International Cooperation at the Tunisian Ministry of Justice, the applicant ’ s conviction was not final since a person convicted in his absence could appeal against the relevant judgment.",
"41. On 5 October 2006 the Court decided to apply Rule 39. It asked the Government to stay the applicant ’ s expulsion until further notice.",
"42. The maximum time allowed for the applicant ’ s detention with a view to expulsion expired on 7 October 2006 and he was released on that date. However, on 6 October 2006 a new deportation order had been issued against him. On 7 October 2006 this order was served on the applicant, who was then taken back to the Milan temporary holding centre. As the applicant had stated that he had entered Italy from France, the new deportation order named France as the receiving country, not Tunisia. On 10 October 2006 the new deportation order was confirmed by the Milan justice of the peace.",
"43. On 3 November 2006 the applicant was released because fresh information indicated that it was impossible to deport him to France. On the same day the Milan Assize Court of Appeal ordered precautionary measures, to take effect immediately after the applicant ’ s release: he was forbidden to leave Italian territory and required to report to a police station on Mondays, Wednesdays and Fridays.",
"44. In the meantime, on 27 September 2006, the applicant had applied for a residence permit. On 4 December 2006 the Milan police authority replied that this application could not be allowed. It was explained that a residence permit could be issued “in the interests of justice” only at the request of the judicial authorities, where the latter considered that the presence of an alien in Italy was necessary for the proper conduct of a criminal investigation. The applicant had in any case been forbidden to leave Italian territory and was therefore obliged to stay in Italy. Moreover, to obtain a residence permit it was necessary to produce a passport or similar document.",
"45. Before the Court the applicant alleged that the Tunisian authorities had refused to renew his passport, so that all his further attempts to regularise his situation had come to nothing.",
"46. On a date which has not been specified, the applicant also asked the Lombardy RAC ( Regional Administrative Court ) to set aside the deportation order of 6 October 2006 and stay its execution.",
"47. In a decision of 9 November 2006, the Lombardy RAC held that there was no cause to rule on the application for a stay of execution and ordered the file to be transmitted to the Lazio RAC, which had the appropriate territorial jurisdiction.",
"48. The Lombardy RAC pointed out among other observations that the European Court of Human Rights had already requested a stay of execution of the deportation order and had consequently provided redress for any prejudice the applicant might allege.",
"49. According to the information supplied by the applicant on 29 May 2007, the proceedings in the Lazio RAC were still pending on that date.",
"50. On 1 8 January 2007 the applicant sent a memorial to the Milan police authority pointing out that the European Court of Human Rights had requested a stay of execution of his deportation on account of a real risk that he would be subjected to treatment contrary to Article 3 of the Convention. He therefore asked for a hearing before the local refugee status board with a view to being granted political asylum. According to the information supplied by the applicant on 11 July 2007, there had been no reply to his memorial by that date. In a memorandum of 20 July 2007, the Italian Ministry of the Interior stated that the memorial of 18 January 2007 could not be regarded as a new asylum request or as an appeal against the refusal given by the Milan Chief Constable on 16 August 2006 (see paragraph 35 above).",
"C. The diplomatic assurances requested by Italy from Tunisia",
"51. On 29 May 2007 the Italian embassy in Tunis sent a note verbale to the Tunisian government, requesting diplomatic assurances that if the applicant were to be deported to Tunisia he would not be subjected to treatment contrary to Article 3 of the Convention and would not suffer a flagrant denial of justice.",
"52. The note in question, written in French, reads as follows:",
"“The Italian embassy presents its compliments to the Ministry of Foreign Affairs and, following the meeting between the Italian ambassador Mr Arturo Olivieri and his Excellency the Minister of Justice and Human Rights Mr Béchir Tekkari, on the occasion of the visit of the Italian Minister of Justice Mr Clemente Mastella, on 28 May 2007, has the honour to request the invaluable cooperation of the Tunisian authorities in reaching a positive development in the following case.",
"The Tunisian national Nassim Saadi, born in Haidra ( Tunisia ) on 30 November 1974, was served with an order for his deportation from Italy, issued by the Ministry of the Interior on 8 August 2006.",
"After the above order had been issued, Mr Saadi lodged an application with the European Court of Human Rights on 14 September 2006, requesting and obtaining the decision to stay execution of the deportation order.",
"His application is based on the argument that, after he had been tried in his absence, he was sentenced to twenty years ’ imprisonment for terrorist-related offences, in a judgment given by the Tunis military court on 11 May 2005, served on Mr Saadi ’ s father on 2 July 2005. Because of his conviction, Mr Saadi contends that if the deportation order were to be enforced he would run the risk of being imprisoned in Tunisia on his arrival, on the basis of an unfair trial, and of being subjected to torture and inhuman and degrading treatment (please find enclosed a copy of the document by which the judgment was served supplied by Mr Saadi ).",
"In order to gather all the information necessary to assess the case, the European Court of Human Rights has asked the Italian government to supply a copy of the judgment and wishes to ascertain whether the Italian government intends, before deporting Mr Saadi, to seek diplomatic guarantees from the Tunisian government.",
"In the light of the foregoing, the Italian embassy, counting on the sensitivity of the Tunisian authorities on the question, has the honour to formulate, subject to the judicial prerogatives of the Tunisian State, the following urgent request for guarantees, as an indispensable formal prerequisite for the solution of the case now pending:",
"– if the information given by Mr Saadi concerning the existence of a judgment of 11 May 2005 in which he was found guilty by the Tunis military court corresponds to the truth, please send a full copy of the judgment in question (before 11 July 2007, the date of the hearing before the Court) and confirm that he has the right to appeal, and to be judged by an independent and impartial tribunal, in accordance with a procedure which, taken as a whole, complies with the principles of a fair and public trial;",
"– please give assurances that the fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded;",
"– please give assurances that if he were to be committed to prison he would be able to receive visits from his lawyers and members of his family.",
"In addition, the Italian embassy would be grateful if the Tunisian authorities would keep it informed of the conditions of Mr Saadi ’ s detention if he were to be committed to prison.",
"The way this case is determined will have significant implications for future security policy.",
"The information mentioned above, which the European Court of Human Rights has requested from the Italian government, are indispensable if the deportation is to go ahead.",
"To a certain extent, this case forms a precedent (in relation to numerous other pending cases) and – we are convinced – a positive response by the Tunisian authorities will make it easier to carry out further expulsions in future.",
"While perfectly aware of the delicate nature of the subject, the Italian embassy counts on the understanding of the Tunisian authorities, hoping that their reply will be in the spirit of effective action against terrorism, as part of the friendly relations between our two countries.”",
"53. The Italian government observed that such assurances had never before been requested from the Tunisian authorities.",
"54. On 4 July 2007 the Tunisian Ministry of Foreign Affairs sent a note verbale to the Italian embassy in Tunis. Its content was as follows:",
"“The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to the ambassador ’ s note verbale no. 2533 of 2 July 2007 concerning Nassim Saadi, currently imprisoned in Italy, has the honour to inform the ambassador that the Tunisian government confirms that it is prepared to accept the transfer to Tunisia of Tunisians imprisoned abroad once their identity has been confirmed, in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes.",
"The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards .”",
"55. A second note verbale, dated 10 July 2007, was worded as follows:",
"“The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to his note verbale no. 2588 of 5 July 2007, has the honour to confirm to him the content of the Ministry ’ s note verbale no. 511 of 4 July 2007.",
"The Minister for Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.",
"The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards. ”",
"D. The applicant ’ s family situation",
"56. According to the applicant, in Italy he lives with an Italian national, Mrs V., whom he married in a Muslim marriage ceremony. They have an eight-year-old child (born on 22 July 1999 ), an Italian national, who attends school in Italy. Mrs V. is unemployed and is not at present in receipt of any family allowance. She suffers from a type of ischaemia.",
"57. According to a memorandum of 10 July 2007 from the Ministry of the Interior, on 10 February 2007 the applicant married, in a Muslim marriage ceremony, a second wife, Mrs G. While officially resident in via Cefalonia, Milan, at the address occupied by Mrs V., the applicant is said to be separated de facto from both his wives. Since the end of 2006 he has been habitually resident in via Ulisse Dini, Milan, in a flat which he apparently shares with other Tunisians.",
"III. INTERNATIONAL TEXTS AND DOCUMENTS",
"A. The cooperation agreement on crime prevention signed by Italy and Tunisia and the association agreement between Tunisia, the European Union and its member States",
"61. On 13 December 2003 the Italian and Tunisian governments signed in Tunis an agreement on crime prevention in which the Contracting Parties undertook to exchange information (particularly with regard to the activities of terrorist groups, migratory flows and the production and use of false documents) and to work towards harmonisation of their domestic legislation. Articles 10 and 16 of the agreement read as follows:",
"Article 10",
"“The Contracting Parties, in accordance with their respective national legislation, agree that cooperation to prevent crime, as contemplated in the present agreement, will extend to searching for persons who have sought to evade justice and are responsible for criminal offences, and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition.”",
"Article 16",
"“The present agreement is without prejudice to rights and obligations arising from other international, multilateral or bilateral agreements entered into by the Contracting Parties.”",
"62. Tunisia also signed in Brussels, on 17 July 1995, an association agreement with the European Union and its member States. The agreement mainly concerns cooperation in the commercial and economic sectors. Article 2 provides that relations between the Contracting Parties, like the provisions of the agreement itself, must be based on respect for human rights and democratic principles, which form an “essential element” of the agreement.",
"B. Articles 1, 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees",
"63. Italy is a party to the 1951 Convention on the Status of Refugees. Articles 1, 32 and 33 of this Convention read as follows.",
"Article 1",
"“For the purposes of the present Convention, the term ‘ refugee ’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”",
"Article 32",
"“ 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.",
"2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...”",
"Article 33",
"“ 1. No Contracting State shall expel or return ( ‘ refouler ’ ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.",
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”",
"C. Guidelines of the Committee of Ministers of the Council of Europe",
"64. On 11 July 2002, at the 804 th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. Point IV of the guidelines, entitled “Absolute prohibition of torture”, reads as follows:",
"“The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.”",
"According to point XII § 2 of this document,",
"“It is the duty of a State that has received a request for asylum to ensure that the possible return ( ‘ refoulement ’ ) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.”",
"D. Amnesty International report on Tunisia",
"65. In a report concerning the situation in Tunisia in 2006, Amnesty International noted that following a large number of unfair trials at least twelve persons facing terrorism charges had been sentenced to lengthy prison sentences. Cases of torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials remained in prison after more than ten years and their state of health was said to have deteriorated. A group of 135 prisoners had been released as a result of an amnesty; they had been imprisoned for more than fourteen years after being convicted in unfair trials of belonging to the banned Islamist organisation Ennahda. Some of these prisoners were in poor health as a result of harsh prison conditions and torture they had undergone before standing trial.",
"66. In December 2006 there had been exchanges of fire to the south of Tunis between the police and alleged members of the Salafist Group for Preaching and Combat. Dozens of people had been killed and police officers had been injured.",
"67. In June 2006 the European Parliament had called for a meeting of the European Union and Tunisia to discuss the human rights situation in the country. In October 2006 the European Union had criticised the Tunisian government for cancelling an international conference on employment and the right to work.",
"68. As regards the “war on terror”, Amnesty International noted that no answer had been given by the Tunisian authorities to a request to visit the country made by the United Nations Special Rapporteur on the promotion and protection of human rights. Persons suspected of terrorist activities had been arrested and tried under what was described as the “controversial” 2003 anti-terrorism law. This anti-terrorism law and the Code of Military Justice had been used against Tunisians repatriated against their will from Bosnia and Herzegovina, Bulgaria and Italy, who were accused of belonging to terrorist organisations operating abroad. In such cases, sometimes decided by the military courts, lawyers ’ contact with their clients had been subjected to constantly increasing restrictions. The report mentioned cases of prisoners being held incommunicado or being tortured while in police custody; those referred to included Mr Hicham Saadi, Mr Badreddine Ferchichi (who had been deported from Bosnia and Herzegovina ) and six members of the “ Zarzis group”.",
"69. Amnesty International went on to criticise severe restrictions of the right to freedom of expression and a risk of harassment and violence against human rights defenders and their families, women wearing Islamic headscarves, and opponents and critics of the government.",
"70. On the question of the independence of the judiciary, Amnesty International noted that lawyers had publicly protested against a bill then before Parliament creating the “Higher Institute for Lawyers”, to be responsible for training future lawyers (which had previously been done by the Lawyers ’ Association and the Association of Tunisian Judges). In October 2006 the Head of the European Commission delegation in Tunis had publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary. Judges required the permission of the Secretary of State for Justice to leave the country.",
"71. On 19 June 2007 Amnesty International issued a statement concerning the applicant which reads as follows:",
"“ Amnesty International is concerned that Nassim Saadi would be at risk of torture or other grave human rights violations, should he be removed to Tunisia by the Italian authorities. This concern is based upon our continuous monitoring of human rights violations in Tunisia, including violations committed against people forcibly returned from abroad within the context of the ‘ war on terror ’.",
"Nassim Saadi was sentenced in absentia by the Permanent Military Court in Tunis to twenty years ’ imprisonment on charges of belonging to a terrorist organisation operating abroad at a time of peace and incitement to terrorism. Although he will be afforded a retrial before the same military court, military courts in Tunisia violate a number of guarantees for a fair trial. The military court is composed of a presiding judge and four counsellors. Only the president is a civilian judge. There are restrictions on the right to a public hearing. The location of the court in a military compound effectively limits access to the public. Individuals convicted before a military court can seek review only before the Military Court of Cassation. Civilian defendants have frequently reported that they had not been informed of their right to legal counsel or, particularly in the absence of a lawyer, have not realised that they were being questioned by an examining judge as he was in military uniform.",
"Defence lawyers have restrictions placed on access to their clients ’ files and are obstructed by not being given information about the proceedings such as the dates of hearings. Unlike the ordinary criminal courts, military courts do not allow lawyers access to a register of pending cases. ( For more information see Amnesty International report, Tunisia : the cycle of Injustice, AI Index MDE 30/001/2003. )",
"The Tunisian authorities also continue to use the controversial 2003 anti-terrorism law to arrest, detain and try alleged terrorist suspects. Those convicted have been sentenced to long prison terms. The anti-terrorism law and provisions of the Military Justice Code have also been used against Tunisian nationals who were returned to Tunisia against their will by authorities in other countries, including Bosnia and Herzegovina, Bulgaria and Italy. Those returned from abroad were arrested by the Tunisian authorities upon arrival and many of them were charged with links to ‘ terrorist organisations ’ operating outside the country. Some were referred to the military - justice system.",
"People who have been recently returned to Tunisia from abroad have been held in incommunicado detention, during which time they have been subjected to torture and other ill-treatment. They have also been sentenced to long prison sentences following unfair trials. In this connection, we provide the following case information for illustration:",
"– Houssine Tarkhani was forcibly returned from France to Tunisia on 3 June 2007 and detained on arrival. He was kept in secret detention in the State Security Department of the Ministry of Interior in Tunis for ten days, during which he was reportedly tortured or otherwise ill-treated. He is currently detained in Mornaguia prison awaiting further investigation. Houssine Tarkhani left Tunisia in 1999, and subsequently lived in Germany and, between 2000 and 2006, in Italy. He was arrested at the French-German border on 5 May 2007 as an irregular migrant, and held in a detention centre in the French city of Metz, pending the execution of an expulsion order. On 6 May he was brought before a judge, who authorised his detention for a further fifteen days, and informed him that he was being investigated by the French police on suspicion of ‘ providing logistical support ’ to a network which assists individuals to travel to Iraq to take part in the armed conflict with the US-led coalition forces there – an allegation which he denies. No charges were ever brought against him in France. On the same day, he made a claim for asylum and on 7 May 2007 was taken to the detention centre at Mesnil-Amelot to be detained while his asylum claim was processed. Houssine Tarkhani ’ s application for asylum had been assessed under an accelerated procedure ( ‘ procèdure prioritaire ’ ), and was rejected on 25 May. Although he appealed before the Commission des Recours des Réfugiés ( CRR ), Refugees Appeals Board, decisions taken under the accelerated procedure are not delayed while appeals to the CRR are considered, and people who have appealed may be forcibly returned before their appeal has been ruled on. Houssine Tarkhani also made appeals against the decision to the administrative court, but these have failed.",
"– In May 2004, Tunisian national Tarek Belkhirat was returned against his will to Tunisia from France after his request for asylum was rejected. He was arrested upon his return to Tunisia and charged under the 2003 anti-terrorism law. In February 2005, the Council of State ( Conseil d ’ Etat ), the highest administrative court in France, quashed the order to expel Tarek Belkhirat to Tunisia. In March 2005, he was sentenced in an unfair trial in Tunisia to ten years ’ imprisonment for membership of the Tunisian Islamist Front, charges for which he had already served a thirty-six month prison sentence in France. The sentence was reduced to five years on appeal in October 2005. He remains in prison in Tunisia.",
"– Tunisian national Adil Rahali was deported to Tunisia from Ireland in April 2004 after his application for asylum was refused. He was arrested on arrival in Tunisia and taken to the State Security Department of the Ministry of the Interior, where he was held in secret detention for several days and reportedly beaten, suspended from the ceiling and threatened with death. Adil Rahali, who had worked in Europe for more than a decade, was charged under the 2003 anti-terrorism law with belonging to a terrorist organisation operating abroad. No investigation is known to have been conducted into Adil Rahali ’ s alleged torture despite the fact that his lawyer filed a complaint. In March 2005, Adil Rahali was convicted on the basis of ‘ confessions ’ extracted under torture and sentenced under anti-terrorism legislation to ten years ’ imprisonment. This sentence was reduced to five years on appeal in September 2005. He remains in prison in Tunisia.",
"– In April 2004, seven young men were convicted, following an unfair trial, of membership of a terrorist organisation, possessing or manufacturing explosives, theft, using banned websites and holding unauthorised meetings. Two others were convicted in absentia. They were among dozens of people arrested in Zarzis, southern Tunisia, in February 2003, most of whom had been released the same month. The trial failed to respect international fair - trial standards. According to defence lawyers, most arrest dates in police reports were falsified, and in one case the place of arrest was falsified. There were no investigations into allegations that the defendants were beaten, suspended from the ceiling and threatened with rape. The convictions rested almost entirely on confessions extracted under duress. The defendants denied all charges brought against them in court. In July 2004 the Tunis Appeal Court reduced the sentences of six of them from nineteen years and three months to thirteen years ’ imprisonment. Their appeal was rejected by the Court of Cassation in December 2004. Another defendant, who was a minor at the time of the arrest, had his sentence reduced to twenty-four months in prison. They were all released in March 2006 following a presidential pardon.",
"The human rights violations that were perpetrated in these cases are typical of the sort of violations that remain current in Tunisia and affect people arrested inside the country as well as those returned from abroad in connection with alleged security or political offences. We consider, therefore, that Nassim Saadi would be at serious risk of torture and unfair trial if he were to be transferred to the custody of the Tunisian authorities. ”",
"72. A similar statement was issued by Amnesty International on 23 July 2007.",
"E. Report on Tunisia by Human Rights Watch",
"73. In its 2007 report on Tunisia, Human Rights Watch asserted that the Tunisian government used the threat of terrorism and religious extremism as a pretext for repression of their opponents. There were constant, credible allegations of the use of torture and ill-treatment against suspects in order to obtain confessions. It was also alleged that convicted persons were deliberately subjected to ill-treatment.",
"74. Although many members of the proscribed Islamist party Ennahda had been released from prison after an amnesty, there were more than 350 political prisoners. There had been mass arrests of young men, who had then been prosecuted under the 2003 anti-terrorism law. Released political prisoners were monitored very closely by the authorities, who refused to renew their passports and denied them access to most jobs.",
"75. According to Human Rights Watch, the judicial system lacked independence. Investigating judges questioned suspects without their lawyers being present, and the prosecution and judiciary turned a blind eye to allegations of torture, even when made through a lawyer. Defendants were frequently convicted on the basis of confessions made under duress or of statements by witnesses whom they had not been able to examine or have examined.",
"76. Although the International Committee of the Red Cross was continuing its programme of visits to Tunisian prisons, the authorities were refusing independent human rights defence organisations access to places of detention. The undertaking given in April 2005 to allow visits by Human Rights Watch had remained a dead letter.",
"77. The 2003 anti-terrorism law gave a very broad definition of “terrorism”, which could be used to prosecute persons merely for exercising their right to political dissent. Since 2005 more than 200 persons had been charged with planning to join jihadist movements abroad or organising terrorist activities. The arrests had been carried out by plain-clothes police and the families of those charged had been left without news of their relatives for days or sometimes weeks. During their trials these defendants had overwhelmingly claimed the police had extracted their statements under torture or threat of torture. These defendants had been sentenced to lengthy terms of imprisonment, but it had not been established that any of them had committed a specific act of violence or that they possessed weapons or explosives.",
"78. In February 2006, six persons accused of belonging to the “ Zarzis ” terrorist group had been granted a presidential amnesty after serving three years of their prison sentences They had been convicted on the basis of confessions which they alleged they had been forced into making, and of the fact that they had copied from the Internet instructions for making bombs. In 2005 Mr Ali Ramzi Bettibi had been sentenced to four years ’ imprisonment for cutting and pasting on an online forum a statement by an obscure group threatening bomb attacks if the President of Tunisia agreed to host a visit by the Prime Minister of Israel.",
"79. Lastly, Human Rights Watch reported that on 15 June 2006 the European Parliament had adopted a resolution deploring the repression of human rights activists in Tunisia.",
"F. Activities of the International Committee of the Red Cross",
"80. The International Committee of the Red Cross signed an agreement with the Tunisian authorities on 26 April 2005 giving them permission to visit prisons and assess conditions there. The agreement came one year after the authorities ’ decision to permit prison visits by only the International Committee of the Red Cross, an organisation – described as “strictly humanitarian” – which was required to maintain confidentiality about its findings. The agreement between the Tunisian government and the International Committee of the Red Cross concerned all prison establishments in Tunisia, “including remand prisons and police cells”.",
"81. On 29 December 2005 Mr Bernard Pfefferlé, the regional delegate of the International Committee of the Red Cross for Tunisia/North Africa, said that the Committee had been able to visit “without hindrance” about a dozen prisons and meet prisoners in Tunisia. Mr Pfefferlé said that, since the beginning of the inspection in June 2005, a team from the International Committee of the Red Cross had travelled to nine prisons, two of them twice, and had met half of the prisoners scheduled to be visited. Refusing to give further details, “on account of the nature of [their] agreements”, he nevertheless commented that the agreements in question authorised the International Committee of the Red Cross to visit all prisons and meet prisoners “quite freely and according to [its own] free choice”.",
"G. Report of the US Department of State on human rights in Tunisia",
"82. In its report on human rights practices published on 8 March 2006, the US Department of State criticised violations of fundamental rights by the Tunisian government.",
"83. Although there had been no politically motivated killings attributable to the Tunisian authorities, the report commented critically on two cases: Mr Moncef Ben Ahmed Ouahichi had died while in police custody and Mr Bedreddine Rekeii after being released from police custody.",
"84. Referring to the information gathered by Amnesty International, the US Department of State described the various forms of torture and ill-treatment inflicted by the Tunisian authorities in order to secure confessions. These included: electric shocks; forcing the victim ’ s head under water; beatings with fists, sticks and police batons; hanging from the cell bars until loss of consciousness; and cigarette burns. In addition, police officers sexually assaulted the wives of Islamist prisoners as a means of obtaining information or imposing a punishment.",
"85. However, these acts of torture were very difficult to prove, because the authorities refused to allow the victims access to medical treatment until the traces of ill-treatment had faded. Moreover, the police and the judicial authorities regularly refused to follow up allegations of ill-treatment, and confessions extracted under torture were regularly admitted as evidence by the courts.",
"86. Political prisoners and religious fundamentalists were the main targets of torture, which was usually inflicted while the victims were in police custody, particularly inside the Ministry of the Interior. The report referred to a number of cases of torture complained of in 2005 by non-governmental organisations, including the Conseil national pour les libertés en Tunisie and the Association pour la lutte contre la torture en Tunisie. In spite of complaints by the victims, no investigation into these abuses had been conducted by the Tunisian authorities and no agent of the State had been prosecuted.",
"87. The conditions of incarceration in Tunisian prisons fell well below international standards. Prisoners were held in cramped conditions and had to share beds and toilets. The risk of catching contagious diseases was very high on account of the overcrowding and the unhygienic conditions. Prisoners did not have access to appropriate medical treatment.",
"88. Political prisoners were often transferred from one establishment to another, which made visits by their families difficult and discouraged any investigation of their conditions of detention.",
"89. In April 2005, after lengthy negotiations, the Tunisian government had signed an agreement permitting the International Committee of the Red Cross to visit prisons. These visits had begun in June. In December the Red Cross declared that the prison authorities had respected the agreement and had not placed obstacles in the way of the visits.",
"90. On the other hand, the same possibility was not extended to Human Rights Watch, despite a verbal undertaking given in April 2005 by the Tunisian government. The government had also undertaken to prohibit prolonged periods of solitary confinement.",
"91. Although explicitly forbidden by Tunisian law, arbitrary arrest and imprisonment occurred. By law, the maximum period allowed for detention in police custody was six days, during which time the prisoners ’ families had to be informed. However, these rules were frequently ignored. Persons detained by the police were very often held incommunicado and the authorities extended the duration of police custody by recording a false date of arrest.",
"92. The Tunisian government denied that there were any political prisoners, so their exact number was impossible to determine. However, the Association internationale de soutien aux prisonniers politiques had drawn up a list of 542 political prisoners, nearly all of whom were said to be religious fundamentalists belonging to proscribed opposition movements who had been arrested for belonging to illegal organisations which endangered public order.",
"93. The report mentioned a wide range of infringements of the right to respect for the private and family life of political prisoners and their families, including censorship of correspondence and telephone calls and the confiscation of identity documents.",
"H. Other sources",
"94. Before the Court, the applicant produced a document from the Association internationale de soutien aux prisonniers politiques concerning the case of a young man named Hichem Ben Said Ben Frej who was alleged to have leapt from the window of a police station on 10 October 2006 shortly before he was due to be interrogated. Mr Ben Frej ’ s lawyer asserted that his client had been savagely tortured and held in the cells of the Ministry of the Interior in Tunis for twenty-four days.",
"Similar allegations are to be found in statements by local organisations for the defence of prisoners ’ and women ’ s rights and in numerous press cuttings."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Remedies against a deportation order in Italy",
"58. A deportation order is subject to appeal to the RAC, the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual ’ s fundamental rights (see, for example, Sardinas Albo v. Italy ( dec. ), no. 56271/00, ECHR 2004-I). An appeal to the Consiglio di Stato lies against decisions of the RAC.",
"59. In proceedings before the RAC, a stay of execution of the administrative decision complained of is not automatic, but may be granted if requested (see Sardinas Albo, cited above ). However, where – as in the applicant ’ s case – deportation has been ordered under the terms of Legislative Decree no. 144 of 2005, appeals to the RAC or the Consiglio di Stato cannot stay enforcement of the deportation order (Article 4 §§ 4 and 4 bis of the Legislative Decree).",
"B. Reopening of a trial conducted in the defendant ’ s absence in Tunisia",
"60. In the French translation produced by the Government, the relevant provisions of the Tunisian Code of Criminal Procedure read as follows:",
"Article 175",
"“Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment.",
"An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant ’ s copy.",
"If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days.",
"An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded.",
"The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal.",
"The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.”",
"Article 176",
"“Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.”",
"Article 180 (as amended by Law no. 2004-43 of 17 April 2000 )",
"“On appeal, execution of a judgment shall be stayed. Where the sentence is capital punishment, the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final.”",
"Article 213",
"“An appeal shall no longer be admissible, save where the appellant has been prevented from appealing by circumstances beyond his or her control, unless lodged within ten days of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of Article 175, or after expiry of the time allowed where judgment has been given by default, or after notification of the judgment likewise by default.",
"For State counsel and assistant State counsel at courts of appeal the time allowed for appeal shall be sixty days from the date of delivery of the judgment. In addition, on pain of inadmissibility, they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"95. The applicant submitted that enforcement of his deportation would expose him to the risk of treatment contrary to Article 3 of the Convention, which provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"96. The Government rejected that argument.",
"A. Admissibility",
"97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"98. The applicant submitted that it was “a matter of common knowledge” that persons suspected of terrorist activities, in particular those connected with Islamist fundamentalism, were frequently tortured in Tunisia. He had lodged a request for political asylum which had been refused by the Milan police authority without his being interviewed by the Italian refugee - status board. His attempts to obtain a residence permit had failed because the Tunisian consulate had refused to renew his passport, a document which the Italian authorities had asked him to produce. In the aggregate these circumstances amounted to “persecution”.",
"99. In addition, the investigations conducted by Amnesty International and by the US Department of State showed that torture was practised in Tunisia and that some persons deported there had quite simply disappeared. The numerous press articles and witness accounts he had produced condemned the treatment of political prisoners and their families.",
"100. The applicant ’ s family had received a number of visits from the police and was constantly subject to threats and provocations. His sister had twice tried to kill herself because of this.",
"101. In view of the serious risks to which he would be exposed if he were to be deported, the applicant considered that a mere reminder of the treaties signed by Tunisia could not be regarded as sufficient.",
"(b) The Government",
"102. The Government considered it necessary in the first place to provide an account of the background to the case. After the attacks of 11 September 2001 on the Twin Towers in New York, the Italian police, after it had been tipped off by intelligence services, uncovered an international network of militant Islamists, mainly composed of Tunisians, and placed it under surveillance. In May 2002 one of the leaders of this network, Mr Faraj Faraj Hassan, was arrested in London. The applicant had in the meantime left Milan for Iran, where he had spent time in an al- Qaeda training camp. He then returned to Italy, from where he frequently travelled to the Côte d ’ Azur. There, with the help of another Tunisian living in San Remo, Mr Imed Zarkaoui, he met his brother, Mr Fadhal Saadi.",
"103. Mr Zarkaoui had been given the job of finding fulminate of mercury to make detonators, while in Italy another accomplice was seeking information about night-filming cameras. Contact was established with Malaysia, where the group which was to carry out the attacks were standing by, and weapons were distributed to some militants. The Islamist cell to which the applicant belonged had embarked on a large-scale enterprise involving the production of false identity papers and their distribution to its members. The Government rejected the applicant ’ s argument that the offence – forgery – of which he had been convicted in Italy was not linked to the activity of terrorist groups; in that connection they pointed out that although the applicant and one of his co-defendants held legal residence permits they had provided themselves with false papers.",
"104. In that context, in October 2002, a number of European police forces launched “Operation Bazar”, as a result of which the applicant, Mr Zarkaoui and three other persons were arrested in Italy. Mr Fadhal Saadi managed to evade an attempt by the French police to arrest him. He was later to die in a suicide bombing in Iraq. When the applicant ’ s family informed him of this, he was delighted to learn that his brother had died a “martyr” in the war against “the infidel”. In the criminal proceedings against the applicant in Italy, the prosecution was convinced of three things: that the cell he belonged to was associated with al-Qaeda : that it was preparing an attack against an unidentified target; and that it was receiving instructions from abroad.",
"105. The Government next observed that a danger of death or the risk of being exposed to torture or to inhuman and degrading treatment must be corroborated by appropriate evidence. However, in the present case the applicant had neither produced precise information in that regard nor supplied detailed explanations, confining himself to describing an allegedly general situation in Tunisia. The “international sources” cited by the applicant were indeterminate and irrelevant. The same was true of the press articles he had produced, which came from unofficial circles with a particular ideological and political slant. As this information had not been checked, nor had an explanation been requested from the Tunisian government, it had no probative value. The provocations that the applicant ’ s family had allegedly suffered at the hands of the Tunisian police had nothing to do with what the applicant sought to prove before the Court.",
"106. The Amnesty International report cited three isolated cases, connected to the prevention of terrorism, which did not disclose “anything to be concerned about” (certain persons had been convicted of terrorism or were awaiting trial ). Regarding the allegations of ill-treatment, the report used the conditional tense or expressions such as “it seems”. There was therefore no certainty as to what had happened. The superficial nature of the report was “obvious” in the passages concerning Italy, which described as a human rights violation the deportation to Syria of Muhammad Said Al ‑ Shari, whose application to the Court had been rejected as manifestly ill-founded (see Al-Shari and Others v. Italy ( dec. ), no. 57/03, 5 July 2005 ).",
"107. The report by the US Department of State cited (a) the case of Moncef Louhici or Ouahichi, in which the investigation into a complaint by the family of a person allegedly killed by the police was still in progress; (b) the case of Bedreddine Rekeii or Reguii, which concerned crimes without a political motivation, and about which the Tunisian authorities had provided complete and reassuring details; (c) the case of the “ Bizerte ” group, in which five of the eleven defendants had been acquitted on appeal and the sentences of the other six had been considerably reduced; and (d) imprecisely identified cases to which vague reference was made or cases involving offences without political motivation or concerning freedom of expression or association.",
"108. The Government argued that these documents did not portray Tunisia as a kind of “hell”, the term used by the applicant. The situation in the country was, by and large, not very different from that in certain States which had signed the Convention.",
"109. The misfortunes of Mr Hichem Ben Said Ben Frej, cited by the applicant (see paragraph 9 4 above), were not relevant in the present case, since he had committed suicide.",
"110. The Government further observed that in numerous cases concerning expulsion to countries ( Algeria in particular) where subjection to ill- treatment as a regular practice seemed much more alarming than in Tunisia, the Court had rejected the applicants ’ allegations.",
"111. The Government also noted that Tunisia had ratified numerous international instruments for the protection of human rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all adopted by the United Nations. Under Article 32 of the Tunisian Constitution, international treaties took precedence over statute law. In addition, Italy and Tunisia had signed bilateral agreements on the question of emigration and combating transnational crime, including terrorism (see paragraph 61 above). That presupposed a common basis of respect for fundamental rights. The effectiveness of the agreements concerned would be jeopardised if the Court were to assert as a principle that Tunisians could not be deported.",
"112. Tunisia had also signed an association agreement with the European Union. A precondition for implementation of that agreement was respect for fundamental freedoms and democratic principles (see paragraph 62 above). The European Union was an international organisation which, according to the Court ’ s case-law, was presumed to provide a level of protection of fundamental rights “equivalent” to that provided by the Convention. Moreover, the Tunisian authorities permitted the International Committee of the Red Cross and “other international bodies” to visit prisons (see paragraphs 8 0 - 8 1 above). In the Government ’ s submission, it could be presumed that Tunisia would not default on its obligations under international treaties.",
"113. In Tunisia the terrorist danger was a grim reality, as shown by the explosion on the island of Djerba on 11 April 2002, for which al-Qaeda had claimed responsibility. To meet that danger the Tunisian authorities had, like some European States, enacted a law for the prevention of terrorism.",
"114. In these circumstances, the “benefit of the doubt” should be given to the State which intended to deport the applicant and whose national interests were threatened by his presence. In that connection, account had to be taken of the scale of the terrorist threat in the world of today and of the objective difficulties of combating it effectively, regard being had not only to the risks in the event of deportation but also to those which would arise in the absence of deportation. In any event, the Italian legal system provided safeguards for the individual – including the possibility of obtaining refugee status – which made expulsion contrary to the requirements of the Convention “practically impossible”.",
"115. At the hearing before the Court the Government had agreed in substance with the arguments of the third-party intervener (see paragraphs 1 17 -2 3 below), observing that, before the order for the applicant ’ s deportation was made, the applicant had neither mentioned the risk of ill-treatment in Tunisia, although he must have been aware of it, nor requested political asylum. His allegations had accordingly come too late to be credible.",
"116. Lastly, the Government observed that, even though there was no extradition request or a situation raising concern regarding respect for human rights ( such as, for example, the one described in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V), Italy had sought diplomatic assurances from Tunisia (see paragraphs 51 - 52 above). In response, Tunisia had given an undertaking to apply in the present case the relevant Tunisian law (see paragraphs 54 - 55 above), which provided for severe punishment of acts of torture or ill-treatment and extensive visiting rights for a prisoner ’ s lawyer and family.",
"2. The third-party intervener",
"117. The United Kingdom Government observed that in Chahal (cited above, § 81) the Court had stated the principle that, in view of the absolute nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not be weighed against the reasons (including the protection of national security) put forward by the respondent State to justify expulsion. Yet because of its rigidity that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures. The Government observed in that connection that it was unlikely that any State other than the one of which the applicant was a national would be prepared to receive into its territory a person suspected of terrorist activities. In addition, the possibility of having recourse to criminal sanctions against the suspect did not provide sufficient protection for the community.",
"118. The individual concerned might not commit any offence (or else, before a terrorist attack, only minor ones) and it could prove difficult to establish his involvement in terrorism beyond a reasonable doubt, since it was frequently impossible to use confidential sources or information supplied by intelligence services. Other measures, such as detention pending expulsion, placing the suspect under surveillance or restricting his freedom of movement, provided only partial protection.",
"119. Terrorism seriously endangered the right to life, which was the necessary precondition for enjoyment of all other fundamental rights. According to a well-established principle of international law, States could use immigration legislation to protect themselves from external threats to their national security. The Convention did not guarantee the right to political asylum. This was governed by the 1951 Convention relating to the Status of Refugees, which explicitly provided that there was no entitlement to asylum where there was a risk for national security or where the asylum seeker had been responsible for acts contrary to the principles of the United Nations. Moreover, Article 5 § 1 (f) of the Convention authorised the arrest of a person “against whom action is being taken with a view to deportation”, and thus recognised the right of States to deport aliens.",
"120. It was true that the protection against torture and inhuman or degrading treatment or punishment provided by Article 3 of the Convention was absolute. However, in the event of expulsion, the treatment in question would be inflicted not by the signatory State but by the authorities of another State. The signatory State was then bound by a positive obligation of protection against torture implicitly derived from Article 3. Yet in the field of implied positive obligations, the Court had accepted that the applicant ’ s rights must be weighed against the interests of the community as a whole.",
"121. In expulsion cases the degree of risk in the receiving country depended on a speculative assessment. The level required to accept the existence of the risk was relatively low and difficult to apply consistently. Moreover, Article 3 of the Convention prohibited not only extremely serious forms of treatment, such as torture, but also conduct covered by the relatively general concept of “degrading treatment”. And the nature of the threat presented by an individual to the signatory State also varied significantly.",
"122. In the light of the foregoing considerations, the United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in Chahal (which did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention ) had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations must influence the standard of proof required from the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned must prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. That interpretation was compatible with the wording of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which had been based on the case-law of the Court itself, and took account of the fact that in expulsion cases it was necessary to assess a possible future risk.",
"123. Lastly, the United Kingdom Government emphasised that Contracting States could obtain diplomatic assurances that an applicant would not be subjected to treatment contrary to the Convention. Although, in the above-mentioned Chahal case, the Court had considered it necessary to examine whether such assurances provided sufficient protection, it was probable, as had been shown by the opinions of the majority and the minority of the Court in that case, that identical assurances could be interpreted differently.",
"3. The Court ’ s assessment",
"(a) General principles",
"( i ) Responsibility of Contracting States in the event of expulsion",
"124. It is the Court ’ s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI).",
"125. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997 ‑ III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007 ).",
"126. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I).",
"127. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (see Ireland v. the United Kingdom, 1 8 January 1978, § 163, Series A no. 25; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005- III ). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct ( see Chahal, cited above, § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115- 16, ECHR 2006 -IX ).",
"( ii ) Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention",
"128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu ( see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court ’ s examination of the existence of a real risk must necessarily be a rigorous one ( see Chahal, cited above, § 96).",
"129. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 ( see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.",
"130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ( see Vilvarajah and Others, cited above, § 108 in fine ).",
"131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources, including the US Department of State ( see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005 -VI; and Al- Moayad v. Germany ( dec. ), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 ( see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany ( dec. ), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence ( see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68).",
"132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49).",
"133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court ( see Chahal, cited above, §§ 85 - 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004 ). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court ( see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive.",
"( iii ) The concepts of “torture” and “ inhuman or degrading treatment”",
"134. According to the Court ’ s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001- VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX ).",
"135. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV ).",
"136. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aydın v. Turkey, 25 September 1997, § 82, Reports 1997-VI, and Selmouni, cited above, § 96).",
"( b) Application of the above principles to the present case",
"137. The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence (see Chahal, cited above, § 79, and Shamayev and Others, cited above, § 335). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3.",
"138. Accordingly, the Court cannot accept the argument of the United Kingdom Government, supported by the Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (see paragraphs 12 0 and 12 2 above). Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 1 27 above). It must therefore reaffirm the principle stated in Chahal (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80, and paragraph 6 3 above ). Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (see paragraph 6 4 above).",
"139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of “risk” and “dangerousness” in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill - treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.",
"140. With regard to the second branch of the United Kingdom Government ’ s arguments, to the effect that where an applicant presents a threat to national security stronger evidence must be adduced to prove that there is a risk of ill-treatment ( see paragraph 12 2 above ), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present one that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 ( see paragraphs 12 5 and 13 2 above and the case-law cited in those paragraphs ).",
"141. The Court further observes that similar arguments to those put forward by the third-party intervener in the present case have already been rejected in the Chahal judgment cited above. Even if, as the Italian and United Kingdom Governments asserted, the terrorist threat has increased since that time, that circumstance would not call into question the conclusions of the Chahal judgment concerning the consequences of the absolute nature of Article 3.",
"142. Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment (see Jabari, cited above, § 39) in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 1 28 and 13 2 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.",
"143. In the present case the Court has had regard, firstly, to the reports of Amnesty International and Human Rights Watch on Tunisia ( see paragraphs 6 5 - 79 above ), which describe a disturbing situation. The conclusions of those reports are corroborated by the report of the US Department of State (see paragraphs 8 2 -9 3 above). In particular, these reports mention numerous and regular cases of torture and ill-treatment meted out to persons accused under the 2003 Prevention of Terrorism Act. The practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3. It is reported that allegations of torture and ill-treatment are not investigated by the competent Tunisian authorities, that they refuse to follow up complaints and that they regularly use confessions obtained under duress to secure convictions ( see paragraphs 68, 7 1, 7 3 -7 5, 8 4 and 8 6 above ). Bearing in mind the authority and reputation of the authors of these reports, the seriousness of the investigations by means of which they were compiled, the fact that on the points in question their conclusions are consistent with each other and that those conclusions are corroborated in substance by numerous other sources ( see paragraph 9 4 above ), the Court does not doubt their reliability. Moreover, the Government have not adduced any evidence or reports capable of rebutting the assertions made in the sources cited by the applicant.",
"144. The applicant was prosecuted in Italy for participation in international terrorism and the deportation order against him was issued by virtue of Legislative Decree no. 144 of 27 July 2005 entitled “urgent measures to combat international terrorism” ( see paragraph 32 above ). He was also sentenced in Tunisia, in his absence, to twenty years ’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. The existence of that sentence was confirmed by Amnesty International ’ s statement of 19 June 2007 ( see paragraph 7 1 above ).",
"145. The Court further notes that the parties do not agree on the question whether the applicant ’ s trial in Tunisia could be reopened. The applicant asserted that it was not possible for him to appeal against his conviction with suspensive effect, and that, even if he could, the Tunisian authorities could imprison him as a precautionary measure ( see paragraph 15 4 below ).",
"146. In these circumstances, the Court considers that in the present case substantial grounds have been shown for believing that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention if he were to be deported to Tunisia. That risk cannot be excluded on the basis of other material available to the Court. In particular, although it is true that the International Committee of the Red Cross has been able to visit Tunisian prisons, that humanitarian organisation is required to maintain confidentiality about its fieldwork ( see paragraph 8 0 above ) and, in spite of an undertaking given in April 2005, similar visiting rights have been refused to the independent human rights protection organisation Human Rights Watch ( see paragraphs 7 6 and 9 0 above ). Moreover, some of the acts of torture reported allegedly took place while the victims were in police custody or pre-trial detention on the premises of the Ministry of the Interior ( see paragraphs 8 6 and 9 4 above ). Consequently, the visits by the International Committee of the Red Cross cannot exclude the risk of subjection to treatment contrary to Article 3 in the present case.",
"147. The Court further notes that on 29 May 2007, while the present application was pending before it, the Italian government asked the Tunisian government, through the Italian embassy in Tunis, for diplomatic assurances that the applicant would not be subjected to treatment contrary to Article 3 of the Convention ( see paragraphs 51 - 52 above ). However, the Tunisian authorities did not provide such assurances. At first they merely stated that they were prepared to accept the transfer to Tunisia of Tunisians detained abroad (see paragraph 54 above). It was only in a second note verbale, dated 10 July 2007 (that is, the day before the Grand Chamber hearing), that the Tunisian Ministry of Foreign Affairs observed that Tunisian laws guaranteed prisoners ’ rights and that Tunisia had acceded to “the relevant international treaties and conventions ” ( see paragraph 55 above ). In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention.",
"148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.",
"149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of the Convention if it were enforced.",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"150. The applicant alleged that the criminal proceedings against him in Tunisia had not been fair and that his expulsion would expose him to the risk of a flagrant denial of justice. He relied on Article 6 of the Convention, the relevant parts of which provide :",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;",
"(b) to have adequate time and facilities for the preparation of his defence;",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”",
"151. The Government rejected that argument.",
"A. Admissibility",
"152. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"153. The applicant submitted that there was a serious risk of a denial of justice in Tunisia, where the minimal safeguards provided by international law were disregarded. All Tunisians accused in Italy of terrorist activities had had unfair trials after being repatriated. The applicant cited as typical in that respect the case of Mr Loubiri Habib, who had been acquitted of terrorism charges by the Italian courts but imprisoned in Tunisia and deprived of the possibility of seeing his family. Mr Loubiri had succeeded in obtaining “revision” of the Tunisian criminal proceedings which had resulted in his conviction, but the revision proceedings in the Military High Court in Tunis had resulted in a substantial increase in his sentence, from ten to thirty years ’ imprisonment.",
"154. The applicant further observed that the operative part of the judgment pronouncing his conviction in absentia had been served on his father, Mr Mohamed Cherif, on 2 July 2005. As a result, an appeal was no longer possible. In any event, even supposing that an appeal was possible and that such an appeal could stay execution of the sentence, that would not prevent the Tunisian authorities from imprisoning him as a precautionary measure. Moreover, in view of the serious infringements of political prisoners ’ civil rights in Tunisia, even the theoretical possibility of an appeal out of time could not exclude the risk of a flagrant denial of justice. In addition, it could not be known with certainty whether the court having jurisdiction to hear such an appeal would be a civilian or a military court of appeal.",
"155. Lastly, the applicant noted that the trial had been conducted in Tunisia in a military court and that the defendant in such proceedings had no possibility of adducing evidence, appointing a lawyer or addressing the court. Moreover, in the present case, neither his family nor his lawyers had been able to obtain a copy of the military court ’ s judgment ( see paragraph 30 above ).",
"(b) The Government",
"156. The Government asserted that because the file did not contain the original or a certified copy of the judgment against the applicant given in Tunisia it was impossible to check whether the information he had supplied was correct. They further submitted that an expulsion could engage the responsibility of the Contracting State under Article 6 only in exceptional circumstances, in particular where it was apparent that any conviction in the receiving country would amount to a “flagrant” denial of justice, which was not the position in the present case. On the other hand, a Contracting State was not required to establish whether proceedings conducted outside its territory satisfied each of the conditions laid down in Article 6. To rule otherwise would run counter to the current trend, encouraged by the Court itself, of strengthening international mutual assistance in the judicial field.",
"157. Under the relevant provisions of Tunisian law, a person convicted in his absence was entitled to have the proceedings reopened. The right to a reopening of the proceedings could be exercised in good time and in accordance with the requirements of Article 6. In particular, a person convicted in his absence who was living abroad could appeal within thirty days of the judgment in absentia being served. Where such service had not been effected, an appeal was always admissible and would stay execution of the sentence. Furthermore, the possibility of appealing against a conviction in absentia in Tunisia was confirmed by the declarations of the Director of International Cooperation at the Tunisian Ministry of Justice, which were reassuring on the point ( see paragraph 40 above ). In addition, the applicant had not adduced any evidence that in the light of the relevant rules of Tunisian law there had been shown to be substantial grounds for believing that his trial had been conducted in conditions contrary to the principles of fair trial.",
"158. Admittedly, in the States party to the Convention, trial before a military court might raise an issue under Article 6. However, in the case of an expulsion, an applicant had to prove that the denial of justice he feared would be “ flagrant ”. Such proof had not been produced in the present case. In addition, in December 2003 Tunisia had amended its domestic provisions relating to terrorist crimes committed by civilians, with the result that military judges had been replaced by civilian judges and an investigating judge took part in the investigation.",
"159. Lastly, the Government argued that the case of Mr Loubiri, cited by the applicant, was not relevant as an increase of the sentence on appeal was something that could occur even in those countries which were most scrupulously compliant with the Convention.",
"2. The Court ’ s assessment",
"160. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 6 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"161. The applicant alleged that his expulsion to Tunisia would deprive his partner and his son of his presence and assistance. He relied on Article 8 of the Convention, which provides :",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"162. The Government rejected that argument.",
"A. Admissibility",
"163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"164. The applicant observed that he had a family life in Italy which would be disrupted by enforcement of his expulsion : he had been living with Mrs V. since 1998 and their child had been born the following year. At that time he had already requested a residence permit, which was not issued until 2001. When that permit expired he had tried unsuccessfully to regularise his situation in order to find work. The applicant ’ s child attended school in Italy, which would not be possible in Tunisia, where the applicant himself was at risk of imprisonment or even death. Mrs V. had been out of work for about a year as she suffered from a serious form of ischaemia, which frequently made it necessary for her to be taken into hospital and also prevented her from travelling to Tunisia. The applicant was therefore the family ’ s sole means of financial support.",
"165. Any allegation concerning the applicant ’ s dangerousness to society had been refuted by his acquittal at first instance on the charge of international terrorism. As matters stood, this was the only judicial decision given in the proceedings against him, since the appeal proceedings were still pending. No new evidence had been adduced by the Government.",
"166. Moreover, the authorities had many other means to keep an eye on the applicant, expulsion being a measure to be adopted only in extreme cases. In that connection, the applicant pointed out that, since 3 November 2006, he had to report three times a week to a police station in Milan and that he had been forbidden to leave Italian territory ( see paragraph 43 above ). He had always complied with these obligations and had thus been able to obtain the return of his driving licence, which had been withdrawn from him – illegally in his submission – by the vehicle licensing authority ( motorizzazione civile ).",
"( b) The Government",
"167. The Government submitted that account had to be taken of the following facts: (a) the applicant ’ s family unit had been created at a time when his presence in Italy was unlawful, as he had had a son by an Italian woman in 1999, whereas the residence permit granted to him for family reasons had not been issued until 29 December 2001; ( b) the child had not attended school for very long in Italy and had had no significant exposure to Italian culture ( he was currently in the second year of primary school), so that he would be able to continue to attend school in Tunisia; ( c) the applicant had never lived with Mrs V. and his son : they had lived in Arluno, until 7 October 2002, when they moved to Milan; the applicant had never lived in Arluno, had often travelled abroad, had been arrested on 9 October 2002 and had married another woman in a Muslim ceremony ( see paragraph 57 above ); and ( d) the unit of family life could be preserved outside Italian territory, given that neither the applicant nor Mrs V. were in work in Italy.",
"168. The interference in the applicant ’ s family life had a legal basis in domestic law, namely Law no. 155 of 2005. In addition, account had to be taken of the negative influence which, because of his personality and the scale of the terrorist danger, the applicant represented for national security, and of the particular importance which should be attached to the prevention of serious crime and disorder. Any interference with the applicant ’ s right to respect for his family life therefore pursued a legitimate aim and was necessary in a democratic society.",
"169. In addition, no disproportionate or excessive burden had been imposed on the applicant ’ s family unit. In the context of crime - prevention policy, the legislature had to enjoy broad latitude to rule both on the existence of a problem of public interest and on the choice of arrangements for the application of an individual measure. Organised crime of a terrorist nature had reached, in Italy and in Europe, very alarming proportions, to the extent that the rule of law was under threat. Administrative measures ( such as deportation ) were indispensable for effective action against the phenomenon. Deportation presupposed the existence of “sufficient evidence” that the person under suspicion was supporting or assisting a terrorist organisation. The Minister of the Interior could not rely on mere suspicions but had to establish the facts and assess them objectively. All the material in the file suggested that that assessment, in the present case, had been correct and not arbitrary. The evidence used in the administrative deportation proceedings was the evidence taken in the course of public and adversarial proceedings in the Milan Assize Court. During those criminal proceedings the applicant had had the opportunity, through his lawyer, of raising objections and submitting the evidence he considered necessary to safeguard his interests.",
"2. The Court ’ s assessment",
"170. The Court observes its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 8 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7",
"171. The applicant submitted that his expulsion would be neither “necessary in the interests of public order” nor “grounded on reasons of national security”. He alleged a violation of Article 1 of Protocol No. 7, which provides :",
"“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:",
"(a) to submit reasons against his expulsion,",
"(b) to have his case reviewed, and",
"(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.",
"2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”",
"172. The Government rejected that argument.",
"A. Admissibility",
"173. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Arguments of the parties",
"(a) The applicant",
"174. The applicant submitted that he was lawfully resident in Italian territory. He argued that the condition of “lawful residence” should be assessed by reference to the situation at the time of the deportation decision. When arrested he had a valid residence permit, which expired only because he was in prison. He had subsequently attempted to regularise his situation, but had been prevented from doing so on account of his internment in the temporary holding centre.",
"175. The applicant ’ s situation could now be regularised, since the terrorism charges had not led to his conviction, he was cohabiting with his Italian partner and son, and was able to work. However, any administrative step he might take was blocked by the fact that he had no document which could prove his nationality and could never obtain one from the Tunisian authorities ( see paragraph 45 above ).",
"176. The applicant submitted that he was being prevented from exercising the rights listed in paragraph 1 ( a), ( b) and ( c) of Article 1 of Protocol No. 7, whereas his expulsion could not be regarded as “ necessary in the interests of public order” or “grounded on reasons of national security”. In that connection, he observed that the considerations of the Minister of the Interior were contradicted by the Milan Assize Court, which had acquitted him of international terrorism. In any event, the Government had not adduced any evidence of the existence of dangers to national security or public order, so that the decision to take him to a temporary holding centre with a view to his expulsion had been “unlawful”.",
"(b) The Government",
"177. The Government observed that, according to the explanatory report accompanying Article 1 of Protocol No. 7, the word “lawfully” referred to the domestic legislation of the State concerned. It was therefore domestic legislation which should determine the conditions a person had to satisfy in order for his or her presence within the national territory to be considered “lawful”. In particular, an alien whose admission and stay had been made subject to certain conditions, for example a fixed period, and who no longer complied with those conditions could not be regarded as being still “lawfully” present in the State ’ s territory. Yet after 11 October 2002, a date which preceded the deportation order, the applicant no longer had a valid residence permit authorising his presence in Italy. He was therefore not “an alien lawfully resident in the territory” within the meaning of Article 1 of Protocol No. 7, which was accordingly not applicable.",
"178. The Government further observed that the deportation order had been issued in accordance with the rules established by the relevant legislation, which required a simple administrative decision. The law in question was accessible, its effects were foreseeable and it offered a degree of protection against arbitrary interference by the public authorities. The applicant had also had the benefit of “minimum procedural safeguards”. He had been represented before the justice of the peace and the Regional Administrative Court by his lawyer, who had been able to submit reasons why he should not be deported. A deportation order had also been issued against the applicant when he was sentenced to four years and six months ’ imprisonment, and hence after adversarial judicial proceedings attended by all the safeguards required by the Convention.",
"179. In any event, the Government submitted that the applicant ’ s deportation was necessary in the interests of national security and the prevention of disorder. They argued that these requirements were justified in the light of the information produced in open court during the criminal proceedings against the applicant and pointed out that the standard of proof required for the adoption of an administrative measure (a deportation order issued by the Minister of the Interior by virtue of Legislative Decree no. 144 of 2005) was lower than that required to ground a criminal conviction. In the absence of manifestly arbitrary conclusions, the Court should endorse the national authorities ’ reconstruction of the facts.",
"2. The Court ’ s assessment",
"180. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 1 of Protocol No. 7.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"181. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"182. The applicant requested in the first place 20,000 euros (EUR) for loss of income. He observed that the deportation order had caused him to fall into an irregular situation, that he had been detained unlawfully in the Milan temporary holding centre for three months and that this had prevented him from carrying on his occupation.",
"183. In respect of non-pecuniary damage, the applicant claimed EUR 50,000 and suspension and/or annulment of the deportation order.",
"184. The Government observed that the deportation had not been enforced, so that the applicant, an alien who had contravened the laws of the Italian State and been lawfully detained after 9 October 2002, was not entitled to claim any pecuniary damage or loss of income.",
"185. On the question of non-pecuniary damage, the Government submitted that there was no causal link between the conduct of the Italian authorities and the sufferings and inconvenience alleged by the applicant. In any event, the applicant had not indicated what criteria had been used for the calculation of the sum claimed.",
"186. The Court reiterates that it is able to make awards by way of the just satisfaction provided for in Article 41 where the loss or damage on which a claim is based has been caused by the violation found, but that the State is not required to make good damage not attributable to it (see Perote Pellon v. Spain, no. 45238/99, § 57, 25 July 2002).",
"187. In the present case, the Court has found that enforcement of the applicant ’ s deportation to Tunisia would breach Article 3 of the Convention. On the other hand, it has not found any violations of the Convention on account of the deprivation of the applicant ’ s liberty or the fact that his presence in Italy was unlawful. Consequently, it can see no causal link between the violation found in the present judgment and the pecuniary damage alleged by the applicant.",
"188. With regard to the non-pecuniary damage sustained by the applicant, the Court considers that the finding that his deportation, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction.",
"B. Costs and expenses",
"189. The applicant did not request reimbursement of the costs and expenses incurred during the domestic proceedings. He did, however, request reimbursement of his costs relating to the proceedings before the Court, which, according to a bill from his lawyer, amounted to EUR 18,179.57.",
"190. The Government considered that amount excessive.",
"191. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II).",
"192. The Court considers the amount claimed for the costs and expenses relating to the proceedings before it excessive and decides to award EUR 8,000 under that head.",
"C. Default interest",
"193. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
266 | Babar Ahmad and Others v. the United Kingdom | 10 April 2012 | This case concerned six alleged international terrorists – Babar Ahmad, Syed Tahla Ahsan, Mustafa Kamal Mustafa (known more commonly as Abu Hamza), Adel Abdul Bary, Khaled Al-Fawwaz, and Haroon Rashid Aswat – who have been detained in the United Kingdom pending extradition to the United States of America. | The Court held that there would be no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention as a result of conditions of detention at ADX Florence (a “supermax” prison in the United States) if the five first applicants were extradited to the United States. The Court also found that there would be no violation of Article 3 as a result of the length of their possible sentences if these five applicants were extradited to the United States. The Court further decided to adjourn the examination of complaints made by Haroon Rashid Aswat, who suffers from schizophrenia, and to examine them at a later date under a new application number (see below). | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASES",
"A. The United States indictments",
"8. The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of three separate sets of criminal proceedings in the United States federal courts. The first set concerns the first applicant, Mr Ahmad, and the third applicant, Mr Ahsan. The second set of proceedings concerns the second applicant, Mr Aswat, and the fourth applicant, Abu Hamza. The third set of proceedings concerns the fifth applicant, Mr Bary, and the sixth applicant, Mr Al Fawwaz.",
"9. The details of each indictment are set out below. On the basis of each indictment, the United States Government requested each applicant’s extradition from the United Kingdom. Each applicant then contested his proposed extradition in separate proceedings in the English courts.",
"1. The indictment concerning the first and third applicants",
"10. The indictment against the first applicant was returned by a Federal Grand Jury sitting in Connecticut on 6 October 2004. It alleges the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. On 28 June 2006, a similar indictment was returned against the third applicant, save that the charge of money laundering was not included. For both indictments, the material support is alleged to have been provided through a series of websites, one of whose servers was based in Connecticut. The charge of conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country is based on two allegations: first, that the websites exhorted Muslims to travel to Chechnya and Afghanistan to defend those places; and second, that classified US Navy plans relating to a US naval battle group operating in the Straits of Hormuz in the Persian Gulf had been sent to the website. The plans are alleged to have discussed the battle group’s vulnerability to terrorist attack.",
"2. The indictment concerning the second and fourth applicants",
"11. The indictment against the fourth applicant was returned on 19 April 2004 by a Federal Grand Jury sitting in the Southern District of New York. It charges him with eleven different counts of criminal conduct. These cover three sets of facts.",
"12. The first group of charges relates to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers, Abu Al-Hassan, before and during the events in question.",
"13. The second group of charges relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, four counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. A further count charges him with conspiracy to supply goods and services to the Taliban.",
"14. The third group of charges relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Two counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation (Al Qaeda); a further two counts charge him with conspiracy to the main two counts.",
"15. On 12 September 2005, a superseding indictment was returned which named and indicted the second applicant as the fourth applicant’s alleged co-conspirator in respect of the Bly, Oregon charges (thus charging the second applicant with the same four counts as those faced by the fourth applicant in respect of the Bly, Oregon conspiracy). On 6 February 2006 a second superseding indictment was returned, which indicted a third man, Oussama Abdullah Kassir, as a co-conspirator in respect of the Bly, Oregon charges.",
"16. Mr Kassir was extradited to the United States from the Czech Republic in September 2007. On 12 May 2009, Mr Kassir was convicted on five counts relating to the Bly, Oregon jihad camp conspiracy. He was also convicted of a further six counts relating to the operation of terrorist websites. On 15 September 2009, after submissions from Mr Kassir and his defence counsel, the trial judge sentenced Mr Kassir to the maximum permissible sentence on each count. As a life sentence was the maximum permissible sentence on two of the counts, Mr Kassir had effectively been sentenced to a term of life imprisonment.",
"3. The indictment concerning the fifth and sixth applicants",
"17. In 1999 a Federal Grand Jury sitting in the Southern District of New York returned an indictment against Osama bin Laden and twenty other individuals, including the applicants, inter alia alleging various degrees of involvement in or support for the bombing of the United States embassies in Nairobi and Dar es Salaam in 1998.",
"18. The fifth applicant is charged with four counts: conspiracy to kill United States nationals, conspiracy to murder, conspiracy to destroy buildings and property, and conspiracy to attack national defence utilities.",
"19. The sixth applicant is charged with two hundred and eighty-five counts of criminal conduct, including over two hundred and sixty-nine counts of murder.",
"B. The applicants’ extradition proceedings in the United Kingdom",
"1. Extradition proceedings against the first applicant",
"20. The first applicant was arrested in London on 5 August 2004. On 23 March 2005, the United States Embassy in London issued Diplomatic Note No. 25. Where relevant, the note provides:",
"“Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.",
"The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.",
"Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”",
"21. Similar Diplomatic Notes were provided in respect of the other applicants in the course of their respective extradition proceedings.",
"22. At the extradition hearing before the Senior District Judge, the first applicant argued, inter alia, that, notwithstanding the Diplomatic Note, the risk of the death penalty being imposed remained since he could be tried on a superseding indictment. He further argued that he remained at risk of being designated as an “enemy combatant” pursuant to United States Military Order No. 1 and that he remained at risk of extraordinary rendition to a third country. He also argued that there was a substantial risk that he would be subjected to special administrative measures whilst in detention in a federal prison, which could involve, among other measures, solitary confinement in violation of Article 3 and restrictions on communication with lawyers in violation of Article 6 of the Convention.",
"23. In a decision given on 17 May 2005, the Senior District Judge ruled that the extradition could proceed and that, inter alia, the first applicant’s extradition would not be incompatible with his rights under the Convention. The Senior District Judge found that, on the basis of the Diplomatic Note, there was no risk that the death penalty would be imposed, that the applicant would be designated as an enemy combatant, or subjected to extraordinary rendition. The Senior District Judge found the application of special administrative measures to be the greatest ground for concern but concluded that, having regard to the safeguards accompanying such measures, there would be no breach of the applicant’s Convention rights.",
"24. The Senior District Judge concluded as follows:",
"“This is a difficult and troubling case. The [first applicant] is a British subject who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country. Nevertheless the Government of the United States are entitled to seek his extradition under the terms of the Treaty and I am satisfied that none of the statutory bars [to extradition] apply.”",
"Accordingly, he sent the case to the Secretary of State for his decision as to whether the first applicant should be extradited.",
"25. On 15 November 2005, the Secretary of State (Mr Charles Clarke) ordered the first applicant’s extradition. The first applicant appealed to the High Court (see paragraphs 29 et seq. below).",
"2. Extradition proceedings against the second applicant",
"26. On 7 August 2005 the second applicant was arrested in the United Kingdom, also on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003, following a request for his provisional arrest by the United States.",
"27. The Senior District Judge gave his decision in the second applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied, and sent the case to the Secretary of State for his decision as to whether the second applicant should be extradited.",
"28. On 1 March 2006, the Secretary of State ordered his extradition. The second applicant appealed to the High Court.",
"3. The first and second applicants’ appeals to the High Court",
"29. The first and second applicants’ appeals were heard together. In its judgment of 30 November 2006, the High Court rejected their appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”.",
"30. The first and second applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.",
"4. Extradition proceedings against the third applicant",
"31. The United States formally requested the extradition of the third applicant on 15 September 2006. The extradition hearing started on 20 November 2006 on which date the Senior District Judge determined that the third applicant was accused of offences for which he could be extradited. The case was then adjourned for evidence and argument, inter alia as to whether the third applicant’s extradition would be compatible with his Convention rights. The hearing resumed on 19 March 2007. By now bound by the High Court’s judgment in respect of the first and second applicants, the Senior District Judge found that the third applicant’s extradition would be compatible with the Convention. He accordingly sent the case to the Secretary of State for his decision as to whether the third applicant should be extradited.",
"32. On 14 June 2007, the Secretary of State (Dr John Reid) ordered that the extradition could proceed. The third applicant appealed against this decision to the High Court and also sought judicial review of the alleged failure of the Director of Public Prosecutions for England and Wales (“the DPP”) to consider whether he should instead be tried in the United Kingdom. He relied on guidance agreed between the Attorney General of the United States and his United Kingdom counterparts for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States (see paragraph 63 below).",
"33. On 10 April 2008 the High Court dismissed the third applicant’s human rights appeal, relying on its ruling in respect of the first and second applicants. In the same judgment, it also dismissed his application for judicial review, finding that the guidance had no application to the third applicant’s case. The guidance only applied to cases where there had been an investigation of the case in the United Kingdom and the DPP had been seized of the case as prosecutor.",
"34. On 14 May 2008 the High Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords and also refused leave to appeal to the House of Lords.",
"5. Extradition proceedings against the fourth applicant",
"35. The United States requested the fourth applicant’s extradition on 21 May 2004. He was arrested in London on 5 August 2004.",
"36. The extradition proceedings were adjourned when he was convicted of offences in the United Kingdom and sentenced to seven years’ imprisonment (see Mustafa (Abu Hamza) v. the United Kingdom (no. 1) (dec.), no. 31411/07, 18 January 2011). The extradition proceedings resumed when the criminal appeals process was concluded.",
"a. The District Court proceedings",
"37. When the case came before the Senior District Judge for his decision as to whether the extradition could proceed, the fourth applicant argued, inter alia, that his extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a “supermax” detention facility such as the United States Penitentiary, Administrative Maximum, Florence, Colorado (“ADX Florence”). In this connection, he also relied on his poor health, specifically his type-two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left, the amputation of both his forearms (which frequently led to infections through abrasions), psoriasis on much of his body, hyperhydrosis (excessive sweating). A violation of Article 3, he claimed, would also result from the imposition of special administrative measures.",
"38. The Senior District Judge, in his ruling of 15 November 2007, rejected all these submissions. In respect of detention at ADX Florence the Senior District Judge found that the fourth applicant’s poor health and disabilities would be considered and, at worst, he would only be detained there for a relatively short period of time. The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were, he was bound by the ruling of the High Court in respect of the first and second applicants. Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State (Ms Jacqui Smith) for her decision as to whether the fourth applicant should be extradited. She ordered his extradition on 7 February 2008. The fourth applicant appealed to the High Court against the Secretary of State’s decision and against the decision of the Senior District Judge.",
"b. The High Court proceedings",
"39. Before the High Court, the fourth applicant again relied on his submission that conditions of detention at ADX Florence would not comply with Article 3. He also argued that the length of the possible sentence he faced in the United States would be contrary to Article 3 of the Convention.",
"40. The High Court gave its judgment on 20 June 2008, dismissing the fourth applicant’s appeal. In relation to Article 3, the High Court found that, if convicted, the fourth applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a life sentence would be imposed. It found that this, of itself, would not constitute a breach of Article 3. On the question of the compatibility of detention at ADX Florence with Article 3, the High Court relied in particular on the understanding of the prison warden, Mr Robert Wiley, to the effect that if, after a full medical evaluation, it was determined that the fourth applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX Florence rather than at a medical centre. Accordingly, there was no risk of a violation of Article 3 on this ground. However, the High Court added:",
"“[T]he constitution of the United States of America guarantees not only ‘due process’, but it also prohibits ‘cruel and unusual punishment’. As part of the judicial process prisoners, including those incarcerated in Supermax prisons, are entitled to challenge the conditions in which they are confined, and these challenges have, on occasions, met with success.",
"...",
"We should add that, subject to detailed argument which may be advanced in another case, like Judge Workman [the Senior District Judge], we too are troubled about what we have read about the conditions in some of the Supermax prisons in the United States. Naturally, the most dangerous criminals should expect to be incarcerated in the most secure conditions, but even allowing for a necessarily wide margin of appreciation between the views of different civilised countries about the conditions in which prisoners should be detained, confinement for years and years in what effectively amounts to isolation may well be held to be, if not torture, then ill treatment which contravenes Article 3. This problem may fall to be addressed in a different case.”",
"41. The fourth applicant then applied to the High Court for a certificate of points of law of general public importance and for leave to appeal to the House of Lords. On 23 July 2008, the High Court refused both applications.",
"6. Extradition proceedings against the fifth and sixth applicants",
"42. The United States Government requested the fifth and sixth applicants’ extradition from the United Kingdom in July 1999 and September 1998 respectively.",
"a. The initial extradition proceedings",
"43. At his committal hearing before the District Court, the sixth applicant contended that extradition was only permitted within the terms of the 1972 USA-UK Extradition Treaty for offences committed within the jurisdiction of the requesting State, and not when that State exercised jurisdiction over extra-territorial offences. He further argued that there was “insufficient evidence” to prove a prima facie case, which was a requirement for extradition under the Treaty. As part of that submission, he sought to have excluded two anonymous witness statements, which had been provided by two informants, “CS/1” and “CS/2”, and which the United States Government relied upon as part of their case against him. It was later revealed that CS/1 was a Mr Al-Fadl who had given evidence against the certain of the applicants’ co-defendants during their trial in the United States.",
"44. In his ruling of 8 September 1999, the District Judge rejected these submissions. He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra-territorial offences. The District Judge was also satisfied that there were real grounds for fear if the identities of CS/1 and CS/2 were revealed. Thus, their anonymous witness statements could be admitted as evidence of a prima facie case. He further found that there was a case for the sixth applicant to answer.",
"45. The sixth applicant appealed to the High Court by way of an application for a writ of habeas corpus. The application was dismissed on 30 November 2000. The High Court held that it was necessary to show that the crime in respect of which extradition was sought was alleged to have been committed within the actual territory of the United States. The High Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the sixth applicant through an organisation called MCI; (b) the purchase by the sixth applicant of a satellite phone system in the United States and (c) the issuing, in pursuance of the conspiracy of fatwas and jihads, allegedly prepared with the concurrence of the sixth applicant in the United States and elsewhere. The High Court also found that the District Judge had not erred in admitting the evidence of CS/1 or in finding that there was a prima facie case against the sixth applicant. It did not consider it necessary reach any conclusions in respect of CS/2, judging CS/1’s evidence to be “far the most significant”.",
"46. While the sixth applicant’s appeal was pending before the High Court, a committal hearing before the District Court was held in respect of the fifth applicant. The District Judge gave his ruling on 25 April 2000 in which he reaffirmed the rulings he had made in respect of the sixth applicant and found that there was also a prima facie case against the fifth applicant.",
"47. The fifth applicant also appealed to the High Court and, on 2 May 2001, a differently constituted court dismissed his appeal. Again the High Court found that the District Judge had not erred in admitting the anonymous evidence of CS/1; that there was sufficient evidence against the fifth applicant for the extradition to proceed, and that the United States had jurisdiction to try him.",
"48. Both applicants appealed to the House of Lords. Their appeals were dismissed on 17 December 2001. The House of Lords found unanimously that the High Court had erred in its finding in respect of jurisdiction: it was sufficient that the offence for which extradition was sought was triable within the United States and an equivalent offence would be triable in the United Kingdom. Accordingly, the applicants were liable to extradition to the United States if a prima facie case of conspiracy to murder was established. This was the case for each applicant.",
"b. The Secretary of State’s decision, the United States’ assurances, and the fifth and sixth applicants’ appeal to the High Court",
"49. Between November 2001 and December 2005 there then followed voluminous representations by the fifth and sixth applicants to the Secretary of State as to why they should not be extradited to the United States.",
"50. In the course of these exchanges, on 19 April 2002 the President of the United States designated the sixth applicant as a “specially designated global terrorist”, which had the effect of placing him on a list of persons maintained by the United States Department of the Treasury and available on its website. This was done pursuant to Executive Order 13224 which enables the American assets of any person so designated to be blocked.",
"51. Subsequently, on 13 April 2004, the United States Embassy in London issued Diplomatic Note No. 018, which gave assurances that the United States Government would neither seek nor carry out the death penalty against the fifth and sixth applicants. It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants. On 18 January 2008, the United States Embassy issued Diplomatic Note No. 002, which assured the United Kingdom Government that, if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the United States authorities would return the men to the United Kingdom, if they so requested.",
"52. The Secretary of State (Ms Jacqui Smith) rejected the fifth and sixth applicants’ representations on 12 March 2008. She found that assurances given by the United States in the Diplomatic Note of 13 April 2004 could be relied upon and thus that the fifth and sixth applicants were not at risk of the death penalty, indefinite detention or trial by a military commission.",
"53. The fifth and sixth applicants also contended that they would not receive a fair trial in the United States owing to the unavailability of defence witnesses and evidence, adverse publicity, the possible imposition of special administrative measures before trial, and the sixth applicant’s designation as a global terrorist. The Secretary of State found none of these claims amounted to a “flagrant denial of justice” such as would act as a bar to extradition.",
"54. The Secretary of State accepted that there was a real possibility that they would be sentenced to life imprisonment if convicted but, relying on the House of Lords’ judgment in R (Wellington) v. Secretary of State for the Home Department (see paragraphs 64–72 below), found that this would not amount to a breach of Article 3 of the Convention.",
"55. The Secretary of State also considered that the conditions of the fifth and sixth applicants’ detention in the United States would not violate Article 3 whether they were subjected to “special administrative measures” before trial or detained at ADX Florence after trial. In the fifth applicant’s case, this conclusion was not affected by the fact that he suffered from a recurrent depressive disorder. There was also no risk that either applicant would be tortured, that evidence obtained by torture would be adduced at trial, or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third State.",
"56. The fifth and sixth applicants sought judicial review of the Secretary of State’s decision in the High Court. Before the High Court the applicants submitted that, if convicted, they would be detained at ADX Florence in violation of Article 3 of the Convention. In rejecting that contention, Lord Justice Scott Baker, delivering the judgment of the court on 7 August 2009, found that the decisions of the United States federal courts in Ajaj, Sattar and Wilkinson v. Austin (see paragraphs 109 and 110 below) demonstrated that there was effective judicial oversight of “supermax” prisons such as ADX. The fifth and sixth applicants would also have the possibility of entering ADX’s “step down program” (see paragraphs 84–88 below). He concluded:",
"(1) It is reasonably likely that the claimants will be subjected to [special administrative measures] and will be held in ADX Florence following trial.",
"(2) Neither [special administrative measures] (see Ahmad and Aswat ) or life without parole (see Wellington ) cross the article 3 threshold in the present case. Although near to the borderline the prison conditions at ADX Florence, although very harsh do not amount to inhuman or degrading treatment either on their own or in combination with [special administrative measures] and in the context of a whole life sentence.",
"(3) Whether the high article 3 threshold for inhuman or degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries in the world. The importance of maintaining extradition in a case where the fugitive would not otherwise be tried is an important factor in identifying the threshold in the present case.",
"Had the claimants persuaded me that there was no prospect that they would ever enter the step down procedure whatever the circumstances then in my view the article 3 threshold would be crossed. But that is not the case. The evidence satisfies me that the authorities will faithfully apply the criteria [for entry to the program] and that the stringency of the conditions it imposes will continue to be linked to the risk the prisoner presents. Further, there is access to the US courts in the event that the [Federal Bureau of Prisons] acts unlawfully.”",
"57. In respect of the fifth applicant’s submission that his recurrent depressive illness would deteriorate if extradited, the High Court considered that, to the extent that this affected his fitness to stand trial, this was a matter for the United States’ authorities and, if he were convicted, the fifth applicant’s mental health would be an important factor in deciding whether he should be sent to ADX Florence.",
"58. The High Court also rejected the fifth and sixth applicants’ submissions that they were at real risk of violations of Articles 3, 6 and 14 of the Convention by virtue of the imposition of special administrative measures, relying on its previous judgment in respect of the first and second applicants (see paragraph 29 above). Having regard to the Diplomatic Note of 18 January 2008, the High Court found that there was no real risk of refoulement to Egypt or Saudi Arabia by the United States. The High Court was also satisfied that the United States would honour the assurances it had given in the Diplomatic Note of 13 April 2004. The mere fact that the sixth applicant had been designated as a global terrorist by the President of the United States did not mean he was at risk of a flagrant denial of justice within the meaning of Article 6: the designation added little to what was already known about him; it would be made clear to the jury at any trial what had to be proved as regards the indictment.",
"59. The High Court also rejected the applicants’ submission that they should be tried in the United Kingdom, finding that this was neither viable nor appropriate and that any connection with the United Kingdom was “tenuous indeed”.",
"60. Although the High Court refused leave to appeal to the United Kingdom Supreme Court, it certified two questions of general public importance. The first question was whether prison conditions at ADX Florence were compatible with Article 3; the second question was whether the relativist approach to Article 3 adopted by the majority of the House of Lords in Wellington should apply where the issue under Article 3 was one of the compatibility of prison conditions with Article 3.",
"61. On 16 December 2009, the Supreme Court refused permission to appeal.",
"XIII. Extradition",
"1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism.",
"...",
"3. Extradition may not be granted when there is serious reason to believe that:",
"(i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment...”",
"4. The European Union Charter",
"80. Article 19 § 2 of the Charter of Fundamental Rights of the European Union provides:",
"“No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”"
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW ON ARTICLE 3 AND EXTRADTITION",
"A. Extradition arrangements between the United Kingdom and the United States",
"62. At the material time, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 treaty provided that extradition could be refused unless the requesting Party gave assurances satisfactory to the requested Party that the death penalty would not be carried out.",
"63. Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America was signed on 18 January 2007 by the Attorney General of the United States of America, Her Majesty’s Attorney General and also, for its application to Scotland, by the Lord Advocate. It sets out a series of measures that prosecutors in each State should take to exchange information and consult each other in such cases and to determine issues which arise from concurrent jurisdiction. A case with concurrent jurisdiction is defined as one which has the potential to be prosecuted in both the United Kingdom and the United States.",
"B. Relevant United Kingdom law on Article 3 and extradition: R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72",
"64. The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.",
"65. In giving judgment in the High Court ([2007] EWHC 1109 (Admin)), Lord Justice Laws found that there were “powerful arguments of penal philosophy” which suggested that risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention. He observed:",
"“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”",
"However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.",
"66. Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on 10 December 2008. Central to the appeal was paragraph 89 of this Court’s judgment in Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161, where the Court stated that considerations in favour of extradition:",
"“.. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.”",
"67. A majority of their Lordships, Lord Hoffmann, Baroness Hale and Lord Carswell, found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill-treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. However, insofar as Article 3 applied to inhuman and degrading treatment and not to torture, it was applicable only in a relativist form to extradition cases.",
"68. Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996 ‑ V, in which the Court stated that:",
"“It should not be inferred from the Court’s remarks [at paragraph 89 of Soering ] that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 (art. 3) is engaged.”",
"Lord Hoffmann stated:",
"“In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”",
"For Lord Hoffmann, paragraph 89 of Soering made clear that:",
"“...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”",
"He went on to state:",
"“A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (2005) SC 229 that in Scotland the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”",
"69. A minority of their Lordships, Lord Scott and Lord Brown, disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ‑ ..., had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering. He stated:",
"“There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading. That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries (see para 27 of Lord Hoffmann’s opinion)... the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ ( Soering, para 86) and article 3 does not bar removal to non-Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.",
"Nor is it to say that a risk of article 3 ill-treatment, the necessary pre-condition of an article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142:",
"‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment. .. in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof. .. before. .. finding that the enforcement of removal from the territory would be contrary to article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’”",
"Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.",
"70. However, despite these different views, none of the Law Lords found that the sentence likely to be imposed on Mr Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008 ‑ .... All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se, unless it were grossly or clearly disproportionate. Lord Brown in particular noted:",
"“Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber [in Kafkaris ] would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that article 3 may be engaged.”",
"Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. However, Lord Brown considered that, in a more compelling case, such as the mercy killing of a terminally ill relative, this Court “might well judge the risk of ill-treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on article 3 grounds”.",
"71. Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Lord Justice Laws’ view that life imprisonment without parole was lex talionis. Lord Hoffman, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence.",
"72. Wellington’s application to this Court was struck out on 5 October 2010, the applicant having indicated his wish to withdraw it ( Wellington v. the United Kingdom (dec.), no. 60682/08).",
"C. Relevant Canadian case-law",
"73. Section 1 of the Canadian Charter of Rights provides that the Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 7 provides:",
"“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”",
"Section 12 provides:",
"“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”",
"74. In United States v. Burns [2001] S.C.R. 283, Burns and another (the respondents) were to be extradited from Canada to the State of Washington to stand trial for murders allegedly committed when they were both eighteen. Before making the extradition order the Canadian Minister of Justice had not sought assurances that the death penalty would not be imposed. The Supreme Court of Canada found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section 12 but under section 7. However, the values underlying section 12 could form part of the balancing process engaged under section 7. The extradition of the respondents would, if implemented, deprive them of their rights of liberty and security of person as guaranteed by section 7. The issue was whether such a deprivation was in accordance with the principles of fundamental justice. While extradition could only be refused if it “shocked the conscience” an extradition that violated the principles of fundamental justice would always do so. The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought. The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice, even for young offenders over the age of eighteen. The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. The court held therefore that assurances were constitutionally required by section 7 in all but exceptional cases.",
"75. In United States of America v. Ferras; United States of America v. Latty, [2006] 2 SCR 77, the appellants were to be extradited to the United States to face charges of fraud (the Ferras case) or trafficking of cocaine (the Latty case). The appellants in the Latty case had argued that, if extradited and convicted they could receive sentences of ten years to life without parole and this would “shock the conscience”. In dismissing the appeals, the Supreme Court affirmed the balancing approach laid down in Burns to determining whether potential sentences in a requesting state would “shock the conscience”. The harsher sentences the appellants might receive if convicted in the United States were among the factors militating against their surrender but they had offered no evidence or case-law to back up their assertions that the possible sentences would shock the conscience of Canadians. The factors favouring extradition far outweighed those that did not.",
"D. Relevant international law on non-refoulement",
"1. The International Covenant on Civil and Political Rights",
"76. Article 7 of the ICCPR where relevant provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee’s most recent general comment on Article 7 (No. 20, of 10 March 1992) states the Committee’s view that: “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement .” (see also Chitat Ng v. Canada, CCPR/C/49/D/469/1991, 7 January 1994; A.J.R. v. Australia, CCPR/C/60/D/692/1996, 11 August 1997).",
"2. The United Nations Convention Against Torture",
"77. Article 3 § 1 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) provides:",
"“No State Party shall expel, return (\" refouler \") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture .”",
"78. Article 16 § 2 provides:",
"“The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.”",
"3. The Council of Europe Guidelines on Human Rights and the fight against terrorism",
"79. The above guidelines (adopted by the Committee of Ministers on 11 July 2002) contain the following provisions on refoulement and extradition:",
"“ XII. Asylum, return (‘ refoulement ’) and expulsion",
"...",
"2. It is the duty of a State that has received a request for asylum to ensure that the possible return (“ refoulement ”) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.",
"III. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON DETENTION AT ADX FLORENCE",
"A. Evidence of conditions of detention at ADX Florence",
"81. ADX Florence, a so-called “supermax” prison, is one of a number of detention facilities at the Federal Correctional Complex, Florence, Colorado. The parties have provided a great deal of evidence in respect of conditions of detention at ADX and general facilities at FCC Florence. The applicants have also submitted general evidence on “supermax” prisons and their effects on prisoners. The evidence submitted may be summarised as follows.",
"1. Evidence submitted by the Government",
"82. The Government submitted a series of declarations, which had been prepared specifically for the present proceedings by officials at FCC/ADX Florence. Thereafter, in reply to a series of questions put by the Court in respect of the number of inmates entering ADX’s “step down program”, two further letters were provided by the United States Department of Justice (see paragraphs 93–97 below).",
"a. The declarations",
"83. Mr Louis J. Milusnic, the associate warden of ADX, outlined the regime which was in place at the special security unit (H Unit) for inmates who were subjected to special administrative measures. All cells were single occupancy, had natural light and measured 75.5 square feet (approximately 7 square metres). Showers were not in-cell but on a shared range.",
"84. Inmates in H Unit were part of the special security unit program, which had three phases that inmates could work through.",
"In phase one, the “baseline” phase, inmates had two non-legal telephone calls per month, five social visits, access to a commissary list and art and hobby craft items, and escorted shower time three times a week. They had ten hours per week of out-of-cell recreation time (increased from five hours per week in September 2009). As of November 2010, twelve inmates were in phase one.",
"In phase two, conditions were the same save that three non-legal telephone calls per month were permitted, the commissary list was expanded and inmates were permitted to go to the shower unescorted, five times per week. Eleven inmates were in phase two.",
"In phase three, group recreation was permitted five days a week (for a minimum of one and a half hours per day, in groups of four) and the number of non-legal telephone calls increased to four. Inmates ate one meal together and engaged in recreational activities together for one and a half hours per day. Access to showers was unrestricted and the commissary list was further expanded. Four inmates, who had all been convicted of terrorist activity, had progressed to phase three.",
"Advancement through the phases was authorised by a Program Screening Committee, whose six-monthly reviews the inmate attended. The Committee’s task was to determine whether an inmate could function with additional privileges without posing a security or safety risk. Advancement was subject to various factors including good conduct, participation in programmes recommended by the Unit, positive behaviour and respectful conduct and positive overall institutional adjustment.",
"85. Recreation alternated daily between outside and inside recreation. Outdoor recreation took place in adjacent individual recreation areas, which allow an inmate full visual access to the recreation yard and other inmates. Conversations could be carried on in a normal tone of voice and most inmates spent the majority of their recreation time talking to other inmates. Each individual outdoor area measured 12 feet by 20 feet (approximately 3.66 metres by 6 metres) and contained pull-up bars and footballs. Individual indoor areas measured 14 feet by 10 feet. Recreation had only been cancelled once in thirteen months for security reasons.",
"86. There was no limit on inmates’ correspondence with family members and special administrative measures could be modified to allow correspondence beyond the immediate family. There were also no limits on correspondence with legal representatives and access to a law library for up to two hours at a time. Inmates received a free, daily copy of USA Today. They had access to fifty television channels and seven FM radio channels. They could speak to inmates in adjacent cells using the air ventilation as a voice conduit. They had regular contact with prison staff – a member of the Unit Team visited every inmate every day – and there were visits from medical, education, religious service and psychology staff, including two Arabic speakers. Inmates could request to speak with an officer at any time.",
"87. Mr Milusnic also outlined the criteria and procedures for placement at ADX Florence. An inmate either had to: (i) create a security risk at other correctional facilities; or (ii) as a result of his or her status, be unable to be safely housed in the general population of another institution. Referral to ADX was initiated by the staff at the inmate’s current institution. If the warden of that institution, the relevant regional director and the Bureau’s designation centre all concurred, a hearing took place. The inmate was given written notice at least twenty-four hours prior to the hearing. After the hearing, a report with a recommendation was prepared and given to the inmate. The final decision was taken on the basis of the report by an Assistant Director of the Federal Bureau of Prisons, with the possibility of appeal to the chief of the designation centre and thereafter the Office of the General Counsel.",
"88. Ms Patricia Rangel is the Unit Manager for the General Population Units at ADX. She provided two declarations.",
"Her first declaration outlined the Federal Bureau of Prisons procedures for review of the status of inmates. There was an initial classification upon arrival at a new Bureau institution, which took place at a meeting attended by the inmate and which defined, inter alia, the work and educational programmes the inmate would follow, his or her release plans, and security/custody levels. Thereafter, there were six-monthly program reviews (including progress review reports, which were signed by the inmate and the Unit Manager) and more detailed, three-yearly progress reports, which were also made available to the inmate.",
"In her declaration Ms Rangel also outlined the different levels of security in ADX units and the step down program. The units followed a “stratified” system of housing from General Population Units to the Intermediate, Transitional and Pre-Transfer Units. It would take an inmate a minimum of thirty-six months to work through the system: the minimum stay in each unit was twelve months in a General Population Unit, six months in Intermediate, six in Transitional and twelve in Pre-Transfer. Specific conditions in each unit were as follows.",
"General Population Unit cells were 87 square feet (8 square metres) plus a sallyport (exit area) of 17 square feet. Showers were within the cells. There was a window with natural lighting and inmates could control the lighting in their cell via a dimmer switch. Lights on the range were switched off at night, but, as in all federal prisons, were briefly turned on for three cell counts during the night. Meals were delivered in-cell. Inmates received two fifteen minute telephone calls and up to five social visits per month. It was possible and permissible for inmates to talk to each other in their cells via the ventilation system or during their out-of-cell recreation.",
"Inmates had ten hours out-of-cell exercise each week in single-cell recreation areas, some of which were grouped together on large recreation yards. Ms Rangel gave the sizes of the two types of outdoor individualised recreation areas as 240 square feet and 315 square feet (22 and 29 square metres). The size of the indoor areas was 389 square feet (36 square metres). Recreation privileges could be restricted for violations of rules and regulations. Restrictions on outdoor recreation were in three-month increments (three months for a first offence, six for a second offence and so on).",
"Intermediate Unit cells were 75.5 square feet and did not have a sallyport or shower. There was a window with natural lighting; cell doors faced out onto a range. Inmates were assigned to a group of eight inmates with whom they recreated. Meals were provided to inmates one group at a time, meaning each group was allowed out of their cells to collect their meals in the range. Inmates received three fifteen-minute telephone calls and up to five social visits per month. Showers stalls were on the range, where inmates could shower any time they were out on the range.",
"Transitional Units had similar conditions to Intermediate Units save that inmates were assigned to groups of sixteen inmates. They received twenty ‑ one hours of out-of-cell recreation per week in their assigned group on the range or in a large recreation yard. Meals were consumed in groups on the range. Inmates were unrestrained when out of their cells. They received an extra fifteen-minute telephone call per month and could leave the unit unrestrained but escorted to purchase items from the commissary.",
"The Pre-Transfer Unit was located at another penitentiary at FCC Florence. As in the Intermediate and Transitional Units, inmates ate their meals and recreated within their assigned group. They received twenty-four and a half hours’ out-of-cell recreation time per week, and five visits and three hundred minutes of telephone calls per month.",
"In the General Population, Intermediate and Transitional Units, access to television, radio and books, contact with prison staff and rules on correspondence were as outlined by Mr Milusnic.",
"The rules governing the step down program were set out in an “institution supplement”, which had been updated in September 2009. An inmate’s placement in and advancement through the step down program were reviewed every six months, subject to the minimum periods in each unit, set out above, and other criteria such as participation in defined programmes, positive behaviour and overall institutional adjustment. According to the updated supplement, mitigation of the original reason for placement at ADX Florence was no longer a factor which was considered, but the Step Down Screening Committee, which made decisions on advancement, could have regard to the initial reasons for placement at ADX and other safety and security factors. The final decision was one for the Warden. Any negative decision had to be reasoned (unless providing reasons would pose a threat to individual safety or institutional security) and was subject to appeal through the Bureau’s administrative remedy programme. Since the implementation of the updated supplement, there had been a 56% increase in movement of inmates from the four General Population Units to the Intermediate Unit and a 135% increase in movement from the Intermediate to the Transitional Unit. Inmates had also completed the programme and been transferred out of ADX Florence. This included Arab-Muslim inmates.",
"89. Mr Christopher B. Synsvoll is the Department of Justice Supervising Attorney at FCC Florence. His declaration outlined the application of special administrative measures. These measures were rare: of 210,307 Federal Bureau of Prison inmates, forty-one were subjected to them; twenty-seven of the forty-one were in H Unit at ADX Florence. Special administrative measures could be challenged through the Bureau’s administrative remedy programme, which led to a review of the need for the measures and which involved consultation with other agencies such as the FBI. This process had, on occasion, led to the modification of certain special administrative measures such as allowing greater communication for inmates with the outside world.",
"90. The psychologist assigned to ADX Florence, Dr Paul Zohn, outlined the psychological and psychiatric care available at the prison. The preference was to treat inmates with mental health problems in situ rather than in hospitals where this was possible. Care was provided by one psychiatrist and two psychologists who made regular rounds through the housing units at ADX. Various treatment programs were available and inmates who needed psychotropic medication were seen regularly by a psychiatrist. Contrary to assertions previously made by the applicants, video-conferencing was not ordinarily used to assess an inmate’s mental health. The main mental health disorders such as bipolar affective disorder, depression, post-traumatic stress disorder and schizophrenia would not preclude a designation to ADX and could be managed successfully there. Conditions of confinement were largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change. However, if necessary, inmates could be referred to one of the Bureau’s Psychiatric Referral Centers for acute psychiatric care. Inmates who would be considered “seriously mentally ill” would not be housed at ADX but at a Referral Center. All new inmates at ADX received an initial psychological evaluation and, if necessary, follow-up assessment and treatment planning. Thereafter, the psychological department monitored any treatment needs such as medication or modification to an inmate’s housing, work or program assignment.",
"91. The prison chaplain at ADX, Michael S. Merrill, stated that an imam was available to inmates four days a month and would speak to inmates at their cell door. The chaplain had also significantly expanded the Islamic section of the religious library at the prison, which included 158 Arabic language books. There were also 320 videos and DVDs on Islam. The Religious Services Department provided Islamic-faith programming through its closed-circuit television channel, including four to five days of Sunni Muslim programming on Friday and recitations of the Qur’an on Friday and Saturday evenings. Inmates had access to a halal diet; special arrangements were made for meals during Ramadan. Although there could be no formal congregational prayer for any faith group, Muslim inmates could perform the Azan (call to prayer) and the Salat (five daily prayers) in their cells; they could also have access to prayer rugs, prayer oil, prayer beads and religious headgear in their cells.",
"92. Ms Roxana Mack, the Assistant Supervisor of Education at ADX, stated that H unit inmates had access to approximately 900 books with no limit on the number of books an inmate could borrow. They had access to a law library for two hours at a time, including access to electronic databases. There were also educational courses.",
"b. The Department of Justice’s letters",
"93. In the course of proceedings before the Court, the respondent Government were asked to provide information as to:",
"(i) how long inmates in the Special Security Unit program had spent at ADX and how long they had been in each phase of the program;",
"(ii) how many inmates were in each phase of the step down program;",
"(iii) how long each inmate had spent at ADX and how long they had been in each phase of the program; and",
"(iv) how many inmates had completed the program, how long they had spent at ADX and how long they had been in each phase of the program",
"94. The questions were forwarded to the United States authorities. By letter dated 26 September 2011, the Department of Justice stated that there were 252 inmates in ADX’s General Population Unit. The Special Security Unit program could house up to 32 inmates. There were 17 inmates in phase I, nine in phase II and six in phase III. For the step down program, 32 inmates were in J Unit, 32 in K Unit and 25 in D/B Unit. The Department of Justice stated that the Bureau of Prisons obligations under United States law prevented disclosure of information as to the length of time inmates had spent at each stage of the two programs.",
"95. By letters dated 29 September and 7 October 2011, the Section Registrar clarified that the questions put by the Court were not intended to obtain information on specific inmates but rather to provide meaningful assistance as to: the length of time an inmate was likely to spend at ADX before being admitted to either program; how long he was likely to spend in each phase of either program; and how long he was likely to spend in either program before transfer out of ADX.",
"96. On 24 October 2011 the Agent of the Government of the United Kingdom replied, forwarding a letter of the same date from the Department of Justice, which set out the results of a statistical analysis conducted by the Bureau of Prisons. The analysis was based on a random sample of thirty inmates selected from the General Population at ADX and/or each phase of the step down program. On the basis of that sample, an inmate was likely to spend three years at ADX before being admitted to the Step Down or Special Security Unit programs. The likely times in each phase were: nine months in intermediate, eleven months in transition and nine months in pre-transfer. Thus, an inmate was likely to spend three years in General Population followed by two years and five months progressing through either program.",
"97. The Department of Justice’s letter of 26 September 2011 also stressed that, while generally inmates who were subject to special administrative measures were housed in the Special Security Unit, it was possible for such inmates to be housed at other prisons. Furthermore, if special administrative measure were vacated for an inmate at ADX, he could be transferred from ADX to other prison. This had occurred for seven of the thirteen inmates whose special administrative measures had been vacated.",
"2. Evidence submitted by the applicants",
"98. The applicants submitted general evidence as to the effect of solitary confinement on prisoners and specific evidence as to the prison regime at ADX Florence.",
"99. The applicants also provided a report by a psychiatrist, Dr Terry Kupers, which had been prepared specifically for the present proceedings. He considered that a supermax prison regime did not amount to sensory deprivation but there was an almost total lack of meaningful human communication. This tended to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown. All studies into the effects of supermax detention had found such symptoms after sixty days’ detention. Once such symptoms presented, it was not sufficient to return someone to normal prison conditions in order to remedy them. If supermax detention were imposed for an indeterminate period it also led to chronic despair. Approximately half of suicides in United States prisons involved the 6 ‑ 8% of prisoners held in such conditions. The effects of supermax conditions were worse for someone with pre-existing mental health problems. There was also evidence of solitary confinement leading to a range of physical illnesses. Dr Kuper’s conclusions were supported by a number of journal articles by psychologists and criminologists, which the applicants provided. [1]",
"100. The specific evidence on ADX Florence included a series of statements by Professor Laura Rovner, Director of the Civil Rights Clinic at the University of Denver, which had acted for a number of prisoners at ADX Florence. Professor Rovner’s statements were based on her experience of ADX, the evidence of her clients, and various affidavits which had been prepared for litigation in the federal courts regarding ADX Florence. Her latest statement, of 27 May 2011, responded to the six declarations submitted by the Government. Her statement, and the other evidence provided by the applicants, may be summarised as follows.",
"101. Professor Rovner recalled that one of the former wardens of ADX had publicly described the prison as “a clean version of hell”. Professor Rovner stated that, despite the evidence set out in the six declarations, conditions at ADX Florence had not changed significantly in the last two years. Solitary confinement for long periods continued. One lawyer, Mr Mark H. Donatelli, had conducted a survey which had found that at least forty-three inmates of ADX Florence had spent eight years or more in “lock-down” conditions there and at previous prisons.",
"Contact with staff could be as little as one minute per day. Some prisoners were placed on “single recreation status”, meaning no one else was permitted to be in adjoining recreation cells at the same time. Recreation privileges could be terminated for minor infractions: one prisoner was denied outdoor exercise for sixty days for trying to feed crumbs to birds. When he challenged this sanction through the grievance process, it was increased to ninety days. Upon further appeal he was told that the decision was not punitive but a managerial strategy to impress upon him the importance of adhering to institutional procedures. Indoor recreations were little more than cages with a single pull-up bar for exercise. There was nothing to do in outdoor recreation cages save to pace up and down. There was limited visibility – all that could be seen was the sky through chain linking. Recreation was frequently cancelled owing to staff shortages.",
"The evidence also showed that, despite the consensus in the medical profession that prisoners with mental illnesses should not be held in solitary confinement, ADX continued to house seriously mentally ill prisoners, including those with severe schizophrenia and bipolar disorder. Several inmates were too sick to communicate properly with their representatives; a report had been received of one prisoner who was too ill to write, but was living a cell that he had covered in six inches of rubbish and faeces. Several prisoners had stated in witness statements prepared for litigation in the United States courts, that there were mentally ill prisoners at ADX Florence who, because of their conditions, screamed all night, making sleep difficult for others. General medical facilities were also inadequate: there were only two doctors for 3,200 inmates at FCC Florence, and only basic healthcare needs were met. There were also reports from Human Rights Watch which indicated that force feeding of hunger strikers took place in an unnecessarily punitive and painful way.",
"Religious services were extremely limited – one Muslim inmate had only seen an imam three times – and one inmate in a general population unit had received an incident report for intoning the Azan. Books and educational activities were also limited.",
"For inmates, particularly those subjected to special administrative measures, telephone calls, and social visits were highly restricted and subject to monitoring. Contact with other inmates was generally prohibited and, when they were not, communication between cells could only be carried out by yelling, which was prohibited. Visits were limited to one adult visitor at a time, with no physical contact, and required fourteen days’ written notice. Evidence in cases brought by inmates who had been subjected to special administrative measures indicated that letters could be limited to three sheets of paper per week and certain family members could be refused clearance to write to or speak with an inmate. Special administrative measures could also mean that an inmate was prohibited from watching news channels on television, from receiving recent newspapers or any Arabic publications whatsoever; one inmate received his newspaper with whole sections removed. International telephone calls were expensive and liable to disruption.",
"Despite the adoption of objective criteria for placement at ADX, it remained the case that all those subjected to special administrative measures or convicted of terrorism offences were liable for placement, regardless of their security risk or their disciplinary record in other institutions. The placement hearing was window dressing: one hearing officer had carried out one hundred hearings and never found an inmate to be unsuitable for placement. There was evidence of hearings taking place post facto, in some cases many years after the transfer to ADX had been carried out. Inmates also received only twenty-four hours’ notice of a hearing and did not have the right to legal representation. There was evidence that hearing officers did not read all of the evidence submitted and based their decisions on unreliable evidence. Inmates did not see all the evidence against them. Professor Rovner also provided declarations by Arab Muslim clients, in which they stated that they had never been told the reasons for their placement at ADX and had been sent there after 9 September 2011, despite years of good conduct in other, much less restrictive prisons, both in the United States and elsewhere.",
"Although there had been an increase in the number of admissions to the step down program, the fact remained that many inmates were spending significant periods of time in solitary confinement prior to admission, despite having met the criteria for admission for years. Four clients of the Clinic had only been admitted to the program after periods of between seven and thirteen years in solitary confinement and only then after commencing litigation against the Bureau of Prisons. Another two clients had never been admitted, despite their clean disciplinary records and despite periods of eight to nine years at ADX. Even after the changes to procedures governing entry to the program, an inmate’s original crime continued to serve as the basis for placement at ADX; thus it was possible for an inmate to be unable to sufficiently mitigate the original reason for placement and so gain admission to the program. Moreover, if an inmate had never been told the reasons for his placement, he could not know what he had to do to gain admission to the program. The program required three years to complete and a prisoner needed one year of clear conduct in general population before being eligible for step down. Even eligibility for the program did not mean that a prisoner would be allowed into it.",
"Conditions in the first phase of the step down program did not differ significantly from general population units. According to one inmate, Mr Rezaq, lockdowns occurred frequently in J Unit, which meant inmates were confined to their cells, and could last days or even weeks. Inmates could also be removed from the program at any time without explanation or due process, even for the most minor infractions. Some had been removed from the program without receiving an incident report or were removed after receiving a report for an incident for which they were soon found not guilty. Yet, following such removals, they were either denied re-admission to the program or forced to spend years going through it again. The Bureau itself had estimated that only 5% of inmates progressed though the program in the minimum three years. Even successful completion of the step down program might only result in a transfer to a “communications management unit”, such as those housed at USP Terre Haute or USP Marion, where conditions remained restrictive.",
"According to Professor Rovner, it was difficult to dispute the evidence provided by the Government on special administrative measures (owing to restrictions contained in the measures themselves) but, on the basis of public information, she was able to state that the effect of the measures could amount to solitary confinement, even if an inmate was not detained at ADX. The indefinite prolongation of special administrative measures meant that certain Arab-Muslim inmates had spent between five and thirteen years in solitary confinement both before and after trial. Challenging such measures was impossible for inmates without access to legal representation. Legal aid was not available and, even if pro bono legal representation was obtained, the Department of Justice could still refuse to give the lawyers the necessary clearance; this had happened to her Clinic.",
"102. The applicants also relied on two letters from Human Rights Watch. The first, dated 2 May 2007 to the Director of the Federal Bureau of Prisons, followed a tour the organisation had been given of ADX Florence. The letter expressed concerns that a number of prisoners convicted of terrorism offences had been sent to the prison based on the nature of their crimes and, despite good conduct since their arrival, had remained in general population units and thus outside the step-down programme for up to nine years. The letter made suggestions for improvement in respect of recreation, mail, telephone use, the library. It also noted that progress was to be made on better meeting prisoners’ religious needs, such as the provision of a full-time imam and commended the educational programmes available through the prison’s television system. In the letter Human Rights Watch expressed serious concerns as to prisoners’ inability to do any meaningful exercise in the indoor and outdoor recreation areas, owing to the size of these areas and the lack of any proper equipment. The letter urged the prison authorities to investigate reports of retaliation against prisoners who were on hunger strike in the form of transfer to harsher cells. The letter also said that Human Rights Watch was extremely concerned about the effects of long-term isolation and highly limited exercise on the mental health of prisoners and criticised reports of rushed consultations between prisoners and psychologists, as well as the fact that evaluations were carried out via closed circuit television.",
"103. The applicants obtained a second letter from Human Rights Watch, dated 21 August 2008, which stated that Human Rights Watch considered conditions at ADX violated the United States’ treaty obligations under the International Covenant on Civil and Political Rights and the United Nations Convention against Torture. It was unremarkable that “minor adjustments” had been made to the regime but it remained in essence one of “long-term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation”.",
"B. The Eighth Amendment and conditions of detention",
"104. The Eighth Amendment to the Constitution provides, inter alia, that cruel and unusual punishments shall not be inflicted.",
"105. The Eighth Amendment requires prison officials to provide humane conditions of confinement, to ensure inmates receive adequate food, clothing shelter and medical care, and to take reasonable measures to guarantee their safety ( Farmer v. Brennan 511 US 825 (1994). Only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation ( Wilson v. Seiter 501 U.S. 294, 304 (1991); Rhodes v. Chapman 452 U.S. 337, 347 (1981)). A serious deprivation is necessary, because routine discomfort is part of the penalty inmates pay for their crimes ( Hudson v. McMillan 503 US 1 (1992); Sandin v. Conner 515 US 472 (1995)). Thus, in order to establish that a deprivation violates the Eighth Amendment, a prisoner must satisfy: (i) an objective test by demonstrating a sufficiently serious deprivation; and (ii) a subjective test by showing that the conditions of confinement involve the deliberate imposition of pain or deliberate indifference to it ( Wilson, cited above).",
"106. In Hutto v. Finney 437 US 678 (1978), the Supreme Court upheld a lower court order limiting periods of punitive isolated confinement to thirty days, in circumstances where the lower court had found that conditions in the prison in question amounted to cruel and unusual punishment. The court recognised that confinement in an isolation cell was a form of punishment which was subject to scrutiny under Eighth Amendment standards but rejected the submission that indeterminate sentences to punitive isolation always constituted cruel and unusual punishment.",
"107. Lower federal courts have found that whether an extended term of solitary confinement violates the Eighth Amendment will depend on the particular facts of each situation, including the circumstances, nature and duration of the confinement ( DeSpain v. Uphoff 264 F.3d 965 (10 th Cir. 2001)). Although they have recognised that prolonged conditions of solitary confinement may cause significant psychological damage ( Davenport v. DeRobertis 844 F.2d 1310, 1313 (7 th Cir. 1988)), the lower courts have, for the most part, rejected Eighth Amendment claims arising either from conditions of solitary confinement or from periods of confinement to cells for twenty-two or twenty-three hours per day (see, inter alia, Five Percenters 174 F.3d 471 (4 th Cir. 1999); In re Long Term Admin. Segregation 174 F.3d 464 (4 th Cir. 1999); Anderson v. County of Kern 45 F.3d 1310 (9 th Cir. 1995); Peterkin v. Jeffes 855 F.2d. 1021 (3d cir. 1988); Smith v. Romer 107 F.3d 21 (10 th Cir. 1997)). However, in Ruiz v. Johnson 37 F. Supp 2d 855 (1999), the highest level of administrative segregation in the Texan prison system was found to reach levels of psychological deprivation that violated the Eighth Amendment. There, the court found there had been deliberate indifference to a systemic pattern of extreme social isolation and reduced environmental stimulation. The objective test was found to have been met in respect of three prisoners who had been in solitary confinement for between twenty-nine and thirty-five years: Wilkerson v. Stalder 639 F. Supp. 2d 654 M.D.La., 2007.",
"108. Lower courts outside the Tenth Circuit (which has jurisdiction over ADX Florence) have ruled that solitary confinement of prisoners with pre-existing serious mental illness can be sufficiently harmful to violate the objective test laid down in Wilson, cited above: see Jones ‘El v. Berge 164 F. Supp. 2d 1096 (2001) (concerning Wisconsin’s “supermax” prison) and Madrid v. Gomez 889 F. Supp 1146 (1995) (concerning detention at Pelican Bay State Prison, California). However, the subjective test laid down in Wilson may not be satisfied unless a plaintiff can show that prison officials attributed any deterioration in his mental state to the conditions of his confinement. Negligence in this respect does not suffice; deliberate indifference is required ( Scarver v. Litscher 434 F. 3d 972 (7 th Cir. 2006)).",
"C. Due process of law",
"109. The Fifth Amendment protects against deprivation of life, liberty or property without due process of law. In the context of prison discipline, due process rights are triggered by an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life ( Sandin v. Conner, cited above). This will include transfer to a “supermax” security prison ( Wilkinson v. Austin 545 US 209 (2005)). In Wilkinson, the court upheld a system which gave notice of the reasons for placement in the supermax prison, an opportunity to reply and multiple levels of review. Periodic review of administrative segregation is also required to ensure that it is not used as a pretext for indefinite confinement ( Hewitt v. Helms 459 US 460 (1983)).",
"Sandin has been interpreted by the Tenth Circuit as requiring prisoners to show that their conditions of confinement deviate substantially from the baseline accepted treatment of prisoners ( Estate of DiMarco v. Wyoming Department of Corrections 473 F. 3d 1334 (10 th Cir. 2007)). This test was found not to be satisfied by fourteen months’ solitary confinement in DiMarco because the prisoner in question had been provided with the ordinary essentials of prison life.",
"D. Litigation challenging conditions of detention at ADX Florence",
"110. In Sattar v. Gonzales 2009 WL 606115 (D.Colo.2009) the United States District Court for the District of Colorado dismissed a challenge to conditions of detention at ADX Florence and to the imposition of special administrative measures. The plaintiff had limited contact with his family and attorneys and so the court found that the “severe limitations of ADX confinement” did not amount to the necessary deprivation required by the objective test.",
"A constitutional challenge to the imposition of special administrative measures at ADX was also dismissed by the District Court in Al-Owhali v. Holder 1011 WL 288523 (D. Colo. 2011); the case is now the subject of an appeal.",
"In Georgacarakos v. Wiley, 2010 WL 1291833 (D.Colo. 2010) the District Court found that detention at ADX for five years did not amount to atypical and significant hardship, given the availability of social visits and phone calls, the opportunity to converse with other inmates in the recreation areas, and the possibility of transfer out of ADX via the step down program. Georgacarakos was recently followed in Matthews v. Wiley 744 F. Supp. 2d 1159 (D. Colo. 2010).",
"In Magluta v. United States Federal Bureau of Prisons, 29 May 2009, the District Court held that the plaintiff’s allegation that detention at ADX had led to a significant deterioration of his mental condition failed to satisfy the objective test in Wilson cited above. The plaintiff had not shown that conditions at ADX, even if lonely or uncomfortable, failed to provide basic human necessities; ADX was a prison and confinement was “intended to punish inmates, not coddle them”.",
"111. In Hill v. Pugh 75 Fed. Appx. 715 (10 th Cir. (2003)) United States Court of Appeals for the Tenth Circuit rejected an Eighth Amendment claim that ADX conditions were cruel and unusual. The plaintiff was isolated in his cell twenty-three hours a day for five days a week and twenty-four hours the remaining two days. However, his minimal physical requirements of food, shelter, clothing and warmth had been met and so the conditions showed neither an “unquestioned and serious deprivation of basic human needs” nor “intolerable or shocking conditions”. Similar conclusions were reached in Jordan v. the Federal Bureau of Prisons 191 Fed. Appx 639 (10 th Cir. 2006), Ajaj v. United States 293 Fed.Appx. 575 (10 th Cir. 2008).",
"112. In Rezaq, et al. v. Nalley, et al, the plaintiffs brought Eighth Amendment claims concerning their placements at ADX at various dates between 1997 and 2003. The District Court granted the Bureau of Prisons’ motions for summary judgment: 2010 WL 5157317 (D. Colo. 2010); 2010 WL 5464294 (D. Colo. 2010). The court, following the recommendations of the Magistrate Judge, found that the plaintiff’s terrorist backgrounds and convictions provided a legitimate penological interest for transferring them to ADX, particularly when only thirty-five of the two hundred and six inmates in federal prisons with international terrorism convictions had been assigned to ADX. The plaintiffs’ conditions of confinement there were not so extreme as to be atypical and significant. The conditions were also different from those in Wilkinson v. Austin (see paragraph 109 above) in that ADX offered more opportunities for outdoor exercise, interaction with other inmates and educational programmes. There was also insufficient evidence of significant mental harm: there was no evidence that one of the plaintiff’s depression could be attributed to ADX; the remainder of the plaintiffs’ emotional problems were typically experienced by prisoners. Finally, owing to the availability of periodical reviews and the step down program, confinement at ADX was not indeterminate. The plaintiffs have appealed to the Court of Appeals for the Tenth Circuit, though they have all been transferred out of ADX.",
"113. In Silverstein v. Federal Bureau of Prisons 704 F Supp. 2d 1077 (2010), before the District Court the plaintiff alleges that he has been held in solitary confinement at ADX Florence and other institutions since 1983. The Bureau of Prisons has sought summary judgment in its favour in respect of the plaintiff’s claims. A decision is awaited; a six-day jury trial was set to begin on 23 January 2012.",
"E. Relevant international materials on solitary confinement",
"1. Council of Europe",
"114. The Council of Europe Guidelines on human rights and the fight against terrorism contain the following provision:",
"“ XI. Detention",
"1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.",
"2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:",
"(i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;",
"(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;",
"(iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.”",
"115. The European Prison Rules (contained in Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to Member States) where relevant, provide as follows:",
"Security",
"“51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.",
"51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.",
"51.3 As soon as possible after admission, prisoners shall be assessed to determine:",
"a. the risk that they would present to the community if they were to escape;",
"b. the risk that they will try to escape either on their own or with external assistance.",
"51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.",
"51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.”",
"Safety",
"52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.",
"52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.",
"52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.",
"52.4 It shall be possible for prisoners to contact staff at all times, including during the night.",
"52.5 National health and safety laws shall be observed in prisons.",
"Special high security or safety measures",
"53.1 Special high security or safety measures shall only be applied in exceptional circumstances.",
"53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.",
"53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.",
"53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.",
"53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.",
"53.6 Such measures shall be applied to individuals and not to groups of prisoners.",
"53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.",
"Requests and complaints",
"70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.",
"70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”",
"116. The 21st General Report of the European Committee for the Prevention of Torture, 10 November 2011, addressed solitary confinement, which it defined as whenever a prisoner is ordered to be held separately from other prisoners or was held together with one or two other prisoners. The Committee observed:",
"“[Solitary confinement] can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is. The most significant indicator of the damage which solitary confinement can inflict is the considerably higher rate of suicide among prisoners subjected to it than that among the general prison population.”",
"The report therefore urged States to minimise the use of solitary confinement. It should be proportionate and, the longer it was used, the stronger the reasons for it had to be. It should be lawful and subject to accountability, with the fullest possible reasons given and records kept. It should be necessary and non-discriminatory. It should never be imposed as part of a sentence and, if imposed as a disciplinary sanction, the maximum period should be fourteen days. In that period, a prisoner should have at least one hour’s outdoor exercise per day and other appropriate mental stimulation.",
"The report also stated that the Committee’s recommended procedural safeguards should be rigorously followed where administrative solitary confinement was used for preventative purposes, including periodical and external reviews which considered, among other things, whether some of the restrictions imposed were strictly necessary. In such situations, prisoners should have an individual regime plan which attempted to maximise contact with others. Resources should also be made available to attempt to reintegrate the prisoner into the main prison community.",
"For material conditions in solitary confinement, the Committee stated that the cells used should meet the same minimum standards as those applicable to other prisoner accommodation. These included a cell of no less than six square metres, proper cell furnishings, adequate natural and artificial light, heating and ventilation, and sufficiently large exercise areas to allow genuine exertion.",
"The Committee also stated that medical personnel should never participate in decisions on solitary confinement and should report to the prison director whenever a prisoner’s health was put seriously at risk by solitary confinement.",
"2. The Inter-American system",
"117. The Inter-American Commission on Human Rights has found that isolation could in itself constitute inhuman treatment, and a more serious violation could result for someone with a mental disability ( Victor Rosario Congo v. Ecuador, case 11.427, 13 April 1999).",
"In Montero Aranguren et al (Detention Center of Catia) v. Venezuela, judgment of 5 July 2006, the Inter-American Court of Human Rights stated:",
"“...solitary confinement cells must be used as disciplinary measures or for the protection of persons only during the time necessary and in strict compliance with the criteria of reasonability, necessity and legality. Such places must fulfil the minimum standards for proper accommodation, sufficient space and adequate ventilation, and they can only be used if a physician certifies that the prisoner is fit to sustain it. (footnotes omitted)”",
"3. The United Nations",
"118. Isolation for twenty-three hours a day in a two by two metres cell with ten minutes of sunlight per day was found by the United Nations Human Rights Committee to violate Article 7 of the ICCPR in Polay Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997.",
"119. In its recommendations to State parties, the United Nations Committee against Torture has recommended that:",
"- solitary confinement be strictly and specifically regulated by law and applied only in severe circumstances, with a view to its abolition (Conclusions and Recommendations in respect of Luxembourg, CAT/C/CR/28/2, at paragraph 6(b));",
"- there should be adequate review mechanisms relating to the determination and duration of solitary confinement (Conclusions and Recommendations in respect of Denmark, CAT/C/CR/28/1 at paragraph 7(d));",
"- solitary confinement for long periods of time may constitute inhuman treatment (Conclusions and Recommendations in respect of Switzerland, A/49/44, paragraph 133).",
"120. The United Nations Special Rapporteur for Torture has found that isolation for twenty-two to twenty-four hours per day may amount to ill-treatment and, in certain instances, torture (Interim Report of 28 July 2008, A/63/175, at paragraphs 77-85). The report included a copy of the Istanbul statement on the use and effects of solitary confinement, which was adopted at the International Psychological Trauma Symposium in December 2007. The statement included the following on the effects of solitary confinement:",
"“It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.",
"Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well being.”",
"121. In his Interim Report of 5 August 2011, A/66/268, the current Special Rapporteur for Torture found that where the physical conditions and the prison regime of solitary confinement caused severe mental and physical pain or suffering, when used as a punishment, during pre-trial detention, indefinitely prolonged, on juveniles or persons with mental disabilities, it could amount to cruel, inhuman or degrading treatment or punishment and even torture. The report highlighted a number of general principles to help to guide States to re-evaluate and minimise its use and, in certain cases, abolish the practice of solitary confinement. He stated that the practice should be used only in very exceptional circumstances, as a last resort, for as short a time as possible. He further emphasised the need for minimum procedural safeguards, internal and external, to ensure that all persons deprived of their liberty were treated with humanity and respect for the inherent dignity of the human person.",
"IV. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON LIFE SENTENCES",
"A. The applicants’ possible sentences, the federal sentencing system and presidential pardons",
"1. Evidence from the United States Department of Justice",
"122. In a letter dated 26 November 2010 the United States Department of Justice set out the maximum sentences each of the six applicants would face if convicted.",
"123. The first applicant faces four counts of criminal conduct. The first count, conspiracy to provide material support to terrorists, carries a maximum sentence of fifteen years in prison. The second count, providing material support to terrorists, carries the same maximum sentence. The third count, conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country, carries a maximum sentence of life in prison. The sentence for the final count, money laundering, is a maximum of twenty years. None of the counts contained a mandatory minimum sentence. The trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties, to run consecutively or concurrently.",
"124. For the second applicant, the Department of Justice stated that the maximum penalty he faced was not fifty years’ imprisonment, as previously stated, but thirty-five years’ imprisonment. This was because the maximum penalties for his offences were lower at the time of the alleged commission of the offences than the current sentences. The correct maximum penalties on each of the four counts he faced were: five years’ imprisonment for the count of conspiracy to provide material support and resources to terrorists; ten years for providing material support and resources to terrorists; ten years for conspiring to provide material support and resources to a designated foreign terrorist organisation; and ten years for providing material support and resources to a designated foreign terrorist organisation. None of the counts carried a mandatory minimum sentence and, as for the first applicant, the trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties, to run consecutively or concurrently.",
"125. For the third applicant, as he is charged with the same offences as the first applicant (save for the money laundering charge), the possible sentences would be the same.",
"126. For the fourth applicant, for the Yemen hostage-taking counts, the maximum sentences are life imprisonment. For the Bly, Oregon counts, the maximum sentences were the same as those for the second applicant. For the Afghanistan counts, the maximum sentences are fifteen years’ imprisonment on each count. None of the counts carried a mandatory minimum sentence and the trial judge’s discretion in sentencing would be the same as for the first three applicants.",
"127. For the fifth applicant, the maximum sentences are:",
"conspiracy to kill United States nationals – life imprisonment;",
"conspiracy to murder – life imprisonment;",
"conspiracy to destroy buildings and property – life imprisonment; and",
"conspiracy to attack national defence utilities – ten years’ imprisonment. The third count, conspiracy to destroy buildings and property, has a mandatory minimum sentence of twenty years’ imprisonment. Therefore, if convicted on all four counts, the trial judge’s sentencing discretion would range from twenty years’ imprisonment to life.",
"128. For the sixth applicant, each of the two hundred and sixty-nine counts of murder with which he is charged carries a mandatory minimum sentence of life imprisonment. The remaining counts carry maximum penalties of between ten years and life imprisonment.",
"129. The Department of Justice’s letter also set out the applicable law on federal sentencing. In addition to the need to have regard to the purposes of sentencing (set out in section 3553(a) of Title 18 of the United States Code), a trial judge had to consider the non-binding sentencing guidelines of the United States Sentencing Commission, a judicial body. These required the trial judge to have regard inter alia to any mitigating or aggravating factors, the defendant’s criminal history, any credit for a guilty plea, and the effect of any assistance given to the United States’ authorities.",
"130. The letter further confirmed that, as set out at paragraph 72 of the Court’s admissibility decision, there were four ways a sentence of life imprisonment could be reduced.",
"First, it could be reduced by the sentencing court upon the motion of the Director of the Bureau of Prisons upon a finding that “extraordinary and compelling reasons warrant such a reduction”. This generally involved inmates with terminal illnesses.",
"Second, if a defendant provided substantial assistance in the investigation of a third party, the Government could move within one year of sentencing for a reduction in the sentence.",
"Third, if the defendant had been sentenced on the basis of sentencing guidelines which were subsequently lowered by the Sentencing Commission (the judicial body responsible for promulgating the guidelines) then the sentencing court could reduce the term of imprisonment.",
"Fourth, the defendant could request commutation by the President. While commutation was exercised sparingly, such relief had, on occasion, been granted for serious offences involving national security. For example, in 1999 President Clinton commuted the sentences of thirteen members of the FALN, a violent Puerto Rican nationalist organisation responsible for bombings in the 1970s and 1980s, who had been convicted of conspiracy to commit armed robbery, bomb-making, sedition and other offences.",
"131. Other reductions were available to those sentenced to less than life imprisonment. Fifty-four days’ credit was available each year for exemplary compliance with institutional disciplinary regulations; this allowed for release after 85% of the sentence had been served. Additionally, any defendant had a statutory right of appeal against sentence to a federal court of appeals and, though rare, to the United States Supreme Court. He could also seek review of the sentencing by the trial judge within one year of the sentence being passed.",
"132. The Department of Justice’s letter of 22 September 2011 stated that sentences were normally to run concurrently unless the law provided for consecutive sentences or the trial judge positively ordered that any sentences which were imposed were to run consecutively. In the applicants’ indictments, the only counts which carried mandatory concurrent sentences were three of the counts faced by the sixth applicant (one count of using and carrying an explosive, and two counts of using and carrying a dangerous device during the bombing of the US Embassies in Nairobi and Dar es Salaam).",
"The letter also underlined the Department of Justice’s view that the federal sentencing guidelines gave the trial judge a broad discretion in sentencing.",
"2. Evidence submitted by the applicants",
"133. The applicants submitted a declaration from Ms Denise Barrett, the National Sentencing Resource Counsel for Federal Public and Community Defenders. She stated that a trial judge’s discretion in sentencing was not as broad as the Department of Justice had suggested. It remained subject to increases as well as reductions on appeal. The sentencing guidelines allowed for significant increases in sentences if the offences involved terrorism, such that the recommended guideline sentence was the same as the statutory maximum sentence, irrespective of the absence of any prior criminal record. Owing to the possibility of consecutive sentences being imposed, she therefore assessed the possible sentences as:",
"the first applicant, life plus fifty years;",
"the second applicant, thirty-five years;",
"the third applicant, life plus thirty years;",
"the fourth applicant, two life sentences plus ninety-five years;",
"the fifth applicant, three consecutive life sentences plus ten years;",
"the sixth applicant, numerous consecutive life sentences.",
"For the mechanisms for sentence reduction, Ms Barrett noted the following. Compassionate release for the terminally ill or disabled was not automatic and was assessed with reference to additional factors such as the nature of the crime committed and the length of time served. Reduction for substantial assistance to the authorities depended on the initiative of the Government, not the court. Subsequent lowering of the relevant sentencing guidelines could only reduce a sentence if the Sentencing Guidelines Commission made the change retroactive and might not reduce the overall sentence if the person concerned was convicted of other offences and given consecutive sentences. For presidential commutation, the FALN pardons had only been for those who had been convicted of non-violent crimes and had been offered on the condition that the individuals concerned renounce violence. The pardons had nonetheless been very controversial.",
"B. Eighth Amendment case-law on “grossly disproportionate” sentences",
"134. The Eighth Amendment has been interpreted by the Supreme Court of the United States as prohibiting extreme sentences that are grossly disproportionate to the crime ( Graham v. Florida 130 S. Ct. 2011, 2021 (2010)). There are two categories of cases addressing proportionality of sentences.",
"The first category is a case-by-case approach, where the court considers all the circumstances of the case to determine whether the sentence is excessive. This begins with a “threshold comparison” of the gravity of the offence and the harshness of the penalty. If this leads to an inference of gross disproportionality, the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions. If that analysis confirms the initial inference of gross disproportionality, a violation of the Eighth Amendment is established.",
"In the second category of cases, the Supreme Court has invoked proportionality to adopt “categorical rules” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders.",
"135. Under the first category, the Supreme Court has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( Solem v. Helm 463 US 277 (1983)). It has upheld the following sentences: life with the possibility of parole for obtaining money by false pretences ( Rummel v. Estelle 445 US 263 (1980)); life imprisonment without parole for possessing a large quantity of cocaine ( Harmelin v. Michigan 501 US 957 (1991)); twenty-five years to life for theft under a “three strikes” recidivist sentencing law ( Ewing v. California 538 US 11 (2003)); forty years’ imprisonment for distributing marijuana ( Hutto v. Davis 454 US 370 (1982)).",
"136. Examples of cases considered under the second category include Coker v. Georgia 433 US 584 (1977) (prohibiting capital punishment for rape) and Roper v. Simmons 543 US 551 (2005) (prohibiting capital punishment for juveniles under eighteen). In Graham, cited above, the court held that the Eighth Amendment also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide. The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence. Although a State was not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime, it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. The court also held that a sentence lacking in legitimate penological justification (such as retribution, deterrence, incapacitation and rehabilitation) was, by its nature, disproportionate. Such purposes could justify life without parole in other contexts, but not life without parole for juvenile non-homicide offenders.",
"C. Relevant international and comparative law on life sentences and “grossly disproportionate” sentences",
"137. The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris, cited above, at §§ 68-76. Additional materials before the Court in the present cases (and those materials in Kafkaris that are expressly relied on by the parties) may be summarised as follows.",
"1. Life sentences in the Contracting States",
"138. In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences.",
"2. Council of Europe texts",
"139. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) prepared a report on “Actual/Real Life Sentences” dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, “even to life prisoners”; and (b) that all Council of Europe member States had provision for compassionate release but that this “special form of release” was distinct from conditional release.",
"It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated:",
"“[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.",
"The report’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release.",
"3. The International Criminal Court",
"140. Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110).",
"4. The European Union",
"141. Article 5(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant provides:",
"“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure...”",
"5. The United Kingdom",
"142. R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article.",
"Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).",
"The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:",
"“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.”",
"143. In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment” (per Lord Steyn at pp. 416H). Lord Steyn also observed: “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence” (p. 417H).",
"144. Under the present statutory framework in England and Wales, Chapter 7 of the Criminal Justice Act 2003, a trial judge can impose a whole life term or order on a defendant convicted of murder. Such a defendant is not eligible for parole and can only be released by the Secretary of State. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered that such whole life terms were compatible with Article 3 of the Convention.",
"It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court stated:",
"“45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so.",
"46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible.",
"...",
"Under the regime that predated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed article 3.",
"...",
"Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997.",
"...",
"At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.",
"49. For these reasons, applying the approach of the Strasbourg court in Kafkaris v Cyprus 12 February 2008, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.”",
"6. Germany",
"145. Article 1 of the Basic Law of the Federal Republic of Germany provides that human dignity shall be inviolable. Article 2(2) provides:",
"“Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”",
"The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2 nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313).",
"The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time.",
"The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment.",
"146. In the later War Criminal case 72 BVerfGE 105 (1986), where the petitioner was eighty-six years of age and had served twenty years of a life sentence imposed for sending fifty people to the gas chambers, the court considered that the gravity of a person’s crime could weigh upon whether he or she could be required to serve his or her life sentence. However, a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality, state of mind, and age of the person. In that case, any subsequent review of the petitioner’s request for release would be required to weigh more heavily than before the petitioner’s personality, age and prison record.",
"147. In its decision of 16 January 2010, BVerfG, 2 BvR 2299/09, the Federal Constitutional Court considered an extradition case where the offender faced “aggravated life imprisonment until death” ( erschwerte lebenslängliche Freiheitsstrafe bis zum Tod ) in Turkey. The German government had sought assurances that he would be considered for release and had received the reply that the President of Turkey had the power to remit sentences on grounds of chronic illness, disability, or old age. The court refused to allow extradition, finding that this power of release offered only a vague hope of release and was thus insufficient. Notwithstanding the need to respect foreign legal orders, if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in Article 1.",
"7. Canada",
"148. The Supreme Court of Canada has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment (see, inter alia, R v. Smith (Edward Dewey) [1987] 1 SCR 1045). In R v. Luxton [1990] 2 S.C.R. 711, the court considered that, for first degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for twenty-five years was not grossly disproportionate. Similarly, in R v. Latimer 2001 1 SCR 3, for second degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for ten years was not grossly disproportionate. The court observed that gross disproportionality would only be found on “rare and unique occasions” and that the test for determining this issue was “very properly stringent and demanding”.",
"8 South Africa",
"149. In Dodo v. the State (CCT 1/01) [2001] ZACC 16, the South African Constitutional Court considered whether a statutory provision which required a life sentence for certain offences including murder, was compatible with the constitutional principle of the separation of powers, the accused’s constitutional right to a public trial and the constitutional prohibition on cruel, inhuman or degrading treatment or punishment. The court found none of these constitutionals provisions was infringed, since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances. The court did, however, observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel, inhuman or degrading.",
"150. In Niemand v. The State (CCT 28/00) [2001] ZACC 11, the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “habitual criminal” to be grossly disproportionate because it could amount to life imprisonment for a non-violent offender. The court “read in” a maximum sentence of fifteen years to the relevant statute.",
"9. Other jurisdictions",
"151. In Reyes v. the Queen [2002] UKPC 11 the Judicial Committee of the Privy Council considered that a mandatory death penalty for murder by shooting was incompatible with section 7 of the Constitution of Belize, which prohibits torture and ill-treatment in identical terms to Article 3 of the Convention. Lord Bingham observed that to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated. The relevant law was not saved by the powers of pardon and commutation vested by the Constitution in the Governor-General, assisted by an Advisory Council; in Lord Bingham’s words “a non-judicial body cannot not decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed”.",
"152. In de Boucherville v. the State of Mauritius [2008] UKPC 70 the appellant had been sentenced to death. With the abolition of the death penalty in Mauritius, his sentence was commuted to a mandatory life sentence. The Privy Council considered the Court’s judgment in Kafkaris, cited above, and found that the safeguards available in Cyprus to prevent Kafkaris from being without hope of release were not available in Mauritius. The Mauritian Supreme Court had interpreted such a sentence as condemning de Boucherville to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply. This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section 10 of the Mauritian Constitution (provisions to secure protection of law, including the right to a fair trial). It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Committee considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General’s powers to recommend release and the President’s powers to commute sentences or decree release) were not available in Mauritius. It also acknowledged the appellant’s argument that, as with the mandatory sentence of death it had considered in Reyes, a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Justice Laws in Wellington and Lord Bingham in Lichniak (at paragraphs 65 and 142 above).",
"153. In State v. Philibert [2007] SCJ 274, the Supreme Court of Mauritius held that a mandatory sentence of 45 years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section 7 on the grounds that it was disproportionate.",
"154. In State v. Tcoeib [1997] 1 LRC 90 the Namibian Supreme Court considered the imposition of a discretionary life sentence to be compatible with section 8 of the country’s constitution (subsection (c) of which is identical to Article 3 of the Convention). Chief Justice Mahomed, for the unanimous court, found the relevant statutory release scheme to be sufficient but observed that if release depended on the “capricious exercise” of the discretion of the prison or executive authorities, the hope of release would be “too faint and much too unpredictable” for the prisoner to retain the dignity required by section 8. It was also observed that life imprisonment could amount to cruel, inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence. The High Court of Namibia found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in State v. Vries 1997 4 LRC 1 and State v Likuwa [2000] 1 LRC 600.",
"155. In Lau Cheong and Another v. HKSAR [2002] 5 HKCFAR 415, [2002] 2 HKLRD 612, the Hong Kong Court of Final Appeal rejected a challenge to the mandatory life sentence for murder. It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel, inhuman or degrading punishment.",
"156. Section 9 of the New Zealand Bill of Rights Act 1990 also protects against disproportionately severe treatment or punishment.",
"THE LAW",
"I. JOINDER OF THE APPLICATIONS",
"157. Given their similar factual and legal background, the Court decides that the applications of the first, third, fourth, fifth and sixth applicants should be joined pursuant to Rule 42 § 1 of the Rules of Court.",
"Having regard, however, to the nature of the facts and the substantive issues raised by the second applicant, particularly in relation to his complaint concerning detention at ADX Florence, the Court considers that it is not appropriate to join his application but to treat it separately.",
"II. ARTICLE 3 AND THE EXTRADITION",
"158. The applicants made two complaints in relation to their proposed extradition. First, they complained that, if convicted in the United States, they would be detained at ADX Florence and, furthermore, would be subjected to special administrative measures (SAMS). They submitted that conditions of detention at ADX Florence (whether alone or in conjunction with SAMS) would violate Article 3 of the Convention. Second, the applicants complained that, if convicted, they would face sentences of life imprisonment without parole and/or extremely long sentences of determinate length in violation of Article 3 of the Convention.",
"159. Article 3 provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"160. The Government contested each of these arguments.",
"161. However, before turning to the merits of each of these complaints, it is necessary for the Court to consider the submissions of the parties as to the relevance, if any, of the extradition context to complaints made under Article 3 of the Convention, as well as the parties’ submissions as to the appropriate forum for the applicants’ prosecution. Those submissions may be summarised as follows.",
"A. The Government",
"162. The Government relied on the reasoning of the House of Lords in Wellington and the Canadian Supreme Court in Burns and Ferras (see paragraphs 66–72, 74 and 75 above). On the basis of those cases, the Government submitted that, in the extradition context, a distinction had to be drawn between torture and other forms of ill-treatment. A real risk of torture in the receiving State should be an absolute bar on extradition. However, for all other forms of ill-treatment, it was legitimate to consider the policy objectives pursued by extradition in determining whether the ill ‑ treatment reached the minimum level of severity required by Article 3. This was the appropriate means of resolving the tension that existed between the Court’s judgments in Soering, on the one hand, and Chahal and Saadi, on the other. Article 3 could not be interpreted as meaning that any form of ill-treatment in a non-Contracting State would be sufficient to prevent extradition. Such an absolutist approach to Article 3 would mean, for instance, that practices such as head shaving or shackling could act as a bar to extradition because the Court had found these forms of ill-treatment to be in breach of Article 3 (see Yankov v. Bulgaria, no. 39084/97, §§ 114-121, ECHR 2003 ‑ XII (extracts); and Henaf v. France, no. 65436/01, §§ 45-89, ECHR 2003 ‑ XI).",
"163. The Government did not accept the applicants’ submission that the possibility of prosecution in the United Kingdom was relevant in determining whether their extradition was compatible with Article 3. This submission appeared to be based on the Court’s judgment in Soering, where the Court had found that the possibility of trial in the Federal Republic of Germany was “a circumstance of relevance” in its overall assessment under Article 3 (paragraph 110 of the judgment). However, the facts of Soering were wholly exceptional. Both the United States and the Federal Republic of Germany had jurisdiction and the Federal Republic itself had submitted that extradition to the United States would breach the applicant’s Convention rights. In any event, there were no domestic proceedings under way in the United Kingdom for any of the applicants and they could not be prosecuted in the United Kingdom for the full range and gravamen of the conduct alleged against them. The prosecutions were more properly brought in the United States. In any event, the possibility of prosecution in the United Kingdom could only be relevant if the Court were to follow the relativist approach of the House of Lords in Wellington, which the applicants had urged the Court not to do.",
"B. The applicants",
"164. The applicants rejected the submission that Article 3 allowed for a balancing exercise of any kind. The Court had specifically rejected that submission in Saadi, cited above. Even if, in extradition cases, a relativist approach could be taken in respect of ill-treatment which fell short of torture, this was irrelevant to their case because, in their submission, years of solitary confinement at ADX amounted to torture or, at the very least, was at the upper end of the scale of ill-treatment (see further below). Furthermore, none of the policy reasons for taking a relativist approach to ill-treatment arising from life sentences could apply to ill-treatment arising from prison conditions. Detention at ADX was not mandated by United States law and the United States could give an undertaking not to detain the applicants there. Thus, the alternative to detention at ADX was not that they would be fugitives from United States justice, but rather that they would be detained in American prisons which were Article 3 compliant.",
"165. The United Kingdom was the appropriate forum for prosecution of each applicant and it had jurisdiction to try them. For the first and third applicants, the link with the United States was that one of the servers for the website they had run had been based in Connecticut for eighteen months. The case against them was based on material seized in searches of premises in the United Kingdom, which the police had immediately handed to the United States’ authorities. The fourth applicant had been the subject of a Metropolitan Police investigation but had never been charged. All the evidence against him came from materials seized during that investigation. The criminal conduct of the fifth and sixth applicants was alleged to have taken place in their London offices. All witnesses were in the United Kingdom and, as with the other applicants, all relevant evidence had been obtained there. The applicants submitted that the fact that the United Kingdom could prosecute them compatibly with Article 3 was a general consideration in assessing the proportionality of their extradition and its consequences.",
"C. The Court’s assessment",
"166. The Court begins by noting the parties’ submissions as to the appropriate forum for prosecution. It observes, however, that the Government do not intend to prosecute the applicants for any of the offences for which their extradition is sought (cf. Soering, § 16, cited above, where the Federal Republic of Germany had, by its extradition request to the United Kingdom, indicated its intention to prosecute the applicant and, in addition, its extradition request had contained proof that German courts had jurisdiction to try the applicant). Consequently, the Court considers that the question of the appropriate forum for prosecution, and whether this is relevant to the Court’s assessment under Article 3, does not therefore arise for examination in the present case.",
"167. The Court further notes that the House of Lords in Wellington has identified a tension between Soering and Chahal, both cited above, which calls for clarification of the proper approach to Article 3 in extradition cases. It also observes that the conclusions of the majority of the House of Lords in that case depended on three distinctions which, in their judgment, were to be found in this Court’s case-law. The first was between extradition cases and other cases of removal from the territory of a Contracting State; the second was between torture and other forms of ill-treatment proscribed by Article 3; and the third was between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. It is appropriate to consider each distinction in turn.",
"168. For the first distinction, the Court considers that the question whether there is a real risk of treatment contrary to Article 3 in another State cannot depend on the legal basis for removal to that State. The Court’s own case-law has shown that, in practice, there may be little difference between extradition and other removals. For example, extradition requests may be withdrawn and the Contracting State may nonetheless decide to proceed with removal from its territory (see Muminov v. Russia, no. 42502/06, § 14, 11 December 2008). Equally, a State may decide to remove someone who faces criminal proceedings (or has already been convicted) in another State in the absence of an extradition request (see, for example, Saadi v. Italy, cited above, and Bader and Kanbor v. Sweden, no. 13284/04, ECHR 2005 ‑ XI). Finally, there may be cases where someone has fled a State because he or she fears the implementation of a particular sentence that has already been passed upon him or her and is to be returned to that State, not under any extradition arrangement, but as a failed asylum seeker (see D. and Others v. Turkey, no. 24245/03, 22 June 2006). The Court considers that it would not be appropriate for one test to be applied to each of these three cases but a different test to be applied to a case in which an extradition request is made and complied with.",
"169. For the second distinction, between torture and other forms of ill-treatment, it is true that some support for this distinction and, in turn, the approach taken by the majority of the House of Lords in Wellington, can be found in the Soering judgment. The Court must therefore examine whether that approach has been borne out in its subsequent case-law.",
"170. It is correct that the Court has always distinguished between torture on the one hand and inhuman or degrading punishment on the other (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25; Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999 ‑ V). However, the Court considers that this distinction is more easily drawn in the domestic context where, in examining complaints made under Article 3, the Court is called upon to evaluate or characterise acts which have already taken place. Where, as in the extra-territorial context, a prospective assessment is required, it is not always possible to determine whether the ill-treatment which may ensue in the receiving State will be sufficiently severe as to qualify as torture. Moreover, the distinction between torture and other forms of ill-treatment can be more easily drawn in cases where the risk of the ill-treatment stems from factors which do not engage either directly or indirectly the responsibility of the public authorities of the receiving State (see, for example, D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III, where the Court found that the proposed removal of a terminally ill man to St Kitts would be inhuman treatment and thus in violation of Article 3).",
"171. For this reason, whenever the Court has found that a proposed removal would be in violation of Article 3 because of a real risk of ill-treatment which would be intentionally inflicted in the receiving State, it has normally refrained from considering whether the ill-treatment in question should be characterised as torture or inhuman or degrading treatment or punishment. For example, in Chahal the Court did not distinguish between the various forms of ill-treatment proscribed by Article 3: at paragraph 79 of its judgment the Court stated that the “Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment”. In paragraph 80 the Court went on to state that:",
"“The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion ...”",
"Similar passages can be found, for example, in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I and Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 ‑ ... where, in reaffirming this test, no distinction was made between torture and other forms of ill-treatment.",
"172. The Court now turns to whether a distinction can be drawn between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. The Court recalls its statement in Chahal, cited above, § 81 that it was not to be inferred from paragraph 89 of Soering that there was any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 was engaged. It also recalls that this statement was reaffirmed in Saadi v. Italy, cited above, § 138, where the Court rejected the argument advanced by the United Kingdom Government that the risk of ill-treatment if a person is returned should be balanced against the danger he or she posed. In Saadi the Court also found that the concepts of risk and dangerousness did not lend themselves to a balancing test because they were “notions that [could] only be assessed independently of each other” (ibid. § 139). The Court finds that the same approach must be taken to the assessment of whether the minimum level of severity has been met for the purposes of Article 3: this too can only be assessed independently of the reasons for removal or extradition.",
"173. The Court considers that its case-law since Soering confirms this approach. Even in extradition cases, such as where there has been an Article 3 complaint concerning the risk of life imprisonment without parole, the Court has focused on whether that risk was a real one, or whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State (see Olaechea Cahuas v. Spain, no. 24668/03, §§ 43 and 44, 10 August 2006; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; and Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII). In those cases, the Court did not seek to determine whether the Article 3 threshold has been met with reference to the factors set out in paragraph 89 of the Soering judgment. By the same token, in cases where such assurances have not been given or have been found to be inadequate, the Court has not had recourse to the extradition context to determine whether there would be a violation of Article 3 if the surrender were to take place (see, for example, Soldatenko v. Ukraine, no. 2440/07, §§ 66-75, 23 October 2008). Indeed in the twenty-two years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State. To this extent, the Court must be taken to have departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment.",
"174. Finally, the Court considers that, in interpreting Article 3, limited assistance can be derived from the approach taken by the Canadian Supreme Court in Burns and Ferras (see paragraphs 74 and 75 above). As the applicants have observed, those cases were about the provision of the Canadian Charter on fundamental justice and not the Charter’s prohibition on cruel or unusual treatment or punishment. Furthermore, the Charter system expressly provides for a balancing test in respect of both of those rights, which mirrors that found in Articles 8-11 of the Convention but not Article 3 (see paragraph 73 above).",
"175. Instead, the Court considers that greater interpretative assistance can be derived from the approach the Human Rights Committee has taken to the prohibition on torture and ill-treatment contained in Article 7 of the ICCPR. The Committee’s General Comment No. 20 (see paragraph 76 above) makes clear that Article 7 prevents refoulement both when there is a real risk of torture and when there is a real risk of other forms of ill-treatment. Further, recent confirmation for the approach taken by the Court and by the Human Rights Committee can be found in Article 19 of the Charter on Fundamental Rights of the European Union, which provides that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see paragraph 80 above). The wording of Article 19 makes clear that it applies without consideration of the extradition context and without distinction between torture and other forms of ill-treatment. In this respect, Article 19 of the Charter is fully consistent with the interpretation of Article 3 which the Court has set out above. It is also consistent with the Council of Europe Guidelines on human rights and the fight against terrorism, quoted at paragraph 79 above. Finally, the Court’s interpretation of Article 3, the Human Rights Committee’s interpretation of Article 7 of the ICCPR, and the text of Article 19 of the Charter are in accordance with Articles 3 and 16 § 2 of the United Nations Convention Against Torture, particularly when the latter Article provides that the provisions of the Convention are “without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion” (see paragraph 78 above).",
"176. The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi ) should be regarded as applying equally to extradition and other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3.",
"177. However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008).",
"178. Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court’s conclusion that there has been a violation of Article 3:",
"- the presence of premeditation ( Ireland v. the United Kingdom, cited above, § 167);",
"- that the measure may have been calculated to break the applicant’s resistance or will (ibid, § 167; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 446, ECHR 2004 ‑ VII);",
"- an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority ( Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 ‑ IX; Peers v. Greece, no. 28524/95, § 75, ECHR 2001 ‑ III);",
"- the absence of any specific justification for the measure imposed ( Van der Ven v. the Netherlands, no. 50901/99, §§ 61-62, ECHR 2003 ‑ II; Iwańczuk v. Poland, no. 25196/94, § 58, 15 November 2001);",
"- the arbitrary punitive nature of the measure (see Yankov, cited above, § 117);",
"- the length of time for which the measure was imposed ( Ireland v. the United Kingdom, cited above, § 92); and",
"- the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention ( Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 ‑ IX).",
"The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context.",
"179. Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment (see Saadi, cited above § 142). The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect of democracy, human rights and the rule of law.",
"III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ARISING FROM CONDITIONS AT ADX FLORENCE",
"A. The admissibility of the fifth and sixth applicants’ complaints",
"180. The Court recalls that, in its admissibility decision of 6 July 2010, it declared admissible the first, second and third applicant’s complaints concerning detention at ADX Florence and the imposition of special administrative measures post-trial. It declared inadmissible the fourth applicant’s similar complaint, on the grounds that his medical condition meant he was unlikely to spend any more than a short period of time at ADX Florence (see paragraphs 144 and 145 of the decision).",
"181. The Court finds the fifth and sixth applicant’s complaints in relation to ADX Florence and the imposition of special administrative measures post-trial to be indistinguishable from those made by the first and third applicants. Therefore, the fifth and sixth applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The Government",
"182. The Government recalled that the applicants were suspected of terrorism and the Council of Europe Guidelines on human rights and the fight against terrorism had recognised that such persons could be subjected to more severe restrictions than those applied to other prisoners (see paragraph 114 above). The Court had also recognised that prohibitions on contact and communication for security reasons did not of themselves amount to inhuman treatment or punishment. The Government accepted that such restrictions could not amount to complete sensory isolation and could not be imposed indefinitely. However, in assessing the nature of solitary confinement, factors to be taken into account included the physical conditions of confinement and the possibility of visits.",
"183. On this basis, and in the light of the evidence provided by the ADX officials and the Department of Justice (see paragraphs 82–96 above), the applicants’ complaints were unsustainable. The physical conditions of detention at ADX were compatible with Article 3 as interpreted by the Court. Even in the highest security units at ADX, there were opportunities for communication with other inmates, recreation, education, religious expression and engagment with the outside world. The mental and social needs of inmates were appropriately catered for and inmates could not be described as being detained in conditions that amounted to sensory isolation, still less indefinite solitary confinement, whether total or relative. The evidence, particularly the Department of Justice’s replies to the Rapporteur’s questions, showed that there were practical and effective opportunities to enter the step down and special security unit programs, which could ultimately lead to transfer to another prison. Moreover, initial placement at ADX was determined by reference to stated, objective criteria, with full procedural protections through the Federal Bureau of Prisons’ Administrative Remedy Program.",
"184. The Bureau of Prisons had shown itself willing and able to respond to requests for change in conditions, not least the relaxation of conditions in H Unit to allow phase three inmates to eat together, the expansion of Arabic language books in the library, and the discontinuation of strip searches before inmates could leave their cells. All of these factors meant conditions at ADX Florence were distinguishable from G.B. v. Bulgaria, no. 42346/98, 11 March 2004 and Peers v. Greece, no. 28524/95, ECHR 2001 ‑ III and, in fact, were much less severe than in Ramirez Sanchez v. France [GC], no. 59450/00, ECHR 2006 ‑ IX, where the Court had found no violation of Article 3.",
"185. Finally, inmates had recourse to the courts to challenge their conditions of detention (see the summary of relevant Eighth Amendment jurisprudence set out at paragraph 105–110 above). A detailed examination of the federal courts’ consideration of the challenges brought by ADX inmates, showed that the allegations made in respect of ADX were unfounded, and that the United States’ courts applied a legal analysis which was in reality no different from that applied by this Court. Moreover, these decisions showed that the United States were both able and willing to protect the interests of ADX inmates, assess their claims and uphold them where appopriate. The Government also stated that, within the materials provided by the applicants, the Court could only properly place reliance on the decisions of the United States courts, rather than the untested statements of inmates at ADX or reports based upon them. Among these decisions, the Government placed particular emphasis on the conclusions reached by the Magistrate Judge in Rezaq (summarised at paragraph 112 above). They also continued to rely on the accuracy, fairness and good faith of the declarations which had been provided to the Court by the Federal Bureau of Prisons officials.",
"b. The applicants",
"i. The first, third, fifth and sixth applicants",
"186. The above applicants invited the Court to proceed on the basis that, if convicted, they would be detained at ADX Florence and subjected to special administrative measures. They also adopted the submissions of the third party interveners that the Eighth Amendment did not offer equivalent protection to Article 3 (see paragraph 197 below).",
"187. The applicants invited the Court to consider that, throughout their detention in the United Kingdom, they had never been considered physically dangerous and were being held in much less stringent conditions than those at ADX. For instance, the first applicant was being held in a unit were he was never shackled, spent nine hours outside his cell every day and participated in common activities with other prisoners, which included educational classes, cooking for themselves and tending a vegetable garden. He also had weekly “open” visits with his family (sitting in a large hall without intervening glass screens). Even if he were to be convicted in the United Kingdom and classified as a High Risk Category A prisoner (which he was not) his conditions of detention would be less restricted and he would enjoy access to even more educational, religious, sport and recreational facilities than at present. Many of these activities would involve association with large groups of prisoners.",
"188. In respect of the procedures for placement at ADX, the applicants relied on the evidence they had submitted which showed that the criteria for placement at ADX Florence was subjective, the transfer hearing was mere window dressing, and inmates had great difficulty in challenging the imposition of special administrative measures. Even on Mr Synsvoll’s evidence (see paragraph 89 above) the Bureau of Prisons was at the mercy of the wishes of other Department of Justice agencies such as the FBI, meaning that the measures could not be challenged through its Administrative Remedy Program. In the applicants’ submission, these faults in the Bureau’s procedures meant that the ADX regime did not comply with the procedural requirements for solitary confinement which the Court had laid down in Onoufriou v. Cyprus, no. 24407/04, § 70, 7 January 2010.",
"189. The applicants further submitted that, having regard to the Court’s case-law and the international materials summarised at paragraphs 114– 121 above, the conditions of detention at ADX amounted to solitary confinement of an indefinite duration and did not comply with the substantive requirements of Article 3.",
"190. All ADX Florence prisoners who were subjected to special administrative measures were detained at H Unit. It was a place of almost complete social isolation. Communication between inmates and with the outside world was severely curtailed and at the total discretion of the authorities. Contact with prison staff was minimal, as was telephone contact with the outside world. Educational activities and library access were limited and confined to in-cell activity. Recreation alone in an empty cage was not recreation in any meaningful sense and recreation periods were frequently cancelled.",
"191. The very fact of being subjected to special administrative measures meant H Unit inmates were not eligible for the step down program. The program itself was highly capricious. Admission was at the discretion of staff and inmates could be returned to their original unit at any stage for a disciplinary violation or other undefined reason without explanation or due process. This might include something as minor as a disrespectful attitude to staff. As Professor Rovner had observed, despite the increase in the number of inmates admitted to the step down program, it remained a minority of inmates who progressed through it; significant numbers of inmates spent extremely long periods of time at ADX and, in the case of terrorist inmates, they could spent up to thirteen years in solitary confinement before being admitted to the program. Other inmates with good conduct records had spent years but had never been admitted to the program.",
"192. The applicants also submitted that the scientific evidence on the detrimental effect of solitary confinement on mental health was unequivocal (see paragraph 99 above) and not disputed by the Government, yet the solitary confinement regime in place at ADX failed entirely to recognise the serious harm it caused to its inmates’ mental health. The regime failed to provide mental healthcare which was appropriate to the very serious needs of the patient-inmates. Even on Dr Zohn’s evidence, those with serious mental health problems such as schizophrenia were detained at ADX Florence.",
"193. In this connection, the first, third and fifth applicants provided the following information on their mental health.",
"The first applicant had been diagnosed with post-traumatic stress disorder, which had worsened in the prison unit where he was detained.",
"The third applicant had been diagnosed with Asperger syndrome, recurrent depressive disorder (with his current episode assessed as “mild” as opposed to previous, severe depressive episodes), and obsessive compulsive disorder in conjunction with other anxiety symptoms. The latter had worsened in detention, though his depressive symptoms had improved. Before his Asperger syndrome had been diagnosed in June 2009, a psychiatrist had predicted a high risk of serious depression leading to suicide if the third applicant were to be extradited and placed in solitary confinement for a long period. The third applicant also submitted a statement prepared by an American criminologist, detailing the heightened difficulties experienced by those with Asperger syndrome in federal prisons and the absence of proper facilities within the Bureau of Prisons to treat the condition.",
"The fifth applicant had a recurrent depressive disorder and had suffered several mental breakdowns while in detention in the United Kingdom. His most recent psychiatrist’s report assessed his current episode as moderate to severe. The recommended treatment was medication with psychological treatment and support, including productive activity, opportunities for interaction with others and exercise.",
"ii. The fourth applicant",
"194. The fourth applicant asked the Court to reconsider its decision to declare his complaint under this heading inadmissible, which it had done on the grounds that, as a result of his medical conditions (see paragraph 37 above), there was no real risk of his spending anything more than a short period of time at ADX Florence. The fourth applicant submitted a letter from Professor Andrew Coyle of the International Centre for Prison Studies, who had given evidence in the fourth applicant’s domestic proceedings. The letter, dated 1 February 2011, noted that the fourth applicant continued to be detained in the United Kingdom in a non-medical facility, subject to a comprehensive health and social care plan and regular daily support. Professor Coyle stated that, because the United Kingdom prison authorities saw no need to transfer the fourth applicant to a medical setting, the United States prison authorities might have regard to this fact and conclude that he could be held at ADX Florence rather than a Bureau of Prison’s medical facility. The fourth applicant also submitted evidence that one Arab Muslim who had been convicted of terrorism offences, Omar Abdel Rahman, had been detained at ADX Florence, despite severe heart problems, blindness and diabetes. When his condition worsened, Abdel Rahman was transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri and thereafter to a Federal Medical Centre at Butner, North Carolina. He continued to rely on the fact that his disabilities would exacerbate any ill-treatment inherent in detention at ADX Florence.",
"195. The fourth applicant submitted that, even if he were not detained at ADX Florence, if he were subjected to special administrative measures, detention at a Bureau of Prisons medical facility could be at least as restrictive as detention at ADX and could involve the same degree of solitary confinement as at ADX. Thus, even if there were no risk of detention at ADX, there was still a real risk of ill-treatment contrary to Article 3 at another facility.",
"196. The fourth applicant also submitted that the Eighth Amendment did not offer equivalent protection to Article 3. The Supreme Court of the United States had only recently (and by narrow majorities) decided that it was unconstitutional to impose the death penalty or life imprisonment on minors ( Roper and Graham, cited above) and it was clear that, in respect of interrogation techniques used at Guantánamo Bay, the United States did not adopt the same definitions of torture and other forms of ill-treatment as this Court.",
"c. The third party interveners",
"197. The third party interveners (see paragraph 7 above) submitted that there was a substantial gap between the protection offered by Article 3 of the Convention and the protection offered by the Eighth Amendment. Article 3 did not require an applicant to show deliberate imposition of pain or deliberate indifference to it ( Alver v. Estonia, no. 64812/01, § 55, 8 November 2005; Peers v. Greece, no. 28524/95, §§ 74-75, ECHR 2001 ‑ III), whereas this was a specific requirement in order to show a violation of the Eighth Amendment (the subjective test set out in Wilson : see paragraph 105 above). Article 3 also provided much greater protection against mental suffering and psychological harm arising from conditions of detention ( Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 ‑ IX and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 121, 29 November 2007); the United States courts did not even consider a significant deterioration of a detainee’s mental condition to be sufficient for an Eighth Amendment violation unless there was also a deprivation of basic physical needs such as food, shelter, clothing or warmth (see Hill and Magluta, cited at paragraph 110 above).",
"198. Limited protection was provided by the due process clause of the Fifth Amendment (see paragraph 109 above). Indeed, the Tenth Circuit’s construction of that clause provided no additional protection to the Eighth Amendment. The Wilkinson case (see also paragraph 109 above) only required the barest administrative review of the decision to place an inmate in a supermax prison and the procedures could be informal and non-adversarial without any requirement for a judge or neutral arbiter. Prison officials could continue to rely on the initial reasons for placement, including the crime for which the inmate was in prison. The wide discretion afforded to officials, the deference afforded by the courts, and the vague criteria for placement at ADX (and for entry to the step down program) meant there was no meaningful review at all.",
"199. There were also significant procedural obstacles to prisoners seeking to vindicate their constitutional rights through the federal courts. The Prison Litigation Reform Act 1996 barred prisoners from bringing court claims if all administrative remedies had not been exhausted, a rule which had been enforced strictly by the courts to prevent otherwise compelling cases from proceeding. The Act prevented prisoners from receiving compensation for mental and emotional injuries unless they also showed physical injury, even in respect of official conduct which was deliberately and maliciously intended to harm. The Act further allowed prison officials to seek to terminate a court order in favour of a prisoner after the order had been in force for two years.",
"2. The Court’s assessment",
"a. General principles",
"i. Article 3 and detention",
"200. As the Court has frequently stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV; A.B. v. Russia, no. 1439/06, § 99, 14 October 2010).",
"201. In order to fall under Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010 ‑ ...). Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers, cited above, § 74).",
"202. For a violation of Article 3 to arise from an applicant’s conditions of detention, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Enea v. Italy [GC], no. 74912/01, § 56, ECHR 2009-...). Measures depriving a person of his liberty may often involve an element of suffering or humiliation. However, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94158, ECHR-XI, and Cenbauer v. Croatia, no. 73786/01, § 44, ECHR 2006-III; A.B. v. Russia, cited above, § 100).",
"203. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Ciorap v. Moldova, no. 12066/02, § 64, 19 June 2007; Alver v. Estonia, no. 64812/01, 8 November 2005; Ostrovar v. Moldova, no. 35207/03, § 79, 13 September 2005).",
"204. In addition to these general principles, the following principles are relevant to the present case.",
"ii. Solitary confinement",
"205. The circumstances in which the solitary confinement of prisoners will violate Article 3 are now well-established in the Court’s case-law.",
"206. Complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason ( Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003 ‑ II).",
"207. Other forms of solitary confinement which fall short of complete sensory isolation may also violate Article 3. Solitary confinement is one of the most serious measures which can be imposed within a prison ( A.B. v. Russia, cited above, § 104) and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities (see Iorgov v. Bulgaria, no. 40653/98, § 83, 11 March 2004) Indeed, as the Committee’s most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is (see the Committee’s 21 st General Report, summarised at paragraph 116 above).",
"208. At the same time, however, the Court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V, quoted with approval by the Grand Chamber in Ramirez Sanchez v. France, cited above, § 12; Öcalan v. Turkey [GC], no. 46221/99, § 191, ECHR 2005-IV). In many States Parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners (see, Ramirez Sanchez v. France [GC], no. 59450/00, § 138, ECHR 2006-IX; and, as recent examples, Alboreo v. France, no. 51019/08, § 110, 20 October 2011 [not yet final] and Madonia v. Italy (dec.), no. 1273/06, 22 September 2009).",
"209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).",
"210. In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for Article 3 (see Madonia, cited above). The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely (see Ramirez Sanchez, cited above, §§ 136 and 145, where the applicant was held in solitary confinement for eight years and two months).",
"211. Equally, although it is not for the Court to specify which security measures may be applied to prisoners, it has been particularly attentive to restrictions which apply to prisoners who are not dangerous or disorderly (see, for example, A.B. v. Russia, cited above, § 105 and Csüllög v. Hungary, no. 30042/08, § 36, 7 June 2011); to restrictions which cannot be reasonably related to the purported objective of isolation (see Csüllög, cited above, § 34,); and to restrictions which remain in place after the applicant has been assessed as no longer posing a security risk (see, for example, Khider v. France, no. 39364/05, §§ 118 and 119, 9 July 2009).",
"212. Finally, in order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules. Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities’ decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Fourth, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances ( Onoufriou, cited above, § 70). Lastly, it is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement ( Ramirez Sanchez v. France, cited above, § 145 above; A.B. v. Russia, cited above, § 111).",
"iii. Recreation and outdoor exercise in prison",
"213. Of the elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners may take it. The Court has frequently observed that a short duration of outdoor exercise limited to one hour a day was a factor that further exacerbated the situation of the applicant, who was confined to his cell for the rest of the time without any kind of freedom of movement (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 88, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 69, 21 December 2010, § 69, Skachkov v. Russia, no. 25432/05, § 54, 7 October 2010).",
"214. The physical characteristics of outdoor exercise facilities also featured prominently in the Court’s analysis. In Moiseyev v. Russia, the exercise yards in a Moscow prison were just two square metres larger than the cells and hardly afforded any real possibility for exercise. The yards were surrounded by three-metre-high walls with an opening to the sky protected with metal bars and a thick net. The Court considered that the restricted space coupled with the lack of openings undermined the facilities available for recreation and recuperation (see Moiseyev v. Russia, no. 62936/00, § 125, 9 October 2008). The Court examined the characteristics of outdoor exercise in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011. The Court found that the applicants’ situation (in overcrowded conditions) was further exacerbated by the fact that they were confined to their cell day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in the recreation room. As there was no roof over the outdoor yard, it was hard to see how the prisoners could use the yard in bad weather conditions in any meaningful way. It was true that the applicants were allowed to watch TV, listen to radio and read books in the cell. The Court found, however, that this could not make up for the lack of possibility to exercise or spend time outside the overcrowded cell (see paragraph 78 of the judgment).",
"iv Detention and mental health",
"215. The Court has held on many occasions that the detention of a person who is ill may raise issues under Article 3 of the Convention and that the lack of appropriate medical care may amount to treatment contrary to that provision (see Sławomir Musiał v. Poland, no. 28300/06, § 87, 20 January 2009 with further references therein). In particular, the assessment of whether the particular conditions of detention are incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. The feeling of inferiority and powerlessness which is typical of persons who suffer from a mental disorder calls for increased vigilance in reviewing whether the Convention has (or will be) complied with. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant (ibid. and Dybeku v. Albania, no. 41153/06, § 41, 18 December 2007).",
"b. Application of the general principles to the facts of the case",
"i. The case of the fourth applicant",
"216. The Court turns first to the case of the fourth applicant, who asks the Court to reconsider its decision to declare his complaint in respect of ADX inadmissible. The Court will only re-examine complaints which have been declared inadmissible in exceptional circumstances where a clear mistake has been made either in the establishment of facts that are relevant to the admissibility requirements or in the Court’s assessment ( Ölmez and Ölmez v. Turkey (dec.), no. 39464/98, 5 July 2005).",
"217. Those circumstances do not obtain in the fourth applicant’s case. Indeed, as the letter from Professor Coyle recognises, the fourth applicant is not detained in a medical facility but is subject to a comprehensive health and social care plan and regular daily support. On the basis of the information provided by the parties as to the regime at ADX, the Court does not consider that it would be possible for such a plan, or such regular support, to be provided at ADX. It may well be that, as the fourth applicant submits, Omar Abdel Rahman was detained at ADX Florence, despite severe heart problems, blindness and diabetes. However, the fourth applicant’s disabilities are much more severe, not least the fact that both his forearms have been amputated. This fact alone would appear to make detention at ADX impossible. The Court therefore refuses the fourth applicant’s request.",
"ii. The cases of the first, third, fifth and sixth applicants.",
"218. For the above applicants, the Government have accepted that, although detention at ADX would not be inevitable if they were extradited and convicted in the United States, there is a real risk of detention there. The Court will proceed on this basis.",
"219. In considering whether detention at ADX would violate Article 3, the Court observes that it does not appear to be in dispute that physical conditions at ADX Florence – that is, the size of cells, the availability of lighting and appropriate sanitary facilities and so on – meet the requirements of Article 3. Instead, the complaints made by the applicants are principally directed first, at the alleged lack of procedural safeguards before placement at ADX and second, at ADX’s restrictive conditions and lack of human contact.",
"220. For the first, the Court finds no basis for the applicants’ submission that placement at ADX would take place without any procedural safeguards. The evidence submitted by the United States’ authorities shows that not all inmates who are convicted of international terrorism offences are housed at ADX. Therefore, while it may well be the case that, as Professor Rovner states, inmates convicted of terrorism offences were sent to ADX soon after 11 September 2001 (despite years of good conduct in other, less secure federal prisons), the applicants have not shown that they would be detained at ADX merely as a result of conviction for terrorism offences. Instead, it is clear from the declarations submitted by the Government, particularly that of Mr Milusnic, that the Federal Bureau of Prisons applies accessible and rational criteria when deciding whether to transfer an inmate to ADX. Placement is accompanied by a high degree of involvement of senior officials within the Bureau who are external to the inmate’s current institution. Their involvement and the requirement that a hearing be held before transfer provide an appropriate measure of procedural protection. There is no evidence to suggest that such a hearing is merely window dressing. Even if the transfer process were unsatisfactory, there would be recourse to both the Bureau’s administrative remedy programme and the federal courts, by bringing a claim under the due process clause of the Fourteenth Amendment, to cure any defects in the process. Despite the third party interveners’ submission that recourse to the courts is difficult, the fact that Fourteenth Amendment cases have been brought by inmates at ADX shows that such difficulties can be overcome.",
"221. For the second complaint, ADX’s restrictive conditions, it is true that the present applicants are not physically dangerous and that, as the Court has observed at paragraph 211 above, it must be particularly attentive to any decision to place prisoners who are not dangerous or disorderly in solitary confinement. However, as the applicants’ current detention in high security facilities in the United Kingdom demonstrates, the United States’ authorities would be justified in considering the applicants, if they are convicted, as posing a significant security risk and justifying strict limitations on their ability to communicate with the outside world. There is nothing to indicate that the United States’ authorities would not continually review their assessment of the security risk which they considered the applicants to pose. As Ms Rangel has indicated, the Federal Bureau of Prisons has well-established procedures for reviewing an inmate’s security classification and carrying out reviews of that classification in six-monthly program reviews and three-yearly progress reports. Moreover, as the Department of Justice’s most recent letters show, the United States’ authorities have proved themselves willing to revise and to lift the special administrative measures which have been imposed on terrorist inmates thus enabling their transfer out of ADX to other, less restrictive institutions (see paragraph 97 above).",
"222. The Court also observes that it is not contested by the Government that conditions at ADX Florence are highly restrictive, particularly in the General Population Unit and in phase one of the Special Security Unit.",
"It is clear from the evidence submitted by both parties that the purpose of the regime in those units is to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. This does not mean, however, that inmates are kept in complete sensory isolation or total social isolation. Although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided through television and radio channels, frequent newspapers, books, hobby and craft items and educational programming. The range of activities and services provided goes beyond what is provided in many prisons in Europe. Where there are limitations on the services provided, for example restrictions on group prayer, these are necessary and inevitable consequences of imprisonment (see, mutatis mutandis, Dickson v. the United Kingdom [GC], no. 44362/04, § 68, ECHR 2007 ‑ V). The restrictions are, for the most part, reasonably related to the purported objectives of the ADX regime (cf. Csüllog, cited above, concerning unnecessary restrictions, such as a prohibition on tea-bags and books).",
"The Court also observes that the services provided by ADX are supplemented by regular telephone calls and social visits and by the ability of inmates, even those under special administrative measures, to correspond with their families. The extent of those opportunities would be of considerable assistance to the applicants who would, by their extradition, be separated from their families in the United Kingdom.",
"The Court finds that there are adequate opportunities for interaction between inmates. While inmates are in their cells talking to other inmates is possible, admittedly only through the ventilation system. During recreation periods inmates can communicate without impediment. Indeed, as Mr Milusnic indicates, most inmates spend their recreation periods talking (see his declaration at paragraph 85 above).",
"In addition, although it is of some concern that outdoor recreation can be withdrawn for periods of three months for seemingly minor disciplinary infractions, the Court places greater emphasis on the fact that, according to Mr Milusnic, inmates’ recreation has only been cancelled once for security reasons and that the periods of recreation have been increased from five to ten hours per week.",
"All of these factors mean that the isolation experienced by ADX inmates is partial and relative (see Ramirez Sanchez, cited above, § 135).",
"223. The Court would also note that, as it emphasised in Ramirez Sanchez, cited above, § 145, solitary confinement, even in cases entailing relative isolation, cannot be imposed indefinitely. If an applicant were at real risk of being detained indefinitely at ADX, then it would be possible for conditions to reach the minimum level of severity required for a violation of Article 3. Indeed, this may well be the case for those inmates who have spent significant periods of time at ADX. However, the figures provided by the United States’ authorities, although disputed by the applicants, show that there is a real possibility for the applicants to gain entry to the step down or special security unit programs. First, the Department of Justice’s letter of 26 September 2011 shows that while there were 252 inmates in ADX’s General Population Unit, 89 inmates were in the step down program. The figures provided in that letter for the special security unit program, when compared with the November 2010 figures given by Mr Milusnic, demonstrated that inmates are progressing through that program too. Second, Ms Rangel’s declarations show that inmates with convictions for international terrorism have entered the step down program and, in some cases, have completed it and been transferred to other institutions. Ms Rangel’s declaration is confirmed by the Rezaq et al v. Nalley et al judgment of the District Court where the petitioners, all convicted international terrorists, had brought proceedings to obtain entry to the step down program but, by the time the matter came to judgment, had completed the program and been transferred elsewhere (see paragraph 112 above).",
"224. Finally, to the extent that the first, third and fifth applicants rely on the fact that they have been diagnosed with various mental health problems, the Court notes that those mental health conditions have not prevented their being detained in high-security prisons in the United Kingdom. On the basis of Dr Zohn’s declaration, it would not appear that the psychiatric services which are available at ADX would be unable to treat such conditions. The Court accordingly finds that there would not be a violation of Article 3 in respect of these applicants in respect of their possible detention at ADX.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 ARISING FROM THE APPLICANTS’ POSSIBLE SENTENCES",
"A. The admissibility of the fifth and sixth applicants’ complaints",
"225. The first, third and fourth applicants’ complaints under this head were declared admissible by the Court in its decision of 6 July 2010. The fifth and sixth applicants’ complaints are indistinguishable from those made by the first, third and fourth applicants; those complaints are not, therefore, manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The Goverment",
"226. The Government relied on the Court’s rulings in Kafkaris and Léger v. France, no. 19324/02, ECHR 2006 ‑ ..., and the United Kingdom court’s rulings in Wellington and Bieber (see paragraphs 64–72 and 144 above). In particular, they submitted that, in Wellington, the House of Lords had been correct to find that, while an irreducible life sentence might raise an issue under Article 3, it would not violate Article 3 at the time of its imposition unless it was grossly or clearly disproportionate.",
"227. The Government further submitted that, unless a life sentence was grossly or clearly disproportionate, an irreducible life sentence would only violate Article 3 if the prisoner’s further imprisonment could no longer be justified for the purposes of punishment and deterrence (see Wellington, cited above). No court could determine at the outset of the sentence when that point would be reached and, in a particular case, it might never be reached at all. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Article 3 could not be determined in advance of extradition.",
"228. In the present cases, none of the six applicants’ sentences were grossly disproportionate and all the sentences were reducible, as required by Kafkaris .The Government referred to the four mechanisms for sentence reduction outlined in the Department of Justice’s letter of 26 November 2010 (see paragraph 130 above): substantial assistance to the authorities in the investigation of a third party, recommendation for compassionate release by the Director of the Bureau of Prisons, commutation of the sentence by the President or pardon, reduction of the sentence based on the the sentencing guidelines which were subsequently lowered. In the Government’s submission, the first three mechanisms separately and all four mechanisms cumulatively, were more than sufficient to establish that any life sentence imposed on the applicants would be both de jure and de facto reducible.",
"229. The Government observed that the first, third, fourth and fifth applicants only faced the possibility of discretionary life sentences. In this respect, the Court of Appeal in Bieber had correctly concluded that this Court would not find a violation of Article 3 if an irreducible life sentence was deliberately imposed by a judge, when that judge considered that the offence was so serious that punishment and deterrence required the offender to spend the rest of his days in prison (see paragraph 45 of Bieber, quoted at paragraph 144 above). In the Government’s view, this was especially so when a discretionary life sentence by its very nature avoided the risk of arbitrariness of mandatory life sentences. Accordingly, given the serious nature of the allegations made against these applicants, and the full range of protections available in the United States (including the Eighth Amendment’s protection from grossly disproportionate sentences), there were no substantial grounds for believing that the imposition of discretionary life sentences would violate Article 3.",
"230. For the sixth applicant, the Government submitted that, as a general principle, a mandatory and irreducible life sentence would not violate Article 3, especially if it were imposed on an adult offender following conviction for an offence of the utmost severity. Under United States federal law a mandatory life sentence was reserved for a narrow category of offenders and the most serious criminal conduct. Given, therefore, that any mandatory life sentence (even if, for present purposes, it were irreducible) would only be imposed on the sixth applicant if he were convicted of participation in an act which had caused a massive loss of life, such a sentence would not be grossly disproportionate.",
"b. The applicants",
"231. The applicants submitted that a violation of Article 3 would arise, not just because their sentences would in practice be irreducible, but also because the sentences were grossly disproportionate. Their likely sentences were, in effect, mandatory sentences which left no room for consideration of their individual cases. They relied on the views expressed by the House of Lords and Privy Council in Lichniak, Reyes, de Boucherville, as well as the rulings in Dodo, Philibert, and Tcoeib (see paragraphs 142, 149 and 151–154 above). They also relied on academic materials detailing the inhumane and degrading effects sentences of life imprisonment without parole had on prisoners, particularly in the United States. [2] In their cases, the effects would be exacerbated by the requirement that they serve the sentences at ADX Florence and by the already poor mental health of some of the applicants.",
"232. It was not correct that, as the Government had suggested, no Article 3 issue could arise in respect of discretionary life sentences imposed by a judge. As Ms Barrett’s evidence showed (see paragraph 133 above), United States trial judges had a limited sentencing discretion and the sentencing guidelines called for any offence involving terrorism to be punished by the available statutory maximum sentence. Therefore, it was highly likely that, where applicable, life sentences would be imposed. Moreover, it was not necessary for a life sentence to be mandatory for it to be disproportionate and thus in violation of Article 3. Several of the applicants risked life sentences for non-murder offences; in those circumstances, their sentences would be disproportionate because they could be imposed for non-murder offences without any real judicial discretion.",
"233. The applicants did not accept that the four reduction mechanisms relied on by the Government meant that their sentences would be de facto reducible. Proper regard had to be given to the practical realities of their situation. First, they were not in a position to provide “substantial assistance” to the authorities. Second, compassionate release would only arise if they became terminally ill and, even then, the Bureau might not exercise its discretion in favour of release. In any event, hope of release to die of a terminal illness outside prison was not real hope of release. Third, release as a result of a change in the sentencing guidelines was speculative, did not automatically led to reductions, and would not apply if other, consecutive sentences were imposed. Finally, there was no record of any presidential pardon or commutation for a terrorism offence; the pardons issued in respect of the FALN were not comparable.",
"234. The extradition context was relevant insofar as any applicant sentenced to life imprisonment in a Contracting State could bring repeated applications to the Court complaining about his or her continued incarceration; by contrast, the present applicants had no means of challenging their incarceration once extradited. It was not correct, therefore, that an Article 3 issue could only arise after a substantial part of the sentence had been served and continued detention served no purpose (cf. Bieber and Wellington, cited above); an Article 3 issue could also arise at the time when the sentence was imposed. Moreover, it was irrelevant at what point a violation of Article 3 would arise in the United States: the principled approach which the Court had always taken to Article 3 meant that, whenever a risk of ill-treatment in the receiving State was clear and foreseeable, there would be a violation of Article 3.",
"2. The Court’s assessment",
"a. General considerations",
"235. The Court takes note of the parties’ submissions as to whether the applicants’ likely sentences are irreducible within the meaning of that term used in Kafkaris. However, given the views expressed by the House of Lords in Wellington and the Court of Appeal in Bieber in respect of Kafkaris (summarised at paragraphs 64–72 and 144 above), the Court considers it necessary to consider first whether, in the context of removal to another State, a grossly disproportionate sentence would violate Article 3 and second, at what point in the course of a life or other very long sentence an Article 3 issue might arise.",
"236. For the first issue, the Court observes that all five Law Lords in Wellington found that, in a sufficiently exceptional case, an extradition would be in violation of Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. The Government, in their submissions to the Court, accepted that proposition.",
"Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that “gross disproportionality” is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 134–136 above, the judgments of the Supreme Court of Canada at paragraph 148 above, and the further comparative materials set out at paragraphs 151– 156 above).",
"237. Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of the Convention ( Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 148 above), it will only be on “rare and unique occasions” that the test will be met.",
"238. The Court also accepts that, in a removal case, a violation would arise if the applicant were able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving State. However, as the Court has recalled at paragraph 177 above, the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States. Due regard must be had to the fact that sentencing practices vary greatly between States and that there will often be legitimate and reasonable differences between States as to the length of sentences which are imposed, even for similar offences. The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3.",
"239. The Court now turns to the second issue raised by the Court of Appeal and House of Lords. It considers that, subject to the general requirement that a sentence should not be grossly disproportionate, for life sentences it is necessary to distinguish between three types of sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment without the possibility of parole.",
"240. The first sentence is clearly reducible and no issue can therefore arise under Article 3.",
"241. For the second, a discretionary sentence of life imprisonment without the possibility of parole, the Court observes that normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) as the Grand Chamber stated in Kafkaris, cited above, the sentence is irreducible de facto and de iure.",
"242. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 151 and 152 above). This is no truer than for a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.",
"However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 138 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 74 above).",
"The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure ( Kafkaris, cited above).",
"b. The present cases",
"243. The Court now turns to the facts of each case. It is convenient first to consider the cases of the first, third, fourth and sixth applicants who face, at most, discretionary life sentences.",
"First, the Court observes that it is by no means certain that, if extradited, these applicants would be convicted of the charges against them. If they are, it is also by no means certain that discretionary life sentences would be imposed, particularly when none of the charges they face carries a mandatory minimum sentence of life imprisonment. Nonetheless, the Court considers that it is appropriate to proceed on the basis that discretionary life sentences are possible.",
"Second, it is necessary to consider whether such sentences would be grossly disproportionate. In this connection the Court observes that, while the offences with which these applicants are charged vary, all of them concern involvement in or support for terrorism. Given the seriousness of terrorism offences (particularly those carried out or inspired by Al-Qaeda) and the fact that the life sentences could only be imposed on these applicants after the trial judge considered all relevant aggravating and mitigating factors, the Court considers that discretionary life sentences would not be grossly disproportionate in their cases.",
"Third, as the Court has observed, in respect of a discretionary life sentence, an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) the sentence is irreducible de facto and de iure. Given that none of these applicants has been convicted, still less has begun serving any sentences which might be imposed upon conviction (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010), the Court considers that they have not shown that, upon extradition, their incarceration in the United States would not serve any legitimate penological purpose. Indeed, if they are convicted and given discretionary life sentences, it may well be that, as the Government have submitted, the point at which continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the United States’ authorities would refuse to avail themselves of the mechanisms which are available to reduce their sentences (see paragraph 130 above and Kafkaris, cited above, § 98).",
"Accordingly, the Court finds that these applicants have not demonstrated that there would be a real risk of treatment reaching the threshold of Article 3 as a result of their sentences if they were extradited to the United States. The Court therefore finds no violation of Article 3 in their cases.",
"244. Finally, the Court turns to the case of the fifth applicant. He faces two hundred and sixty-nine counts of murder and thus multiple mandatory sentences of life imprisonment without the possibility of parole. The Court does not find a mandatory life sentence would be grossly disproportionate for such offences, particularly when the fifth applicant has not adduced any evidence of exceptional circumstances which would indicate a significantly lower level of culpability on his part. Indeed, if he is convicted of these charges, it is difficult to conceive of any mitigating factors which would lead a court to impose a lesser sentence than life imprisonment without the possibility of parole, even if it had the discretion to do so. Moreover, for the reasons it has given in respect of the first, third, fourth and sixth applicants, the Court considers that he has not shown that incarceration in the United States would not serve any legitimate penological purpose. Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the threshold of Article 3 as a result of his sentence if he were extradited to the United States. Accordingly, the Court finds that there would be no violation of Article 3 in his case.",
"V. THE FIFTH AND SIXTH APPLICANTS’ REMAINING COMPLAINTS",
"A. The remaining complaints",
"245. In their initial application to the Court, the fifth and sixth applicants made ten further complaints.",
"246. First, they alleged that the diplomatic assurances provided by the United States were not sufficient to remove the risk of their being removed from the federal criminal justice system and designated as enemy combatants in violation of Articles 3, 5, 6 and 8 of the Convention. In particular, they relied on the fact that one of their indicted co-accused, Ahmad Khalfan Ghailani, was detained and brought before a Military Commission at Guantánamo Bay Naval Base (where he was allegedly tortured) only to be later transferred to stand trial in a Federal District Court in New York.",
"Second, they complained that the diplomatic assurances were not sufficient to remove the risk that they would be subjected to extraordinary rendition.",
"Third, relying on Article 2 of the Convention the fifth applicant argued that, as a result of his recurrent depressive disorder, his extradition would carry an extremely high risk that he would commit suicide.",
"Fourth, the fifth and sixth applicants complained that there was a real risk that they would be subjected to “special administrative measures” pre-trial in violation of Articles 3, 6, 8 and 14.",
"Fifth, the applicants alleged that there would be a real risk of a flagrant denial of justice in violation of Article 6 § 1 of the Convention because the extensive publicity which the United States Government’s counter-terrorism efforts had attracted would prejudice any jury, particularly when they were to stand trial in New York. This would be exacerbated by the public controversy surrounding the President’s decision to transfer other high profile terrorist suspects such as Khalik Sheikh Mohammed and Ahmed Ahmad Khalfan Ghailani, from Guantánamo to New York for trial.",
"Sixth, also under Article 6, the applicants argued that the case against them had been significantly weakened as new evidence had emerged in the course of their extradition proceedings. Notwithstanding this new evidence, their trial would be prejudiced by the fact that any jury would hear evidence linking them to a conspiracy to murder which involved Osama bin Laden and Al Qaeda.",
"Seventh, the applicants argued that further prejudice would arise if CS/1, Mr Al-Fadl, were to give evidence when it was not clear what pressure had been put on him or inducements given to him by the prosecuting authorities in order to secure his testimony.",
"Eighth, the sixth applicant alleged that any jury in his case would be further prejudiced by the fact that he had been designated as a global terrorist by the President of the United States.",
"Ninth, under Article 8 the applicants alleged that there would be a disproportionate interference with their private and family life in the United Kingdom if they were to be extradited. The first applicant relies on the fact that his extradition would result in permanent separation from his wife, children and grandchildren, who were all British residents.",
"Tenth, the applicants alleged that there would be a violation of Article 13 of the Convention if they were extradited as they would have no effective remedy for the violations of the Convention they would suffer in the United States.",
"247. In making these complaints, the fifth and sixth applicants considered that it was of some relevance that, rather than extraditing them to the United States in violation of the Convention, it would be possible for them to be tried in the United Kingdom. The crimes of which they were accused were justiciable in the United Kingdom; the vast bulk of the evidence against them had been obtained by the United Kingdom authorities and the majority of defence witnesses were in the United Kingdom but would not travel to the United States to give evidence for fear of arrest; and, despite their representations as to what would happen to the applicants in the United States, the United Kingdom Government had failed to give proper consideration to prosecuting them in the United Kingdom.",
"B. The Court’s assessment",
"248. The Court observes that the first and second complaints, which relate to an alleged risk of designation as enemy combatants and extraordinary rendition, are substantially the same as those made by the first, third and fourth applicants in their applications to the Court. Those complaints were rejected by the Court in its admissibility decision of 6 July 2010: see paragraphs 104-110 and 113-116 of the decision. Having regard to the similar Diplomatic Notes provided by the United States in respect of the fifth and sixth applicants there is no basis to reach a different conclusion in their case. Accordingly, these complaints must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"249. In respect of the third complaint, the fifth applicant’s risk of suicide, the Court considers it appropriate to distinguish between the risk during pre-trial and post-trial periods of detention.",
"In respect of the former, the Court notes that the first and third applicants complained that the imposition of special administrative measures pre-trial would have an adverse effect on their mental health. Insofar as they related to their possible conditions of pre-trial detention, the Court rejected those complaints as manifestly ill-founded. It found that it had not been suggested that, prior to extradition, the United Kingdom authorities would not advise their United States counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in United States federal prisons was substantially different to that provided at HMP Long Lartin (where the first and third applicants were being detained). There was also no reason to suggest that the United States’ authorities would ignore any changes in the applicants’ conditions or that, if they did present any suicidal tendencies or symptoms of self-harm, they would refuse to alter the conditions of their detention to alleviate any risk to them.",
"The Court finds that similar considerations must apply in respect of the fifth applicant’s complaint concerning his pre-trial detention. Accordingly, insofar as it relates to the risk of suicide before his trial would take place, the complaint must be rejected as manifestly ill-founded. Insofar as the complaint relates to the risk of suicide in post-trial detention at ADX Florence, the Court finds that no separate issue arises from the Article 3 complaint considered above.",
"250. The Court turns to the fourth, fifth, seventh and eighth complaints, which relate, respectively, to the imposition of special administrative measures pre-trial, the prejudicial effect of extensive pre-trial publicity, the prejudice arising from inducements or pressure placed on Mr Al-Fadl to testify against them, and the further prejudicial effect of the sixth applicant’s designation as a global terrorist. The Court notes that similar complaints were made by the first, third and fourth applicants and rejected in the admissibility decision (paragraphs 125-135, 159-160, 163 and 166). There are no grounds to distinguish the fifth and sixth applicants’ complaints under these headings and, accordingly, these complaints must also be rejected as manifestly ill-founded.",
"251. As regards the sixth complaint, that the evidence had significantly weakened against the fifth and sixth applicants, the Court recalls that it is not its task to assess the evidence against an accused, still less, in an extradition case, to evaluate the strength of the requesting State’s case against an applicant. This complaint must also be rejected as manifestly ill-founded.",
"252. For the ninth complaint, that extradition would be a disproportionate inference with their family and private life in the United Kingdom, the Court reiterates that it will only be in exceptional circumstances that an applicant’s private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, 26 January 2010). There are no such exceptional circumstances in the fifth and sixth applicants’ case, particularly given the gravity of the offences with which they are charged. This complaint is therefore manifestly ill founded.",
"253. Finally, since none of the above complaints are “arguable”, no issues arise under Article 13 of the Convention. The tenth complaint is therefore also manifestly ill founded.",
"254. The Court’s conclusion in respect of the fifth and sixth applicant’s ten further complaints make it unnecessary to consider what relevance, if any, should be attached to their submission that they could be prosecuted in the United Kingdom.",
"VI. THE SECOND APPLICANT",
"255. The Court notes that the second applicant has made similar submissions under Article 3 as to the length of his likely sentence and conditions at ADX Florence. For the latter, he has relied in particular on the fact that his schizophrenia necessitated his transfer from high security conditions at HMP Long Lartin to Broadmoor Hospital. There he has significant freedom within the security of the hospital and has participated in group activities as therapeutic measures. He is under the care of a consultant psychiatrist, who considers it necessary to continue his compulsory hospitalisation.",
"256. The Court considers that it is not in a position to rule on the merits of the second applicant’s complaints, particularly in respect of ADX Florence, but requires further submissions from the parties. For that reason, it decides to adjourn the examination of the second applicant’s complaints. Those complaints will now be considered under a new application number, no. 17299/12.",
"VII. RULE 39 OF THE RULES OF COURT",
"257. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.",
"258. It considers that the indications made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention."
] |
268 | Babar Ahmad and Others v. the United Kingdom | 10 April 2012 (judgment) | The applicants were indicted on various charges of terrorism in the United States, which requested their extradition. They complained about the risk of serving their prison term in a super-max prison, where they would be subjected to special administrative measures, and of being sentenced to irreducible life sentences. | In this case the Court decided to apply Rule 39 of the Rules of Court. The application of Rule 39 was lifted after the Court found, in its judgment, that there would be no violation of Article 3 of the Convention as a result of the length of the applicants’ possible sentences if they were extradited to the United States. | Interim measures | Expulsion or extradition cases | [
"I. THE CIRCUMSTANCES OF THE CASES",
"A. The United States indictments",
"8. The applicants have been indicted on various charges of terrorism in the United States of America. They are the subject of three separate sets of criminal proceedings in the United States federal courts. The first set concerns the first applicant, Mr Ahmad, and the third applicant, Mr Ahsan. The second set of proceedings concerns the second applicant, Mr Aswat, and the fourth applicant, Abu Hamza. The third set of proceedings concerns the fifth applicant, Mr Bary, and the sixth applicant, Mr Al Fawwaz.",
"9. The details of each indictment are set out below. On the basis of each indictment, the United States Government requested each applicant’s extradition from the United Kingdom. Each applicant then contested his proposed extradition in separate proceedings in the English courts.",
"1. The indictment concerning the first and third applicants",
"10. The indictment against the first applicant was returned by a Federal Grand Jury sitting in Connecticut on 6 October 2004. It alleges the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering. On 28 June 2006, a similar indictment was returned against the third applicant, save that the charge of money laundering was not included. For both indictments, the material support is alleged to have been provided through a series of websites, one of whose servers was based in Connecticut. The charge of conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country is based on two allegations: first, that the websites exhorted Muslims to travel to Chechnya and Afghanistan to defend those places; and second, that classified US Navy plans relating to a US naval battle group operating in the Straits of Hormuz in the Persian Gulf had been sent to the website. The plans are alleged to have discussed the battle group’s vulnerability to terrorist attack.",
"2. The indictment concerning the second and fourth applicants",
"11. The indictment against the fourth applicant was returned on 19 April 2004 by a Federal Grand Jury sitting in the Southern District of New York. It charges him with eleven different counts of criminal conduct. These cover three sets of facts.",
"12. The first group of charges relates to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers, Abu Al-Hassan, before and during the events in question.",
"13. The second group of charges relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, four counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. A further count charges him with conspiracy to supply goods and services to the Taliban.",
"14. The third group of charges relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Two counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation (Al Qaeda); a further two counts charge him with conspiracy to the main two counts.",
"15. On 12 September 2005, a superseding indictment was returned which named and indicted the second applicant as the fourth applicant’s alleged co-conspirator in respect of the Bly, Oregon charges (thus charging the second applicant with the same four counts as those faced by the fourth applicant in respect of the Bly, Oregon conspiracy). On 6 February 2006 a second superseding indictment was returned, which indicted a third man, Oussama Abdullah Kassir, as a co-conspirator in respect of the Bly, Oregon charges.",
"16. Mr Kassir was extradited to the United States from the Czech Republic in September 2007. On 12 May 2009, Mr Kassir was convicted on five counts relating to the Bly, Oregon jihad camp conspiracy. He was also convicted of a further six counts relating to the operation of terrorist websites. On 15 September 2009, after submissions from Mr Kassir and his defence counsel, the trial judge sentenced Mr Kassir to the maximum permissible sentence on each count. As a life sentence was the maximum permissible sentence on two of the counts, Mr Kassir had effectively been sentenced to a term of life imprisonment.",
"3. The indictment concerning the fifth and sixth applicants",
"17. In 1999 a Federal Grand Jury sitting in the Southern District of New York returned an indictment against Osama bin Laden and twenty other individuals, including the applicants, inter alia alleging various degrees of involvement in or support for the bombing of the United States embassies in Nairobi and Dar es Salaam in 1998.",
"18. The fifth applicant is charged with four counts: conspiracy to kill United States nationals, conspiracy to murder, conspiracy to destroy buildings and property, and conspiracy to attack national defence utilities.",
"19. The sixth applicant is charged with two hundred and eighty-five counts of criminal conduct, including over two hundred and sixty-nine counts of murder.",
"B. The applicants’ extradition proceedings in the United Kingdom",
"1. Extradition proceedings against the first applicant",
"20. The first applicant was arrested in London on 5 August 2004. On 23 March 2005, the United States Embassy in London issued Diplomatic Note No. 25. Where relevant, the note provides:",
"“Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.",
"The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.",
"Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”",
"21. Similar Diplomatic Notes were provided in respect of the other applicants in the course of their respective extradition proceedings.",
"22. At the extradition hearing before the Senior District Judge, the first applicant argued, inter alia, that, notwithstanding the Diplomatic Note, the risk of the death penalty being imposed remained since he could be tried on a superseding indictment. He further argued that he remained at risk of being designated as an “enemy combatant” pursuant to United States Military Order No. 1 and that he remained at risk of extraordinary rendition to a third country. He also argued that there was a substantial risk that he would be subjected to special administrative measures whilst in detention in a federal prison, which could involve, among other measures, solitary confinement in violation of Article 3 and restrictions on communication with lawyers in violation of Article 6 of the Convention.",
"23. In a decision given on 17 May 2005, the Senior District Judge ruled that the extradition could proceed and that, inter alia, the first applicant’s extradition would not be incompatible with his rights under the Convention. The Senior District Judge found that, on the basis of the Diplomatic Note, there was no risk that the death penalty would be imposed, that the applicant would be designated as an enemy combatant, or subjected to extraordinary rendition. The Senior District Judge found the application of special administrative measures to be the greatest ground for concern but concluded that, having regard to the safeguards accompanying such measures, there would be no breach of the applicant’s Convention rights.",
"24. The Senior District Judge concluded as follows:",
"“This is a difficult and troubling case. The [first applicant] is a British subject who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country. Nevertheless the Government of the United States are entitled to seek his extradition under the terms of the Treaty and I am satisfied that none of the statutory bars [to extradition] apply.”",
"Accordingly, he sent the case to the Secretary of State for his decision as to whether the first applicant should be extradited.",
"25. On 15 November 2005, the Secretary of State (Mr Charles Clarke) ordered the first applicant’s extradition. The first applicant appealed to the High Court (see paragraphs 29 et seq. below).",
"2. Extradition proceedings against the second applicant",
"26. On 7 August 2005 the second applicant was arrested in the United Kingdom, also on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003, following a request for his provisional arrest by the United States.",
"27. The Senior District Judge gave his decision in the second applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied, and sent the case to the Secretary of State for his decision as to whether the second applicant should be extradited.",
"28. On 1 March 2006, the Secretary of State ordered his extradition. The second applicant appealed to the High Court.",
"3. The first and second applicants’ appeals to the High Court",
"29. The first and second applicants’ appeals were heard together. In its judgment of 30 November 2006, the High Court rejected their appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”.",
"30. The first and second applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.",
"4. Extradition proceedings against the third applicant",
"31. The United States formally requested the extradition of the third applicant on 15 September 2006. The extradition hearing started on 20 November 2006 on which date the Senior District Judge determined that the third applicant was accused of offences for which he could be extradited. The case was then adjourned for evidence and argument, inter alia as to whether the third applicant’s extradition would be compatible with his Convention rights. The hearing resumed on 19 March 2007. By now bound by the High Court’s judgment in respect of the first and second applicants, the Senior District Judge found that the third applicant’s extradition would be compatible with the Convention. He accordingly sent the case to the Secretary of State for his decision as to whether the third applicant should be extradited.",
"32. On 14 June 2007, the Secretary of State (Dr John Reid) ordered that the extradition could proceed. The third applicant appealed against this decision to the High Court and also sought judicial review of the alleged failure of the Director of Public Prosecutions for England and Wales (“the DPP”) to consider whether he should instead be tried in the United Kingdom. He relied on guidance agreed between the Attorney General of the United States and his United Kingdom counterparts for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States (see paragraph 63 below).",
"33. On 10 April 2008 the High Court dismissed the third applicant’s human rights appeal, relying on its ruling in respect of the first and second applicants. In the same judgment, it also dismissed his application for judicial review, finding that the guidance had no application to the third applicant’s case. The guidance only applied to cases where there had been an investigation of the case in the United Kingdom and the DPP had been seized of the case as prosecutor.",
"34. On 14 May 2008 the High Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords and also refused leave to appeal to the House of Lords.",
"5. Extradition proceedings against the fourth applicant",
"35. The United States requested the fourth applicant’s extradition on 21 May 2004. He was arrested in London on 5 August 2004.",
"36. The extradition proceedings were adjourned when he was convicted of offences in the United Kingdom and sentenced to seven years’ imprisonment (see Mustafa (Abu Hamza) v. the United Kingdom (no. 1) (dec.), no. 31411/07, 18 January 2011). The extradition proceedings resumed when the criminal appeals process was concluded.",
"a. The District Court proceedings",
"37. When the case came before the Senior District Judge for his decision as to whether the extradition could proceed, the fourth applicant argued, inter alia, that his extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a “supermax” detention facility such as the United States Penitentiary, Administrative Maximum, Florence, Colorado (“ADX Florence”). In this connection, he also relied on his poor health, specifically his type-two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left, the amputation of both his forearms (which frequently led to infections through abrasions), psoriasis on much of his body, hyperhydrosis (excessive sweating). A violation of Article 3, he claimed, would also result from the imposition of special administrative measures.",
"38. The Senior District Judge, in his ruling of 15 November 2007, rejected all these submissions. In respect of detention at ADX Florence the Senior District Judge found that the fourth applicant’s poor health and disabilities would be considered and, at worst, he would only be detained there for a relatively short period of time. The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were, he was bound by the ruling of the High Court in respect of the first and second applicants. Having concluded that none of the bars to extradition applied, the Senior District Judge sent the case to the Secretary of State (Ms Jacqui Smith) for her decision as to whether the fourth applicant should be extradited. She ordered his extradition on 7 February 2008. The fourth applicant appealed to the High Court against the Secretary of State’s decision and against the decision of the Senior District Judge.",
"b. The High Court proceedings",
"39. Before the High Court, the fourth applicant again relied on his submission that conditions of detention at ADX Florence would not comply with Article 3. He also argued that the length of the possible sentence he faced in the United States would be contrary to Article 3 of the Convention.",
"40. The High Court gave its judgment on 20 June 2008, dismissing the fourth applicant’s appeal. In relation to Article 3, the High Court found that, if convicted, the fourth applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a life sentence would be imposed. It found that this, of itself, would not constitute a breach of Article 3. On the question of the compatibility of detention at ADX Florence with Article 3, the High Court relied in particular on the understanding of the prison warden, Mr Robert Wiley, to the effect that if, after a full medical evaluation, it was determined that the fourth applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX Florence rather than at a medical centre. Accordingly, there was no risk of a violation of Article 3 on this ground. However, the High Court added:",
"“[T]he constitution of the United States of America guarantees not only ‘due process’, but it also prohibits ‘cruel and unusual punishment’. As part of the judicial process prisoners, including those incarcerated in Supermax prisons, are entitled to challenge the conditions in which they are confined, and these challenges have, on occasions, met with success.",
"...",
"We should add that, subject to detailed argument which may be advanced in another case, like Judge Workman [the Senior District Judge], we too are troubled about what we have read about the conditions in some of the Supermax prisons in the United States. Naturally, the most dangerous criminals should expect to be incarcerated in the most secure conditions, but even allowing for a necessarily wide margin of appreciation between the views of different civilised countries about the conditions in which prisoners should be detained, confinement for years and years in what effectively amounts to isolation may well be held to be, if not torture, then ill treatment which contravenes Article 3. This problem may fall to be addressed in a different case.”",
"41. The fourth applicant then applied to the High Court for a certificate of points of law of general public importance and for leave to appeal to the House of Lords. On 23 July 2008, the High Court refused both applications.",
"6. Extradition proceedings against the fifth and sixth applicants",
"42. The United States Government requested the fifth and sixth applicants’ extradition from the United Kingdom in July 1999 and September 1998 respectively.",
"a. The initial extradition proceedings",
"43. At his committal hearing before the District Court, the sixth applicant contended that extradition was only permitted within the terms of the 1972 USA-UK Extradition Treaty for offences committed within the jurisdiction of the requesting State, and not when that State exercised jurisdiction over extra-territorial offences. He further argued that there was “insufficient evidence” to prove a prima facie case, which was a requirement for extradition under the Treaty. As part of that submission, he sought to have excluded two anonymous witness statements, which had been provided by two informants, “CS/1” and “CS/2”, and which the United States Government relied upon as part of their case against him. It was later revealed that CS/1 was a Mr Al-Fadl who had given evidence against the certain of the applicants’ co-defendants during their trial in the United States.",
"44. In his ruling of 8 September 1999, the District Judge rejected these submissions. He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra-territorial offences. The District Judge was also satisfied that there were real grounds for fear if the identities of CS/1 and CS/2 were revealed. Thus, their anonymous witness statements could be admitted as evidence of a prima facie case. He further found that there was a case for the sixth applicant to answer.",
"45. The sixth applicant appealed to the High Court by way of an application for a writ of habeas corpus. The application was dismissed on 30 November 2000. The High Court held that it was necessary to show that the crime in respect of which extradition was sought was alleged to have been committed within the actual territory of the United States. The High Court was, however, satisfied that three overt acts alleged by the United States of America could be relied on to found territorial jurisdiction in the United States, namely (a) the setting up and operating of a secure telephone line in the United States by the sixth applicant through an organisation called MCI; (b) the purchase by the sixth applicant of a satellite phone system in the United States and (c) the issuing, in pursuance of the conspiracy of fatwas and jihads, allegedly prepared with the concurrence of the sixth applicant in the United States and elsewhere. The High Court also found that the District Judge had not erred in admitting the evidence of CS/1 or in finding that there was a prima facie case against the sixth applicant. It did not consider it necessary reach any conclusions in respect of CS/2, judging CS/1’s evidence to be “far the most significant”.",
"46. While the sixth applicant’s appeal was pending before the High Court, a committal hearing before the District Court was held in respect of the fifth applicant. The District Judge gave his ruling on 25 April 2000 in which he reaffirmed the rulings he had made in respect of the sixth applicant and found that there was also a prima facie case against the fifth applicant.",
"47. The fifth applicant also appealed to the High Court and, on 2 May 2001, a differently constituted court dismissed his appeal. Again the High Court found that the District Judge had not erred in admitting the anonymous evidence of CS/1; that there was sufficient evidence against the fifth applicant for the extradition to proceed, and that the United States had jurisdiction to try him.",
"48. Both applicants appealed to the House of Lords. Their appeals were dismissed on 17 December 2001. The House of Lords found unanimously that the High Court had erred in its finding in respect of jurisdiction: it was sufficient that the offence for which extradition was sought was triable within the United States and an equivalent offence would be triable in the United Kingdom. Accordingly, the applicants were liable to extradition to the United States if a prima facie case of conspiracy to murder was established. This was the case for each applicant.",
"b. The Secretary of State’s decision, the United States’ assurances, and the fifth and sixth applicants’ appeal to the High Court",
"49. Between November 2001 and December 2005 there then followed voluminous representations by the fifth and sixth applicants to the Secretary of State as to why they should not be extradited to the United States.",
"50. In the course of these exchanges, on 19 April 2002 the President of the United States designated the sixth applicant as a “specially designated global terrorist”, which had the effect of placing him on a list of persons maintained by the United States Department of the Treasury and available on its website. This was done pursuant to Executive Order 13224 which enables the American assets of any person so designated to be blocked.",
"51. Subsequently, on 13 April 2004, the United States Embassy in London issued Diplomatic Note No. 018, which gave assurances that the United States Government would neither seek nor carry out the death penalty against the fifth and sixth applicants. It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants. On 18 January 2008, the United States Embassy issued Diplomatic Note No. 002, which assured the United Kingdom Government that, if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the United States authorities would return the men to the United Kingdom, if they so requested.",
"52. The Secretary of State (Ms Jacqui Smith) rejected the fifth and sixth applicants’ representations on 12 March 2008. She found that assurances given by the United States in the Diplomatic Note of 13 April 2004 could be relied upon and thus that the fifth and sixth applicants were not at risk of the death penalty, indefinite detention or trial by a military commission.",
"53. The fifth and sixth applicants also contended that they would not receive a fair trial in the United States owing to the unavailability of defence witnesses and evidence, adverse publicity, the possible imposition of special administrative measures before trial, and the sixth applicant’s designation as a global terrorist. The Secretary of State found none of these claims amounted to a “flagrant denial of justice” such as would act as a bar to extradition.",
"54. The Secretary of State accepted that there was a real possibility that they would be sentenced to life imprisonment if convicted but, relying on the House of Lords’ judgment in R (Wellington) v. Secretary of State for the Home Department (see paragraphs 64–72 below), found that this would not amount to a breach of Article 3 of the Convention.",
"55. The Secretary of State also considered that the conditions of the fifth and sixth applicants’ detention in the United States would not violate Article 3 whether they were subjected to “special administrative measures” before trial or detained at ADX Florence after trial. In the fifth applicant’s case, this conclusion was not affected by the fact that he suffered from a recurrent depressive disorder. There was also no risk that either applicant would be tortured, that evidence obtained by torture would be adduced at trial, or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third State.",
"56. The fifth and sixth applicants sought judicial review of the Secretary of State’s decision in the High Court. Before the High Court the applicants submitted that, if convicted, they would be detained at ADX Florence in violation of Article 3 of the Convention. In rejecting that contention, Lord Justice Scott Baker, delivering the judgment of the court on 7 August 2009, found that the decisions of the United States federal courts in Ajaj, Sattar and Wilkinson v. Austin (see paragraphs 109 and 110 below) demonstrated that there was effective judicial oversight of “supermax” prisons such as ADX. The fifth and sixth applicants would also have the possibility of entering ADX’s “step down program” (see paragraphs 84–88 below). He concluded:",
"(1) It is reasonably likely that the claimants will be subjected to [special administrative measures] and will be held in ADX Florence following trial.",
"(2) Neither [special administrative measures] (see Ahmad and Aswat ) or life without parole (see Wellington ) cross the article 3 threshold in the present case. Although near to the borderline the prison conditions at ADX Florence, although very harsh do not amount to inhuman or degrading treatment either on their own or in combination with [special administrative measures] and in the context of a whole life sentence.",
"(3) Whether the high article 3 threshold for inhuman or degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries in the world. The importance of maintaining extradition in a case where the fugitive would not otherwise be tried is an important factor in identifying the threshold in the present case.",
"Had the claimants persuaded me that there was no prospect that they would ever enter the step down procedure whatever the circumstances then in my view the article 3 threshold would be crossed. But that is not the case. The evidence satisfies me that the authorities will faithfully apply the criteria [for entry to the program] and that the stringency of the conditions it imposes will continue to be linked to the risk the prisoner presents. Further, there is access to the US courts in the event that the [Federal Bureau of Prisons] acts unlawfully.”",
"57. In respect of the fifth applicant’s submission that his recurrent depressive illness would deteriorate if extradited, the High Court considered that, to the extent that this affected his fitness to stand trial, this was a matter for the United States’ authorities and, if he were convicted, the fifth applicant’s mental health would be an important factor in deciding whether he should be sent to ADX Florence.",
"58. The High Court also rejected the fifth and sixth applicants’ submissions that they were at real risk of violations of Articles 3, 6 and 14 of the Convention by virtue of the imposition of special administrative measures, relying on its previous judgment in respect of the first and second applicants (see paragraph 29 above). Having regard to the Diplomatic Note of 18 January 2008, the High Court found that there was no real risk of refoulement to Egypt or Saudi Arabia by the United States. The High Court was also satisfied that the United States would honour the assurances it had given in the Diplomatic Note of 13 April 2004. The mere fact that the sixth applicant had been designated as a global terrorist by the President of the United States did not mean he was at risk of a flagrant denial of justice within the meaning of Article 6: the designation added little to what was already known about him; it would be made clear to the jury at any trial what had to be proved as regards the indictment.",
"59. The High Court also rejected the applicants’ submission that they should be tried in the United Kingdom, finding that this was neither viable nor appropriate and that any connection with the United Kingdom was “tenuous indeed”.",
"60. Although the High Court refused leave to appeal to the United Kingdom Supreme Court, it certified two questions of general public importance. The first question was whether prison conditions at ADX Florence were compatible with Article 3; the second question was whether the relativist approach to Article 3 adopted by the majority of the House of Lords in Wellington should apply where the issue under Article 3 was one of the compatibility of prison conditions with Article 3.",
"61. On 16 December 2009, the Supreme Court refused permission to appeal.",
"XIII. Extradition",
"1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism.",
"...",
"3. Extradition may not be granted when there is serious reason to believe that:",
"(i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment...”",
"4. The European Union Charter",
"80. Article 19 § 2 of the Charter of Fundamental Rights of the European Union provides:",
"“No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”"
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW ON ARTICLE 3 AND EXTRADTITION",
"A. Extradition arrangements between the United Kingdom and the United States",
"62. At the material time, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty). Article IV of the 1972 treaty provided that extradition could be refused unless the requesting Party gave assurances satisfactory to the requested Party that the death penalty would not be carried out.",
"63. Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America was signed on 18 January 2007 by the Attorney General of the United States of America, Her Majesty’s Attorney General and also, for its application to Scotland, by the Lord Advocate. It sets out a series of measures that prosecutors in each State should take to exchange information and consult each other in such cases and to determine issues which arise from concurrent jurisdiction. A case with concurrent jurisdiction is defined as one which has the potential to be prosecuted in both the United Kingdom and the United States.",
"B. Relevant United Kingdom law on Article 3 and extradition: R (Wellington) v. Secretary of State for the Home Department [2008] UKHL 72",
"64. The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole.",
"65. In giving judgment in the High Court ([2007] EWHC 1109 (Admin)), Lord Justice Laws found that there were “powerful arguments of penal philosophy” which suggested that risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention. He observed:",
"“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”",
"However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.",
"66. Wellington’s appeal from that judgment was heard by the House of Lords and dismissed on 10 December 2008. Central to the appeal was paragraph 89 of this Court’s judgment in Soering v. the United Kingdom, 7 July 1989, § 89, Series A no. 161, where the Court stated that considerations in favour of extradition:",
"“.. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.”",
"67. A majority of their Lordships, Lord Hoffmann, Baroness Hale and Lord Carswell, found that, on the basis of this paragraph, in the extradition context, a distinction had to be drawn between torture and lesser forms of ill-treatment. When there was a real risk of torture, the prohibition on extradition was absolute and left no room for a balancing exercise. However, insofar as Article 3 applied to inhuman and degrading treatment and not to torture, it was applicable only in a relativist form to extradition cases.",
"68. Lord Hoffmann, giving the lead speech, considered the Court’s judgment in the case of Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996 ‑ V, in which the Court stated that:",
"“It should not be inferred from the Court’s remarks [at paragraph 89 of Soering ] that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 (art. 3) is engaged.”",
"Lord Hoffmann stated:",
"“In the context of Chahal, I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture. I do not however think that the Court was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in Soering and which is paralleled in the cases on other articles of the Convention in a foreign context. If such a radical departure from precedent had been intended, I am sure that the Court would have said so.”",
"For Lord Hoffmann, paragraph 89 of Soering made clear that:",
"“...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘minimum level of severity’ which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”",
"He went on to state:",
"“A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers (2005) SC 229 that in Scotland the practice of ‘slopping out’ (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries, poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.”",
"69. A minority of their Lordships, Lord Scott and Lord Brown, disagreed with these conclusions. They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment. They found no basis in the text of Article 3 for such a distinction. Lord Brown also considered that the Court, in Chahal and again in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ‑ ..., had departed from the previous, relativist approach to inhuman and degrading treatment that it had taken in Soering. He stated:",
"“There is, I conclude, no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading. That, of course, is not to say that, assuming for example ‘slopping out’ is degrading treatment in Scotland, so too it must necessarily be regarded in all countries (see para 27 of Lord Hoffmann’s opinion)... the Strasbourg Court has repeatedly said that the Convention does not ‘purport to be a means of requiring the contracting states to impose Convention standards on other states’ ( Soering, para 86) and article 3 does not bar removal to non-Convention states (whether by way of extradition or simply for the purposes of immigration control) merely because they choose to impose higher levels or harsher measures of criminal punishment.",
"Nor is it to say that a risk of article 3 ill-treatment, the necessary pre-condition of an article 3 bar upon extradition, will readily be established. On the contrary, as the Grand Chamber reaffirmed in Saadi at para 142:",
"‘[T]he Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment. .. in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof. .. before. .. finding that the enforcement of removal from the territory would be contrary to article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion.’”",
"Therefore, for Lord Brown, if a mandatory life sentence violated Article 3 in a domestic case, the risk of such a sentence would preclude extradition to another country.",
"70. However, despite these different views, none of the Law Lords found that the sentence likely to be imposed on Mr Wellington would be irreducible; having regard to the commutation powers of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008 ‑ .... All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se, unless it were grossly or clearly disproportionate. Lord Brown in particular noted:",
"“Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber [in Kafkaris ] would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that article 3 may be engaged.”",
"Lord Brown added that this test had not been met in Wellington’s case, particularly when the facts of the murders for which he was accused, if committed in the United Kingdom, could have justified a whole life order. However, Lord Brown considered that, in a more compelling case, such as the mercy killing of a terminally ill relative, this Court “might well judge the risk of ill-treatment to be sufficiently real, clear and imminent to conclude that extradition must indeed be barred on article 3 grounds”.",
"71. Finally, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Lord Justice Laws’ view that life imprisonment without parole was lex talionis. Lord Hoffman, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence.",
"72. Wellington’s application to this Court was struck out on 5 October 2010, the applicant having indicated his wish to withdraw it ( Wellington v. the United Kingdom (dec.), no. 60682/08).",
"C. Relevant Canadian case-law",
"73. Section 1 of the Canadian Charter of Rights provides that the Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 7 provides:",
"“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”",
"Section 12 provides:",
"“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”",
"74. In United States v. Burns [2001] S.C.R. 283, Burns and another (the respondents) were to be extradited from Canada to the State of Washington to stand trial for murders allegedly committed when they were both eighteen. Before making the extradition order the Canadian Minister of Justice had not sought assurances that the death penalty would not be imposed. The Supreme Court of Canada found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section 12 but under section 7. However, the values underlying section 12 could form part of the balancing process engaged under section 7. The extradition of the respondents would, if implemented, deprive them of their rights of liberty and security of person as guaranteed by section 7. The issue was whether such a deprivation was in accordance with the principles of fundamental justice. While extradition could only be refused if it “shocked the conscience” an extradition that violated the principles of fundamental justice would always do so. The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought. The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice, even for young offenders over the age of eighteen. The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. The court held therefore that assurances were constitutionally required by section 7 in all but exceptional cases.",
"75. In United States of America v. Ferras; United States of America v. Latty, [2006] 2 SCR 77, the appellants were to be extradited to the United States to face charges of fraud (the Ferras case) or trafficking of cocaine (the Latty case). The appellants in the Latty case had argued that, if extradited and convicted they could receive sentences of ten years to life without parole and this would “shock the conscience”. In dismissing the appeals, the Supreme Court affirmed the balancing approach laid down in Burns to determining whether potential sentences in a requesting state would “shock the conscience”. The harsher sentences the appellants might receive if convicted in the United States were among the factors militating against their surrender but they had offered no evidence or case-law to back up their assertions that the possible sentences would shock the conscience of Canadians. The factors favouring extradition far outweighed those that did not.",
"D. Relevant international law on non-refoulement",
"1. The International Covenant on Civil and Political Rights",
"76. Article 7 of the ICCPR where relevant provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee’s most recent general comment on Article 7 (No. 20, of 10 March 1992) states the Committee’s view that: “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement .” (see also Chitat Ng v. Canada, CCPR/C/49/D/469/1991, 7 January 1994; A.J.R. v. Australia, CCPR/C/60/D/692/1996, 11 August 1997).",
"2. The United Nations Convention Against Torture",
"77. Article 3 § 1 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) provides:",
"“No State Party shall expel, return (\" refouler \") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture .”",
"78. Article 16 § 2 provides:",
"“The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.”",
"3. The Council of Europe Guidelines on Human Rights and the fight against terrorism",
"79. The above guidelines (adopted by the Committee of Ministers on 11 July 2002) contain the following provisions on refoulement and extradition:",
"“ XII. Asylum, return (‘ refoulement ’) and expulsion",
"...",
"2. It is the duty of a State that has received a request for asylum to ensure that the possible return (“ refoulement ”) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.",
"III. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON DETENTION AT ADX FLORENCE",
"A. Evidence of conditions of detention at ADX Florence",
"81. ADX Florence, a so-called “supermax” prison, is one of a number of detention facilities at the Federal Correctional Complex, Florence, Colorado. The parties have provided a great deal of evidence in respect of conditions of detention at ADX and general facilities at FCC Florence. The applicants have also submitted general evidence on “supermax” prisons and their effects on prisoners. The evidence submitted may be summarised as follows.",
"1. Evidence submitted by the Government",
"82. The Government submitted a series of declarations, which had been prepared specifically for the present proceedings by officials at FCC/ADX Florence. Thereafter, in reply to a series of questions put by the Court in respect of the number of inmates entering ADX’s “step down program”, two further letters were provided by the United States Department of Justice (see paragraphs 93–97 below).",
"a. The declarations",
"83. Mr Louis J. Milusnic, the associate warden of ADX, outlined the regime which was in place at the special security unit (H Unit) for inmates who were subjected to special administrative measures. All cells were single occupancy, had natural light and measured 75.5 square feet (approximately 7 square metres). Showers were not in-cell but on a shared range.",
"84. Inmates in H Unit were part of the special security unit program, which had three phases that inmates could work through.",
"In phase one, the “baseline” phase, inmates had two non-legal telephone calls per month, five social visits, access to a commissary list and art and hobby craft items, and escorted shower time three times a week. They had ten hours per week of out-of-cell recreation time (increased from five hours per week in September 2009). As of November 2010, twelve inmates were in phase one.",
"In phase two, conditions were the same save that three non-legal telephone calls per month were permitted, the commissary list was expanded and inmates were permitted to go to the shower unescorted, five times per week. Eleven inmates were in phase two.",
"In phase three, group recreation was permitted five days a week (for a minimum of one and a half hours per day, in groups of four) and the number of non-legal telephone calls increased to four. Inmates ate one meal together and engaged in recreational activities together for one and a half hours per day. Access to showers was unrestricted and the commissary list was further expanded. Four inmates, who had all been convicted of terrorist activity, had progressed to phase three.",
"Advancement through the phases was authorised by a Program Screening Committee, whose six-monthly reviews the inmate attended. The Committee’s task was to determine whether an inmate could function with additional privileges without posing a security or safety risk. Advancement was subject to various factors including good conduct, participation in programmes recommended by the Unit, positive behaviour and respectful conduct and positive overall institutional adjustment.",
"85. Recreation alternated daily between outside and inside recreation. Outdoor recreation took place in adjacent individual recreation areas, which allow an inmate full visual access to the recreation yard and other inmates. Conversations could be carried on in a normal tone of voice and most inmates spent the majority of their recreation time talking to other inmates. Each individual outdoor area measured 12 feet by 20 feet (approximately 3.66 metres by 6 metres) and contained pull-up bars and footballs. Individual indoor areas measured 14 feet by 10 feet. Recreation had only been cancelled once in thirteen months for security reasons.",
"86. There was no limit on inmates’ correspondence with family members and special administrative measures could be modified to allow correspondence beyond the immediate family. There were also no limits on correspondence with legal representatives and access to a law library for up to two hours at a time. Inmates received a free, daily copy of USA Today. They had access to fifty television channels and seven FM radio channels. They could speak to inmates in adjacent cells using the air ventilation as a voice conduit. They had regular contact with prison staff – a member of the Unit Team visited every inmate every day – and there were visits from medical, education, religious service and psychology staff, including two Arabic speakers. Inmates could request to speak with an officer at any time.",
"87. Mr Milusnic also outlined the criteria and procedures for placement at ADX Florence. An inmate either had to: (i) create a security risk at other correctional facilities; or (ii) as a result of his or her status, be unable to be safely housed in the general population of another institution. Referral to ADX was initiated by the staff at the inmate’s current institution. If the warden of that institution, the relevant regional director and the Bureau’s designation centre all concurred, a hearing took place. The inmate was given written notice at least twenty-four hours prior to the hearing. After the hearing, a report with a recommendation was prepared and given to the inmate. The final decision was taken on the basis of the report by an Assistant Director of the Federal Bureau of Prisons, with the possibility of appeal to the chief of the designation centre and thereafter the Office of the General Counsel.",
"88. Ms Patricia Rangel is the Unit Manager for the General Population Units at ADX. She provided two declarations.",
"Her first declaration outlined the Federal Bureau of Prisons procedures for review of the status of inmates. There was an initial classification upon arrival at a new Bureau institution, which took place at a meeting attended by the inmate and which defined, inter alia, the work and educational programmes the inmate would follow, his or her release plans, and security/custody levels. Thereafter, there were six-monthly program reviews (including progress review reports, which were signed by the inmate and the Unit Manager) and more detailed, three-yearly progress reports, which were also made available to the inmate.",
"In her declaration Ms Rangel also outlined the different levels of security in ADX units and the step down program. The units followed a “stratified” system of housing from General Population Units to the Intermediate, Transitional and Pre-Transfer Units. It would take an inmate a minimum of thirty-six months to work through the system: the minimum stay in each unit was twelve months in a General Population Unit, six months in Intermediate, six in Transitional and twelve in Pre-Transfer. Specific conditions in each unit were as follows.",
"General Population Unit cells were 87 square feet (8 square metres) plus a sallyport (exit area) of 17 square feet. Showers were within the cells. There was a window with natural lighting and inmates could control the lighting in their cell via a dimmer switch. Lights on the range were switched off at night, but, as in all federal prisons, were briefly turned on for three cell counts during the night. Meals were delivered in-cell. Inmates received two fifteen minute telephone calls and up to five social visits per month. It was possible and permissible for inmates to talk to each other in their cells via the ventilation system or during their out-of-cell recreation.",
"Inmates had ten hours out-of-cell exercise each week in single-cell recreation areas, some of which were grouped together on large recreation yards. Ms Rangel gave the sizes of the two types of outdoor individualised recreation areas as 240 square feet and 315 square feet (22 and 29 square metres). The size of the indoor areas was 389 square feet (36 square metres). Recreation privileges could be restricted for violations of rules and regulations. Restrictions on outdoor recreation were in three-month increments (three months for a first offence, six for a second offence and so on).",
"Intermediate Unit cells were 75.5 square feet and did not have a sallyport or shower. There was a window with natural lighting; cell doors faced out onto a range. Inmates were assigned to a group of eight inmates with whom they recreated. Meals were provided to inmates one group at a time, meaning each group was allowed out of their cells to collect their meals in the range. Inmates received three fifteen-minute telephone calls and up to five social visits per month. Showers stalls were on the range, where inmates could shower any time they were out on the range.",
"Transitional Units had similar conditions to Intermediate Units save that inmates were assigned to groups of sixteen inmates. They received twenty ‑ one hours of out-of-cell recreation per week in their assigned group on the range or in a large recreation yard. Meals were consumed in groups on the range. Inmates were unrestrained when out of their cells. They received an extra fifteen-minute telephone call per month and could leave the unit unrestrained but escorted to purchase items from the commissary.",
"The Pre-Transfer Unit was located at another penitentiary at FCC Florence. As in the Intermediate and Transitional Units, inmates ate their meals and recreated within their assigned group. They received twenty-four and a half hours’ out-of-cell recreation time per week, and five visits and three hundred minutes of telephone calls per month.",
"In the General Population, Intermediate and Transitional Units, access to television, radio and books, contact with prison staff and rules on correspondence were as outlined by Mr Milusnic.",
"The rules governing the step down program were set out in an “institution supplement”, which had been updated in September 2009. An inmate’s placement in and advancement through the step down program were reviewed every six months, subject to the minimum periods in each unit, set out above, and other criteria such as participation in defined programmes, positive behaviour and overall institutional adjustment. According to the updated supplement, mitigation of the original reason for placement at ADX Florence was no longer a factor which was considered, but the Step Down Screening Committee, which made decisions on advancement, could have regard to the initial reasons for placement at ADX and other safety and security factors. The final decision was one for the Warden. Any negative decision had to be reasoned (unless providing reasons would pose a threat to individual safety or institutional security) and was subject to appeal through the Bureau’s administrative remedy programme. Since the implementation of the updated supplement, there had been a 56% increase in movement of inmates from the four General Population Units to the Intermediate Unit and a 135% increase in movement from the Intermediate to the Transitional Unit. Inmates had also completed the programme and been transferred out of ADX Florence. This included Arab-Muslim inmates.",
"89. Mr Christopher B. Synsvoll is the Department of Justice Supervising Attorney at FCC Florence. His declaration outlined the application of special administrative measures. These measures were rare: of 210,307 Federal Bureau of Prison inmates, forty-one were subjected to them; twenty-seven of the forty-one were in H Unit at ADX Florence. Special administrative measures could be challenged through the Bureau’s administrative remedy programme, which led to a review of the need for the measures and which involved consultation with other agencies such as the FBI. This process had, on occasion, led to the modification of certain special administrative measures such as allowing greater communication for inmates with the outside world.",
"90. The psychologist assigned to ADX Florence, Dr Paul Zohn, outlined the psychological and psychiatric care available at the prison. The preference was to treat inmates with mental health problems in situ rather than in hospitals where this was possible. Care was provided by one psychiatrist and two psychologists who made regular rounds through the housing units at ADX. Various treatment programs were available and inmates who needed psychotropic medication were seen regularly by a psychiatrist. Contrary to assertions previously made by the applicants, video-conferencing was not ordinarily used to assess an inmate’s mental health. The main mental health disorders such as bipolar affective disorder, depression, post-traumatic stress disorder and schizophrenia would not preclude a designation to ADX and could be managed successfully there. Conditions of confinement were largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change. However, if necessary, inmates could be referred to one of the Bureau’s Psychiatric Referral Centers for acute psychiatric care. Inmates who would be considered “seriously mentally ill” would not be housed at ADX but at a Referral Center. All new inmates at ADX received an initial psychological evaluation and, if necessary, follow-up assessment and treatment planning. Thereafter, the psychological department monitored any treatment needs such as medication or modification to an inmate’s housing, work or program assignment.",
"91. The prison chaplain at ADX, Michael S. Merrill, stated that an imam was available to inmates four days a month and would speak to inmates at their cell door. The chaplain had also significantly expanded the Islamic section of the religious library at the prison, which included 158 Arabic language books. There were also 320 videos and DVDs on Islam. The Religious Services Department provided Islamic-faith programming through its closed-circuit television channel, including four to five days of Sunni Muslim programming on Friday and recitations of the Qur’an on Friday and Saturday evenings. Inmates had access to a halal diet; special arrangements were made for meals during Ramadan. Although there could be no formal congregational prayer for any faith group, Muslim inmates could perform the Azan (call to prayer) and the Salat (five daily prayers) in their cells; they could also have access to prayer rugs, prayer oil, prayer beads and religious headgear in their cells.",
"92. Ms Roxana Mack, the Assistant Supervisor of Education at ADX, stated that H unit inmates had access to approximately 900 books with no limit on the number of books an inmate could borrow. They had access to a law library for two hours at a time, including access to electronic databases. There were also educational courses.",
"b. The Department of Justice’s letters",
"93. In the course of proceedings before the Court, the respondent Government were asked to provide information as to:",
"(i) how long inmates in the Special Security Unit program had spent at ADX and how long they had been in each phase of the program;",
"(ii) how many inmates were in each phase of the step down program;",
"(iii) how long each inmate had spent at ADX and how long they had been in each phase of the program; and",
"(iv) how many inmates had completed the program, how long they had spent at ADX and how long they had been in each phase of the program",
"94. The questions were forwarded to the United States authorities. By letter dated 26 September 2011, the Department of Justice stated that there were 252 inmates in ADX’s General Population Unit. The Special Security Unit program could house up to 32 inmates. There were 17 inmates in phase I, nine in phase II and six in phase III. For the step down program, 32 inmates were in J Unit, 32 in K Unit and 25 in D/B Unit. The Department of Justice stated that the Bureau of Prisons obligations under United States law prevented disclosure of information as to the length of time inmates had spent at each stage of the two programs.",
"95. By letters dated 29 September and 7 October 2011, the Section Registrar clarified that the questions put by the Court were not intended to obtain information on specific inmates but rather to provide meaningful assistance as to: the length of time an inmate was likely to spend at ADX before being admitted to either program; how long he was likely to spend in each phase of either program; and how long he was likely to spend in either program before transfer out of ADX.",
"96. On 24 October 2011 the Agent of the Government of the United Kingdom replied, forwarding a letter of the same date from the Department of Justice, which set out the results of a statistical analysis conducted by the Bureau of Prisons. The analysis was based on a random sample of thirty inmates selected from the General Population at ADX and/or each phase of the step down program. On the basis of that sample, an inmate was likely to spend three years at ADX before being admitted to the Step Down or Special Security Unit programs. The likely times in each phase were: nine months in intermediate, eleven months in transition and nine months in pre-transfer. Thus, an inmate was likely to spend three years in General Population followed by two years and five months progressing through either program.",
"97. The Department of Justice’s letter of 26 September 2011 also stressed that, while generally inmates who were subject to special administrative measures were housed in the Special Security Unit, it was possible for such inmates to be housed at other prisons. Furthermore, if special administrative measure were vacated for an inmate at ADX, he could be transferred from ADX to other prison. This had occurred for seven of the thirteen inmates whose special administrative measures had been vacated.",
"2. Evidence submitted by the applicants",
"98. The applicants submitted general evidence as to the effect of solitary confinement on prisoners and specific evidence as to the prison regime at ADX Florence.",
"99. The applicants also provided a report by a psychiatrist, Dr Terry Kupers, which had been prepared specifically for the present proceedings. He considered that a supermax prison regime did not amount to sensory deprivation but there was an almost total lack of meaningful human communication. This tended to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown. All studies into the effects of supermax detention had found such symptoms after sixty days’ detention. Once such symptoms presented, it was not sufficient to return someone to normal prison conditions in order to remedy them. If supermax detention were imposed for an indeterminate period it also led to chronic despair. Approximately half of suicides in United States prisons involved the 6 ‑ 8% of prisoners held in such conditions. The effects of supermax conditions were worse for someone with pre-existing mental health problems. There was also evidence of solitary confinement leading to a range of physical illnesses. Dr Kuper’s conclusions were supported by a number of journal articles by psychologists and criminologists, which the applicants provided. [1]",
"100. The specific evidence on ADX Florence included a series of statements by Professor Laura Rovner, Director of the Civil Rights Clinic at the University of Denver, which had acted for a number of prisoners at ADX Florence. Professor Rovner’s statements were based on her experience of ADX, the evidence of her clients, and various affidavits which had been prepared for litigation in the federal courts regarding ADX Florence. Her latest statement, of 27 May 2011, responded to the six declarations submitted by the Government. Her statement, and the other evidence provided by the applicants, may be summarised as follows.",
"101. Professor Rovner recalled that one of the former wardens of ADX had publicly described the prison as “a clean version of hell”. Professor Rovner stated that, despite the evidence set out in the six declarations, conditions at ADX Florence had not changed significantly in the last two years. Solitary confinement for long periods continued. One lawyer, Mr Mark H. Donatelli, had conducted a survey which had found that at least forty-three inmates of ADX Florence had spent eight years or more in “lock-down” conditions there and at previous prisons.",
"Contact with staff could be as little as one minute per day. Some prisoners were placed on “single recreation status”, meaning no one else was permitted to be in adjoining recreation cells at the same time. Recreation privileges could be terminated for minor infractions: one prisoner was denied outdoor exercise for sixty days for trying to feed crumbs to birds. When he challenged this sanction through the grievance process, it was increased to ninety days. Upon further appeal he was told that the decision was not punitive but a managerial strategy to impress upon him the importance of adhering to institutional procedures. Indoor recreations were little more than cages with a single pull-up bar for exercise. There was nothing to do in outdoor recreation cages save to pace up and down. There was limited visibility – all that could be seen was the sky through chain linking. Recreation was frequently cancelled owing to staff shortages.",
"The evidence also showed that, despite the consensus in the medical profession that prisoners with mental illnesses should not be held in solitary confinement, ADX continued to house seriously mentally ill prisoners, including those with severe schizophrenia and bipolar disorder. Several inmates were too sick to communicate properly with their representatives; a report had been received of one prisoner who was too ill to write, but was living a cell that he had covered in six inches of rubbish and faeces. Several prisoners had stated in witness statements prepared for litigation in the United States courts, that there were mentally ill prisoners at ADX Florence who, because of their conditions, screamed all night, making sleep difficult for others. General medical facilities were also inadequate: there were only two doctors for 3,200 inmates at FCC Florence, and only basic healthcare needs were met. There were also reports from Human Rights Watch which indicated that force feeding of hunger strikers took place in an unnecessarily punitive and painful way.",
"Religious services were extremely limited – one Muslim inmate had only seen an imam three times – and one inmate in a general population unit had received an incident report for intoning the Azan. Books and educational activities were also limited.",
"For inmates, particularly those subjected to special administrative measures, telephone calls, and social visits were highly restricted and subject to monitoring. Contact with other inmates was generally prohibited and, when they were not, communication between cells could only be carried out by yelling, which was prohibited. Visits were limited to one adult visitor at a time, with no physical contact, and required fourteen days’ written notice. Evidence in cases brought by inmates who had been subjected to special administrative measures indicated that letters could be limited to three sheets of paper per week and certain family members could be refused clearance to write to or speak with an inmate. Special administrative measures could also mean that an inmate was prohibited from watching news channels on television, from receiving recent newspapers or any Arabic publications whatsoever; one inmate received his newspaper with whole sections removed. International telephone calls were expensive and liable to disruption.",
"Despite the adoption of objective criteria for placement at ADX, it remained the case that all those subjected to special administrative measures or convicted of terrorism offences were liable for placement, regardless of their security risk or their disciplinary record in other institutions. The placement hearing was window dressing: one hearing officer had carried out one hundred hearings and never found an inmate to be unsuitable for placement. There was evidence of hearings taking place post facto, in some cases many years after the transfer to ADX had been carried out. Inmates also received only twenty-four hours’ notice of a hearing and did not have the right to legal representation. There was evidence that hearing officers did not read all of the evidence submitted and based their decisions on unreliable evidence. Inmates did not see all the evidence against them. Professor Rovner also provided declarations by Arab Muslim clients, in which they stated that they had never been told the reasons for their placement at ADX and had been sent there after 9 September 2011, despite years of good conduct in other, much less restrictive prisons, both in the United States and elsewhere.",
"Although there had been an increase in the number of admissions to the step down program, the fact remained that many inmates were spending significant periods of time in solitary confinement prior to admission, despite having met the criteria for admission for years. Four clients of the Clinic had only been admitted to the program after periods of between seven and thirteen years in solitary confinement and only then after commencing litigation against the Bureau of Prisons. Another two clients had never been admitted, despite their clean disciplinary records and despite periods of eight to nine years at ADX. Even after the changes to procedures governing entry to the program, an inmate’s original crime continued to serve as the basis for placement at ADX; thus it was possible for an inmate to be unable to sufficiently mitigate the original reason for placement and so gain admission to the program. Moreover, if an inmate had never been told the reasons for his placement, he could not know what he had to do to gain admission to the program. The program required three years to complete and a prisoner needed one year of clear conduct in general population before being eligible for step down. Even eligibility for the program did not mean that a prisoner would be allowed into it.",
"Conditions in the first phase of the step down program did not differ significantly from general population units. According to one inmate, Mr Rezaq, lockdowns occurred frequently in J Unit, which meant inmates were confined to their cells, and could last days or even weeks. Inmates could also be removed from the program at any time without explanation or due process, even for the most minor infractions. Some had been removed from the program without receiving an incident report or were removed after receiving a report for an incident for which they were soon found not guilty. Yet, following such removals, they were either denied re-admission to the program or forced to spend years going through it again. The Bureau itself had estimated that only 5% of inmates progressed though the program in the minimum three years. Even successful completion of the step down program might only result in a transfer to a “communications management unit”, such as those housed at USP Terre Haute or USP Marion, where conditions remained restrictive.",
"According to Professor Rovner, it was difficult to dispute the evidence provided by the Government on special administrative measures (owing to restrictions contained in the measures themselves) but, on the basis of public information, she was able to state that the effect of the measures could amount to solitary confinement, even if an inmate was not detained at ADX. The indefinite prolongation of special administrative measures meant that certain Arab-Muslim inmates had spent between five and thirteen years in solitary confinement both before and after trial. Challenging such measures was impossible for inmates without access to legal representation. Legal aid was not available and, even if pro bono legal representation was obtained, the Department of Justice could still refuse to give the lawyers the necessary clearance; this had happened to her Clinic.",
"102. The applicants also relied on two letters from Human Rights Watch. The first, dated 2 May 2007 to the Director of the Federal Bureau of Prisons, followed a tour the organisation had been given of ADX Florence. The letter expressed concerns that a number of prisoners convicted of terrorism offences had been sent to the prison based on the nature of their crimes and, despite good conduct since their arrival, had remained in general population units and thus outside the step-down programme for up to nine years. The letter made suggestions for improvement in respect of recreation, mail, telephone use, the library. It also noted that progress was to be made on better meeting prisoners’ religious needs, such as the provision of a full-time imam and commended the educational programmes available through the prison’s television system. In the letter Human Rights Watch expressed serious concerns as to prisoners’ inability to do any meaningful exercise in the indoor and outdoor recreation areas, owing to the size of these areas and the lack of any proper equipment. The letter urged the prison authorities to investigate reports of retaliation against prisoners who were on hunger strike in the form of transfer to harsher cells. The letter also said that Human Rights Watch was extremely concerned about the effects of long-term isolation and highly limited exercise on the mental health of prisoners and criticised reports of rushed consultations between prisoners and psychologists, as well as the fact that evaluations were carried out via closed circuit television.",
"103. The applicants obtained a second letter from Human Rights Watch, dated 21 August 2008, which stated that Human Rights Watch considered conditions at ADX violated the United States’ treaty obligations under the International Covenant on Civil and Political Rights and the United Nations Convention against Torture. It was unremarkable that “minor adjustments” had been made to the regime but it remained in essence one of “long-term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation”.",
"B. The Eighth Amendment and conditions of detention",
"104. The Eighth Amendment to the Constitution provides, inter alia, that cruel and unusual punishments shall not be inflicted.",
"105. The Eighth Amendment requires prison officials to provide humane conditions of confinement, to ensure inmates receive adequate food, clothing shelter and medical care, and to take reasonable measures to guarantee their safety ( Farmer v. Brennan 511 US 825 (1994). Only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation ( Wilson v. Seiter 501 U.S. 294, 304 (1991); Rhodes v. Chapman 452 U.S. 337, 347 (1981)). A serious deprivation is necessary, because routine discomfort is part of the penalty inmates pay for their crimes ( Hudson v. McMillan 503 US 1 (1992); Sandin v. Conner 515 US 472 (1995)). Thus, in order to establish that a deprivation violates the Eighth Amendment, a prisoner must satisfy: (i) an objective test by demonstrating a sufficiently serious deprivation; and (ii) a subjective test by showing that the conditions of confinement involve the deliberate imposition of pain or deliberate indifference to it ( Wilson, cited above).",
"106. In Hutto v. Finney 437 US 678 (1978), the Supreme Court upheld a lower court order limiting periods of punitive isolated confinement to thirty days, in circumstances where the lower court had found that conditions in the prison in question amounted to cruel and unusual punishment. The court recognised that confinement in an isolation cell was a form of punishment which was subject to scrutiny under Eighth Amendment standards but rejected the submission that indeterminate sentences to punitive isolation always constituted cruel and unusual punishment.",
"107. Lower federal courts have found that whether an extended term of solitary confinement violates the Eighth Amendment will depend on the particular facts of each situation, including the circumstances, nature and duration of the confinement ( DeSpain v. Uphoff 264 F.3d 965 (10 th Cir. 2001)). Although they have recognised that prolonged conditions of solitary confinement may cause significant psychological damage ( Davenport v. DeRobertis 844 F.2d 1310, 1313 (7 th Cir. 1988)), the lower courts have, for the most part, rejected Eighth Amendment claims arising either from conditions of solitary confinement or from periods of confinement to cells for twenty-two or twenty-three hours per day (see, inter alia, Five Percenters 174 F.3d 471 (4 th Cir. 1999); In re Long Term Admin. Segregation 174 F.3d 464 (4 th Cir. 1999); Anderson v. County of Kern 45 F.3d 1310 (9 th Cir. 1995); Peterkin v. Jeffes 855 F.2d. 1021 (3d cir. 1988); Smith v. Romer 107 F.3d 21 (10 th Cir. 1997)). However, in Ruiz v. Johnson 37 F. Supp 2d 855 (1999), the highest level of administrative segregation in the Texan prison system was found to reach levels of psychological deprivation that violated the Eighth Amendment. There, the court found there had been deliberate indifference to a systemic pattern of extreme social isolation and reduced environmental stimulation. The objective test was found to have been met in respect of three prisoners who had been in solitary confinement for between twenty-nine and thirty-five years: Wilkerson v. Stalder 639 F. Supp. 2d 654 M.D.La., 2007.",
"108. Lower courts outside the Tenth Circuit (which has jurisdiction over ADX Florence) have ruled that solitary confinement of prisoners with pre-existing serious mental illness can be sufficiently harmful to violate the objective test laid down in Wilson, cited above: see Jones ‘El v. Berge 164 F. Supp. 2d 1096 (2001) (concerning Wisconsin’s “supermax” prison) and Madrid v. Gomez 889 F. Supp 1146 (1995) (concerning detention at Pelican Bay State Prison, California). However, the subjective test laid down in Wilson may not be satisfied unless a plaintiff can show that prison officials attributed any deterioration in his mental state to the conditions of his confinement. Negligence in this respect does not suffice; deliberate indifference is required ( Scarver v. Litscher 434 F. 3d 972 (7 th Cir. 2006)).",
"C. Due process of law",
"109. The Fifth Amendment protects against deprivation of life, liberty or property without due process of law. In the context of prison discipline, due process rights are triggered by an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life ( Sandin v. Conner, cited above). This will include transfer to a “supermax” security prison ( Wilkinson v. Austin 545 US 209 (2005)). In Wilkinson, the court upheld a system which gave notice of the reasons for placement in the supermax prison, an opportunity to reply and multiple levels of review. Periodic review of administrative segregation is also required to ensure that it is not used as a pretext for indefinite confinement ( Hewitt v. Helms 459 US 460 (1983)).",
"Sandin has been interpreted by the Tenth Circuit as requiring prisoners to show that their conditions of confinement deviate substantially from the baseline accepted treatment of prisoners ( Estate of DiMarco v. Wyoming Department of Corrections 473 F. 3d 1334 (10 th Cir. 2007)). This test was found not to be satisfied by fourteen months’ solitary confinement in DiMarco because the prisoner in question had been provided with the ordinary essentials of prison life.",
"D. Litigation challenging conditions of detention at ADX Florence",
"110. In Sattar v. Gonzales 2009 WL 606115 (D.Colo.2009) the United States District Court for the District of Colorado dismissed a challenge to conditions of detention at ADX Florence and to the imposition of special administrative measures. The plaintiff had limited contact with his family and attorneys and so the court found that the “severe limitations of ADX confinement” did not amount to the necessary deprivation required by the objective test.",
"A constitutional challenge to the imposition of special administrative measures at ADX was also dismissed by the District Court in Al-Owhali v. Holder 1011 WL 288523 (D. Colo. 2011); the case is now the subject of an appeal.",
"In Georgacarakos v. Wiley, 2010 WL 1291833 (D.Colo. 2010) the District Court found that detention at ADX for five years did not amount to atypical and significant hardship, given the availability of social visits and phone calls, the opportunity to converse with other inmates in the recreation areas, and the possibility of transfer out of ADX via the step down program. Georgacarakos was recently followed in Matthews v. Wiley 744 F. Supp. 2d 1159 (D. Colo. 2010).",
"In Magluta v. United States Federal Bureau of Prisons, 29 May 2009, the District Court held that the plaintiff’s allegation that detention at ADX had led to a significant deterioration of his mental condition failed to satisfy the objective test in Wilson cited above. The plaintiff had not shown that conditions at ADX, even if lonely or uncomfortable, failed to provide basic human necessities; ADX was a prison and confinement was “intended to punish inmates, not coddle them”.",
"111. In Hill v. Pugh 75 Fed. Appx. 715 (10 th Cir. (2003)) United States Court of Appeals for the Tenth Circuit rejected an Eighth Amendment claim that ADX conditions were cruel and unusual. The plaintiff was isolated in his cell twenty-three hours a day for five days a week and twenty-four hours the remaining two days. However, his minimal physical requirements of food, shelter, clothing and warmth had been met and so the conditions showed neither an “unquestioned and serious deprivation of basic human needs” nor “intolerable or shocking conditions”. Similar conclusions were reached in Jordan v. the Federal Bureau of Prisons 191 Fed. Appx 639 (10 th Cir. 2006), Ajaj v. United States 293 Fed.Appx. 575 (10 th Cir. 2008).",
"112. In Rezaq, et al. v. Nalley, et al, the plaintiffs brought Eighth Amendment claims concerning their placements at ADX at various dates between 1997 and 2003. The District Court granted the Bureau of Prisons’ motions for summary judgment: 2010 WL 5157317 (D. Colo. 2010); 2010 WL 5464294 (D. Colo. 2010). The court, following the recommendations of the Magistrate Judge, found that the plaintiff’s terrorist backgrounds and convictions provided a legitimate penological interest for transferring them to ADX, particularly when only thirty-five of the two hundred and six inmates in federal prisons with international terrorism convictions had been assigned to ADX. The plaintiffs’ conditions of confinement there were not so extreme as to be atypical and significant. The conditions were also different from those in Wilkinson v. Austin (see paragraph 109 above) in that ADX offered more opportunities for outdoor exercise, interaction with other inmates and educational programmes. There was also insufficient evidence of significant mental harm: there was no evidence that one of the plaintiff’s depression could be attributed to ADX; the remainder of the plaintiffs’ emotional problems were typically experienced by prisoners. Finally, owing to the availability of periodical reviews and the step down program, confinement at ADX was not indeterminate. The plaintiffs have appealed to the Court of Appeals for the Tenth Circuit, though they have all been transferred out of ADX.",
"113. In Silverstein v. Federal Bureau of Prisons 704 F Supp. 2d 1077 (2010), before the District Court the plaintiff alleges that he has been held in solitary confinement at ADX Florence and other institutions since 1983. The Bureau of Prisons has sought summary judgment in its favour in respect of the plaintiff’s claims. A decision is awaited; a six-day jury trial was set to begin on 23 January 2012.",
"E. Relevant international materials on solitary confinement",
"1. Council of Europe",
"114. The Council of Europe Guidelines on human rights and the fight against terrorism contain the following provision:",
"“ XI. Detention",
"1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.",
"2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:",
"(i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;",
"(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;",
"(iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.”",
"115. The European Prison Rules (contained in Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to Member States) where relevant, provide as follows:",
"Security",
"“51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.",
"51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.",
"51.3 As soon as possible after admission, prisoners shall be assessed to determine:",
"a. the risk that they would present to the community if they were to escape;",
"b. the risk that they will try to escape either on their own or with external assistance.",
"51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.",
"51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.”",
"Safety",
"52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.",
"52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.",
"52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.",
"52.4 It shall be possible for prisoners to contact staff at all times, including during the night.",
"52.5 National health and safety laws shall be observed in prisons.",
"Special high security or safety measures",
"53.1 Special high security or safety measures shall only be applied in exceptional circumstances.",
"53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.",
"53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.",
"53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.",
"53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.",
"53.6 Such measures shall be applied to individuals and not to groups of prisoners.",
"53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.",
"Requests and complaints",
"70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.",
"70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”",
"116. The 21st General Report of the European Committee for the Prevention of Torture, 10 November 2011, addressed solitary confinement, which it defined as whenever a prisoner is ordered to be held separately from other prisoners or was held together with one or two other prisoners. The Committee observed:",
"“[Solitary confinement] can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is. The most significant indicator of the damage which solitary confinement can inflict is the considerably higher rate of suicide among prisoners subjected to it than that among the general prison population.”",
"The report therefore urged States to minimise the use of solitary confinement. It should be proportionate and, the longer it was used, the stronger the reasons for it had to be. It should be lawful and subject to accountability, with the fullest possible reasons given and records kept. It should be necessary and non-discriminatory. It should never be imposed as part of a sentence and, if imposed as a disciplinary sanction, the maximum period should be fourteen days. In that period, a prisoner should have at least one hour’s outdoor exercise per day and other appropriate mental stimulation.",
"The report also stated that the Committee’s recommended procedural safeguards should be rigorously followed where administrative solitary confinement was used for preventative purposes, including periodical and external reviews which considered, among other things, whether some of the restrictions imposed were strictly necessary. In such situations, prisoners should have an individual regime plan which attempted to maximise contact with others. Resources should also be made available to attempt to reintegrate the prisoner into the main prison community.",
"For material conditions in solitary confinement, the Committee stated that the cells used should meet the same minimum standards as those applicable to other prisoner accommodation. These included a cell of no less than six square metres, proper cell furnishings, adequate natural and artificial light, heating and ventilation, and sufficiently large exercise areas to allow genuine exertion.",
"The Committee also stated that medical personnel should never participate in decisions on solitary confinement and should report to the prison director whenever a prisoner’s health was put seriously at risk by solitary confinement.",
"2. The Inter-American system",
"117. The Inter-American Commission on Human Rights has found that isolation could in itself constitute inhuman treatment, and a more serious violation could result for someone with a mental disability ( Victor Rosario Congo v. Ecuador, case 11.427, 13 April 1999).",
"In Montero Aranguren et al (Detention Center of Catia) v. Venezuela, judgment of 5 July 2006, the Inter-American Court of Human Rights stated:",
"“...solitary confinement cells must be used as disciplinary measures or for the protection of persons only during the time necessary and in strict compliance with the criteria of reasonability, necessity and legality. Such places must fulfil the minimum standards for proper accommodation, sufficient space and adequate ventilation, and they can only be used if a physician certifies that the prisoner is fit to sustain it. (footnotes omitted)”",
"3. The United Nations",
"118. Isolation for twenty-three hours a day in a two by two metres cell with ten minutes of sunlight per day was found by the United Nations Human Rights Committee to violate Article 7 of the ICCPR in Polay Campos v. Peru, CCPR/C/61/D/577/1994, 6 November 1997.",
"119. In its recommendations to State parties, the United Nations Committee against Torture has recommended that:",
"- solitary confinement be strictly and specifically regulated by law and applied only in severe circumstances, with a view to its abolition (Conclusions and Recommendations in respect of Luxembourg, CAT/C/CR/28/2, at paragraph 6(b));",
"- there should be adequate review mechanisms relating to the determination and duration of solitary confinement (Conclusions and Recommendations in respect of Denmark, CAT/C/CR/28/1 at paragraph 7(d));",
"- solitary confinement for long periods of time may constitute inhuman treatment (Conclusions and Recommendations in respect of Switzerland, A/49/44, paragraph 133).",
"120. The United Nations Special Rapporteur for Torture has found that isolation for twenty-two to twenty-four hours per day may amount to ill-treatment and, in certain instances, torture (Interim Report of 28 July 2008, A/63/175, at paragraphs 77-85). The report included a copy of the Istanbul statement on the use and effects of solitary confinement, which was adopted at the International Psychological Trauma Symposium in December 2007. The statement included the following on the effects of solitary confinement:",
"“It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.",
"Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well being.”",
"121. In his Interim Report of 5 August 2011, A/66/268, the current Special Rapporteur for Torture found that where the physical conditions and the prison regime of solitary confinement caused severe mental and physical pain or suffering, when used as a punishment, during pre-trial detention, indefinitely prolonged, on juveniles or persons with mental disabilities, it could amount to cruel, inhuman or degrading treatment or punishment and even torture. The report highlighted a number of general principles to help to guide States to re-evaluate and minimise its use and, in certain cases, abolish the practice of solitary confinement. He stated that the practice should be used only in very exceptional circumstances, as a last resort, for as short a time as possible. He further emphasised the need for minimum procedural safeguards, internal and external, to ensure that all persons deprived of their liberty were treated with humanity and respect for the inherent dignity of the human person.",
"IV. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE ON LIFE SENTENCES",
"A. The applicants’ possible sentences, the federal sentencing system and presidential pardons",
"1. Evidence from the United States Department of Justice",
"122. In a letter dated 26 November 2010 the United States Department of Justice set out the maximum sentences each of the six applicants would face if convicted.",
"123. The first applicant faces four counts of criminal conduct. The first count, conspiracy to provide material support to terrorists, carries a maximum sentence of fifteen years in prison. The second count, providing material support to terrorists, carries the same maximum sentence. The third count, conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country, carries a maximum sentence of life in prison. The sentence for the final count, money laundering, is a maximum of twenty years. None of the counts contained a mandatory minimum sentence. The trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties, to run consecutively or concurrently.",
"124. For the second applicant, the Department of Justice stated that the maximum penalty he faced was not fifty years’ imprisonment, as previously stated, but thirty-five years’ imprisonment. This was because the maximum penalties for his offences were lower at the time of the alleged commission of the offences than the current sentences. The correct maximum penalties on each of the four counts he faced were: five years’ imprisonment for the count of conspiracy to provide material support and resources to terrorists; ten years for providing material support and resources to terrorists; ten years for conspiring to provide material support and resources to a designated foreign terrorist organisation; and ten years for providing material support and resources to a designated foreign terrorist organisation. None of the counts carried a mandatory minimum sentence and, as for the first applicant, the trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties, to run consecutively or concurrently.",
"125. For the third applicant, as he is charged with the same offences as the first applicant (save for the money laundering charge), the possible sentences would be the same.",
"126. For the fourth applicant, for the Yemen hostage-taking counts, the maximum sentences are life imprisonment. For the Bly, Oregon counts, the maximum sentences were the same as those for the second applicant. For the Afghanistan counts, the maximum sentences are fifteen years’ imprisonment on each count. None of the counts carried a mandatory minimum sentence and the trial judge’s discretion in sentencing would be the same as for the first three applicants.",
"127. For the fifth applicant, the maximum sentences are:",
"conspiracy to kill United States nationals – life imprisonment;",
"conspiracy to murder – life imprisonment;",
"conspiracy to destroy buildings and property – life imprisonment; and",
"conspiracy to attack national defence utilities – ten years’ imprisonment. The third count, conspiracy to destroy buildings and property, has a mandatory minimum sentence of twenty years’ imprisonment. Therefore, if convicted on all four counts, the trial judge’s sentencing discretion would range from twenty years’ imprisonment to life.",
"128. For the sixth applicant, each of the two hundred and sixty-nine counts of murder with which he is charged carries a mandatory minimum sentence of life imprisonment. The remaining counts carry maximum penalties of between ten years and life imprisonment.",
"129. The Department of Justice’s letter also set out the applicable law on federal sentencing. In addition to the need to have regard to the purposes of sentencing (set out in section 3553(a) of Title 18 of the United States Code), a trial judge had to consider the non-binding sentencing guidelines of the United States Sentencing Commission, a judicial body. These required the trial judge to have regard inter alia to any mitigating or aggravating factors, the defendant’s criminal history, any credit for a guilty plea, and the effect of any assistance given to the United States’ authorities.",
"130. The letter further confirmed that, as set out at paragraph 72 of the Court’s admissibility decision, there were four ways a sentence of life imprisonment could be reduced.",
"First, it could be reduced by the sentencing court upon the motion of the Director of the Bureau of Prisons upon a finding that “extraordinary and compelling reasons warrant such a reduction”. This generally involved inmates with terminal illnesses.",
"Second, if a defendant provided substantial assistance in the investigation of a third party, the Government could move within one year of sentencing for a reduction in the sentence.",
"Third, if the defendant had been sentenced on the basis of sentencing guidelines which were subsequently lowered by the Sentencing Commission (the judicial body responsible for promulgating the guidelines) then the sentencing court could reduce the term of imprisonment.",
"Fourth, the defendant could request commutation by the President. While commutation was exercised sparingly, such relief had, on occasion, been granted for serious offences involving national security. For example, in 1999 President Clinton commuted the sentences of thirteen members of the FALN, a violent Puerto Rican nationalist organisation responsible for bombings in the 1970s and 1980s, who had been convicted of conspiracy to commit armed robbery, bomb-making, sedition and other offences.",
"131. Other reductions were available to those sentenced to less than life imprisonment. Fifty-four days’ credit was available each year for exemplary compliance with institutional disciplinary regulations; this allowed for release after 85% of the sentence had been served. Additionally, any defendant had a statutory right of appeal against sentence to a federal court of appeals and, though rare, to the United States Supreme Court. He could also seek review of the sentencing by the trial judge within one year of the sentence being passed.",
"132. The Department of Justice’s letter of 22 September 2011 stated that sentences were normally to run concurrently unless the law provided for consecutive sentences or the trial judge positively ordered that any sentences which were imposed were to run consecutively. In the applicants’ indictments, the only counts which carried mandatory concurrent sentences were three of the counts faced by the sixth applicant (one count of using and carrying an explosive, and two counts of using and carrying a dangerous device during the bombing of the US Embassies in Nairobi and Dar es Salaam).",
"The letter also underlined the Department of Justice’s view that the federal sentencing guidelines gave the trial judge a broad discretion in sentencing.",
"2. Evidence submitted by the applicants",
"133. The applicants submitted a declaration from Ms Denise Barrett, the National Sentencing Resource Counsel for Federal Public and Community Defenders. She stated that a trial judge’s discretion in sentencing was not as broad as the Department of Justice had suggested. It remained subject to increases as well as reductions on appeal. The sentencing guidelines allowed for significant increases in sentences if the offences involved terrorism, such that the recommended guideline sentence was the same as the statutory maximum sentence, irrespective of the absence of any prior criminal record. Owing to the possibility of consecutive sentences being imposed, she therefore assessed the possible sentences as:",
"the first applicant, life plus fifty years;",
"the second applicant, thirty-five years;",
"the third applicant, life plus thirty years;",
"the fourth applicant, two life sentences plus ninety-five years;",
"the fifth applicant, three consecutive life sentences plus ten years;",
"the sixth applicant, numerous consecutive life sentences.",
"For the mechanisms for sentence reduction, Ms Barrett noted the following. Compassionate release for the terminally ill or disabled was not automatic and was assessed with reference to additional factors such as the nature of the crime committed and the length of time served. Reduction for substantial assistance to the authorities depended on the initiative of the Government, not the court. Subsequent lowering of the relevant sentencing guidelines could only reduce a sentence if the Sentencing Guidelines Commission made the change retroactive and might not reduce the overall sentence if the person concerned was convicted of other offences and given consecutive sentences. For presidential commutation, the FALN pardons had only been for those who had been convicted of non-violent crimes and had been offered on the condition that the individuals concerned renounce violence. The pardons had nonetheless been very controversial.",
"B. Eighth Amendment case-law on “grossly disproportionate” sentences",
"134. The Eighth Amendment has been interpreted by the Supreme Court of the United States as prohibiting extreme sentences that are grossly disproportionate to the crime ( Graham v. Florida 130 S. Ct. 2011, 2021 (2010)). There are two categories of cases addressing proportionality of sentences.",
"The first category is a case-by-case approach, where the court considers all the circumstances of the case to determine whether the sentence is excessive. This begins with a “threshold comparison” of the gravity of the offence and the harshness of the penalty. If this leads to an inference of gross disproportionality, the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions. If that analysis confirms the initial inference of gross disproportionality, a violation of the Eighth Amendment is established.",
"In the second category of cases, the Supreme Court has invoked proportionality to adopt “categorical rules” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders.",
"135. Under the first category, the Supreme Court has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( Solem v. Helm 463 US 277 (1983)). It has upheld the following sentences: life with the possibility of parole for obtaining money by false pretences ( Rummel v. Estelle 445 US 263 (1980)); life imprisonment without parole for possessing a large quantity of cocaine ( Harmelin v. Michigan 501 US 957 (1991)); twenty-five years to life for theft under a “three strikes” recidivist sentencing law ( Ewing v. California 538 US 11 (2003)); forty years’ imprisonment for distributing marijuana ( Hutto v. Davis 454 US 370 (1982)).",
"136. Examples of cases considered under the second category include Coker v. Georgia 433 US 584 (1977) (prohibiting capital punishment for rape) and Roper v. Simmons 543 US 551 (2005) (prohibiting capital punishment for juveniles under eighteen). In Graham, cited above, the court held that the Eighth Amendment also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide. The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence. Although a State was not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime, it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. The court also held that a sentence lacking in legitimate penological justification (such as retribution, deterrence, incapacitation and rehabilitation) was, by its nature, disproportionate. Such purposes could justify life without parole in other contexts, but not life without parole for juvenile non-homicide offenders.",
"C. Relevant international and comparative law on life sentences and “grossly disproportionate” sentences",
"137. The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris, cited above, at §§ 68-76. Additional materials before the Court in the present cases (and those materials in Kafkaris that are expressly relied on by the parties) may be summarised as follows.",
"1. Life sentences in the Contracting States",
"138. In his comparative study entitled “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010), Professor Van Zyl Smit concluded that the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences.",
"2. Council of Europe texts",
"139. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) prepared a report on “Actual/Real Life Sentences” dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, “even to life prisoners”; and (b) that all Council of Europe member States had provision for compassionate release but that this “special form of release” was distinct from conditional release.",
"It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated:",
"“[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.",
"The report’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release.",
"3. The International Criminal Court",
"140. Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110).",
"4. The European Union",
"141. Article 5(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant provides:",
"“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure...”",
"5. The United Kingdom",
"142. R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered the compatibility of a mandatory life sentence as imposed in England and Wales with Articles 3 and 5 of the Convention. It found that, in its operation, a mandatory life sentence was not incompatible with either Article.",
"Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at § 8 of the judgment).",
"The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:",
"“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.”",
"143. In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment” (per Lord Steyn at pp. 416H). Lord Steyn also observed: “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence” (p. 417H).",
"144. Under the present statutory framework in England and Wales, Chapter 7 of the Criminal Justice Act 2003, a trial judge can impose a whole life term or order on a defendant convicted of murder. Such a defendant is not eligible for parole and can only be released by the Secretary of State. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered that such whole life terms were compatible with Article 3 of the Convention.",
"It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court stated:",
"“45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so.",
"46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible.",
"...",
"Under the regime that predated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed article 3.",
"...",
"Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997.",
"...",
"At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.",
"49. For these reasons, applying the approach of the Strasbourg court in Kafkaris v Cyprus 12 February 2008, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.”",
"6. Germany",
"145. Article 1 of the Basic Law of the Federal Republic of Germany provides that human dignity shall be inviolable. Article 2(2) provides:",
"“Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”",
"The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2 nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313).",
"The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time.",
"The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment.",
"146. In the later War Criminal case 72 BVerfGE 105 (1986), where the petitioner was eighty-six years of age and had served twenty years of a life sentence imposed for sending fifty people to the gas chambers, the court considered that the gravity of a person’s crime could weigh upon whether he or she could be required to serve his or her life sentence. However, a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality, state of mind, and age of the person. In that case, any subsequent review of the petitioner’s request for release would be required to weigh more heavily than before the petitioner’s personality, age and prison record.",
"147. In its decision of 16 January 2010, BVerfG, 2 BvR 2299/09, the Federal Constitutional Court considered an extradition case where the offender faced “aggravated life imprisonment until death” ( erschwerte lebenslängliche Freiheitsstrafe bis zum Tod ) in Turkey. The German government had sought assurances that he would be considered for release and had received the reply that the President of Turkey had the power to remit sentences on grounds of chronic illness, disability, or old age. The court refused to allow extradition, finding that this power of release offered only a vague hope of release and was thus insufficient. Notwithstanding the need to respect foreign legal orders, if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in Article 1.",
"7. Canada",
"148. The Supreme Court of Canada has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment (see, inter alia, R v. Smith (Edward Dewey) [1987] 1 SCR 1045). In R v. Luxton [1990] 2 S.C.R. 711, the court considered that, for first degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for twenty-five years was not grossly disproportionate. Similarly, in R v. Latimer 2001 1 SCR 3, for second degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for ten years was not grossly disproportionate. The court observed that gross disproportionality would only be found on “rare and unique occasions” and that the test for determining this issue was “very properly stringent and demanding”.",
"8 South Africa",
"149. In Dodo v. the State (CCT 1/01) [2001] ZACC 16, the South African Constitutional Court considered whether a statutory provision which required a life sentence for certain offences including murder, was compatible with the constitutional principle of the separation of powers, the accused’s constitutional right to a public trial and the constitutional prohibition on cruel, inhuman or degrading treatment or punishment. The court found none of these constitutionals provisions was infringed, since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances. The court did, however, observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel, inhuman or degrading.",
"150. In Niemand v. The State (CCT 28/00) [2001] ZACC 11, the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “habitual criminal” to be grossly disproportionate because it could amount to life imprisonment for a non-violent offender. The court “read in” a maximum sentence of fifteen years to the relevant statute.",
"9. Other jurisdictions",
"151. In Reyes v. the Queen [2002] UKPC 11 the Judicial Committee of the Privy Council considered that a mandatory death penalty for murder by shooting was incompatible with section 7 of the Constitution of Belize, which prohibits torture and ill-treatment in identical terms to Article 3 of the Convention. Lord Bingham observed that to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated. The relevant law was not saved by the powers of pardon and commutation vested by the Constitution in the Governor-General, assisted by an Advisory Council; in Lord Bingham’s words “a non-judicial body cannot not decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed”.",
"152. In de Boucherville v. the State of Mauritius [2008] UKPC 70 the appellant had been sentenced to death. With the abolition of the death penalty in Mauritius, his sentence was commuted to a mandatory life sentence. The Privy Council considered the Court’s judgment in Kafkaris, cited above, and found that the safeguards available in Cyprus to prevent Kafkaris from being without hope of release were not available in Mauritius. The Mauritian Supreme Court had interpreted such a sentence as condemning de Boucherville to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply. This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section 10 of the Mauritian Constitution (provisions to secure protection of law, including the right to a fair trial). It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Committee considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General’s powers to recommend release and the President’s powers to commute sentences or decree release) were not available in Mauritius. It also acknowledged the appellant’s argument that, as with the mandatory sentence of death it had considered in Reyes, a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Justice Laws in Wellington and Lord Bingham in Lichniak (at paragraphs 65 and 142 above).",
"153. In State v. Philibert [2007] SCJ 274, the Supreme Court of Mauritius held that a mandatory sentence of 45 years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section 7 on the grounds that it was disproportionate.",
"154. In State v. Tcoeib [1997] 1 LRC 90 the Namibian Supreme Court considered the imposition of a discretionary life sentence to be compatible with section 8 of the country’s constitution (subsection (c) of which is identical to Article 3 of the Convention). Chief Justice Mahomed, for the unanimous court, found the relevant statutory release scheme to be sufficient but observed that if release depended on the “capricious exercise” of the discretion of the prison or executive authorities, the hope of release would be “too faint and much too unpredictable” for the prisoner to retain the dignity required by section 8. It was also observed that life imprisonment could amount to cruel, inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence. The High Court of Namibia found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in State v. Vries 1997 4 LRC 1 and State v Likuwa [2000] 1 LRC 600.",
"155. In Lau Cheong and Another v. HKSAR [2002] 5 HKCFAR 415, [2002] 2 HKLRD 612, the Hong Kong Court of Final Appeal rejected a challenge to the mandatory life sentence for murder. It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel, inhuman or degrading punishment.",
"156. Section 9 of the New Zealand Bill of Rights Act 1990 also protects against disproportionately severe treatment or punishment.",
"THE LAW",
"I. JOINDER OF THE APPLICATIONS",
"157. Given their similar factual and legal background, the Court decides that the applications of the first, third, fourth, fifth and sixth applicants should be joined pursuant to Rule 42 § 1 of the Rules of Court.",
"Having regard, however, to the nature of the facts and the substantive issues raised by the second applicant, particularly in relation to his complaint concerning detention at ADX Florence, the Court considers that it is not appropriate to join his application but to treat it separately.",
"II. ARTICLE 3 AND THE EXTRADITION",
"158. The applicants made two complaints in relation to their proposed extradition. First, they complained that, if convicted in the United States, they would be detained at ADX Florence and, furthermore, would be subjected to special administrative measures (SAMS). They submitted that conditions of detention at ADX Florence (whether alone or in conjunction with SAMS) would violate Article 3 of the Convention. Second, the applicants complained that, if convicted, they would face sentences of life imprisonment without parole and/or extremely long sentences of determinate length in violation of Article 3 of the Convention.",
"159. Article 3 provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"160. The Government contested each of these arguments.",
"161. However, before turning to the merits of each of these complaints, it is necessary for the Court to consider the submissions of the parties as to the relevance, if any, of the extradition context to complaints made under Article 3 of the Convention, as well as the parties’ submissions as to the appropriate forum for the applicants’ prosecution. Those submissions may be summarised as follows.",
"A. The Government",
"162. The Government relied on the reasoning of the House of Lords in Wellington and the Canadian Supreme Court in Burns and Ferras (see paragraphs 66–72, 74 and 75 above). On the basis of those cases, the Government submitted that, in the extradition context, a distinction had to be drawn between torture and other forms of ill-treatment. A real risk of torture in the receiving State should be an absolute bar on extradition. However, for all other forms of ill-treatment, it was legitimate to consider the policy objectives pursued by extradition in determining whether the ill ‑ treatment reached the minimum level of severity required by Article 3. This was the appropriate means of resolving the tension that existed between the Court’s judgments in Soering, on the one hand, and Chahal and Saadi, on the other. Article 3 could not be interpreted as meaning that any form of ill-treatment in a non-Contracting State would be sufficient to prevent extradition. Such an absolutist approach to Article 3 would mean, for instance, that practices such as head shaving or shackling could act as a bar to extradition because the Court had found these forms of ill-treatment to be in breach of Article 3 (see Yankov v. Bulgaria, no. 39084/97, §§ 114-121, ECHR 2003 ‑ XII (extracts); and Henaf v. France, no. 65436/01, §§ 45-89, ECHR 2003 ‑ XI).",
"163. The Government did not accept the applicants’ submission that the possibility of prosecution in the United Kingdom was relevant in determining whether their extradition was compatible with Article 3. This submission appeared to be based on the Court’s judgment in Soering, where the Court had found that the possibility of trial in the Federal Republic of Germany was “a circumstance of relevance” in its overall assessment under Article 3 (paragraph 110 of the judgment). However, the facts of Soering were wholly exceptional. Both the United States and the Federal Republic of Germany had jurisdiction and the Federal Republic itself had submitted that extradition to the United States would breach the applicant’s Convention rights. In any event, there were no domestic proceedings under way in the United Kingdom for any of the applicants and they could not be prosecuted in the United Kingdom for the full range and gravamen of the conduct alleged against them. The prosecutions were more properly brought in the United States. In any event, the possibility of prosecution in the United Kingdom could only be relevant if the Court were to follow the relativist approach of the House of Lords in Wellington, which the applicants had urged the Court not to do.",
"B. The applicants",
"164. The applicants rejected the submission that Article 3 allowed for a balancing exercise of any kind. The Court had specifically rejected that submission in Saadi, cited above. Even if, in extradition cases, a relativist approach could be taken in respect of ill-treatment which fell short of torture, this was irrelevant to their case because, in their submission, years of solitary confinement at ADX amounted to torture or, at the very least, was at the upper end of the scale of ill-treatment (see further below). Furthermore, none of the policy reasons for taking a relativist approach to ill-treatment arising from life sentences could apply to ill-treatment arising from prison conditions. Detention at ADX was not mandated by United States law and the United States could give an undertaking not to detain the applicants there. Thus, the alternative to detention at ADX was not that they would be fugitives from United States justice, but rather that they would be detained in American prisons which were Article 3 compliant.",
"165. The United Kingdom was the appropriate forum for prosecution of each applicant and it had jurisdiction to try them. For the first and third applicants, the link with the United States was that one of the servers for the website they had run had been based in Connecticut for eighteen months. The case against them was based on material seized in searches of premises in the United Kingdom, which the police had immediately handed to the United States’ authorities. The fourth applicant had been the subject of a Metropolitan Police investigation but had never been charged. All the evidence against him came from materials seized during that investigation. The criminal conduct of the fifth and sixth applicants was alleged to have taken place in their London offices. All witnesses were in the United Kingdom and, as with the other applicants, all relevant evidence had been obtained there. The applicants submitted that the fact that the United Kingdom could prosecute them compatibly with Article 3 was a general consideration in assessing the proportionality of their extradition and its consequences.",
"C. The Court’s assessment",
"166. The Court begins by noting the parties’ submissions as to the appropriate forum for prosecution. It observes, however, that the Government do not intend to prosecute the applicants for any of the offences for which their extradition is sought (cf. Soering, § 16, cited above, where the Federal Republic of Germany had, by its extradition request to the United Kingdom, indicated its intention to prosecute the applicant and, in addition, its extradition request had contained proof that German courts had jurisdiction to try the applicant). Consequently, the Court considers that the question of the appropriate forum for prosecution, and whether this is relevant to the Court’s assessment under Article 3, does not therefore arise for examination in the present case.",
"167. The Court further notes that the House of Lords in Wellington has identified a tension between Soering and Chahal, both cited above, which calls for clarification of the proper approach to Article 3 in extradition cases. It also observes that the conclusions of the majority of the House of Lords in that case depended on three distinctions which, in their judgment, were to be found in this Court’s case-law. The first was between extradition cases and other cases of removal from the territory of a Contracting State; the second was between torture and other forms of ill-treatment proscribed by Article 3; and the third was between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. It is appropriate to consider each distinction in turn.",
"168. For the first distinction, the Court considers that the question whether there is a real risk of treatment contrary to Article 3 in another State cannot depend on the legal basis for removal to that State. The Court’s own case-law has shown that, in practice, there may be little difference between extradition and other removals. For example, extradition requests may be withdrawn and the Contracting State may nonetheless decide to proceed with removal from its territory (see Muminov v. Russia, no. 42502/06, § 14, 11 December 2008). Equally, a State may decide to remove someone who faces criminal proceedings (or has already been convicted) in another State in the absence of an extradition request (see, for example, Saadi v. Italy, cited above, and Bader and Kanbor v. Sweden, no. 13284/04, ECHR 2005 ‑ XI). Finally, there may be cases where someone has fled a State because he or she fears the implementation of a particular sentence that has already been passed upon him or her and is to be returned to that State, not under any extradition arrangement, but as a failed asylum seeker (see D. and Others v. Turkey, no. 24245/03, 22 June 2006). The Court considers that it would not be appropriate for one test to be applied to each of these three cases but a different test to be applied to a case in which an extradition request is made and complied with.",
"169. For the second distinction, between torture and other forms of ill-treatment, it is true that some support for this distinction and, in turn, the approach taken by the majority of the House of Lords in Wellington, can be found in the Soering judgment. The Court must therefore examine whether that approach has been borne out in its subsequent case-law.",
"170. It is correct that the Court has always distinguished between torture on the one hand and inhuman or degrading punishment on the other (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25; Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999 ‑ V). However, the Court considers that this distinction is more easily drawn in the domestic context where, in examining complaints made under Article 3, the Court is called upon to evaluate or characterise acts which have already taken place. Where, as in the extra-territorial context, a prospective assessment is required, it is not always possible to determine whether the ill-treatment which may ensue in the receiving State will be sufficiently severe as to qualify as torture. Moreover, the distinction between torture and other forms of ill-treatment can be more easily drawn in cases where the risk of the ill-treatment stems from factors which do not engage either directly or indirectly the responsibility of the public authorities of the receiving State (see, for example, D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III, where the Court found that the proposed removal of a terminally ill man to St Kitts would be inhuman treatment and thus in violation of Article 3).",
"171. For this reason, whenever the Court has found that a proposed removal would be in violation of Article 3 because of a real risk of ill-treatment which would be intentionally inflicted in the receiving State, it has normally refrained from considering whether the ill-treatment in question should be characterised as torture or inhuman or degrading treatment or punishment. For example, in Chahal the Court did not distinguish between the various forms of ill-treatment proscribed by Article 3: at paragraph 79 of its judgment the Court stated that the “Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment”. In paragraph 80 the Court went on to state that:",
"“The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion ...”",
"Similar passages can be found, for example, in Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I and Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 ‑ ... where, in reaffirming this test, no distinction was made between torture and other forms of ill-treatment.",
"172. The Court now turns to whether a distinction can be drawn between the assessment of the minimum level of severity required in the domestic context and the same assessment in the extra-territorial context. The Court recalls its statement in Chahal, cited above, § 81 that it was not to be inferred from paragraph 89 of Soering that there was any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 was engaged. It also recalls that this statement was reaffirmed in Saadi v. Italy, cited above, § 138, where the Court rejected the argument advanced by the United Kingdom Government that the risk of ill-treatment if a person is returned should be balanced against the danger he or she posed. In Saadi the Court also found that the concepts of risk and dangerousness did not lend themselves to a balancing test because they were “notions that [could] only be assessed independently of each other” (ibid. § 139). The Court finds that the same approach must be taken to the assessment of whether the minimum level of severity has been met for the purposes of Article 3: this too can only be assessed independently of the reasons for removal or extradition.",
"173. The Court considers that its case-law since Soering confirms this approach. Even in extradition cases, such as where there has been an Article 3 complaint concerning the risk of life imprisonment without parole, the Court has focused on whether that risk was a real one, or whether it was alleviated by diplomatic and prosecutorial assurances given by the requesting State (see Olaechea Cahuas v. Spain, no. 24668/03, §§ 43 and 44, 10 August 2006; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; and Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII). In those cases, the Court did not seek to determine whether the Article 3 threshold has been met with reference to the factors set out in paragraph 89 of the Soering judgment. By the same token, in cases where such assurances have not been given or have been found to be inadequate, the Court has not had recourse to the extradition context to determine whether there would be a violation of Article 3 if the surrender were to take place (see, for example, Soldatenko v. Ukraine, no. 2440/07, §§ 66-75, 23 October 2008). Indeed in the twenty-two years since the Soering judgment, in an Article 3 case the Court has never undertaken an examination of the proportionality of a proposed extradition or other form of removal from a Contracting State. To this extent, the Court must be taken to have departed from the approach contemplated by paragraphs 89 and 110 of the Soering judgment.",
"174. Finally, the Court considers that, in interpreting Article 3, limited assistance can be derived from the approach taken by the Canadian Supreme Court in Burns and Ferras (see paragraphs 74 and 75 above). As the applicants have observed, those cases were about the provision of the Canadian Charter on fundamental justice and not the Charter’s prohibition on cruel or unusual treatment or punishment. Furthermore, the Charter system expressly provides for a balancing test in respect of both of those rights, which mirrors that found in Articles 8-11 of the Convention but not Article 3 (see paragraph 73 above).",
"175. Instead, the Court considers that greater interpretative assistance can be derived from the approach the Human Rights Committee has taken to the prohibition on torture and ill-treatment contained in Article 7 of the ICCPR. The Committee’s General Comment No. 20 (see paragraph 76 above) makes clear that Article 7 prevents refoulement both when there is a real risk of torture and when there is a real risk of other forms of ill-treatment. Further, recent confirmation for the approach taken by the Court and by the Human Rights Committee can be found in Article 19 of the Charter on Fundamental Rights of the European Union, which provides that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see paragraph 80 above). The wording of Article 19 makes clear that it applies without consideration of the extradition context and without distinction between torture and other forms of ill-treatment. In this respect, Article 19 of the Charter is fully consistent with the interpretation of Article 3 which the Court has set out above. It is also consistent with the Council of Europe Guidelines on human rights and the fight against terrorism, quoted at paragraph 79 above. Finally, the Court’s interpretation of Article 3, the Human Rights Committee’s interpretation of Article 7 of the ICCPR, and the text of Article 19 of the Charter are in accordance with Articles 3 and 16 § 2 of the United Nations Convention Against Torture, particularly when the latter Article provides that the provisions of the Convention are “without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion” (see paragraph 78 above).",
"176. The Court therefore concludes that the Chahal ruling (as reaffirmed in Saadi ) should be regarded as applying equally to extradition and other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment which are proscribed by Article 3.",
"177. However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/AIDS in Aleksanyan v. Russia, no. 46468/06, §§ 145–158, 22 December 2008 with N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008).",
"178. Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court’s conclusion that there has been a violation of Article 3:",
"- the presence of premeditation ( Ireland v. the United Kingdom, cited above, § 167);",
"- that the measure may have been calculated to break the applicant’s resistance or will (ibid, § 167; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 446, ECHR 2004 ‑ VII);",
"- an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority ( Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 ‑ IX; Peers v. Greece, no. 28524/95, § 75, ECHR 2001 ‑ III);",
"- the absence of any specific justification for the measure imposed ( Van der Ven v. the Netherlands, no. 50901/99, §§ 61-62, ECHR 2003 ‑ II; Iwańczuk v. Poland, no. 25196/94, § 58, 15 November 2001);",
"- the arbitrary punitive nature of the measure (see Yankov, cited above, § 117);",
"- the length of time for which the measure was imposed ( Ireland v. the United Kingdom, cited above, § 92); and",
"- the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention ( Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 ‑ IX).",
"The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context.",
"179. Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment (see Saadi, cited above § 142). The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect of democracy, human rights and the rule of law.",
"III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ARISING FROM CONDITIONS AT ADX FLORENCE",
"A. The admissibility of the fifth and sixth applicants’ complaints",
"180. The Court recalls that, in its admissibility decision of 6 July 2010, it declared admissible the first, second and third applicant’s complaints concerning detention at ADX Florence and the imposition of special administrative measures post-trial. It declared inadmissible the fourth applicant’s similar complaint, on the grounds that his medical condition meant he was unlikely to spend any more than a short period of time at ADX Florence (see paragraphs 144 and 145 of the decision).",
"181. The Court finds the fifth and sixth applicant’s complaints in relation to ADX Florence and the imposition of special administrative measures post-trial to be indistinguishable from those made by the first and third applicants. Therefore, the fifth and sixth applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The Government",
"182. The Government recalled that the applicants were suspected of terrorism and the Council of Europe Guidelines on human rights and the fight against terrorism had recognised that such persons could be subjected to more severe restrictions than those applied to other prisoners (see paragraph 114 above). The Court had also recognised that prohibitions on contact and communication for security reasons did not of themselves amount to inhuman treatment or punishment. The Government accepted that such restrictions could not amount to complete sensory isolation and could not be imposed indefinitely. However, in assessing the nature of solitary confinement, factors to be taken into account included the physical conditions of confinement and the possibility of visits.",
"183. On this basis, and in the light of the evidence provided by the ADX officials and the Department of Justice (see paragraphs 82–96 above), the applicants’ complaints were unsustainable. The physical conditions of detention at ADX were compatible with Article 3 as interpreted by the Court. Even in the highest security units at ADX, there were opportunities for communication with other inmates, recreation, education, religious expression and engagment with the outside world. The mental and social needs of inmates were appropriately catered for and inmates could not be described as being detained in conditions that amounted to sensory isolation, still less indefinite solitary confinement, whether total or relative. The evidence, particularly the Department of Justice’s replies to the Rapporteur’s questions, showed that there were practical and effective opportunities to enter the step down and special security unit programs, which could ultimately lead to transfer to another prison. Moreover, initial placement at ADX was determined by reference to stated, objective criteria, with full procedural protections through the Federal Bureau of Prisons’ Administrative Remedy Program.",
"184. The Bureau of Prisons had shown itself willing and able to respond to requests for change in conditions, not least the relaxation of conditions in H Unit to allow phase three inmates to eat together, the expansion of Arabic language books in the library, and the discontinuation of strip searches before inmates could leave their cells. All of these factors meant conditions at ADX Florence were distinguishable from G.B. v. Bulgaria, no. 42346/98, 11 March 2004 and Peers v. Greece, no. 28524/95, ECHR 2001 ‑ III and, in fact, were much less severe than in Ramirez Sanchez v. France [GC], no. 59450/00, ECHR 2006 ‑ IX, where the Court had found no violation of Article 3.",
"185. Finally, inmates had recourse to the courts to challenge their conditions of detention (see the summary of relevant Eighth Amendment jurisprudence set out at paragraph 105–110 above). A detailed examination of the federal courts’ consideration of the challenges brought by ADX inmates, showed that the allegations made in respect of ADX were unfounded, and that the United States’ courts applied a legal analysis which was in reality no different from that applied by this Court. Moreover, these decisions showed that the United States were both able and willing to protect the interests of ADX inmates, assess their claims and uphold them where appopriate. The Government also stated that, within the materials provided by the applicants, the Court could only properly place reliance on the decisions of the United States courts, rather than the untested statements of inmates at ADX or reports based upon them. Among these decisions, the Government placed particular emphasis on the conclusions reached by the Magistrate Judge in Rezaq (summarised at paragraph 112 above). They also continued to rely on the accuracy, fairness and good faith of the declarations which had been provided to the Court by the Federal Bureau of Prisons officials.",
"b. The applicants",
"i. The first, third, fifth and sixth applicants",
"186. The above applicants invited the Court to proceed on the basis that, if convicted, they would be detained at ADX Florence and subjected to special administrative measures. They also adopted the submissions of the third party interveners that the Eighth Amendment did not offer equivalent protection to Article 3 (see paragraph 197 below).",
"187. The applicants invited the Court to consider that, throughout their detention in the United Kingdom, they had never been considered physically dangerous and were being held in much less stringent conditions than those at ADX. For instance, the first applicant was being held in a unit were he was never shackled, spent nine hours outside his cell every day and participated in common activities with other prisoners, which included educational classes, cooking for themselves and tending a vegetable garden. He also had weekly “open” visits with his family (sitting in a large hall without intervening glass screens). Even if he were to be convicted in the United Kingdom and classified as a High Risk Category A prisoner (which he was not) his conditions of detention would be less restricted and he would enjoy access to even more educational, religious, sport and recreational facilities than at present. Many of these activities would involve association with large groups of prisoners.",
"188. In respect of the procedures for placement at ADX, the applicants relied on the evidence they had submitted which showed that the criteria for placement at ADX Florence was subjective, the transfer hearing was mere window dressing, and inmates had great difficulty in challenging the imposition of special administrative measures. Even on Mr Synsvoll’s evidence (see paragraph 89 above) the Bureau of Prisons was at the mercy of the wishes of other Department of Justice agencies such as the FBI, meaning that the measures could not be challenged through its Administrative Remedy Program. In the applicants’ submission, these faults in the Bureau’s procedures meant that the ADX regime did not comply with the procedural requirements for solitary confinement which the Court had laid down in Onoufriou v. Cyprus, no. 24407/04, § 70, 7 January 2010.",
"189. The applicants further submitted that, having regard to the Court’s case-law and the international materials summarised at paragraphs 114– 121 above, the conditions of detention at ADX amounted to solitary confinement of an indefinite duration and did not comply with the substantive requirements of Article 3.",
"190. All ADX Florence prisoners who were subjected to special administrative measures were detained at H Unit. It was a place of almost complete social isolation. Communication between inmates and with the outside world was severely curtailed and at the total discretion of the authorities. Contact with prison staff was minimal, as was telephone contact with the outside world. Educational activities and library access were limited and confined to in-cell activity. Recreation alone in an empty cage was not recreation in any meaningful sense and recreation periods were frequently cancelled.",
"191. The very fact of being subjected to special administrative measures meant H Unit inmates were not eligible for the step down program. The program itself was highly capricious. Admission was at the discretion of staff and inmates could be returned to their original unit at any stage for a disciplinary violation or other undefined reason without explanation or due process. This might include something as minor as a disrespectful attitude to staff. As Professor Rovner had observed, despite the increase in the number of inmates admitted to the step down program, it remained a minority of inmates who progressed through it; significant numbers of inmates spent extremely long periods of time at ADX and, in the case of terrorist inmates, they could spent up to thirteen years in solitary confinement before being admitted to the program. Other inmates with good conduct records had spent years but had never been admitted to the program.",
"192. The applicants also submitted that the scientific evidence on the detrimental effect of solitary confinement on mental health was unequivocal (see paragraph 99 above) and not disputed by the Government, yet the solitary confinement regime in place at ADX failed entirely to recognise the serious harm it caused to its inmates’ mental health. The regime failed to provide mental healthcare which was appropriate to the very serious needs of the patient-inmates. Even on Dr Zohn’s evidence, those with serious mental health problems such as schizophrenia were detained at ADX Florence.",
"193. In this connection, the first, third and fifth applicants provided the following information on their mental health.",
"The first applicant had been diagnosed with post-traumatic stress disorder, which had worsened in the prison unit where he was detained.",
"The third applicant had been diagnosed with Asperger syndrome, recurrent depressive disorder (with his current episode assessed as “mild” as opposed to previous, severe depressive episodes), and obsessive compulsive disorder in conjunction with other anxiety symptoms. The latter had worsened in detention, though his depressive symptoms had improved. Before his Asperger syndrome had been diagnosed in June 2009, a psychiatrist had predicted a high risk of serious depression leading to suicide if the third applicant were to be extradited and placed in solitary confinement for a long period. The third applicant also submitted a statement prepared by an American criminologist, detailing the heightened difficulties experienced by those with Asperger syndrome in federal prisons and the absence of proper facilities within the Bureau of Prisons to treat the condition.",
"The fifth applicant had a recurrent depressive disorder and had suffered several mental breakdowns while in detention in the United Kingdom. His most recent psychiatrist’s report assessed his current episode as moderate to severe. The recommended treatment was medication with psychological treatment and support, including productive activity, opportunities for interaction with others and exercise.",
"ii. The fourth applicant",
"194. The fourth applicant asked the Court to reconsider its decision to declare his complaint under this heading inadmissible, which it had done on the grounds that, as a result of his medical conditions (see paragraph 37 above), there was no real risk of his spending anything more than a short period of time at ADX Florence. The fourth applicant submitted a letter from Professor Andrew Coyle of the International Centre for Prison Studies, who had given evidence in the fourth applicant’s domestic proceedings. The letter, dated 1 February 2011, noted that the fourth applicant continued to be detained in the United Kingdom in a non-medical facility, subject to a comprehensive health and social care plan and regular daily support. Professor Coyle stated that, because the United Kingdom prison authorities saw no need to transfer the fourth applicant to a medical setting, the United States prison authorities might have regard to this fact and conclude that he could be held at ADX Florence rather than a Bureau of Prison’s medical facility. The fourth applicant also submitted evidence that one Arab Muslim who had been convicted of terrorism offences, Omar Abdel Rahman, had been detained at ADX Florence, despite severe heart problems, blindness and diabetes. When his condition worsened, Abdel Rahman was transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri and thereafter to a Federal Medical Centre at Butner, North Carolina. He continued to rely on the fact that his disabilities would exacerbate any ill-treatment inherent in detention at ADX Florence.",
"195. The fourth applicant submitted that, even if he were not detained at ADX Florence, if he were subjected to special administrative measures, detention at a Bureau of Prisons medical facility could be at least as restrictive as detention at ADX and could involve the same degree of solitary confinement as at ADX. Thus, even if there were no risk of detention at ADX, there was still a real risk of ill-treatment contrary to Article 3 at another facility.",
"196. The fourth applicant also submitted that the Eighth Amendment did not offer equivalent protection to Article 3. The Supreme Court of the United States had only recently (and by narrow majorities) decided that it was unconstitutional to impose the death penalty or life imprisonment on minors ( Roper and Graham, cited above) and it was clear that, in respect of interrogation techniques used at Guantánamo Bay, the United States did not adopt the same definitions of torture and other forms of ill-treatment as this Court.",
"c. The third party interveners",
"197. The third party interveners (see paragraph 7 above) submitted that there was a substantial gap between the protection offered by Article 3 of the Convention and the protection offered by the Eighth Amendment. Article 3 did not require an applicant to show deliberate imposition of pain or deliberate indifference to it ( Alver v. Estonia, no. 64812/01, § 55, 8 November 2005; Peers v. Greece, no. 28524/95, §§ 74-75, ECHR 2001 ‑ III), whereas this was a specific requirement in order to show a violation of the Eighth Amendment (the subjective test set out in Wilson : see paragraph 105 above). Article 3 also provided much greater protection against mental suffering and psychological harm arising from conditions of detention ( Mathew v. the Netherlands, no. 24919/03, §§ 197-205, ECHR 2005 ‑ IX and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 121, 29 November 2007); the United States courts did not even consider a significant deterioration of a detainee’s mental condition to be sufficient for an Eighth Amendment violation unless there was also a deprivation of basic physical needs such as food, shelter, clothing or warmth (see Hill and Magluta, cited at paragraph 110 above).",
"198. Limited protection was provided by the due process clause of the Fifth Amendment (see paragraph 109 above). Indeed, the Tenth Circuit’s construction of that clause provided no additional protection to the Eighth Amendment. The Wilkinson case (see also paragraph 109 above) only required the barest administrative review of the decision to place an inmate in a supermax prison and the procedures could be informal and non-adversarial without any requirement for a judge or neutral arbiter. Prison officials could continue to rely on the initial reasons for placement, including the crime for which the inmate was in prison. The wide discretion afforded to officials, the deference afforded by the courts, and the vague criteria for placement at ADX (and for entry to the step down program) meant there was no meaningful review at all.",
"199. There were also significant procedural obstacles to prisoners seeking to vindicate their constitutional rights through the federal courts. The Prison Litigation Reform Act 1996 barred prisoners from bringing court claims if all administrative remedies had not been exhausted, a rule which had been enforced strictly by the courts to prevent otherwise compelling cases from proceeding. The Act prevented prisoners from receiving compensation for mental and emotional injuries unless they also showed physical injury, even in respect of official conduct which was deliberately and maliciously intended to harm. The Act further allowed prison officials to seek to terminate a court order in favour of a prisoner after the order had been in force for two years.",
"2. The Court’s assessment",
"a. General principles",
"i. Article 3 and detention",
"200. As the Court has frequently stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV; A.B. v. Russia, no. 1439/06, § 99, 14 October 2010).",
"201. In order to fall under Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010 ‑ ...). Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers, cited above, § 74).",
"202. For a violation of Article 3 to arise from an applicant’s conditions of detention, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Enea v. Italy [GC], no. 74912/01, § 56, ECHR 2009-...). Measures depriving a person of his liberty may often involve an element of suffering or humiliation. However, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94158, ECHR-XI, and Cenbauer v. Croatia, no. 73786/01, § 44, ECHR 2006-III; A.B. v. Russia, cited above, § 100).",
"203. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Ciorap v. Moldova, no. 12066/02, § 64, 19 June 2007; Alver v. Estonia, no. 64812/01, 8 November 2005; Ostrovar v. Moldova, no. 35207/03, § 79, 13 September 2005).",
"204. In addition to these general principles, the following principles are relevant to the present case.",
"ii. Solitary confinement",
"205. The circumstances in which the solitary confinement of prisoners will violate Article 3 are now well-established in the Court’s case-law.",
"206. Complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason ( Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003 ‑ II).",
"207. Other forms of solitary confinement which fall short of complete sensory isolation may also violate Article 3. Solitary confinement is one of the most serious measures which can be imposed within a prison ( A.B. v. Russia, cited above, § 104) and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities (see Iorgov v. Bulgaria, no. 40653/98, § 83, 11 March 2004) Indeed, as the Committee’s most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is (see the Committee’s 21 st General Report, summarised at paragraph 116 above).",
"208. At the same time, however, the Court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V, quoted with approval by the Grand Chamber in Ramirez Sanchez v. France, cited above, § 12; Öcalan v. Turkey [GC], no. 46221/99, § 191, ECHR 2005-IV). In many States Parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners (see, Ramirez Sanchez v. France [GC], no. 59450/00, § 138, ECHR 2006-IX; and, as recent examples, Alboreo v. France, no. 51019/08, § 110, 20 October 2011 [not yet final] and Madonia v. Italy (dec.), no. 1273/06, 22 September 2009).",
"209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).",
"210. In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for Article 3 (see Madonia, cited above). The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely (see Ramirez Sanchez, cited above, §§ 136 and 145, where the applicant was held in solitary confinement for eight years and two months).",
"211. Equally, although it is not for the Court to specify which security measures may be applied to prisoners, it has been particularly attentive to restrictions which apply to prisoners who are not dangerous or disorderly (see, for example, A.B. v. Russia, cited above, § 105 and Csüllög v. Hungary, no. 30042/08, § 36, 7 June 2011); to restrictions which cannot be reasonably related to the purported objective of isolation (see Csüllög, cited above, § 34,); and to restrictions which remain in place after the applicant has been assessed as no longer posing a security risk (see, for example, Khider v. France, no. 39364/05, §§ 118 and 119, 9 July 2009).",
"212. Finally, in order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules. Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities’ decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Fourth, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances ( Onoufriou, cited above, § 70). Lastly, it is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement ( Ramirez Sanchez v. France, cited above, § 145 above; A.B. v. Russia, cited above, § 111).",
"iii. Recreation and outdoor exercise in prison",
"213. Of the elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners may take it. The Court has frequently observed that a short duration of outdoor exercise limited to one hour a day was a factor that further exacerbated the situation of the applicant, who was confined to his cell for the rest of the time without any kind of freedom of movement (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 88, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 69, 21 December 2010, § 69, Skachkov v. Russia, no. 25432/05, § 54, 7 October 2010).",
"214. The physical characteristics of outdoor exercise facilities also featured prominently in the Court’s analysis. In Moiseyev v. Russia, the exercise yards in a Moscow prison were just two square metres larger than the cells and hardly afforded any real possibility for exercise. The yards were surrounded by three-metre-high walls with an opening to the sky protected with metal bars and a thick net. The Court considered that the restricted space coupled with the lack of openings undermined the facilities available for recreation and recuperation (see Moiseyev v. Russia, no. 62936/00, § 125, 9 October 2008). The Court examined the characteristics of outdoor exercise in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011. The Court found that the applicants’ situation (in overcrowded conditions) was further exacerbated by the fact that they were confined to their cell day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in the recreation room. As there was no roof over the outdoor yard, it was hard to see how the prisoners could use the yard in bad weather conditions in any meaningful way. It was true that the applicants were allowed to watch TV, listen to radio and read books in the cell. The Court found, however, that this could not make up for the lack of possibility to exercise or spend time outside the overcrowded cell (see paragraph 78 of the judgment).",
"iv Detention and mental health",
"215. The Court has held on many occasions that the detention of a person who is ill may raise issues under Article 3 of the Convention and that the lack of appropriate medical care may amount to treatment contrary to that provision (see Sławomir Musiał v. Poland, no. 28300/06, § 87, 20 January 2009 with further references therein). In particular, the assessment of whether the particular conditions of detention are incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. The feeling of inferiority and powerlessness which is typical of persons who suffer from a mental disorder calls for increased vigilance in reviewing whether the Convention has (or will be) complied with. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant (ibid. and Dybeku v. Albania, no. 41153/06, § 41, 18 December 2007).",
"b. Application of the general principles to the facts of the case",
"i. The case of the fourth applicant",
"216. The Court turns first to the case of the fourth applicant, who asks the Court to reconsider its decision to declare his complaint in respect of ADX inadmissible. The Court will only re-examine complaints which have been declared inadmissible in exceptional circumstances where a clear mistake has been made either in the establishment of facts that are relevant to the admissibility requirements or in the Court’s assessment ( Ölmez and Ölmez v. Turkey (dec.), no. 39464/98, 5 July 2005).",
"217. Those circumstances do not obtain in the fourth applicant’s case. Indeed, as the letter from Professor Coyle recognises, the fourth applicant is not detained in a medical facility but is subject to a comprehensive health and social care plan and regular daily support. On the basis of the information provided by the parties as to the regime at ADX, the Court does not consider that it would be possible for such a plan, or such regular support, to be provided at ADX. It may well be that, as the fourth applicant submits, Omar Abdel Rahman was detained at ADX Florence, despite severe heart problems, blindness and diabetes. However, the fourth applicant’s disabilities are much more severe, not least the fact that both his forearms have been amputated. This fact alone would appear to make detention at ADX impossible. The Court therefore refuses the fourth applicant’s request.",
"ii. The cases of the first, third, fifth and sixth applicants.",
"218. For the above applicants, the Government have accepted that, although detention at ADX would not be inevitable if they were extradited and convicted in the United States, there is a real risk of detention there. The Court will proceed on this basis.",
"219. In considering whether detention at ADX would violate Article 3, the Court observes that it does not appear to be in dispute that physical conditions at ADX Florence – that is, the size of cells, the availability of lighting and appropriate sanitary facilities and so on – meet the requirements of Article 3. Instead, the complaints made by the applicants are principally directed first, at the alleged lack of procedural safeguards before placement at ADX and second, at ADX’s restrictive conditions and lack of human contact.",
"220. For the first, the Court finds no basis for the applicants’ submission that placement at ADX would take place without any procedural safeguards. The evidence submitted by the United States’ authorities shows that not all inmates who are convicted of international terrorism offences are housed at ADX. Therefore, while it may well be the case that, as Professor Rovner states, inmates convicted of terrorism offences were sent to ADX soon after 11 September 2001 (despite years of good conduct in other, less secure federal prisons), the applicants have not shown that they would be detained at ADX merely as a result of conviction for terrorism offences. Instead, it is clear from the declarations submitted by the Government, particularly that of Mr Milusnic, that the Federal Bureau of Prisons applies accessible and rational criteria when deciding whether to transfer an inmate to ADX. Placement is accompanied by a high degree of involvement of senior officials within the Bureau who are external to the inmate’s current institution. Their involvement and the requirement that a hearing be held before transfer provide an appropriate measure of procedural protection. There is no evidence to suggest that such a hearing is merely window dressing. Even if the transfer process were unsatisfactory, there would be recourse to both the Bureau’s administrative remedy programme and the federal courts, by bringing a claim under the due process clause of the Fourteenth Amendment, to cure any defects in the process. Despite the third party interveners’ submission that recourse to the courts is difficult, the fact that Fourteenth Amendment cases have been brought by inmates at ADX shows that such difficulties can be overcome.",
"221. For the second complaint, ADX’s restrictive conditions, it is true that the present applicants are not physically dangerous and that, as the Court has observed at paragraph 211 above, it must be particularly attentive to any decision to place prisoners who are not dangerous or disorderly in solitary confinement. However, as the applicants’ current detention in high security facilities in the United Kingdom demonstrates, the United States’ authorities would be justified in considering the applicants, if they are convicted, as posing a significant security risk and justifying strict limitations on their ability to communicate with the outside world. There is nothing to indicate that the United States’ authorities would not continually review their assessment of the security risk which they considered the applicants to pose. As Ms Rangel has indicated, the Federal Bureau of Prisons has well-established procedures for reviewing an inmate’s security classification and carrying out reviews of that classification in six-monthly program reviews and three-yearly progress reports. Moreover, as the Department of Justice’s most recent letters show, the United States’ authorities have proved themselves willing to revise and to lift the special administrative measures which have been imposed on terrorist inmates thus enabling their transfer out of ADX to other, less restrictive institutions (see paragraph 97 above).",
"222. The Court also observes that it is not contested by the Government that conditions at ADX Florence are highly restrictive, particularly in the General Population Unit and in phase one of the Special Security Unit.",
"It is clear from the evidence submitted by both parties that the purpose of the regime in those units is to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. This does not mean, however, that inmates are kept in complete sensory isolation or total social isolation. Although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided through television and radio channels, frequent newspapers, books, hobby and craft items and educational programming. The range of activities and services provided goes beyond what is provided in many prisons in Europe. Where there are limitations on the services provided, for example restrictions on group prayer, these are necessary and inevitable consequences of imprisonment (see, mutatis mutandis, Dickson v. the United Kingdom [GC], no. 44362/04, § 68, ECHR 2007 ‑ V). The restrictions are, for the most part, reasonably related to the purported objectives of the ADX regime (cf. Csüllog, cited above, concerning unnecessary restrictions, such as a prohibition on tea-bags and books).",
"The Court also observes that the services provided by ADX are supplemented by regular telephone calls and social visits and by the ability of inmates, even those under special administrative measures, to correspond with their families. The extent of those opportunities would be of considerable assistance to the applicants who would, by their extradition, be separated from their families in the United Kingdom.",
"The Court finds that there are adequate opportunities for interaction between inmates. While inmates are in their cells talking to other inmates is possible, admittedly only through the ventilation system. During recreation periods inmates can communicate without impediment. Indeed, as Mr Milusnic indicates, most inmates spend their recreation periods talking (see his declaration at paragraph 85 above).",
"In addition, although it is of some concern that outdoor recreation can be withdrawn for periods of three months for seemingly minor disciplinary infractions, the Court places greater emphasis on the fact that, according to Mr Milusnic, inmates’ recreation has only been cancelled once for security reasons and that the periods of recreation have been increased from five to ten hours per week.",
"All of these factors mean that the isolation experienced by ADX inmates is partial and relative (see Ramirez Sanchez, cited above, § 135).",
"223. The Court would also note that, as it emphasised in Ramirez Sanchez, cited above, § 145, solitary confinement, even in cases entailing relative isolation, cannot be imposed indefinitely. If an applicant were at real risk of being detained indefinitely at ADX, then it would be possible for conditions to reach the minimum level of severity required for a violation of Article 3. Indeed, this may well be the case for those inmates who have spent significant periods of time at ADX. However, the figures provided by the United States’ authorities, although disputed by the applicants, show that there is a real possibility for the applicants to gain entry to the step down or special security unit programs. First, the Department of Justice’s letter of 26 September 2011 shows that while there were 252 inmates in ADX’s General Population Unit, 89 inmates were in the step down program. The figures provided in that letter for the special security unit program, when compared with the November 2010 figures given by Mr Milusnic, demonstrated that inmates are progressing through that program too. Second, Ms Rangel’s declarations show that inmates with convictions for international terrorism have entered the step down program and, in some cases, have completed it and been transferred to other institutions. Ms Rangel’s declaration is confirmed by the Rezaq et al v. Nalley et al judgment of the District Court where the petitioners, all convicted international terrorists, had brought proceedings to obtain entry to the step down program but, by the time the matter came to judgment, had completed the program and been transferred elsewhere (see paragraph 112 above).",
"224. Finally, to the extent that the first, third and fifth applicants rely on the fact that they have been diagnosed with various mental health problems, the Court notes that those mental health conditions have not prevented their being detained in high-security prisons in the United Kingdom. On the basis of Dr Zohn’s declaration, it would not appear that the psychiatric services which are available at ADX would be unable to treat such conditions. The Court accordingly finds that there would not be a violation of Article 3 in respect of these applicants in respect of their possible detention at ADX.",
"IV. ALLEGED VIOLATION OF ARTICLE 3 ARISING FROM THE APPLICANTS’ POSSIBLE SENTENCES",
"A. The admissibility of the fifth and sixth applicants’ complaints",
"225. The first, third and fourth applicants’ complaints under this head were declared admissible by the Court in its decision of 6 July 2010. The fifth and sixth applicants’ complaints are indistinguishable from those made by the first, third and fourth applicants; those complaints are not, therefore, manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. The Court notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"a. The Goverment",
"226. The Government relied on the Court’s rulings in Kafkaris and Léger v. France, no. 19324/02, ECHR 2006 ‑ ..., and the United Kingdom court’s rulings in Wellington and Bieber (see paragraphs 64–72 and 144 above). In particular, they submitted that, in Wellington, the House of Lords had been correct to find that, while an irreducible life sentence might raise an issue under Article 3, it would not violate Article 3 at the time of its imposition unless it was grossly or clearly disproportionate.",
"227. The Government further submitted that, unless a life sentence was grossly or clearly disproportionate, an irreducible life sentence would only violate Article 3 if the prisoner’s further imprisonment could no longer be justified for the purposes of punishment and deterrence (see Wellington, cited above). No court could determine at the outset of the sentence when that point would be reached and, in a particular case, it might never be reached at all. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Article 3 could not be determined in advance of extradition.",
"228. In the present cases, none of the six applicants’ sentences were grossly disproportionate and all the sentences were reducible, as required by Kafkaris .The Government referred to the four mechanisms for sentence reduction outlined in the Department of Justice’s letter of 26 November 2010 (see paragraph 130 above): substantial assistance to the authorities in the investigation of a third party, recommendation for compassionate release by the Director of the Bureau of Prisons, commutation of the sentence by the President or pardon, reduction of the sentence based on the the sentencing guidelines which were subsequently lowered. In the Government’s submission, the first three mechanisms separately and all four mechanisms cumulatively, were more than sufficient to establish that any life sentence imposed on the applicants would be both de jure and de facto reducible.",
"229. The Government observed that the first, third, fourth and fifth applicants only faced the possibility of discretionary life sentences. In this respect, the Court of Appeal in Bieber had correctly concluded that this Court would not find a violation of Article 3 if an irreducible life sentence was deliberately imposed by a judge, when that judge considered that the offence was so serious that punishment and deterrence required the offender to spend the rest of his days in prison (see paragraph 45 of Bieber, quoted at paragraph 144 above). In the Government’s view, this was especially so when a discretionary life sentence by its very nature avoided the risk of arbitrariness of mandatory life sentences. Accordingly, given the serious nature of the allegations made against these applicants, and the full range of protections available in the United States (including the Eighth Amendment’s protection from grossly disproportionate sentences), there were no substantial grounds for believing that the imposition of discretionary life sentences would violate Article 3.",
"230. For the sixth applicant, the Government submitted that, as a general principle, a mandatory and irreducible life sentence would not violate Article 3, especially if it were imposed on an adult offender following conviction for an offence of the utmost severity. Under United States federal law a mandatory life sentence was reserved for a narrow category of offenders and the most serious criminal conduct. Given, therefore, that any mandatory life sentence (even if, for present purposes, it were irreducible) would only be imposed on the sixth applicant if he were convicted of participation in an act which had caused a massive loss of life, such a sentence would not be grossly disproportionate.",
"b. The applicants",
"231. The applicants submitted that a violation of Article 3 would arise, not just because their sentences would in practice be irreducible, but also because the sentences were grossly disproportionate. Their likely sentences were, in effect, mandatory sentences which left no room for consideration of their individual cases. They relied on the views expressed by the House of Lords and Privy Council in Lichniak, Reyes, de Boucherville, as well as the rulings in Dodo, Philibert, and Tcoeib (see paragraphs 142, 149 and 151–154 above). They also relied on academic materials detailing the inhumane and degrading effects sentences of life imprisonment without parole had on prisoners, particularly in the United States. [2] In their cases, the effects would be exacerbated by the requirement that they serve the sentences at ADX Florence and by the already poor mental health of some of the applicants.",
"232. It was not correct that, as the Government had suggested, no Article 3 issue could arise in respect of discretionary life sentences imposed by a judge. As Ms Barrett’s evidence showed (see paragraph 133 above), United States trial judges had a limited sentencing discretion and the sentencing guidelines called for any offence involving terrorism to be punished by the available statutory maximum sentence. Therefore, it was highly likely that, where applicable, life sentences would be imposed. Moreover, it was not necessary for a life sentence to be mandatory for it to be disproportionate and thus in violation of Article 3. Several of the applicants risked life sentences for non-murder offences; in those circumstances, their sentences would be disproportionate because they could be imposed for non-murder offences without any real judicial discretion.",
"233. The applicants did not accept that the four reduction mechanisms relied on by the Government meant that their sentences would be de facto reducible. Proper regard had to be given to the practical realities of their situation. First, they were not in a position to provide “substantial assistance” to the authorities. Second, compassionate release would only arise if they became terminally ill and, even then, the Bureau might not exercise its discretion in favour of release. In any event, hope of release to die of a terminal illness outside prison was not real hope of release. Third, release as a result of a change in the sentencing guidelines was speculative, did not automatically led to reductions, and would not apply if other, consecutive sentences were imposed. Finally, there was no record of any presidential pardon or commutation for a terrorism offence; the pardons issued in respect of the FALN were not comparable.",
"234. The extradition context was relevant insofar as any applicant sentenced to life imprisonment in a Contracting State could bring repeated applications to the Court complaining about his or her continued incarceration; by contrast, the present applicants had no means of challenging their incarceration once extradited. It was not correct, therefore, that an Article 3 issue could only arise after a substantial part of the sentence had been served and continued detention served no purpose (cf. Bieber and Wellington, cited above); an Article 3 issue could also arise at the time when the sentence was imposed. Moreover, it was irrelevant at what point a violation of Article 3 would arise in the United States: the principled approach which the Court had always taken to Article 3 meant that, whenever a risk of ill-treatment in the receiving State was clear and foreseeable, there would be a violation of Article 3.",
"2. The Court’s assessment",
"a. General considerations",
"235. The Court takes note of the parties’ submissions as to whether the applicants’ likely sentences are irreducible within the meaning of that term used in Kafkaris. However, given the views expressed by the House of Lords in Wellington and the Court of Appeal in Bieber in respect of Kafkaris (summarised at paragraphs 64–72 and 144 above), the Court considers it necessary to consider first whether, in the context of removal to another State, a grossly disproportionate sentence would violate Article 3 and second, at what point in the course of a life or other very long sentence an Article 3 issue might arise.",
"236. For the first issue, the Court observes that all five Law Lords in Wellington found that, in a sufficiently exceptional case, an extradition would be in violation of Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. The Government, in their submissions to the Court, accepted that proposition.",
"Support for this proposition can also be found in the comparative materials before the Court. Those materials demonstrate that “gross disproportionality” is a widely accepted and applied test for determining when a sentence will amount to inhuman or degrading punishment, or equivalent constitutional norms (see the Eighth Amendment case-law summarised at paragraphs 134–136 above, the judgments of the Supreme Court of Canada at paragraph 148 above, and the further comparative materials set out at paragraphs 151– 156 above).",
"237. Consequently, the Court is prepared to accept that while, in principle, matters of appropriate sentencing largely fall outside the scope of the Convention ( Léger, cited above, § 72), a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, the Court also considers that the comparative materials set out above demonstrate that “gross disproportionality” is a strict test and, as the Supreme Court of Canada observed in Latimer (see paragraph 148 above), it will only be on “rare and unique occasions” that the test will be met.",
"238. The Court also accepts that, in a removal case, a violation would arise if the applicant were able to demonstrate that he or she was at a real risk of receiving a grossly disproportionate sentence in the receiving State. However, as the Court has recalled at paragraph 177 above, the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States. Due regard must be had to the fact that sentencing practices vary greatly between States and that there will often be legitimate and reasonable differences between States as to the length of sentences which are imposed, even for similar offences. The Court therefore considers that it will only be in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3.",
"239. The Court now turns to the second issue raised by the Court of Appeal and House of Lords. It considers that, subject to the general requirement that a sentence should not be grossly disproportionate, for life sentences it is necessary to distinguish between three types of sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment without the possibility of parole.",
"240. The first sentence is clearly reducible and no issue can therefore arise under Article 3.",
"241. For the second, a discretionary sentence of life imprisonment without the possibility of parole, the Court observes that normally such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed. Instead, the Court agrees with the Court of Appeal in Bieber and the House of Lords in Wellington that an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) as the Grand Chamber stated in Kafkaris, cited above, the sentence is irreducible de facto and de iure.",
"242. For the third sentence, a mandatory sentence of life imprisonment without the possibility of parole, the Court considers that greater scrutiny is required. The vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court (see, for instance, Reyes and de Boucherville at paragraphs 151 and 152 above). This is no truer than for a mandatory sentence of life imprisonment without the possibility of parole, a sentence which, in effect, condemns a defendant to spend the rest of his days in prison, irrespective of his level of culpability and irrespective of whether the sentencing court considers the sentence to be justified.",
"However, in the Court’s view, these considerations do not mean that a mandatory sentence of life imprisonment without the possibility of parole is per se incompatible with the Convention, although the trend in Europe is clearly against such sentences (see, for example, the comparative study summarised at paragraph 138 above). Instead, these considerations mean that such a sentence is much more likely to be grossly disproportionate than any of the other types of life sentence, especially if it requires the sentencing court to disregard mitigating factors which are generally understood as indicating a significantly lower level of culpability on the part of the defendant, such as youth or severe mental health problems (see, for instance, Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I at paragraphs 53 and 61 respectively and the Canadian case of Burns, at paragraph 93, quoted at paragraph 74 above).",
"The Court concludes therefore that, in the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, that is when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure ( Kafkaris, cited above).",
"b. The present cases",
"243. The Court now turns to the facts of each case. It is convenient first to consider the cases of the first, third, fourth and sixth applicants who face, at most, discretionary life sentences.",
"First, the Court observes that it is by no means certain that, if extradited, these applicants would be convicted of the charges against them. If they are, it is also by no means certain that discretionary life sentences would be imposed, particularly when none of the charges they face carries a mandatory minimum sentence of life imprisonment. Nonetheless, the Court considers that it is appropriate to proceed on the basis that discretionary life sentences are possible.",
"Second, it is necessary to consider whether such sentences would be grossly disproportionate. In this connection the Court observes that, while the offences with which these applicants are charged vary, all of them concern involvement in or support for terrorism. Given the seriousness of terrorism offences (particularly those carried out or inspired by Al-Qaeda) and the fact that the life sentences could only be imposed on these applicants after the trial judge considered all relevant aggravating and mitigating factors, the Court considers that discretionary life sentences would not be grossly disproportionate in their cases.",
"Third, as the Court has observed, in respect of a discretionary life sentence, an Article 3 issue will only arise when it can be shown: (i) that the applicant’s continued incarceration no longer serves any legitimate penological purpose; and (ii) the sentence is irreducible de facto and de iure. Given that none of these applicants has been convicted, still less has begun serving any sentences which might be imposed upon conviction (cf. Kafkaris and Léger, cited above, and Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010), the Court considers that they have not shown that, upon extradition, their incarceration in the United States would not serve any legitimate penological purpose. Indeed, if they are convicted and given discretionary life sentences, it may well be that, as the Government have submitted, the point at which continued incarceration would no longer serve any purpose may never arise. It is still less certain that, if that point were ever reached, the United States’ authorities would refuse to avail themselves of the mechanisms which are available to reduce their sentences (see paragraph 130 above and Kafkaris, cited above, § 98).",
"Accordingly, the Court finds that these applicants have not demonstrated that there would be a real risk of treatment reaching the threshold of Article 3 as a result of their sentences if they were extradited to the United States. The Court therefore finds no violation of Article 3 in their cases.",
"244. Finally, the Court turns to the case of the fifth applicant. He faces two hundred and sixty-nine counts of murder and thus multiple mandatory sentences of life imprisonment without the possibility of parole. The Court does not find a mandatory life sentence would be grossly disproportionate for such offences, particularly when the fifth applicant has not adduced any evidence of exceptional circumstances which would indicate a significantly lower level of culpability on his part. Indeed, if he is convicted of these charges, it is difficult to conceive of any mitigating factors which would lead a court to impose a lesser sentence than life imprisonment without the possibility of parole, even if it had the discretion to do so. Moreover, for the reasons it has given in respect of the first, third, fourth and sixth applicants, the Court considers that he has not shown that incarceration in the United States would not serve any legitimate penological purpose. Therefore, he too has failed to demonstrate that there would be a real risk of treatment reaching the threshold of Article 3 as a result of his sentence if he were extradited to the United States. Accordingly, the Court finds that there would be no violation of Article 3 in his case.",
"V. THE FIFTH AND SIXTH APPLICANTS’ REMAINING COMPLAINTS",
"A. The remaining complaints",
"245. In their initial application to the Court, the fifth and sixth applicants made ten further complaints.",
"246. First, they alleged that the diplomatic assurances provided by the United States were not sufficient to remove the risk of their being removed from the federal criminal justice system and designated as enemy combatants in violation of Articles 3, 5, 6 and 8 of the Convention. In particular, they relied on the fact that one of their indicted co-accused, Ahmad Khalfan Ghailani, was detained and brought before a Military Commission at Guantánamo Bay Naval Base (where he was allegedly tortured) only to be later transferred to stand trial in a Federal District Court in New York.",
"Second, they complained that the diplomatic assurances were not sufficient to remove the risk that they would be subjected to extraordinary rendition.",
"Third, relying on Article 2 of the Convention the fifth applicant argued that, as a result of his recurrent depressive disorder, his extradition would carry an extremely high risk that he would commit suicide.",
"Fourth, the fifth and sixth applicants complained that there was a real risk that they would be subjected to “special administrative measures” pre-trial in violation of Articles 3, 6, 8 and 14.",
"Fifth, the applicants alleged that there would be a real risk of a flagrant denial of justice in violation of Article 6 § 1 of the Convention because the extensive publicity which the United States Government’s counter-terrorism efforts had attracted would prejudice any jury, particularly when they were to stand trial in New York. This would be exacerbated by the public controversy surrounding the President’s decision to transfer other high profile terrorist suspects such as Khalik Sheikh Mohammed and Ahmed Ahmad Khalfan Ghailani, from Guantánamo to New York for trial.",
"Sixth, also under Article 6, the applicants argued that the case against them had been significantly weakened as new evidence had emerged in the course of their extradition proceedings. Notwithstanding this new evidence, their trial would be prejudiced by the fact that any jury would hear evidence linking them to a conspiracy to murder which involved Osama bin Laden and Al Qaeda.",
"Seventh, the applicants argued that further prejudice would arise if CS/1, Mr Al-Fadl, were to give evidence when it was not clear what pressure had been put on him or inducements given to him by the prosecuting authorities in order to secure his testimony.",
"Eighth, the sixth applicant alleged that any jury in his case would be further prejudiced by the fact that he had been designated as a global terrorist by the President of the United States.",
"Ninth, under Article 8 the applicants alleged that there would be a disproportionate interference with their private and family life in the United Kingdom if they were to be extradited. The first applicant relies on the fact that his extradition would result in permanent separation from his wife, children and grandchildren, who were all British residents.",
"Tenth, the applicants alleged that there would be a violation of Article 13 of the Convention if they were extradited as they would have no effective remedy for the violations of the Convention they would suffer in the United States.",
"247. In making these complaints, the fifth and sixth applicants considered that it was of some relevance that, rather than extraditing them to the United States in violation of the Convention, it would be possible for them to be tried in the United Kingdom. The crimes of which they were accused were justiciable in the United Kingdom; the vast bulk of the evidence against them had been obtained by the United Kingdom authorities and the majority of defence witnesses were in the United Kingdom but would not travel to the United States to give evidence for fear of arrest; and, despite their representations as to what would happen to the applicants in the United States, the United Kingdom Government had failed to give proper consideration to prosecuting them in the United Kingdom.",
"B. The Court’s assessment",
"248. The Court observes that the first and second complaints, which relate to an alleged risk of designation as enemy combatants and extraordinary rendition, are substantially the same as those made by the first, third and fourth applicants in their applications to the Court. Those complaints were rejected by the Court in its admissibility decision of 6 July 2010: see paragraphs 104-110 and 113-116 of the decision. Having regard to the similar Diplomatic Notes provided by the United States in respect of the fifth and sixth applicants there is no basis to reach a different conclusion in their case. Accordingly, these complaints must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.",
"249. In respect of the third complaint, the fifth applicant’s risk of suicide, the Court considers it appropriate to distinguish between the risk during pre-trial and post-trial periods of detention.",
"In respect of the former, the Court notes that the first and third applicants complained that the imposition of special administrative measures pre-trial would have an adverse effect on their mental health. Insofar as they related to their possible conditions of pre-trial detention, the Court rejected those complaints as manifestly ill-founded. It found that it had not been suggested that, prior to extradition, the United Kingdom authorities would not advise their United States counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in United States federal prisons was substantially different to that provided at HMP Long Lartin (where the first and third applicants were being detained). There was also no reason to suggest that the United States’ authorities would ignore any changes in the applicants’ conditions or that, if they did present any suicidal tendencies or symptoms of self-harm, they would refuse to alter the conditions of their detention to alleviate any risk to them.",
"The Court finds that similar considerations must apply in respect of the fifth applicant’s complaint concerning his pre-trial detention. Accordingly, insofar as it relates to the risk of suicide before his trial would take place, the complaint must be rejected as manifestly ill-founded. Insofar as the complaint relates to the risk of suicide in post-trial detention at ADX Florence, the Court finds that no separate issue arises from the Article 3 complaint considered above.",
"250. The Court turns to the fourth, fifth, seventh and eighth complaints, which relate, respectively, to the imposition of special administrative measures pre-trial, the prejudicial effect of extensive pre-trial publicity, the prejudice arising from inducements or pressure placed on Mr Al-Fadl to testify against them, and the further prejudicial effect of the sixth applicant’s designation as a global terrorist. The Court notes that similar complaints were made by the first, third and fourth applicants and rejected in the admissibility decision (paragraphs 125-135, 159-160, 163 and 166). There are no grounds to distinguish the fifth and sixth applicants’ complaints under these headings and, accordingly, these complaints must also be rejected as manifestly ill-founded.",
"251. As regards the sixth complaint, that the evidence had significantly weakened against the fifth and sixth applicants, the Court recalls that it is not its task to assess the evidence against an accused, still less, in an extradition case, to evaluate the strength of the requesting State’s case against an applicant. This complaint must also be rejected as manifestly ill-founded.",
"252. For the ninth complaint, that extradition would be a disproportionate inference with their family and private life in the United Kingdom, the Court reiterates that it will only be in exceptional circumstances that an applicant’s private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, 26 January 2010). There are no such exceptional circumstances in the fifth and sixth applicants’ case, particularly given the gravity of the offences with which they are charged. This complaint is therefore manifestly ill founded.",
"253. Finally, since none of the above complaints are “arguable”, no issues arise under Article 13 of the Convention. The tenth complaint is therefore also manifestly ill founded.",
"254. The Court’s conclusion in respect of the fifth and sixth applicant’s ten further complaints make it unnecessary to consider what relevance, if any, should be attached to their submission that they could be prosecuted in the United Kingdom.",
"VI. THE SECOND APPLICANT",
"255. The Court notes that the second applicant has made similar submissions under Article 3 as to the length of his likely sentence and conditions at ADX Florence. For the latter, he has relied in particular on the fact that his schizophrenia necessitated his transfer from high security conditions at HMP Long Lartin to Broadmoor Hospital. There he has significant freedom within the security of the hospital and has participated in group activities as therapeutic measures. He is under the care of a consultant psychiatrist, who considers it necessary to continue his compulsory hospitalisation.",
"256. The Court considers that it is not in a position to rule on the merits of the second applicant’s complaints, particularly in respect of ADX Florence, but requires further submissions from the parties. For that reason, it decides to adjourn the examination of the second applicant’s complaints. Those complaints will now be considered under a new application number, no. 17299/12.",
"VII. RULE 39 OF THE RULES OF COURT",
"257. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.",
"258. It considers that the indications made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention."
] |
269 | K.I. v. France | 15 April 2021 | This case concerned a Russian national of Chechen origin who arrived in France when he was still a minor and obtained refugee status. After being convicted for a terrorism offence and on the grounds that his presence in France represented a serious threat to French society, the French Office for Refugees and Stateless Persons (OFPRA) revoked his status in July 2020 under Article L. 711-6 of the Immigration and Asylum Code and his deportation to Russia was ordered. The applicant argued that his deportation to Russia would expose him to inhuman or degrading treatment. | The Court held that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under its procedural aspect if, having had his refugee status withdrawn, the applicant were to be returned to his country of origin without any prior assessment by the French authorities of the actual and current risk that he claimed to be facing in the event of his deportation. It began by observing that both under the case-law of the Court of Justice of the European Union and under that of the French Conseil d’État, the withdrawal of refugee status had no bearing on the fact of being a refugee. The question whether the applicant remained a refugee thus should have been given specific consideration by the national authorities when they examined, under Article 3 of the Convention, the reality of the risk that he faced in the event of deportation to his country of origin. The Court found that both when his deportation was ordered and when it was reviewed by a court, the French authorities, in assessing the risks that he faced on his return to Russia, had not specifically taken account of the fact that the applicant could be presumed to have remained a refugee in spite of the withdrawal of his status. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"2. The applicant, a Russian national of Chechen origin, was born in 1994 and lives in Strasbourg. He is represented by Mr F. Zind, a lawyer practising in Strasbourg.",
"3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs.",
"THE CIRCUMSTANCES OF THE CASEEvents in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin",
"Events in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin",
"Background to applicant’s departure from his country of origin",
"Events in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin",
"Background to applicant’s departure from his country of origin",
"Background to applicant’s departure from his country of origin",
"4. The applicant stated that his father, who was now deceased, had been an active fighter in the Chechen guerrilla movement during the first war from 1994 to 1996.",
"5. In the applicant’s submission, he was arrested on 20 November 2010 on the pretext of having witnessed an armed robbery. He was taken to a police station, where he was held in custody and beaten on the hand and jaw with an iron bar by two members of the operations / research division of the Russian Ministry of Internal Affairs Directorate General for the Southern Federal Region (ORB), who were guarding him, and he still bears the scars. The applicant was asked to infiltrate the rebels in order to pass on information to the authorities and was told that, if he failed to do so, violence would be used against his family. Despite these threats, the applicant did not make contact with the rebels and was forced to stop going to school.",
"6. In May 2011 he was arrested a second time by members of the ORB, then taken to a barracks where he was interrogated about his infiltration into the rebel movement, while being insulted and beaten up. Upon his release, his family hid him and obtained a Russian “external passport” in his name to enable him to flee. This type of passport is an identity document which allows Russian citizens to leave the country and travel abroad, as opposed to the “internal passport” which is an identity document allowing Russian citizens to travel within Russia.",
"7. On the day before he was to flee the country, the applicant was arrested for a third time, taken into custody, assaulted and threatened with death. He was released on the condition that he would co-operate with the authorities.",
"8. According to the applicant, a medical certificate was drawn up in France attesting to the physical consequences of the ill-treatment he had suffered in connection with his three arrests.",
"9. The applicant fled his country of origin in 2011. Before arriving in France, he transited through Poland where he left his Russian “external passport”.",
"10. On arriving in France the applicant was granted refugee status through a procedure described below.",
"Fears and threats alleged to remain extant in spite of the applicant’s departure",
"11. In subsequent proceedings before the French courts concerning the revocation of his refugee status (see paragraphs 31 and 53 below) and the assessment of the risk he would face if returned to Russia (see paragraph 48 below), the applicant stated that the threats directed against him at the time had not ended with his departure. According to him, several members of his family were confronted by the Russian police, who were still actively interested in him. He relied on an initial witness statement attached to his application form. The witness stated that after the applicant had left Russia in 2011, the law enforcement authorities had come to his home to obtain evidence of his presence in Europe. The witness had given them the applicant’s telephone number, confirming that he was in France.",
"12. The Government disputed these assertions. They observed that the applicant had not provided sufficient proof of the witness’ identity and that the statement had been undated. The Government further noted that, although the applicant had indeed mentioned the events to which the witness had testified, during his interview by video-link on 19 May 2015 with an official of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) in connection with the revocation of his refugee status (see paragraph 27 below), his statements had remained very imprecise. Lastly, the Government noted that although the applicant had mentioned that members of the Russian prosecutor’s office had contacted him by telephone in France and had attempted to talk to him via Skype in mid-2012 (see paragraph 27 below), he had not mentioned any attempt to contact him since then.",
"13. The applicant maintained that he still belonged to a targeted group because of his family ties to Chechen fighters and his refusal to collaborate with the authorities. He also pointed out that he hailed from a region of Chechnya on the border with Ingushetia and belonged to a “teip” (clan) notorious for being a hotbed of rebel movements against the current regime. In testimony dated 7 March 2019, it was stated that the “teip” to which the applicant belonged was called “melhi” or “mialki” and that it was an opponent of the regime in Chechnya. A “teip” is based on a family group whose members are connected by blood but also by economic ties.",
"14. The Government contested the applicant’s assertions, stating that he had not established the reality of the risks that he claimed to be facing on account of his family’s past links with the rebels and his refusal to collaborate with the Chechen authorities.",
"Events in FranceEvents occurring before application was lodged",
"Events occurring before application was lodged",
"Events occurring before application was lodged",
"(a) Grant of refugee status to applicant",
"15. The applicant arrived in France in August 2011 at the age of 17.",
"16. He filed an asylum application on 13 March 2012 and was interviewed by a protection officer on 21 June 2012. The purpose of this kind of interview is to allow the asylum seeker to fully explain the reasons for his or her application, to supplement or rectify his or her written account and to clarify any grey areas.",
"17. On 31 January 2013 the OFPRA granted the applicant refugee status on account of his family ties to individuals who had supported Chechen separatists and his refusal to cooperate with the authorities. In the applicant’s submission, this recognition of his refugee status meant that the events which had caused him to flee Chechnya had been established.",
"18. The Government noted that it could be seen from the record of the interview of 21 June 2012 (see paragraph 16 above) that the applicant had provided very little explanation of the steps taken by his family to obtain a Russian “external passport”, particularly in view of the surveillance to which he had allegedly been subjected. On this point, the Government also referred to a subsequent interview with an OFPRA official on 19 May 2015 in the context of the revocation procedure (see paragraph 27 below). Furthermore, in its decision the OFPRA had noted that “the individual [had] stated that he himself had no links with militants and had not taken part in any action in support of the separatists” and that “he [had] not provide[d] consistent or substantiated explanations as to why he was specifically targeted”. However, the OFPRA took the view that the reasons put forward by the applicant to justify the alleged persecution could be considered established since “he [had] nevertheless expressed himself in a clear and comprehensive manner as to the arguments put forward by law enforcement officers to justify each arrest ... and [had given] details about alleged exchanges with his captors”.",
"19. The applicant was granted a residence card, which was valid from 14 May 2013 to 13 May 2023.",
"(b) The applicant’s conviction in France",
"(i) Reasons for his conviction",
"20. A little over nine months after obtaining refugee status, the applicant was arrested on 19 November 2013 by the French authorities on the basis of a warrant issued in an investigation into a criminal conspiracy to commit an act of terrorism. On 23 November 2013 he was placed under judicial investigation with four compatriots and remanded in custody. He was accused in particular of having travelled to a combat zone in Syria for the purpose of undergoing military training in the handling of military weapons and of having fought as a member of a jihadist group composed of Chechen, Dagestani and Ingush fighters.",
"21. On 16 April 2015 the Paris Criminal Court sentenced K.I. to five years’ imprisonment for participation in a criminal conspiracy to commit an act of terrorism between 1 September 2012 and 19 November 2013, in France, and also in Germany, Poland, Ukraine, Turkey and Syria, by preparing and organising his departure together with an accomplice to the combat zone in Syria, with the help of their various contacts, and by travelling to that destination. The judgment recorded that the applicant’s arrest on his return from Syria had been made possible by the interception of telephone conversations relating to a terrorist conspiracy. The Criminal Court also established that the applicant had planned to travel to Syria from March 2013 onwards, together with an accomplice who belonged to an organised Chechen network which arranged passage to Syria. The court found that the applicant had left France at the beginning of August 2013 to go to a combat zone in Syria, where he had remained from 10 or 11 August 2013 to 20 or 25 September 2013. The judgment also found that in order to travel to Syria the applicant had passed through Germany, Poland (where he obtained his Russian “external passport”), Ukraine and Turkey.",
"22. The Government observed that it could be seen from the judgment that the applicant had used his Russian “external passport”, which had been issued to him by the Russian authorities on 13 July 2011, to travel to Turkey and then to Syria. They also noted that the applicant had gone to Syria with one of his compatriots whom he had met in Chechnya in 2011, having renewed contact with him in France via social media. The Government further pointed out that according to the case file the applicant had planned his departure from France to Syria after his interview with the OFPRA officer on 21 June 2012 but before his refugee status had been granted. They noted that the Criminal Court had sentenced the applicant’s accomplice to imprisonment in absentia and had issued a warrant for his arrest. The judgment also mentioned that the accomplice’s father had helped him leave the combat zone and return to Chechnya, where he was still to be found at the time of that judgment.",
"(ii) Alleged consequences of French judgment in Russia",
"23. The applicant submitted that after the publication of the 16 April 2015 judgment against him, the Russian authorities had renewed their pressure on members of his family who still lived in Chechnya. In that connection he produced two letters that had allegedly been written by a member of his family (see paragraphs 46 and 49 below) and a newspaper article (see paragraph 51 below).",
"(iii) Consequences of criminal conviction in France: withdrawal of the applicant’s refugee status and order for his deportation",
"24. Following the applicant’s conviction, the OFPRA considered revoking the applicant’s refugee status pursuant to Article L. 711-6 2° of the Code on the Entry and Residence of Aliens and Right of Asylum (the “Immigration and Asylum Code” – see paragraph 56 below). On 19 May 2015 an OFPRA protection officer consequently interviewed the applicant. This interview was conducted by video-link as the applicant was in prison. The applicant was also invited to submit written observations. The relevant extracts from the record of the interview are as follows:",
"“Question (‘Q’): When was your Russian domestic passport returned to you by your family?",
"Answer (‘A’): when I was asked to present the original documents to the OFPRA, I asked my family to send it by post ..., after that my relatives got in touch with the ROVD [the District Law-Enforcement Directorate] and were able to purchase my domestic passport for 300 dollars.",
"Q: When did they get it?",
"A: Summer of 2013.",
"Q: What did you need your domestic passport for as you had an external passport?",
"A: I had applied for this passport six months before receiving it in order to present it to the OFPRA, after which I had no further use for it, but I kept it.",
"...",
"Q: Didn’t your relatives ... have any problems getting your documents from the ROVD, even for money?",
"A: You can get anything with money in Chechnya.",
"Q: Even when you are considered persona non grata?",
"A: It’s not difficult, my [relatives] contacted an acquaintance who knew the head of the ROVD ... who was able to recover my passport because he was no longer in the ROVD.",
"...",
"Q: What are your current fears in the event of your return ...?",
"A: I was arrested several times, I was threatened, I was asked to collaborate, I ran away, that’s why I can’t go back.",
"Q: What news have you had about this from your family there?",
"A: Relatives tell me that there is still surveillance, people come to ask questions.",
"Q: People?",
"A: They don’t introduce themselves but they wear civilian clothes; when I arrived in France, I was contacted by the public prosecutor’s office.",
"Q: Which prosecutor’s office?",
"A: Russian, they said they were employees of the public prosecutor’s office.",
"Q: They came to France?",
"A: They were able to get my French number and that’s how they contacted me.",
"Q: When?",
"A: When I arrived in 2011.",
"Q: And since then?",
"A: Mid-2012 they asked me to go with them and to talk via Skype.",
"Q: About what?",
"A: I don’t know, I didn’t get in touch.",
"...",
"Q: Have you had any political, associative or religious involvement in the Chechen community in France?",
"A: No, I don’t know many people, I don’t have many contacts and I’ve only been here a short time.",
"Q: Do you still have contacts with Chechnya?",
"A: With my relatives, yes, by phone.",
"Q: Any contact with the Russian, Chechen authorities?",
"A: No, no contact.”",
"25. On 18 November 2015 the prefect of Essonne issued a deportation order against the applicant on the basis of the serious threat that K.I. represented for public safety (see paragraph 24 above) and further set directions as to the destination country.",
"26. On 14 January 2016 the applicant lodged an appeal with the Versailles Administrative Court seeking to have the deportation order of 18 November 2015 annulled (see paragraph 25 above).",
"27. On 23 June 2016 the OFPRA revoked K.I.’s refugee status under Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below) on the grounds that he had been convicted with final effect in France for a terrorism offence and that his presence in France constituted a serious threat to society. The OFPRA found, in particular, that it was clear from the reasoning of the judgment of 16 April 2015 that, between 1 September 2012 and 19 November 2013, the applicant had participated, via a transnational network linked to the Chechen Islamist movement with branches in several European countries and in France, in fundraising for militant groups in Syria, and that, once he had arrived in that country, he had been supported, armed and trained. The OFPRA also found that he had taken up arms in the context of a radical religious commitment described by the applicant as “Salafist”. The applicant submitted that it could be seen from the record of his OFPRA interview on 19 May 2015 (see paragraph 24 above) that he had not been asked about his beliefs, his state of mind, any possible regrets or his religious practice.",
"28. On 14 December 2016 K.I. lodged an appeal with the National Asylum Court (CNDA) seeking the annulment of the OFPRA’s decision of 23 June 2016 (see paragraph 27 above). In its defence, the OFPRA submitted that this appeal should be dismissed. It argued, primarily, that the exclusion clause provided for in Article 1(F)(a) of the Geneva Convention should be applied to the applicant on the grounds that the actions attributable to the armed group that he had joined in Syria, at the time of the military offensive known as “operation coastal liberation” in August 2013, were comparable to crimes against humanity and war crimes, and that the acts of terrorism for which he had been convicted in France could be characterised as acts contrary to the purposes and principles of the United Nations within the meaning of paragraph (c) of that Article. In the alternative, the OFPRA argued that his presence in France constituted a serious threat to State security and to society within the meaning of Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below).",
"29. In a judgment of 7 March 2017 the Versailles Administrative Court annulled the decision specifying Russia as the country of destination (see paragraph 25 above) on the grounds, firstly, that it contained insufficient reasoning, particularly with regard to the risks of inhuman or degrading treatment to which the applicant could be exposed if he were returned to his country of origin and, secondly, that the applicant, who still had refugee status at the date of the impugned decision, could not therefore be legally removed to Russia.",
"30. Since his release from prison on 11 December 2017, the applicant has been placed under a compulsory residence order. According to him, he has been obliged to report to the police station three times a day.",
"31. On 11 January 2019 the CNDA confirmed the OFPRA’s decision to revoke the applicant’s protection (see paragraph 27 above). The CNDA ruled on the application of Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below). In particular, it found as follows:",
"“...",
"8. ... the Director General of the OFPRA revoked [the applicant’s] refugee status by a decision dated 23 June 2016. ... [This] decision also notes that it is clear from the reasoning of the judgment that the applicant had, during the period covered by the charges, taken part, within a transnational network linked to the Chechen Islamist movement, with branches in several European countries, in particular Poland and Belgium, and at several points in France, in fundraising for groups fighting in Syria, in particular Jaish Al-Muhajreen Wal Ansar (‘the army of emigrants and supporters’). Part of the funds collected were intended to finance his own departure for Syria in the company of another defendant ... which took place on 10 or 11 August 2013, and was facilitated by the same network, following meticulous and prolonged preparations ...",
"9. At the hearing, which was held in camera, [the applicant], while acknowledging that he had travelled to Syria in August 2013, maintained that it had been for humanitarian purposes. He acknowledged that he had gone to Poland to recover his passport, which he had left there before travelling to France in August 2011 to apply for asylum when he was seventeen years old. Without explaining in detail which Polish office he had gone to in order to obtain this document, he told the court that he had needed his passport in order to travel to Turkey and from there to Syria and to be able to move more freely. He then made confusing and insincere statements about the conditions of his entry into Syrian territory to join the Ansar Al Sham group, composed of Chechen, Dagestani and Ingush fighters, which was part of the jihadist conglomeration operating in Syria at the time and led by Aslan Alievitch Sigaouri, known as Djambulat or Khalid-Chechen. In the course of the judicial proceedings, the applicant stated that it was the same Djambulat who had picked him up at the Turkish-Syrian border. He confirmed his links with the Chechen leader, as he had already stated during his judicial hearings, indicating in particular that Djambulat knew the father of the other young jihadist accompanying him, as they came from the same village. [The applicant] thus stated that he had been easily accepted by the other fighters as a result. ...",
"10. Secondly, in addition to the seriousness of the offences constituting acts of terrorism, as highlighted by the [the applicant’s] criminal conviction handed down in France after he had been recognised as a refugee, the regrets he expressed about those misdeeds appeared to be spurious, since, as already stated, he had attempted to conceal both the real circumstances that had led to his departure for Syria and the activities in which he had engaged after his arrival there. The criminal judgment in his file thus clearly highlights the ideological motivations behind his journey and, in particular, his desire to wage armed jihad. During the court proceedings, his aunt also indicated that he had begun to radicalise his religious practice a year after his arrival in France and that he was taking Arabic lessons several times a day ...",
"Consequently, the nature and seriousness of the acts for which he was convicted and all the elements relating to his career since his arrival in France lead to the conclusion that his presence now constitutes a serious threat to society within the meaning of Article L. 711-6, 2° of the Immigration and Asylum Code. Consequently, [the applicant] cannot validly argue that the Director General of the OFPRA wrongly revoked his refugee status pursuant to the provisions of Article L. 711-6, 2° of the above-mentioned Immigration and Asylum Code or request, as a result, that he continue to be recognised as a refugee ...”",
"Events occurring after the application was lodged with the Court",
"32. On 25 January 2019 the applicant asked the Court to indicate an interim measure, under Rule 39 of its Rules of Court, to stop the French Government from deporting him to Russia.",
"33. On 28 January 2019 the duty judge decided to grant the applicant’s request for an interim measure on a temporary basis until 4 February 2019 and to ask the Government, in accordance with Rule 54 § 2 (a), to provide information. This information related to whether there was a new decision determining the destination country, to the timetable for his removal to Russia and to the consideration by the domestic authorities of the risks of treatment contrary to Article 3 of the Convention in the event of his return to his country of origin.",
"34. On 28 January 2019, while still under a compulsory residence order, the applicant was arrested. The prefect of Seine-Maritime issued an order for his placement in the Lille Lesquin administrative detention centre in order to ensure the enforcement of the deportation order. The applicant was notified of this order at 9.15 a.m. He was placed in a “terrorism” wing in the centre.",
"35. On the same day, the prefect of Seine-Maritime wrote to the Russian ambassador in France to request that a consular laissez-passer be issued to the applicant. In this letter, she pointed out that the embassy had already been sent a request on 26 October 2017, by the prefect of Meurthe-et-Moselle, to identify the person concerned, together with a comprehensive file.",
"36. On 30 January 2019 the Government replied to the duty judge’s request for information. They stated that, in the absence of a decision on the country of destination, it was legally impossible to remove the applicant. The risk of treatment contrary to Article 3 of the Convention would be assessed by the domestic authorities when adopting the decision and that, in any event, it would be possible to be bring proceedings in the Administrative Court for interim relief or annulment. The applicant, to whom this information was notified, emphasised that his removal had necessarily been scheduled, as placement in administrative detention was only possible under the first paragraph of article L. 554-1 of the Immigration and Asylum Code “for the duration strictly necessary [for] departure”. He also pointed out that an appeal against a decision determining the country of destination did not have suspensive effect (see paragraph 69 below).",
"37. On 30 January 2019 the Liberties and Detention Judge of the Lille tribunal de grande instance ordered the extension of the applicant’s detention for a period of twenty-eight days and the order was upheld by the Douai Court of Appeal on 1 February 2019.",
"38. On 4 February 2019 the Court’s duty judge decided to discontinue the application of Rule 39, in the light of the information supplied by the parties (see paragraph 36 above), and informed the applicant that his request was premature because there was no enforceable decision on his removal, the deportation order not yet being accompanied by directions as to the destination country.",
"39. On 25 February 2019 the prefect of Seine-Maritime set directions determining the Russian Federation as the destination country, or any country to which the applicant would be legally admitted. The decision stated that the applicant had claimed that he did not wish to return to Russia because his life was in danger there, but that he had not provided any evidence to establish that he faced a real and serious personal risk of being exposed to treatment in breach of Article 3 of the Convention.",
"40. On 27 February 2019 the applicant filed a fresh request for an interim measure with the Court. On the same day, the duty judge decided to temporarily apply Rule 39 again, up to and including 8 March 2019.",
"41. On 1 March 2019 the urgent applications judge of the Lille Administrative Court dismissed an urgent application lodged by the applicant on 27 February 2019, under Article L. 521-2 of the Code of Administrative Justice (urgent applications for the protection of a fundamental freedom), seeking a stay of execution of the order of 25 February 2019 (see paragraph 39 above). The urgent applications judge held that the condition of urgency had not been met in so far as the Court had indicated to the Government that the applicant should not be removed before 8 March 2019. The judge added that, in any event, the Russian consulate had not yet issued a consular laissez-passer for the purposes of enforcing his removal.",
"42. On 5 March 2019 the Government replied to the duty judge’s request for information. They stated that the applicant’s request for interim measures was premature in that, despite the country of destination being determined by the order of 25 February 2019 (see paragraph 39 above), the Russian authorities had not yet agreed to readmit the applicant to their country.",
"43. In an e-mail of 7 March 2019, which was forwarded to the Court by the applicant, one of his relatives alerted his lawyer to the fact that members of his family had been summoned the previous day by the authorities to the Grozny police station, where officers of the Federal Security Service of the Russian Federation (FSB) had questioned them about his whereabouts. The officers had apparently explained their presence by the fact that the French authorities had asked their Russian counterparts to “fetch” the applicant. The Government noted that the applicant had not shown that he was connected to the author of the e-mail and had not provided any information about his or her identity.",
"44. On 8 March 2019, in the light of the information provided by the parties, the duty judge decided to extend the application of Rule 39 while the application was being examined by the Court.",
"45. On 21 March 2019 the legal aid board of the Conseil d’État awarded legal aid to the applicant in connection with his appeal against the CNDA’s decision of 11 January 2019 concerning the revocation of his refugee status (see paragraph 31 above).",
"46. According to a witness statement written by a member of his family and appended by the applicant to the application form received by the Court on 28 March 2019, Chechen law-enforcement officers had visited the witness’s home on several occasions since the applicant’s conviction in France in order to inquire about his possible return to Chechnya (see paragraph 23 above). The Government noted that the letter was undated and that the applicant had not shown any connection to its author.",
"47. On 30 April 2019 the Liberties and Detention Judge of the Paris tribunal de grande instance extended the applicant’s administrative detention for a further month. The judge found that the Russian consular authorities had recognised the applicant as one of their nationals, that a consular laissez-passer had been issued to him for the period from 12 April to 12 May 2019 and that the prefecture had, on 24 April 2019, requested a flight to the Russian Federation for 11 May 2019 at the latest.",
"48. On 16 May 2019 the Lille Administrative Court dismissed the applicant’s appeal against the directions of 25 February 2019 specifying Russia as the destination country (see paragraph 39 above) on the following grounds:",
"“6. ... However, [the applicant’s] refugee status was revoked by a decision of the same office dated 23 June 2016, confirmed by a decision of the National Asylum Court on 11 January 2019. [The applicant] was convicted by the Paris Criminal Court for acts committed as a result of his involvement with and support for a group of Chechen Islamist fighters in Syria.",
"7. It is for the applicant to adduce evidence to show that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if returned to his country. ...",
"8. In the present case, [the applicant] entered France in 2011 and he no longer appears to have – and thus has not demonstrated – links with persons belonging to a group considered to be at risk in Chechnya. However, the report of the Swiss refugee aid organisation of 13 May 2016 on the human rights situation in Chechnya shows that individuals who have a link with insurgents, even if it goes back a long time, are considered to be at risk, that persons who are returned to Chechnya face an acute risk if they have previously been convicted there – which is not the case of the applicant – and that, lastly, Salafism is prohibited and persons linked to the Islamic State, acting on Chechen territory, are particularly liable to arrest. However, a more recent report of August 2018 by the European Asylum Support Office (EASO) notes that those returning from Syria are monitored on their return by the Russian authorities but that the Chechen authorities have set up reception programmes for women and children but also for some fighters repatriated from Syria.",
"9. [The applicant], in order to show the real and personal risks he would face in the event of his return, confines himself to producing the testimony of a person whom he presents as his grandmother, but without proving that family relationship. He has also appended an e-mail from a person he claims to be his cousin, but whose identity he has not proven, reporting what his grandmother and his aunt said. Moreover, these testimonies only attest to the fact that the Russian intelligence services had enquired about the applicant’s return. However, there is no evidence that the applicant, who used his Russian passport to reach Turkey and the Syrian combat zone, is wanted or has been charged in his country. It follows from the foregoing that, while it is possible that [the applicant] has been identified as being part of a group that is under surveillance in his country, he has not demonstrated, in the proceedings to date, that he would be subjected to ill-treatment of a real and personal nature if he is returned to that country. Consequently, the ground of appeal alleging an error of assessment must be rejected. Similarly, it does not follow from the foregoing, nor from the terms of the decision, that the administrative authority did not carry out a thorough examination of the applicant’s personal situation ...”",
"49. In a second statement (see paragraph 23 above) sent by the applicant to the Court on 3 January 2020, the witness in question claimed that since the applicant had been imprisoned in France, ORB agents working for the regime in Chechnya had visited his home. In this regard, he stated that in 2014-2015 two police officers had come to his home to ask him questions about the applicant. They had allegedly accused the witness of complicity in terrorism for having sent money to the applicant in October 2013 and had threatened him with prosecution on that account. The witness further stated that around June 2017, six months before the applicant’s release, two police officers had come to his home to inform him that his extradition would be requested. The witness further stated that he and a relative had been summoned at the end of February 2019 to the District Security Directorate in the city of Grozny, where an agent of the Federal Security Service of the Russian Federation (FSB) had made it clear to them that the applicant would be imprisoned as soon as he arrived on Russian soil. In addition, the Chechen police officers had questioned them about the applicant’s activities since his release from prison, his contacts and his possible plans to return to Russia. The witness also reported that a Chechen who had refugee status in Germany and who was allegedly one of the applicant’s friends had been arrested and imprisoned as soon as he arrived in Russia after going there to get married.",
"50. The Government noted that the statement sent to the Court on 3 January 2020 was undated.",
"51. The applicant also produced a newspaper article reporting on his friend’s trial (see paragraph 49 above) and stating that his confession had been obtained under torture. The Government noted that the newspaper article did not mention that other persons had been involved and that the applicant had not provided any explanation about his connection with the person whom he presented as one of his friends (see paragraph 49 above).",
"52. On 26 May 2020 the prefect of Dordogne issued a compulsory residence order against the applicant with a requirement to report to the police station three times a day.",
"53. On 29 July 2020 the Conseil d’État, under Article L. 822 1 of the Code of Administrative Justice (see paragraph 70 below) dismissed the applicant’s appeal against the decision of the CNDA of 11 January 2019 upholding the OFPRA’s decision to revoke his refugee status (see paragraph 31 above). In seeking the annulment of that decision, the applicant had alleged that it was vitiated by an initial error of law in so far as the CNDA had relied on the provisions of Article L. 711-6 of the Immigration and Asylum Code, which incorrectly transposed Directive 2011/95/EU (see paragraph 73 below) “by equating the loss of refugee status with the fact of no longer being a refugee”, and by a second error of law in so far as the CNDA had ruled that the application of Article L. 711-6 of the Immigration and Asylum Code meant both that his refugee status was withdrawn and that he was no longer a refugee (see in this connection the case-law of the Court of Justice of the European Union (CJEU) cited in paragraphs 74 to 76 below and that of the Conseil d’État cited in paragraphs 61 and 62 below). In his submissions in respect of the decision of 29 July 2020, the public rapporteur before the Conseil d’État stated the following on the relevant ground of appeal:",
"“Contrary to what is maintained in the additional observations, the court did not fail in its judicial duty or commit an error of law with regard to this case-law, which only prohibits it, when it hears an appeal against a measure revoking refugee status taken on the basis of Article L. 711-6 of the Immigration and Asylum Code, from automatically deciding that the applicant is no longer a refugee on the basis of Article L. 711-4 of the same Code. That is not what it did, although the OFPRA had asked it to do so. Although in its reasoning it awkwardly states, in fine, that [the applicant] is not justified in asking that he should still be regarded as a refugee, this is a defect that is not repeated either under the other grounds, which do not mention Article L. 711-4 at any point, or in the operative part, which simply rejects the appeal. The applicant can rest assured that he is still a refugee, and this observation remains valid without it being necessary to allow the appeal.”",
"54. The Government explained that the applicant, who was still under a compulsory residence order, had been granted accommodation and financial support by the State.",
"55. The applicant alleged that he only had two close relatives still in Chechnya and that the male members of his family had either died or were beneficiaries of international protection in Europe.",
"RELEVANT LEGAL FRAMEWORK AND PRACTICEDOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"DOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"DOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code",
"(a) Legislation",
"56. The Code on the Entry and Residence of Aliens and Right of Asylum (the “Immigration and Asylum Code”), as then applicable, read as follows:",
"Article L. 513-2",
"“Where a deportation or removal order is in force against an alien, directions shall be given for his or her removal:",
"1 o To a country of which he or she is a national, save where the French authority for the protection of refugees and stateless persons or the National Asylum Court has granted him or her refugee status or subsidiary protection, or where his or her asylum application is still pending;",
"2 o Or, pursuant to a European Communities or bilateral readmission agreement or arrangement, to the country which has issued the alien with a currently valid travel document;",
"3 o Or, with the alien’s agreement, to any country to which he or she may be legally admitted.",
"An alien may not be removed to a country if he or she has shown that his or her life or freedom would be threatened there, or that he or she would be exposed there to treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.”",
"Article L. 711-1",
"“ Recognition as a refugee shall be accorded to any person who is persecuted on account of his or her activities in furtherance of freedom and to any person in respect of whom the Office of the United Nations High Commissioner for Refugees exercises its mandate under the terms of Articles 6 and 7 of its Statute as adopted by the United Nations General Assembly on 14 December 1950, or who meets the criteria laid down in Article 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. Such persons shall be governed by the applicable provisions concerning refugees laid down in the above-mentioned Geneva Convention.”",
"Article L. 711-4",
"“...",
"The authority [for the protection of refugees and stateless persons] may also revoke refugee status, at any time, of its own motion or at the request of the administrative authorities, where:",
"...",
"3 o The refugee must, in view of circumstances arising after this status was granted, be excluded from such status pursuant to Article 1, sections D, E or F, of the Geneva Convention of 28 July 1951, cited above.”",
"Article L. 711-6",
"“A person’s refugee status may be denied or revoked:",
"1 o Where there are serious reasons for considering that the person’s presence in France constitutes a serious threat to the security of the country;",
"2 o The person concerned has been convicted in France by a final judgment of a serious crime ( crime ), or for a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and his or her presence constitutes a serious threat to society.”",
"57. Under Article L. 724 ‑ 1 of the Immigration and Asylum Code, the OFPRA informs in writing the person in respect of whom it envisages revoking refugee status pursuant to Article L. 711 ‑ 6 of that Code and sets out the grounds for initiating that procedure. In a judgment of 19 June 2020 (no. 425213), the Conseil d’État decided that the OFPRA was not required, in the context of the administrative proceedings, to provide the person concerned with all the preparatory documents relating to its decision before withdrawing the refugee status. The person concerned is entitled to submit written observations and the OFPRA may, if it considers it necessary, conduct an interview (Article L. 724 ‑ 2 of the Immigration and Asylum Code). The OFPRA’s decision, for which reasons must be given in fact and in law, is notified in writing to the person concerned (Article L. 724 ‑ 3 of the Immigration and Asylum Code).",
"58. Under Article L. 731 ‑ 2 of the Immigration and Asylum Code, the CNDA examines any appeal lodged against the OFPRA’s decision pursuant to Article L. 711 ‑ 6 of that Code. An appeal must be lodged within one month from the notification of the OFPRA’s decision.",
"59. In a judgment of 19 June 2020 (no. 425213), the Conseil d’État held that it was the role of the CNDA not to assess the legality of the OFPRA’s decision referred to it, but rather to give its own ruling on the person’s right to retain refugee status in the light of all the factual circumstances known to the court at the time of its ruling.",
"60. The CNDA’s decision may be appealed against on points of law to the Conseil d’État. The one-month time-limit for that purpose shall run from the time of the notification of the CNDA’s decision.",
"(b) Domestic case-law on the cessation of refugee status",
"(i) Case-law of the Conseil d’État",
"61. Under European Union (EU) law, member States may, in certain conditions, revoke the status granted to a refugee by a governmental authority. The consequences of such revocation gave rise to a judgment of 14 May 2019 of the CJEU as set out in paragraph 76 below. In judgment no. 416032 of 19 June 2020 concerning the revocation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code, the Conseil d’État, ruling in line with the CJEU’s judgment, found as follows:",
"“...",
"6. The provisions of Article L. 711 6 of the Code on the Entry and Residence of Aliens and Right of Asylum must be interpreted in accordance with the objectives of Directive 2011/95/EU of 13 December 2011, objectives which secure its transposition in domestic law and seek to ensure, in compliance with the Geneva Convention of 28 July 1951 and the Protocol signed in New York on 31 January 1967, that all member States apply common criteria for the identification of persons in need of international protection and that a minimum level of benefits is accorded to such persons in all the member States. It follows from Article 14(4) and (5) of that Directive, as interpreted by the Court of Justice of the European Union in its judgment of 14 May 2019 in cases C-391/16, C-77/17 and C-78/17, that the ‘revocation’ of refugee status or the refusal to grant it, as provided in those provisions, cannot have the effect of depriving the third-country national or stateless person concerned, who qualifies as a refugee within the meaning of Article 1(A) of the Geneva Convention, of his or her recognition as such. Furthermore, Article 14(6) of that Directive must be interpreted as meaning that a member State which avails itself of the options provided for in Article 14(4) and (5) of that Directive must grant to a refugee falling within one of the situations referred to in the latter provisions, and who is in the territory of that member State, at least the benefit of the rights and protections enshrined in the Geneva Convention to which Article 14(6) expressly refers, in particular the protection against refoulement to a country where his or her life or freedom would be threatened, and any rights under that Convention of which the enjoyment does not require lawful residence.",
"7. It follows from the foregoing that the provisions of Article L. 711-6 of the Code on the Entry and Residence of Aliens and the Right of Asylum only allow the OFPRA to refuse to grant, or to terminate, the legal and administrative protection of a refugee, within the limits laid down by Article 33 § 1 of the Geneva Convention and Article 14(6) of the Directive of 13 December 2011, where there are serious reasons for considering that the person’s presence in France constitutes a serious threat to State security or where the person has been convicted in France by a final judgment of either a serious offence ( crime ) or a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and where his or her presence constitutes a serious threat to society. The loss of refugee status resulting from the application of Article L. 711-6 will therefore have no bearing on the fact that the person is a refugee, and her or she will continue to be recognised as such in the event that the OFPRA and, where applicable, the Asylum Court, applies Article L. 711-6, within the confines of Article 33 § 1 of the Geneva Convention and Article 14(6) of the Directive of 13 December 2011. It follows that there was no error of law in the National Asylum Court’s ruling that Article L. 711-6 of the above-mentioned Code was not intended to add new exclusion clauses and did not, in those circumstances, disregard either the Geneva Convention or the objectives of the Directive of 13 December 2011 ...”",
"62. In a judgment of 19 June 2020 (no. 428140), the Conseil d’État found that Article L. 711 ‑ 6 of the Immigration and Asylum Code (see paragraph 56 above) provided as follows:",
"“... the possibility of refusing or revoking refugee status, this having no bearing on whether the person concerned is or remains a refugee as long as he or she meets the conditions, must meet two cumulative requirements. It is incumbent upon the OFPRA and, in the event of an appeal, the National Asylum Court, to verify whether the person concerned has been convicted of one of the offences referred to in the above-mentioned provisions and also to assess whether his or her presence on French territory is such as to represent, on the date of their decision, a serious threat to society within the meaning of those provisions, i.e. whether it is such as to affect one of the fundamental interests of society, taking into account the criminal offence committed – which alone cannot legally justify a decision to refuse or revoke refugee status – and the circumstances in which the offence was committed, but also the time that has elapsed and the whole conduct of the person concerned since then, together with any relevant circumstances on the date of the ruling ...”",
"(ii) Opinions issued by the CNDA under Article L. 731-3 of the Immigration and Asylum Code",
"63. The CNDA may be called upon under Article L. 731 ‑ 3 of the Immigration and Asylum Code to issue an opinion on the maintaining or annulment of a deportation or removal order against an applicant who has been deprived of refugee status on the ground that his or her presence in France constitutes a serious threat to the security of the State (Article L. 711 ‑ 6 of the Immigration and Asylum Code). Article L. 731-3 of the Code provides as follows:",
"“The National Asylum Court shall examine any applications that are addressed to it by refugees in the event that measures have been taken against them in accordance with Articles 31, 32 and 33 of the Geneva Convention of 28 July 1951 on the status of refugees and shall issue an opinion as to the maintaining or annulment of those measures. In such matters the application shall suspend the enforcement of the measure concerned. The right to lodge such an application shall be exercised within a period of one week subject to the conditions laid down in a decree after consultation of the Conseil d’État .”",
"64. An application for an opinion under Article L. 731 ‑ 3 of the Immigration and Asylum Code must be lodged with the CNDA within one week from the notification of the measure concerned. The CNDA must deliver a reasoned opinion.",
"65. In an opinion of 14 February 2020 concerning a decision of 16 January 2020 in which the prefect of Haute-Garonne had decided on the removal of a Russian national to the country of which he was a national or any other State where he would be legally admitted, the CNDA found as follows:",
"“5. Pursuant to Article L. 711-4 of the said Code, refugee status ends when the person concerned falls under one of the cessation clauses in Article 1C of the Geneva Convention, one of the exclusion clauses in Article F of the same Article, or where recognition of this status has been obtained by fraud. Under paragraph 2 of Article L. 711-6 of the said Code, in the version applied [to the applicant], the ‘refugee status’ of any person convicted by a final judgment in France either for a serious offence ( crime ) or for a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and whose presence constitutes a serious threat to society, may be terminated. These provisions were adopted to ensure the transposition into French law of Article 14(4) and (5) of Directive 2011/95/EU of 13 December 2011, which provide for the possibility for member States to revoke or refuse refugee status where there are reasonable grounds for regarding him or her as a danger to the security of the State in which he or she is present, or where he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that State. Paragraph 6 of the same Article provides that persons to whom paragraphs 4 and 5 apply are entitled to the rights provided for in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention or similar rights, provided they are in the State in question. It follows from the provisions of Article 14, as interpreted by the Court of Justice of the European Union in the Grand Chamber judgment of 14 May 2019 (Joined Cases C-391/16, C-77/17 and C-78/17), that although the Union is not a party to the Geneva Convention, Article 78(1) of the Treaty on the Functioning of the European Union and Article 18 of the Charter of Fundamental Rights of the European Union nonetheless require it to comply with the rules of that Convention. In this connection, Article 2(e) of Directive 2011/95/EU defines ‘refugee status’ as ‘the recognition by a Member State [of a third-country national or a stateless person] as a refugee’. As can be seen from recital 21 of that Directive, such recognition is declaratory and not constitutive of being a refugee for the purposes of Article 2(d) of Directive 2011/95/EU and Article 1(A) of the Geneva Convention. Thus, persons deprived of their refugee status pursuant to Article 14(4) and (5) of Directive 2011/95/EU are, or continue to be, refugees within the meaning of Article 1(A)(2) of the Geneva Convention and consequently continue to satisfy the material conditions for being a refugee, namely the existence of a well-founded fear of persecution in their country of origin.",
"6. In the present case it is apparent, in particular, from paragraph 9 of the Court’s above-mentioned decision of 26 July 2019 that the recognition of the [applicant] as a refugee, and thus the existence of a well-founded fear of persecution in the event of his return to the Russian Federation on account of his political opinions, was not disputed by the OFPRA. Before the Court the fact that the applicant was a refugee was not called into question on the basis of one of the cessation clauses provided for in Article 1(C) of the Geneva Convention, or on the basis of one of the exclusion clauses provided for in Article 1(F) of that Convention, or on the basis that [his] recognition as a refugee had been obtained by fraud. Thus, [the applicant] is a refugee within the meaning and for the purposes of the afore-mentioned Article L. 731 3 of the Immigration and Asylum Code ...",
"13. In the present case, [the applicant] is a refugee who, in that capacity, has demonstrated a well-founded fear of being persecuted for political reasons if he were to return to the Russian Federation, his country of nationality. Thus, the prefect’s decision of 16 January 2020 ..., in so far as it directs that [the applicant] be removed to the country of which he is a national, is at odds with France’s obligations arising from the right to protection of refugees against refoulement, as guaranteed by Article 33 of the Geneva Convention, Articles 4 and 19(2) of the EU Charter of Fundamental Rights and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.”",
"66. In an opinion of 16 December 2020 concerning a decision of 20 October 2020 in which the prefect of Hauts ‑ de ‑ Seine decided to remove a Sri Lankan national from France to the country of which he was a national or any other country to which he would be legally admitted, the CNDA found as follows:",
"“9. Accordingly, although [the applicant’s] refugee status was withdrawn by a decision of the OFPRA that has become final pursuant to Article L. 711-6, 2°, of the Immigration and Asylum Code, this withdrawal has no bearing on the fact that he remains a refugee and continues to enjoy the rights arising therefrom. The OFPRA’s decision of 29 May 2020, which terminated [the applicant’s] refugee status, pointed out his commitment to the Tamil cause within the Liberation Tigers of Tamil Eelam (LTTE) and indicated that his fears in the event of his return to his country were still present and that there was no need to examine the application of Article L. 711-4, first paragraph, of the Immigration and Asylum Code, relating to the conditions of cessation of international protection, in particular owing to a change in the circumstances on the basis of which protection had been granted. [The applicant] is a refugee who, as such, has a well-founded fear of being persecuted on political grounds if returned to Sri Lanka, his country of nationality. Consequently, the decision of 20 October 2020 by the prefect of Hauts ‑ de ‑ Seine, in so far as it directs his removal to his country of nationality, is at odds with France’s obligations arising from the right to protection of refugees against refoulement, as guaranteed by Article 33 of the Geneva Convention, Articles 4 and 19(2) of the EU Charter of Fundamental Rights and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ...”",
"Domestic law on deportation and appeals against a deportation order",
"67. Deportation ( expulsion ) is a measure taken by the Minister of the Interior or the prefect by which an alien is ordered to leave France because his or her presence in the country constitutes a serious threat to public order ( ordre public ), under Article L. 521 ‑ 1 of the Immigration and Asylum Code. The competent authority, for the purposes of such order, must establish the existence of a serious threat having regard to the alien’s conduct and the objective risks that he or she represents for public order ( Conseil d’État, decision of 7 May 2015, no. 389959).",
"68. Certain categories of aliens who have particular links with France in principle enjoy a degree of protection from deportation (Article L. 521 ‑ 3 of the Immigration and Asylum Code). This protection is removed, however, where the alien’s conduct “is such as to harm the fundamental interests of the State, or is related to acts of terrorism, or expressly and deliberately encourages acts of discrimination, hatred or violence against a given person or group” (same Article).",
"69. Further details on the deportation procedure, the remedies against a deportation order and the directions as to destination country can be found in paragraphs 39 to 42 of the A.S. v. France judgment (no. 46240/15, 19 April 2018).",
"Non-admission of appeal on points of law by the Conseil d’État",
"70. Article L. 822 ‑ 1 of the Code on Administrative Courts provided, at the time, as follows:",
"“Appeals on points of law to the Conseil d’État must follow the preliminary admission procedure. Admission shall be refused by a court decision if the appeal on points of law is inadmissible or if there is no serious ground of appeal.”",
"EUROPEAN UNION LAW AND CJEU CASE-LAWEU Charter of Fundamental Rights",
"EU Charter of Fundamental Rights",
"EU Charter of Fundamental Rights",
"71. The relevant Articles of the EU Charter of Fundamental Rights (the “Charter”) read as follows:",
"Article 18",
"“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”",
"Article 19",
"“...",
"2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”",
"Treaty on the Functioning of the European Union",
"72. Article 78(1 ) of the Treaty on the Functioning of the European Union reads as follows:",
"“The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”",
"Directive 2011/95/EU of the European Parliament and of the Council",
"73. The relevant provisions of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (OJEU L 337 p. 9) read as follows:",
"Article 14 – Revocation of, ending of or refusal to renew refugee status",
"“...",
"4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when:",
"(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;",
"(b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.",
"...",
"6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention in so far as they are present in the Member State.”",
"Relevant CJEU case-law",
"74. The CJEU has found that, as provided in recital 3 of Directive 2011/95, the Common European Asylum System, encompassing that Directive, is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted (see, to this effect, the judgments of 21 December 2011, N. S. and others, C ‑ 411/10 and C ‑ 493/10, EU:C:2011:865, paragraph 75, and of 1 March 2016, Alo and Osso, C ‑ 443/14 and C ‑ 444/14, EU:C:2016:127, paragraph 30).",
"75. In the Ahmed judgment of 13 September 2018 (C ‑ 369/17, EU: C:2018:713), the CJEU found, at paragraph 51, as follows:",
"“Like the grounds for exclusion from refugee status, the purpose underlying the grounds for exclusion from subsidiary protection is to exclude from subsidiary protection status persons who are deemed to be undeserving of the protection which that status entails and to maintain the credibility of the Common European Asylum System, which includes both the approximation of rules on the recognition of refugees and the content of refugee status and measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection ...”",
"76. In its Grand Chamber judgment M and others v. Commissaire général aux réfugiés et aux apatrides (14 May 2019, C ‑ 391/16, C ‑ 77/17 and C ‑ 78/17, EU: C:2019:403), the CJEU found in paragraph 92 that the fact of being a “refugee” was not dependent on the formal recognition of that fact through the granting of “refugee status”. It went on to explain in paragraph 94 that member States were precluded from removing, expelling or extraditing a refugee who had lost status under Article 14(4) of Directive 2011/95 where there were substantial grounds for believing that he or she would face a genuine risk, in the country of destination, of being subjected to treatment prohibited by Articles 4 and 19 of the Charter. In that eventuality the member State concerned could not derogate from the principle of non-refoulement (paragraph 95). Lastly, the CJEU found in paragraph 99 that where Article 14(4) of Directive 2011/95 applied, the third-country nationals concerned would be denied refugee status and thus all the rights and benefits set out in Chapter VII of that Directive, those rights and benefits being associated with that status. However, in so far as they continued to meet the asylum conditions, the people concerned would continue to be refugees and, as explicitly stated in Article 14(6) of that Directive, would be entitled to a certain number of rights laid down in the Geneva Convention.",
"77. That CJEU judgment was delivered two days before the judgment of 16 May 2019 in which the Lille Administrative Court dismissed the applicant’s appeal against the order specifying the Russian Federation as his destination country (see paragraph 48 above).",
"78. In his Opinion of 21 June 2018 in the case of M v. Ministerstvo vnitra (or M and others v. Commissaire général aux réfugiés et aux apatrides, see paragraph 76 above), Advocate General Wathelet found that a systematic and teleological reading of Article 14(4) and (5) of Directive 2011/95 (see paragraph 73 above) had led him to consider that the application of those provisions did not amount to the cessation of, or exclusion from, the fact of being a refugee (paragraph 77 of his Opinion).",
"79. Mr Wathelet developed his reasoning as follows:",
"“78. ... it is apparent from the general scheme of that directive that the conditions for being a refugee, on the one hand, and the grant or withdrawal of refugee status, on the other, are two distinct concepts.",
"...",
"80. Chapter III [entitled ‘Qualification for being a refugee’] includes Articles 11 and 12 of Directive 2011/95, concerning cessation and exclusion, the content of which reproduces Articles 1C and 1F of the Geneva Convention. Those provisions lay down the situations in which a third-country national or a stateless person is not entitled to be a refugee and, consequently, is excluded from the scope of the international protection under that directive and that convention.",
"81. Those scenarios do not cover situations, such as those at issue in the cases in the main proceedings [C-391/16 and others, see paragraph 76 above], in which a refugee constitutes a danger to the community of the country of refuge because he has committed a particularly serious non-political crime in that country. The grounds for exclusion [in the Geneva Convention] were introduced not with the aim of protecting the security or the community of the country of refuge from the present danger that a refugee may pose, but with the aim of maintaining the integrity of the system for the international protection of refugees and of preventing the benefit of that protection from enabling those who have committed certain serious crimes to escape criminal liability. [NB The first case of exclusion concerns the scenario where there are serious reasons to believe that a third-country national or stateless person has committed a serious non-political offence outside the country of refugee before being admitted there as a refugee, i.e. before the date on which the residence permit was issued on the basis of the grant of refugee status; while the second case of exclusion applies where the person has been guilty of acts contrary to the purposes and principles of the United Nations].",
"82. [The] situations [where the refugee represents a threat to the society of the country of refuge because he has committed a particularly serious non-political offence in that country], however, fall within the scope of the exception to the principle of non-refoulement and Article 14(4) and (5) of Directive 2011/95. That provision is in a separate chapter, namely Chapter IV of that directive, entitled ‘Refugee status’.",
"...",
"84. In the second place, attainment of the objectives of Article 14(4) and (5) of Directive 2011/95 also presupposes that, as long as a person qualifies as a refugee, he shall continue to be a refugee and this will not be affected by the revocation of the status granted to him or by the refusal to grant such status.",
"85. The grounds for cessation of and exclusion from being a refugee are listed exhaustively in Articles 1C to 1F of the Geneva Convention — provisions in respect of which the Contracting States are not authorised to make reservations under Article 42(1) of that convention. Therefore, the introduction of additional grounds for cessation or exclusion in Directive 2011/95 would have undermined the objective of that directive, which is to ensure the full implementation of that convention.",
"...",
"132. For the sake of completeness, I would point out that the foregoing conclusion solely concerns the validity of Article 14(4) to (6) of Directive 2011/95, in so far as it introduces the possibility for the Member States to deprive certain refugees of the rights provided for in Chapter VII of that directive, in the light of Article 18 of the Charter and Article 78(1) TFEU. It is only on the validity in abstracto of that possibility in the light of those provisions that the Court is asked to give a ruling in the context of the present references for a preliminary ruling and, therefore, this is what the observations submitted to the Court concerned.”",
"INTERNATIONAL MATERIALGeneva Convention of 28 July 1951 on the status of refugees",
"Geneva Convention of 28 July 1951 on the status of refugees",
"Geneva Convention of 28 July 1951 on the status of refugees",
"80. Articles 1 and 33 of the 1951 Geneva Convention provide as follows:",
"Article 1 – Definition of the term “refugee”",
"“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:",
"(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;",
"...",
"(2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.",
"...”",
"Article 33 – Prohibition of expulsion or return (“refoulement ”)",
"1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.",
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”",
"81. Articles 3, 4, 16, 22, 31 and 32 are cited in paragraph 62 of the judgment in N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 62, 13 February 2020.",
"Council of Europe treaties on terrorism",
"82. The Court would refer to paragraph 99 of the judgment in A. v. the Netherlands (no. 4900/06, § 99, 20 July 2010).",
"83. As regards, more specifically, the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, signed in Riga on 22 October 2015 (ETS no. 217), as mentioned in that judgment, it came into force on 1 July 2017 in accordance with the provisions of Article 10 § 2. That Protocol was ratified by France on 12 October 2017 and by the Russian Federation on 24 January 2020.",
"84 As regards the Council of Europe Convention on the Prevention of Terrorism signed in Warsaw on 16 May 2005 (ETS 196), as also mentioned in the above judgment, it was opened for signature by member States, non-member States which participated in its elaboration and the EU, and for accession by other non-member States. In accordance with Article 23 § 3 it entered into force on 1 June 2007. This Convention was ratified by France on 29 April 2008 and by the Russian Federation on 19 May 2006.",
"International documents concerning the situation in the North Caucasus region",
"85. Reference should be made to the international material enumerated in the judgment of M.V. and M.T. v. France (no. 17897/09, §§ 23-25, 4 September 2014) and in the decision of I.S. v. France (no. 54612/16, §§ 29 ‑ 31, 12 December 2017).",
"86. The material mentioned below concerns the developments that have taken place since 2018 and the situation of individuals who have been suspected or convicted of acts of terrorism. It confirms in particular that the situation in the North Caucasus region has remained very unstable on account of persistent conflicts between government forces and armed rebels of the Chechen resistance.",
"87. The information comes from reports by a number of international or governmental organisations (European Asylum Support Office (EASO), the Office of the Commissioner General for Refugees and Stateless Persons (CGRS-CEDOCA, Belgium, COI Unit), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and Freedom House).",
"88. In a report of August 2018, “Russian Federation ‑ The Situation for Chechens in Russia” [1], the European Asylum Support Office (EASO), which is an EU agency set up in 2010 with the role of implementing the Common European Asylum System and to provide expertise on asylum matters, noted as follows:",
"“7 Reception of Chechens returnees",
"According to the Russian authorities, in 2016 as many as 150 000 Russians repatriated to the Russian Federation from abroad. The number of either Chechens or people from the Northern Caucasus returning to the Russian Federation in 2017 is unknown.",
"7.2 Treatment of returnees by authorities",
"In a report by the German Foreign Office and cited by ACCORD, it is determined that there were in general no indications that Russian authorities systematically target Russian citizens either returning from abroad or applying for asylum. However, some specific social groups and high-profile asylum seekers were targeted and monitored by the authorities. Chechens in general were not targeted, but suspected insurgents are likely to be subject to repression upon return. In the case of voluntary returns, IOM Moscow did not receive any reports from returnees to Chechnya about any kind of problems or conflicts with local authorities upon return to Chechnya, according to information conveyed to DIS in 2014. Some sources however mention possible difficulties that Chechen returnees can encounter, even though there is a difference between non-voluntary and voluntary returnees, the latter who in general did not encounter any problems. Ekkehard Maass, Chairman of the German-Caucasian Society, have explained that the primary fear of Chechens in Germany was to be shipped back to Russia, where they could face violence and ill treatment from the authorities, for example the cases of re-education programmes for women.",
"Former Islamic State fighters were monitored by the authorities, even though there were no official figures for male returnees. Memorial stated in its 2016 report:",
"‘Overall, the small stream of “returnees” is still reasonably well monitored by the Russian security services. The number of Russian nationals who have been subject to criminal proceedings as a result of travelling to fight alongside radicalised Muslims is subject to a great deal of uncertainty, ranging from 477 to 800 depending on the officials cited.’",
"In contrast to neighbouring Dagestan and the Russian hardline policy, the Chechen government and local activists took some steps to rehabilitate children and women returning from Syria and to a limited extent some fighters although the Chechen authorities have been said to use the process to portray themselves as pacifistic and gather intelligence about the Islamic State. The number of returned children and women to Russia was 97 as of February 2018.",
"In general, the authorities encountered many technical and legal challenges related to the return of these persons, including the identity verification of children born in Syria or Iraq. The rehabilitation and returning process was not without potential risk for returnees from Syria, as they, their relatives or even friends might also be targeted by the Chechen authorities, according to an analysis by International Crisis Group. Nevertheless, with the tentative support from local authorities, a rehabilitation centre is to be built in Grozny to apply a more individual approach to returning women from Syria. However, women returning from Syria were allegedly required to sign a document promising to appear before a court, if charged with any criminal activity. Law enforcement agencies would make informal agreements with relatives and friends that the returnees would not be charged with a crime upon return, but despite these informal agreements there were cases of prosecution.",
"Since 2015, there have been several high-profile cases of returnees who disappeared after their return to the Russian Federation from Europe or suffered ill treatment or otherwise were considered to be at risk after returning ... Moreover, according to a non-public country report by the German Foreign Office, quoted in a ruling by the Austrian Federal Administrative Court, Chechen returnees could potentially be targeted by the authorities in falsified penal procedures, in order to improve the crime-fighting statistics or the returnees could be suspected of having participated in militant activities.”",
"89. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS), an independent Belgian federal body set up to provide protection to people facing a risk of persecution or serious harm on return to their country, has noted as follows [2] :",
"“This document updates the COI Focus Tsjetsjenië. Veiligheidssituatie of 11 June 2018. Research was focussed on new developments in the period from June 2018 to 15 June 2019.",
"The research for this report was closed on 15 June 2019.",
"All sources indicate that since 2009, there have been no widespread and major human rights violations or violations of international humanitarian law in Chechnya. However, violence still occurs, but it is more targeted in nature and has a limited impact. All sources mention human rights violations by the Kadyrov regime and attacks by rebels. Violence by state actors primarily targets members of the rebel movement and their relatives, but is not limited to this group. Rebels mainly carry out attacks against members of the security forces.",
"According to some sources, due to the strong control the regime exerts on society, only a limited amount of information on human rights violations and on the overall situation in Chechnya filters through.",
"Sources report that the rebel units of the Imarat Kavkaz were side-lined almost completely in 2015 and no longer play a significant role in the region. This is due to actions of the security services as well as to the emergence of IS in the North Caucasus. A number of potential recruits of the rebel movement in Chechnya have left the region in order to join the ranks of ISIS. Rebels who stay in Chechnya are developing a limited structure of independently operating cells under the IS flag. To this day, the activities and the impact of IS units in Chechnya remain limited, but it is not clear how this may evolve in the near future. At the same time, the number of fighters going to the Middle East is decreasing sharply.",
"According to the sources, the Chechen security forces are under the direct control of Ramzan Kadyrov, which is exceptional in the region, where security forces are usually answerable to the central federal structures. The Chechen security forces commit numerous human rights violations in a climate of impunity. The sources report illegal arrests, fabricated lawsuits, disappearances and abductions, torture during detention, extrajudicial executions and collective retaliatory actions such as burning down the houses of family members of alleged fighters.",
"Figures about the number of violent incidents and the number of victims are scarce. According to various sources, the available figures are an underestimation but indicate a decrease of the number of victims among the security services, rebels and civilians. Since 2013, this evolution has continued almost without interruption until 2017, when an increase in the number of victims was observed. In 2018, the number of victims among the security forces decreased, while the number of victims among rebels and civilians remained more or less stable.”",
"90. In a public statement about the Russian Federation, concerning the Chechen Republic and other Republics of the North Caucasus, dated 11 March 2019 [3], the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted as follows:",
"“13. The information gathered by the delegation during the visit [in November / December 2017] suggests that persons suspected of offences related to terrorism and participation in illegal armed groups are at a particularly high risk of being ill-treated, but they were not the only alleged victims ...”",
"91. The report “Freedom in the World 2020 – Russia” by Freedom House, of 4 March 2020 [4], states as follows:",
"“Parts of the country, especially the North Caucasus, suffer from high levels of violence; victims include officials, Islamist insurgents, and civilians. Chechen leader Ramzan Kadyrov is accused of using abductions, torture, extrajudicial killings, and other forms of violence to maintain control. This activity sometimes occurs beyond Russian borders: Kadyrov is suspected of arranging the assassination of asylum ‑ seekers and political opponents who have fled the country.”"
] | [
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"92. The applicant argued that his removal to the Russian Federation would expose him to treatment in breach of Article 3 of the Convention. That Article reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"Admissibility",
"93. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicant",
"(i) General situation in the North Caucasus Region",
"94. The applicant referred to the November 2013 report by the non-governmental organisation Action by Christians for the Abolition of Torture (ACAT). According to that report, the Russian authorities had resorted to ill-treatment and torture of Chechen fighters.",
"95. The applicant further cited Amnesty International’s Global Report for 2017-2018 (“State of Human Rights in the World”, 2017 2018, published on 22 February 2018), which indicates a further deterioration of the situation in Chechnya and reports enforced disappearances, unlawful detentions, torture and other ill-treatment in custody, together with extrajudicial executions, in the North Caucasus region.",
"96. The applicant also relied on the report by the non-governmental organisation Memorial according to which fundamental rights were not respected in Russia in criminal proceedings. He also pointed to a report entitled “L’évolution de la politique russe en matière de lutte antiterroriste” (“The Evolution of Russian Counter-Terrorism Policy”) published in 2018 by the French Institute of International Relations (IFRI), which is a research and discussion centre for the analysis of international issues. According to this report, Russian law prescribes harsher sentences for persons convicted of terrorism and extremism.",
"97. The applicant referred to a report entitled “Security and Human Rights in Chechnya and the Situation of Chechens in Russia” published in January 2015 by the Danish Immigration Service. One part deals with fabricated criminal cases, confessions under torture and other ill-treatment.",
"98. The applicant further relied on a report by the Swiss Refugee Assistance Organisation (OSAR) according to which the Chechen police systematically tortured, first, persons who refused to cooperate with them as informers and, secondly, those who adhered to fundamentalist interpretations of Islam. On this latter point, the applicant also cited a report by Dr Mark Galeotti, entitled “License to kill? The risk to Chechens inside Russia” published in June 2019. The author of this report is a researcher in the field of Russian security services at the Institute of International Relations in Prague.",
"(ii) The applicant’s personal situation",
"99. The applicant began by referring to the persecution to which he had been subjected before leaving Russia (see paragraphs 4 to 8 above). At that point the only thing that could be held against him by the Federal Security Service (FSB) and ORB agents was the fact that his father and paternal uncles had been fighters. He emphasised that the veracity of this situation had been established because the OFPRA had granted him refugee status (see paragraph 17 above).",
"100. The applicant stated that the threats made against him prior to his departure had not ceased after he fled to France. For example, several of his close relatives had allegedly been approached by the Russian police, who were still actively interested in him (see paragraphs 11 and 13 above).",
"101. According to the applicant, his current profile would be an aggravating factor if he were to be deported to his country of origin. He pointed out that the CNDA had not addressed the risk he incurred as a result of his criminal conviction (see paragraph 31 above). In this regard, he stated that the Russian authorities were aware of the judgment of 16 April 2015 (see paragraph 21 above) and that, moreover, they had resumed their pressure on his family members living in Russia after its publication (see paragraphs 23, 46 and 49 above). He argued that his refugee status had been wrongly revoked as he did not constitute a serious threat to French society.",
"102. The applicant submitted that, in view of the persecution to which he had been subjected prior to his departure from Russia (see paragraphs 4 to 8 above), his conviction for acts of terrorism in connection with his involvement in an armed group active in the Syrian conflict (see paragraph 21 above) and the treatment inflicted on terrorist suspects by the Russian authorities, he ran a real and serious risk of being exposed to inhuman and degrading treatment if returned to his country of origin.",
"(b) The Government",
"(i) The general situation in the North Caucasus Region",
"103. At the outset, the Government observed that most of the reports by governmental and non-governmental organisations produced by the applicant were not recent ones, having been published between 2009 and 2015. Reports published in 2018 had also been submitted by him in evidence but they did not indicate any widespread practice of ill-treatment of individuals suspected of belonging to a terrorist movement.",
"104. The Government were of the view that the situation in Chechnya was not such as to preclude removal to that region, as the Court had previously held (they referred to R.K. and Others v. France, no. 68264/14, §§ 49-50, 12 July 2016; R.M. and Others v. France, no. 33201/11, §§ 50-51, 12 July 2016; I.S. v. France, cited above, §§ 47-48; and M.I. v. Bosnia and Herzegovina, no. 47679/17, §§ 45-46, 29 January 2019).",
"105. The Government also asserted that, to their knowledge, there were no reports from governmental or non-governmental organisations for the years 2017 and 2018 showing systematic practices of arbitrary detention and systematic ill-treatment of Chechens suspected or convicted of having fought for the so-called “Islamic State” organisation in Syria.",
"106. Lastly, the Government maintained that several Russian nationals of Chechen origin with links to a terrorist movement who had been suspected or convicted of terrorist offences and returned to Russia had not challenged the choice of that destination country and had not alleged, after their return, that they had been subjected to treatment contrary to Article 3 of the Convention. They explained that, at the time of their observations, 14 such individuals had been deported by France since 2012.",
"107. The Government concluded that no generalised risk of ill-treatment facing all terrorist suspects had been proven and, therefore, that the risk of being subjected to treatment contrary to Article 3 of the Convention had to be examined on a case-by-case basis.",
"(ii) The applicant’s personal situation",
"108. The Government took the view that the applicant had not established the existence of a specific individual risk.",
"109. They first noted that, although the applicant had been granted refugee status, the OFPRA’s analysis following the applicant’s interview with a protection officer on 21 June 2012 (see paragraph 18 above) showed that he had been unable to explain why he had been instructed to contact rebels (see paragraph 5 above) or how his close relatives had obtained his Russian “external passport” from the authorities (see paragraph 6 above).",
"110. The Government further noted that the events that had led to the applicant’s departure from the Russian Federation and to the granting of his refugee status had occurred long ago and could not serve to substantiate the existence of any current fear of treatment contrary to Article 3 of the Convention that the applicant might sustain if he were to be deported to his country of origin.",
"111. In that connection, the Government emphasised that the applicant’s statements during his interview with an OFPRA official on 19 May 2015 remained imprecise and inconsistent as to the surveillance to which he and his close relatives were allegedly still subject and as to the conditions in which his Russian “domestic passport” had been recovered from the authorities (see paragraph 24 above). The Government also disputed the probative value of the witness statements and the press article produced by the applicant (see paragraphs 23, 46, 49 and 51 above).",
"112. The Government submitted that the applicant had used his Russian “external passport” to travel to Turkey and then to Syria (see paragraph 22 above), even though it was well known that the authorities in both countries were co-operating with Russia, and Turkey had in fact sent back jihadists of Chechen origin. The Government further noted that, by using such a travel document, the applicant, who was then claiming to be a refugee, had demonstrated his allegiance to his country of origin.",
"113. The Government noted that the applicant’s accomplice with the same profile as him, who had also been convicted on 16 April 2015, had left Syria and returned to Chechnya (see paragraph 22 above). They emphasised that there was no allegation that he had been ill-treated.",
"114. Lastly, the Government noted that the Russian authorities had not requested the applicant’s extradition or carried out the threats they had allegedly made against his relatives (see paragraphs 23, 46 and 49 above). The Government also pointed out that the applicant had not explained how the Russian authorities had been informed of his criminal conviction on 16 April 2015. Lastly, the Government stated that, if the deportation order were to be enforced, the applicant would be sent to Moscow.",
"The Court’s assessment",
"(a) General principles",
"(i) Preliminary observations on the nature of interim measures",
"115. As a preliminary matter, the Court considers it useful to clarify the purpose and nature of an interim measure under Rule 39 of the Rules of Court, as applied in the present case on 8 March 2019 for the duration of its examination of the application. It reiterates that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, such as that provided for in Article 3, the object of an interim measure is to preserve and protect the rights and interests of the parties to a dispute before the Court, pending its final decision. The power to indicate to the respondent State the interim measure or measures that it should adopt is exercised only in limited spheres and, as indicated above, where there is an imminent risk of irreparable damage (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 104, ECHR 2005-I). The Court has previously emphasised the special importance and vital role of interim measures in the Convention system (see, among other authorities, Paladi v. Moldova [GC], no. 39806/05, § 86, 10 March 2009, and Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211-213, ECHR 2013 (extracts)). Where a respondent State has deported an applicant despite the application of an interim measure, the Court may conclude that the State has failed to fulfil its obligations under Article 34 of the Convention (see, for example, M.A. v. France, no. 9373/15, § 71, 1 February 2018).",
"116. However, it follows from the general scheme of Rule 39 of the Rules of Court that a decision on whether it should be applied in a given case will generally be made within a very short lapse of time, in order to prevent an imminent risk of irreversible harm, and often on the basis of limited information. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. Where this is possible in view of the urgency of the matter, however, the Court may invite the respondent State to provide further information before taking a decision on the request for interim measures or decide to apply Article 39 temporarily pending the receipt of such information from both parties, as it has done in the present case (see paragraphs 36 and 42 above). In any event, it is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification (see Mamatkulov and Askarov, cited above, §§ 104 and 125, and Paladi, cited above, § 89).",
"(ii) Application of Article 3 in expulsion cases",
"117. In the present case the Court would reiterate that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to deport the person in question to that country (see F.G. v. Sweden [GC], no. 43611/11, § 111, 23 March 2016, and A.M. v. France, no. 12148/18, § 113, 29 April 2019).",
"(iii) Absolute nature of Article 3 obligations",
"118. The Court would emphasise that it is acutely conscious of the scale of the threat that terrorism represents for the community and it does not therefore underestimate the importance of the fight against terrorism. It is well aware of the immense difficulties currently faced by States in protecting their populations from terrorist violence (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996 ‑ V; Saadi v. Italy [GC], no. 37201/06, § 137, ECHR 2008; and A.M. v. France, cited above, § 112). Faced with such a threat, the Court has considered it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see Daoudi v. France, no. 19576/08, § 65, 3 December 2009; Boutagni v. France, no. 42360/08, § 45, 18 November 2010; Auad v. Bulgaria, no. 46390/10, § 95, 11 October 2011; A.M. c. France, cited above, § 112; and O.D. v. Bulgaria, no. 34016/18, § 46, 10 October 2019).",
"119. It must be observed, however, that the protection secured by Article 3 of the Convention is absolute in nature. For a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3, even where the person is regarded as representing a threat to the Contracting State’s national security (see Saadi, cited above, §§ 140 ‑ 141; Auad, cited above, § 100; and O.D. v. Bulgaria, cited above, § 46). In other words, it is not necessary for the Court to examine allegations about an applicant’s terrorist activities because they are not relevant for its analysis under Article 3, according to its current case-law (see Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008, Auad, cited above, § 101; and O.D. v. Bulgaria, cited above, § 46). Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and J.K. and Others v. Sweden [GC], no. 59166/12, § 77, 23 August 2016). This is also true even where, as in the present case, the applicant has links with a terrorist organisation (see A.M. v. France, cited above).",
"(iv) Principle of the ex nunc assessment of the risk",
"120. If the applicant has not already been deported, the material point in time for the assessment must be that of the Court’s consideration of the case. A full and ex nunc assessment is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see Chahal, cited above, § 79; F.G. v. Sweden [GC], cited above, § 115; A.M. v. France, cited above, § 115; and D and Others v. Romania, no. 75953/16, § 62, 14 January 2020).",
"(v) Principle of subsidiarity",
"121. Where domestic proceedings have taken place concerning the matter in dispute, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it will usually be for those courts to assess the evidence before them. In cases concerning the expulsion of asylum-seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Refugee Convention (see F.G. v. Sweden, cited above, § 117). As a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned (see A.M. v. France, cited above, § 116). The Court must be satisfied, however, that the assessment made by the authorities of the Contracting State concerned is adequate and sufficiently supported by domestic material as well as by material originating from other reliable and objective sources (see X. v. the Netherlands, no. 14319/17, § 72, 10 July 2018).",
"(vi) Relationship between Convention law, EU law and the Geneva Convention",
"122. The Court notes that EU law enshrines in primary law the right to asylum and the right to international protection (Article 78 TFEU and Article 18 of the Charter, cited in paragraphs 71 and 72 above). Furthermore, under Article 14 §§ 4 and 5 of Directive 2011/95 (see paragraph 73 above) the principle of non-refoulement, and certain rights enshrined in EU law on the basis of the Geneva Convention (Articles 3, 4, 16, 22, 31, 32 and 33 of that convention) (see paragraphs 80 and 81 above) are applicable, unlike the other rights enumerated in those two instruments, to any person present in the territory of a member State who fulfils the material conditions to be considered a refugee, even if he or she has not formally obtained refugee status or has had it withdrawn (see N. D. and N.T. v. Spain [GC], cited above, § 183, and see paragraphs 74-76 above).",
"123. The Court would emphasise, however, that under the terms of Article 19 and Article 32 § 1 of the Convention it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. Furthermore, in the context of a reference for a preliminary ruling, such as on the question whether a person remains a refugee following the withdrawal of refugee status, the CJEU, unlike the national courts and this Court, may be called upon to rule on the validity in abstracto of the possibilities offered by the provisions of EU law (see paragraph 79 above). More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see N.H. and Others v. France, nos. 28820/13 and 2 others, § 166, 2 July 2020). More specifically, the Court has not, to date, ruled on the distinction made in EU and domestic law between refugee status and fact of being a refugee. The Court would emphasise that neither the Convention nor its Protocols protect, as such, the right to asylum. The protection they afford is confined to the rights enshrined therein, including particularly the rights under Article 3 of the Convention, as restated above. In that connection, Article 3 embraces the prohibition of refoulement under the Geneva Convention (see N.D. and N.T. v. Spain [GC], cited above, § 188).",
"(vii) The risk assessment",
"124. The assessment of whether there are substantial grounds for believing that an applicant faces a real risk requires the Court to examine the conditions in the destination country in the light of the standards of Article 3 of the Convention. These standards entail that the ill-treatment an applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this level is relative, depending on all the circumstances of the case ( F.G. v. Sweden [GC], cited above, § 112, and A.M. v. France, cited above, § 114). Although assessment of that risk is to some degree speculative, the Court has always been very cautious, especially where public security concerns are also at issue, and has examined carefully the material placed before it in the light of the requisite standard of proof, before indicating an interim measure under Rule 39 (see paragraphs 115 and 116 above) or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention (see Saadi, cited above, § 142).",
"(viii) Distribution of the burden of proof",
"125. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention (see, as regards asylum-seekers, F.G. v. Sweden [GC], cited above, § 112, and J.K. and Others v. Sweden, cited above, § 91). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see X. v. the Netherlands, cited above, § 74). Nevertheless, it is for such persons to prove that there are substantial grounds for believing that, if they were deported to the destination country, they would be exposed to a real risk. Where such evidence is adduced, it is for the Government to dispel any doubts that it may raise (see Saadi, cited above, § 129; M.A. v. France, cited above, § 51; and A.M. v. France, cited above, § 118).",
"(b) Application of those principles to the present case",
"(i) The general situation in the North Caucasus region",
"126. As regards the general situation in the North Caucasus region, the Court has previously found that, although there have been reports of serious human rights violations in Chechnya, the situation has not been such that any return to the Russian Federation would constitute a violation of Article 3 of the Convention (see I v. Sweden, no. 61204/09, § 58, 5 September 2013; M.V. and M.T. v. France, cited above, §§ 39-40; R.K. and Others v. France, cited above, §§ 49-50; R.M. and Others v. France, no. 33201/11, §§ 50-51, 12 July 2016; I.S. v. France, cited above, §§ 47-48; and M.I. v. Bosnia and Herzegovina, cited above, §§ 45-46). In the light of the above-mentioned international reports (see paragraphs 85 to 91 above), the Court sees no reason to revisit this conclusion and considers that the protection afforded by Article 3 of the Convention can only come into play if the applicant is able to establish that there are substantial grounds for believing that his return to the Russian Federation would, in the particular circumstances of the present case, give rise to a real risk of treatment that is prohibited by Article 3 of the Convention.",
"127. In this connection the Court notes that, according to international reports, certain categories of the population of the North Caucasus, and more specifically of Chechnya, Ingushetia or Dagestan, may be particularly at risk, such as members of the armed Chechen resistance, individuals regarded by the authorities as such, their close relatives, those who have assisted them in any way, civilians forced by the authorities to collaborate with them and anyone suspected or convicted of acts of terrorism (see paragraphs 85 to 91 above). The Court therefore takes the view that the assessment of the risk to the applicant must be made on an individual basis, bearing in mind that persons with a profile corresponding to one of the above-mentioned categories may be more likely than others to attract the attention of the authorities.",
"(ii) The applicant’s personal situation",
"128. As is clear from the general principles set out above, while it is primarily for the applicant to produce evidence capable of demonstrating that there are substantial grounds for believing that, if the impugned deportation order were enforced, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention, when such evidence is submitted it is for the respondent State to dispel any doubts that may be raised by it. In the present case, the Court notes the general nature of the arguments put forward by the applicant to challenge the enforcement of the deportation (see paragraphs 94-102 above) but observes that his fears appear to be based on two points. The first point made by the applicant related to allegations that he had been detained and tortured in Russia because of his family ties to individuals who had taken a stand in favour of the Chechen rebels and to his refusal to co-operate with the authorities; he claimed that he was still wanted in that connection. According to him, this was the justification for the OFPRA’s decision to grant him refugee status (see paragraph 17 above). The second point made by the applicant was that the Russian and Chechen authorities had become aware of his criminal conviction in France (see paragraph 21 above) and that they were interested in him because of his links with a jihadist group in Syria (see paragraphs 23, 46 and 49 above).",
"129. The Court observes that, in cases concerning removal to the Russian Federation, it is the first time that it has been called upon to consider the merits of a complaint under Article 3 of the Convention by a Russian applicant of Chechen origin who claims that he would be at risk of treatment contrary to that provision on account of his criminal conviction for acts of terrorism in the respondent State. In addition, the situation is one where the applicant’s refugee status in the respondent State has been revoked (see paragraph 27 above).",
"130. With regard to the first point made by the applicant (see paragraph 128 above), the Court would observe, at the outset, that its task is not to draw the appropriate conclusions from the Geneva Convention, EU law or French law concerning the revocation of the applicant’s refugee status under Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 above). However, it considers that, for the purposes of examining the present case, it must take into account the factors that led to the granting of refugee status to the applicant by the OFPRA and the information then available to the French authorities (see paragraph 17 above) (see, mutatis mutandis, Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 8, 9 and 82, 22 September 2009, and M.G. v. Bulgaria, no. 59297/12, § 88, 25 March 2014). At the time he was granted this status, the French authorities considered that there was sufficient evidence that he would be at risk of persecution in his country of origin if returned there. The Court is of the view, however, that this is only a starting point for its analysis of the applicant’s current situation and that it must proceed therewith solely in the light of Article 3 of the Convention (see, mutatis mutandis, M.G. v. Bulgaria, cited above, § 88).",
"131. The Court first observes that a certain period of time has elapsed since the events which justified the granting of refugee status to the applicant (see paragraphs 5 to 9 above). The applicant himself has argued that only two of his close relatives still reside in Chechnya and that the male members of his family have died or are beneficiaries of international protection in Europe. Furthermore, as is apparent from the statement of facts, the applicant organised his departure from France to Syria, in March 2013 (see paragraph 21 above), shortly after his interview with the OFPRA officer on 21 June 2012 (see paragraph 16 above) and the granting of refugee status on 31 January 2013 (see paragraph 17 above). It is also clear from the facts that he travelled there in early August 2013 via Germany, Poland (where he collected his Russian “external passport”), Ukraine and Turkey (see paragraph 21 above).",
"132. The Court notes, moreover, that in order to prove the authorities’ continuing interest in him, the applicant produced a witness statement which was appended to his application form (see paragraph 11 above). The Court agrees with the Government that this testimony is undated and that the applicant has not established a family relationship with its author. Furthermore, although during the interview with an OFPRA official on 19 May 2015 the applicant stated that the Russian prosecutor’s office had tried to contact him (see paragraph 24 above), the Court notes that he was very evasive in this regard and that there is nothing in the file to indicate that the Russian or Chechen authorities are still interested in him in connection with the events that occurred in 2011. Throughout the proceedings before the asylum authorities and the French courts it was observed that the applicant’s statements remained vague and inconsistent.",
"133. The Court further notes that the applicant was issued with a Russian “external passport” which he used to leave Russia (see paragraph 6 above) and then to travel in 2013 from Poland to Turkey and Syria (see paragraph 21 above). In this connection, the Court observes that the applicant has provided no explanation for the inconsistencies in his account identified by the Government, failing to explain how, in his alleged situation in 2011, he managed to obtain a Russian “external passport”. The Court reiterates that the issuance of an international travel document to a person whose activities had already attracted the attention of the Russian authorities would appear highly unlikely (see K.Y. v. France (dec.), no. 14875/09, 3 May 2011, and R.K. and Others v. France, cited above, § 54).",
"134. The Court further notes that in the summer of 2013, i.e. after the OFPRA’s decision granting the applicant refugee status (see paragraph 17 above), his close relatives living in Chechnya collected the Russian “internal passport” in his name for which they had applied (see paragraph 24 above). The applicant has not alleged that his relatives had problems with the Russian authorities on account of applying for and obtaining this passport.",
"135. As to the second point put forward by the applicant (see paragraph 128 above), the Government submitted that several other individuals who had been convicted in France for their involvement in terrorist activities had been returned to Russia without having invoked any risk under Article 3 of the Convention before the domestic authorities or the Court. The Court cannot conclude from these facts alone (which are devoid of any details enabling their scope to be assessed) that the applicant would not personally be subject to a risk of treatment prohibited by Article 3 of the Convention if returned to Russia. It notes, however, that the applicant does not contest the Government’s finding that one of his accomplices who previously returned to Chechnya from Syria has not had any problems with the authorities (see paragraph 22 above).",
"136. The Court notes that the applicant’s main argument consists in the allegation that the Russian and Chechen authorities are aware of his criminal conviction in France (see paragraph 21 above) and are interested in him because of his involvement with a jihadist group in Syria. The Court certainly does not entirely rule out the assumption that the Russian authorities might have become aware of the judgment delivered on 16 April 2015 by the Paris Criminal Court (see paragraph 21 above). However, there is no evidence that the Russian authorities have shown any particular interest in the applicant in connection with an alleged investigation in his country of origin on account of his links with a jihadist network in Syria. The Court notes in particular that Russia has never requested the applicant’s extradition from France or sought a copy of the judgment convicting him of terrorism-related offences. Nor does the case file show that he would be liable to arrest in Russia for offences committed on Russian soil or elsewhere. In any event, in view of the nature of the applicant’s conviction in France together with the national and international contexts, profoundly and durably marked as they are by the fight against terrorism, it cannot be ruled out that he might be subject to checks and surveillance on his return to Russia, without these measures necessarily constituting treatment prohibited by Article 3 of the Convention (see A.S. v. France, cited above, § 62). As the Court has previously found, the issue to be decided in a case such as the present one is not whether the applicant would be detained and questioned, or even subsequently convicted, by the authorities of the destination country, since this in itself would not contravene the Convention. Its concern is whether or not the applicant would be ill-treated or tortured, contrary to Article 3 of the Convention, upon returning to that country (see X v. Sweden, no. 36417/16, § 55, 9 January 2018).",
"137. The Court further reiterates that the national authorities are best placed to assess the applicant’s credibility since they have had an opportunity to see and hear him and to assess his demeanour (see R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010; M.E. v. Sweden, no. 71398/12, § 78, 26 June 2014; and F.G. v. Sweden [GC], cited above, § 118).",
"138. In the present case, the Court observes that on 16 May 2019 the Lille Administrative Court dismissed the applicant’s appeal against the prefect’s directions specifying the Russian Federation as the destination country (see paragraph 48 above) after analysing, in terms of Article 3 of the Convention, the risks that he would allegedly face if the deportation were enforced. However, the Court notes that it is still necessary to determine whether, in view of the facts that led the OFPRA to grant the applicant refugee status (see paragraph 17 above), the procedure before the French authorities was appropriate and allowed for a full examination of his personal situation. The Court observes that, as can be seen from paragraph 29 above, the Versailles Administrative Court, which had previously been asked to annul the directions specifying Russia as the country of destination, had considered that the first decision taken in that regard had not been sufficiently reasoned, particularly in view of the applicant’s refugee status at that time.",
"139. As to the principles governing the distribution of the burden of proof (see paragraph 125 above), the Court reiterates that they apply to all expulsion cases. The Court has previously indicated that for asylum-seekers it may be difficult, if not impossible, to supply evidence within a short time, especially if such evidence must be obtained from the country from which he or she claims to have fled. Owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when assessing the credibility of their statements and any supporting documents (see, in particular, J.K. and Others v. Sweden [GC], cited above, §§ 92-93).",
"140. In the light of the facts of the present case, the Court notes that the applicant’s situation is not that of an asylum-seeker who has just fled his or her country and who could therefore be considered vulnerable because of everything he or she might have been through during the migration (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 232, ECHR 2011; Ilias and Ahmed v. Hungary, [GC], no. 47287/15, § 192, 21 November 2019; and N.H. and Others v. France, cited above, § 162, 2 July 2020). The Court observes that the applicant arrived in France in 2011, that he was granted refugee status in January 2013 and that this status was revoked in 2016 following his criminal conviction in 2015 for acts committed in France, and also in Germany, Poland, Ukraine, Turkey and Syria, between 1 September 2012 and 19 November 2013, particularly for having spent almost two months in a combat zone in Syria very shortly after he was granted refugee status (see paragraph 17 above). Furthermore, as the CNDA held in its decision of 11 May 2019 rejecting the appeal against the OFPRA’s decision revoking his refugee status (see paragraph 31 above), the departure of the applicant and his accomplice for Syria had been “preceded by thorough and lengthy preparation” (see paragraphs 21 and 31 above). The Court therefore considers that it cannot be concluded from the facts of the case that the applicant should be characterised as “vulnerable” having regard to the meaning given thereto by the Court in apportioning the burden of proof in cases concerning Article 3 of the Convention, a characterisation which would have made it necessary to give him the benefit of the doubt.",
"141. Without prejudice to the burden of proof, the Court reiterates that a full and ex nunc assessment of the applicant’s complaint is required where account must be taken of factors which have arisen since the domestic authorities adopted the final decision (see paragraph 118 above).",
"142. In the present case the Court would observe, first, that on 14 May 2019, that is to say, two days before the Lille Administrative Court ruled on the risks which the applicant allegedly faced in the event of his return to Russia, the CJEU had held that the revocation of refugee status in the event of a threat to the security or society of the host member State did not mean that the person concerned was no longer a refugee (see paragraphs 74 and 76 above). Furthermore, in its judgment of 19 June 2020 (see paragraph 61 above), the Conseil d’État applied the case-law of the CJEU (see paragraph 76 above). The Court notes that although, in his appeal on points of law against the CNDA’s decision, the applicant pleaded that the CNDA had erred in law by holding that the revocation of his refugee status de facto entailed that he was no longer a refugee (see paragraph 53 above), it is clear from both the case-law of the CJEU and that of the Conseil d’État (see paragraphs 61 and 62 above), which in this case did not allow the applicant’s appeal (see paragraph 53 above), that despite the revocation of his status on the basis of Article L. 711-6 of the Immigration and Asylum Code, the applicant remained a refugee, as the CNDA had not accepted the OFPRA’s conclusion that the exclusion clause should be applied.",
"143. The Court further notes that the applicant has not appealed against the judgment of the Lille Administrative Court dismissing his application for annulment of the prefectoral order of 25 February 2019 (see paragraph 39 above) and that this judgment has become final. Without prejudice to the interim measure indicated under Rule 39 of the Rules of Court, the applicant could therefore be deported to the Russian Federation or to any country to which he could be legally admitted under the provisions of that order.",
"144. As is clear from the Court’s case-law, the fact that the person concerned is a refugee is an element which must be taken into particular account by the domestic authorities when examining the reality of the risk he or she would allegedly face in the event of expulsion (see, mutatis mutandis, Shiksaitov v. Slovakia, nos. 56751/16 and 33762/17, §§ 70-71, 10 December 2020, and Bivolaru and Moldovan v. France, nos. 40324/16 and 12623/17, § 141, 25 March 2021). In the light of what has been stated in paragraphs 142 to 143 above, the Court notes that the fact that the revocation of the applicant’s refugee status has no bearing on whether or not he remains a refugee was not taken into account by the French authorities in the context of the decision to deport him to the Russian Federation and the subsequent review of that order. The Court concludes that the French authorities and the domestic courts did not assess the risks that the applicant allegedly faced if the deportation order were to be enforced in the light of that situation and the fact that, at least when he arrived in France in 2011, the applicant had been identified as belonging to a group that was, at that time, considered to be targeted.",
"145. The Court does not rule out the possibility that, following a thorough and complete examination of the applicant’s personal situation and verification as to whether or not he was still a refugee, the French authorities might reach the same conclusion as the Lille Administrative Court, namely that there is no risk to him under Article 3 of the Convention if he is deported to Russia. However, the Court notes that the CNDA had issued a decision on the basis of Article L. 731-3 of the Immigration and Asylum Code (see paragraphs 63 and 64 above) and that it has in similar cases issued opinions advising against the removal of individuals to the country of their nationality on the grounds that, while they had lost refugee status they had remained refugees (see paragraphs 65 and 66 above), including in the case of the expulsion to Russia of a Russian national of Chechen origin with a profile similar (though not identical) to that of the applicant (see paragraph 65 above). The Court further notes that in both opinions the CNDA found that a decision specifying the country of destination had breached France’s obligations arising from the right of refugees to protection against refoulement, Articles 4 and 19 § 2 of the EU Charter and Article 3 of the Convention (see paragraphs 65 and 66 above).",
"146. In conclusion, and in the light of the foregoing considerations, the Court finds that there would be a violation of Article 3 of the Convention in its procedural aspect if the applicant were returned to Russia without an ex nunc assessment by the French authorities of the risk he claims to face if deported.",
"ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION",
"147. The applicant argued that his removal to the Russian Federation would expose him to treatment in breach of Article 2 § 1 of the Convention, which reads as follows:",
"“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”",
"148. The Court reiterates that it is the master of the legal characterisation of the facts in the case (see M.G. v. Bulgaria, cited above, §§ 59 ‑ 62; Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018; and Ilias et Ahmed [GC], cited above, § 176) and that it may decide not to examine a particular complaint separately, considering that it is subsumed or otherwise closely linked to a complaint that has already been dealt with.",
"149. Having regard to the facts of the present case, to the parties’ arguments and to the conclusion reached by the Court under Article 3 of the Convention, it considers that it has examined the main legal question raised by the application. The Court concludes that it does not need to examine the admissibility or merits of the complaint under Article 2 of the Convention (see, mutatis mutandis, R.M. and Others v. France, cited above, § 58).",
"RULE 39 OF THE Rules of Court",
"150. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.",
"151. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 44 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part below).",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"152. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"153. The applicant claimed 30,000 euros (EUR) for the non-pecuniary damage that he claimed to have sustained as a result of the alleged violation of Article 3 of the Convention. He added that his isolation in the administrative detention centre and periods spent under a compulsory residence order, away from his family, had exacerbated his feeling of anguish and worry about being deported to Russia.",
"154. The Government disputed those claims.",
"155. The Court observes that a violation of Article 3 of the Convention has not yet occurred in the present case. In this situation it takes the view that its finding to the effect that the deportation, if it were to be implemented without a prior ex nunc assessment of the reality of the risks faced by the applicant in the event of his return to Russia, would constitute a violation of that Article, represents sufficient just satisfaction.",
"Costs and expenses",
"156. The applicant also claimed EUR 3,750 for the costs and expenses that he had incurred in the proceedings before the Court. He explained that he had already paid the sum of EUR 750 that he had been charged in respect of the interim measures and that he could not afford to pay the remaining EUR 3,000 for the proceedings on the merits of his application.",
"157. The Government considered that this sum was duly justified and that the applicant’s clam did not call for any particular observation on their part.",
"158. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award EUR 3,750, to be paid to the applicant, in respect of all costs and expenses.",
"Default interest",
"162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
270 | Mamatkulov and Askarov v. Turkey | 4 February 2005 (Grand Chamber) | This case concerned the extradition to Uzbekistan in 1999 of two members of an opposition party in Uzbekistan suspected of the explosion of a bomb in that country as well as an attempted terrorist attack on the President of the Republic. Although the Court had on 18 March 1999 indicated to the Turkish Government, under Rule 39 (interim measures) of the Rules of Court, that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”, on 19 March 1999, the Turkish Cabinet had issued a decree for the applicants’ extradition and they were handed over to the Uzbek authorities on 27 March 1999. In a judgment of 28 June 1999 the High Court of the Republic of Uzbekistan later found the applicants guilty of the offences as charged and sentenced them to 20 and 11 years’ imprisonment respectively. | In the light of the material before it, the Court was not able to conclude that substantial grounds had existed on the date the applicants were extradited for believing that they faced a real risk of treatment proscribed by Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Consequently, no violation of Article 3 of the Convention could be found. Having regard to the material before it, the Court further concluded that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey had been in breach of its obligations under Article 34 (effective exercise of right of individual application) of the Convention. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"11. The applicants were born in 1959 and 1971 respectively and are currently in custody in the Republic of Uzbekistan. They are members of Erk (Freedom), an opposition party in Uzbekistan.",
"A. The first applicant",
"12. On 3 March 1999 the first applicant arrived in Istanbul from Alma-Ata (Kazakhstan), on a tourist visa. He was arrested by the Turkish police at Atatürk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries through the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan.",
"13. The Republic of Uzbekistan requested his extradition under a bilateral treaty with Turkey.",
"14. On 5 March 1999 the Bakırköy public prosecutor made an application to the investigating judge for the first applicant to be remanded in custody. The first applicant, who was assisted by his lawyer, was brought before the judge on the same day and remanded in custody for forty-five days, in accordance with the European Convention on Mutual Assistance in Criminal Matters.",
"15. On 11 March 1999 the first applicant was interviewed by the judge of the Bakırköy Criminal Court. In an order made on the same day under the expedited applications procedure, the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but ordinary criminal offences. The judge also made an order remanding him in custody pending his extradition. The first applicant, who was assisted by his lawyer and an interpreter, denied the charges and protested his innocence.",
"16. In written pleadings that were lodged at a hearing on 11 March 1999, the first applicant ’ s representative argued that his client was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the first applicant had been in Kazakhstan at the material time and had asked the Turkish authorities for political asylum as his life was at risk. He argued that his client was being prosecuted for an offence of a political nature and, relying on Article 9 § 2 of the Turkish Criminal Code, asked the Criminal Court to refuse Uzbekistan ’ s request for extradition.",
"17. On 15 March 1999 the first applicant appealed to the Bakırköy Assize Court against the order made under the expedited applications procedure on 11 March 1999. Having examined the case file, the Assize Court dismissed the first applicant ’ s appeal on 19 March 1999.",
"B. The second applicant",
"18. The second applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, acting on a request for his extradition by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries to others through the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan.",
"19. On 7 March 1999 the Bakırköy public prosecutor made an application to the investigating judge for the second applicant to be remanded in custody. On the same day the second applicant was brought before the judge, who remanded him in custody.",
"20. At a hearing on 11 March 1999, the second applicant ’ s representative submitted that the offence with which his client had been charged was political in nature and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the second applicant had been in Turkey at the material time on a false passport.",
"21. In a letter of 12 March 1999 the Fatih public prosecutor applied to the Fatih Criminal Court for a determination of the second applicant ’ s nationality and of the nature of the alleged offence.",
"22. In a decision of 15 March 1999, after hearing the applicant, the Criminal Court determined his nationality and the nature of the offence pursuant to Article 9 of the Turkish Criminal Code. It held that the offences with which he had been charged were not political or military in nature but ordinary criminal offences. It also made an order remanding the applicant in custody pending his extradition.",
"23. On 18 March 1999 the second applicant appealed to the Istanbul Assize Court against the judgment of 15 March 1999. Having examined the case file, the Assize Court dismissed the appeal on 26 March 1999.",
"C. The extradition of the applicants and subsequent events",
"24. On 18 March 1999 the President of the relevant Chamber of the Court decided to indicate to the Government, on the basis of Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the Court not to extradite the applicants to Uzbekistan prior to the meeting of the competent Chamber, which was to take place on 23 March 1999.",
"25. On 19 March 1999 the Turkish government issued a decree ordering the applicants ’ extradition.",
"26. On 23 March 1999 the Chamber decided to extend the interim measure indicated pursuant to Rule 39 until further notice.",
"27. On 27 March 1999 the applicants were handed over to the Uzbek authorities.",
"28. In a letter of 19 April 1999, the Government informed the Court that it had received the following assurances regarding the two applicants from the Uzbek authorities: on 9 March and 10 April 1999 the Uzbek embassy in Ankara had transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor of the Republic of Uzbekistan, stating:",
"“The applicants ’ property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment.",
"The Republic of Uzbekistan is a party to the United Nations Convention against Torture and accepts and reaffirms its obligation to comply with the requirements of the provisions of that Convention as regards both Turkey and the international community as a whole.”",
"29. On 11 June 1999 the Government transmitted to the Court a diplomatic note dated 8 June 1999 from the Uzbek Ministry of Foreign Affairs setting out the following points:",
"“It appears from investigations conducted by the Uzbek judicial authorities that Mr Mamatkulov and Mr Askarov have played an active role in planning and organising terrorist acts against the leaders of the Republic of Uzbekistan and its people since May 1997, as members of a criminal organisation led by C.H. and T.Y., who are notorious religious extremists.",
"It appears from information obtained through cooperation with the intelligence services of foreign countries that Mr Mamatkulov and Mr Askarov have committed offences in Kazakhstan and Kyrgyzstan.",
"Their indictment, which was drawn up on the basis of previously obtained evidence, includes a number of charges: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power through the use of force or by overthrowing the constitutional order, arson, uttering forged documents and voluntary homicide.",
"All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained.",
"The assurances given by the Public Prosecutor of the Republic of Uzbekistan concerning Mr Mamatkulov and Mr Askarov comply with Uzbekistan ’ s obligations under the United Nation ’ s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.",
"The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to the Supreme Court has been served on them.",
"Arrangements for the accused ’ s security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked.",
"The defendants ’ trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representatives of human rights organisations also attend the hearings.",
"Officials from the embassy of the Republic of Turkey may also attend.”",
"30. In a letter of 8 July 1999, the Government informed the Court that by a judgment of 28 June 1999 the Supreme Court of the Republic of Uzbekistan had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment.",
"31. In a letter to the Court dated 15 September 1999, the applicants ’ representatives said that they had not been able to contact their clients, that conditions in Uzbek prisons were bad and prisoners subjected to torture. They noted, inter alia :",
"“...",
"The applicants did not have a fair trial in the Republic of Uzbekistan. The rule requiring trials to be held in public was not complied with. Our only information about the applicants ’ trial comes from the Uzbek authorities.",
"We wrote to the Uzbek embassy in Ankara on 25 June 1999 requesting permission to attend the trial as observers in our capacity as lawyers, but have received no reply.",
"As to the assertion that the applicants ’ trial was followed by ‘ members of the local and foreign press and representatives of human rights organisations ’, the only non-governmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial.",
"Since the applicants ’ extradition, we have been unable to contact them by either letter or telephone. We still have no means of contacting them. This state of affairs serves to confirm our suspicions that the applicants are not being held in proper prison conditions.",
"According to the letter sent by the Court on 9 July 1999 and information published in the press, Mr Mamatkulov has been sentenced to twenty years ’ imprisonment. That is the heaviest sentence that can be handed down under the Uzbek Criminal Code. Furthermore, if account is taken of the conditions of detention in Uzbek prisons, and in particular of the use of torture, it is very difficult for prisoners to serve their sentences in the prisons in proper conditions. Moreover, it is generally believed that certain prisoners, in particular those convicted of offences pertaining to freedom of expression, are given additional sentences.”",
"32. On 15 October 2001 the Uzbek Ministry of Foreign Affairs sent the following information to the Turkish embassy in Tashkent:",
"“On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the offences listed below and sentenced them to twenty years ’ and eleven years ’ imprisonment respectively:",
"R. MAMATKULOV",
"(a) Eighteen years ’ imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely:",
"(i) murder of two or more people;",
"(ii) murder of a person on official duty or of a close relative of such a person;",
"(iii) use of means endangering the lives of others;",
"(iv) use of cruel means;",
"(v) offence committed in the defendant ’ s own interests;",
"(vi) offence committed on the basis of religious beliefs;",
"(vii) offence committed with the aim of concealing another offence or of facilitating its commission;",
"(viii) offence committed by a group of people or a criminal organisation in the interests of that organisation;",
"(ix) repeat offence);",
"(b) Eighteen years ’ imprisonment pursuant to Article 155 § 3 (a) and (b) of the Criminal Code (terrorist offence);",
"(c) Ten years ’ imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);",
"(d) Eighteen years ’ imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan);",
"(e) Eighteen years ’ imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan);",
"(f) Fifteen years ’ imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);",
"(g) Twelve years ’ imprisonment pursuant to Article 168 § 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception by or in the interests of a group of individuals);",
"(h) Ten years ’ imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation);",
"(i) Two years ’ community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);",
"(j) Eighteen years ’ imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).",
"Is sentenced to twenty years ’ imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in strict-regime penal institutions.",
"R. Mamatkulov is currently serving his sentence in Zarafshan Prison, which is under the authority of the Office of Internal Affairs of the province of Navoi. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the Amnesty Decree of 22 August 2001.",
"Z. Abdurasulovich ASKAROV",
"(a) Ten years ’ imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely:",
"(i) murder of two or more people;",
"(ii) murder of a person on official duty or of a close relative of such a person;",
"(iii) use of means endangering the lives of others;",
"(iv) use of cruel means;",
"(v) offence committed in the defendant ’ s own interests;",
"(vi) offence committed on the basis of religious beliefs;",
"(vii) offence committed with the aim of concealing another offence or of facilitating its commission;",
"(viii) offence committed by a group of people or a criminal organisation in the interests of that organisation;",
"(ix) repeat offence);",
"(b) Ten years ’ imprisonment pursuant to Article 155 § 2 (a) and (b) of the Criminal Code (terrorist offence, causing another ’ s death);",
"(c) Ten years ’ imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion);",
"(d) Nine years ’ imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan);",
"(e) Nine years ’ imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan);",
"(f) Nine years ’ imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples ’ health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability);",
"(g) Nine years ’ imprisonment pursuant to Article 173 § 3 (b) (destruction of, or intentional damage to, property belonging to others by or in the interests of a group of individuals);",
"(h) Ten years ’ imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation);",
"(i) Two years ’ community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper);",
"(j) Ten years ’ imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang).",
"Is sentenced to eleven years ’ imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in strict-regime penal institutions.",
"Z. Askarov is currently serving his sentence in Şayhali Prison, which is under the authority of the Office of Internal Affairs of the province of Kashkadarya. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the Amnesty Decree of 22 August 2001.”",
"33. At the hearing on 23 October 2001, the Government informed the Court that on 19 October 2001 two officials from the Turkish embassy in Tashkent had visited the applicants in Zarafshan Prison and Şayhali Prison, which are respectively 750 and 560 kilometres from Tashkent. According to the embassy officials, the applicants were in good health and had not complained about their prison conditions.",
"34. On 3 December 2001 the Uzbek authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held. The doctors made the following findings:",
"“... Mr Mamatkulov was imprisoned on 9 December 2000. He did not present any health problems on arrival. Examinations on 14 December 2000 and 2 April 2001 did not reveal any pathological symptoms.",
"On 19 November 2001 the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing. ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ...”",
"“... Mr Abdurasulovich Askarov was imprisoned on 21 July 2001. He did not complain of any health problems on arrival. Examinations conducted on 25 July, 30 August and 23 October 2001 did not reveal any pathological symptoms ...”",
"35. On the basis of lists that had been communicated by the Uzbek authorities, the Government informed the Court on 16 April 2004 that the applicants had received a number of visits from close relatives between January 2002 and 2004.",
"36. To date, the applicants ’ representatives have been unable to contact the applicants.",
"IV. BRIEFING AND REPORT OF AMNESTY INTERNATIONAL ON UZBEKISTAN",
"54. As regards the situation in Uzbekistan at the material time, Amnesty International stated in a briefing for the United Nations Committee against Torture that was made public in October 1999:",
"“... Amnesty International remains concerned that Uzbekistan has failed to implement its treaty obligations fully despite numerous, wide-ranging and officially endorsed national initiatives in the fields of human rights education and democratisation and judicial and legislative reforms aimed at bringing national legislation into line with international standards.",
"Since December 1997, when several murders of law enforcement officials in the Namangan region sparked a wave of mass detentions and arrests, the organisation has received a growing number of reports of ill-treatment and torture by law enforcement officials of people perceived to be members of independent Islamic congregations or followers of independent imams (Islamic leaders). Hundreds of these so-called ‘ Wahhabists ’ were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards. The organisation ’ s concern was heightened in February 1999 when hundreds of people, men and women, were detained following a reported six bomb explosions in the capital Tashkent. This time the list of those reported to have been arrested, ill-treated and tortured included suspected supporters of the banned political opposition parties and movements Erk [Freedom] and Birlik [Unity], including family members and independent human rights monitors, as well as alleged supporters of banned Islamic opposition parties and movements, such as Hizb-ut-Tahrir [Liberation Party]. In the majority of these cases, if not all, that have come to the attention of Amnesty International, those detained were denied prompt access to a lawyer of their choice, to their families and to medical assistance. The responsible authorities, from procurators to courts at all levels and the parliamentary ombudsman, persistently failed to launch timely, full and independent investigations into widespread allegations of torture and ill-treatment. According to independent and credible sources, self-incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by Amnesty International as the basis for a guilty verdict. Amnesty International was disturbed by public statements by Uzbek officials, including the President of Uzbekistan, in the wake of both the Namangan murders and the Tashkent bombings, which, if not directly sanctioning the use of violence by State agents against certain sections of the population, could be perceived at the very least to condone the use of unlawful methods such as torture and ill-treatment. In April 1999, for example, President Karimov, portrayed as the guarantor of democracy and human rights, stated publicly that he was prepared to tear off the heads of two hundred people in order to protect Uzbekistan ’ s freedom and stability ... Amnesty International is concerned that such statements together with the authorities ’ persistent failure to initiate impartial and thorough investigations into allegations of torture and ill-treatment, may create an impression that torture and ill-treatment by law enforcement officials is acceptable, and even necessary conduct, and that they can engage in such conduct with impunity.",
"This briefing does not attempt to be a comprehensive study of torture and ill-treatment in Uzbekistan. Instead it concentrates on those Articles of the Convention which are most relevant to Amnesty International ’ s current and most pressing concerns.",
"Failure to ensure that all acts of torture are offences under the criminal law (Article 4)",
"Uzbekistan fails to fully meet the requirements under Article 4 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature.",
"Neither the Constitution nor the Criminal Code, although respectively prohibiting and punishing acts of torture, contain a definition of torture as set out in Article 1 of the Convention. ...",
"Article 235 of the [Uzbek] Criminal Code criminalises obtaining a confession by coercion. Although explicit in its description of prohibited methods of coercion (beatings, inflicting grievous or less grievous bodily harm, torture) and specific in naming the perpetrators (investigating and interrogating officers, procurators) the Article is still far more narrow in its definition of torture than Article 1 of the Convention. The maximum penalty prescribed under this Article is five to eight years ’ imprisonment.",
"Other Articles, including Article 110 of the Uzbek Criminal Code, punish various assaults but do not relate specifically to agents of the State ... The Uzbek press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects. However, to Amnesty International ’ s knowledge, in the period under review, none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organisation has taken up has been charged under the above Articles of the Criminal Code ...",
"Time and again Amnesty International has received credible reports that suspects were denied access to a lawyer of their choice. Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for several days, which is when the risk of torture or ill-treatment is the greatest. In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession. Meetings between lawyers and clients, when they are granted, are generally infrequent, because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain. Defence lawyers are rarely allowed to be present at all stages of the investigation ...",
"Article 17 of the Code of Criminal Procedure explicitly prohibits the use of torture and obliges judges, procurators, investigators and interrogators to respect a person ’ s honour and dignity at every stage of legal proceedings. Nevertheless, Amnesty International has received countless reports from different sources – former prisoners, relatives of prisoners, defence lawyers, human rights monitors, international human rights organisations, diplomats, copies of court documents – that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel, inhuman or degrading treatment.",
"...",
"Prison conditions",
"Conditions under which detainees are held pre-trial are reportedly so poor as to amount to cruel, inhuman and degrading treatment. In 1997 the Uzbek authorities admitted that conditions of detention fall far short of the UN basic minimum standards for the treatment of prisoners. Overcrowding is the norm, with at least two inmates to a bunk bed, sleeping in turns. Inadequate sanitation, shortages of food and basic medication exacerbate the risk of disease, such as tuberculosis. Former prisoners have described punishment cells as underground ‘ holes ’, one square metre with standing room only near the door. The rest of the cell is said to be only 1.5 metres in height, allowing the prisoner only to crouch or sit. Cells are also said to be overrun with vermin. As with the conditions on death row, these allegations are difficult to verify independently given the Uzbek authorities ’ refusal to allow access to independent monitors.”",
"55. In its annual report of 28 May 2002, Amnesty International noted with respect to the Republic of Uzbekistan:",
"“Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, such as Hizb-ut-Tahrir, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-State activities. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, particularly prison camps. Several prisoners, among them a prominent human rights defender, died in custody, allegedly as a result of torture. There were at least 22 death sentences, reportedly imposed after unfair trials, and at least four executions were carried out.",
"...",
"In November Muhammad Salih, the exiled leader of the banned opposition democratic party Erk, was detained by Czech police at Prague Airport, Czech Republic. He was remanded in custody while an extradition request from Uzbekistan was being examined. In December he was released and returned to Norway, where he had received refugee status in 1999, after Prague City Court ruled against extradition to Uzbekistan.",
"In September President Karimov publicly stated that around 100 people were executed each year. In October the number of offences punishable by death was reduced to four.",
"Allegations of torture and ill-treatment",
"...",
"Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, especially in strict regime prison camps...",
"In June [2001], 73 ethnic Tajik mountain villagers were found guilty of collaborating with the IMU during their incursion into Uzbekistan in August 2000 and sentenced to between three and 18 years ’ imprisonment in four separate closed trials. This was despite earlier government assurances to the UN Human Rights Committee that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers. The group trials, which opened simultaneously and without prior notice at the end of May in Tashkent, were held in separate court buildings cordoned off by armed police. Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city.",
"Only one foreign observer, representing the non-governmental organisation Human Rights Watch, obtained access to one of the trials. All others, including foreign diplomats, local human rights monitors and the media, were barred.",
"According to the Human Rights Watch observer, the prosecution failed to provide any substantive evidence to prove the defendants ’ guilt. All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice. In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges. They alleged that they had been forced to memorise and recite prepared confessions on film. Some of the men showed the court marks on their bodies allegedly caused by torture. The court, however, failed to take any of these allegations into consideration. ...”"
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Criminal law",
"37. Article 9 of the Criminal Code provides:",
"“The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto.",
"When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person ’ s nationality and the nature of the offence.",
"No request for extradition may be granted if the criminal court finds that the person concerned is a Turkish national or that the offence is political or military in nature or related to such an offence.",
"If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence, the request for extradition may be granted by the Government. ...”",
"B. Extradition",
"38. Extradition between Turkey and Uzbekistan is governed by the Agreement for Mutual Assistance in Civil, Commercial and Criminal Matters between the Republic of Turkey and the Republic of Uzbekistan, which came into force on 18 December 1997. Under the relevant provision of that agreement, “Each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions set out in this agreement, anyone found in its territory who has been charged with or found guilty of an offence committed within the jurisdiction of the other Party”.",
"III. RELEVANT INTERNATIONAL LAW AND PRACTICE",
"A. The Vienna Convention of 1969 on the Law of Treaties",
"39. Article 31 of the Vienna Convention of 1969, which is headed “General rule of interpretation”, provides:",
"“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.",
"2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:",
"(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;",
"(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.",
"3. There shall be taken into account, together with the context:",
"(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;",
"(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;",
"(c) any relevant rules of international law applicable in the relations between the parties.",
"4. A special meaning shall be given to a term if it is established that the parties so intended.”",
"B. Universal systems of human rights protection",
"1. The United Nations Human Rights Committee",
"40. Rule 86 of the Rules of Procedure of the United Nations Human Rights Committee provides:",
"“The Committee may, prior to forwarding its views on the communication to the State Party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State Party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.”",
"41. In its decision of 26 July 1994 (in Glen Ashby v. Trinidad and Tobago ), the Committee dealt with the first case of a refusal by a State to comply with interim measures in the form of a request that it stay execution of the death penalty. It pointed out that by ratifying the Optional Protocol, the State Party had undertaken to cooperate with the Committee in proceedings under the Protocol, and that it had not discharged its obligations under the Optional Protocol and the Covenant (Report of the Human Rights Committee, volume I).",
"42. In its decision of 19 October 2000 (in Dante Piandiong, Jesus Morallos and Archie Bulan v. the Philippines ), the Committee stated:",
"“By adhering to the Optional Protocol, a State Party to the Covenant recognises the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State ’ s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State Party and to the individual (Article 5 §§ 1 and 4). It is incompatible with these obligations for a State Party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.",
"Quite apart, then, from any violation of the Covenant charged to a State Party in a communication, a State Party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile. ...",
"...",
"Interim measures pursuant to Rule 86 of the Committee ’ s rules adopted in conformity with Article 39 of the Covenant, are essential to the Committee ’ s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.”",
"The Committee reiterated this principle in its decision of 15 May 2003 (in Sholam Weiss v. Austria ).",
"2. The United Nations Committee against Torture",
"43. Rule 108 § 9 of the Rules of Procedure of the Committee against Torture enables provisional measures to be adopted in proceedings brought by individuals alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It reads as follows:",
"“In the course of the consideration of the question of the admissibility of a communication, the Committee or the working group or a special rapporteur designated under Rule 106, paragraph 3, may request the State Party to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. Such a request addressed to the State Party does not imply that any decision has been reached on the question of the admissibility of the communication.”",
"44. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that a stay of her extradition had been called for as a provisional measure (see Cecilia Rosana Núñez Chipana v. Venezuela, decision of 10 November 1998), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted the following:",
"“... the State Party, in ratifying the Convention and voluntarily accepting the Committee ’ s competence under Article 22, undertook to cooperate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.”",
"45. In another decision that concerned the extradition to India of an Indian national resident in Canada (see T.P.S. v. Canada, decision of 16 May 2000) despite the fact that Canada had been requested to stay the extradition as a provisional measure, the Committee against Torture reiterated that failure to comply with the requested provisional measures “... could ... nullify the end result of the proceedings before the Committee”.",
"C. The International Court of Justice (ICJ)",
"46. Article 41 of the Statute of the ICJ provides:",
"“1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.",
"2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.”",
"47. The ICJ has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute (see, among other authorities, the judgment of 27 June 1986 in Nicaragua v. the United States of America ). In an order of 13 September 1993 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the ICJ stated that the power of the court to indicate provisional measures",
"“... has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and ... the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent”.",
"48. In its judgment of 27 June 2001 in LaGrand (Germany v. the United States of America), it noted:",
"“102. ... The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.",
"103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognised by the Permanent Court of International Justice when it spoke of ‘ the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute ’ ( Electricity Company of Sofia and Bulgaria, Order of 5 December 1939 ...).”",
"This approach was subsequently confirmed in the court ’ s judgment of 31 March 2004 in Avena and other Mexican nationals (Mexico v. the United States of America).",
"D. The Inter-American system of human rights protection",
"1. The Inter-American Commission on Human Rights",
"49. Rule 25 of the Rules of Procedure of the Inter-American Commission on Human Rights provides:",
"“1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.",
"2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-Presidents shall take the decision on behalf of the Commission and shall so inform its members.",
"3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.",
"4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.”",
"50. The scope of the precautionary measures is determined by reference to the scope of the recommendations made by the Commission in respect of the individual petition. In its judgment of 17 September 1997 in Loayza Tamayo v. Peru, the Inter-American Court of Human Rights ruled that the State “has the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal organs of the Organisation of American States, whose function is ‘ to promote the observance and defence of human rights ’ ...”.",
"2. The Inter-American Court of Human Rights",
"51. Article 63 § 2 of the American Convention on Human Rights states:",
"“In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.”",
"52. Rule 25 of the Rules of Procedure of the Inter-American Court of Human Rights provides:",
"“1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63 § 2 of the Convention.",
"2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission.",
"3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President ’ s attention.",
"4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session.",
"5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures.",
"6. In its Annual Report to the General Assembly, the Court shall include a statement concerning the provisional measures ordered during the period covered by the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate.”",
"53. The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits (see, among other authorities, the following orders: 1 August 1991, Chunimá v. Guatemala; 2 July and 13 September 1996, 11 November 1997 and 3 February 2001, Loayza Tamayo v. Peru; 25 May and 25 September 1999, 16 August and 24 November 2000, and 3 September 2002, James et al. v. Trinidad and Tobago; 7 and 18 August 2000, and 26 May 2001, Haitians and Dominican nationals of Haitian origin in the Dominican Republic v. the Dominican Republic; 10 August and 12 November 2000, and 30 May 2001, Alvarez et al. v. Colombia; see also the judgment of 21 June 2002, Hilaire, Constantine, Benjamin et al. v. Trinidad and Tobago ).",
"In two orders requiring provisional measures, the Inter-American Court of Human Rights ruled that the States Parties to the American Convention on Human Rights “must fully comply in good faith ( pacta sunt servanda ) with all of the provisions of the Convention, including those relative to the operation of the two supervisory organs of the American Convention [the Court and the Commission]; and that, in view of the Convention ’ s fundamental objective of guaranteeing the effective protection of human rights (Articles 1 § 1, 2, 51 and 63 § 2), States Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the orders of 25 May and 25 September 1999 in James et al. v. Trinidad and Tobago ).",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION",
"56. The applicants alleged that their extradition to the Republic of Uzbekistan had breached Articles 2 and 3 of the Convention, which provide:",
"Article 2",
"“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.",
"2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:",
"(a) in defence of any person from unlawful violence;",
"(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;",
"(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”",
"Article 3",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"In view of the facts of the case, the Court will first examine this complaint under Article 3.",
"A. The Chamber judgment",
"57. The Chamber found that the reason it had not been possible for any conclusive findings of fact to be made was that the applicants had been denied an opportunity to have additional inquiries made in order to obtain evidence in support of their allegations under Article 3 of the Convention. It considered that there was insufficient evidence before it to conclude that there had been a violation of that provision (see paragraphs 74 and 77 of the Chamber judgment).",
"B. The parties ’ submissions",
"1. The applicants",
"58. The lawyers representing the applicants said that at the time of the latter ’ s extradition there were substantial grounds for believing that their return to Uzbekistan would result in their being subjected to treatment proscribed by Article 3. In that connection, they denounced the poor conditions and use of torture in Uzbek prisons.",
"59. In support of their allegations, they referred to reports by “international investigative bodies” in the human rights field denouncing both an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek regime ’ s repressive policy towards dissidents.",
"60. They stated that the applicants had denied the charges in the extradition proceedings in Turkey and adduced relevant evidence in their defence. Accordingly, the fact that the applicants, who were denied the right to legal assistance from a lawyer of their choosing, had fully admitted the same charges to the Uzbek authorities showed that they had been forced through torture and ill-treatment to “confess” to crimes they had not committed.",
"2. The Government",
"61. The Government maintained that in extradition proceedings Article 3 should only apply in cases in which it was certain that the prohibited treatment or punishment would be inflicted in the requesting State and in which the person concerned had produced strong evidence that substantial grounds existed for believing that he or she faced torture or ill-treatment.",
"62. The Government observed that the applicants had been extradited after assurances had been obtained from the Uzbek authorities. Those assurances included an undertaking not to impose the death penalty and to ensure that the applicants would not be subjected to torture or ill-treatment or be liable to confiscation of their property generally. The Uzbek authorities had given an assurance that the Republic of Uzbekistan, which was a party to the United Nations Convention against Torture, accepted and reaffirmed its obligation to comply with the requirements of that convention both as regards Turkey and the international community as a whole. Furthermore, the reports of the human rights organisations did not contain any information to support the allegations of treatment contrary to Article 3.",
"63. The Government noted that the applicants, who had been charged with acts of terrorism, had been sentenced by the Uzbekistan Supreme Court to twenty and eleven years ’ imprisonment respectively and that their trial had been attended by some eighty people, including officials from the Turkish and other embassies and representatives of Helsinki Watch. They added that the applicants had been visited in prison in Uzbekistan by two officials from the Turkish embassy whom they had informed that they had not been subjected to ill-treatment either before or after their trial.",
"64. The Government argued that Article 3 was not to be construed in a way that would engage the extraditing State ’ s responsibility indefinitely. The State ’ s responsibility should end once the extradited person had been found guilty and had started to serve his or her sentence. It would be straining the language of Article 3 intolerably to hold that by surrendering a suspect in accordance with the terms of an extradition agreement, the extraditing State had subjected him to the treatment or punishment he received after his conviction and sentence in the receiving State. Such a decision would interfere with rights under international treaties and conflict with the norms of international judicial process, as it would entail adjudication on the internal affairs of foreign States that were not Parties to the Convention. There was a risk that it would cause serious harm to the Contracting State by restricting its ability to cooperate in the fight against international terrorism and organised crime.",
"3. Third-party interveners",
"65. Human Rights Watch and the AIRE Centre referred to the repression of independent Muslims in Uzbekistan at the material time; in particular, they said that close relatives of the applicants ’ co-accused had been subjected to torture and political prisoners had died as a result of ill-treatment received in Uzbek prisons. Furthermore, in view of the political situation obtaining in Uzbekistan and the lack of effective judicial supervision of the security forces, the assurances that had been obtained from the Uzbek government did not constitute a sufficient guarantee for the applicants.",
"C. The Court ’ s assessment",
"1. The relevant principles",
"66. The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. The right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102).",
"67. It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 89-91).",
"68. It would hardly be compatible with the “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see Soering, cited above, pp. 34-35, § 88).",
"69. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. Since the nature of the Contracting States ’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition; the Court is not precluded, however, from having regard to information which comes to light subsequent to the extradition. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party of the well-foundedness or otherwise of an applicant ’ s fears (see Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A no. 201, pp. 29-30, §§ 75-76, and Vilvarajah and Others, cited above, p. 36, § 107).",
"However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1856, §§ 85-86).",
"This situation typically arises when deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court. Such an indication means more often than not that the Court does not yet have before it all the relevant evidence it requires to determine whether there is a real risk of treatment proscribed by Article 3 in the country of destination.",
"70. Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (see Vilvarajah and Others, cited above, p. 36, § 107).",
"Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30).",
"2. Application of the above principles to the present case",
"71. For an issue to be raised under Article 3, it must be established that at the time of their extradition there existed a real risk that the applicants would be subjected in Uzbekistan to treatment proscribed by Article 3.",
"72. The Court has noted the applicants ’ representatives ’ observations on the information in the reports of international human rights organisations denouncing an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek regime ’ s repressive policy towards such dissidents. It notes that Amnesty International stated in its report for 2001: “Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements ... continued ...” (see paragraph 55 above).",
"73. However, although these findings describe the general situation in Uzbekistan, they do not support the specific allegations made by the applicants in the instant case and require corroboration by other evidence.",
"74. The applicants were extradited to Uzbekistan on 27 March 1999, despite the interim measure that had been indicated by the Court under Rule 39 (see paragraphs 24-27 above). It is, therefore, that date that must be taken into consideration when assessing whether there was a real risk of their being subjected in Uzbekistan to treatment proscribed by Article 3.",
"75. By applying Rule 39, the Court indicated that it was not able on the basis of the information then available to make a final decision on the existence of a real risk. Had Turkey complied with the measure indicated under Rule 39, the relevant date would have been the date of the Court ’ s consideration of the case in the light of the evidence that had been adduced (see paragraph 69 above and Chahal, cited above, p. 1856, §§ 85-86). Turkey ’ s failure to comply with the indication given by the Court has prevented the Court from following its normal procedure. Nevertheless, the Court cannot speculate as to what the outcome of the case would have been had the extradition been deferred as it had requested. For this reason, it will have to assess Turkey ’ s responsibility under Article 3 by reference to the situation that obtained on 27 March 1999.",
"76. The Court notes that the Government have contended that the applicants were extradited after an assurance had been obtained from the Uzbek government. The terms of the document indicate that the assurance that “[t]he applicants ’ property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment” was given by the Public Prosecutor of the Republic of Uzbekistan, who added: “The Republic of Uzbekistan is a party to the United Nations Convention against Torture and accepts and reaffirms its obligation to comply with the requirements of the provisions of that Convention as regards both Turkey and the international community as a whole”. The Government also produced medical reports from the doctors of the Uzbek prisons in which Mr Mamatkulov and Mr Askarov are being held (see paragraphs 28 and 34 above).",
"77. In the light of the material before it, the Court is not able to conclude that substantial grounds existed at the aforementioned date for believing that the applicants faced a real risk of treatment proscribed by Article 3. Turkey ’ s failure to comply with the indication given under Rule 39, which prevented the Court from assessing whether a real risk existed in the manner it considered appropriate in the circumstances of the case, must be examined below under Article 34.",
"Consequently, no violation of Article 3 of the Convention can be found.",
"78. Having considered the applicants ’ allegations under Article 3 (see paragraphs 71-77 above), the Court finds that it is not necessary to examine them separately under Article 2.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"79. The applicants complained of the unfairness of the extradition proceedings in Turkey and the criminal proceedings in Uzbekistan. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”",
"A. The Chamber judgment",
"80. The Chamber found that Article 6 § 1 was not applicable to the extradition proceedings in Turkey (see paragraphs 80-81 of the Chamber judgment). As to the criminal proceedings in Uzbekistan, it found that the evidence produced to it did not establish that the applicants had been denied a fair trial and that no separate question arose under Article 6 § 1 on this point (see paragraph 87 of the Chamber judgment).",
"B. The extradition proceedings in Turkey",
"81. The applicants alleged that they had not had a fair hearing in the criminal court that had ruled on the request for their extradition, in that they had been unable to gain access to all the material in the case file or to put forward their arguments concerning the characterisation of the offences they were alleged to have committed.",
"82. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X; Penafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; and Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I).",
"83. Consequently, Article 6 § 1 of the Convention is not applicable in the instant case.",
"C. The criminal proceedings in Uzbekistan",
"84. The applicants submitted that they had no prospect of receiving a fair trial in their country of origin and faced a real risk of being sentenced to death and executed. They argued in that connection that the Uzbek judicial authorities were not independent of the executive.",
"85. The applicants ’ representatives alleged that the applicants had been held incommunicado until the start of their trial and had not been permitted representation by a lawyer of their choosing. They said that the depositions on which the finding of guilt had been based had been extracted under torture.",
"86. The Government maintained that the applicants ’ extradition could not engage the State ’ s responsibility under Article 6 § 1 of the Convention.",
"87. Two of the intervening parties, Human Rights Watch and the AIRE Centre, pointed out that the applicants had been held incommunicado until their trial started and that, as they had been assigned lawyers by the prosecutor in charge of the investigation, they had not been able to obtain representation by a lawyer of their choosing.",
"88. The Court observes that in Soering (cited above, p. 45, § 113), it held:",
"“The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society ... The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial ...”",
"89. The Court notes that in the instant case the applicants were handed over to the Uzbek authorities on 27 March 1999. On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found Mr Mamatkulov and Mr Askarov guilty of various offences and sentenced them to twenty and eleven years ’ imprisonment respectively (see paragraph 32 above).",
"90. The Court considers that, like the risk of treatment proscribed by Article 2 and/or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned. When extradition is deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice must also be assessed in the light of the information available to the Court when it considers the case (see, mutatis mutandis, paragraphs 75-77 above).",
"91. The applicants were extradited to Uzbekistan on 27 March 1999. Although, in the light of the information available, there may have been reasons for doubting at the time that they would receive a fair trial in the State of destination, there is not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of paragraph 113 of Soering, cited above. Turkey ’ s failure to comply with the indication given by the Court under Rule 39 of the Rules of Court, which prevented the Court from obtaining additional information to assist it in its assessment of whether there was a real risk of a flagrant denial of justice, will be examined below with respect to Article 34.",
"Consequently, no violation of Article 6 § 1 of the Convention can be found.",
"III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"92. The applicants ’ representatives maintained that, by extraditing Mr Mamatkulov and Mr Askarov despite the measure indicated by the Court under Rule 39 of the Rules of Court, Turkey had failed to comply with its obligations under Article 34 of the Convention.",
"Article 34 of the Convention provides:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"Rule 39 of the Rules of Court provides:",
"“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.",
"2. Notice of these measures shall be given to the Committee of Ministers.",
"3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”",
"A. The Chamber judgment",
"93. In its judgment of 6 February 2003, the Chamber found as follows:",
"“110. ... any State Party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgment.",
"111. Consequently, by failing to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.”",
"B. The parties ’ submissions",
"1. The applicants",
"94. The applicants ’ representatives stated that, despite requests to the authorities, they had been unable to contact their clients following the latter ’ s extradition. The applicants had consequently been deprived of the possibility of having further inquiries made in order to obtain evidence in support of their allegations under Article 3. The applicants ’ extradition had thus proved a real obstacle to the effective presentation of their application to the Court.",
"2. The Government",
"95. The Government submitted that no separate issue arose under Article 34 of the Convention, as the complaint under that provision was the same as the one that the applicants had raised under Article 3 of the Convention, which the Government said was unfounded.",
"96. As regards the effects of the interim measures the Court had indicated in the instant case under Rule 39, the Government referred to Cruz Varas and Others, cited above, as authority for the proposition that the Contracting States had no legal obligation to comply with such indications.",
"97. In the Government ’ s submission, it was clear from the very terms of the letter indicating the interim measure in the instant case that the measure was not intended to be binding. International courts operated within the scope of the powers conferred upon them by international treaties. If the treaty did not grant them power to order binding interim measures, then no such power existed.",
"3. Third-party intervener",
"98. The International Commission of Jurists submitted that in the light of the general principles of international law, the law of treaties and international case-law, interim measures indicated under Rule 39 of the Rules of Court were binding on the State concerned.",
"C. The Court ’ s assessment",
"99. The fact that the Government failed to comply with the measures indicated by the Court under Rule 39 of the Rules of Court raises the issue of whether the respondent State is in breach of its undertaking under Article 34 of the Convention not to hinder the applicants in the exercise of their right of individual application.",
"1. General considerations",
"(a) Exercise of the right of individual application",
"100. The Court has previously stated that the provision concerning the right of individual application (Article 34, formerly Article 25 of the Convention before Protocol No. 11 came into force) is one of the fundamental guarantees of the effectiveness of the Convention system of human rights protection. In interpreting such a key provision, the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘ collective enforcement ’ (see, mutatis mutandis, Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 26, § 70).",
"101. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective, as part of the system of individual applications. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society” (see Soering, cited above, p. 34, § 87, and, mutatis mutandis, Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, p. 18, § 34).",
"102. The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual ’ s right to present and pursue his complaint before the Court effectively. That issue has been considered by the Court in previous decisions. It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. As the Court has noted in previous decisions, “pressure” includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among other authorities, Petra v. Romania, judgment of 23 September 1998, Reports 1998-VII, pp. 2854-55, § 43; Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1219, § 105). For present purposes, the Court concludes that the obligation set out in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure.",
"(b) Indication of interim measures under the Convention system",
"103. Rule 39 of the Rules of Court empowers a Chamber or, where appropriate, its President, to indicate interim measures. The grounds on which Rule 39 may be applied are not set out in the Rules of Court but have been determined by the Court through its case-law. As was the practice of the European Commission of Human Rights prior to the entry into force of Protocol No. 11 to the Convention in 1998, the Court applies Rule 39 only in restricted circumstances.",
"104. Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.",
"105. In most cases, measures are indicated to the respondent Government, although there is nothing to stop the Court from indicating measures to applicants (see, among other authorities, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 11, ECHR 2004-VII). Cases of States failing to comply with indicated measures remain very rare.",
"106. Rule 36 of the Rules of Procedure of the European Commission of Human Rights, which came into force on 13 December 1974, provided:",
"“The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.”",
"Even before the provisions regulating the question of interim measures came into force, the Commission had not hesitated to ask respondent Governments for a stay of execution of measures liable to make the application pending before it devoid of purpose. The Commission adopted that practice very early on, particularly in extradition and deportation cases, and the States concerned proved very cooperative (see, inter alia : Greece v. the United Kingdom, no. 176/56, Commission ’ s report of 26 September 1958, unpublished; X v. the Federal Republic of Germany, no. 2396/65, Commission ’ s report of 19 December 1969, Yearbook 13; Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission ’ s report of 5 November 1969, Yearbook 12; Denmark, Norway and Sweden v. Greece, no. 4448/70, Commission ’ s report of 4 October 1976, Decisions and Reports (DR) 6; and E.R. v. the Federal Republic of Germany, no. 5207/71, Commission decision of 13 December 1971, Collection of Decisions 39).",
"In Brückmann v. the Federal Republic of Germany (no. 6242/73, Commission ’ s report of 14 July 1976, DR 6), the respondent State even stayed the execution of a domestic measure of its own motion while the case was pending before the Commission.",
"107. Rule 36 of the Rules of the former Court, which came into force on 1 January 1983, provided:",
"“1. Before the constitution of a Chamber, the President of the Court may, at the request of a Party, of the Commission, of the applicant or of any other person concerned, or proprio motu, indicate to any Party and, where appropriate, the applicant, any interim measure which it is advisable for them to adopt. The Chamber when constituted or, if the Chamber is not in session, its President shall have the same power.",
"...”",
"The most noteworthy case concerning the indication of interim measures by the former Court is Soering, cited above, in which the Court indicated to the British Government under Rule 36 of its Rules that it would be undesirable to extradite the applicant to the United States while the proceedings were pending in Strasbourg. In order to abide by the Convention and the Court ’ s decision, the British Government were forced to default on their undertaking to the United States (p. 17, § 31, and pp. 44-45, § 111). Thus, the judgment resolved the conflict in this case between a State Party ’ s Convention obligations and its obligations under an extradition treaty with a third-party State by giving precedence to the former.",
"2. Did the applicants ’ extradition hinder the effective exercise of the right of application?",
"108. In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court ’ s determination of the justification for the measure. As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint. As far as the applicant is concerned, the result that he or she wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it. Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the “effective exercise” of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State.",
"In the present case, because of the extradition of the applicants to Uzbekistan, the level of protection which the Court was able to afford the rights which they were asserting under Articles 2 and 3 of the Convention was irreversibly reduced.",
"In addition, the Court considers that it is implicit in the notion of the effective exercise of the right of application that for the duration of the proceedings in Strasbourg the Court should remain able to examine the application under its normal procedure. In the present case, the applicants were extradited and thus, by reason of their having lost contact with their lawyers, denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained. As a consequence, the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment and, if so, from ensuring in this respect a “practical and effective” implementation of the Convention ’ s safeguards, as required by its object and purpose (see paragraph 101 above).",
"109. The Court has previously considered whether, in the absence of an express clause in the Convention, its organs could derive from Article 34 (former Article 25), taken alone or in conjunction with Rule 39 (former Rule 36), or from any other source, the power to order interim measures that were binding (see Cruz Varas and Others, cited above, and Čonka v. Belgium (dec.), no. 51564/99, 13 March 2001). In those cases it concluded that such a power could not be inferred from either Article 34, in fine, or from other sources (see Cruz Varas and Others, pp. 36-37, §§ 102-03).",
"110. In examining the present case, the Court will also have regard to general principles of international law and the view expressed on this subject by other international bodies since Cruz Varas and Others.",
"111. The Court reiterates in that connection that the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which states that account must be taken of “any relevant rules of international law applicable in the relations between the parties”. The Court must determine the responsibility of the States in accordance with the principles of international law governing this sphere, while taking into account the special nature of the Convention as an instrument of human rights protection (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 14, § 29). Thus, the Convention must be interpreted so far as possible consistently with the other principles of international law of which it forms a part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 60, ECHR 2001-XI).",
"112. Different rules apply to interim, provisional or precautionary measures, depending on whether the complaint is made under the individual petition procedures of the United Nations organs, or the Inter-American Court and Commission, or under the procedure for the judicial settlement of disputes of the ICJ. In some instances provision is made for such measures in the treaty itself and in others in the rules of procedure (see paragraphs 40, 43, 46, 49, 51 and 52 above).",
"113. In a number of recent decisions and orders, international courts and institutions have stressed the importance and purpose of interim measures and pointed out that compliance with such measures was necessary to ensure the effectiveness of their decisions on the merits. In proceedings concerning international disputes, the purpose of interim measures is to preserve the parties ’ rights, thus enabling the body hearing the dispute to give effect to the consequences which a finding of responsibility following adversarial process will entail.",
"114. Thus, under the jurisprudence of the Human Rights Committee of the United Nations, a failure to comply with interim measures constitutes a breach by the State concerned of its legal obligations under the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and of its duty to cooperate with the Committee under the individual communications procedure (see paragraphs 41 and 42 above).",
"115. The United Nations Committee against Torture has considered the issue of a State Party ’ s failure to comply with interim measures on a number of occasions. It has ruled that compliance with interim measures which the Committee considered reasonable was essential in order to protect the person in question from irreparable harm, which could nullify the end result of the proceedings before the Committee (see paragraphs 44 and 45 above).",
"116. In various orders concerning provisional measures, the Inter-American Court of Human Rights has stated that in view of the fundamental objective of the American Convention on Human Rights, namely guaranteeing the effective protection of human rights, “States Parties [had to] refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the orders of 25 May and 25 September 1999 in James et al. v. Trinidad and Tobago ).",
"117. In its judgment of 27 June 2001 in LaGrand (Germany v. the United States of America), the ICJ stated: “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The [purpose of] Article 41 ... is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.”",
"Furthermore, in that judgment, the ICJ brought to an end the debate over the strictly linguistic interpretation of the words “power to indicate” (“ pouvoir d ’ indiquer ” in the French text) in the first paragraph of Article 41 and “suggested” (“ indication ” in the French text) in the second paragraph. Referring to Article 31 of the Vienna Convention on the Law of Treaties, which provides that treaties shall be interpreted in the light of their object and purpose, it held that provisional measures were legally binding. This approach was subsequently confirmed in the court ’ s judgment of 31 March 2004 in Avena and other Mexican nationals (Mexico v. the United States of America) (see paragraph 48 above).",
"118. The Court observes that in Cruz Varas and Others (cited above) it determined the question whether the European Commission of Human Rights had power under former Article 25 § 1 of the Convention (now Article 34) to order interim measures that are binding. It noted that that Article applied only to proceedings brought before the Commission and imposed an obligation not to interfere with the right of the individual to present his or her complaint to the Commission and to pursue it. It added that Article 25 conferred upon an applicant a right of a procedural nature distinguishable from the substantive rights set out in Section I of the Convention or the Protocols to the Convention. The Court thus confined itself to examining the Commission ’ s power to order interim measures, not its own. It considered the indication that had been given in the light of the nature of the proceedings before the Commission and of the Commission ’ s role and concluded: “Where the State has had its attention drawn in this way to the dangers of prejudicing the outcome of the issue then pending before the Commission any subsequent breach of Article 3 ... would have to be seen as aggravated by the failure to comply with the indication” ( Cruz Varas and Others, cited above, pp. 36-37, § 103).",
"119. The Court emphasises in that connection that, unlike the Court and the Committee of Ministers, the Commission had no power to issue a binding decision that a Contracting State had violated the Convention. The Commission ’ s task with regard to the merits was of a preliminary nature and its opinion on whether or not there had been a violation of the Convention was not binding.",
"120. In Čonka (decision cited above) the Court referred to the argument set out in paragraph 109 above and added: “The Belgian authorities expelled the applicants the same day ..., without giving any reasons for their decision to ignore the measures that had been indicated under Rule 39 of the Rules of Court. In view of the settled practice of complying with such indications, which are given only in exceptional circumstances, such a manner of proceeding is difficult to reconcile with ‘ good faith co-operation with the Court in cases where this is considered reasonable and practicable ’ .”",
"121. While the Court is not formally bound to follow its previous judgments, in the interests of legal certainty and foreseeability it should not depart, without good reason, from its own precedents (see, among other authorities, mutatis mutandis, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). However, it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31, and Christine Goodwin, cited above, § 75).",
"122. Furthermore, the Court would stress that although the Convention right to individual application was originally intended as an optional part of the system of protection, it has over the years become of high importance and is now a key component of the machinery for protecting the rights and freedoms set forth in the Convention. Under the system in force until 1 November 1998, the Commission only had jurisdiction to hear individual applications if the Contracting Party issued a formal declaration recognising its competence, which it could do for a fixed period. The system of protection as it now operates has, in that regard, been modified by Protocol No. 11, and the right of individual application is no longer dependent on a declaration by the Contracting States. Thus, individuals now enjoy at the international level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention.",
"123. In this context, the Court notes that in the light of the general principles of international law, the law of treaties and international case-law, the interpretation of the scope of interim measures cannot be dissociated from the proceedings to which they relate or the decision on the merits they seek to protect. The Court reiterates in that connection that Article 31 § 1 of the Vienna Convention on the Law of Treaties provides that treaties must be interpreted in good faith in the light of their object and purpose (see paragraph 39 above), and also in accordance with the principle of effectiveness.",
"124. The Court observes that the ICJ, the Inter-American Court of Human Rights, the Human Rights Committee and the Committee against Torture of the United Nations, although operating under different treaty provisions to those of the Court, have confirmed in their reasoning in recent decisions that the preservation of the asserted rights of the parties in the face of the risk of irreparable damage represents an essential objective of interim measures in international law. Indeed it can be said that, whatever the legal system in question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending (see, mutatis mutandis, Soering, cited above, p. 35, § 90).",
"It has previously stressed the importance of having remedies with suspensive effect when ruling on the obligations of the State with regard to the right to an effective remedy in deportation or extradition proceedings. The notion of an effective remedy under Article 13 of the Convention requires a remedy capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention (see Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002-I). It is hard to see why this principle of the effectiveness of remedies for the protection of an individual ’ s human rights should not be an inherent Convention requirement in international proceedings before the Court, whereas it applies to proceedings in the domestic legal system.",
"125. Likewise, under the Convention system, interim measures, as they have consistently been applied in practice (see paragraph 104 above), play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention.",
"Indications of interim measures given by the Court, as in the present case, permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention.",
"126. Consequently, the effects of the indication of an interim measure to a Contracting State – in this instance the respondent State – must be examined in the light of the obligations which are imposed on the Contracting States by Articles 1, 34 and 46 of the Convention.",
"127. The facts of the case, as set out above, clearly show that the Court was prevented by the applicants ’ extradition to Uzbekistan from conducting a proper examination of their complaints in accordance with its settled practice in similar cases and ultimately from protecting them, if need be, against potential violations of the Convention as alleged. As a result, the applicants were hindered in the effective exercise of their right of individual application guaranteed by Article 34 of the Convention, which the applicants ’ extradition rendered nugatory.",
"3. Conclusion",
"128. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant ’ s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant ’ s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34.",
"129. Having regard to the material before it, the Court concludes that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"130. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"131. Before the Grand Chamber, the applicants ’ representatives repeated the claims they had made before the Chamber for pecuniary damage and non-pecuniary damage in the sum of 1,000,000 French francs, that is, 304,898 euros (EUR), for each of their clients.",
"132. The Chamber found as follows (see paragraph 115 of the Chamber judgment):",
"“As the applicants have not specified the nature of their alleged pecuniary damage, the Court has no alternative but to dismiss that claim. As regards the alleged non-pecuniary damage, the Court holds that its finding concerning Article 34 constitutes in itself sufficient just satisfaction for the purposes of Article 41.”",
"133. The Government said that they could accept the Chamber ’ s findings in the event of the Grand Chamber finding a violation of the Convention. In the alternative, they submitted that the amounts claimed were exorbitant.",
"134. Like the Chamber, the Court does not consider that the alleged pecuniary damage has been proved.",
"Conversely, it finds in the circumstances of the case that the applicants undeniably suffered non-pecuniary damage as a result of Turkey ’ s breach of Article 34 which cannot be repaired solely by a finding that the respondent State has failed to comply with its obligations under Article 34.",
"Consequently, ruling on an equitable basis in accordance with Article 41 of the Convention, the Court awards each applicant EUR 5,000 for non-pecuniary damage.",
"B. Costs and expenses",
"135. The applicants ’ representatives repeated the claims they had made before the Chamber and left the question of their fees for the proceedings before the Grand Chamber to the Court ’ s discretion.",
"136. The Government considered that the claim for costs and expenses had not been properly proved.",
"137. For the proceedings up until the Chamber judgment, the Chamber awarded the applicants EUR 10,000, less EUR 905 that had been paid by the Council of Europe in legal aid.",
"138. The Court awards the applicants EUR 15,000 to cover all the costs incurred in the Court, less EUR 2,613.17 received from the Council of Europe in legal aid.",
"C. Default interest",
"139. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
271 | Labsi v. Slovakia | 15 May 2012 | This case concerned the expulsion of an Algerian man, convicted in France of preparing a terrorist act, from Slovakia following his unsuccessful asylum request. The applicant was expelled to Algeria in April 2010, despite the fact that the Court had issued an interim measure in 2008, under Rule 39 of its Rules of Court, to the effect that he should not be extradited to Algeria before the final outcome of his asylum case before the Slovakian Constitutional Court. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment), Article 13 (right to an effective remedy) and Article 34 (right of individual petition) of the Convention. It found in particular that terrorist suspects faced a serious risk of ill-treatment in Algeria at the relevant time and that the applicant’s expulsion, in disregard of an interim measure issued by the Court, had prevented it from properly examining his complaints. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1969. At present he is detained in El Harrach prison in Algeria.",
"A. Background information",
"6. The applicant left Algeria for Italy in 1991. He subsequently spent time in Spain, Switzerland, Canada, Pakistan and Afghanistan. In 1999 the applicant arrived in the United Kingdom where he applied for asylum. His request was dismissed.",
"7. On 13 January 2001 the applicant was placed in custody in the United Kingdom as a result of several accusations made against him in different countries. The only one that was pursued was that of “ association de malfaiteurs ”. It was imputed to the applicant that, when living in Montreal, he had been involved in the supply of false documents which had been used by individuals in France when they had fled arrest for offences committed there.",
"8. The United Kingdom extradited the applicant to France. On 7 April 2006 he was found guilty by a French court of involvement, as a member of an organised group, in the preparation, between 1996 and 1998, of a terrorist act in France and several other countries and of forging identity documents. He received a five-year sentence and was excluded from the territory of France. The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition. On 11 April 2006 the applicant arrived in Slovakia.",
"9. In the meantime, on 1 June 2005, an Algerian court had convicted the applicant, in absentia, of membership of a terrorist organisation acting both in Algeria and abroad, and of forgery. He was sentenced to life imprisonment.",
"B. The applicant’s family ties in Slovakia",
"10. In January 2001 the applicant married a Slovakian national in London. A child was born to the couple on 2 August 2001.",
"11. With effect from 25 October 2007 the applicant’s wife was deprived of legal capacity to act. The child was entrusted to the care and custody of the applicant’s wife’s mother. On 29 May 2008 the latter, acting as guardian of her daughter, petitioned for divorce. The divorce proceedings are pending before the Bratislava IV District Court; it is not clear from the parties’ submissions whether a final decision has been given.",
"C. Proceedings in Slovakia",
"1. Asylum requests of the applicant",
"12. On 18 July 2006 the Migration Office dismissed the applicant’s first asylum request. The Bratislava Regional Court dismissed the applicant’s action challenging that decision.",
"13. On 24 September 2007 the Migration Office dismissed his second request for asylum. It held that there were no obstacles to the administrative expulsion of the applicant to Algeria. On 30 October 2007 the applicant’s lawyer waived the right to challenge that administrative decision. It thus became final on that date.",
"14. On 6 October 2008 the Migration Office dismissed the applicant’s third request for asylum. It further decided not to afford the applicant the status of “subsidiary protection” ( doplnková ochrana ) under the Asylum Act 2002.",
"15. On 4 February 2009 the Bratislava Regional Court quashed that decision. It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion.",
"16. On 5 June 2009 the Migration Office again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under the Asylum Act 2002.",
"17. It was found that the applicant’s fears were subjective in nature and unsubstantiated by objective facts, that he had failed to show that he was subjected to persecution and that such persecution was politically motivated. If returned to Algeria, the applicant could seek a retrial on the ground that he had already been convicted in France and had served the sentence imposed in that context. Moreover, the applicant represented a security risk to the Slovak Republic and to society. His arguments under Article 3 of the Convention could not be taken into account because the matter under review concerned his asylum status and not his extradition.",
"18. On 28 October 2009 the Bratislava Regional Court upheld the Migration Office’s decision on the applicant’s third asylum request.",
"19. The applicant appealed. He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to Algeria. The applicant also argued that he had family ties in Slovakia and that he wished to take care of his wife, who suffered from an illness, and their son.",
"20. On 30 March 2010 the Supreme Court upheld the Regional Court’s judgment of 28 October 2009. The Supreme Court held, in particular, that the applicant’s wish to maintain ties with his wife and child, who were Slovakian nationals, was not a relevant ground for granting him asylum. Furthermore, the applicant had been convicted in Algeria of criminal offences linked to the activities of the Salafist Group for Preaching and Combat, the aim of which was to establish, by violent means, a fundamentalist Islamic State in Algeria. Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant’s protection from persecution for political opinions within the meaning of the Asylum Act 2002.",
"21. As to the alleged risk of the applicant’s ill-treatment in Algeria, the Supreme Court held that the Court’s case-law under Article 3 of the Convention concerned cases of expulsion or extradition but not those relating to requests for asylum.",
"22. The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section 8 of the Asylum Act 2002, namely on the ground of his race, ethnic origin, belonging to a social group, for religious reasons or because of his political opinion.",
"23. In the Supreme Court’s view, the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from Slovakia in certain justified cases. However, such subsidiary protection was excluded, inter alia, where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the State in which he or she applied for asylum. Reference was made to Articles 12 and 17 of the Council of the European Union Directive 2004/83/EC and sub ‑ sections 2(d) and (e) of section 13c of the Asylum Act 2002.",
"24. The applicant’s conviction in France, on 7 April 2006, of involvement in a terrorist organisation and his admission that he had been trained in Afghanistan in handling weapons and explosives, as well as other information gathered by the Office for the Fight Against Organised Crime, justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide. The decision not to grant subsidiary protection to the applicant was therefore lawful. That conclusion could not be affected by the express admission by the Migration Office, in the context of the asylum proceedings, that the applicant could be exposed to a real risk of inhuman treatment if returned to Algeria.",
"25. Finally, the Supreme Court noted that the applicant had unlawfully left for Austria while proceedings concerning his asylum request in Slovakia had been pending and that he had lodged an asylum request in Austria. It concluded that the applicant was not genuinely interested in protection by the Slovakian authorities.",
"26. The Supreme Court’s judgment was served on the applicant and became final on 16 April 2010.",
"2. Other proceedings and facts relating to the applicant’s stay in Slovakia and his expulsion",
"27. On 20 July 2006, the Border and Foreigners Police Department in Bratislava ordered the applicant’s expulsion and banned him from entering Slovakia for ten years. The decision became final and binding on 12 October 2006. The applicant was expelled to Austria on the basis of the decision.",
"28. In May 2007 the Austrian authorities returned the applicant to Slovakia where he was placed under provisional arrest. On 20 June 2007 he was remanded in custody pending his extradition on a warrant in connection with the above-mentioned Algerian court’s judgment of 1 June 2005.",
"29. On 30 November 2007 the Bratislava Regional Court gave its consent to the applicant’s extradition to Algeria. On 22 January 2008 the Supreme Court approved that decision. On 13 March 2008 the Constitutional Court suspended the effect of the Supreme Court’s decision pending its decision on the applicant’s complaint that he would run the risk of ill-treatment if he were extradited to his country of origin.",
"30. On 26 June 2008 the Constitutional Court quashed the Supreme Court’s decision of 22 January 2008. It instructed the latter to re-examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to Article 3 of the Convention in the event of his extradition.",
"31. On 7 August 2008 the Supreme Court found that the applicant’s extradition to Algeria was not permissible. On the same date the applicant was released.",
"32. In its judgment the Supreme Court relied on a number of international documents, such as reports of the UN Human Rights Committee of 2007 and the UN Committee against Torture of 2008, a document prepared by the UNHCR, documents issued by Amnesty International, the United States Department of State, the British Foreign and Commonwealth Office, Human Rights Watch and the Court’s judgment in Saadi v. Italy [GC], no. 37201/06, ECHR 2008).",
"33. In particular, the Supreme Court referred to the broad powers of investigation of the Department of Intelligence and Security (DRS), documented reports on detention of suspects incommunicado in secret DRS centres, and numerous reports of torture and inhuman or degrading treatment of people at the hands of the DRS. The information available indicated that the DRS had systematically used torture and other forms of ill-treatment in respect of individuals deemed to have information about terrorist activities.",
"34. Furthermore, the law and practice in Algeria did not exclude the use in judicial proceedings of evidence which had been extracted under torture. The Algerian authorities had refused to co-operate with special rapporteurs or working groups established within the UN system and with non-governmental organisations with a view to clarifying the position. Similarly, the Algerian authorities had refused to allow monitoring the situation of people who had been returned to that country.",
"35. The Supreme Court noted that the relevant regulation did not list Algeria as a safe country of origin. It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to Article 3 of the Convention in the event of his extradition to Algeria.",
"36. Subsequently the applicant was apprehended and placed in a detention centre for foreigners in Medveďov on the basis of the Border and Foreigners Police decision of 7 August 2008. Reference was made to the above-mentioned decision of 20 July 2006 to expel the applicant and to exclude him from the territory of Slovakia for ten years. The decision stated that proceedings concerning the applicant’s expulsion were still under way.",
"37. On 17 October 2008 the applicant requested leave to stay in Slovakia ( tolerovaný pobyt ). The police dismissed the request.",
"38. On 3 February 2009 the applicant was released from the detention centre for foreigners in Medveďov. He was placed in an accommodation facility for asylum seekers in Opatovská Nová Ves and, later, in a similar facility in Rohanovce. During his stay in those facilities the applicant’s freedom of movement was restricted. He unsuccessfully sought redress before the Supreme Court and the Constitutional Court, which decided on his claim on 3 March 2009 and 16 December 2009 respectively.",
"39. On 19 December 2009 the applicant left the facility in Rohanovce and arrived in a centre for refugees in Austria. The Austrian authorities returned him to Slovakia on 11 March 2010.",
"40. On 22 April 2010 the Minister of the Interior informed the media that the applicant had been expelled from Slovakia and escorted to Algeria in accordance with the decision of the Border and Foreigners Police Department in Bratislava of 20 July 2006. The applicant’s representative learned about his expulsion from press articles.",
"D. Information obtained by the respondent Government from the Algerian authorities",
"41. A letter from the Algerian Ministry of Justice of 2 July 2007 indicated that the Algiers Criminal Court had convicted the applicant in absentia, on 1 June 2005, of belonging to a terrorist organisation acting both in Algeria and abroad and of forgery under Articles 87bis, 87bis §§ 3 and 6 and Article 222 of the Criminal Code. His extradition was requested with a view to re-trying him for the same offences. His previous conviction in absentia would lose effect upon his return to Algeria pursuant to Article 326 of the Criminal Code. In the event of his extradition the applicant would have an adversarial trial before the criminal court, the judgment of which could be appealed against to the Supreme Court. Assistance by legal counsel was mandatory in such proceedings. Under the Criminal Code the offences imputed to the applicant were not punishable by capital penalty.",
"42. In a letter of 25 September 2007 a representative of the Algerian Ministry of Justice indicated that his country had not yet ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights. Furthermore, the collaborators of the International Committee of the Red Cross had the possibility of visiting detained persons in private. Torture and other forms of ill-treatment were subject to heavy penalties under the Algerian Criminal Code.",
"43. In a letter of 22 September 2010 the Algerian Ministry of Justice indicated that the applicant’s conviction by the judgment of 1 June 2005 had lost effect following his return to Algeria. He was being detained in El Harrach prison under an order issued by the indictment chamber of the Algiers Criminal Court. The applicant had the right to meet an advocate in private, to receive visits by members of his family, to file complaints and to medical care. The applicant’s trial was scheduled for October 2010. He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in the Code of Criminal Procedure. Finally, the letter indicated that several persons suspected of terrorism had been extradited or expelled to Algeria from the United Kingdom, Spain or the United States and that all those persons had been treated in accordance with the law.",
"44. On 13 December 2010 the Slovakian Ministry of the Interior asked the Algerian Embassy in Vienna for a visit of the former’s State Secretary to be arranged during which he could discuss the applicant’s situation with the Algerian penitentiary administration. The Government submitted no further information as regards that initiative.",
"45. In a verbal note of 5 April 2011 the Algerian Embassy in Vienna informed the Slovakian Ministry of Foreign Affairs that the Algiers Criminal Court had convicted the applicant, on 12 January 2011, of having belonged to a terrorist group acting abroad. The trial had been public and covered by the media and the applicant had been defended by counsel of his choice. He had been sentenced to a three-year prison term with twelve months suspended and to a fine of 500,000 Algerian dinars. The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights.",
"46. The verbal note further stated that the charges of having belonged to a terrorist group acting within Algeria and of complicity in forgery and use of forgeries had not been upheld by the tribunal. Both the prosecution and the applicant’s counsel had appealed against the judgment on 17 January 2011.",
"47. No further information has been provided.",
"II. PROCEEDINGS BEFORE THE COURT",
"A. Interim measures under Rule 39 of the Rules of Court",
"48. On 18 July 2008 the Acting President of the Court’s Chamber decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Algeria.",
"49. On 13 August 2008 the Acting President of the Chamber again decided to indicate to the respondent Government under Rule 39 that the applicant should not be expelled to Algeria. The measure was to remain in force “for a period of two weeks following the outcome of the asylum proceedings, the ensuing expulsion proceedings as the case [might] be and, as appropriate, of any complaint which [the applicant] lodge[d] with the Constitutional Court in respect of those proceedings.”",
"50. On 15 April 2010 the applicant’s legal representative requested the Court to clarify the conditions of the interim measure of 13 August 2008. The advocate explained that the applicant’s asylum case had been dismissed by the Supreme Court two weeks before and, in the absence of the written version of the judgment with reasons, the applicant had not had an opportunity to challenge it before the Constitutional Court.",
"51. On 16 April 2010 the Section Registrar informed the applicant that, in applying Rule 39, the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies. The relevant part of the letter reads:",
"“The Rule 39 measure remains in force until the Constitutional Court has pronounced on the applicant’s constitutional complaint.",
"It is clear that the applicant needs the reasons given by the Supreme Court for refusing his asylum case to enable him to lodge a complaint under Article 127 of the Constitution with the Constitutional Court.",
"The two-week period referred to in the Registry’s letter of 13 August 2008 runs from the date on which the final decision is given with reasons and is intended to allow the Court, in the light of the reasons given by the Constitutional Court, to decide whether to lift or continue to apply Rule 39.”",
"52. A copy of the letter was sent to the Government with specific mention that the Rule 39 measure was still in force.",
"53. On 22 April 2010 the applicant’s representative informed the Court that it was impossible to contact the applicant and that, according to media reports, he had been expelled to Algeria earlier that week.",
"54. On 22 April 2010, on instruction by the President of the Section, the Section Registrar requested the Government to confirm or deny the reports of the applicant’s expulsion.",
"55. On 26 April 2010 the Government informed the Court that the applicant had been expelled on 19 April 2010. The expulsion had been carried out on the basis of the final and binding decision of the Border and Foreigners Police Department of 20 July 2006. Since the Supreme Court’s judgment in the asylum proceedings had become final on 16 April 2010, on the national level the applicant was considered to be a foreigner without permission to stay in Slovakia.",
"56. On 28 April 2010 the Registrar of the Court sent the following letter to the Government:",
"“The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Mustapha Labsi to Algeria in disrespect of the Court’s interim measure adopted under Rule 39 of the Rules of Court.",
"The President has noted in this connection that on 16 April 2010 your authorities were reminded in clear terms by the Registrar of Section IV of the Court that the Rule 39 measure, first applied on 13 August 2008, continued to remain in force. Nevertheless, the Government extradited the applicant to Algeria on 19 April.",
"The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately.",
"The President also notes that notwithstanding the Court’s request of 22 April 2010 for clarification of the circumstances surrounding Mr Labsi’s extradition, your letter of 26 April failed to explain why the Rule 39 measure was not complied with. The President expects your authorities to provide an explanation. He would in particular request your authorities to confirm or deny reports that the spokesperson of the Ministry of the Interior declared that his authorities were prepared to run the risk of being found to be in breach of the Convention and that other States which had failed to comply with a Rule 39 measure only had to pay ‘a few thousand euros’”.",
"57. In a reply dated 10 May 2010 the Vice-Prime Minister holding the post of the Minister of the Interior stated that all the relevant facts and legal issues had been taken into account prior to the applicant’s expulsion to Algeria, which had been carried out in accordance with the police decision of 20 July 2006.",
"58. The letter indicated, inter alia, that the offences of which the applicant had been convicted in absentia did not carry a capital penalty. The Algerian authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under Algerian law.",
"59. The applicant had been convicted and sentenced to five years’ imprisonment in France; he had also been banned from the territory of that State. Information about the applicant, including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by Algerian authorities, was entered in the Schengen information system. The Slovakian police’s decision to expel the applicant was also based on the obligation resulting from Council Directive 2001/40/EC of 28 May 2001, which requires the police in Slovakia to ensure the enforcement of an expulsion decision issued in one of the States within the European Economic Area where a foreigner was sentenced to a prison term of at least one year.",
"60. On the basis of all the information available the Slovakian police had concluded that the applicant represented a real risk to the security of the Slovak Republic and to society. The Supreme Court, in its decision concerning the applicant’s third request for asylum, had reached the same conclusion.",
"61. The Ministry of the Interior believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant’s expulsion had not been contrary to Slovakia’s undertakings under the Convention. The statements which the spokesperson of the Ministry of the Interior had made about the applicant’s case and the Court’s practice were to be interpreted in that context.",
"B. The representation of the applicant before the Court",
"62. At the time of lodging the application the applicant was represented by Ms M. Kolíková, a lawyer practising in Bratislava. In a letter of 9 July 2010 Ms Kolíková informed the Court that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of State at the Ministry of Justice. The letter further stated that Mr M. Hrbáň, a lawyer practising in Bratislava, was prepared to take over the applicant’s representation before the Court. It was impossible to contact the applicant for practical reasons, but the necessary steps would be taken with a view to ensuring his proper representation.",
"63. On 30 July 2010 Mr M. Hrbáň confirmed that, upon agreement with Ms Kolíková, he undertook to protect the applicant’s rights and to submit a power of attorney from the applicant as soon as he could obtain one.",
"64. On 31 March 2011 and 5 September 2011 Mr Hrbáň informed the Court that he had sent three letters to the applicant in El Harrach prison in Algeria to which he had received no reply. The Ministry of the Interior of the Slovak Republic had refused to inform Mr Hrbáň of the applicant’s address on the ground that he had not produced a power of attorney to represent the applicant. Efforts were being made, in co-operation with Amnesty International, to obtain more information about the applicant’s whereabouts.",
"65. Mr Hrbáň stated, with reference to section 17 of the Bar Act 2003, that Ms Kolíková had appointed him as her substitute on the basis of their mutual agreement. The client’s consent and submission of a new power of attorney were not required in such circumstances.",
"66. In a letter of 11 April 2011 Mr Hrbáň submitted information about the applicant’s fresh trial and conviction in Algeria which he had obtained from representatives of Amnesty International, one of whom had talked to the applicant’s brother. That information corresponds to that which the Algerian Ministry of Justice had furnished to the respondent Government (see paragraph 45 above).",
"67. On 5 September 2011 Mr Hrbáň informed the Court that he had been unable to establish contact with the applicant. He maintained that he acted in good faith with a view to defending the applicant’s interests and that he had not modified the subject-matter of the application as submitted by the representative whom the applicant had appointed. He would continue in his efforts to contact the applicant in Algeria and asked the Court to consider his submissions as an amicus curiae intervention."
] | [
"III. RELEVANT DOMESTIC LAW",
"A. The Asylum Act 2002",
"68. Section 13a entitles the Ministry of the Interior to grant subsidiary protection to unsuccessful asylum seekers. Except for cases where the Asylum Act 2002 provides otherwise, such subsidiary protection is to be granted where there are serious grounds to believe that an asylum seeker would be exposed to a real threat of serious lawlessness in the event of his or her return to the country of origin.",
"69. Pursuant to sub-sections (2)(e) and (d) of section 13c, the Ministry of the Interior should not grant subsidiary protection to an unsuccessful asylum seeker who represents a security threat to the Slovak Republic or a danger to society.",
"B. The Bar Act 2003",
"70. Pursuant to section 16(1) and (3), within the framework of a power of attorney issued by a client, a lawyer may ask a different lawyer to represent him or her. However, such substitution of lawyers is not permissible contrary to the client’s will.",
"71. Pursuant to section 17(1), an individually practising lawyer who encounters an obstacle preventing him or her from carrying out his or her duties is obliged, unless other steps are taken with a view to protecting the client’s rights and interests, to appoint a different lawyer as his or her substitute, based on an agreement with the latter and within one month at the latest. The client is to be informed of the arrangement without delay. Where an advocate fails to comply with that obligation, the Bar Association is to appoint a substitute lawyer to represent the client.",
"C. The Constitutional Court Act 1993",
"72. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support.",
"73. Pursuant to section 50(2), a plaintiff has to enclose to his or her complaint a copy of the final decision, measure or the evidence of any other interference in issue.",
"74. Section 52(1) provides that the filing of a complaint has no automatic suspensive effect. Under subsection 2 the Constitutional Court can issue an interim measure, at the request of the plaintiff, suspending the enforceability of a final decision, measure or other interference.",
"75. Section 53(3) provides that a complaint to the Constitutional Court can be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the plaintiff’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a practical possibility of becoming aware of them.",
"IV. RELEVANT INTERNATIONAL DOCUMENTS",
"A. Council of Europe bodies",
"76. In a statement published on 29 April 2010 the Secretary General of the Council of Europe expressed his regret that the Slovak authorities had extradited the applicant in disregard of the interim measure ordered by the Court.",
"77. In a separate statement published on the same day the chairpersons of two committees of the Parliamentary Assembly of the Council of Europe expressed their shock and concern at the decision taken by the Slovak authorities to extradite the applicant to Algeria.",
"B. The United Nations system",
"1. The Human Rights Committee",
"78. The Human Rights Committee considered the third periodic report of Algeria submitted under Article 40 of the International Covenant on Civil and Political Rights and adopted its concluding observations on 1 November 2007. The relevant parts read as follows:",
"“11. While noting the assurances given by the State party’s delegation on the periodic and unannounced inspections that the authorities and the International Committee of the Red Cross conduct in prisons, the Committee is concerned about the numerous reports from non-governmental sources pointing to the existence of secret detention centres located, allegedly, at Houch Chnou, Oued Namous, Reggane, El Harrach and Ouargla, among others, where persons deprived of their liberty are allegedly being held. (...)",
"15. The Committee takes note with concern of the information regarding cases of torture and cruel, inhuman or degrading treatment in the State party, for which the Intelligence and Security Department reportedly has responsibility. (...)",
"19. The Committee is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under the State party’s legislation.”",
"2. Committee against Torture",
"79. On 13 May 2008 the Committee against Torture adopted its concluding observations in respect of the third periodic report submitted by Algeria under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They comprise the following parts:",
"“6. The Committee takes note of the State party’s assurances that Intelligence and Security Department officers are placed under the control of the Public Prosecutor’s Office, and that secure detention centres no longer exist as of November 1996. The Committee nevertheless remains concerned about reports of the existence of secret detention centres run by the Department in its military barracks in Antar, in the Hydra district of Algiers, which are outside the control of the courts. The Committee is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations. (...)",
"10. While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel, the Committee nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers, including officers of the Intelligence and Security Department. (...)",
"18. While noting the Algerian delegation’s assurances that confessions are used only for information purposes in legal proceedings, in accordance with article 215 of the Code of Criminal Procedure, the Committee remains concerned about the lack of a provision in the State party’s legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings, in accordance with article 15 of the Convention. In addition, the Committee is concerned that article 213 of the Code of Criminal Procedure specifies that, ‘as with any evidence, the evaluation of confessions is a matter for the judge’, as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings.”",
"3. Working Group on the Universal Periodic Review",
"80. The Working Group on the Universal Periodic Review, established in accordance with Human Rights Council resolution 5/1 of 18 June 2007, held the review of Algeria on 14 April 2008.",
"81. While presenting the national report the Minister of Foreign Affairs of Algeria stated that torture and similar practices were prohibited by the fundamental law in all places and circumstances. He also firmly denied the existence of secret detention centres in the country.",
"82. In the ensuing interactive dialogue it was acknowledged that progress had been made in respect of the criminalisation of torture, human rights training for police officers and improving standards in prisons, but reference was also made to information concerning cases of suspects detained for months or years without notification to the judiciary and without any possibility to communicate with their family or lawyers.",
"83. The recommendations included, among others, that Algeria should implement measures to protect detainees from torture, cruel, inhuman or degrading treatment, ensure that all cases of persons detained are brought to the attention of the judiciary without delay, and consider facilitating visits by the UN human rights mandate holders.",
"4. Special Rapporteurs",
"84. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment solicited an invitation to visit Algeria for the first time in 1997. The visit request is still pending.",
"85. The request by Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to visit Algeria has been pending since 2006.",
"86. On 21 July 2010, those two Special Rapporteurs issued a press statement in which they expressed concern about, inter alia, transfer of Guantánamo Base detainees to Algeria without a proper assessment of the risks they could face in their country of origin.",
"C. Amnesty International",
"87. A press release on the applicant’s case issued on 30 November 2007 (EUR 72/012/2007) contains the following background information:",
"“Anyone in Algeria suspected of involvement in terrorist activities, or who is believed to possess information about terrorist activities, whether in Algeria or abroad, faces a real risk of secret detention and torture. Amnesty International has received dozens of reports of detainees treated in this way, among them people who had returned to Algeria from overseas, either voluntarily or at the hands of foreign governments.",
"Under Article 51 of the Algerian Criminal Procedures Code, detainees suspected of “terrorist or subversive acts” may be held without charge for a maximum of 12 days. The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them. In addition, any detention beyond four days has to be authorized in writing by the public prosecutor. These requirements are routinely violated in the cases of people held by the Department for Information and Security (...) which specializes in interrogating those thought to have information about terrorist activities.",
"Before they are either brought before the judicial authorities or released without charge, those arrested are systematically held incommunicado for up to 12 days, and sometimes longer. It is while they are in secret detention in barracks operated by the DRS that detainees are most at risk of torture and other ill-treatment.",
"Amnesty International has received information on several cases where detainees were held by the DRS for months without contact with the outside world in violation of Algerian and international law, during which time they were reportedly subjected to torture and other ill-treatment. Algeria’s civilian authorities have no effective control over the activities of the DRS.”",
"88. In a briefing to the UN Committee Against Torture in respect of Spain, in November 2009, Amnesty International referred to the case of M.S., who had been returned to Algeria from Spain in November 2008. According to information received by Amnesty International, upon arrival in Algeria M.S. was arrested by the Department for Information and Security military intelligence agency and held incommunicado for approximately two weeks. He was subsequently released without charge.",
"89. In its briefing to the UN Committee Against Torture in respect of France, in April 2010, Amnesty International mentioned the case of Rabah Kadri who, upon his arrival in Algiers on 16 April 2008, was detained by plain-clothes security officers and held incommunicado for twelve days. He was released without charge on 27 April 2008. After his release he said that he had been interrogated about the activities which had led to his conviction and prison sentence in France. He also said that he had signed a statement saying that he had been treated well in detention before his release. Amnesty International noted that, in its experience, the fact that someone had just been released from DRS custody would weigh heavily on their mind when they spoke about their treatment in detention, in case this exposed them to possible reprisals.",
"90. In a public statement of 28 April 2010 Amnesty International condemned the actions of the Slovak authorities in forcibly returning the applicant from Slovakia to Algeria despite an order for the application of an interim measure from the European Court of Human Rights and the ruling of the Constitutional Court of June 2008. Amnesty International expressed a fear that, upon his arrival in Algeria, the applicant might have been arrested by the DRS. Reference was made to documented cases where suspects detained by the DRS had been held in unrecognised places of detention, usually military barracks, and denied any contact with the outside world, often for prolonged periods, in violation of Algeria’s international obligations as well as the Algerian Code of Criminal Procedure. Amnesty International was further concerned that Algerian courts continued to accept “confessions” extracted under torture or duress.",
"91. In a public statement of 17 May 2010 Amnesty International urged the Algerian authorities to immediately open an investigation into allegations that detainees in El Harrach Prison in Algiers had been subjected to ill-treatment. Reference was made to the lack of proper investigations into previous reports of abuse of detainees. The statement drew attention to the hunger strike of four detainees in El Harrach Prison. According to information obtained by Amnesty International, the strike had been provoked by actions of the prison guards, including routine verbal abuse of the detainees, all of whom were awaiting trial on terrorism-related charges, such as calling them “terrorists”, stripping them naked in front of other detainees and a large number of guards, seemingly to humiliate them, and occasionally slapping them.",
"92. The statement further indicated that there existed persistent reports of torture or other ill-treatment in Algeria, particularly at the hands of the Department for Information and Security but also at El Harrach Prison. One of the detainees concerned had reported being tied up, drenched in water and beaten with wooden sticks all over his body, including the soles of his feet, by prison guards in the office of the Director of the First Department of the El Harrach Prison on 30 March 2008. After the beating, he had been reportedly placed in solidarity confinement without water or access to the toilet for two days. Even though his lawyer had filed a complaint, no independent, full or impartial investigation had been conducted.",
"93. The Amnesty International Report 2011, in its relevant part, reads:",
"“Officers of the Department of Information and Security (DRS), military intelligence, continued to arrest security suspects and detain them incommunicado, in some cases for more than the 12 days permitted by law, at unrecognized detention centres where they were at risk of torture or other ill-treatment. Impunity for torturing or otherwise abusing security suspects remained entrenched. (...)",
"Mustapha Labsi was detained for 12 days by the DRS after he was forcibly returned to Algeria from Slovakia on 19 April [2010]. He was then transferred to El Harrach prison. At the end of 2010, he was awaiting trial on charges of belonging to a ‘terrorist group abroad’. (...)",
"In April, security suspects held in El Harrach prison went on hunger strike to protest against alleged ill-treatment by guards who, they said, had insulted, slapped and humiliated them. No official investigation into their allegations was held.",
"Suspects in terrorism-related cases faced unfair trials. Some were convicted on the basis of ‘confessions’ that they alleged were extracted under torture or other duress, including some who were sentenced to death by military courts. Some were denied access to lawyers of their choice. Other security suspects were detained without trial. (...)",
"Hasan Zumiri and Adil Hadi Bin Hamlili were transferred to Algeria from US custody in Guantánamo By in January; Abdelaziz Naji was transferred in July. All three remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘terrorist group abroad’. Two former Guantánamo detainees, Mustafa Ahmed Hamlily and Abdul Rahman Houari, were acquitted of similar charges in February and November, respectively. Another former Guantánamo detainee, Bachir Ghalaab, was sentenced to a suspended prison term.”",
"THE LAW",
"I. THE GOVERNMENT’S OBJECTION",
"94. The Government first asked the Court to consider the standing of Mr Hrbáň to act on behalf of the applicant. They argued that the latter had failed to produce a power of attorney on the basis of which he was entitled to represent the applicant before the Court. With reference to section 16 of the Bar Act 2003, they argued that it had not been clearly shown that it was the applicant’s will to be represented by Mr Hrbáň.",
"95. Mr Hrbáň maintained that he had agreed to protect the applicant’s rights with the lawyer whom the applicant had appointed to represent him. Such an arrangement was permissible under section 17(1) of the Bar Act 2003 and in this case indispensable with a view to effectively protecting the applicant’s rights.",
"96. The Court first notes that, at the time of lodging his application, the applicant had duly authorised Ms M. Kolíková to represent him in the present case. He thus complied with Rule 45 § 3 of the Rules of Court which requires, in cases where applicants are represented, a power of attorney or written authority to act to be supplied by their representative (see, to the contrary, Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).",
"97. Ms Kolíková had to suspend her legal practice due to her accession to a public post. For that reason, upon mutual agreement with Mr Hrbáň, she informed the Court that the latter would take over the applicant’s representation before the Court. Mr Hrbáň confirmed that arrangement, which was permissible under section 17(1) of the Bar Act 2003.",
"98. It is further relevant that, at the time when the representative appointed to represent the applicant had to cease practising as a lawyer, the applicant had been expelled. Mr Hrbáň attempted to contact the applicant by sending him several letters to Algeria. The Court sees no reason to doubt that Mr Hrbáň acted in good faith with a view to informing the applicant of the change in his representation and to protecting the applicant’s rights and interests before the Court after the latter’s expulsion.",
"99. It has not been shown that the applicant does not wish to pursue the application and, in any event, the Court considers that respect for human rights as defined in the Convention and the Protocols requires its continued examination in the circumstances (Article 37 § 1 in fine ).",
"100. In view of the above, and noting that contact has been lost with the applicant following his expulsion by the respondent Government without prior notice and in disregard of the interim measure issued by the President of the Chamber, the argument that Mr Hrbáň lacks standing to act on behalf of the applicant cannot be accepted (see also, mutatis mutandis, Diallo v. the Czech Republic, no. 20493/07, §§ 42-48, 23 June 2011, with further references). A different conclusion would run contrary to the idea of effective protection of the rights enshrined in the Convention.",
"101. It follows that the Government’s objection must be dismissed.",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"102. The applicant complained that by expelling him to Algeria the respondent State had breached Article 3 of the Convention, which reads as follows:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"A. Admissibility",
"103. The Government contested the applicant’s argument and maintained that the complaint was manifestly ill-founded.",
"104. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"B. Merits",
"1. Arguments of the parties",
"(a) The applicant",
"105. The applicant argued that the prohibition of torture incorporated in Article 3 of the Convention was absolute. The arguments put forward by the Government could not, therefore, justify his expulsion to Algeria, where there was a real threat of his being exposed to treatment contrary to Article 3.",
"106. In particular, the applicant maintained that Amnesty International had reported cases of ill-treatment of prisoners in El Harrach prison and that the Supreme Court of Slovakia, in its decision of 7 August 2008, had held that the applicant’s extradition should not take place as there was a real threat of a breach of Article 3 of the Convention.",
"(b) The Government",
"107. The Government submitted that the applicant had been administratively expelled to Algeria on the basis of the Foreigners Police decision of 20 July 2006 as there had been no legal ground for his stay in Slovakia. The expulsion took place after the final effect of the Supreme Court’s judgment of 30 March 2010 concerning his asylum request. The applicant had not shown any relevant ground to justify granting him asylum and his continued stay in Slovakia would have represented a security risk.",
"108. In particular, the applicant had been convicted of participating in a terrorist group and forgery in Algeria in 2005 and, in 2006, he had been convicted in France for belonging to an organised criminal group which had prepared a terrorist attack in several countries and for forging public documents. The available documents justified the suspicion that the applicant might provide support to persons suspected of involvement in worldwide terrorist groups while staying in Slovakia.",
"109. The Slovak authorities also had proof that the applicant had been in contact with the person who had attempted to carry out a terrorist attack on Northwest Airlines flight 253 Amsterdam - Detroit on 25 December 2009. There were grounds to suspect that the applicant had known about the planned attack, and had informed the perpetrator that he approved of it. This contact had occurred while the proceedings on the applicant’s asylum request were pending.",
"110. Following his conviction in 2006, the applicant was permanently banned from French territory. His data had been entered in the Schengen Information System because he belonged to the radical movement Muslim Action and had participated in Al-Qaida training camps. An arrest warrant had been issued by the Algerian authorities on account of the applicant’s membership of a terrorist organisation. The Schengen Information System data further indicated that the applicant had been prohibited from entering Switzerland until 15 July 2011.",
"111. Thus, the Government argued that the expulsion of the applicant had also pursued the aim of complying with Slovakia’s obligations resulting from its membership of the European Union, in particular Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals and measures in respect of foreigners which other countries had entered in the Schengen Information System.",
"112. In letters of 2 July 2007 and 25 September 2007 the Algerian authorities had offered sufficient guarantees that the applicant would not be exposed to a risk incompatible with his rights under Articles 2 and 3 of the Convention in the event of his expulsion.",
"113. The applicant’s extradition was also permissible under the 1951 Convention on the Status of Refugees which excludes the application of that Convention to any person with respect to whom there are serious reasons to believe that he or she (i) has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee, or (ii) has been found guilty of acts contrary to the purposes and principles of the United Nations. Article 33 § 2 of that Convention does not extend the prohibition of expulsion to refugees whom there are reasonable grounds for regarding as a danger to the security of the country they are in, or who, having been convicted of a particularly serious crime by a final judgment, constitute a danger to the community of that country.",
"114. The Government maintained that the applicant had not referred to any specific threat to his person in his country of origin. Following his return to Algeria, the applicant had been placed in El Harach prison, which belongs to prison facilities administered by the Ministry of Justice.",
"115. Finally, the Government argued that a number of people who had been returned to Algeria, for example from France or Spain (see paragraphs 88-89 above), had not alleged to have been submitted to treatment contrary to Article 3 of the Convention. They also considered that a number of recent international documents indicated that there had been a general improvement of the situation in Algeria as regards the risk of torture or ill-treatment of persons deprived of their liberty.",
"2. The Court’s assessment",
"(a) The relevant principles",
"116. The relevant principles are summed up, for example, in Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 113-121, 23 February 2012; Saadi v. Italy [GC], no. 37201/06, §§ 124-148, ECHR 2008; Boutagni v. France, no. 42360/08, §§ 44-45, 18 November 2010; Ismoilov and Others v. Russia, no. 2947/06, §§ 115, 126 and 127, 24 April 2008; Khaydarov v. Russia, no. 21055/09, §§ 96-100 and 111, 20 May 2010; Shamayev and Others v. Georgia and Russia, no. 36378/02, §§ 334-339 and 344, ECHR 2005-III; Garayev v. Azerbaijan, no. 53688/08, §§ 67-75, 10 June 2010; Kolesnik v. Russia, no. 26876/08, § 73, 17 June 2010; Ben Khemais v. Italy, no. 246/07, §§ 53-64, 24 February 2009; or Koktysh v. Ukraine, no. 43707/07, §§ 57-59 and 63 ‑ 64, 10 December 2009. They can be summed up as follows.",
"117. The Court has acknowledged difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a serious threat to human rights. It has considered it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts. In the context of the fight against terrorism States must be allowed to deport non-nationals whom they consider to be threats to national security. It is not the Court’s role to review whether an individual is in fact such a threat; its only task is to consider whether that individual’s deportation would be compatible with his or her rights under the Convention.",
"118. Expulsion by a Contracting State may engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute.",
"119. In any examination of whether an applicant faces a real risk of ill ‑ treatment in the country to which he or she is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. It has to be determined whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill ‑ treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.",
"120. The Court usually assesses the quality of assurances given and whether, in the light of the receiving State’s practices, they can be relied upon. In doing so, the Court will have regard, among other things, to such factors as (i) whether the assurances are specific or are general and vague; (ii) who has given the assurances; (iii) whether the assurances concern treatment which is legal or illegal in the receiving State; (iv) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; (v) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; and (vi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.",
"(b) Application of the relevant principles to the present case",
"121. When considering the applicant’s expulsion in the light of the above principles, the Court notes that in two letters of 2007 the Algerian Ministry of Justice indicated that in the event of his return the applicant would have a fair fresh trial in respect of the offences imputed to him, which were not punishable by capital penalty. Torture and other forms of ill-treatment were subject to heavy penalties under the Algerian Criminal Code and the law in force established a system of control permitting detained persons to seek redress in respect of any alleged breach of their rights. Collaborators of the International Committee of the Red Cross had the possibility of visiting detained persons in private (see paragraphs 41 and 42 above).",
"122. Thus, the assurances given by the Algerian authorities were of a general nature, and they have to be considered in the light of the information which was available at the time of the applicant’s expulsion as to the human rights situation in his country of origin.",
"123. In that respect it is firstly relevant that the Supreme Court found that the applicant’s extradition to Algeria was not permissible on 7 August 2008. With reference to the Court’s case-law and a number of international documents it concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to Article 3 in Algeria (see paragraphs 31-35 above).",
"124. Secondly, a real risk of the applicant being exposed to ill-treatment in his country of origin was also acknowledged in the asylum proceedings (see paragraph 24 above).",
"125. Thirdly, as regards the receiving State’s practices, it is particularly relevant that a number of international documents highlighted a real risk of ill-treatment to which individuals suspected of terrorist activities were exposed while in the hands of the DRS. That authority was reported to have detained people incommunicado and beyond the control of judicial authorities for a period from twelve days up to more than one year. Specific cases of torture or other forms of ill-treatment were reported to have occurred during such detention (see paragraphs 78, 79, 87, 92 and 93 above).",
"126. In the judgment Daoudi v. France (no. 19576/08, §§ 67-73, 3 December 2009) delivered only several months before the present applicant’s expulsion, the Court based its conclusion that there had been a breach of Article 3 as a result of Mr Daoudi’s expulsion to Algeria on the existence of such practices of the DRS. Although it had not been shown that such practices were systematic, the Court found no indication that they had stopped or had diminished at the material time. It was further relevant that persons detained by the DRS were deprived of appropriate guarantees against torture and of the possibility of seeking redress before national courts or international bodies.",
"127. Similarly, in H.R. v. France (no. 64780/09, §§ 49-65, 22 September 2011) the Court concluded that there was a serious risk of the applicant being subjected to treatment contrary to Article 3 of the Convention in the event of his removal to Algeria. In that case the Algerian authorities had convicted the applicant in absentia of having founded a terrorist group and had imposed a life sentence on him. The risk of treatment contrary to Article 3 resulted, in particular, from the continued practice of the DRS of gathering information from people suspected or convicted of terrorist activities using methods which had been denounced by a number of international reports. The Court further noted that there had been no significant developments as regards the situation in Algeria between the delivery of the Daoudi judgment on 3 December 2009 and February 2011.",
"128. In view of the documents before it the Court finds no reason for reaching a different conclusion in the present case. Accordingly, at the time of his expulsion, there were substantial grounds for believing that the applicant faced a real risk of being subjected to treatment contrary to Article 3 of the Convention in his country of origin. The Government’s argument that the applicant’s expulsion was nevertheless justified on the ground that he represented a security risk cannot be accepted. The guarantee under Article 3 of the Convention is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion (see Saadi, cited above, § 138).",
"129. The Court has also considered the Government’s reference to reports on cases where persons returned to Algeria had not been subjected to ill-treatment. However, it does not appear from the information available that there had been a general change in practice and that there were appropriate guarantees protecting the applicant from ill-treatment at the time of his expulsion. It is to be noted in this respect that the UN special rapporteurs’ requests to visit Algeria have been pending since 1997 and 2006 respectively (see paragraphs 84 and 85 above).",
"130. Following his expulsion the applicant was reported to have been detained by the DRS for twelve days before being transferred to El Harrach prison for a trial. It does not appear that there was any follow-up to the request for a visit of an official of the Slovakian Ministry of the Interior to be arranged with a view to examining the applicant’s situation in Algeria. Furthermore, the Ministry of the Interior refused to provide assistance to Mr Hrbáň with a view to establishing contact with the applicant (see paragraphs 44, 64 and 93 above). As a result, compliance with the assurances given could not be objectively verified through diplomatic or other monitoring mechanisms.",
"131. Thus, the developments subsequent to the applicant’s expulsion are not capable of demonstrating that the assurances by the Algerian authorities provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of ill-treatment. They cannot therefore affect the conclusion which the Court reached in paragraph 128 above.",
"132. There has accordingly been a violation of Article 3 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"133. The applicant complained that he had been deprived of an effective remedy in respect of his complaint under Article 3. He relied on Article 13 of the Convention, which provides:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"134. The applicant argued, in particular, that he had been expelled without having been able to effectively challenge the Supreme Court’s judgment of 30 March 2010 before the Constitutional Court. He referred to the fact that the Supreme Court’s judgment had been served on him on Friday, 16 April 2010 and that he was expelled on Monday, 19 April 2010.",
"135. The Government argued that the applicant and his representative had attended the hearing on 30 March 2010 at which the Supreme Court had delivered its judgment. The applicant could have, therefore, lodged a constitutional complaint and requested the Constitutional Court to issue an interim measure even before the service and final effect of the Supreme Court’s judgment on 16 April 2010.",
"136. The Court has concluded above that the return of the applicant to Algeria amounted to a violation of Article 3 of the Convention. The complaint lodged by the applicant on this point is therefore “arguable” for the purposes of Article 13, and it must likewise be declared admissible.",
"137. The Court reiterates that in the circumstances of extradition or expulsion and a claim in conjunction with Article 3 of the Convention, given the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised, and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) close and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) a remedy with automatic suspensive effect (for recapitulation of the relevant case-law see Diallo v. the Czech Republic, cited above, § 74, with further references).",
"138. The present applicant’s complaint under Article 13 is based on the fact that, due to his expulsion, he was prevented from attempting to obtain redress by means of a constitutional complaint following the final decision given in the asylum proceedings. In those proceedings the applicant’s claim that there was a real risk of ill-treatment in his country of origin had also been addressed. In respect of the final decision of ordinary courts in the asylum proceedings the applicant was entitled to seek redress by means of a complaint to the Constitutional Court. However, that remedy had no automatic suspensive effect.",
"139. Furthermore, and even more importantly, the applicant was expelled to Algeria only one working day following the service on him of the Supreme Court’s judgment of 30 March 2010. Noting that the period for introduction of a constitutional complaint starts running from the final effect of the decision in issue and that a complaint has to be accompanied by such decision, the Court cannot accept the Government’s argument that he could have instituted constitutional proceedings prior to the service of the Supreme Court’s judgment of 30 March 2010. In the circumstances, the applicant was deprived of practical possibility of using the constitutional remedy prior to his expulsion.",
"140. There has therefore been a violation of Article 13 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION",
"141. Finally, the applicant complained that, as a result of his expulsion contrary to the interim measure issued under Rule 39 of the Rules of Court, the respondent Government had failed to comply with its obligations under Article 34 of the Convention.",
"142. Article 34 of the Convention reads as follows:",
"“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”",
"143. Rule 39 of the Rules of Court reads as follows:",
"“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.",
"2. Notice of these measures shall be given to the Committee of Ministers.",
"3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”",
"A. Admissibility",
"144. The Government admitted that the complaint was not manifestly ill-founded.",
"145. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"B. Merits",
"146. The applicant reiterated that his expulsion in disregard of the measure indicated under Rule 39 of the Rules of Court had been contrary to his right of individual application as guaranteed by Article 34 of the Convention.",
"147. The Government, with reference to the explanation by the Vice ‑ Prime Minister and the Minister of the Interior of 10 May 2010 (see paragraphs 57-61 above), argued that the enforcement of the final decision on the administrative expulsion of the applicant had been based on relevant reasons.",
"148. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 (for recapitulation of the relevant case-law see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 102-129, ECHR 2005 ‑ I; Aoulmi v. France, no. 50278/99, § 110, ECHR 2006 ‑ I (extracts); Olaechea Cahuas v. Spain, no. 24668/03, §§ 71-82, ECHR 2006 ‑ X (extracts); Mostafa and Others v. Turkey, no. 16348/05, §§ 38-44, 15 January 2008; Ben Khemais v. Italy, no. 246/07, §§ 80-88, 24 February 2009; Paladi v. Moldova [GC], no. 39806/05, §§ 84-92, 10 March 2009; or Toumi v. Italy, no. 25716/09, §§ 72-77, 5 April 2011).",
"149. In the present case, following the expulsion of the applicant to Algeria the level of protection that the Court was able to afford the rights which he was asserting under Article 3 of the Convention was irreversibly reduced. The expulsion occurred prior to the exchange of observations of the parties on the admissibility and merits of the application. The applicant’s representative has lost contact with him since his expulsion. As a result, the gathering of evidence in support of the applicant’s allegations has proved more complex.",
"150. The Court was thus prevented by the applicant’s expulsion to Algeria from conducting a proper examination of his complaints in accordance with its settled practice in similar cases. It was further prevented from protecting the applicant against treatment contrary to Article 3 of which he had been found to face a real risk in his country of origin at the relevant time (see paragraphs 128 and 132 above). As a result, the applicant has been hindered in the effective exercise of his right of individual application guaranteed by Article 34 of the Convention.",
"151. There has accordingly been a violation of Article 34 of the Convention.",
"V. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"152. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"153. Mr Hrbáň, on the applicant’s behalf, claimed compensation in respect of non-pecuniary damage. He left its amount at the Court’s discretion. Mr Hrbáň admitted that practical problems might arise with transmitting a possible Court award to the applicant. He undertook to make further attempts with a view to contacting the applicant.",
"154. The Government maintained that any award under this head should reflect those made in comparable cases.",
"155. The Court considers it appropriate to award EUR 15,000 in respect of non-pecuniary damage, to be held by Mr Hrbáň in trust for the applicant.",
"B. Costs and expenses",
"156. Mr Hrbáň, on the applicant’s behalf, also claimed EUR 1,281.17 for the costs and expenses incurred before the domestic authorities and EUR 1,864.77 for those incurred before the Court.",
"157. The Government did not object to the award of a demonstrably incurred sum in respect of costs and expenses in case of a finding by the Court of a breach of the applicant’s rights.",
"158. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads. This amount is to be paid directly into the bank account of Mr Hrbáň.",
"C. Default interest",
"159. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
272 | Fox, Campbell and Hartley v. the United Kingdom | 30 August1990 | The applicants were arrested in Northern Ireland by a constable exercising a statutory power (since abolished) allowing him to arrest for up to 72 hours anyone he suspected of being a terrorist. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the evidence provided was insufficient to establish that there had been an objectively determined “reasonable suspicion” for the arrests. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. As regards Mr Fox and Mrs Campbell",
"8. The first and second applicants, Mr Bernard Fox and Ms Maire Campbell, are husband and wife but separated. Both reside in Belfast, Northern Ireland.",
"9. On 5 February 1986 they were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary (\"RUC\") station, where a full search of the vehicle in which they were travelling was carried out. Twenty-five minutes after their arrival at the police station, at 3.40 p.m., they were formally arrested under section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978 (\"the 1978 Act\"; see paragraph 16 below). They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists. They were also told that they could be detained for up to 72 hours. They were taken to Castlereagh Police Office, where they were separately interviewed by the police on the same day between 8.15 p.m. and 10.00 p.m.",
"10. During their detention Mr Fox and Ms Campbell were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army (\"Provisional IRA\"). They were also questioned about their suspected membership of this organisation. According to the Government, the information underlying the suspicion against them was already known to the police when they stopped their car.",
"No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes.",
"11. On being arrested both Mr Fox and Ms Campbell were shown the notice drawn up for persons held in police custody which explained their rights. They were not brought before a judge or given any opportunity to apply for release on bail. On 6 February they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge.",
"12. Mr Fox had been convicted in 1979 of several explosives offences, for which he received concurrent sentences of 12 years ’ imprisonment, and of belonging to the IRA, for which he received a concurrent sentence of 5 years. Ms Campbell received an 18 months ’ suspended sentence in 1979 after being convicted of involvement in explosives offences.",
"B. As regards Mr Hartley",
"13. The third applicant, Mr Samuel Hartley, resides in Waterfoot, County Antrim, Northern Ireland. On 18 August 1986 he was arrested at his home, in his parents ’ presence, at 7.55 a.m. He was informed at the time of his arrest that he was being arrested under section 11 (1) of the 1978 Act as he was suspected of being a terrorist. He was taken to Antrim police station where, on arrival, he was shown a copy of the notice for persons held in police custody. He was interviewed there by the police between 11.05 a.m. and 12.15 p.m.",
"14. Mr Hartley was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men. Those involved in the kidnapping were thought to have connections with the Provisional IRA. The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to 3 years ’ imprisonment. The Government said at the Commission hearing that their record of the first interview with Mr Hartley showed that he was questioned about terrorist activities in a specific small, geographical area, and about his involvement with the Provisional IRA. The record is not more detailed than that, but the area in question was where the kidnapping took place. The applicant Hartley denied any involvement in the kidnapping incident but he has not contradicted the Government ’ s assertion that he was asked about it.",
"No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"15. For the past 20 years the population of Northern Ireland, which totals 1.5 million people, has been subjected to a campaign of terrorism (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9-31, §§ 11-77, and the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 21, § 25). More than 2,750 people, including almost 800 members of the security forces, have been killed and 31,900 more have been maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe.",
"Special legislation has been introduced in an attempt to deal with this situation in Northern Ireland. Thus, the 1978 Act and its predecessors, the Northern Ireland (Emergency Provisions) Act 1973 (\"the 1973 Act\") and the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 (\"the 1975 Act\"), were enacted to enable the security forces to deal more effectively with the threat of terrorism.",
"B. Section 11 of the 1978 Act",
"16. Section 11 of the 1978 Act conferred, inter alia, a power of arrest. The relevant parts of section 11, which was repealed in 1987, provided as follows:",
"\"1. Any constable may arrest without warrant any person whom he suspects of being a terrorist.",
"...",
"3. A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates ’ Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates ’ court not later than forty-eight hours after his arrest) shall not apply to any such person.\"",
"Sub-section (2) gave a power to enter and search premises where a suspected terrorist was or was suspected of being. Under sub-section (4) persons arrested under section 11 could be photographed and their finger prints and palm prints taken by a constable.",
"17. Section 31 (1) of the 1978 Act defines \"terrorist\" and \"terrorism\". A terrorist is \"a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism\". Terrorism is defined as \"the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear\".",
"Under section 21 of, and Schedule 2 to, the 1978 Act, certain organisations - one of which is the IRA, the Provisional IRA included - are proscribed organisations. It is an offence to belong to or profess to belong to such an organisation, to solicit or incite support for any such organisation, knowingly to make or receive any contribution to it, to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation.",
"18. The powers of arrest and detention under section 11 of the 1978 Act were originally an integral part of the scheme of interim custody introduced by the 1973 Act to replace internment (see the Ireland v. the United Kingdom judgment previously cited, Series A no. 25, pp. 38-39, § 88). By 1980 this scheme (as re-enacted in the 1975 and 1978 Acts) had been repealed with the exception of section 11 and the power was thereafter used as a free-standing power of arrest and detention for up to 72 hours.",
"Since its enactment in 1973 the legislation conferring this power was subject to periodic renewal by Parliament. Thus, under the 1978 Act (section 33) the relevant provisions became renewable, and were renewed, every six months until their repeal in 1987.",
"19. In 1983 the Secretary of State for Northern Ireland invited Sir George Baker, a retired senior member of the judiciary, to examine the operation of the 1978 Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime. There followed a number of recommendations in a report which was published in April 1984 (Command Paper, Cmnd. 9222). In his report Sir George Baker made the following remarks:",
"\"263. Generally I find it unhelpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention sections of the [1978 Act] it is useful to note that Regulation 10 of the Special Powers Act (Northern Ireland) 1922 provided:",
"‘ Any Officer of the RUC for the preservation of the peace and maintenance of order, may authorise the arrest without warrant and detention for a period of not more than 48 hours of any person for the purpose of interrogation. ’ (My emphasis).",
"This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was re-worded and to some extent re-enacted in the [1978 Act] and PTA [the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976]. But nowhere in these acts do the words ‘ for the purpose of interrogation ’ appear. That is left to be inferred. There is widespread criticism of the alleged illegal use of arrest for ‘ information gathering ’ or low grade intelligence and harassment. It might be better if the power of the RUC were expressly spelled out in the Act linked of course to appropriate controls. That the police have such a power under the PTA was accepted by Lawton LJ in the English Court of Appeal (Criminal Division) in R. v. Houghton (1987) Criminal Appeal Reports 197.",
"264. In contrast to the provisions of the [1978 Act] which deal with the trial of terrorist offences and do not require derogation from Article 6 (art. 6) of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5 (art. 5). Consequently the United Kingdom entered a notice of derogation under Article 15 (art. 15). Article 5 § 1 (c) (art. 5-1-c) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court. Section 11 [of the 1978 Act] requires neither, nor is an offence necessary. ... Any action which can be taken to avoid the United Kingdom having to rely on the notice of derogation to excuse breaches of the Convention is desirable.",
"...",
"Suspicion or reasonable suspicion",
"280. Only a lawyer or a legislator would suspect (or reasonably suspect?) a difference. But there is one because, say the judges, with whom I agree, Parliament by using the two phrases must have so intended. The test for Section 11 is a subjective one: did the arrestor suspect? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause. Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case. Hearsay may justify reasonable suspicion but may be insufficient for a charge.",
"281. The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest. Against this there is the requirement of reasonable suspicion in Section 12 PTA which the RUC have used more extensively in 1982 and 1983. The figures for arrests are:",
"Under S.11 Under S.12 PTA",
"[of the 1978 Act]",
"1982 1,902 828",
"1983 (to 1 October) 964 883 ...",
"The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held.",
"...",
"283. No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use Section 11 in preference to Section 12 and indeed some senior police officers have told me it would not influence them. I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences. I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for Section 11(1) and in Section 13(1).",
"...",
"285. There is no need to name a specific offence when arresting under section 11 or to inform the suspect of the grounds on which he is being arrested as would be required by the common law, which is that ‘ a citizen is entitled to know on what charge or suspicion of what crime he is seized ’. It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist. ...\"",
"20. The exercise of the power of arrest in section 11 (1) has been considered by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1-4. In that case the House of Lords held that the proper exercise of the power of arrest in section 11 depended upon the state of mind of the arresting officer. It was necessary that the arresting officer suspected the person he was arresting to be a terrorist; otherwise the arrest was unlawful. He could form that suspicion on the basis of information given to him by his superior officer, but he could not arrest under section 11 on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion. Lord Roskill, with whom the other Law Lords agreed, stated that the suspicion need not be a reasonable suspicion but it had to be honestly held. The requirement of a suspicion in the mind of a constable was a subjective test. That being so, the courts could only enquire as to the bona fides of the existence of the suspicion. The only issues were whether the constable had a suspicion and whether it was honestly held.",
"21. In addition, an arrest without warrant is subject to the common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person arrested must in ordinary circumstances be informed of the true grounds for his arrest, in a language which he understands, at the time he is taken into custody, or, if special circumstances exist to excuse this, as soon thereafter as it is reasonably practicable to inform him. A person is validly arrested under section 11 (1) of the 1978 Act if he is informed that he is being arrested under this provision as a suspected terrorist (in re McElduff [1972] Northern Ireland Reports 1 and McKee v. Chief Constable, loc. cit.).",
"22. Section 11 (1) of the 1978 Act was replaced by section 6 of the Northern Ireland (Emergency Provisions) Act 1987, which came into effect on 15 June 1987, subsequent to the facts of the present case. This new provision is confined to conferring a power of entry and search of premises for the purpose of arresting persons under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (now section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 - see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 22, § 30). These latter provisions expressly limit powers of arrest without a warrant to cases in which there are \"reasonable grounds\" for suspicion.",
"C. Remedies",
"23. A person who believed that his arrest or detention under section 11 was unlawful had two remedies, namely (a) an action for writ of habeas corpus, whereby a detained person may make an urgent application for his release from custody, and (b) a civil action claiming damages for false imprisonment (see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 25, §§ 39-41). In either action the review of lawfulness would have encompassed procedural questions such as whether the arrested person has been properly informed of the true grounds for his arrest (Christie v. Leachinsky, loc. cit.); and whether the conditions for arrest under section 11 (1) had been complied with. As noted above, a court would not have enquired into the reasonableness of the suspicion grounding the arrest but rather whether the suspicion of the arresting officer was an honest one (McKee v. Chief Constable, loc. cit.).",
"PROCEEDINGS BEFORE THE COMMISSION",
"24. Mr Fox and Ms Campbell lodged their applications (nos. 12244/86 and 12245/86) with the Commission on 16 June 1986, and Mr Hartley lodged his application (no. 12383/86) on 2 September 1986. All three claimed that their arrest and detention were not justified under Article 5 § 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 4 and 5 of Article 5 (art. 5-2, art. 5-4, art. 5-5). They further alleged that, contrary to Article 13 (art. 13), they had no effective remedy before a national authority in respect of their Convention complaints.",
"On 11 December 1986 the Commission ordered the joinder of the three applications pursuant to Rule 29 of its Rules of Procedure, and on 10 May 1988 it declared the case admissible.",
"25. In its report adopted on 4 May 1989 (Article 31) (art. 31) the Commission expressed the opinion that in relation to each applicant there had been violation of paragraphs 1, 2 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-5) (by 7 votes to 5) but not of paragraph 4 (art. 5-4) (by 9 votes to 3). It also concluded (unanimously) that no separate issue arose under Article 13 (art. 13).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS TO THE COURT",
"26. At the public hearing on 26 March 1990 the Government maintained in substance the concluding submission set out in their memorial, whereby they requested the Court",
"\"to decide and declare in respect of each of the three applicants:",
"( i ) that the facts disclose no breach of paragraphs 1, 2, 4 or 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;",
"(ii) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention\".",
"27. On the same occasion the applicants likewise maintained in substance the submission made at the close of their memorial, whereby they requested the Court",
"\"to decide and declare in respect of each of the three applicants:",
"( i ) that the facts disclose a breach of paragraphs 1, 2, 4 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;",
"(ii) that the facts disclose a breach of Article 13 (art. 13) of the Convention\".",
"AS TO THE LAW",
"I. GENERAL APPROACH",
"28. The applicants ’ complaints are directed against their arrest and detention under criminal legislation enacted to deal with acts of terrorism connected with the affairs of Northern Ireland.",
"Over the last twenty years, the campaign of terrorism waged in Northern Ireland has taken a heavy toll, especially in terms of human life and suffering (see paragraph 15 above). The Court has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 27, § 48). Accordingly, when examining these complaints the Court will, as it did in the Brogan and Others judgment, take into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the applicable provisions of the Convention in the light of their particular wording and its overall object and purpose.",
"II. ALLEGED BREACH OF ARTICLE 5 § 1 (art. 5-1)",
"29. The applicants alleged a breach of Article 5 § 1 (art. 5-1) of the Convention, which, in so far as relevant, provides:",
"\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...\"",
"They did not dispute that their arrest was \"lawful\" under Northern Ireland law for the purposes of this provision and, in particular, \"in accordance with a procedure prescribed by law\".",
"30. They did, however, argue that they had not been arrested and detained on \"reasonable\" suspicion of having committed an offence. Section 11 (1) of the 1978 Act, provided that \"any constable may arrest without warrant any person whom he suspects of being a terrorist\" (see paragraphs 9, 13 and 16 above). In their submission, this section was itself in direct conflict with Article 5 § 1 (c) (art. 5-1-c) in that it did not contain any requirement of reasonableness. They further agreed with the Commission ’ s opinion that their arrests had not been shown on the facts to have been based on reasonable suspicion.",
"In addition, they maintained that the purpose of their arrest was not to bring them before the \"competent legal authority\" but rather to gather information without necessarily intending to charge them with a criminal offence. Both the respondent Government and the Commission rejected this contention.",
"31. For an arrest to be lawful under section 11 (1) of the 1978 Act, as construed by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland, the suspicion needed only to be honestly held (see paragraph 20 above). In his report to Parliament in 1984, the Right Honourable Sir George Baker highlighted the fact that the test for section 11 was a \"subjective one\". On the other hand, where the requirement was \"reasonable suspicion\" he considered that the test was \"objective\" and that it was \"for the court to judge the reasonableness of the suspicion\" (see paragraph 19 above).",
"Article 5 § 1 (c) (art. 5-1-c) speaks of a \"reasonable suspicion\" rather than a genuine and bona fide suspicion. The Court ’ s task, however, is not to review the impugned legislation in abstracto but to examine its application in these particular cases.",
"32. The \"reasonableness\" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c) (art. 5-1-c). The Court agrees with the Commission and the Government that having a \"reasonable suspicion\" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as \"reasonable\" will however depend upon all the circumstances.",
"In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.",
"As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the \"reasonableness\" of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of \"reasonableness\" to the point where the essence of the safeguard secured by Article 5 § 1 (c) (art. 5-1-c) is impaired (see, mutatis mutandis, the Brogan and Others judgment previously cited, Series A no. 145-B, pp. 32-33, § 59).",
"33. The majority of the Commission, with whom the applicants agreed, were of the opinion that \"the Government [had] not provided any information which would allow the Commission to conclude that the suspicions against the applicants at the time of their arrest were ‘ reasonable ’ within the meaning of Article 5 § 1 (c) (art. 5-1-c) of the Convention or that their arrest was based on anything more than the ‘ honestly held suspicion ’ which was required under Northern Ireland law\" (see paragraph 61 of the Commission ’ s report).",
"The Government argued that they were unable to disclose the acutely sensitive material on which the suspicion against the three applicants was based because of the risk of disclosing the source of the material and thereby placing in danger the lives and safety of others. In support of their contention that there was nevertheless reasonable suspicion, they pointed to the facts that the first two applicants had previous convictions for serious acts of terrorism connected with the Provisional IRA (see paragraph 12 above) and that all three applicants were questioned during their detention about specific terrorist acts of which they were suspected (see paragraphs 10 and 14 above). In the Government ’ s submission these facts were sufficient to confirm that the arresting officer had a bona fide or genuine suspicion and they maintained that there was no difference in substance between a bona fide or genuine suspicion and a reasonable suspicion. The Government observed moreover that the applicants themselves did not contest that they were arrested and detained in connection with acts of terrorism (see paragraph 55 of the Commission ’ s report).",
"The Government also stated that, although they could not disclose the information or identify the source of the information which led to the arrest of the applicants, there did exist in the case of the first and second applicants strong grounds for suggesting that at the time of their arrest the applicants were engaged in intelligence gathering and courier work for the Provisional IRA and that in the case of the third applicant there was available to the police material connecting him with the kidnapping attempt about which he was questioned.",
"34. Certainly Article 5 § 1 (c) (art. 5-1-c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 27 and 30-31, §§ 58 and 68). It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity.",
"Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) (art. 5-1-c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion.",
"35. The Court accepts that the arrest and detention of each of the present applicants was based on a bona fide suspicion that he or she was a terrorist, and that each of them, including Mr Hartley, was questioned during his or her detention about specific terrorist acts of which he or she was suspected.",
"The fact that Mr Fox and Ms Campbell both have previous convictions for acts of terrorism connected with the IRA (see paragraph 12 above), although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later.",
"The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts.",
"The aforementioned elements on their own are insufficient to support the conclusion that there was \"reasonable suspicion\". The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Article 5 § 1 (c) (art. 5-1-c) for judging the reasonableness of a suspicion for the arrest of an individual.",
"36. The Court accordingly holds that there has been a breach of Article 5 § 1 (art. 5-1). This being so, it is not considered necessary to go into the question of the purpose of the applicants ’ arrests (see paragraph 30 above).",
"III. ALLEGED BREACH OF ARTICLE 5 § 2 (art. 5-2)",
"37. The applicants alleged a violation of Article 5 § 2 (art. 5-2), which reads:",
"\"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\"",
"The Commission upheld this claim which was rejected by the Government.",
"38. In the applicants ’ submission, Article 5 § 1 (c) (art. 5-1-c) refers to the grounds justifying the arrest and these are what should be communicated to detainees. They argued that suspected terrorism in itself is not necessarily an offence justifying an arrest under section 11. Accordingly, in breach of Article 5 § 2 (art. 5-2) they were not given at the time of their arrest adequate and understandable information of the substantive grounds for their arrest. In particular, they maintained that the national authorities ’ duty to \"inform\" the person is not complied with where, as in their cases, the person is left to deduce from the subsequent police interrogation the reasons for his or her arrest.",
"39. The Government submitted that the purpose of Article 5 § 2 (art. 5-2) is to enable an arrested person to judge the lawfulness of the arrest and take steps to challenge it if he sees fit. They argued that the information given need not be detailed and that it was enough that the arrested person should be informed promptly of the legal basis of his detention and of the \"essential facts relevant under (domestic law) for the determination of the lawfulness of his detention\". Applying these principles to the facts of the present case they contended that the requirements of Article 5 § 2 (art. 5-2) were clearly met.",
"40. Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 13, § 28). Whilst this information must be conveyed \"promptly\" (in French:\" dans le plus court délai \"), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.",
"41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11 (1) of the 1978 Act on suspicion of being terrorists (see paragraphs 9 and 13 above). This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5 § 2 (art. 5-2), as the Government conceded.",
"However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations (see paragraphs 9, 10, and 14 above). There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation.",
"42. Mr Fox and Ms Campbell were arrested at 3.40 p.m. on 5 February 1986 at Woodbourne RUC station and then separately questioned the same day between 8.15 p.m. and 10.00 p.m. at Castlereagh Police Office (see paragraph 9 above). Mr Hartley, for his part, was arrested at his home at 7.55 a.m. on 18 August 1986 and taken to Antrim Police Station where he was questioned between 11.05 a.m. and 12.15 p.m. (see paragraph 13 above). In the context of the present case these intervals of a few hours cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 § 2 (art. 5-2).",
"43. In conclusion there was therefore no breach of Article 5 § 2 (art. 5-2) in relation to any of the applicants.",
"IV. ALLEGED BREACH OF ARTICLE 5 § 4 (art. 5-4)",
"44. The applicants contended that, as the Convention had not been incorporated into United Kingdom law, they had been unable to challenge the lawfulness of their detention before the domestic courts in accordance with Article 5 § 4 (art. 5-4), which provides:",
"\"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\"",
"The majority of the Commission concluded that there had been no such violation. They were of the opinion that the important safeguard contained in Article 5 § 4 (art. 5-4) became devoid of purpose where, as in the present case, the detainees were released before a speedy determination of the lawfulness of the detention could take place.",
"The Government submitted that the courts, in an action for habeas corpus, can examine both the procedural legality of the detention and whether the person was genuinely suspected of being a terrorist. In the alternative, they followed the Commission ’ s view.",
"In reply, the applicants adopted the reasoning of Mr Danelius in his dissenting opinion in the Commission ’ s report. He took the view that the entitlement set out in Article 5 § 4 (art. 5-4) was also valid for short periods of detention; and that neither an application for habeas corpus nor a claim for damages for false imprisonment could ever secure this entitlement as interpreted by the Court in its Brogan and Others judgment (loc. cit., pp. 34-35, § 65), since the existence of a reasonable suspicion was not a condition for the lawfulness of an arrest effected under section 11 (1) of the 1978 Act.",
"45. Mr Fox and Ms Campbell were detained for approximately 44 hours, Mr Hartley for approximately 30 hours (see paragraphs 10 and 14 above). Mr Hartley brought no proceedings in connection with his arrest or detention (see paragraph 14 above). On the other hand, on the day following their arrest both Mr Fox and Ms Campbell instituted proceedings for habeas corpus, but they were released before the applications came on for hearing before a judge (see paragraph 11 above).",
"All three applicants were released speedily before any judicial control of their detention had taken place. It is not for the Court to rule in abstracto as to whether, had this not been so, the scope of the remedies available would or would not have satisfied the requirements of Article 5 § 4 (art. 5-4).",
"Accordingly, the Court does not find it necessary to examine the merits of the applicants ’ complaint under Article 5 § 4 (art. 5-4).",
"V. ALLEGED BREACH OF ARTICLE 5 § 5 (art. 5-5)",
"46. The applicants further alleged a breach of Article 5 § 5 (art. 5-5), which reads:",
"\"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"",
"Their arrest and detention have been held to be in breach of paragraph 1 of Article 5 (art. 5-1) (see paragraph 36 above). This violation could not give rise, either before or after the findings made by this Court in the present judgment, to an enforceable claim for compensation by the victims before the Northern Ireland courts (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 35, § 67).",
"There has therefore been a violation of paragraph 5 of Article 5 (art. 5-5) in respect of all three applicants.",
"VI. ALLEGED BREACH OF ARTICLE 13 (art. 13)",
"47. Finally, the applicants submitted that the facts of their cases also disclosed a breach of Article 13 (art. 13), which provides:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"In the light of its findings in paragraphs 43 and 45 above, the Court does not deem it necessary to examine this complaint.",
"VII. APPLICATION OF ARTICLE 50 (art. 50)",
"48. By virtue of Article 50 (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"The applicants did not submit any claim for pecuniary damage. They did, however, seek substantial compensation in such amount as the Court considered equitable for the non-pecuniary damage allegedly suffered by each of them, together with the sum of £37,500 in respect of their costs and expenses referable to the proceedings before the Convention institutions. They expressed their willingness to endeavour to agree the appropriate amounts with the Government and only to refer the matter to the Court for assessment in default of such agreement.",
"The Government considered it more appropriate to reserve their submissions as to the compensation claim until the delivery of the Court ’ s judgment on the substantive issues.",
"In these circumstances, therefore, the Court considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved."
] |
273 | Brogan and Others v. the United Kingdom | 29 November 1988 | The four applicants, who were suspected of terrorism, were arrested by the police in Northern Ireland and, after being questioned for periods ranging from four days and six hours to six days, sixteen hours and a half, were released without being charged or brought before a magistrate. | The Court held that there had been a violation of Article 5 § 3 (right to liberty and security) of the Convention, finding that the requirement of “promptness” could not be stretched to a delay of four days and six hours or more. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Terence Patrick Brogan",
"11. The first applicant, Mr Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland.",
"12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours.",
"13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer. He was also interrogated concerning his suspected membership of the Provisional Irish Republican Army (\"IRA\"), a proscribed organisation for the purposes of the 1984 Act. He maintained total silence and refused to answer any questions put to him. In addition, he turned away from his questioners and stared at the floor, ceiling or wall and periodically stood to attention. He was visited by his solicitor on 19 and 21 September 1984.",
"B. Dermot Coyle",
"14. The second applicant, Mr Dermot Coyle, was born in 1953. He is at present unemployed and lives in County Tyrone, Northern Ireland.",
"15. He was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours.",
"16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA. He maintained complete silence apart from one occasion when he asked for his cigarettes. In one interview, he spat several times on the floor and across the table in the interview room. He was visited by his solicitor on 3 and 4 October 1984.",
"C. William McFadden",
"17. The third applicant, Mr William McFadden, was born in 1959. He is at present unemployed and lives in Londonderry, Northern Ireland.",
"18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours.",
"19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA. Apart from one interview when he answered questions of a general nature, he refused to answer any questions put to him. In addition, he periodically stood up or sat on the floor of the interview room. He was visited by his solicitor on 3 October 1984.",
"D. Michael Tracey",
"20. The fourth applicant, Mr Michael Tracey, was born in 1962. He is an apprentice joiner and lives in Londonderry, Northern Ireland.",
"21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary (\"RUC\") Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours.",
"22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army (\"INLA\"), a proscribed terrorist organisation. He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls and on the floor. He was visited by his solicitor on 3 October 1984.",
"E. Facts common to all four applicants",
"23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. They were cautioned that they need not say anything, but that anything they did say might be used in evidence.",
"24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive.",
"26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 30-33 below).",
"27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the INLA as well as the IRA. It has been renewed every year but will expire in March 1989, when the Government intend to introduce permanent legislation.",
"28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (for 1986 and 1987), who also completed in 1987 a wider-scale review of the operation of the 1984 Act.",
"29. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions fell properly within the sphere of the executive.",
"B. Power to arrest without warrant under the 1984 and other Acts",
"30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"31. According to the definition given in section 14 (1) of the 1984 Act, terrorism \"means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"32. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act (see paragraph 30 above), provides that where a person arrested without warrant is not within twenty-four hours released from custody, he must be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person whom he suspected of being a terrorist. Such a person could be detained for up to seventy-two hours without being brought before a court.",
"The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act.",
"C. Exercise of the power to make an arrest under section 12 (1)(b) of the 1984 Act",
"34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"35. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"D. Purpose of arrest and detention under section 12 of the 1984 Act",
"36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205 and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12 (1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"E. Extension of period of detention",
"37. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government ’ s memorial.",
"According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions (see paragraph 6 above), just over 2% of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State.",
"F. Remedies",
"38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas corpus",
"39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12 (4) and (5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5 (2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit., at 18).",
"40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742 and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit., at 15).",
"In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"PROCEEDINGS BEFORE THE COMMISSION",
"42. The applicants applied to the Commission on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively (applications nos. 11209/84, 11234/84, 11266/84 and 11386/85). They claimed that their arrest and detention were not justified under Article 5 para. 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 3, 4 and 5 of that Article (art. 5-2, art. 5-3, art. 5-4, art. 5-5). They also alleged that, contrary to Article 13 (art. 13), they had no effective remedy in respect of their other complaints.",
"The complaint under Article 5 para. 2 (art. 5-2) was subsequently withdrawn.",
"43. On 10 July 1986, the Commission ordered the joinder of the applications in pursuance of Rule 29 of its Rules of Procedure and, on the following day, it declared the applications admissible.",
"In its report of 14 May 1987 (drawn up in accordance with Article 31) (art. 31), the Commission concluded that there had been a breach of paragraphs 3 and 5 of Article 5 (art. 5-3, art. 5-5) in respect of Mr Brogan and Mr Coyle (by ten votes to two for paragraph 3 (art. 5-3), and nine votes to three for paragraph 5 (art. 5-5)), but not in respect of Mr McFadden and Mr Tracey (by eight votes to four for both paragraphs (art. 5-3, art. 5-5)). It also concluded that there had been no breach of paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) (unanimously for paragraph 1 (art. 5-1), and by ten votes to two for paragraph 4 (art. 5-4)) and finally that no separate issue arose under Article 13 (art. 13) (unanimously).",
"The full text of the Commission ’ s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment.",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"44. At the public hearing on 25 May 1988, the Government maintained in substance the concluding submissions set out in their memorial, whereby they requested the Court to decide",
"\"(1) that the facts disclose no breach of paragraphs 1, 3, 4 or 5 of Article 5 (art. 5-1, art. 5-3, art. 5-4, art. 5-5) of the Convention;",
"(2) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention\".",
"In addition, the Government requested the Court not to entertain the complaint raised under Article 5 para. 2 (art. 5-2).",
"AS TO THE LAW",
"I. SCOPE OF THE CASE BEFORE THE COURT",
"45. In their original petitions to the Commission, the applicants alleged breach of paragraph 2 of Article 5 (art. 5-2), which provides:",
"\"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\"",
"However, they subsequently withdrew the claim, and the Commission noted in its admissibility decision that the applicants were no longer complaining under paragraph 2 (art. 5-2).",
"In a letter filed in the registry on 17 May 1988, the applicants sought the leave of the Court to reinstate the complaint. In their oral pleadings both the respondent Government and the Commission objected to the applicants ’ request.",
"46. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Weeks judgment of 2 March 1987, Series A no. 114, p. 21, para. 37). The Court considers that regard must be had in the instant case to the express withdrawal of the claim under paragraph 2 (art. 5-2). As a result, the Commission discontinued its examination of the admissibility of this complaint. To permit the applicants to resuscitate this complaint before the Court would be to circumvent the machinery established for the examination of petitions under the Convention.",
"47. Consequently, the allegation that there has been a breach of Article 5 para. 2 (art. 5-2) cannot be entertained.",
"II. GENERAL APPROACH",
"48. The Government have adverted extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism.",
"The Court, having taken notice of the growth of terrorism in modern society, has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 23 and 27-28, paras. 48-49 and 59).",
"The Government informed the Secretary General of the Council of Europe on 22 August 1984 that they were withdrawing a notice of derogation under Article 15 (art. 15) which had relied on an emergency situation in Northern Ireland (see Yearbook of the Convention, vol. 14, p. 32 [1971], vol. 16, pp. 26-28 [1973], vol. 18, p. 18 [1975], and vol. 21, p. 22 [1978], for communications giving notice of derogation, and Information Bulletin on Legal Activities within the Council of Europe and in Member States, vol. 21, p. 2 [July, 1985], for the withdrawal). The Government indicated accordingly that in their opinion \"the provisions of the Convention are being fully executed\". In any event, as they pointed out, the derogation did not apply to the area of law in issue in the present case.",
"Consequently, there is no call in the present proceedings to consider whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of a terrorist campaign in Northern Ireland. Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 (art. 5), it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose.",
"III. ALLEGED BREACH OF ARTICLE 5 PARA. 1 (art. 5-1)",
"49. The applicants alleged breach of Article 5 para. 1 (art. 5-1) of the Convention, which, in so far as relevant, provides:",
"\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...\"",
"There was no dispute that the applicants ’ arrest and detention were \"lawful\" under Northern Ireland law and, in particular, \"in accordance with a procedure prescribed by law\". The applicants argued that the deprivation of liberty they suffered by virtue of section 12 of the 1984 Act failed to comply with Article 5 para. 1 (c) (art. 5-1-c), on the ground that they were not arrested on suspicion of an \"offence\", nor was the purpose of their arrest to bring them before the competent legal authority.",
"50. Under the first head of argument, the applicants maintained that their arrest and detention were grounded on suspicion, not of having committed a specific offence, but rather of involvement in unspecified acts of terrorism, something which did not constitute a breach of the criminal law in Northern Ireland and could not be regarded as an \"offence\" under Article 5 para. 1 (c) (art. 5-1-c).",
"The Government have not disputed that the 1984 Act did not require an arrest to be based on suspicion of a specific offence but argued that the definition of terrorism in the Act was compatible with the concept of an offence and satisfied the requirements of paragraph 1 (c) (art. 5-1-c) in this respect, as the Court ’ s case-law confirmed. In this connection, the Government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests.",
"51. Section 14 of the 1984 Act defines terrorism as \"the use of violence for political ends\", which includes \"the use of violence for the purpose of putting the public or any section of the public in fear\" (see paragraph 31 above). The same definition of acts of terrorism - as contained in the Detention of Terrorists (Northern Ireland) Order 1972 and the Northern Ireland (Emergency Provisions) Act 1973 - has already been found by the Court to be \"well in keeping with the idea of an offence\" (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 74-75, para. 196).",
"In addition, all of the applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected membership of proscribed organisations (see paragraphs 13, 16, 19 and 22 above).",
"Accordingly, the arrest and subsequent detention of the applicants were based on a reasonable suspicion of commission of an offence within the meaning of Article 5 para. 1 (c) (art. 5-1-c).",
"52. Article 5 para. 1 (c) (art. 5-1-c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority.",
"The Government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants ’ arrest, they would undoubtedly have been charged and brought to trial.",
"The applicants contested these arguments and referred to the fact that they were neither charged nor brought before a court during their detention. No charge had necessarily to follow an arrest under section 12 of the 1984 Act and the requirement under the ordinary law to bring the person before a court had been made inapplicable to detention under this Act (see paragraphs 30 and 32 above). In the applicants ’ contention, this was therefore a power of administrative detention exercised for the purpose of gathering information, as the use in practice of the special powers corroborated.",
"53. The Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it.",
"The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5 para. 1 (c) (art. 5-1-c). As the Government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody.",
"Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded their arrest (see paragraph 51 above). Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority.",
"Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph 1 (c) (art. 5-1-c).",
"54. In conclusion, there has been no violation of Article 5 para. 1 (art. 5-1).",
"IV. ALLEGED BREACH OF ARTICLE 5 PARA. 3 (art. 5-3)",
"55. Under the 1984 Act, a person arrested under section 12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for an initial period of forty-eight hours, and, on the authorisation of the Secretary of State for Northern Ireland, for a further period or periods of up to five days (see paragraphs 30-37 above).",
"The applicants claimed, as a consequence of their arrest and detention under this legislation, to have been the victims of a violation of Article 5 para. 3 (art. 5-3), which provides:",
"\"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\"",
"The applicants noted that a person arrested under the ordinary law of Northern Ireland must be brought before a Magistrates ’ Court within forty-eight hours (see paragraph 32 above); and that under the ordinary law in England and Wales (Police and Criminal Evidence Act 1984) the maximum period of detention permitted without charge is four days, judicial approval being required at the thirty-six hour stage. In their submission, there was no plausible reason why a seven-day detention period was necessary, marking as it did such a radical departure from ordinary law and even from the three-day period permitted under the special powers of detention embodied in the Northern Ireland (Emergency Provisions) Act 1978 (see paragraph 33 above). Nor was there any justification for not entrusting such decisions to the judiciary of Northern Ireland.",
"56. The Government have argued that in view of the nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient to bring charges, the maximum statutory period of detention of seven days was an indispensable part of the effort to combat that threat, as successive parliamentary debates and reviews of the legislation had confirmed (see paragraphs 26-29 above). In particular, they drew attention to the difficulty faced by the security forces in obtaining evidence which is both admissible and usable in consequence of training in anti-interrogation techniques adopted by those involved in terrorism. Time was also needed to undertake necessary scientific examinations, to correlate information from other detainees and to liaise with other security forces. The Government claimed that the need for a power of extension of the period of detention was borne out by statistics. For instance, in 1987 extensions were granted in Northern Ireland in respect of 365 persons. Some 83 were detained in excess of five days and of this number 39 were charged with serious terrorist offences during the extended period.",
"As regards the suggestion that extensions of detention beyond the initial forty-eight-hour period should be controlled or even authorised by a judge, the Government pointed out the difficulty, in view of the acute sensitivity of some of the information on which the suspicion was based, of producing it in court. Not only would the court have to sit in camera but neither the detained person nor his legal advisers could be present or told any of the details. This would require a fundamental and undesirable change in the law and procedure of the United Kingdom under which an individual who is deprived of his liberty is entitled to be represented by his legal advisers at any proceedings before a court relating to his detention. If entrusted with the power to grant extensions of detention, the judges would be seen to be exercising an executive rather than a judicial function. It would add nothing to the safeguards against abuse which the present arrangements are designed to achieve and could lead to unanswerable criticism of the judiciary. In all the circumstances, the Secretary of State was better placed to take such decisions and to ensure a consistent approach. Moreover, the merits of each request to extend detention were personally scrutinised by the Secretary of State or, if he was unavailable, by another Minister (see paragraph 37 above).",
"57. The Commission, in its report, cited its established case-law to the effect that a period of four days in cases concerning ordinary criminal offences and of five days in exceptional cases could be considered compatible with the requirement of promptness in Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in application no. 2894/66, X v. the Netherlands, Yearbook of the Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)). In the Commission ’ s opinion, given the context in which the applicants were arrested and the special problems associated with the investigation of terrorist offences, a somewhat longer period of detention than in normal cases was justified. The Commission concluded that the periods of four days and six hours (Mr McFadden) and four days and eleven hours (Mr Tracey) did satisfy the requirement of promptness, whereas the periods of five days and eleven hours (Mr Brogan) and six days and sixteen and a half hours (Mr Coyle) did not.",
"58. The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 para. 3 (art. 5-3). No violation of Article 5 para. 3 (art. 5-3) can arise if the arrested person is released \"promptly\" before any judicial control of his detention would have been feasible (see the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52). If the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer.",
"The assessment of \"promptness\" has to be made in the light of the object and purpose of Article 5 (art. 5) (see paragraph 48 above). The Court has regard to the importance of this Article (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (see the Bozano judgment of 18 December 1986, Series A no. 111, p. 23, para. 54). Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, \"one of the fundamental principles of a democratic society ..., which is expressly referred to in the Preamble to the Convention\" (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, pp. 25-26, para. 55) and \"from which the whole Convention draws its inspiration\" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69).",
"59. The obligation expressed in English by the word \"promptly\" and in French by the word\" aussitôt\" is clearly distinguishable from the less strict requirement in the second part of paragraph 3 (art. 5-3) (\"reasonable time\"/\" délai raisonnable \") and even from that in paragraph 4 of Article 5 (art. 5-4) (\"speedily\"/\" à bref délai \"). The term \"promptly\" also occurs in the English text of paragraph 2 (art. 5-2), where the French text uses the words\" dans le plus court délai \". As indicated in the Ireland v. the United Kingdom judgment ( 18 January 1978, Series A no. 25, p. 76, para. 199), \"promptly\" in paragraph 3 (art. 5-3) may be understood as having a broader significance than\" aussitôt \", which literally means immediately. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see, inter alia, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention of 23 May 1969 on the Law of Treaties).",
"The use in the French text of the word\" aussitôt \", with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of \"promptness\" is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3 (art. 5-3). Whereas promptness is to be assessed in each case according to its special features (see the above-mentioned de Jong, Baljet and van den Brink judgment, Series A no. 77, p. 25, para. 52), the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that is to the point of effectively negativing the State ’ s obligation to ensure a prompt release or a prompt appearance before a judicial authority.",
"60. The instant case is exclusively concerned with the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The requirements under the ordinary law in Northern Ireland as to bringing an accused before a court were expressly made inapplicable to such arrest and detention by section 12(6) of the 1984 Act (see paragraphs 30 and 32 above). There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 5 para. 3 (art. 5-3).",
"None of the applicants was in fact brought before a judge or judicial officer during his time in custody. The issue to be decided is therefore whether, having regard to the special features relied on by the Government, each applicant ’ s release can be considered as \"prompt\" for the purposes of Article 5 para. 3 (art. 5-3).",
"61. The investigation of terrorist offences undoubtedly presents the authorities with special problems, partial reference to which has already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53 above). The Court takes full judicial notice of the factors adverted to by the Government in this connection. It is also true that in Northern Ireland the referral of police requests for extended detention to the Secretary of State and the individual scrutiny of each police request by a Minister do provide a form of executive control (see paragraph 37 above). In addition, the need for the continuation of the special powers has been constantly monitored by Parliament and their operation regularly reviewed by independent personalities (see paragraphs 26-29 above). The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3 (art. 5-3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer.",
"The difficulties, alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 para. 3 (art. 5-3), for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 para. 3 (art. 5-3), dispensing altogether with \"prompt\" judicial control.",
"62. As indicated above (paragraph 59), the scope for flexibility in interpreting and applying the notion of \"promptness\" is very limited. In the Court ’ s view, even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by Mr McFadden (see paragraph 18 above), falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word \"promptly\". An interpretation to this effect would import into Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought \"promptly\" before a judicial authority or released \"promptly\" following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3 (art. 5-3).",
"There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of all four applicants.",
"V. ALLEGED BREACH OF ARTICLE 5 PARA. 4 (art. 5-4)",
"63. The applicants argued that as Article 5 (art. 5) had not been incorporated into United Kingdom law, an effective review of the lawfulness of their detention, as required by paragraph 4 of Article 5 (art. 5-4), was precluded. Article 5 para. 4 (art. 5-4) provides as follows:",
"\"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\"",
"64. The remedy of habeas corpus was available to the applicants in the present case, though they chose not to avail themselves of it. Such proceedings would have led to a review of the lawfulness of their arrest and detention under the terms of the 1984 Act and the applicable principles developed by case-law (see paragraphs 39-40 above).",
"The Commission found that the requirements of Article 5 para. 4 (art. 5-4) were satisfied since the review available in Northern Ireland would have encompassed the procedural and substantive basis, under the Convention, for their detention. The Government have adopted the same reasoning.",
"65. According to the Court ’ s established case-law, the notion of \"lawfulness\" under paragraph 4 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1) (see notably the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 23, para. 52); and whether an \"arrest\" or \"detention\" can be regarded as \"lawful\" has to be determined in the light not only of domestic law, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see notably the above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57). By virtue of paragraph 4 of Article 5 (art. 5-4), arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the \"lawfulness\", in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.",
"As is shown by the relevant case-law, in particular the Van Hout and Lynch judgments (see paragraph 40 above), these conditions are met in the practice of the Northern Ireland courts in relation to the remedy of habeas corpus.",
"Accordingly, there has been no violation of Article 5 para. 4 (art. 5-4).",
"VI. ALLEGED BREACH OF ARTICLE 5 PARA. 5 (art. 5-5)",
"66. The applicants further alleged breach of Article 5 para. 5 (art. 5-5) which reads:",
"\"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\"",
"A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see paragraph 41 above on false imprisonment). As Article 5 (art. 5) is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 (art. 5) which does not at the same time constitute a breach of United Kingdom law.",
"The Government argued, inter alia, that the aim of paragraph 5 (art. 5-5) is to ensure that the victim of an \"unlawful\" arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that \"lawful\" for the purposes of the various paragraphs of Article 5 (art. 5) is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of paragraph 5 because the applicants ’ deprivation of liberty was lawful under Northern Ireland law and was not arbitrary.",
"67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 (art. 5-5) which refers to arrest or detention \"in contravention of the provisions of this Article\".",
"In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of paragraph 3 of Article 5 (art. 5-3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government.",
"Accordingly, there has also been a breach of paragraph 5 (art. 5-5) in this case in respect of all four applicants. This finding is without prejudice to the Court ’ s competence under Article 50 (art. 50) in the matter of awarding compensation by way of just satisfaction (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 13, para. 30).",
"VII. ALLEGED BREACH OF ARTICLE 13 (art. 13)",
"68. The applicants claimed before the Commission that they had no effective remedy in Northern Ireland in respect of their complaints under Article 5 (art. 5) and that consequently there was also a breach of Article 13 (art. 13) which provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"In the light of the finding that there has been no violation of Article 5 para. 4 (art. 5-4) in this case, the Court does not deem it necessary to inquire whether the less strict requirements of Article 13 (art. 13) were complied with, especially as the applicants did not pursue this complaint before the Court (see, inter alia, the Bouamar judgment of 29 February 1988, Series A no. 129, p. 25, para. 65).",
"VIII. APPLICATION OF ARTICLE 50 (art. 50)",
"69. By virtue of Article 50 (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"70. The applicants, three of whom have received legal aid before the Commission and the Court, did not submit any claim for reimbursement of costs and expenses, and this is not a matter which the Court has to examine of its own motion (see, as the most recent authority, the above-mentioned Bouamar judgment, ibid., p. 26, para. 68).",
"71. On the other hand, the applicants contended that \"because the breaches were conscious and flagrant, exemplary damages or an enhanced award of damages ... would be appropriate\". They suggested that compensation should be calculated on the basis of approximately £2000 (two thousand pounds) per hour for each hour of wrongful detention.",
"The Government requested the Court to reserve the matter.",
"In the circumstances of the case, the Court considers that the question of the application of Article 50 (art. 50) is not yet ready for decision in relation to the claim for compensation for prejudice suffered. It is therefore necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 53 paras. 1 and 4 of the Rules of Court)."
] |
274 | Brogan and Others v. the United Kingdom | 29 November 1988 (judgment) | The four applicants, suspected of terrorist acts, were arrested by the police in Northern Ireland in September and October 1984 and, after being questioned for periods ranging from four days and six hours to six days and sixteen and a half hours, were released without having been charged or brought before a judge. The United Kingdom Government referred extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism. | The Court observed, among other things, that on 22 August 1984, the British Government had informed the Secretary General of the Council of Europe that they were withdrawing a notice of derogation issued under Article 15 of the Convention relying on the emergency situation in Northern Ireland. Consequently, there was no call in the present proceedings to consider whether any derogation from the United Kingdom’s obligations under the Convention might be permissible under Article 15 by reason of a terrorist campaign in Northern Ireland. Examination of the case had to proceed on the basis that the Articles of the Convention in respect of which complaints had been made remained fully applicable. This did not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 it was for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose. The Court found that there had been a violation of Article 5 § 3 of the Convention, taking the view that it could not be considered that a period of four days and six hours, or even more, met the requirement of promptness. | Derogation in time of emergency | Information about the date on which the measures ceased to apply | [
"I. PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Terence Patrick Brogan",
"11. The first applicant, Mr Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland.",
"12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours.",
"13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer. He was also interrogated concerning his suspected membership of the Provisional Irish Republican Army (\"IRA\"), a proscribed organisation for the purposes of the 1984 Act. He maintained total silence and refused to answer any questions put to him. In addition, he turned away from his questioners and stared at the floor, ceiling or wall and periodically stood to attention. He was visited by his solicitor on 19 and 21 September 1984.",
"B. Dermot Coyle",
"14. The second applicant, Mr Dermot Coyle, was born in 1953. He is at present unemployed and lives in County Tyrone, Northern Ireland.",
"15. He was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours.",
"16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA. He maintained complete silence apart from one occasion when he asked for his cigarettes. In one interview, he spat several times on the floor and across the table in the interview room. He was visited by his solicitor on 3 and 4 October 1984.",
"C. William McFadden",
"17. The third applicant, Mr William McFadden, was born in 1959. He is at present unemployed and lives in Londonderry, Northern Ireland.",
"18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours.",
"19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA. Apart from one interview when he answered questions of a general nature, he refused to answer any questions put to him. In addition, he periodically stood up or sat on the floor of the interview room. He was visited by his solicitor on 3 October 1984.",
"D. Michael Tracey",
"20. The fourth applicant, Mr Michael Tracey, was born in 1962. He is an apprentice joiner and lives in Londonderry, Northern Ireland.",
"21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary (\"RUC\") Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours.",
"22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army (\"INLA\"), a proscribed terrorist organisation. He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls and on the floor. He was visited by his solicitor on 3 October 1984.",
"E. Facts common to all four applicants",
"23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. They were cautioned that they need not say anything, but that anything they did say might be used in evidence.",
"24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive.",
"26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 30-33 below).",
"27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the INLA as well as the IRA. It has been renewed every year but will expire in March 1989, when the Government intend to introduce permanent legislation.",
"28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (for 1986 and 1987), who also completed in 1987 a wider-scale review of the operation of the 1984 Act.",
"29. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions fell properly within the sphere of the executive.",
"B. Power to arrest without warrant under the 1984 and other Acts",
"30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"31. According to the definition given in section 14 (1) of the 1984 Act, terrorism \"means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"32. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act (see paragraph 30 above), provides that where a person arrested without warrant is not within twenty-four hours released from custody, he must be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person whom he suspected of being a terrorist. Such a person could be detained for up to seventy-two hours without being brought before a court.",
"The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act.",
"C. Exercise of the power to make an arrest under section 12 (1)(b) of the 1984 Act",
"34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"35. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"D. Purpose of arrest and detention under section 12 of the 1984 Act",
"36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205 and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12 (1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"E. Extension of period of detention",
"37. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government ’ s memorial.",
"According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions (see paragraph 6 above), just over 2% of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State.",
"F. Remedies",
"38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas corpus",
"39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12 (4) and (5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5 (2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit., at 18).",
"40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742 and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit., at 15).",
"In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"PROCEEDINGS BEFORE THE COMMISSION",
"42. The applicants applied to the Commission on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively (applications nos. 11209/84, 11234/84, 11266/84 and 11386/85). They claimed that their arrest and detention were not justified under Article 5 para. 1 (art. 5-1) of the Convention and that there had also been breaches of paragraphs 2, 3, 4 and 5 of that Article (art. 5-2, art. 5-3, art. 5-4, art. 5-5). They also alleged that, contrary to Article 13 (art. 13), they had no effective remedy in respect of their other complaints.",
"The complaint under Article 5 para. 2 (art. 5-2) was subsequently withdrawn.",
"43. On 10 July 1986, the Commission ordered the joinder of the applications in pursuance of Rule 29 of its Rules of Procedure and, on the following day, it declared the applications admissible.",
"In its report of 14 May 1987 (drawn up in accordance with Article 31) (art. 31), the Commission concluded that there had been a breach of paragraphs 3 and 5 of Article 5 (art. 5-3, art. 5-5) in respect of Mr Brogan and Mr Coyle (by ten votes to two for paragraph 3 (art. 5-3), and nine votes to three for paragraph 5 (art. 5-5)), but not in respect of Mr McFadden and Mr Tracey (by eight votes to four for both paragraphs (art. 5-3, art. 5-5)). It also concluded that there had been no breach of paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) (unanimously for paragraph 1 (art. 5-1), and by ten votes to two for paragraph 4 (art. 5-4)) and finally that no separate issue arose under Article 13 (art. 13) (unanimously).",
"The full text of the Commission ’ s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment.",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"44. At the public hearing on 25 May 1988, the Government maintained in substance the concluding submissions set out in their memorial, whereby they requested the Court to decide",
"\"(1) that the facts disclose no breach of paragraphs 1, 3, 4 or 5 of Article 5 (art. 5-1, art. 5-3, art. 5-4, art. 5-5) of the Convention;",
"(2) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention\".",
"In addition, the Government requested the Court not to entertain the complaint raised under Article 5 para. 2 (art. 5-2).",
"AS TO THE LAW",
"I. SCOPE OF THE CASE BEFORE THE COURT",
"45. In their original petitions to the Commission, the applicants alleged breach of paragraph 2 of Article 5 (art. 5-2), which provides:",
"\"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\"",
"However, they subsequently withdrew the claim, and the Commission noted in its admissibility decision that the applicants were no longer complaining under paragraph 2 (art. 5-2).",
"In a letter filed in the registry on 17 May 1988, the applicants sought the leave of the Court to reinstate the complaint. In their oral pleadings both the respondent Government and the Commission objected to the applicants ’ request.",
"46. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Weeks judgment of 2 March 1987, Series A no. 114, p. 21, para. 37). The Court considers that regard must be had in the instant case to the express withdrawal of the claim under paragraph 2 (art. 5-2). As a result, the Commission discontinued its examination of the admissibility of this complaint. To permit the applicants to resuscitate this complaint before the Court would be to circumvent the machinery established for the examination of petitions under the Convention.",
"47. Consequently, the allegation that there has been a breach of Article 5 para. 2 (art. 5-2) cannot be entertained.",
"II. GENERAL APPROACH",
"48. The Government have adverted extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism.",
"The Court, having taken notice of the growth of terrorism in modern society, has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 23 and 27-28, paras. 48-49 and 59).",
"The Government informed the Secretary General of the Council of Europe on 22 August 1984 that they were withdrawing a notice of derogation under Article 15 (art. 15) which had relied on an emergency situation in Northern Ireland (see Yearbook of the Convention, vol. 14, p. 32 [1971], vol. 16, pp. 26-28 [1973], vol. 18, p. 18 [1975], and vol. 21, p. 22 [1978], for communications giving notice of derogation, and Information Bulletin on Legal Activities within the Council of Europe and in Member States, vol. 21, p. 2 [July, 1985], for the withdrawal). The Government indicated accordingly that in their opinion \"the provisions of the Convention are being fully executed\". In any event, as they pointed out, the derogation did not apply to the area of law in issue in the present case.",
"Consequently, there is no call in the present proceedings to consider whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of a terrorist campaign in Northern Ireland. Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5 (art. 5), it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose.",
"III. ALLEGED BREACH OF ARTICLE 5 PARA. 1 (art. 5-1)",
"49. The applicants alleged breach of Article 5 para. 1 (art. 5-1) of the Convention, which, in so far as relevant, provides:",
"\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...\"",
"There was no dispute that the applicants ’ arrest and detention were \"lawful\" under Northern Ireland law and, in particular, \"in accordance with a procedure prescribed by law\". The applicants argued that the deprivation of liberty they suffered by virtue of section 12 of the 1984 Act failed to comply with Article 5 para. 1 (c) (art. 5-1-c), on the ground that they were not arrested on suspicion of an \"offence\", nor was the purpose of their arrest to bring them before the competent legal authority.",
"50. Under the first head of argument, the applicants maintained that their arrest and detention were grounded on suspicion, not of having committed a specific offence, but rather of involvement in unspecified acts of terrorism, something which did not constitute a breach of the criminal law in Northern Ireland and could not be regarded as an \"offence\" under Article 5 para. 1 (c) (art. 5-1-c).",
"The Government have not disputed that the 1984 Act did not require an arrest to be based on suspicion of a specific offence but argued that the definition of terrorism in the Act was compatible with the concept of an offence and satisfied the requirements of paragraph 1 (c) (art. 5-1-c) in this respect, as the Court ’ s case-law confirmed. In this connection, the Government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests.",
"51. Section 14 of the 1984 Act defines terrorism as \"the use of violence for political ends\", which includes \"the use of violence for the purpose of putting the public or any section of the public in fear\" (see paragraph 31 above). The same definition of acts of terrorism - as contained in the Detention of Terrorists (Northern Ireland) Order 1972 and the Northern Ireland (Emergency Provisions) Act 1973 - has already been found by the Court to be \"well in keeping with the idea of an offence\" (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 74-75, para. 196).",
"In addition, all of the applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected membership of proscribed organisations (see paragraphs 13, 16, 19 and 22 above).",
"Accordingly, the arrest and subsequent detention of the applicants were based on a reasonable suspicion of commission of an offence within the meaning of Article 5 para. 1 (c) (art. 5-1-c).",
"52. Article 5 para. 1 (c) (art. 5-1-c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority.",
"The Government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants ’ arrest, they would undoubtedly have been charged and brought to trial.",
"The applicants contested these arguments and referred to the fact that they were neither charged nor brought before a court during their detention. No charge had necessarily to follow an arrest under section 12 of the 1984 Act and the requirement under the ordinary law to bring the person before a court had been made inapplicable to detention under this Act (see paragraphs 30 and 32 above). In the applicants ’ contention, this was therefore a power of administrative detention exercised for the purpose of gathering information, as the use in practice of the special powers corroborated.",
"53. The Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it.",
"The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5 para. 1 (c) (art. 5-1-c). As the Government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody.",
"Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded their arrest (see paragraph 51 above). Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority.",
"Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph 1 (c) (art. 5-1-c).",
"54. In conclusion, there has been no violation of Article 5 para. 1 (art. 5-1).",
"IV. ALLEGED BREACH OF ARTICLE 5 PARA. 3 (art. 5-3)",
"55. Under the 1984 Act, a person arrested under section 12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for an initial period of forty-eight hours, and, on the authorisation of the Secretary of State for Northern Ireland, for a further period or periods of up to five days (see paragraphs 30-37 above).",
"The applicants claimed, as a consequence of their arrest and detention under this legislation, to have been the victims of a violation of Article 5 para. 3 (art. 5-3), which provides:",
"\"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\"",
"The applicants noted that a person arrested under the ordinary law of Northern Ireland must be brought before a Magistrates ’ Court within forty-eight hours (see paragraph 32 above); and that under the ordinary law in England and Wales (Police and Criminal Evidence Act 1984) the maximum period of detention permitted without charge is four days, judicial approval being required at the thirty-six hour stage. In their submission, there was no plausible reason why a seven-day detention period was necessary, marking as it did such a radical departure from ordinary law and even from the three-day period permitted under the special powers of detention embodied in the Northern Ireland (Emergency Provisions) Act 1978 (see paragraph 33 above). Nor was there any justification for not entrusting such decisions to the judiciary of Northern Ireland.",
"56. The Government have argued that in view of the nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient to bring charges, the maximum statutory period of detention of seven days was an indispensable part of the effort to combat that threat, as successive parliamentary debates and reviews of the legislation had confirmed (see paragraphs 26-29 above). In particular, they drew attention to the difficulty faced by the security forces in obtaining evidence which is both admissible and usable in consequence of training in anti-interrogation techniques adopted by those involved in terrorism. Time was also needed to undertake necessary scientific examinations, to correlate information from other detainees and to liaise with other security forces. The Government claimed that the need for a power of extension of the period of detention was borne out by statistics. For instance, in 1987 extensions were granted in Northern Ireland in respect of 365 persons. Some 83 were detained in excess of five days and of this number 39 were charged with serious terrorist offences during the extended period.",
"As regards the suggestion that extensions of detention beyond the initial forty-eight-hour period should be controlled or even authorised by a judge, the Government pointed out the difficulty, in view of the acute sensitivity of some of the information on which the suspicion was based, of producing it in court. Not only would the court have to sit in camera but neither the detained person nor his legal advisers could be present or told any of the details. This would require a fundamental and undesirable change in the law and procedure of the United Kingdom under which an individual who is deprived of his liberty is entitled to be represented by his legal advisers at any proceedings before a court relating to his detention. If entrusted with the power to grant extensions of detention, the judges would be seen to be exercising an executive rather than a judicial function. It would add nothing to the safeguards against abuse which the present arrangements are designed to achieve and could lead to unanswerable criticism of the judiciary. In all the circumstances, the Secretary of State was better placed to take such decisions and to ensure a consistent approach. Moreover, the merits of each request to extend detention were personally scrutinised by the Secretary of State or, if he was unavailable, by another Minister (see paragraph 37 above).",
"57. The Commission, in its report, cited its established case-law to the effect that a period of four days in cases concerning ordinary criminal offences and of five days in exceptional cases could be considered compatible with the requirement of promptness in Article 5 para. 3 (art. 5-3) (see respectively the admissibility decisions in application no. 2894/66, X v. the Netherlands, Yearbook of the Convention, vol. 9, p. 568 (1966), and in application no. 4960/71, X v. Belgium, Collection of Decisions, vol. 42, pp. 54-55 (1973)). In the Commission ’ s opinion, given the context in which the applicants were arrested and the special problems associated with the investigation of terrorist offences, a somewhat longer period of detention than in normal cases was justified. The Commission concluded that the periods of four days and six hours (Mr McFadden) and four days and eleven hours (Mr Tracey) did satisfy the requirement of promptness, whereas the periods of five days and eleven hours (Mr Brogan) and six days and sixteen and a half hours (Mr Coyle) did not.",
"58. The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 para. 3 (art. 5-3). No violation of Article 5 para. 3 (art. 5-3) can arise if the arrested person is released \"promptly\" before any judicial control of his detention would have been feasible (see the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52). If the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer.",
"The assessment of \"promptness\" has to be made in the light of the object and purpose of Article 5 (art. 5) (see paragraph 48 above). The Court has regard to the importance of this Article (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (see the Bozano judgment of 18 December 1986, Series A no. 111, p. 23, para. 54). Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, \"one of the fundamental principles of a democratic society ..., which is expressly referred to in the Preamble to the Convention\" (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, pp. 25-26, para. 55) and \"from which the whole Convention draws its inspiration\" (see, mutatis mutandis, the Engel and Others judgment of 8 June 1976, Series A no. 22, p. 28, para. 69).",
"59. The obligation expressed in English by the word \"promptly\" and in French by the word\" aussitôt\" is clearly distinguishable from the less strict requirement in the second part of paragraph 3 (art. 5-3) (\"reasonable time\"/\" délai raisonnable \") and even from that in paragraph 4 of Article 5 (art. 5-4) (\"speedily\"/\" à bref délai \"). The term \"promptly\" also occurs in the English text of paragraph 2 (art. 5-2), where the French text uses the words\" dans le plus court délai \". As indicated in the Ireland v. the United Kingdom judgment ( 18 January 1978, Series A no. 25, p. 76, para. 199), \"promptly\" in paragraph 3 (art. 5-3) may be understood as having a broader significance than\" aussitôt \", which literally means immediately. Thus confronted with versions of a law-making treaty which are equally authentic but not exactly the same, the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and achieve the object of the treaty (see, inter alia, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 30, para. 48, and Article 33 para. 4 of the Vienna Convention of 23 May 1969 on the Law of Treaties).",
"The use in the French text of the word\" aussitôt \", with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of \"promptness\" is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3 (art. 5-3). Whereas promptness is to be assessed in each case according to its special features (see the above-mentioned de Jong, Baljet and van den Brink judgment, Series A no. 77, p. 25, para. 52), the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 para. 3 (art. 5-3), that is to the point of effectively negativing the State ’ s obligation to ensure a prompt release or a prompt appearance before a judicial authority.",
"60. The instant case is exclusively concerned with the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The requirements under the ordinary law in Northern Ireland as to bringing an accused before a court were expressly made inapplicable to such arrest and detention by section 12(6) of the 1984 Act (see paragraphs 30 and 32 above). There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 5 para. 3 (art. 5-3).",
"None of the applicants was in fact brought before a judge or judicial officer during his time in custody. The issue to be decided is therefore whether, having regard to the special features relied on by the Government, each applicant ’ s release can be considered as \"prompt\" for the purposes of Article 5 para. 3 (art. 5-3).",
"61. The investigation of terrorist offences undoubtedly presents the authorities with special problems, partial reference to which has already been made under Article 5 para. 1 (art. 5-1) (see paragraph 53 above). The Court takes full judicial notice of the factors adverted to by the Government in this connection. It is also true that in Northern Ireland the referral of police requests for extended detention to the Secretary of State and the individual scrutiny of each police request by a Minister do provide a form of executive control (see paragraph 37 above). In addition, the need for the continuation of the special powers has been constantly monitored by Parliament and their operation regularly reviewed by independent personalities (see paragraphs 26-29 above). The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3 (art. 5-3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer.",
"The difficulties, alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 para. 3 (art. 5-3), for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 para. 3 (art. 5-3), dispensing altogether with \"prompt\" judicial control.",
"62. As indicated above (paragraph 59), the scope for flexibility in interpreting and applying the notion of \"promptness\" is very limited. In the Court ’ s view, even the shortest of the four periods of detention, namely the four days and six hours spent in police custody by Mr McFadden (see paragraph 18 above), falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word \"promptly\". An interpretation to this effect would import into Article 5 para. 3 (art. 5-3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought \"promptly\" before a judicial authority or released \"promptly\" following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3 (art. 5-3).",
"There has thus been a breach of Article 5 para. 3 (art. 5-3) in respect of all four applicants.",
"V. ALLEGED BREACH OF ARTICLE 5 PARA. 4 (art. 5-4)",
"63. The applicants argued that as Article 5 (art. 5) had not been incorporated into United Kingdom law, an effective review of the lawfulness of their detention, as required by paragraph 4 of Article 5 (art. 5-4), was precluded. Article 5 para. 4 (art. 5-4) provides as follows:",
"\"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\"",
"64. The remedy of habeas corpus was available to the applicants in the present case, though they chose not to avail themselves of it. Such proceedings would have led to a review of the lawfulness of their arrest and detention under the terms of the 1984 Act and the applicable principles developed by case-law (see paragraphs 39-40 above).",
"The Commission found that the requirements of Article 5 para. 4 (art. 5-4) were satisfied since the review available in Northern Ireland would have encompassed the procedural and substantive basis, under the Convention, for their detention. The Government have adopted the same reasoning.",
"65. According to the Court ’ s established case-law, the notion of \"lawfulness\" under paragraph 4 (art. 5-4) has the same meaning as in paragraph 1 (art. 5-1) (see notably the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 23, para. 52); and whether an \"arrest\" or \"detention\" can be regarded as \"lawful\" has to be determined in the light not only of domestic law, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 para. 1 (art. 5-1) (see notably the above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57). By virtue of paragraph 4 of Article 5 (art. 5-4), arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the \"lawfulness\", in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.",
"As is shown by the relevant case-law, in particular the Van Hout and Lynch judgments (see paragraph 40 above), these conditions are met in the practice of the Northern Ireland courts in relation to the remedy of habeas corpus.",
"Accordingly, there has been no violation of Article 5 para. 4 (art. 5-4).",
"VI. ALLEGED BREACH OF ARTICLE 5 PARA. 5 (art. 5-5)",
"66. The applicants further alleged breach of Article 5 para. 5 (art. 5-5) which reads:",
"\"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\"",
"A claim for compensation for unlawful deprivation of liberty may be made in the United Kingdom in respect of a breach of domestic law (see paragraph 41 above on false imprisonment). As Article 5 (art. 5) is not considered part of the domestic law of the United Kingdom, no claim for compensation lies for a breach of any provision of Article 5 (art. 5) which does not at the same time constitute a breach of United Kingdom law.",
"The Government argued, inter alia, that the aim of paragraph 5 (art. 5-5) is to ensure that the victim of an \"unlawful\" arrest or detention should have an enforceable right to compensation. In this regard, they have also contended that \"lawful\" for the purposes of the various paragraphs of Article 5 (art. 5) is to be construed as essentially referring back to domestic law and in addition as excluding any element of arbitrariness. They concluded that even in the event of a violation being found of any of the first four paragraphs, there has been no violation of paragraph 5 because the applicants ’ deprivation of liberty was lawful under Northern Ireland law and was not arbitrary.",
"67. The Court, like the Commission, considers that such a restrictive interpretation is incompatible with the terms of paragraph 5 (art. 5-5) which refers to arrest or detention \"in contravention of the provisions of this Article\".",
"In the instant case, the applicants were arrested and detained lawfully under domestic law but in breach of paragraph 3 of Article 5 (art. 5-3). This violation could not give rise, either before or after the findings made by the European Court in the present judgment, to an enforceable claim for compensation by the victims before the domestic courts; this was not disputed by the Government.",
"Accordingly, there has also been a breach of paragraph 5 (art. 5-5) in this case in respect of all four applicants. This finding is without prejudice to the Court ’ s competence under Article 50 (art. 50) in the matter of awarding compensation by way of just satisfaction (see the Neumeister judgment of 7 May 1974, Series A no. 17, p. 13, para. 30).",
"VII. ALLEGED BREACH OF ARTICLE 13 (art. 13)",
"68. The applicants claimed before the Commission that they had no effective remedy in Northern Ireland in respect of their complaints under Article 5 (art. 5) and that consequently there was also a breach of Article 13 (art. 13) which provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"In the light of the finding that there has been no violation of Article 5 para. 4 (art. 5-4) in this case, the Court does not deem it necessary to inquire whether the less strict requirements of Article 13 (art. 13) were complied with, especially as the applicants did not pursue this complaint before the Court (see, inter alia, the Bouamar judgment of 29 February 1988, Series A no. 129, p. 25, para. 65).",
"VIII. APPLICATION OF ARTICLE 50 (art. 50)",
"69. By virtue of Article 50 (art. 50),",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"70. The applicants, three of whom have received legal aid before the Commission and the Court, did not submit any claim for reimbursement of costs and expenses, and this is not a matter which the Court has to examine of its own motion (see, as the most recent authority, the above-mentioned Bouamar judgment, ibid., p. 26, para. 68).",
"71. On the other hand, the applicants contended that \"because the breaches were conscious and flagrant, exemplary damages or an enhanced award of damages ... would be appropriate\". They suggested that compensation should be calculated on the basis of approximately £2000 (two thousand pounds) per hour for each hour of wrongful detention.",
"The Government requested the Court to reserve the matter.",
"In the circumstances of the case, the Court considers that the question of the application of Article 50 (art. 50) is not yet ready for decision in relation to the claim for compensation for prejudice suffered. It is therefore necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 53 paras. 1 and 4 of the Rules of Court)."
] |
275 | Brannigan and McBride v. the United Kingdom | 26 May 1993 | In this case, the two applicants, who were IRA suspects, were arrested by the police in Northern Ireland and kept in police custody for six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes, respectively. They both complained in particular that they had not been brought promptly before a judge. | The Court held that there had been no violation of Article 5 § 3 (right to liberty and security) of the Convention. The detention of the applicants for periods longer than in the Brogan and Others case (see above) did not breach the Convention as the United Kingdom had made a valid emergency derogation under Article 15 of the Convention (see above, page 1). | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Peter Brannigan",
"10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland.",
"He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the \"Notice to Persons in Police Custody\" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes.",
"During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners.",
"Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody.",
"B. Patrick McBride",
"11. The second applicant, Mr Patrick McBride, was born in 1951.",
"He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the \"Notice to Persons in Police Custody\". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes.",
"During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above).",
"He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody.",
"Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast.",
"I. REMEDIES",
"26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas Corpus",
"27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18).",
"28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"III. THE UNITED KINGDOM DEROGATION",
"30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).",
"Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows:",
"\"We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him.",
"...",
"In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\"",
"31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows:",
"\"... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ...\"",
"32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989:",
"\"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect\". (Official Report, 14 November 1989, col. 210)",
"In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow.",
"Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence.",
"13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army (\"IRA\") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below).",
"This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act.",
"14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987.",
"15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive.",
"In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987).",
"B. Power to arrest without warrant under the 1984 and other Acts",
"16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"17. According to the definition given in section 14 (1) of the 1984 Act, \"terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"C. Detention under the ordinary criminal law",
"18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned:",
"\"... has reasonable grounds for believing that -",
"(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;",
"(b) an offence for which he is under arrest is a serious arrestable offence;",
"(c) the investigation is being conducted diligently and expeditiously.\" (Article 43(1))",
"By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)).",
"D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act",
"20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"E. Purpose of arrest and detention under section 12 of the 1984 Act",
"22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"F. Extension of period of detention",
"23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above).",
"According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned.",
"G. Rights during detention",
"24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act).",
"A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )).",
"Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day.",
"The above rights are briefly set out in a \"Notice to Persons in Police Custody\" which is served on persons arrested under section 12 when they are detained.",
"H. Judicial involvement in terrorist investigations",
"25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland.",
"However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions \"would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland\".",
"PROCEEDINGS BEFORE THE COMMISSION",
"33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13).",
"They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention.",
"34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion:",
"(a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention;",
"(b) unanimously, that no separate issue arose under Article 13 (art. 13).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision.",
"AS TO THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)",
"36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...",
"...",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"",
"37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with.",
"Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).",
"38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention.",
"The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).",
"Validity of the United Kingdom ’ s derogation under Article 15 (art. 15)",
"39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission.",
"40. Article 15 (art. 15) provides:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"1. The Court ’ s approach to the matter",
"41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.).",
"42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (\" Liberty and Others\") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes.",
"43. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).",
"Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.",
"2. Existence of a public emergency threatening the life of the nation",
"44. Although the applicants did not dispute that there existed a public emergency \"threatening the life of the nation\", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed.",
"45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate.",
"46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency.",
"47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.",
"It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below).",
"3. Were the measures strictly required by the exigencies of the situation?",
"(a) General considerations",
"48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants \"promptly\" before a court.",
"The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention.",
"(b) Was the derogation a genuine response to an emergency situation?",
"49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment.",
"50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted.",
"51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.",
"(c) Was the derogation premature?",
"52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a \"firm or final view\" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an \"officer authorised by law to exercise judicial power\".",
"53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review.",
"54. The Court does not accept the applicants ’ argument that the derogation was premature.",
"While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that \"against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced\". However it remained the Government ’ s wish \"to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer\" (see paragraph 31 above).",
"The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.",
"(d) Was the absence of judicial control of extended detention justified?",
"55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above).",
"56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above).",
"It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process.",
"In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation.",
"Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above).",
"57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard.",
"58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).",
"It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions.",
"The Court also notes that the introduction of a \"judge or other officer authorised by law to exercise judicial power\" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28).",
"59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.",
"60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control.",
"(e) Safeguards against abuse",
"61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency.",
"In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted.",
"62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention.",
"63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above).",
"64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above).",
"Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above).",
"It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor.",
"65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal.",
"(f) Conclusion",
"66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.",
"4. Other obligations under international law",
"67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be \"inconsistent with its other obligations under international law\" (see paragraph 40 above).",
"68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights (\"the Covenant\"), to which the United Kingdom is a Party, that a public emergency must have been \"officially proclaimed\". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.",
"69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4.",
"70. The Delegate of the Commission considered the Government ’ s argument to be tenable.",
"71. The relevant part of Article 4 of the Covenant states:",
"\"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ...\"",
"72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms \"officially proclaimed\" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect.",
"73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was \"a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\" (see paragraph 30 above).",
"In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard.",
"5. Summary",
"74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation.",
"II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it.",
"Article 13 (art. 13) provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60)."
] |
276 | Brannigan and McBride v. the United Kingdom | 26 May 1993 (judgment) | This case concerned a fresh derogation made by the United Kingdom in respect of Northern Ireland. The two applicants, suspected members of the IRA, had been arrested by the police in Northern Ireland and held in police custody: one for six days and fourteen and a half hours, the other for four days, six hours and twenty-five minutes. They both complained about not having been brought promptly before a judge. The British Government asked the Court to rule that the United Kingdom had not breached Article 5 (right to liberty and security) of the Convention, having availed itself on 23 December 1988 of its right of derogation under Article 15 of the Convention. | Referring to its judgments in Lawless (no. 3) v. Ireland and Ireland v. the United Kingdom (see above), and making its own assessment in the light of the evidence at its disposal as to the extent and effects of the terrorist violence in Northern Ireland and elsewhere in the United Kingdom, the Court found it not to be in doubt that there genuinely was a public emergency threatening the life of the nation in the circumstances. | Derogation in time of emergency | (1) The right of derogation can be invoked only in time of war or other public emergency threatening the life of the nation | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Peter Brannigan",
"10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland.",
"He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the \"Notice to Persons in Police Custody\" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes.",
"During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners.",
"Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody.",
"B. Patrick McBride",
"11. The second applicant, Mr Patrick McBride, was born in 1951.",
"He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the \"Notice to Persons in Police Custody\". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes.",
"During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above).",
"He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody.",
"Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast.",
"I. REMEDIES",
"26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas Corpus",
"27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18).",
"28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"III. THE UNITED KINGDOM DEROGATION",
"30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).",
"Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows:",
"\"We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him.",
"...",
"In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\"",
"31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows:",
"\"... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ...\"",
"32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989:",
"\"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect\". (Official Report, 14 November 1989, col. 210)",
"In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow.",
"Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence.",
"13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army (\"IRA\") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below).",
"This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act.",
"14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987.",
"15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive.",
"In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987).",
"B. Power to arrest without warrant under the 1984 and other Acts",
"16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"17. According to the definition given in section 14 (1) of the 1984 Act, \"terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"C. Detention under the ordinary criminal law",
"18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned:",
"\"... has reasonable grounds for believing that -",
"(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;",
"(b) an offence for which he is under arrest is a serious arrestable offence;",
"(c) the investigation is being conducted diligently and expeditiously.\" (Article 43(1))",
"By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)).",
"D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act",
"20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"E. Purpose of arrest and detention under section 12 of the 1984 Act",
"22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"F. Extension of period of detention",
"23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above).",
"According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned.",
"G. Rights during detention",
"24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act).",
"A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )).",
"Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day.",
"The above rights are briefly set out in a \"Notice to Persons in Police Custody\" which is served on persons arrested under section 12 when they are detained.",
"H. Judicial involvement in terrorist investigations",
"25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland.",
"However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions \"would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland\".",
"PROCEEDINGS BEFORE THE COMMISSION",
"33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13).",
"They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention.",
"34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion:",
"(a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention;",
"(b) unanimously, that no separate issue arose under Article 13 (art. 13).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision.",
"AS TO THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)",
"36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...",
"...",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"",
"37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with.",
"Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).",
"38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention.",
"The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).",
"Validity of the United Kingdom ’ s derogation under Article 15 (art. 15)",
"39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission.",
"40. Article 15 (art. 15) provides:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"1. The Court ’ s approach to the matter",
"41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.).",
"42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (\" Liberty and Others\") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes.",
"43. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).",
"Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.",
"2. Existence of a public emergency threatening the life of the nation",
"44. Although the applicants did not dispute that there existed a public emergency \"threatening the life of the nation\", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed.",
"45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate.",
"46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency.",
"47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.",
"It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below).",
"3. Were the measures strictly required by the exigencies of the situation?",
"(a) General considerations",
"48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants \"promptly\" before a court.",
"The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention.",
"(b) Was the derogation a genuine response to an emergency situation?",
"49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment.",
"50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted.",
"51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.",
"(c) Was the derogation premature?",
"52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a \"firm or final view\" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an \"officer authorised by law to exercise judicial power\".",
"53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review.",
"54. The Court does not accept the applicants ’ argument that the derogation was premature.",
"While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that \"against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced\". However it remained the Government ’ s wish \"to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer\" (see paragraph 31 above).",
"The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.",
"(d) Was the absence of judicial control of extended detention justified?",
"55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above).",
"56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above).",
"It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process.",
"In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation.",
"Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above).",
"57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard.",
"58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).",
"It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions.",
"The Court also notes that the introduction of a \"judge or other officer authorised by law to exercise judicial power\" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28).",
"59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.",
"60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control.",
"(e) Safeguards against abuse",
"61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency.",
"In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted.",
"62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention.",
"63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above).",
"64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above).",
"Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above).",
"It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor.",
"65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal.",
"(f) Conclusion",
"66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.",
"4. Other obligations under international law",
"67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be \"inconsistent with its other obligations under international law\" (see paragraph 40 above).",
"68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights (\"the Covenant\"), to which the United Kingdom is a Party, that a public emergency must have been \"officially proclaimed\". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.",
"69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4.",
"70. The Delegate of the Commission considered the Government ’ s argument to be tenable.",
"71. The relevant part of Article 4 of the Covenant states:",
"\"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ...\"",
"72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms \"officially proclaimed\" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect.",
"73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was \"a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\" (see paragraph 30 above).",
"In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard.",
"5. Summary",
"74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation.",
"II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it.",
"Article 13 (art. 13) provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60)."
] |
277 | Brannigan and McBride v. the United Kingdom | 26 May 1993 (judgment) | The derogation notice invoked in this case had closely followed the Brogan and Others v. the United Kingdom judgment of 29 November 1988 (see below, p. 11), where the British Government had been found to have breached Article 5 § 3 (right to liberty and security / right to be tried within a reasonable time or released during the proceedings) of the Convention, as the applicants had not been brought promptly before a judge. The Court had to examine the derogation on the basis of that fact, in particular, without forgetting that the power of arrest and detention in question had already been in force since 1974. | The Court noted that that the central issue in the present case was not the existence of the power to detain suspected terrorists for up to seven days but rather the exercise of this power without judicial intervention. As to whether, firstly, the derogation was a genuine response to an emergency situation, since the power of extended detention without such judicial control and the derogation of 23 December 1988 were clearly linked to the persistence of the emergency situation, there was no indication that the derogation was other than a genuine response. As to whether the derogation was premature, the validity of the derogation could not be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection was not only in keeping with Article 15 § 3, which required permanent review of the need for emergency measures, but was also implicit in the very notion of proportionality. As to whether the absence of judicial control of extended detention was justified, the Court restated among other things that it was not the Court’s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government, which had direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other. In the context of Northern Ireland, where the judiciary was small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary was understandably a matter to which the Government attached great importance. In the light of these considerations it could not be said that the Government had exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control. Lastly, as regards safeguards against abuse, the Court was satisfied that such safeguards did in fact exist and provided an important measure of protection against arbitrary behaviour and incommunicado detention. In addition to the basic safeguards, the operation of the legislation in question had been kept under regular independent review and, until 1989, was subject to regular renewal. In the present case, having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court took the view that the British Government had not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation. | Derogation in time of emergency | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Peter Brannigan",
"10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland.",
"He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the \"Notice to Persons in Police Custody\" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes.",
"During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners.",
"Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody.",
"B. Patrick McBride",
"11. The second applicant, Mr Patrick McBride, was born in 1951.",
"He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the \"Notice to Persons in Police Custody\". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes.",
"During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above).",
"He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody.",
"Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast.",
"I. REMEDIES",
"26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas Corpus",
"27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18).",
"28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"III. THE UNITED KINGDOM DEROGATION",
"30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).",
"Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows:",
"\"We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him.",
"...",
"In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\"",
"31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows:",
"\"... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ...\"",
"32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989:",
"\"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect\". (Official Report, 14 November 1989, col. 210)",
"In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow.",
"Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence.",
"13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army (\"IRA\") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below).",
"This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act.",
"14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987.",
"15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive.",
"In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987).",
"B. Power to arrest without warrant under the 1984 and other Acts",
"16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"17. According to the definition given in section 14 (1) of the 1984 Act, \"terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"C. Detention under the ordinary criminal law",
"18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned:",
"\"... has reasonable grounds for believing that -",
"(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;",
"(b) an offence for which he is under arrest is a serious arrestable offence;",
"(c) the investigation is being conducted diligently and expeditiously.\" (Article 43(1))",
"By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)).",
"D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act",
"20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"E. Purpose of arrest and detention under section 12 of the 1984 Act",
"22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"F. Extension of period of detention",
"23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above).",
"According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned.",
"G. Rights during detention",
"24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act).",
"A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )).",
"Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day.",
"The above rights are briefly set out in a \"Notice to Persons in Police Custody\" which is served on persons arrested under section 12 when they are detained.",
"H. Judicial involvement in terrorist investigations",
"25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland.",
"However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions \"would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland\".",
"PROCEEDINGS BEFORE THE COMMISSION",
"33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13).",
"They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention.",
"34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion:",
"(a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention;",
"(b) unanimously, that no separate issue arose under Article 13 (art. 13).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision.",
"AS TO THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)",
"36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...",
"...",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"",
"37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with.",
"Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).",
"38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention.",
"The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).",
"Validity of the United Kingdom ’ s derogation under Article 15 (art. 15)",
"39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission.",
"40. Article 15 (art. 15) provides:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"1. The Court ’ s approach to the matter",
"41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.).",
"42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (\" Liberty and Others\") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes.",
"43. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).",
"Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.",
"2. Existence of a public emergency threatening the life of the nation",
"44. Although the applicants did not dispute that there existed a public emergency \"threatening the life of the nation\", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed.",
"45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate.",
"46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency.",
"47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.",
"It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below).",
"3. Were the measures strictly required by the exigencies of the situation?",
"(a) General considerations",
"48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants \"promptly\" before a court.",
"The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention.",
"(b) Was the derogation a genuine response to an emergency situation?",
"49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment.",
"50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted.",
"51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.",
"(c) Was the derogation premature?",
"52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a \"firm or final view\" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an \"officer authorised by law to exercise judicial power\".",
"53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review.",
"54. The Court does not accept the applicants ’ argument that the derogation was premature.",
"While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that \"against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced\". However it remained the Government ’ s wish \"to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer\" (see paragraph 31 above).",
"The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.",
"(d) Was the absence of judicial control of extended detention justified?",
"55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above).",
"56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above).",
"It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process.",
"In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation.",
"Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above).",
"57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard.",
"58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).",
"It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions.",
"The Court also notes that the introduction of a \"judge or other officer authorised by law to exercise judicial power\" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28).",
"59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.",
"60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control.",
"(e) Safeguards against abuse",
"61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency.",
"In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted.",
"62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention.",
"63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above).",
"64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above).",
"Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above).",
"It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor.",
"65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal.",
"(f) Conclusion",
"66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.",
"4. Other obligations under international law",
"67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be \"inconsistent with its other obligations under international law\" (see paragraph 40 above).",
"68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights (\"the Covenant\"), to which the United Kingdom is a Party, that a public emergency must have been \"officially proclaimed\". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.",
"69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4.",
"70. The Delegate of the Commission considered the Government ’ s argument to be tenable.",
"71. The relevant part of Article 4 of the Covenant states:",
"\"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ...\"",
"72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms \"officially proclaimed\" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect.",
"73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was \"a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\" (see paragraph 30 above).",
"In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard.",
"5. Summary",
"74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation.",
"II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it.",
"Article 13 (art. 13) provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60)."
] |
278 | Brannigan and McBride v. the United Kingdom | 26 May 1993 (judgment) | The applicants contended for the first time before the Court that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights, to which the United Kingdom was a Party, that a public emergency must have been “officially proclaimed”. Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom’s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament. | The Court observed that the Home Secretary’s statement of 22 December 1988 to the House of Commons, which was formal in character and made public the Government’s intentions as regards derogation, was well in keeping with the notion of an official proclamation. In that statement the Secretary of State had explained in detail the reasons underlying the Government’s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 of the European Convention and Article 4 of the International Covenant on Civil and Political Rights. The Court thus found the applicants’ view ill-founded on this point and that there had been no violation of Article 5 § 3 (right to liberty and security) of the Convention. | Derogation in time of emergency | (3) Derogations cannot be incompatible with other obligations in international law | [
"I. THE PARTICULAR CIRCUMSTANCES OF THE CASE",
"A. Peter Brannigan",
"10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland.",
"He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (\"the 1984 Act\"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the \"Notice to Persons in Police Custody\" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes.",
"During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners.",
"Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody.",
"B. Patrick McBride",
"11. The second applicant, Mr Patrick McBride, was born in 1951.",
"He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the \"Notice to Persons in Police Custody\". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes.",
"During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above).",
"He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody.",
"Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast.",
"I. REMEDIES",
"26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.",
"1. Habeas Corpus",
"27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act \"shall be deemed to be in legal custody when he is so detained\". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18).",
"28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.",
"The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).",
"The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).",
"2. False imprisonment",
"29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).",
"III. THE UNITED KINGDOM DEROGATION",
"30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).",
"Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows:",
"\"We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him.",
"...",
"In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\"",
"31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows:",
"\"... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ...\"",
"32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989:",
"\"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect\". (Official Report, 14 November 1989, col. 210)",
"In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Introduction",
"12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (\"the 1974 Act\"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow.",
"Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence.",
"13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army (\"IRA\") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below).",
"This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments.",
"Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act.",
"14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987.",
"15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive.",
"In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987).",
"B. Power to arrest without warrant under the 1984 and other Acts",
"16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:",
"\"12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be",
"...",
"(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;",
"...",
"(3) The acts of terrorism to which this Part of this Act applies are",
"(a) acts of terrorism connected with the affairs of Northern Ireland;",
"...",
"(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.",
"(5) Any such further period or periods shall not exceed five days in all.",
"(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest",
"...",
"(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;",
"...",
"(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.\"",
"17. According to the definition given in section 14 (1) of the 1984 Act, \"terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear\". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be \"in wide terms\" by the House of Lords, which rejected an interpretation of the word \"terrorist\" that would have been \"in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman\" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).",
"C. Detention under the ordinary criminal law",
"18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.",
"19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned:",
"\"... has reasonable grounds for believing that -",
"(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;",
"(b) an offence for which he is under arrest is a serious arrestable offence;",
"(c) the investigation is being conducted diligently and expeditiously.\" (Article 43(1))",
"By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)).",
"D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act",
"20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.",
"In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.",
"21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).",
"E. Purpose of arrest and detention under section 12 of the 1984 Act",
"22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).",
"On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.):",
"\"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.\"",
"F. Extension of period of detention",
"23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.",
"There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above).",
"According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned.",
"G. Rights during detention",
"24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act).",
"A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )).",
"Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day.",
"The above rights are briefly set out in a \"Notice to Persons in Police Custody\" which is served on persons arrested under section 12 when they are detained.",
"H. Judicial involvement in terrorist investigations",
"25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland.",
"However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions \"would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland\".",
"PROCEEDINGS BEFORE THE COMMISSION",
"33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13).",
"They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention.",
"34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion:",
"(a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention;",
"(b) unanimously, that no separate issue arose under Article 13 (art. 13).",
"The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*].",
"FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT",
"35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision.",
"AS TO THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)",
"36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows:",
"\"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...;",
"...",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...",
"...",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation.\"",
"37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with.",
"Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).",
"38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention.",
"The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).",
"Validity of the United Kingdom ’ s derogation under Article 15 (art. 15)",
"39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission.",
"40. Article 15 (art. 15) provides:",
"\"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.",
"2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.",
"3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.\"",
"1. The Court ’ s approach to the matter",
"41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.).",
"42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (\" Liberty and Others\") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes.",
"43. The Court recalls that it falls to each Contracting State, with its responsibility for \"the life of [its] nation\", to determine whether that life is threatened by a \"public emergency\" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).",
"Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the \"extent strictly required by the exigencies\" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.",
"2. Existence of a public emergency threatening the life of the nation",
"44. Although the applicants did not dispute that there existed a public emergency \"threatening the life of the nation\", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed.",
"45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate.",
"46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency.",
"47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.",
"It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below).",
"3. Were the measures strictly required by the exigencies of the situation?",
"(a) General considerations",
"48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants \"promptly\" before a court.",
"The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention.",
"(b) Was the derogation a genuine response to an emergency situation?",
"49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment.",
"50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted.",
"51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.",
"(c) Was the derogation premature?",
"52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a \"firm or final view\" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an \"officer authorised by law to exercise judicial power\".",
"53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review.",
"54. The Court does not accept the applicants ’ argument that the derogation was premature.",
"While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that \"against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced\". However it remained the Government ’ s wish \"to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer\" (see paragraph 31 above).",
"The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.",
"(d) Was the absence of judicial control of extended detention justified?",
"55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above).",
"56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above).",
"It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process.",
"In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation.",
"Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above).",
"57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard.",
"58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).",
"It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions.",
"The Court also notes that the introduction of a \"judge or other officer authorised by law to exercise judicial power\" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28).",
"59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.",
"60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control.",
"(e) Safeguards against abuse",
"61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency.",
"In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted.",
"62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention.",
"63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above).",
"64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above).",
"Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above).",
"It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor.",
"65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal.",
"(f) Conclusion",
"66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.",
"4. Other obligations under international law",
"67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be \"inconsistent with its other obligations under international law\" (see paragraph 40 above).",
"68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights (\"the Covenant\"), to which the United Kingdom is a Party, that a public emergency must have been \"officially proclaimed\". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.",
"69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4.",
"70. The Delegate of the Commission considered the Government ’ s argument to be tenable.",
"71. The relevant part of Article 4 of the Covenant states:",
"\"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ...\"",
"72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms \"officially proclaimed\" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect.",
"73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was \"a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ...\" (see paragraph 30 above).",
"In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard.",
"5. Summary",
"74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation.",
"II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it.",
"Article 13 (art. 13) provides as follows:",
"\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60)."
] |
279 | Grubnyk v. Ukraine | 17 September 2020 | This case concerned the applicant’s arrest and detention in connection with various terrorism offences in Odessa in 2015. The applicant complained in particular of various rights infringements regarding his arrest and the extension of his remand. He also complained that the wording of his initial pre-trial detention order had breached his right to be presumed innocent. | The Court held that there had been no violation of Article 5 §§ 2 and 3 (right to liberty and security) of the Convention concerning the applicant’s complaints about not being informed promptly of the reasons for his arrest and about bail not being available to him by law because he was accused of terrorism offences. The Court found in particular that, in the specific circumstances of the applicant’s case, the domestic courts had provided sufficient reasons for his pre-trial detention given that he had been suspected of a bomb attack at a time of great tension in Odessa and in the context of defendants in other previous high-profile cases having fled once released. However, it noted with satisfaction that the Constitutional Court of Ukraine had since decided to declare unconstitutional the law on bail, invoked in the applicant’s case, which in some cases had limited the domestic courts’ ability to issue properly reasoned detention orders. The Court held, however, that there had been two violations of Article 5 § 1 of the Convention, because the applicant’s arrest had been carried out without a prior court decision and had not actually been recorded until the next day. Lastly, the Court held that there had been a violation of Article 6 § 2 (presumption of innocence) of the Convention in the applicant’s case, because the initial pre-trial detention order against him had stated that he was guilty of a particularly “grave offence” while, at the time, he had merely been suspected and not convicted of any terrorism offence. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in 1983 and, at the time of the most recent communication from the parties to the Court, was detained in Odessa.",
"Background information",
"7. In its report of 4 November 2015 the International Advisory Panel – an international body constituted by the Secretary General of the Council of Europe to assess the effectiveness of the investigations carried out by the Ukrainian authorities into the violent clashes during the Maidan demonstrations between 30 November 2013 and 21 February 2014 and events in Odessa in May 2014 – described the events in Odessa in the following terms:",
"“2. In spring 2014, following the political changes in Ukraine, groups of protesters (variously referred to in this Report as ‘ pro-federalism ’ activists or as ‘ the pro ‑ federalists ’ ) took positions ranging from mere opposition to the newly formed government to claims for the federalisation of Ukraine, and even secession of certain regions and their further annexation to the Russian Federation. EuroMaidan activists, for their part, countered the pro-federalists by holding demonstrations in support of a united Ukraine (also referred to in this Report as ‘ the pro-unity ’ activists).",
"...",
"3. By May 2014 Odesa was unstable following numerous mass demonstrations, seizures of official buildings, incitements to violence and clashes between the pro ‑ federalism and pro-unity activists.",
"On 2 May 2014 [major clashes between the pro-unity and pro-federalism activists and a fire at the Trade Union Building] occurred.",
"...",
"31. According to official statistics, as a result of the clashes on 2 May, 48 persons died (seven women and 41 men). Six persons died as a result of firearm injuries they had received during the clashes... and 42 died as a result of the fire in the Trade Union Building. Of those 42, 34 died as a direct result of the fire and eight died as a result of jumping or falling from a height ...”",
"8. The above events occurred against a background of events occurring in the Donetsk and Luhansk regions at around the same time. From the beginning of April 2014, armed groups started to seize official buildings there and announced the creation of self-proclaimed entities known as the “Donetsk People ’ s Republic” and the “Luhansk People ’ s Republic” (“DPR” and “LPR”). In response, on 14 April 2014 the Ukrainian government authorised the use of force against them in the legal form of an “anti ‑ terrorist operation” ( see Khlebik v. Ukraine, no. 2945/16, §§ 8-12, 25 July 2017). In a number of documents, including its declaration of 4 February 2015 concerning recognition of the jurisdiction of the International Criminal Court, the Parliament of Ukraine labelled the “DPR” and “LPR” terrorist organisations.",
"9. In late 2014 and early 2015 a series of explosions occurred in Odessa. They mainly targeted military facilities and buildings occupied by volunteers supporting the Ukrainian military ’ s war effort in the east of Ukraine.",
"10. According to the Government, the applicant is a member of Sut vremeni ( Суть времени, Essence of Time), a Russian nationalist movement with its headquarters in Moscow, Russia. The leader of the movement, Mr Kurginyan, commented on the applicant ’ s case and arrest ( see paragraphs 13 and 16 below) in a video presentation published on the movement ’ s website on 28 October 2015. Mr Kurginyan acknowledged that the applicant used to be a member of the movement but had left before the relevant events, and that all branches of the movement in Ukraine outside of the so-called “DPR” and “LPR” had been closed. They continued to operate, however, in the “DPR” and “LPR” and their members fought Ukrainian government forces there. Mr Kurginyan denied that there was any connection between the applicant, his group ’ s activities and the movement and suggested that the applicant was either a victim or a tool in a false flag operation organised by the Ukrainian security services.",
"Explosion of 27 September 2015 and the applicant ’ s arrest",
"11. On 27 September 2015 an explosive device was placed outside the offices of the Odessa Regional Directorate of the Security Service of Ukraine ( Служба безпеки України, “the SBU”, Ukraine ’ s domestic security agency), where it later exploded. There were no casualties.",
"12. On the same day the SBU started a criminal investigation into the incident, which was classified as a terrorist act. The incident received considerable media coverage.",
"13. According to the official notification of suspicion and charges subsequently presented to the applicant ( see paragraphs 23 and 33 below), the explosion was organised by a group created and led by the applicant and composed of him and three co-conspirators, G., V. and Ch. They were driven by the desire to avenge the arrests by the Ukrainian security services of militants hostile to the Ukrainian government, and the victims of the events of 2 May 2014, for which they considered the Ukrainian authorities responsible.",
"From July to September 2015 the applicant planned the explosion. Communicating with co-conspirators through encrypted messaging applications, he and the members of his group had the necessary equipment purchased and the explosive device made. They also scoped the location and developed a plan for the operation.",
"Following the explosion of 27 September 2015 the applicant started planning a new attack: in the period from 27 September to 18 October 2015 he purchased a number of bomb-making ingredients and, in a flat he rented on Parkova Street in Odessa, started making additional explosives. He also instructed one of his co-conspirators, G., subsequently convicted of those acts ( see paragraph 32 below), to study techniques for making the explosives and the latter offered to use the gunpowder he owned to make the explosive devices.",
"14. On 1 October 2015, following a search of Ch. ’ s home and the retrieval of mobile telephone data, G. was identified as a suspect. Ch. himself could not be found. A search for him as a wanted person was commenced on 23 October 2015.",
"15. On 15 October 2015 a considerable amount of gunpowder was discovered in G. ’ s home. He was later convicted in a separate case ( see paragraph 32 below). A mobile telephone used to communicate with other members of the group was discovered and G. was questioned. On 19 October 2015 the investigating authority also showed him a line-up of photographs including the applicant ’ s.",
"16. At 10.30 a.m. on 19 October 2015 SBU officers arrested the applicant outside his home, in his car, on suspicion of organising the explosion.",
"17. According to the Government, at the time of the applicant ’ s arrest the officers introduced themselves and informed him of the reasons for the arrest and his rights, as they were required to do by the Code of Criminal Procedure ( see paragraph 45 below). According to the Government, the applicant resisted arrest. The applicant denied this and stated that, in actual fact, the officers had behaved in “an aggressive manner”. He also denied that the officers had informed him of the reasons for his arrest.",
"18. From 11 a.m. to 8.30 p.m. that day an SBU investigator conducted a search of the applicant ’ s home. A large number of mobile telephones, SIM cards, notes, ammunition, body armour, balaclavas and camouflage clothing were seized, as well as the lease for the Parkova Street flat and other items. The applicant was also searched and numerous items were seized, including a key ring holding a number of keys.",
"19. From 12.02 to 7 a.m. on 20 October 2015 the investigator conducted a search of the Parkova Street flat rented by the applicant. According to the report on that search, upon the conclusion of the previous search of his home the applicant had informed the investigator that explosives and other bomb-making equipment could be found at the rented flat. The report went on to state that the applicant had freely given his consent to the search. All the residents of the block of flats had been evacuated. The applicant, unlocking the flat with his own key, had entered the flat with an explosives specialist to make sure that there was no risk of explosion. In the course of the subsequent search, certain chemicals, radio, electric and other tools and hardware had been seized.",
"20. The search reports were signed by the applicant, his father (the first report), the flat ’ s owner (the second report), two attesting witnesses, the investigator and two other SBU officers, listing them all by full name and rank. They identified the dates, time of start and finish and the locations of the searches.",
"21. According to an expert report subsequently summarised in the charges against the applicant ( see paragraph 33 below), the explosives discovered had the potential to cause damage within at least a sixty-seven metre radius.",
"22. At 9 a.m. the same morning the investigator drew up an arrest report stating that he had arrested the applicant at 10.30 a.m. the previous day. The text of the report included a quote from the Code of Criminal Procedure concerning the grounds for the arrest of a person without a court order, setting out verbatim sub-paragraphs 1 and 2 of Article 208 § 1 of the Code ( see paragraph 45 below). The following words were underlined: “immediately after the offence, an eyewitness, including a victim, or a combination of clear signs on the body, clothing or at the scene of the event, indicate that this person has just committed an offence.” The report stated that the applicant was suspected of participation in a terrorist act committed on 27 September 2015, carried out as part of a conspiracy with G., V. and Ch. It also contained an explanation of the applicant ’ s rights, including the right to challenge the lawfulness of his arrest.",
"23. At 10.30 a.m. on 20 October 2015 the applicant was served with a formal notification of suspicion stating that he had, between July and September 2015, conspired with G., V. and Ch. and other unidentified individuals to plan and prepare a terrorist act, and that he had then, on 27 September 2015, committed a terrorist act, an offence under Article 258 § 2 of the Criminal Code ( see paragraph 49 below).",
"24. It is not contested that the applicant ’ s right to access a lawyer was respected only from 20 October 2015 after the arrest report had been drawn up and formal notification of suspicion served.",
"The applicant ’ s placement in pre-trial detention",
"25. On the same day, 20 October 2015, the investigator applied to the Odessa Prymorsky District Court (“the District Court”) for the applicant to be placed in pre-trial detention. The application ran to six pages and the material in support of the application to 240 pages, which included search and expert examination reports, transcripts of interviews and results of identification by photographs conducted with other suspects and witnesses, including G. (his interview and the results of identification were dated 15 and 19 October 2015, see paragraph 15 above), messages between the applicant and other suspects exchanged through encrypted communication applications, and photographic identification reports.",
"26. On the same day the District Court held a hearing at which it heard submissions from the prosecutor, the applicant and his lawyer. It ordered his pre-trial detention for sixty days, to be counted from 10.30 a.m. on 19 October 2015. The reasons were formulated as follows:",
"“The pre-trial investigation authorities suspect [the applicant] of commission of a [terrorist act] under the following circumstances:",
"[there followed a seventeen-paragraph description of the facts as presented by the investigator, set out in paragraph 13 above]",
"On 19 October 2015 [the applicant was arrested under the provision of the Code of Criminal Procedure allowing arrests without a court warrant].",
"On 20 October 2015 [the applicant was served with a formal notification of suspicion].",
"The investigator, with the prosecutor ’ s approval, has applied for the applicant ’ s placement in pre-trial detention, arguing that the applicant is suspected of committing a particularly grave offence, punishable by more than ten years ’ imprisonment ... if at liberty he may abscond from the pre-trial investigation authorities and the court, commit another criminal offence, continue his criminal activity, [or] exert unlawful influence on the victim, which indicates that it [would not be] possible to safeguard against those risks by less severe preventive measures.",
"[... In] the course of the pre-trial investigation it has been established that there was a risk [that the applicant would abscond]. The need to prevent new attempts to abscond is grounds for applying pre-trial detention. Other, less restrictive, preventive measures would not ensure the applicant ’ s compliance with his [procedural obligations].",
"In the course of the hearing the prosecutor supported the investigator ’ s application ...",
"[The applicant] and his lawyer objected ...",
"Having examined the material on which the application is based, having examined the suspect, his lawyer ... having considered the prosecutor ’ s position, I come to the conclusion that the application must be granted for the following reasons.",
"It can be seen from the criminal case material submitted that there is a reasonable suspicion that the applicant committed the offence [under the Criminal Code provision providing for the punishment of terrorist acts], which is punishable by more than ten years ’ imprisonment.",
"The above-mentioned circumstances show that there are risks which give reason to believe that the suspect may breach the procedural obligations imposed on him by law.",
"The aim of the imposition of pre-trial detention on [the applicant] is the prevention of attempts to abscond from the pre-trial investigation authorities or the court; destroy, conceal or spoil any of the items or documents that are of material importance for establishing the circumstances of the criminal offence; exert unlawful influence on the victim or the witnesses in the same criminal proceedings; obstruct the criminal proceedings and commit another criminal offence.",
"The evidence for this is that [the applicant] committed a particularly grave offence ( доказами цього є те, що Грубник В.Ю. вчинив особливо тяжкий злочин ).",
"In [imposing] pre-trial detention I take into account the weighty evidence pointing to the commission of the offence by the applicant, the severity of the punishment which he faces, his age and his state of health.",
"I consider that the prosecutor, in the course of the hearing regarding the application for pre-trial detention, has submitted material sufficient to [support the opinion] that none of the less restrictive preventive measures would prevent the occurrence of the risks proven in the course of the hearing.",
"There are none of the circumstances provided for by Article 183 § 2 of the Code of Criminal Procedure] that would prevent the application of pre-trial detention.",
"In summary, based on the material submitted, I have come to the conclusion that less restrictive preventive measures may fail to ensure that the [applicant] conduct himself in an appropriate fashion.",
"Also ( при цьому ), pursuant to Article 176 § 5 of the Code of Criminal Procedure, preventive measures less restrictive than pre-trial detention cannot be imposed on a person who is suspected of [the provision of the Criminal Code providing for the punishment of terrorist acts].",
"It is impossible to prevent the risks set out in the application by applying less restrictive preventive measures.”",
"27. On the same date the District Court also ordered the pre-trial detention of the other two suspects.",
"28. The applicant appealed to the Odessa Regional Court of Appeal (“the Court of Appeal”) arguing, in particular, that there had been a delay in the drawing up of his arrest report; that during that time the grounds for his arrest and his rights had not been explained to him; that there had been no grounds for an arrest without a court order since he had not been arrested immediately after the offence; that the evidence submitted by the investigator was insufficient to support a reasonable suspicion against him; that the District Court had not sufficiently taken into account his strong ties to the community; and that it had not properly examined the possibility of using a non-custodial preventive measure. In view of those arguments, the applicant asked the Court of Appeal to quash the detention order and dismiss the investigator ’ s application. He further argued that the statement in the detention order to the effect that he had “committed a particularly grave offence” was at odds with the principle of the presumption of innocence.",
"29. On 28 October 2015 the Court of Appeal upheld the detention order. In response to the applicant ’ s arguments it stated, in particular, that in the course of the hearing before the District Court it had been sufficiently proven that there was a reasonable suspicion against him and that there was a risk that he could abscond or obstruct the criminal proceedings. The Court of Appeal was of the opinion that the District Court had taken into account the particular seriousness of the offence of which the applicant was suspected, the severity of the punishment he faced, and the danger presented to the public by the offence of which he was suspected. It decided that no other preventive measure would be adequate in view of the risks he presented.",
"30. Concerning the grounds for the applicant ’ s arrest, the investigator ’ s application for pre-trial detention, the District Court ’ s and the Court of Appeal ’ s decisions all contained the same statement: “On 19 October 2015 [the applicant] was arrested under Article 208 of the Code of Criminal Procedure” ( see paragraph 45 below).",
"Subsequent criminal proceedings",
"31. On 17 December 2015 the District Court extended the detention of the applicant and the other two suspects. No copy of the relevant detention order was provided to the Court.",
"32. On 9 February 2016 the proceedings against G. were split into a separate case. He pleaded guilty and on 29 March 2016 the District Court convicted him of participation in the creation of a terrorist group, commission of a terrorist act, preparation of terrorist acts, and unlawful possession of firearms. Reducing the sentence due to G. ’ s cooperation, the court convicted him to four and a half years ’ imprisonment.",
"33. On 11 March 2016, almost five months after his arrest, the charges against the applicant were amended. He was notified that he was accused of creation, leadership of and membership in of a terrorist group, unlawful fabrication of explosives, unlawful possession of firearms (two handguns, ammunition and a silencer), commission of a terrorist act, and preparation of new terrorist acts after the explosion at the SBU building.",
"34. On 30 March 2016 the District Court again extended the applicant ’ s detention.",
"35. On 8 April 2016 the Court of Appeal upheld that extension order. It pointed out that, according to the material provided by the prosecution, the suspect had organised clandestine activities, searched for material for the commission of terrorist acts, and ensured the safe movement of members of the terrorist group. Those elements indicated that, if the suspect were at liberty, there was a risk that he would commit new serious offences, abscond or interfere with the investigation.",
"The court referred to Article 176 § 5 of the Code of Criminal Procedure, which precluded the granting of bail or imposition of other non-custodial preventive measures in respect of individuals suspected of or charged with certain terrorism-related or national security offences ( see paragraph 40 below). The court rejected the applicant ’ s argument to the effect that that provision was contrary to Article 5 of the Convention. It held that Article 5 provided that detention could be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence or if it was reasonably considered necessary to prevent his committing an offence or fleeing after having done so. The District Court had established the presence of exactly such risks in the case.",
"36. On 12 April 2016 the bill of indictment in respect of the applicant was transferred to the District Court for trial.",
"37. Subsequently the District Court extended the applicant ’ s detention on multiple occasions. According to the most recent information from the parties, on 3 October 2019 his detention was extended until 2 December 2019.",
"38. According to media reports, on 26 November 2019 the District Court extended the applicant ’ s detention until 25 January 2020 but on 29 December 2019 he was released and handed over to the so-called “DPR” as part of a large exchange of prisoners agreed through negotiations between Ukraine and Russia.",
"RELEVANT DOMESTIC LAWConstitution of Ukraine 1996",
"Constitution of Ukraine 1996",
"Constitution of Ukraine 1996",
"39. Article 29, which is relevant to the case, reads as follows:",
"“Every person has the right to freedom and personal inviolability.",
"No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law.",
"In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody...”",
"Code of Criminal Procedure 2012",
"40. Article 176 § 1 provides for the following preventive measures:",
"( i ) a personal undertaking of the defendant;",
"(ii) a personal warranty of a third party;",
"(iii) bail;",
"(iv) house arrest; and",
"(v ) pre-trial detention.",
"The investigating judge or the court must reject an application for a preventive measure if the investigator or the prosecutor has not proven that there are sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe is pre-trial detention (Article 176 § 3 ).",
"Preventive measures are applied by the judge at the request of the investigator, on application by the prosecutor, or on application by the investigator approved by the prosecutor (Article 176 § 4).",
"Article 176 § 5, added by the Act of 7 October 2014 (hereinafter also “the Bail Exclusion Clause”, see paragraph 50 below regarding its legislative history), provides that “preventive measures of a personal undertaking, a personal warranty, house arrest and bail may not be imposed on people who are suspected of or charged” with:",
"( i ) terrorism (Article 258 of the Criminal Code, see paragraph 49 below) and certain terrorism-related offences: creation of a terrorist group, recruitment for the purposes of terrorism, public appeals to commit a terrorist act and terrorism financing;",
"(ii) certain offences against national security, such as treason, attacks on the territorial integrity of Ukraine, creation of an unlawful armed group, and so forth.",
"41. Article 177 § 1 provides that the purpose of preventive measures is to ensure compliance with procedural obligations and prevent the risk of the suspect or accused:",
"( i ) absconding from the pre-trial investigation authorities and/or the court;",
"(ii ) destroying, concealing or spoiling any of the items or documents that are of essential importance for establishing the circumstances of the criminal offence;",
"(iii ) exerting unlawful influence on the victim, witnesses, other suspects, the accused, expert...;",
"(iv ) obstructing the criminal proceedings in any other way;",
"(v ) committing another criminal offence or continuing the criminal offence of which he or she is suspected or accused.",
"Article 177 § 2 provides that a preventive measure can be applied provided that there is a reasonable suspicion that the person has committed a criminal offence and there are risks giving sufficient grounds for the judge to believe that the suspect, accused or convicted person could commit the actions specified in Article 177 § 1.",
"42. Article 183 defines pre-trial detention as an “exceptional” preventive measure which can only be applied where the prosecutor has proven that no less restrictive preventive measure would prevent the risks set out in Article 177 of the Code ( see paragraph 41 above). Moreover, it provides that only the categories of defendants explicitly mentioned in paragraph 2 of that Article can be subjected to pre-trial detention. Among these are certain defendants with prior convictions and defendants without prior convictions accused of offences punishable by more than five years ’ imprisonment (for the classification of offences under the Criminal Code, see paragraph 48 below).",
"43. Article 194 § 1 provides that, in examining an application for a preventive measure, the court must consider whether the following circumstances have been proven:",
"( i ) there is a reasonable suspicion against the suspect or accused;",
"(ii) the prosecutor asserts in the application for a preventive measure, and there are sufficient grounds to believe, that there is at least one of the risks specified in Article 177;",
"(iii) less severe preventive measures would be insufficient to prevent the relevant risks identified in the application.",
"Article 194 § 2 provides that the court must refuse to apply a preventive measure if the prosecutor has failed to prove the existence of all the circumstances specified in Article 194 § 1.",
"Article 194 § 3 provides that if the prosecutor has proven the existence of a reasonable suspicion, but not the existence of the risks and an inability to prevent them, the court may bind the suspect or the accused over to appear when summoned by the court or another authority. This binding over order is not considered a “preventive measure”.",
"44. Article 198 provides that the findings made in the order imposing a preventive measure concerning any circumstances regarding the substance of the suspicion or charges against the applicant are not binding ( не мають преюдиціального значення ) on the trial court, investigating authority and prosecutors in the course of the same and other criminal proceedings.",
"45. Article 208 authorises arrests without a court order in the following circumstances and subjects them to the following requirements:",
"“1. [In the absence of a court order a] competent official shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed only in the following cases:",
"(1) if the person has been caught whilst committing a crime or attempting to commit one; or",
"(2) if immediately ( безпосередньо ) after a criminal offence the statements of an eyewitness, including the victim, or [a combination] of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence...",
"...",
"4. The ...official who carried out the arrest shall immediately inform the arrested person, in a language which he or she understands, of the grounds for the arrest and of the crime he or she is suspected. The official shall also explain to the arrested person his or her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] parties ... of his or her arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code.",
"5. A report shall be drawn up in respect of an individual ’ s arrest containing, [in particular,] the following information: the place, date and exact time (the hour and minute) of the arrest..; the grounds for the arrest; the results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his or her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after his or her signature is obtained...”",
"46. Article 276 provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. On service of the formal notification, he or she must be informed of his or her procedural rights, including the right to remain silent and have legal assistance.",
"Code of Criminal Procedure 1960",
"47. The relevant provisions of the Code, in effect until 18 November 2012, provided:",
"Article 106. Arrest of a suspect by the body of inquiry",
"“The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds:",
"(1) if the person is discovered while or immediately after committing an offence;",
"(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence;",
"(3) if clear traces of the offence are found either on the suspect ’ s person, or on his clothing, or with him, or in his home.",
"If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established. ...”",
"Article 115. Arrest of a suspect by an investigator",
"“An investigator may arrest ... a person suspected of having committed a crime in accordance with the procedure provided for in [Article] 106 ... of the Code. ...”",
"Criminal Code 2001",
"48. Article 12 of the Code divides criminal offences into four categories, ranging from minor to particularly grave offences, based on the severity of the punishment imposed by the Code. A particularly grave offence is an offence punishable by more than ten years ’ imprisonment.",
"49. Article 258 § 2 provides for imprisonment of between seven and twelve years for a terrorist act committed as part of a conspiracy or for a terrorist act which has caused substantial pecuniary damage or other serious consequences.",
"Legislative history of the Bail Exclusion Clause",
"50. The of 7 October 2014, which introduced the Bail Exclusion Clause into the Code of Criminal Procedure, originated in a draft law entitled “Draft law concerning introduction of amendments to the Criminal and Criminal Procedure Codes of Ukraine concerning certainty of punishment for certain offences against national and public security and corruption offences” (“ Про внесення змін до Кримінального та Кримінального процесуального кодексів України щодо невідворотності покарання за окремі злочини проти основ національної безпеки, громадської безпеки та корупційні злочини\" ).",
"The draft law primarily concerned introduction of a new system of in absentia proceedings for the national security and corruption-related offences. The explanatory note to the draft was mainly dedicated to that procedure. The only provision of the explanatory note concerning the Bail Exclusion Clause read:",
"“introduction of pre-trial detention as the only preventive measure for separatist and terrorist offences will increase the speediness of pre-trial investigations concerning them” ( запровадження єдиного можливого запобіжного заходу у вигляді тримання під вартою за сепаратистські та терористичні злочини підвищить оперативність проведення їх досудового розслідування ).",
"Constitutional Court Act 2017",
"51. The Act, which came into force on 3 August 2017, introduced, for the first time in Ukrainian law, the right for individuals to apply directly to the Constitutional Court for review of constitutionality of legislative provisions applied by courts in their cases. This change was based on the constitutional amendments enacted in 2016.",
"Section 55 of the Act provides that a person considering that a provision of an Act of Parliament applied in his or her case can lodge a constitutional complaint with the Constitutional Court. The complaint can be lodged once ordinary courts have delivered a final decision in the case.",
"52. Section 91 of the Act provides that laws declared unconstitutional lose legal force from the day of delivery of the Constitutional Court ’ s decision declaring them unconstitutional, unless the Constitutional Court rules that they would lose legal force from a later date.",
"The Constitutional Court ’ s decision concerning the Bail Exclusion Clause",
"53. On 25 June 2019 the Constitutional Court declared the Bail Exclusion Clause contrary to Article 29 of the Constitution guaranteeing the right to freedom and personal inviolability ( see paragraph 39 above). The case had been brought by four applicants and concerned the application of the Bail Exclusion Clause in their cases ( see paragraph 51 above concerning this procedure). However, the Constitutional Court ’ s decision did not describe the circumstances of those cases. The decision was based on the following reasons:",
"( i ) the Bail Exclusion Clause prevented the courts from issuing duly motivated decisions concerning pre-trial detention. Citing Korniychuk v. Ukraine (no. 10042/11, § 57, 30 January 2018), the court pointed out that according to the Court ’ s case-law, justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities and the judicial officer is required to give relevant and sufficient reasons for the detention;",
"(ii) in accordance with the judgments in Khayredinov v. Ukraine (no. 38717/04, §§ 29 and 31, 14 October 2010) and Kharchenko v. Ukraine (no. 40107/02, § 80, 10 February 2011), the courts were under an obligation to consider other preventive measures as an alternative to detention. However, the Bail Exclusion Clause had taken away the courts ’ right to impose preventive measures that were less restrictive than detention;",
"(iii) Article 29 of the Constitution required a reasoned court decision as grounds for detention. Such a decision had to be fair and could not be merely formalistic. This reduced the risk of arbitrariness which would exist if detention was based merely on the gravity of the offence without an examination of the specific circumstances of the case and reasons for detention;",
"(iv) the Bail Exclusion Clause allowed for detention on the basis of formalistic court decisions, based purely on a formal classification of the offence, which was contrary to the principles of the rule of law and did not provide for a correct balance between the public interests justifying detention and individual liberty, a requirement inherent in Article 29 and other provisions of the Constitution.",
"Domestic case-law concerning detention of defendants charged with terrorism and national security-related offences",
"54. On 13 October 2016 the Kharkiv Court of Appeal quashed a detention order in respect of a defendant (applicant in case no. 38718/16 Aleksandrovskaya v. Ukraine, communicated on 18 February 2017), charged with acting to undermine the territorial integrity of Ukraine, an offence covered by the Bail Exclusion Clause, and placed the defendant under house arrest. Relying essentially on Articles 2, 3 and 5 of the Convention, the court held that the defendant ’ s continued detention could adversely affect her medical situation, and that it had not been persuasively demonstrated that there was a risk that she might evade or hinder the ongoing investigation.",
"55. On 12 March 2018 the Kyiv Holosiyivsky District Court rejected a prosecutor ’ s application to extend detention of a defendant (applicant in case no. 71818/17 Avraimov v. Ukraine, communicated on 5 January 2018) charged with terrorism financing, an offence under Article 258-5 of the Criminal Code, covered by the Bail Exclusion Clause. The court released the defendant, which had been in detention since 24 April 2017, and bound him over to appear when summoned.",
"The court found that the prosecution had failed to prove that the defendant represented any risks envisaged by Article 177 of the Code of Criminal Procedure ( see paragraph 41 above). The court had taken into account that the applicant had permanent accommodation and strong social ties, namely minor children and an elderly mother dependent on him and had no criminal record. The court cited Jablonski v. Poland (no. 33492/96, § 80, 21 December 2000 ) for the proposition that while the persistence of reasonable suspicion that the person arrested has committed an offence was a condition sine qua non for the lawfulness of the continued detention, after a certain lapse of time it no longer sufficed and judicial authorities had to give other grounds to extend deprivation of liberty.",
"56. In another case (domestic case no. 11-cc/796/4904/2017), on 27 September 2017 the Kyiv City Court of Appeal quashed a detention order and released a defendant, Mr O.L., charged with conspiracy to commit a coup d ’ état or insurrection, an offence under Article 109 of the Criminal Code, covered by the Bail Exclusion Clause. The Court of Appeal found that neither the reasonable suspicion in respect of the charges presented nor the risks the preventive measure was supposed to safeguard against have been proven by the prosecution.",
"RELEVANT INTERNATIONAL MATERIALOffice of the United Nations High Commissioner for Human Rights (OHCHR)",
"Office of the United Nations High Commissioner for Human Rights (OHCHR)",
"Office of the United Nations High Commissioner for Human Rights (OHCHR)",
"57. The report of the OHCHR on the human rights situation in Ukraine from 16 May to 15 August 2016 reads:",
"“81. OHCHR has documented a clear and consistent trend that human rights violations against persons charged with conflict-related or national security and ‘ terrorism ’ -related offenses often begin with arbitrary pre-trial detention. According to the Code of Criminal Procedure, as amended in October 2014, pre-trial detention is mandatory for all conflict-related or national security and ‘ terrorism ’ -related cases. According to the Minister of Justice, “custodial detention for separatist and terrorist crimes... increases the efficacy of a pre-trial investigation”.",
"...",
"83. Through trial monitoring, OHCHR has observed that neither the prosecution nor the judges address the grounds for continued detention at review hearings. Courts rarely examine alternatives to pre-trial detention, such as bail or other conditions to guarantee appearance for trial, which would render detention unnecessary in particular cases...",
"84. OHCHR finds that the relevant provisions of the Code of Criminal Procedure providing for mandatory pre-trial detention for accused charged with conflict-related or national security or terrorism offenses are contrary to international human rights standards and result in excessive and at times arbitrary detention. In May 2015, Ombudsperson filed an appeal with the Constitutional Court, challenging the constitutionality of the amendments citing the jurisprudence of the European Court of Human Rights. However, the Ombudsperson ’ s Office withdrew the appeal, for unexplained reasons.”",
"International Advisory Panel",
"58. In its report on the investigations of the events of 2 May 2014, the International Advisory panel criticised the failure to impose a preventive measure on a senior police official suspected of implication in or failure to prevent the violence on that day, which resulted in his fleeing, allegedly to the self-proclaimed “Moldavian Republic of Transdniestria” ( paragraphs 86 and 230 of the report), which has an extensive border with the Odessa Region and is located about 72 kilometres by road from Odessa. Regarding its status, see Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 99-112, 23 February 2016). The report also documented several other instances of defendants suspected and charged in connection with 2014 events in Odessa absconding (paragraphs 143, 144, 162, 163 and 277 of the report)."
] | [
"THE LAW",
"ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION",
"59. The applicant complained that there had been violations of Article 5 § 1 of the Convention because he had been arrested without a court decision, the arrest report had only been drawn up the day after his arrest, and the arrest report had been worded in vague terms. The relevant parts of Article 5 § 1 read:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"...”",
"Admissibility",
"60. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"(a) The applicant",
"61. The urgency of the situation had not prevented the officers conducting the search from drawing up two detailed search reports, running to seven pages each, printed on a laptop. This demonstrated that they had had sufficient time to formalise the details of the search. The Government had not explained why the same could not have been done in respect of the arrest report. There had been many officers involved and so it had been possible. The applicant considered that the real reason for the delay had been to delay his access to a lawyer.",
"62. The fact that the arrest report had correctly indicated the date of the actual arrest was of little relevance, since the report itself had been drawn up with a delay. Before it had been drawn up on 20 October 2015, no other record of detention had existed. In Smolik v. Ukraine ( no. 11778/05, §§ 43 ‑ 48, 19 January 2012), the Court had found that a subsequent acknowledgement of the actual date of arrest in a judicial decision had not been sufficient to cure the absence of a contemporaneous record of arrest. There had been no public record of the arrest as soon as it had occurred, resulting in the denial of procedural safeguards. This had prejudiced the applicant ’ s situation as he had not been informed of his rights to remain silent and to a lawyer, as a result of which supposedly self-incriminating statements had been recorded in the search reports.",
"63. The crime the applicant had been charged with had taken place weeks before his arrest. No arrest could therefore be made without a court order as the conditions for a “warrantless” arrest set out in Article 208 of the Code of Criminal Procedure had not been met. The report had not indicated exactly who had “identified” the applicant as the perpetrator or which clear “signs” had indicated that he had just committed the crime. There had been a breach of the domestic law in that respect.",
"(b) The Government",
"64. The Government referred to the events in certain areas of the Donetsk and Luhansk regions, where the anti-terrorist operation had been conducted, since April 2014, against the so-called “DPR” and “LPR”, considered by the Government to be illegal armed groups and terrorist organisations. The very decision to launch that military operation had been motivated by the rapid proliferation of the separatist movement in a number of regions of Ukraine, including Odessa. That movement benefitted from what the Government described as the “comprehensive support” of the Russian Federation. Odessa remained one of the cities with the highest levels of terrorist threat. The applicant was a member of Sut vremeni, the same movement whose members were also involved in the armed activities of the “DPR” and “LPR” ( see also paragraph 10 above).",
"65. The Government pointed out that the situation in the present case was to be distinguished from cases where the Court had condemned the practice of unrecorded detention by the police. Notably, it had been recorded in the arrest report that the arrest had taken place at 10.30 a.m. on 19 October 2015 ( see paragraph 22 above).",
"66. The authorities had had strong grounds to believe that the applicant was engaged in terrorist activity and had been under an obligation to act with the utmost urgency, most notably to extract the explosives from the block of flats where they were stored. After that had been done the applicant had been escorted to the office where the arrest report had been finalised.",
"67. The delay in the finalisation of the report had not affected the applicant ’ s position: he had been provided with a defence counsel and brought before a court already on 20 October 2015. The court, in its order authorising the applicant ’ s detention, had noted that he had been taken into custody at 10.30 a.m. on 19 October, so his arrest had been subject to a judicial review and his complaints in that respect had been found to be unsubstantiated.",
"68. The arrest report had contained specific information concerning the grounds for the applicant ’ s arrest, including the offence of which he had been suspected, the names of his suspected accomplices, and the time and place where the offence had been committed. This demonstrated that there had been a reasonable suspicion against him. The matter had been examined by two levels of domestic court, which had found that the arrest had been in compliance with domestic law.",
"The Court ’ s assessment",
"(a) Delay in the drawing up of the arrest report",
"69. It is not disputed that the applicant was first deprived of his liberty at 10.30 a.m. on 19 October 2015 ( see paragraph 16 above) and that there was a delay of more than twenty-three hours between the actual time of arrest and drawing up of the arrest report the next day ( see paragraph 22 above). While the applicant complained about the delay ( see paragraph 28 above), no explanation was ever provided for it in the domestic proceedings.",
"70. The Court has found violations of Article 5 § 1 in a number of cases where there was a delay in the drawing up of such reports (see, among many other examples, Grinenko v. Ukraine, no. 33627/06, §§ 9, 75 and 76, 15 November 2012, where the delay was in excess of fourteen hours, and Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 78, 26 June 2018, where, in respect of eight applicants, delay lasted from seven to twenty ‑ three hours).",
"71. It is true that in the present case the authorities immediately acknowledged that the arrest report had been made with a delay. However, in Smolik v. Ukraine (no. 11778/05, § 46, 19 January 2012) the Court held that the subsequent acknowledgement of a delay in the recording of an arrest could not remove the problem under Article 5 § 1 in the absence of contemporaneous records. In this respect it recalls that the absence of an arrest record must in itself be considered a serious failing, as it has been the Court´s constant view that unrecorded detention of an individual is a negation of the fundamentally important guarantees contained in Article 5 of the Convention (see, mutatis mutandis, Fortalnov, cited above, §§ 76 and 79; see also Makarenko v. Ukraine, no. 622/11, §§ 60 and 65, 30 January 2018; Beley v. Ukraine [Committee], no. 34199/09, § 60, 20 June 2019). The lack of a necessary record of a person ’ s detention as a suspect may deprive that person of access to a lawyer and all other rights of a suspect (see, mutatis mutandis, Fortalnov, cited above, § 77).",
"72. The Court sees no reason to reach a different conclusion in the particular circumstances of the present case. As to the Government ’ s argument that the applicant was not affected, the Court notes that on account of the delay in drawing up of the arrest report, the applicant ’ s access to a lawyer and notification of his rights as a defendant were delayed ( see paragraphs 22 and 24 above).",
"73. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the delay in the drawing up of the arrest report.",
"(b) Arrest without a prior court decision",
"74. Article 208 § 1 of the Code of Criminal Proceedings provides for only two situations where a person can be arrested without a prior court decision ( see paragraph 45 above):",
"(1) if the person has been caught whilst committing a crime or attempting to commit one; or",
"(2) if immediately after a criminal offence the statements of an eyewitness, including the victim, or a combination of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence.",
"75. It is the latter of the two grounds that was underlined in the arrest report ( see paragraph 22 above). It has never been suggested by any domestic authority that the former of the two grounds was also applicable.",
"76. The applicant argued before this Court, as he had done at the domestic level, that the second sub-clause of Article 208 § 1 did not apply to him. Firstly, it was unclear from the arrest report who the “eyewitnesses” had been who implicated him in that alleged offence. Secondly, the requirement of “immediacy” was not met since several weeks passed between the terrorist act of which the applicant had been suspected at the time and his arrest ( see paragraph 63 above).",
"77. The Court notes that the authorities did possess evidence of at least one eyewitness, the applicant ’ s co-conspirator G. ( see paragraphs 25 and 32 above). The relevant domestic law provisions required, however, that such an eyewitness identification occur “immediately” after the offence. It remains to be seen whether this requirement of “immediacy” was met.",
"78. The parties have not pointed to any domestic case-law which would define the exact meaning of the term “immediate” in that context.",
"79. In its previous judgments the Court found violations of Article 5 § 1 in respect of arrests effected under the equivalent provision of the 1960 Code of Criminal Provision ( see paragraph 47 above), which also allowed arrest without a court decision “immediately after” an offence was committed, where considerable time elapsed between the alleged offence and the arrest (see, for example, Malyk v. Ukraine, no. 37198/10, § 27, 29 January 2015, where the period concerned was half a year, and Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, where it was four months).",
"80. In the present case, the applicant was arrested about three weeks after the offence in question, the terrorist act at the SBU building ( see paragraphs 11 and 16 above).",
"81. The applicant argued before the domestic courts that such a delay was incompatible with the requirement of “immediacy” under the relevant provision of the Code of Criminal Procedure. Given that the literal language of the Code tended to support the applicant ’ s interpretation, his argument does not appear frivolous and required a response. However, the domestic courts, in particular the Court of Appeal, did not address it ( see paragraph 29 above).",
"82. The Court does not exclude that there might have been other legal grounds under domestic law for the applicant ’ s arrest, but the Court is not in a position to speculate on that point since the domestic authorities did not refer to any such alternative grounds.",
"83. In summary, neither the domestic courts provided no explanation for why sub-paragraph 2 of Article 208 § 1 of the Code of Criminal Procedure could serve as the legal basis for the applicant ’ s warrantless arrest, despite the applicant ’ s argument, grounded in the language used in the relevant legislative provision itself, to the contrary. Nor did they point to any other provisions of domestic law which would provide a legal basis for the applicants ’ detention.",
"84. In such circumstances, the Court is unable to find that the applicant ’ s arrest in the absence of a prior court decision was “in accordance with a procedure prescribed by law”.",
"85. There has, accordingly, been a violation of Article 5 § 1 of the Convention on account of the applicant ’ s arrest without a prior court decision.",
"(c) The wording of the arrest report",
"86. In view of the findings above there is no need to examine the complaint under Article 5 § 1 of the Convention concerning the wording of the arrest report.",
"ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION",
"87. The applicant complained of a violation of Article 5 § 2 of the Convention:",
"“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”",
"Admissibility",
"88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"(a) The applicant",
"89. The applicant submitted that the officers who had arrested him had not informed him of the reasons for either his arrest or the search (see paragraph 17 above). The search reports ( see paragraphs 18 and 19 above) had contained no indications which would have allowed him to understand those reasons, and there had been no other document which had contained that information. In the course of the first search, at his home, the officers had discovered a lease for the rented flat ( see paragraph 18 above). It had been on that discovery and not his statements that the decision to search the rented flat had been based.",
"90. Furthermore, his keys had been seized from him in the course of the first search and, therefore, he could not have opened the rented flat with his own key as indicated in the report on the second search ( see paragraphs 18 and 19 above). He had made no objection to the content of the latter report as he had had no lawyer at the time and had only been provided with one on 20 October 2018. In any event, the officers concerned had extensively questioned him after the arrest without explaining his rights to him or ensuring that he had access to a lawyer. The authorities could not therefore be allowed to “profit from their wrongdoing” by relying on the statements obtained from him during the searches in breach of his rights as evidence that he had been informed of the reasons for his arrest.",
"91. The applicant relied on the case of Zuyev v. Russia ( no. 16262/05, §§ 84 and 85, 19 February 2013), where the Court found a fourteen-hour delay too long to satisfy the requirements of Article 5 § 2.",
"(b) The Government",
"92. The applicant had been informed orally of the reasons for his arrest immediately after it had taken place, as required by law ( see paragraph 45 above). Article 5 § 2 did not require the reasons to be given in writing or otherwise in a particular form (citing Kane v. Cyprus ( dec. ), no. 33655/06, 13 September 2011).",
"93. In the course of the first search conducted immediately after the arrest in his home, the applicant had informed the officers that the bomb ‑ making equipment was at his rented flat. This demonstrated that he had fully understood the nature of suspicions against him. Article 5 § 2 allowed the reasons for the arrest to be provided in the course of post-arrest interrogations or questioning (citing Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A). In any event, detailed written reasons for the arrest had been served on the applicant the very next day, on 20 October 2015, which had been prompt enough in the context to meet the requirements of Article 5 § 2.",
"The Court ’ s assessment",
"94. The Government submitted that at the time of arrest the SBU officers had informed the applicant of the reasons for the arrest orally, as required by law ( see paragraph 92 above). The applicant denied this ( see paragraph 89 above). However, while the Government ’ s explanations are corroborated by the context and sequence of events, the applicant ’ s denial is vague, unsubstantiated and does not appear plausible. Notably, he did not explain in any detail what precisely the officers had told him concerning his arrest and the searches, whether he had demanded an explanation and, if so, what the response had been.",
"95. He appeared to concede that the security officers had questioned him about the explosives in the course of the search ( see paragraph 90 above) but insisted that that fact, and his responses recorded in the search report, could not be considered a valid notification for the purposes of Article 5 § 2, as his statements had been obtained in breach of his right to a lawyer. However, even in the absence of any response on his part, the tenor of the questions must have given him an indication of the reasons for his deprivation of liberty.",
"96. Moreover, the issue of whether any questioning in the course of the search led to a violation of the applicant ’ s right to legal assistance could be relevant in the context of Article 6 of the Convention. However, this matter is not part of the present application.",
"97. The primary goal of Article 5 § 2 is not to safeguard an applicant ’ s right to legal assistance in the criminal proceedings against him but rather to provide a safeguard against arbitrary deprivation of liberty and allow the applicant to obtain an effective review of the lawfulness of his detention, which would not be possible without knowing the reasons for it ( see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). The Court ’ s judgment in Dikme v. Turkey ( no. 20869/92, §§ 54-57, ECHR 2000 ‑ VIII) provides a good example of this distinction: in that case, even though there were credible allegations that the applicant was ill-treated and questioned without a lawyer, the Court found no violation of Article 5 § 2 because the very tenor of that potentially problematic questioning had communicated to the applicant the reasons for the arrest.",
"98. Be it as it may, given the situation in Odessa at the relevant time and the notorious nature of the series of explosions in question ( see paragraphs 9 and 12 above), the very fact that a search was conducted by SBU officers, accompanied by a demining expert, in the course of which explosive devices were discovered must have largely communicated to the applicant the reasons for his deprivation of liberty (compare, mutatis mutandis, Öcalan v. Turkey ( dec. ), no. 46221/99, 14 December 2000).",
"99. There is no indication that any possible delay in the formal explanation of the reasons for the applicant ’ s arrest was in any way prejudicial to him in terms of him being able to challenge the lawfulness of his detention: in fact, he appeared before the judge the day after his arrest and, at that time, he and his lawyer already had the formal notification of suspicion against him.",
"100. There has, accordingly, been no violation of Article 5 § 2 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION",
"101. The applicant complained that the application in his case of Article 176 § 5 of the Code of the Criminal Procedure, which precluded the use of non-custodial preventive measures to terrorism suspects, had resulted in a violation of Article 5 § 3 of the Convention, which reads:",
"“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”",
"Admissibility",
"102. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"(a) The applicant",
"103. Article 176 § 5 of the Code of Criminal Procedure ( see paragraph 40 above, hereinafter also “the Bail Exclusion Clause”) barred the use of any preventive measure other than pre-trial detention in respect of persons accused of involvement in terrorism, like the applicant. For him, the situation was analogous to S.B.C. v. the United Kingdom ( no. 39360/98, § 23, 19 June 2001) and Boicenco v. Moldova (no. 41088/05, §§ 135-138, 11 July 2006) and also disclosed a violation of Article 5 § 3.",
"104. After the initial pre-trial detention order the courts had continued to invoke the Bail Exclusion Clause in their subsequent decisions. On 8 April 2016 the Court of Appeal had even explained why it considered the Bail Exclusion Clause compliant with Article 5 of the Convention ( see paragraph 35 above). This demonstrated that reliance on the provision in question was important and far from an incidental formal reference with no effect, as the Government had pretended.",
"105. Contrary to what the Government had suggested, the courts could not in any way derogate from the Bail Exclusion Clause. In that connection the applicant submitted a press release from the SBU dated 15 October 2005 announcing that criminal proceedings had been instituted against a judge in the Donetsk region who had released a person suspected of terrorism financing on bail. The applicant also referred to a report of the OHCHR criticising the Bail Exclusion Clause ( see paragraph 57 above).",
"106. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the applicant maintained his initial position and submitted that the Constitutional Court ’ s decision of 25 June 2019 declaring the Bail Exclusion Clause unconstitutional and other recent domestic case ‑ law could be seen as measures which were, in principle, favourable to him. Those developments did not mean, however, that the authorities acknowledged a violation of the applicant ’ s rights or afforded redress to him. Notably, none of the decisions extending his detention had been set aside. The Constitutional Court ’ s decision had no retroactive effect. Therefore, the applicant could still claim to be a “victim” of a violation of his rights under Article 5 § 3 and his complaint remained admissible.",
"(b) The Government",
"107. The Government submitted that there had only been a pro forma reference to the Bail Exclusion Clause in the court decision ordering the applicant ’ s detention. The court had primarily relied on grounds such as the strong suspicion that the applicant had committed a terrorist attack and the risk that he would continue criminal activities or abscond if released. The applicant ’ s detention had been necessary because he was a member of “a pro-Russia underground terrorist network” and if at large could abscond as another suspect, Ch., had done ( see paragraph 14 above). Moreover, the fact that after the attack on the SBU building the applicant had continued to make explosive devices had demonstrated his intention to continue his dangerous criminal activities. The applicant would therefore have been detained regardless of the Bail Exclusion Clause.",
"108. For this reason, the speculative question of whether, in the absence of that legislative provision, the applicant would have been placed in detention, was irrelevant.",
"109. In further observations submitted at the Chamber ’ s invitation ( see paragraph 5 above), the Government reported that, after the period covered by their initial observations, the applicant ’ s detention continued to be extended ( see paragraph 37 above).",
"The Court ’ s assessment",
"(a) Relevant general principles",
"110. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention ( see Buzadji, cited above, § 90, with further references). Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 ( see Ilijkov v. Bulgaria, no. 33977/96, § 84, 26 July 2001).",
"111. It primarily falls to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. Accordingly, they must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 ( see Buzadji, cited above, § 91).",
"112. The persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Court must then establish (1) whether other grounds cited by the judicial authorities continue to justify the deprivation of liberty and (2), where such grounds were “relevant” and “sufficient”, whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (ibid., § 87).",
"113. That requirement on the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand (ibid., § 102).",
"114. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative means of ensuring his or her appearance at trial (ibid., § 87).",
"115. Justifications which have been deemed “relevant” and “sufficient” reasons (in addition to the existence of reasonable suspicion) in the Court ’ s case-law, have included grounds such as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (ibid., § 88).",
"(b) Application of the relevant principles to the present case",
"116. The Court has held, on several occasions, that legislative schemes limiting the domestic courts ’ decision-making powers in matters of pre-trial detention breached Article 5 § 3 of the Convention ( see S.B.C. v. the United Kingdom, no. 39360/98, §§ 23 and 24, 19 June 2001; Boicenco v. Moldova, no. 41088/05, §§ 134-38, 11 July 2006; and Piruzyan v. Armenia, no. 33376/07, §§ 105 and 106, 26 June 2012).",
"117. In this context the Court notes the Constitutional Court ’ s decision to declare unconstitutional the Bail Exclusion Clause on the grounds that its operation in practice limited the domestic courts ’ ability to issue properly reasoned detention orders ( see paragraph 53 above). It is a matter of satisfaction for the Court that the Constitutional Court ’ s decision eliminated the risk (also stressed by the OHCHR – see paragraph 57 above ) that the Bail Exclusion Clause would have such a negative effect in future cases.",
"118. The Court reiterates, however, that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention ( see N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X). As stated above, the Constitutional Court ’ s decision was primarily focused on the Bail Exclusion Clause preventing the courts from properly reasoning the detention orders, which is also a matter that is closely associated with the particular circumstances of a given case.",
"119. Contrary to the situation in the cases cited in paragraph 116 above, in the present case the domestic courts had the power to review the existence of a reasonable suspicion against the defendant, examine the evidence in this respect and order his release if they considered that no reasonable suspicion was shown in respect of the charges brought against him (see, for an example of a similar situation in Croatia, Merčep v. Croatia, no. 12301/12, § 102, 26 April 2016) or if they considered that there were no risks justifying detention ( see paragraphs 43 and 54 to 56 above).",
"120. The case material demonstrates that the domestic courts, which had before them considerable evidence in support of the suspicion against the applicant, did exercise this power of control in his case ( see paragraphs 14, 15, 18, 19, 25 and 26 above), as they had done in some other terrorism and national security-related cases ( see examples of the domestic courts ’ decisions in paragraphs 54 to 56 above).",
"121. The Court reiterates that in some instances concerning particularly serious crimes, the nature and gravity of the charges against a defendant is a factor weighing heavily against his or her release and in favour of remanding him or her in custody ( see Merčep, cited above, § 96, with further references). The generally formulated risk flowing from the organised nature of the criminal activities of which the applicant is accused has been accepted as the basis for his or her detention, in particular at the initial stages of the proceedings ( see Dudek v. Poland, no. 633/03, § 36, 4 May 2006 ).",
"122. In Khodorkovskiy v. Russia (no. 5829/04, § 196, 31 May 2011) the Court remarked that, even though that situation had not arisen in that case, in some circumstances, for example where the suspect allegedly belonged to a gang implicated in violent crimes, or, probably, in terrorist cases, the “unavailability of bail” could be self-evident (citing Galuashvili v. Georgia, no. 40008/04, §§ 6 et seq., 17 July 2008; Kusyk v. Poland, no. 7347/02, § 37, 24 October 2006; and Celejewski v. Poland, no. 17584/04, §§ 35-37, 4 May 2006).",
"123. The Court considers that this was the situation in the applicant ’ s case. The unavailability of release was self-evident, given the specific circumstances of the applicant ’ s case. He was suspected of organising and leading a terrorist group composed of several individuals, one of whom had already absconded by the time the applicant was arrested. The group used sophisticated undercover operations techniques and was engaged in a highly dangerous activity, an activity which was allegedly ongoing at the time the arrest was made.",
"124. In this context the Court must stress that the authorities were under a duty to protect the rights of the actual and potential victims of violent attacks under Articles 2, 3 and 5 § 1 of the Convention. The Court considers that, in circumstances such as those in the applicant ’ s case, it must interpret the scope of the authorities ’ obligations under Article 5 § 3 to provide reasons for their decisions in a manner consistent with the practical requirements of discharging that duty (see, in the context of Article 6, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 252 and 259, 13 September 2016 ).",
"125. Moreover, his case was examined against the background of great tensions in Odessa at the relevant time and the fleeing of defendants in other previous high-profile cases ( see paragraphs 7 to 10 and 58 above).",
"126. It is also of key relevance that the District Court, which had full jurisdiction in that respect, found, in proceedings which raised no other issue of compliance with Article 5 § 3, that the evidence supported a reasonable suspicion against the applicant on those specific charges and that there was a risk of him absconding if released. Those findings were reviewed and upheld on appeal. Given the material before the Court, there is no reason to doubt the well-founded nature of the domestic courts ’ findings in that respect.",
"127. It is true that the reasons in the District Court ’ s initial detention order were stated in a succinct fashion, given that the danger of the applicant absconding was evident. However, the court ’ s succinct reasoning cannot alone amount to a violation of Article 5 § 3 (see, for example, Van der Tang v. Spain, 13 July 1995, § 60, Series A no. 321). Moreover, the degree of specificity of the domestic courts ’ reasons evolved over time: on 8 April 2016, in upholding the order extending the applicant ’ s detention, the Court of Appeal referred to his specific role in the organisation of clandestine activities as grounds for believing that he presented a flight risk ( see paragraph 35 above). The Court observes that it has not been suggested that the authorities failed to display “special diligence” in the conduct of the proceedings",
"128. Lastly, and most importantly, the decision of 20 October 2015 was not based on the Bail Exclusion Clause, although it contained a reference to the latter, but as explained above was the result of a balanced assessment which took into account the seriousness of the crime of which the applicant was suspected and the risk posed by release.",
"129. In view of the above-mentioned circumstances, the Court considers that the domestic courts gave “relevant” reasons for his detention which were “sufficient” under the circumstances to meet the minimum standard of Article 5 § 3 of the Convention.",
"130. The Court finds, therefore, that, in the particular circumstances of the present case, there has been no violation of Article 5 § 3 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION",
"131. The applicant complained of a violation of Article 6 § 2 of the Convention on account of the language used by the District Court in its initial pre-trial detention order. Article 6 § 2 of the Convention reads:",
"“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”",
"Admissibility",
"132. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties ’ submissions",
"The parties ’ submissions",
"The parties ’ submissions",
"(a) The applicant",
"133. The applicant submitted that the District Court had stated, in its pre-trial detention order, that he “had committed a particularly grave offence” ( see paragraph 26 above) and thus had affirmed his guilt in the absence of a conviction. That statement had been phrased as a statement of fact, expressed without any qualification or reservation. By making it, the District Court had taken the side of the prosecution, thus prejudging the outcome of the proceedings against him. The statement could only have conveyed to the reader that he was in fact guilty. Even though he had raised this matter on appeal, the Court of Appeal had not commented on it.",
"134. That latter fact was of critical importance. The applicant considered that a similar situation had occurred in Fedorenko v. Russia, (no. 39602/05, §§ 89-93, 20 September 2011), where the Court of Appeal had failed to correct the first-instance court, which had stated in a detention order that the applicant “had committed a serious criminal offence”, dismissing it as a mere “technical error”. In that case the Court had found a violation of Article 6 § 2.",
"(b) The Government",
"135. The Government submitted that what was important in the application of Article 6 § 2 was the true meaning of statements and not their literal form. The District Court, in its decision of 20 October 2015, had made it clear that the applicant was merely suspected by the authorities of a terrorist attack. While the literal expression used by the District Court “had committed a particularly grave offence” might seem to be in breach of the principle of the presumption of innocence, its context had to be taken into account. It had been used in the context of considering whether the applicant ’ s detention had to be ordered, and it had been essential in that context to examine whether there was a reasonable suspicion against the applicant. That was precisely what the judge had intended to say in the order, and this had been explained in the Court of Appeal ’ s decision of 28 October 2015. Moreover, the relevant court order had not been made available to the public.",
"The Court ’ s assessment",
"(a) Relevant general principles",
"136. The Court reiterates that the principle of the presumption of innocence under Article 6 § 2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved under the law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, and a premature expression of such an opinion by the tribunal itself will inevitably run foul of the principle ( see Ramkovski v. the former Yugoslav Republic of Macedonia, no. 33566/11, § 81, 8 February 2018, with further references ). However, a distinction should be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe “a state of suspicion”. The former infringe the presumption of innocence, whereas the latter have been regarded as unobjectionable in various situations examined by the Court.",
"137. The Court has previously held that the statements in question must be read as a whole and in their proper context (ibid., § 82). When regard is had to the nature and context of the particular proceedings, even the use of some unfortunate language may not be decisive. The Court ’ s case-law provides some examples of instances where no violation of Article 6 § 2 was found even though the language used by domestic authorities and courts had been criticised ( see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013, citing, in the latter respect, Reeves v. Norway ( dec. ), no. 4248/02, 8 July 2004, and A.L. v. Germany, no. 72758/01, §§ 38-39, 28 April 2005).",
"(b) Application of the above principles to the present case",
"138. The Court has found violations of Article 6 § 2 in many cases where the domestic courts, in pre-trial detention decisions, stated in an unqualified way that the applicant had committed an offence (see, for example, Matijašević v. Serbia, no. 23037/04, §§ 47-51, ECHR 2006 ‑ X; Garycki v. Poland, no. 14348/02, §§ 13, 71-73, 6 February 2007; Nešťák v. Slovakia, no. 65559/01, §§ 89-91, 27 February 2007; Fedorenko, cited above, §§ 90-93; Gutsanovi v. Bulgaria, no. 34529/10, §§ 202-204, ECHR 2013 (extracts); and Mugoša v. Montenegro, no. 76522/12, §§ 68 and 69, 21 June 2016).",
"139. The pre-trial detention order contained references to the suspicion against the applicant and, indeed, the District Court ’ s role in the proceedings was first of all to verify whether there was a reasonable suspicion against the applicant, as submitted by the investigating authority. However, the part of the pre-trial detention order where the expression in question was used was not dedicated to a description of the investigating authority ’ s submissions or a discussion of the presence or otherwise of a reasonable suspicion.",
"140. Rather, the expression was used in the context of examining whether there were circumstances justifying the applicant ’ s detention: a risk of him absconding, interfering with the investigation or continuing criminal activities. By the time the District Court turned to those matters, it had already summarised the investigating authority ’ s submissions and had found it established that there was a reasonable suspicion against the applicant.",
"141. The Court does not perceive any reason for the District Court then to return to the matter again just to repeat, as the Government suggested ( see paragraph 135 above), that it considered that there was a reasonable suspicion against the applicant. Moreover, under domestic law, persistence of a reasonable suspicion and existence of certain risks justifying detention, such as the risk of absconding, are two distinct matters. The District Court clearly used the expression in the latter, not the former, context.",
"142. The District Court appears to have used the expression not to proclaim the applicant guilty as such but to justify its decision to place him in pre-trial detention. However, as the above-mentioned case-law indicates, this alone does not rule out a finding of a violation since the Court has repeatedly found violations of Article 6 § 2 on account of an unqualified declaration of guilt in a pre-trial detention order.",
"143. The circumstances of the present case should be distinguished from cases where the courts stated that the applicants had “committed” certain acts classified in some way under domestic law merely to say that they considered that the applicants met certain legal criteria for a measure to be applied to them, such as extradition ( see Gaforov v. Russia (no. 25404/09, § § 212-16, 21 October 2010) or pre-trial detention ( see Lada v. Ukraine ([CTE], no. 32392/07, §§ 17, 18 and 51, 6 February 2018). By contrast, in the present case the District Court, by the time it used the offending expression, had already disposed with the question, indeed a relevant one under domestic law ( see paragraphs 48 above) of whether the applicant fell into a category of defendants, which, because of the particular gravity of the charges against them, qualified for pre-trial detention ( see the relevant provision of the domestic law in paragraph 42 above).",
"144. Lastly, it cannot be said that the District Court referred to the particular characteristics of the charges against the applicant, such as the organised nature or sophistication of the alleged criminal activity (contrast Perica Oreb v. Croatia, no. 20824/09, §§ 29 and 142, 31 October 2013, and Ramkovski, cited above, §§ 18, 83 and 84) or its particularly gruesome nature, exceeding the “basic” features of the offence in question (contrast Karan v. Croatia ( dec. ), no. 21139/05, 7 December 2006), as a basis for the court ’ s opinion that the pre-trial detention was justified. The District Court ’ s statement was devoid of any of those redeeming features, as it referred not to the particular characteristics of the offence the applicant was suspected of but to the applicant having “committed it”.",
"145. In such circumstances, the Court is unable to read the statement in question other than as an expression of the District Court ’ s opinion that the applicant was indeed guilty of the particularly grave offence of which he had been merely suspected, and not convicted, at the time.",
"146. The Court is prepared to entertain the possibility that the District Court may have merely committed a technical error in poorly wording its decision. However, neither the District Court, Court of Appeal nor any other domestic authority acknowledged that any such error had been committed or attempted to correct it (see, mutatis mutandis, Matijašević, § 47, and Mugoša, § 68, and contrast Fedorenko, § 91, and Lada, §§ 18 and 51, all cited above).",
"147. There has, accordingly, been a violation of Article 6 § 2 of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"148. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"149. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.",
"150. The Government, reiterating their submissions that there had been no violations of the applicant ’ s rights, considered the claim unjustified and, in any event, excessive.",
"151. The Court considers that, in the circumstances of the present case, the finding of violations constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant.",
"Default interest",
"152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
280 | Shiksaitov v. Slovakia | 10 December 2020 | The applicant, a Russian national of Chechen origin, was granted refugee status in Sweden on grounds of his political opinions. An international arrest warrant had been issued against him on account of alleged acts of terrorism committed in Russia. While travelling, he was apprehended at the Slovak border as a person appearing on Interpol’s list of wanted persons. He was later arrested and held in detention while the Slovak authorities conducted a preliminary investigation into the matter, followed by detention in view of extradition to Russia. The Supreme Court found his extradition to be inadmissible in light of his refugee status. He was released and administratively expelled to Sweden. | The Court held that there had been a violation of Articles 5 § 1 (right to liberty and security) and 5 § 5 (enforceable right to compensation) of the Convention. It noted, in particular, that the applicant’s arrest and the individual detention orders had complied with Slovak law and the Convention. It found, however, that the overall length that the applicant had been held had been overlong and the grounds for his detention had ceased to be valid. The Court also found that the applicant had not had an enforceable right to compensation for the breach in question. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"2. The applicant was born in 1982 and lives in Alvesta (Sweden). He was represented by Ms I. Rajtáková, a lawyer practising in Košice.",
"3. The Government were represented by their Agent, Ms M. Pirošíková, from the Ministry of Justice.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. On 12 July 2007 the Zavodskoy District Court of Grozny (Chechen Republic) issued an international arrest warrant against the applicant on account of his criminal prosecution for acts of terrorism that he had allegedly committed in 2004 in Grozny as a member of an armed group and in respect of which, if convicted, he faced a sentence of life imprisonment.",
"6. Between 2010 and 2011 the applicant was the subject of extradition proceedings in Ukraine, but fled to Sweden.",
"7. On 6 December 2011 he was granted asylum in Sweden on the grounds of his political opinions and granted permanent leave to remain.",
"8. On 15 January 2015 at 8.45 p.m., when he was on his way to Ukraine, the applicant was apprehended by the Slovak border police as a person appearing on Interpol’s list of wanted persons; he was then taken to the Vyšné Nemecké border police station. The relevant police report cited section 17b(1) of the Police Corps Act (Law no. 171/1993).",
"9. He was arrested the next day (16 January 2015) at 1 a.m. under Article 504 § 2 of the Code of Criminal Procedure (hereinafter “the CCP”), on the basis of the international arrest warrant that had been issued against him on 12 July 2007. The relevant police report noted that the Košice regional prosecutor (hereinafter “the prosecutor”) had authorised the arrest at 1 a.m.",
"10. Later the same day the applicant was placed in a police detention cell in Košice; he was assigned a lawyer by the Košice Regional Court (hereinafter “the Regional Court”). At 1 p.m. he was interviewed by the prosecutor and informed of the reasons for his arrest. It was noted on that occasion that Interpol had confirmed that the applicant was still a wanted person (whose arrest and extradition had been requested by Russia), and that the Russian authorities had undertaken to send extradition documents to the Slovak authorities in good time. The applicant denied having committed any crime in Russia, contending that he was being persecuted because of his brother’s activities in Chechnya. In response to his statement that he had been granted asylum in Sweden, the prosecutor indicated that the circumstances leading to the granting of asylum to the applicant were being verified.",
"The applicant’s preliminary detention (application no. 56751/16)",
"11. On 17 January 2015 the prosecutor lodged an application with the Regional Court for the applicant to be placed in preliminary detention under Article 504 § 3 of the CCP. It stated that, at that stage, the applicant’s refugee status in Sweden, which had been confirmed by Interpol in Stockholm, was not an obstacle to the launching of a preliminary investigation in respect of his possible extradition, given that asylum policy was not standardised throughout the European Union (EU). It was thus necessary, pursuant to the European Convention on Extradition of 1957 and the CCP, to secure the applicant’s presence in Slovakia until it was established whether his extradition to Russia was admissible.",
"12. On 19 January 2015 the Regional Court heard the applicant, who reiterated that he had been granted asylum in Sweden. Observing that the process of granting asylum was subject to proceedings that differed from extradition proceedings and that preliminary investigations within extradition proceedings (under Article 502 of the CCP) were to be carried out by the prosecutor, the Regional Court considered that it was necessary to secure the applicant’s presence on Slovak territory until the State requesting extradition had submitted a request for that extradition, as provided by Article 505 § 3 of the CCP. Pursuant to Article 505 § 1 of the CCP, it thus decided to allow the prosecutor’s application and to place the applicant in preliminary detention pending the extradition proceedings, with effect from 15 January 2015 at 8.45 p.m.",
"13. The applicant lodged an interlocutory appeal, which he later completed through a new lawyer of his choice. He mainly asserted that in view of the fact that he had been granted asylum in Sweden, Article 501 (b) of the CCP prohibited his extradition to another country. He also submitted that the authorisation of the prosecutor had been needed for his apprehension on 15 January 2015 and that Russia had not requested (as required under Article 16 of the European Convention on Extradition) that he be placed in preliminary detention.",
"14. By a letter of 27 January 2015, the prosecutor asked the Swedish authorities to provide more information about the applicant’s status in Sweden.",
"15. On 9 February 2015 the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal. Referring to the arrest warrant and to the documents relating to the applicant’s ongoing criminal prosecution sent via Interpol by the Russian authorities, it considered that the conditions set by the CCP for the preliminary detention had been met. The fact that the applicant had been granted asylum in Sweden (which was to be further investigated by the prosecutor with regard to the exclusion provision of Article 1F of the 1951 Geneva Convention – see paragraph 22 below) did not prevent such detention. It was indeed impossible at that stage to assess whether the extradition would eventually be admissible or not.",
"16. On 19 February 2015 the applicant lodged a constitutional complaint challenging the Supreme Court’s decision. Citing his right not to be deprived of his liberty without a legal basis, he pointed out that the State that had issued the international arrest warrant in respect of him had not requested that he be placed in preliminary detention, and submitted that his refugee status automatically excluded any extradition. He also asserted that several of his procedural rights, as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, had been violated during the proceedings regarding the imposition of his preliminary detention.",
"17. After a public hearing held on 26 January 2016, the Constitutional Court issued a judgment on 28 January 2016 (no. II. ÚS 352/2015, served on the applicant’s lawyer on 22 March 2016) in which it held that the applicant’s rights, as guaranteed by Articles 5 and 6 of the Convention, had not been breached. It stated that the initial limitation of the applicant’s liberty had been based on the Police Corps Act and had not required the authorisation of the prosecutor; under Article 504 § 2 of the CCP, only after the authorities had verified that the applicant was still the subject of an international search could he be arrested, with the prior authorisation of the prosecutor. His subsequent placement in preliminary detention had been conditional only on the relevant request being lodged by the prosecutor, pursuant to Article 504 § 3 of the CCP; indeed, Article 16 § 1 of the European Convention on Extradition could not be interpreted to mean that such a request had to be lodged by the State requesting extradition. The Constitutional Court furthermore observed that a translation of the decision on the refugee status granted to the applicant by the Swedish authorities had been submitted by the applicant only after the Supreme Court had decided on the matter, and that the conditions regarding the admissibility of his extradition were subject to a preliminary investigation by the prosecutor, the purpose of which could be challenged without placing the applicant in preliminary detention.",
"The applicant’s detention pending extradition and extradition proceedings (application no. 33762/17)",
"18. On 20 February 2015, the prosecutor lodged an application for the applicant to be placed in detention pending extradition, pursuant to Article 505 § 5 and Article 506 § 1 of the CCP. He noted that preliminary detention could not last more than forty days, which would elapse on 23 February 2015, and that the aim of that detention had been attained, since a request for the applicant’s extradition (containing the necessary assurances concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition) had been lodged by the Russian Prosecutor General’s Office on 17 February 2015. The prosecutor noted that during the subsequent proceedings the circumstances surrounding the recognition in Sweden of the applicant’s refugee status and the impact of those circumstances on the outcome of the preliminary investigation would be duly examined and that reports would be requested from the Slovak Ministry of Foreign Affairs and the Office of the United Nations High Commissioner for Refugees (UNHCR) regarding the security situation in Russia and whether the above-mentioned assurances were likely to be honoured.",
"19. On 23 February 2015, the Regional Court allowed the above-mentioned application, pursuant to Article 506 § 1 of the CCP, holding that, while the aim of the preliminary detention had been attained with the service of the extradition request, the aim of the extradition proceedings could not be achieved without placing the applicant in detention pending extradition and thus preventing him from absconding. Noting that the Swedish authorities had not (according to their response to the above-mentioned enquiry lodged by the prosecutor) verified during the asylum proceedings whether the applicant appeared on Interpol’s list of wanted persons, the court indicated that the relevant circumstances and their impact on the preliminary investigation would be duly reviewed.",
"20. The applicant lodged an interlocutory appeal in which he contended, citing Directive 2011/95/EU, that Slovakia was bound by the decision of the Swedish authorities to grant him asylum.",
"21. On 10 March 2015, the applicant was heard by the prosecutor and informed of the request for his extradition lodged by Russia; he did not consent to his extradition.",
"22. On 16 March 2015, the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal against the decision of 23 February 2015. It noted that the extradition request (accompanied by the necessary documents) had been submitted by Russia on 17 February 2015, and that the purpose of the preliminary detention had thereby been achieved; however, the applicant’s release at that stage would frustrate the completion of the preliminary investigation and, consequently, the aim of the extradition proceedings. Referring to (i) the exclusion provision of Article 1F (b) of the 1951 Geneva Convention, which specified that the provisions of that convention should not apply to any person in respect of whom there are serious reasons for considering that he has committed a serious non-political crime outside his country of refuge prior to his admission to that country as a refugee, and (ii) a similar exclusion provision set out in Article 12 § 2 (b) of Directive 2011/95/EU, the Supreme Court considered that the latter provision, although disregarded by Sweden when granting asylum to the applicant, precluded the Slovak Republic from accepting and applying refugee status in his case (together “the exclusion provisions”).",
"23. In May 2015 the applicant lodged a constitutional complaint against the Supreme Court’s decision. Relying on Article 5 § 1 and Article 6 § 1 of the Convention, he asserted that the Slovak authorities were bound by the decision of the Swedish authorities to grant him asylum and that there were no grounds to consider that he had committed the acts listed in Article 12 § 2 (b) of Directive 2011/95/EU. Subsequently, the complaint was admitted for examination under no. II. ÚS 53/2016, and a public hearing was held before the Constitutional Court.",
"24. On 9 October 2015, the prosecutor asked the Regional Court to allow the applicant’s extradition to Russia. He referred to (i) the fact that the Swedish authorities had not, before granting asylum to the applicant, verified whether the latter’s name appeared in Interpol’s database of wanted persons, (ii) the statement of UNHCR, according to which the protection conferred on the applicant owing to his refugee status was not unconditional and (iii) the assurances made by Russia concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition.",
"25. A public hearing held before the Regional Court on 26 January 2016 was adjourned with a view to requesting additional information from the Russian authorities as to the existence of further written evidence that might complement the extradition request. It can be seen from the case file that, in response, the Russian Prosecutor General’s Office stated that the above-mentioned extradition request had been based mainly on the fact that the preliminary investigation had led to the issuance of an international search and arrest warrant; the Russian Prosecutor General’s Office added that Russian law did not require, for an international warrant to be issued, firm evidence giving rise to the suspicion of a crime having been committed.",
"26. On 8 September 2016, the Regional Court decided that the applicant’s extradition to Russia was admissible. It noted that refugees did not automatically enjoy immunity from criminal prosecution, as provided by Article 1F of the 1951 Geneva Convention and in Article 12 § 2 (b) of Directive 2011/95/EU. In the instant case, given that the applicant was suspected of having committed a serious non-political crime, the latter provision prevented Slovakia – as concluded by the Supreme Court in its decision of 16 March 2015 – from applying refugee status in his respect. Moreover, Russia, as a Contracting Party to the Convention, had provided concrete and specified guarantees that the applicant would not be subjected to any treatment that was contrary to Article 3 of the Convention.",
"27. By a judgment of 13 October 2016, the Constitutional Court dismissed the applicant’s constitutional complaint (no. II. ÚS 53/2016). It observed that a guarantee of non-refoulement was not unconditional, since the relevant exclusion provisions allowed for persons who did not deserve refugee protection to be excluded from such protection, and as such did not constitute an obstacle to the requested State undertaking certain actions in the course of extradition proceedings (including proceedings in respect of detention pending extradition) involving such persons. Consequently, Article 14 § 3 (a) of Directive 2011/95/EU obliged member States to revoke the refugee status of a person if they had established that he or she should have been excluded from being accorded the status of refugee under Article 12. The imposition of detention pending extradition was thus a procedural tool allowing the interests at stake to be weighed proportionally. In the instant case there was no reason not to accept at that stage the Supreme Court’s conclusions; the general courts were nevertheless called on, in the subsequent proceedings, to examine and take into account all the relevant circumstances (including the Court’s case-law in respect of Article 3 of the Convention) before deciding whether to “revoke” the applicant’s refugee status and whether to extradite him to Russia.",
"According to the dissenting opinion of one of the judges, the Constitutional Court should have declared that the applicant’s rights had been violated, given that the decision of the Swedish authorities should have been accepted (if need be, after lodging a request with the Court of Justice of the European Union for a preliminary ruling on the acceptance of the Swedish decision), or that, in any event, the risk that the applicant might be subjected to ill-treatment in the event of his extradition to Russia should have been assessed as required by the Court’s case-law, namely M.G. v. Bulgaria (no. 59297/12, 25 March 2014).",
"28. After the applicant lodged an interlocutory appeal against the decision of 8 September 2016 (see paragraph 26 above), the Fourth Chamber of the Supreme Court reversed the Regional Court’s decision of 8 September 2016 and decided, on 2 November 2016, that the applicant’s extradition to Russia was inadmissible, mainly under Article 501 (b) of the CCP. It gave as the main reason for that decision the fact that, having been granted asylum in Sweden, the applicant enjoyed refugee protection on the territory of all EU member States, despite the fact that the Swedish authorities had not been aware of the criminal charge facing him in Russia. It also concluded that neither the exclusion clause contained in the 1951 Geneva Convention nor the one contained in Directive 2011/95/EU were applicable in the instant case. It further observed, after reviewing all the relevant circumstances (including the general human rights situation in Russia and the reliability of the assurances offered by Russia), that the applicant’s extradition would in any event not be admissible (i) on humanitarian grounds, (ii) owing to a lack of reliable evidence to support the slightest plausibility of the suspicion against him and (iii) in the light of numerous inaccuracies and contradictions contained in the extradition documents. Lastly, the Supreme Court noted that the action serving as the initial impetus for the applicant’s criminal prosecution had to be regarded as “political” and that his political views (together with his brother’s political activities) could give rise to bias on the part of the requesting State’s authorities, within the meaning of Article 3 §§ 1 and 2 of the European Convention on Extradition.",
"By the same decision the Supreme Court ordered the applicant’s release from detention pending extradition, with immediate effect.",
"29. On 2 December 2016, the Slovak Minister of Justice decided not to authorise the applicant’s extradition to Russia, pursuant to Article 510 § 1 of the CCP.",
"The applicant’s expulsion",
"30. Upon the applicant’s release from detention pending extradition on 2 November 2016, the border police initiated proceedings aimed at securing his administrative expulsion to Sweden and decided to place him in administrative detention, pursuant to section 88(1)(a) of Law no. 404/2011.",
"31. On 4 November 2016 the border police ordered the applicant’s administrative expulsion to Sweden, which took place on 1 December 2016.",
"32. The applicant challenged this order, upon which the Supreme Court decided, by a judgment of 22 October 2019, to quash the decision on the applicant’s expulsion to Sweden and to send the matter back to the border police."
] | [
"RELEVANT LEGAL FRAMEWORK",
"Relevant domestic lawThe Police Corps Act of 1993 (Law no. 171/1993 Coll., as amended)",
"The Police Corps Act of 1993 (Law no. 171/1993 Coll., as amended)",
"The Police Corps Act of 1993 (Law no. 171/1993 Coll., as amended)",
"33. The Act governs the organisation and powers of the police. Under section 17b(1), a police officer has the power to apprehend a person on the basis of a request to bring him or her before a court, a prosecuting authority, an administrative authority, or another authority listed by specific provisions. Such a request must refer to the personal data available to the requesting authority, and must specify the underlying legal provisions under which (and the reasons for which) the person is to be brought before the authority in question.",
"Code of Criminal Procedure (Law no. 301/2005 Coll., as applicable at the relevant time)",
"34. The relevant provisions of Chapter II (Extradition), Part II (Extradition abroad) read as follows:",
"Article 501 Inadmissibility of Extradition",
"“Extradition shall be inadmissible if:",
"...",
"b) it concerns a person who has applied in the Slovak Republic for asylum or who has been granted such asylum or provided with supplementary protection to the extent of the protection to be provided to such persons under a separate act or an international treaty; this does not apply if it concerns a person who has requested asylum in the Slovak Republic repeatedly and his/her request for asylum has already been subject to a final decision,”",
"Article 502 Preliminary investigation",
"“(1) A preliminary investigation shall be conducted by a prosecutor of a regional prosecution office to whom the Ministry of Justice has forwarded a request by a foreign authority for extradition abroad, or in whose district the person to be extradited to the requesting State was arrested or lives. If the preliminary investigation was opened before the delivery of a request for extradition, the prosecutor shall immediately inform the Ministry of Justice of it.",
"(2) The goal of a preliminary investigation is to determine whether the conditions for extradition to be ruled admissible are met.",
"...”",
"Article 504 Arrest",
"“(1) Upon a request by foreign authorities, the prosecutor responsible for conducting the preliminary investigation may order [police] to arrest a person whose extradition will be requested by the foreign authorities. The prosecutor shall not be bound by the grounds for detention set out in Article 71.",
"(2) The person being sought by the foreign authorities for extradition may be arrested by the [police] with the prior authorisation of the prosecutor. Without such authorisation the person may be arrested only in urgent cases and if there is no possibility to obtain such authorisation in advance.",
"(3) The ... arrest shall be immediately reported to the prosecutor. If the prosecutor does not order the release of the arrested person within forty-eight hours of his/her arrest, he shall lodge, within the same deadline, an application to the court for the person to be held in preliminary detention or in detention pending extradition.”",
"Article 505 Preliminary detention",
"“(1) The presiding judge of a chamber of the Regional Court shall within forty-eight hours of the person’s surrender to that court decide, upon an application lodged by the prosecutor, on the preliminary detention of the arrested person. He/she shall not be bound by the grounds for detention set out in Article 71. Should the presiding judge not, within the above-mentioned time-limit, order that the arrested person be held in preliminary detention, he shall order his/her release.",
"...",
"(3) The purpose of preliminary detention is to secure the presence of an arrested person on the territory of the Slovak Republic until the State that has an interest in his extradition submits (pursuant to Article 498) a request for his extradition.",
"(4) Preliminary detention may not exceed the period of forty days from the moment of the person’s arrest. The presiding judge of a chamber of the Regional Court may, upon the lodging of an application by the prosecutor conducting the preliminary investigation, decide to release the person from preliminary detention.",
"(5) If a request for extradition by the foreign authorities was submitted in the course of the preliminary detention, the Ministry of Justice shall notify to this effect the prosecutor conducting the preliminary investigation. Upon an application by the prosecutor, the presiding judge of a chamber may order that the person be detained pending extradition if the conditions set out in Article 506 § 1 are met.",
"(6) The release of the person from preliminary detention shall not preclude his/her further placement in preliminary detention or his/her being placed in detention pending extradition.”",
"Detention pending extraditionArticle 506",
"“(1) If it is necessary to prevent the escape of the person whose extradition is sought or to prevent the obstruction of the purpose of such proceedings, the presiding judge of a chamber of a regional court shall place him/her in detention. He/she shall rule to this effect upon the lodging of an application by the prosecutor conducting the preliminary investigation.",
"(2) If the person whose extradition is sought gives his/her consent to extradition or if his/her extradition has been declared admissible, the Regional Court shall place the person in detention pending extradition, unless this has already been done earlier under paragraph 1 by the presiding judge.",
"(3) The presiding judge of a chamber of the Regional Court shall order the release of the person from detention pending extradition as of the day of [the Slovak authorities] surrendering him/her to the foreign authorities – at the latest by the sixtieth day after the decision of the Minister of Justice allowing his/her extradition; ...",
"In addition, he/she shall order [the person’s] release from detention pending extradition if",
"...",
"b) the extradition was declared inadmissible by the Supreme Court or if the Minister of Justice has refused to allow the extradition ...”",
"The State Liability Act (Law no. 514/2003 Coll. on liability for damage resulting from the exercise of public authority)",
"35. Under section 3(1) of the Act, the State bears liability for damage caused by public authorities through (a) an unlawful decision, (b) unlawful arrest, detention or another form of deprivation of personal liberty, (c) a decision concerning detention on remand, or (d) official misconduct ( nesprávny úradný postup ).",
"36. Under section 7, the right to compensation for damage caused by a decision on arrest, by detention or by some other form of deprivation of personal liberty is vested in the person who was subjected to it, provided that that decision was quashed as being unlawful or if official misconduct occurred in connection with it.",
"37. However, under section 8(6)(h), no such right arises in respect of detention ordered with a view to extradition, unless the damage was caused by an unlawful decision or official misconduct on the part of the Slovak authorities.",
"Relevant international lawThe European Convention on Extradition",
"The European Convention on Extradition",
"The European Convention on Extradition",
"38. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Slovakia and Russia are parties, provides as follows:",
"Article 3 – Political offences",
"“1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.",
"2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.”",
"Article 16 – Provisional arrest",
"“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.",
"...",
"4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”",
"The Convention relating to the Status of Refugees",
"39. The Convention of 28 July 1951 relating to the Status of Refugees, to which Slovakia is a party (“the 1951 Geneva Convention”), provides as follows:",
"Article 1 – Definition of the term “refugee”",
"“...",
"F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:",
"(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;",
"(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;",
"(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”",
"Article 33 – Prohibition of expulsion or return (“refoulement”)",
"“1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.",
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”",
"40. In its Conclusion no. 12 (XXIX) on the extraterritorial effect of the determination of refugee status, adopted on 17 October 1978, UNHCR’s Executive Committee stated, in so far as relevant, the following:",
"“(g) ... refugee status as determined in one Contracting State should only be called into question by another Contracting State in exceptional cases when it appears that the person manifestly does not fulfil the requirements of the [1951 Geneva] Convention, e.g. if facts become known indicating that the statements initially made were fraudulent or showing that the person concerned falls within the terms of a cessation or exclusion provision of the 1951 Convention; ...”",
"Relevant EU law",
"Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted",
"41. The relevant provisions of Directive 2011/95/EU read as follows:",
"Article 12 – Exclusion",
"“2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:",
"...",
"(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee – that is to say before the date of the issuance of a residence permit on the basis of the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;",
"...”",
"Article 14 – Revocation of, ending of or refusal to renew refugee status",
"“...",
"3. Member States shall revoke, end or refuse to renew the refugee status of a third ‑ country national or a stateless person if, after he or she has been granted refugee status, it is established by the Member State concerned that:",
"(a) he or she should have been or is excluded from being a refugee in accordance with Article 12;",
"...”",
"Article 21 – Protection from refoulement",
"“1. Member States shall respect the principle of non-refoulement in accordance with their international obligations.",
"2. Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:",
"(a) there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or",
"(b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State.",
"3. Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies.”",
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"42. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.",
"ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"43. The applicant complained that his right to liberty had been violated on account of the alleged unlawfulness of his arrest and of his subsequent preliminary detention and detention pending extradition in Slovakia. He relied on Article 5 § 1 of the Convention, the relevant parts of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"...",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”",
"Admissibility",
"44. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicant",
"45. The applicant disputed that his initial apprehension on 15 January 2015 had been in compliance with the requirements of Slovak law. In particular, he submitted that the conditions set out in section 17b(1) of the Police Corps Act had not been fulfilled, since the police had not acted on any request made by a public authority for him to be brought before it, and that the prosecutor had not authorised such a measure, as required by Article 504 § 2 of the CCP. That also had rendered his subsequent detention unlawful.",
"46. With regard to his being placed in preliminary detention, the applicant considered essential the fact that Russia had not lodged any request for him to be placed in preliminary detention, as required by Article 16 of the European Convention on Extradition; that fact should have precluded the domestic authorities from ordering such a measure.",
"47. As regards both his preliminary detention and detention pending extradition, the applicant argued that they had been contrary to both Article 501 (b) of the CCP and Article 5 § 1 (f) of the Convention on account of the fact that, as a holder of refugee status in Sweden, he could not be extradited to Russia and there had thus been no reason to secure his presence in Slovakia. He also pointed out that in view of the fact that Directives 2011/95/EU and 2013/32/EU had unified EU asylum policy, it was immaterial whether asylum had been granted to him in Slovakia or in another member State of the EU. Consequently, the Slovak authorities had been bound by the decision of Sweden to grant him asylum, and nothing had prevented them from conferring refugee protection on him, contrary to what the Supreme Court had stated in its decision of 16 March 2015. The applicant emphasised that the Supreme Court had only after a considerable period of time identified his refugee status as the main impediment to his extradition, even though he had informed the authorities of the asylum decision from the very outset.",
"(b) The Government",
"48. The Government contended, firstly, that the applicant’s argument that he had not been arrested in accordance with the domestic law was unfounded. As confirmed by the Constitutional Court’s judgment of 28 January 2016, the applicant’s liberty had first been restricted under the Police Corps Act; only the following day had he been arrested under the CCP, after the prior authorisation of the prosecutor had been secured.",
"49. As to the applicant’s argument that his refugee status in itself constituted an obstacle to his extradition (and had rendered both his preliminary detention and detention pending extradition unlawful), the Government observed that that argument had been addressed by the domestic courts. It can be seen from their decisions that the matter of the applicant’s status in Sweden had been subject to a preliminary investigation by the prosecutor (starting on 16 January 2015) into the circumstances of the applicant’s refugee status. That investigation had been all the more important in the light of the exclusion provisions specified by the relevant international law, since its findings had been likely to impact on the outcome of the extradition proceedings. After the prosecutor had, in the course of that investigation, secured the necessary extradition documents (as well as assurances concerning the applicant’s treatment and proceedings in the event of his extradition), he had asked the Regional Court to allow the applicant’s extradition to Russia. That court’s decision allowing the extradition had later been reversed by the Supreme Court, and the applicant’s release had been ordered.",
"50. It also appeared from the relevant decisions that the applicant’s preliminary detention had been based on the fact that he was an internationally wanted person whose extradition had been requested by Russia, and that his detention pending extradition had been justified by the need – before deciding on the admissibility of his extradition – to further explore the elements that had led the Swedish authorities to grant him asylum.",
"51. The Government furthermore observed that the applicant had been detained from 15 January 2015 until 2 November 2016 – that is to say for a period of one year, nine months and eighteen days, which could not be regarded as excessive. Throughout that period the authorities had been taking steps with a view to the applicant’s extradition, carefully examining all the relevant circumstances, including the application of the exclusion provisions, the existence of any obstacles to the extradition and the content of the extradition documents.",
"52. The Government emphasised the fact that the Supreme Court’s final decision on the inadmissibility of the applicant’s extradition to Russia had not been based only on his refugee status in Sweden, but also on other circumstances relating to his criminal prosecution in Russia that had been established during the extradition proceedings – namely the weakness of the assurances given by Russia and of the extradition documents submitted by Russia, and the political nature of the acts giving rise to the applicant’s prosecution (see paragraph 28 above). Within that context, the Government expressed their conviction, based on the relevant international instruments, that refugee status granted in one EU member State did not automatically exclude its holder from the possibility of being extradited. In the event that such a possibility was to be realised in the instant case, it was necessary to secure the applicant’s presence on Slovak territory, in accordance with Article 5 § 1 (f) of the Convention.",
"The Court’s assessment",
"(a) General principles",
"53. The Court reiterates that Article 5 § 1 (f) of the Convention does not require that the detention of a person against whom action is being taken with a view to extradition be reasonably considered necessary – for example, to prevent that person’s committing an offence or absconding. In this connection, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that “action is being taken with a view to deportation or extradition”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to extradite can be justified under national law or the Convention (see, for example, Umirov v. Russia, no. 17455/11, § 135, 18 September 2012).",
"54. The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is at issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. In this respect, the Court will thus limit its examination to the question of whether the interpretation of the legal provisions relied on by the domestic authorities was arbitrary or unreasonable (see Nabil and Others v. Hungary, no. 62116/12, § 31, 22 September 2015).",
"55. Compliance with national law is not, however, sufficient: Article 5 § 1 requires, in addition, that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention that is arbitrary can be compatible with Article 5 § 1, and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still be arbitrary and thus contrary to the Convention. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, with further references).",
"56. Lastly, the Court reiterates that deprivation of liberty under Article 5 § 1 (f) will be acceptable only for as long as extradition proceedings are in progress. If such proceedings are not conducted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 72-74, ECHR 2008). The Court has accordingly found violations of that provision in cases where the applicant was detained despite the existence of established circumstances that prevented extradition or expulsion under domestic law – for example, where national law did not allow for deportation pending a decision on asylum (see R.U. v. Greece, no. 2237/08, §§ 88-96, 7 June 2011, and Ahmade v. Greece, no. 50520/09, §§ 142-44, 25 September 2012), or where extradition was excluded from the outset owing to the applicant’s nationality (see Garabayev v. Russia, no. 38411/02, § 89, 7 June 2007, and Garkavyy v. Ukraine, no. 25978/07, §§ 70 and 75, 18 February 2010) or owing to the applicant’s refugee status (see Eminbeyli v. Russia, no. 42443/02, §§ 7, 17 and 48, 26 February 2009), or where detention for the purpose of extradition was rendered arbitrary from the moment that the decision to grant the applicant refugee status became final and binding (see Dubovik v. Ukraine, nos. 33210/07 and 41866/08, §§ 61 and 62, 15 October 2009).",
"(b) Application of those principles to the present case",
"57. The Court notes that it is common ground between the parties that the applicant was detained with a view to his extradition from Slovakia to Russia, even though the applicant disputed the fact that the law permitted such extradition. It remains to be seen if the detention was justified for the purposes of the second limb of Article 5 § 1 (f) of the Convention.",
"(i) The applicant’s initial apprehension and arrest",
"58. As to the applicant’s apprehension on 15 January 2015 at 8.45 p.m., it can be seen from the police report (see paragraph 8 above) and the first decision of the Constitutional Court (see paragraph 17 above) that this initial limitation of liberty was based on section 17b(1) of the Police Corps Act and that the authorisation of the prosecutor was not necessary in order for it to be imposed. The applicant was apprehended in order that he could be taken to the border police station, as his name had been found on Interpol’s international list of wanted persons. The applicant was arrested the following day under Article 504 § 2 of the CCP after the authorities had verified that he was still the subject of an international search and that Russia had confirmed that an extradition request in respect of him would be sent in good time (see paragraph 10 above).",
"59. The Court is satisfied that those measures served the purpose of arresting a person “against whom action is being taken with a view to ... extradition”, within the meaning of the second limb of Article 5 § 1 (f) of the Convention. Indeed, at that point in time the fact that the applicant had refugee status was not yet known to the Slovak authorities and the applicant was no more than a person whose name appeared on the international list of wanted persons. In the view of the Court, this phase of the applicant’s deprivation of liberty discloses no appearance of any arbitrariness.",
"(ii) The applicant’s further detention",
"60. As regards the applicant’s further detention, the Court observes that the applicant’s allegations under Article 5 § 1 (f) concern two periods of time corresponding to two types of detention: (i) the period of preliminary detention ordered on 19 January 2015 (with effect from 15 January 2015), which lasted until 23 February 2015; and (ii) the period of detention pending extradition, which lasted from 23 February 2015 until 2 November 2016. The applicant did not complain about his subsequent administrative detention with a view to his expulsion to Sweden.",
"(α) As regards the lawfulness of the applicant’s detention",
"61. With regard to his preliminary detention, the applicant asserted that under Article 16 of the European Convention on Extradition, he could not be subject to such a measure without Russia having first requested it.",
"62. The Court notes that Article 16 of the European Convention on Extradition (see paragraph 38 above) establishes that the provisional arrest of a person whose extradition is sought must be decided on by the requested Party in accordance with its own law. Thus, this international instrument requires in the first place compliance with the domestic procedure (see Shchebet v. Russia, no. 16074/07, § 67, 12 June 2008).",
"63. Under Article 504 § 3 of the CCP, any application to place the applicant in preliminary detention had to be lodged by the prosecutor responsible for conducting the preliminary investigation. Such an application was lodged on 17 January 2015 (see paragraph 11 above) – that is to say, within forty-eight hours of the applicant’s arrest, as required by the above-mentioned provision – and was granted by the court, pursuant to Article 505 § 1 of the CCP.",
"64. In this connection the Court takes cognisance of the interpretation of the applicable rules, as determined by the Slovak Constitutional Court (see paragraph 17 above), whereby it unequivocally stated that the only condition for the applicant’s placement in preliminary detention was that a request had to be lodged by the prosecutor, pursuant to Article 504 § 3 of the CCP; furthermore, the Constitutional Court held that Article 16 § 1 of the European Convention on Extradition could not be interpreted to mean that such a request had to be lodged by the State requesting extradition.",
"65. Moreover, the Court notes that – similarly to Article 16 § 4 of the European Convention on Extradition – Article 505 § 4 of the CCP established a guarantee against the excessive duration of any period of preliminary detention, indicating that a person could not be detained for more than forty days after his or her arrest.",
"66. The Court observes in this connection that – pursuant to Article 505 § 5 and Article 506 § 1 of the CCP (see paragraph 18 above) – the subsequent placement of the applicant in detention pending extradition was requested by the prosecutor before the maximum duration of the applicant’s preliminary detention had elapsed, and that it was ordered by the Regional Court, in accordance with Article 506 § 1 of the CCP (see paragraph 19 above). Subsequently, pursuant to Article 506 § 3 (b) of the CCP, the applicant was released from detention pending extradition after the Supreme Court had ruled against his extradition to Russia (see paragraph 28 above).",
"67. The foregoing considerations are sufficient to enable the Court to conclude that the detention orders pertaining to both the applicant’s preliminary detention and detention pending extradition were issued in compliance with the relevant provisions of the domestic law.",
"(β) Regarding the domestic authorities’ alleged failure to give due consideration to the applicant’s recognition as a refugee in Sweden",
"68. As to the applicant’s argument that his detention served no purpose as he could not have been extradited owing to the refugee status granted to him in Sweden, the Court notes that it has consistently held that the detention of a person for the purpose of extradition is rendered unlawful and arbitrary by the existence of circumstances that under domestic law exclude the extradition of that person (see the case-law cited in paragraph 56 above). However, in contrast to the cases mentioned therein, it cannot be asserted in the instant case that the applicant’s extradition was completely banned, given that the decision of the Swedish authorities to grant him asylum did not automatically exclude the possibility that the applicant might be extradited by the Slovak authorities.",
"69. The Court observes in this connection that Article 501 (b) of the Slovak CCP prohibits the extradition of a person who has applied for refugee status in Slovakia or who has been granted such status. In the instant case, however, the applicant had been granted refugee status in Sweden – not in Slovakia. Such a decision is extraterritorially binding in that an award of refugee status by Sweden, as one of the States Parties to the 1951 Geneva Convention, could be called into question by Slovakia only in exceptional circumstances giving rise to the appearance that the beneficiary of the decision in question manifestly falls within the terms of the exclusion provision of Article 1F of the 1951 Geneva Convention and therefore does not meet the requirements of the definition of a refugee contained therein (see paragraph 40 above). Thus, there might be situations where information which came to light in the course of extradition proceedings concerning a recognised refugee may warrant a review of his or her status. Consequently, the fact that the applicant had been granted refugee status in Sweden did not automatically mean that he should be considered a refugee in Slovakia.",
"70. Indeed, as can be seen from the domestic decisions adopted in the applicant’s case, the Slovak authorities did not consider themselves bound by the refugee status conferred on the applicant by Sweden; if they had felt themselves so bound, the provision of Article 501 (b) of the CCP prohibiting the extradition of nationally recognised refugees would automatically have applied (compare Eminbeyli, cited above, § 48), as argued by the applicant. Instead, alerted to the applicant’s special status and bound by their obligation to respect the principle of non-refoulement, the Slovak authorities decided, in the course of standard extradition proceedings, to conduct their own inquiry into the danger of the applicant being persecuted in Russia and to contact the Swedish authorities in order to obtain the full facts of his case. In this context, the Court reiterates that when an extradition request concerns a person facing criminal charges in the requesting State, the requested State is required to act with greater diligence than when an extradition is sought for the purposes of enforcing a sentence, in order to secure the protection of the rights of the person concerned (see Gallardo Sanchez v. Italy, no. 11620/07, § 42, ECHR 2015).",
"71. In the Court’s view it was legitimate for the Slovak courts to examine whether an exclusion provision might be applicable in respect of the applicant – all the more so given that it had been established that the Swedish authorities had not checked the Interpol database during the asylum proceedings in respect of the applicant and had not examined the nature of the criminal charge brought against him in Russia. In so doing, the Slovak authorities had to consider all the circumstances of the applicant’s individual case. Given that the requesting State was the country in which the applicant had been persecuted (presumably because of his and his brother’s political activities), any evidence presented by it had to be treated with great caution when establishing whether or not the extradition request was based on fabricated charges or whether the crime giving rise to that request could be categorised as “non-political” within the meaning of Article 1F of the 1951 Geneva Convention and Article 12 § 2 (b) of Directive 2011/95/EU. Moreover, since the Slovak authorities initially concluded that the act amounted to a “non-political” offence, they were obliged to examine whether the extradition might be precluded for other reasons, such as non-compliance with formal requirements under extradition law or, as in the instant case, insufficient evidence in support of the allegations made against the applicant.",
"72. In view of the above, the Slovak authorities cannot be blamed for having carried out a preliminary investigation with a view to determining whether there were any legal or factual impediments to the applicant’s extradition and for having examined the extradition request, despite the applicant having been previously granted refugee status in Sweden. Such an examination has to be regarded as being intrinsic to actions “taken with a view to extradition”.",
"73. In this connection, the Court observes that according to the relevant domestic decisions, the applicant’s detention was justified (under Article 505 § 3 and Article 506 § 1 of the CCP) by the necessity to secure his presence on Slovak territory (and thus to prevent any obstruction of the completion of the preliminary investigation and of the fulfilment of the purpose of the extradition proceedings).",
"74. The Court is aware that the applicant’s extradition to Russia was eventually declared inadmissible, mainly under Article 501 (b) of the CCP – that is to say, because (i) the protection granted to him as a refugee by Sweden also applied in Slovak territory and (ii) the exclusion provisions were found to be not applicable to him. It reiterates in this connection that the examination of any risks and objections linked to a person’s possible removal from the territory of the State is intrinsic to actions “taken with a view to deportation or extradition”. Even if such an examination establishes that such risks and objections are well-founded and capable of preventing the person’s removal, such a possible future outcome cannot in itself retroactively affect the lawfulness of detention pending examination of a request for extradition (see Khamroev and Others v. Ukraine, no. 41651/10, § 77, 15 September 2016).",
"75. There is thus no evidence in the instant case that could prompt the Court to conclude that the applicant’s detention was contrary to national law or to Article 5 § 1 (f) on the grounds that the domestic courts disregarded the fact that he had been recognised as a refugee in Sweden.",
"(γ) Whether the entire duration of the applicant’s detention was justified by “action ... taken with a view to ... extradition” within the meaning of Article 5 § 1 (f) of the Convention",
"76. The salient issue in the present case is thus whether it can be said that action was being taken with a view to the applicant’s extradition throughout the whole duration of his detention and, consequently, whether it was justified under Article 5 § 1 (f) of the Convention. The Court emphasises that detention “with a view to extradition” can only be justified as long as the extradition is in progress and there is a true prospect of executing it (see Nabil and Others, cited above, § 38).",
"77. The Court notes that the applicant’s overall detention in view of his extradition lasted from 15 January 2015 to 2 November 2016 – that is to say, one year, nine months and eighteen days.",
"78. It also observes that the Slovak authorities were aware as far back as 16 January 2015 that the applicant had been granted asylum in Sweden, since that information was given to them by the applicant himself (see paragraph 10 above) and was rapidly confirmed by Interpol in Stockholm (see paragraph 11 above). The first effort on the part of the Slovak authorities to establish the circumstances surrounding Sweden’s granting of refugee status to the applicant was made on 27 January 2015, when a letter was sent to the Swedish authorities (see paragraph 14 above). It can be seen from the Regional Court’s decision of 23 February 2015 (see paragraph 19 above) that by that date the Swedish authorities had already responded to that letter.",
"79. In the meantime (to be precise, on 17 February 2015) the Slovak authorities received an extradition request from their Russian counterparts, as well as documents containing assurances provided by the Russian authorities concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition. Moreover, the Court observes that in her application of 20 February 2015 for the applicant to be placed in detention pending extradition, the prosecutor noted that the circumstances surrounding the recognition by Sweden of the applicant’s refugee status and their impact on the outcome of the preliminary investigation would be duly examined in the subsequent proceedings and that reports would be requested from the Slovak Ministry of Foreign Affairs and UNHCR regarding the security situation in Russia and whether the above-mentioned assurances were likely to be honoured (see paragraph 18 above).",
"80. However, as can be seen from the case file, following the hearing of the applicant on 10 March 2015, it took six months (until 9 October 2015) for the prosecutor to ask the Regional Court to allow the applicant’s extradition to Russia (see paragraph 24 above). More than three further months elapsed before a hearing was held before the Regional Court on 26 January 2016, but it was adjourned with a view to requesting additional information from the Russian authorities; however, no such information was forthcoming (see paragraph 25 above). The Court notes that the Government have not submitted any information in respect of any other requests made or avenues explored or any details regarding subsequent steps, save for the fact that on 8 September 2016 a new hearing was held before the Regional Court, at which the applicant’s extradition was authorised.",
"81. Lastly, the Court cannot but point out that while the Supreme Court ruled in its decision of 16 March 2015 (see paragraph 22 above) that the exclusion provision of Article 12 § 2 (b) of Directive 2011/95/EU was applicable to the applicant (given that he was suspected of having committed a serious non-political crime, which prevented Slovakia from accepting and applying the refugee status conferred on him by Sweden), in its decision of 2 November 2016 another chamber of the same court reached the opposite conclusion (see paragraph 28 above) – even though no new information had become available in the meantime (see paragraph 80 above). More importantly, information about the applicant’s refugee status (which constituted the main reason for the decision of 2 November 2016), as well as documents relating to his criminal prosecution in Russia (which allowed for an assessment – for the purposes of the applicability of the relevant exclusion clauses – of the political/non-political nature of his acts), had been available to the Slovak authorities since February 2015 (see paragraphs 78 and 15 above).",
"82. In the light of the above, the Court considers that the respondent Government have failed to establish that the authorities proceeded in an active and diligent manner when gathering all necessary information and adjudicating legal challenges raised by the case at hand. In the Court’s view, nothing prevented the courts from reaching a final decision on the admissibility of the applicant’s extradition much earlier than they in fact did.",
"83. In view of the foregoing, the Court concludes that the grounds for the applicant’s detention did not remain valid for the whole period concerned (one year, nine months and eighteen days), and that the authorities failed to conduct the proceedings with the requisite diligence (see, for a similar approach, M. and Others v. Bulgaria, no. 41416/08, § 75, 26 July 2011).",
"84. There has accordingly been a violation of Article 5 § 1 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION",
"85. The applicant complained of the violation of his right to seek compensation, relying on Article 5 § 5 of the Convention, which reads as follows:",
"“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”",
"Admissibility",
"86. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"Merits",
"87. The applicant argued that Slovak law did not enable him to seek compensation for the undue length of his detention, despite the fact that his extradition to the requesting State was eventually ruled inadmissible. This was in contrast to criminal proceedings conducted under Slovak law, regarding which a person was entitled to compensation in respect of his or her pre-trial detention in the event of a final acquittal.",
"88. The applicant asserted, in particular, that under section 8(6)(h) of the State Liability Act (and in view of the fact that his detention had never been considered unlawful by the domestic courts), he had been deprived of the right to claim compensation on any grounds provided by that Act. This could not be affected by any decision of the Court, since compensation could not be granted under the domestic law without the impugned decision on detention first being quashed.",
"89. The Government submitted that, in general, the right to compensation for any violation relating to arrest and detention pending extradition was provided by the State Liability Act. While it is true that section 8(6)(h) thereof, which defined more precisely the provision of section 3(1)(c) concerning specifically decisions on detention, indicated that compensation for damage caused by detention pending extradition was excluded, it also provided exceptions for the situations in which damage had been caused by an unlawful decision or official misconduct in this respect. The possibility of requesting compensation on these grounds was also secured by points (a) and (d) of section 3(1) of the above Law.",
"90. With regard to their observations under Article 5 § 1, the Government asserted that, in the instant case, the decisions on the applicant’s detention had been lawful and that moreover, the Constitutional Court had not found any violation of the applicant’s rights. Therefore, no right to compensation arose on the part of the applicant.",
"91. The Court reiterates that Article 5 § 5 creates a direct and enforceable right to compensation in the national courts (see, for example, A. and Others v. the United Kingdom, cited above, § 229), where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 of that Article (see Vachev v. Bulgaria, no. 42987/98, § 79, ECHR 2004-VIII, and Michalák v. Slovakia, no. 30157/03, § 204, 8 February 2011). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. Such an enforceable right must be available either before or after the Court’s judgment (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 183-84, ECHR 2012).",
"92. In the present case the Court has found a violation of Article 5 § 1 of the Convention (see paragraph 84 above). It must therefore establish whether or not the applicant had or now has an enforceable right to compensation for the breach of Article 5 § 1 of the Convention.",
"93. The Court observes that none of the domestic courts considered the applicant’s preliminary detention and detention pending extradition to be in breach of the domestic law and that the relevant decisions were not quashed, as required by the State Liability Act. It therefore appears that the applicant did not have even a theoretical opportunity to claim compensation during the domestic proceedings. At the same time, there is no support in the text of the State Liability Act or in any other provision of Slovak law to the effect that a compensation claim could be made in a domestic court on the basis of findings made by the Court (see, mutatis mutandis, Osváthová v. Slovakia, no. 15684/05, § 83, 21 December 2010).",
"94. The foregoing considerations are sufficient to enable the Court to conclude that neither before nor after the findings made by the Court has the applicant had an enforceable right to compensation for the violation of his rights under Article 5 § 1 of the Convention.",
"There has accordingly also been a violation of Article 5 § 5 of the Convention.",
"OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"95. Lastly, the applicant complained under Article 13 that the domestic law did not offer him any remedy enabling him to claim compensation for his unlawful detention.",
"96. The Court notes that this complaint is linked to that examined above and must therefore likewise be declared admissible.",
"97. The Court has found above that there has been a violation of Article 5 § 5 of the Convention (see paragraph 94 above). Given that this provision of Article 5 constitutes a lex specialis concerning complaints relating to deprivation of liberty, no separate issue arises under Article 13, given the circumstances of this case (see A.B. and Others v. France, no. 11593/12, § 158, 12 July 2016).",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"98. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"99. Without specifying an amount, the applicant claimed just satisfaction in respect of pecuniary damage corresponding to the costs of his telephone calls and meals (the meals served in prison having not been compatible with his religious beliefs) during his detention. On account of the insurmountable fear, suffering and frustration that he had experienced throughout his detention, the applicant furthermore claimed 135,000 euros (EUR) in respect of non-pecuniary damage. He also submitted that his child having been born in Sweden while he had been in detention, he had had to undergo the humiliating process of having a sample of his saliva being taken for the purposes of a DNA test; he furthermore submitted that the conditions of his detention had caused him several health problems.",
"100. The Government asserted that there was no causal link between the alleged pecuniary damage and the violations alleged by the applicant. As regards non-pecuniary damage, the Government considered that the applicant’s claim was overstated and that there had been no link between the alleged violations and the damage allegedly suffered by the applicant owing to the conditions of his detention.",
"101. The Court considers that it has not been shown in the present case that there exists a causal link between the violation of Article 5 of the Convention and the pecuniary damage claimed by the applicant. It therefore rejects his claims under this head [1].",
"102. However, it finds that the applicant undoubtedly sustained damage of a non-pecuniary nature on account of his suffering and the frustration that he experienced during his detention, which cannot be compensated for by the mere finding of a violation of Article 5 §§ 1 and 5 of the Convention. Making its assessment on an equitable basis, the Court awards him EUR 8,500 in respect of non ‑ pecuniary damage.",
"Costs and expenses",
"103. The applicants also claimed EUR 14,887 for the costs and expenses incurred before the domestic courts and EUR 5,400 for those incurred before the Court.",
"104. The Government argued that the total sum claimed in respect of legal representation costs was disproportionately high and that some of the costs claimed had not in fact been incurred in an effort to prevent or redress the alleged violations of the Convention.",
"105. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000, covering costs under all heads, plus any tax that may be chargeable to the applicant.",
"Default interest",
"106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
281 | Chraidi v. Germany | 26 October 2006 | In 1990, an arrest warrant was issued against the applicant (a stateless person residing in Lebanon), accused of having prepared, with others, the bomb attack of a discotheque in Berlin in 1986 in order to kill members of the American armed forces. During this attack three persons had been killed and 104 persons had been seriously injured. In 1996 the applicant was extradited to Germany from Lebanon and held in detention. In November 2001 he was convicted of aiding and abetting murder, attempted murder and causing an explosion. The applicant complained, in particular, about the excessive length of his detention on remand which lasted approximately five and-a-half years. | The Court held that there had been no violation of Article 5 § 3 (right to be tried within reasonable time) of the Convention, finding that, in the exceptional circumstances of the present case, the length of the applicant’s detention could be regarded as reasonable. The Court observed in particular that the case had concerned a particularly complex investigation and trial into large-scale offences which had been committed in the context of international terrorism. It also noted that States combating terrorism may be faced with extraordinary difficulties. The Court therefore accepted the reasons given by the German courts for the applicant’s continued detention and took the view that the competent judicial authorities could not be said to have displayed a lack of special diligence in handling his case. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant, Mr Yasser Chraidi, was born in 1959 in Lebanon. At the time of lodging his application, he was detained in Berlin. He is currently living in Lebanon.",
"6. On 1 August 1984 the Berlin Tiergarten District Court issued an arrest warrant in respect of the applicant on the ground that he was strongly suspected of having murdered E.",
"7. On 19 July 1990 the Berlin Tiergarten District Court issued a further arrest warrant in respect of the applicant and five other suspects, born in Lebanon, Libya or Morocco. The court accused the applicant of having prepared, with others, a bomb attack at the “La Belle” discotheque in Berlin on 5 April 1986 in order to kill as many members of the American armed forces as possible. During this terrorist attack, three people had been killed and 104 seriously injured.",
"8. On 1 September 1992 the applicant was arrested by the police in Lebanon and was subsequently taken into detention with a view to extradition.",
"9. On 21 June 1994 a Lebanese court acquitted the applicant of E. ’ s murder but convicted him of forgery and sentenced him to one year and six months ’ imprisonment.",
"10. On 24 May 1996 the applicant was extradited to Germany and subsequently held in detention on remand on account of the arrest warrant issued in 1990.",
"11. On 25 November 1996 the Berlin Court of Appeal ordered the applicant ’ s continued detention on remand. It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted, among other things, from the confession of one of the other suspects. The danger of his absconding still persisted because the applicant had been extradited to Germany only in May 1996 and had neither a fixed dwelling nor social ties in Germany which would prevent him from absconding if released. The court moreover referred to the lifelong prison sentence the applicant faced and underlined that more lenient preventive measures would not be suitable. Lastly, there had been no breach of the obligation to proceed speedily ( Beschleunigungsgebot ).",
"12. On 30 January 1997 the public prosecutor filed the bill of indictment. On 5 September 1997 the Berlin Regional Court opened the main proceedings against the applicant and four other accused. Between 1997 and 2000 the Berlin Court of Appeal repeatedly ordered the applicant ’ s continued detention on remand.",
"13. On 13 January 2000 the Berlin Regional Court rejected a request by the applicant for release. It held that there was still a danger of his absconding. Furthermore, the reasonable suspicion that the applicant had committed the offences with which he had been charged persisted. The applicant ’ s continued detention was also proportionate having regard to the serious nature of those offences, the prospective sentence, the importance of the case and the particular public interest in the prosecution of these offences. Furthermore, there had been no breach of the obligation to proceed speedily.",
"14. On 1 March 2 000 the Berlin Court of Appeal upheld that decision. Concerning the suspicions as regards the applicant, the court pointed out that it was bound by the assessment of the Regional Court. Furthermore, the danger of the applicant ’ s absconding persisted in view of the lifelong prison sentence he faced. The objective of his detention on remand could accordingly not be accomplished by alternative, less radical, preventive measures. Although the applicant had been detained since as far back as 8 January 1994, his further detention remained proportionate having regard to the importance of the case, the character and seriousness of the offences and the particular public interest in the prosecution of these offences. Referring to the principle of proportionality, the court underlined that a detainee ’ s right to liberty could outweigh the public interest in the prosecution as time passed, if there was, for instance, an imminent risk of irreparable damage to his health. In the present case, however, nothing suggested that the applicant ’ s life or health were at risk. Moreover, given that the Regional Court had continuously held two hearings per week since November 1997, the length of the proceedings could not be considered disproportionate.",
"15. On 24 May 2000 the Federal Constitutional Court refused to admit a complaint by the applicant, without giving any reasons. Its decision was served on the applicant ’ s lawyer on 30 May 2000.",
"16. On 13 November 2001 the Berlin Regional Court convicted the applicant on three counts of aiding and abetting murder, on 104 counts of aiding and abetting attempted murder, and of aiding and abetting causing an explosion ( Herbeiführung einer Sprengstoffexplosion ). The court alluded to the historical background of the case, in particular to the tensions between the United States and Libya which had arisen following terrorist attacks in 1985. In January 1986 the United States government had imposed a trade embargo on Libya and had ordered the freezing of all Libyan State assets in United States banks. These measures had led to military intervention and to the planning by Libyan nationals of terrorist attacks on United States facilities in Germany. The court further pointed out that the applicant ’ s crimes were punishable by imprisonment for up to fifteen years and sentenced him to fourteen years ’ imprisonment. When determining the sentence, the court took into account, among other things, the fact that the applicant ’ s detention on remand and the proceedings had lasted an unusually long time. It further determined that since 8 January 1994 the applicant had been detained in Lebanon with a view to extradition in connection with the present case. This period of detention was to be deducted from his prison sentence at a ratio of 1:3 until 30 April 1994 and at a ratio of 1:2 from 1 May 1994. The court moreover ordered the applicant ’ s continued detention. The judgment, which ran to 380 pages, was served on the applicant ’ s lawyer on 10 January 2003.",
"17. The Berlin Regional Court delivered its judgment after holding 281 hearings with an average of two hearings per week and having heard 169 witnesses. The hearings, which lasted on average five hours each, were regularly attended by the five accused, their 15 lawyers, 106 joint plaintiffs, their 29 lawyers and three interpreters.",
"18. On 24 June 2004 the Federal Court of Justice dismissed appeals on points of law by the applicant and the public prosecutor.",
"19. On 28 April 2005 the applicant was released."
] | [
"II. RELEVANT DOMESTIC LAW",
"20. Article 117 of the Code of Criminal Procedure provides, inter alia :",
"“ As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Article 116. ”",
"21. Article 230 of the Code of Criminal Procedure provides, inter alia :",
"“No trial shall be held in respect of a person who is absent.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION",
"22. The applicant complained that his detention on remand had lasted an excessively long time. He relied on Article 5 § 3 of the Convention, which provides :",
"“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”",
"A. Admissibility",
"1. Loss of standing as a victim",
"23. The Government contended that the applicant could no longer claim to be a victim because the Regional Court had explicitly acknowledged that his detention on remand had lasted an unusually long time and had taken this fact into account when determining his sentence.",
"24. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status of victim within the meaning of Article 34 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000 ‑ IV; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 - VI). However, as the Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Cordier v. Germany ( dec .), no. 71741/01, 19 January 2006 ), this general rule is subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Jansen v. Germany ( dec .), no. 44186/98, 12 October 2000; and Beck v. Norway, no. 26390/95, § 27, 26 June 2001). In cases concerning the failure to observe the reasonable-time requirement guaranteed by Article 6 § 1 of the Convention, the national authorities can afford adequate redress in particular by reducing the applicant ’ s sentence in an express and measurable manner (see Eckle, cited above, § 66, and Beck, cited above, § 27). The Court has held that such a reduction of the sentence is also capable of affording adequate redress for a violation of Article 5 § 3 in cases in which the national authorities had failed to hear within a reasonable time the case of an applicant held in detention on remand (see Dzelili v. Germany, no. 65745/01, § 83, 10 November 2005 ).",
"25. Applying these principles to the present case, the Court observes that, although the Convention forms an integral part of the law of the Federal Republic of Germany (see Eckle, cited above, § 67) and there was accordingly nothing to prevent the Regional Court from holding, if appropriate, that the length of the applicant ’ s detention on remand had been in breach of the Convention, either expressly or in substance, the latter court merely conceded that the impugned detention had lasted an “unusually long” time (see paragraph 16 above ). Furthermore, the Court is not satisfied that the applicant was afforded adequate redress for the alleged violation because the Regional Court failed to specify to what extent the applicant ’ s sentence had been reduced on account of the length of his detention on remand (see Dzelili, cited above, § 85).",
"26. The Court therefore considers that the Regional Court ’ s statement concerning the unusual length of the applicant ’ s detention did not deprive the latter of his status of victim within the meaning of Article 34 of the Convention.",
"2. Exhaustion of domestic remedies",
"27. The Government maintained that the applicant had exhausted domestic remedies only in respect of his detention until 24 May 2000, the date of the final decision by a domestic court concerning his request for release. They pointed out that, once a certain period had elapsed after that decision, the applicant could have lodged a further application for release. As he had not availed himself of the opportunity to institute fresh proceedings before the domestic courts after the Federal Constitutional Court ’ s decision of 24 May 2000, he had failed to exhaust domestic remedies in respect of his detention after that date.",
"28. The applicant did not submit any observations in reply within the time-limit fixed by the Court.",
"29. The Court refers to its case-law to the effect that an applicant should not usually be required to use at very short intervals a remedy which by its nature might be repeated an indefinite number of times (see Rieme v. Sweden, 22 April 1992, § 50, Series A no. 226 ‑ B, and Guzzardi v. Italy, 6 November 1980, § 80, Series A no. 39 ). The re-examination of a case may, however, be appropriate where new facts have emerged which could furnish a separate basis for a fresh decision. In cases of continued detention for instance, the prolongation of the detention in itself may under certain circumstances justify a re-examination of the question of release (see Lynas v. Switzerland, no. 7317/75, Commission decision of 6 October 1976, Decisions and Reports 6, p. 141, at p. 167 ).",
"30. In the present case, the applicant had been held in detention on remand for exactly four years when the Federal Constitutional Court refused to examine his constitutional complaint. Under German law, the applicant could have lodged a further application for release at any time after that decision (see paragraph 20 above). However, having regard to the fact that on 13 November 2001 the Regional Court convicted the applicant and ordered his continued detention because of the persisting danger of his absconding, it is rather doubtful whether such a request in the period of time preceding the latter decision would have had any prospect of success. In any event, given that the applicant ’ s detention on remand within the meaning of Article 5 § 3 ended with his conviction by the Regional Court on 13 November 2001 (see Labita, cited above, § 147), that is, eighteen months after the decision of the Federal Constitutional Court, the Court is not satisfied that the institution of fresh proceedings would have shortened the length of his detention on remand to a significant extent.",
"31. The Court therefore holds that the Government ’ s preliminary objection concerning the exhaustion of domestic remedies must be dismissed.",
"32. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Period to be taken into consideration",
"33. The period to be taken into consideration under Article 5 § 3 started with the applicant ’ s transfer to Germany on 24 May 1996 (see Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 71, Series A no. 12) and ended on 13 November 2001 with his conviction by the Berlin Regional Court (see paragraph 30 above). The applicant ’ s detention on remand thus lasted five years and almost six months.",
"2. Reasonableness of the length of detention",
"34. The applicant submitted that the length of his detention on remand could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. The Government contested this view.",
"35. The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features and on the basis of the reasons given in the domestic decisions and of the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A, and Labita, cited above, § 152).",
"36. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see I.A. v. France, 23 September 1998, § 102, Reports 1998-VII, and Labita, cited above, § 153).",
"( a ) General approach",
"37. The Court notes at the outset that the present case relates to large - scale offences committed in the context of international terrorism. States combating this form of terrorism may be faced with extraordinary difficulties. The Court, whose role it is to examine measures taken in this regard by Contracting States as to their conformity with the Convention, is not oblivious of these difficulties. It sees no reason to depart from the general approach it has adopted in previous cases of a similar nature (see Klass and Others v. Germany, 6 September 1978, §§ 48-49 and 59, Series A no. 28; Brogan and Others v. the United Kingdom, 29 November 1988, § 48, Series A no. 145 ‑ B; Murray v. the United Kingdom, 28 October 1994, § 47, Series A no. 300 ‑ A; Pantano v. Italy, no. 60851/00, § 70, 6 November 2003; and Van der Tang v. Spain, 13 July 1995, § 75, Series A no. 321 ). However, in the context of the issues arising in the present case, the Court considers that the specific nature of these offences and, in particular, the difficulties intrinsic to the investigation of offences committed by criminal associations acting on a global scale call for special consideration. It will bear this context in mind when assessing the reasonableness of the length of the applicant ’ s continued detention, in particular the grounds for his detention and the conduct of the proceedings in the light of the complexity of the case.",
"( b ) Grounds for continued detention",
"38. As regards the grounds for the applicant ’ s continued detention, the Court notes that the competent judicial authorities advanced three principal reasons for not suspending the arrest warrant, namely that the applicant remained under a strong suspicion of having committed the crimes of which he was accused, the serious nature of these offences and the fact that the applicant would be likely to abscond if released, given the sentence which he risked incurring if found guilty as charged.",
"39. The Court accepts that the reasonable suspicion that the applicant committed the offences with which he had been charged, being based on cogent evidence, persisted throughout the trial leading to his conviction. It also agrees that the alleged offences were of a serious nature.",
"40. As regards the danger of the applicant ’ s absconding, the Court observes that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175). In the present case the national courts also relied on other relevant circumstances, including the fact that the applicant had been extradited from Lebanon to Germany for the purposes of criminal proceedings in the context of international terrorism. He had neither a fixed dwelling nor social ties in Germany which might have prevented him from absconding if released. Accordingly, the Court is satisfied that a substantial risk of the applicant ’ s absconding persisted throughout his detention and accepts the domestic courts ’ finding that no other measures to secure his presence would have been appropriate. It further observes that under German legislation no trial can be held in respect of an accused who has absconded and whose whereabouts are unknown (see paragraph 21 above ).",
"41. Consequently, the Court concludes that there were relevant and sufficient grounds for the applicant ’ s continued detention.",
"( c ) Conduct of the proceedings",
"42. It remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.",
"43. The Court takes the view that the applicant ’ s case was extremely complex. It concerned serious charges against him and four co-defendants and necessitated the hearing of 169 witnesses. The case had a terrorist and international background and, moreover, involved 106 joint plaintiffs.",
"44. As to the conduct of the proceedings by the judicial authorities, the parties agreed that no delay in the proceedings had been attributable to the German courts and authorities, which had displayed the necessary diligence throughout the proceedings. The Court notes that, following the applicant ’ s indictment on 30 January 1997, his trial in the Berlin Regional Court began on 5 September 1997. Hearings took place on 281 separate days with on average two hearings per week until the Regional Court ’ s decision of 13 November 2001. The hearings were regularly attended by five defendants, their 15 lawyers, 106 joint plaintiffs and their 29 lawyers. Accordingly, having regard to the difficulties intrinsic to the prosecution of offences committed in the context of international terrorism, the competent judicial authorities cannot be said to have displayed a lack of special diligence in handling the applicant ’ s case.",
"45. In the light of these various factors, the Court finds that the competent national court acted with the necessary special diligence in conducting the proceedings in the applicant ’ s case.",
"( d ) Overall assessment",
"46. The Court has found in previous cases that detention on remand exceeding five years constituted a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 77, 8 June 2006; I.A. v. France, cited above, § 112; and Khudoyorov v. Russia, no. 6847/02, § 189, 8 November 2005 ).",
"47. The present case involved a particularly complex investigation and trial concerning serious offences of international terrorism which caused the death of three victims and serious suffering to more than a hundred. Following his extradition from Lebanon in 1996, the sole reason for the applicant ’ s presence in Germany was to stand trial for these offences.",
"48. In these exceptional circumstances, the Court concludes that the length of the applicant ’ s detention can still be regarded as reasonable. There has accordingly been no violation of Article 5 § 3 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION",
"49. The applicant complained that the length of his detention on remand violated the presumption of innocence. He relied on Article 6 § 2 of the Convention, which provides :",
"“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”",
"50. The Court observes that this complaint is based on the same facts as the complaint under Article 5 § 3 and must be likewise declared admissible (see paragraph 32 above).",
"51. Given that the Court takes into account the presumption of innocence when assessing whether the length of a period of pre-trial detention was justified (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000 ‑ XI, and Labita, cited above, § 152), no separate question arises under Article 6 § 2. There is accordingly no need to examine the complaint regarding the length of the applicant ’ s detention on remand under this Article as well.",
"III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"52. In his first letter to the Court, the applicant submitted that the length of the criminal proceedings against him had not been proportionate. However, he also observed that the German authorities could not be held responsible for the unusual length of the impugned proceedings. In his subsequent submissions, the applicant pointed out that the national authorities had observed their obligation to proceed speedily throughout the proceedings and that the length of the proceedings was rather due to the complexity of the case and the number of persons involved in the proceedings.",
"53. The Government argued that the applicant had obviously not intended to raise the length-of-proceedings complaint.",
"54. The Court notes that the applicant ’ s submissions on this point are disputable as he pointed out that the German authorities and courts could not be held responsible for the unusual length of the proceedings. Furthermore, he failed to submit any clarification in response to the Government ’ s allegation that he had not complained of the length of the proceedings. The Court therefore finds that the applicant failed to substantiate his length-of-proceedings complaint with sufficient clarity.",
"55. Even assuming that domestic remedies have been exhausted, this part of the application is accordingly manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 of the Convention."
] |
282 | Sher and Others v. the United Kingdom | 20 October 2015 | This case concerned the arrest and detention of the applicants, three Pakistani nationals, in the context of a counterterrorism operation. The applicants were detained for 13 days, before ultimately being released without charge. During that period they were brought twice before a court with warrants for their further detention being granted. They were then taken into immigration detention and have since voluntarily returned to Pakistan. They complained in particular about the hearings on requests for prolongation of their detention because certain evidence in favour of their continued detention had been withheld from them and that one such hearing had been held for a short period in closed session. | The Court held that there had been no violation of Article 5 § 4 of the Convention. It observed in particular that the UK authorities had suspected an imminent terrorist attack and had launched an extremely complex investigation aimed at thwarting it. Reiterating that terrorism fell into a special category, it found that Article 5 § 4 could not be used to prevent the use of a closed hearing or to place disproportionate difficulties in the way of police authorities in taking effective measures to counter terrorism. In the applicants’ case, the threat of an imminent terrorist attack and national security considerations had justified restrictions on the applicants’ right to adversarial proceedings concerning the warrants for their further detention. Moreover, there had been sufficient safeguards against the risk of arbitrariness in respect of the proceedings for warrants of further detention, in the form of a legal framework setting out clear and detailed procedural rules. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix.",
"A. The applicants’ arrests and initial detention",
"7. On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway.",
"1. Mr Sher",
"8. Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions.",
"9. At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.",
"10. At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following:",
"“You are hereby informed that",
"...",
"SULTAN SHER",
"has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.”",
"11. Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence and that he had no representations to make at that time.",
"12. At 9.35 a.m. a further review of Mr Sher’s detention took place. Mr Sher was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"13. At around 4 p.m. Mr Yousaf was provided with a copy of a pre-interview briefing document (“brief”). The third paragraph of the brief stated:",
"“Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism Act 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit.”",
"14. It went on to list the names of twelve people under arrest at different locations and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase “as further intelligence associating individuals to various premises come to the attention of the investigative team”. It added:",
"“Your client should be made aware that such examinations of scenes will include searches for bomb-making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones ...”",
"15. It concluded:",
"“Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism ...”",
"16. At around 5 p.m. a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"17. Shortly after 6 p.m. a first police interview began. Mr Sher was asked detailed questions about the other people who had been arrested, the various premises being searched and his knowledge of bomb-making equipment. He made no comment in response to these questions. The interview lasted for around one and a half hours in total.",
"18. Shortly before midnight, a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"2. Mr Sharif",
"19. Mr Sharif was arrested at 5.37 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions and the applicant was informed of this.",
"20. At 11 p.m. a review of Mr Sharif’s detention was carried out by a senior police officer. Mr Sharif made no representations. His continued detention was authorised as necessary to secure and preserve evidence and to obtain evidence by questioning.",
"21. At 7.40 a.m. on 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Sharif in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.",
"22. At 9.50 a.m. a further review of Mr Sharif’s detention took place. Mr Sharif was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"23. At 4.50 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"24. At some point in the afternoon, Mr Sharif received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). He was subsequently interviewed for around half an hour and was asked in particular about the other people who had been arrested. He made no comment.",
"25. At 11.45 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"3. Mr Farooq",
"26. Mr Farooq was arrested at 5.35 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, the reasons for his detention were explained to him.",
"27. At around 9.45 p.m. a review of Mr Farooq’s detention was carried out by a senior police officer. Mr Farooq made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.",
"28. On 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Farooq in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.",
"29. At 9.15 a.m. a further review of Mr Farooq’s detention took place. Mr Farooq was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"30. At 5.40 p.m. a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"31. At some point in the afternoon, Mr Farooq received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). A subsequent police interview lasted for around half an hour and Mr Farooq was asked in particular about the other people who had been arrested. He made no comment.",
"32. Shortly before midnight, a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"B. The search warrants",
"33. Meanwhile, on 8 April 2009, the police applied for and were granted search warrants by the Manchester Magistrates’ Court in respect of a number of addresses connected with the applicants. The police officer making the application indicated that he had reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation and that it had to be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.",
"34. The relevant material was defined as:",
"“Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA’s software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism ...”",
"35. Search warrants were granted in those terms. The warrants included these words:",
"“Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises ...”",
"36. The search of Mr Sher’s home address was conducted over a ten-day period between 8 April and 18 April. The search at his place of work was conducted between 11 and 14 April.",
"37. Mr Sharif and Mr Farooq shared an address. Their residence was the subject of a search between 8 April and 19 April.",
"38. In relation to all of the properties that were searched, the police went to the property first thing in the morning and worked in shifts until about 7 p.m. They then closed up the property and it was cordoned off. They resumed their work at the property again the next morning, and worked in this way until the search was concluded.",
"C. The applicants’ further detention",
"1. The first application for further detention",
"39. On 9 April 2009 the applicants were informed that an application would be made at the City of Westminster Magistrates’ Court for a warrant of further detention for the period of seven days beginning with the day of their arrest; and that a hearing would take place on 10 April. The notice of the application and the hearing went on to explain the following.",
"“Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000.”",
"40. The application to the City of Westminster Magistrates’ Court contained, at section 9 under a heading “Further Enquiries to be made”, a lengthy description of the police operation and the current state of play in the ongoing investigation. The section 9 material was not provided to the applicants or Mr Yousaf.",
"41. The hearing was fixed for 9.30 a.m. on 10 April 2009. Part of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material in section 9. The applicants and Mr Yousaf were therefore excluded from this part of the hearing. They made no complaint about the procedure at that time.",
"42. During the open part of the hearing, a senior police officer made an oral application for further detention which was reduced to writing and a copy of the note was provided to the applicants and to Mr Yousaf. The written note explained why the section 9 material was being withheld and provided some details of the police operation. It also gave details of all the property seized so far and explained that the investigation contained",
"“intelligence and evidence that support[ed] the premise that [the applicants] through significant association with other detained persons [were] conspiring to plan a terrorist attack within the UK”.",
"43. Mr Yousaf cross-examined the police officer during the hearing and did not complain of the applicants’ detention or suggest that they should not be further detained.",
"44. At 1.20 p.m. the District Judge granted the warrants for further detention until 15 April. The formal notification of the decision stated as follows.",
"“On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that:",
"...",
"(ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously;",
"(iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence ...”",
"2. The detention from 10 April to 15 April",
"(a) Mr Sher",
"45. On 10 April 2009 Mr Sher was provided with a second brief. It indicated that one of the other arrested suspects had said that he had lived with Mr Sher at two addresses and that he had knowledge of another arrested suspect. This document formed the basis of an interview with Mr Sher which began shortly after 6 p.m. and concluded one and a half hours later. During the interview, Mr Sher was asked about his acquaintance with some of the other arrested suspects and his familiarity with some of the searched premises. He made no reply to the questions put.",
"46. No interviews were carried out over 11 and 12 April, which was the Easter weekend.",
"47. On 13 April Mr Sher received a third brief which contained details of material found at various searched properties which could allegedly be linked to him. The brief was used as the basis of a further series of interviews which began at around 1 p.m. and lasted for about four hours in total. Again Mr Sher answered no comment to the points put to him.",
"48. On 14 April Mr Sher and his solicitor were provided with a fourth brief. It identified a number of items which were said to be “areas of interest” to the investigation, including: text messages between detainees; maps outlining designated areas of interest which significant numbers of the public would be expected to frequent; a detailed handwritten document depicting a militaristic zone abroad; access to and movements around the security industry including access to airports; mobile telephone use; international travel, including visits to Pakistan, and the purpose of travel; suspected reconnaissance at public locations; meetings of significance; and money transfers abroad. The document went on to state as follows.",
"“Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation.",
"The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing.”",
"49. Again, the document provided the basis of an interview with Mr Sher which began shortly before 1 p.m. and lasted for about an hour and twenty minutes. Mr Sher declined to comment.",
"(b) Mr Sharif",
"50. On 10 April 2009 Mr Sharif was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Sharif which began at around 4 p.m. and concluded one and a half hours later. During the interview, Mr Sharif was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.",
"51. Again, no interviews were carried out over the Easter weekend of 11 and 12 April.",
"52. On 13 April Mr Sharif received a third brief. It provided details of material found at his place of residence. The document was used as the basis of a further series of interviews which began at around 1.30 p.m. and lasted for about three hours in total. Mr Sharif answered no comment to the points put to him.",
"53. On 14 April Mr Sharif was provided with a fourth brief. It contained details of information provided by other detainees and otherwise reproduced the content of Mr Sher’s fourth brief (see paragraph 48 above). It provided the basis of an interview with Mr Sharif which lasted for about three hours. Mr Sharif declined to comment.",
"(c) Mr Farooq",
"54. On 10 April 2009 Mr Farooq was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Farooq which began at around 4 p.m. and concluded just over an hour later. During the interview, Mr Farooq was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.",
"55. Again, no interviews were carried out over the Easter weekend of 11 and 12 April.",
"56. On 13 April Mr Farooq received a third brief which set out details of exhibits recovered from properties linked to him. The briefing document was used as the basis of a further series of interviews which lasted for just over two hours. Again Mr Farooq answered no comment to the points put to him.",
"57. On 14 April Mr Farooq was provided with a fourth brief in terms almost identical to that provided to Mr Sharif (see paragraph 53 above). It provided the basis of an interview with Mr Farooq which lasted for just over an hour. Mr Farooq declined to comment.",
"3. The second application for further detention",
"58. On 14 April 2009 the applicants and Mr Yousaf were informed that an application had been made to the City of Westminster Magistrates’ Court to extend the warrants of further detention for a further seven days. Notification of this application was in similar terms to the earlier notice. Section 9 of the application, which was withheld from the applicants, contained detailed information on the background to the investigation, the associations of the applicants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. Under section 10, there was a list of bullet points under the heading “Reason Detention is Necessary Whilst Enquiries Made”, which included the need to await the conclusion of forensic searches and examination and the outcome of analyses instructed and the need to question the applicants concerning items found in their possession or at premises linked with them.",
"59. The application was heard on 15 April at around 9.30 a.m. and the applicants attended by video link. The hearing was entirely open. A senior police officer made the oral application, which had again been reduced to writing and provided to the applicants and Mr Yousaf. He said that the police operation in question was the most significant counterterrorism investigation since a plot in 2006 to cause explosions on aeroplanes through the use of liquid bombs, and that the North West Counter Terrorism Unit had never before undertaken an investigation of this size. He explained that searches had taken place at various properties and that only one scene had been completed and released. Three were awaiting results of forensic tests and seven scenes were still being searched. A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards and data storage devices; a large number of computers were being searched as well as DVDs and CDs; 127 phone or sim cards had been recovered and were being forensically examined, some with large memories. The application concluded by seeking the extension to the warrant on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence.",
"60. At around 10.15 a.m. the Senior District Judge granted the extensions sought. The formal notification in relation to each applicant confirmed in writing that the judge was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the applicants was necessary to obtain relevant evidence. The warrants were extended by seven days, until 22 April 2009.",
"4. The detention from 15 April to 21 April",
"(a) Mr Sher",
"61. Mr Sher was not interviewed on 15, 16, 17 or 18 April 2009. However, on 18 April, further briefs were provided. The documents referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:",
"“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”",
"62. The document referred specifically to a wordpad document recovered from a pen drive (“the Buddy email”), which appeared to be a personal email discussing the weather and plans for an Islamic wedding “after 15th and before 20th of this month”. The police believed this to be code and considered that it suggested an imminent attack. The document continued:",
"“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”",
"63. It identified various maps found with locations highlighted and photographs of public places in the North West of England. There was also a reference to a mobile phone belonging to another of the suspects which was found to contain Mr Sher’s telephone number.",
"64. The briefing formed the basis of a series of interviews on 19 April in which specific questions were put as to Mr Sher’s knowledge of these documents and the other materials. No answers were forthcoming. The total duration of the interviews was about four and a half hours.",
"65. On 20 April there was a final round of briefing documents, again referring to emails and computer communications, in particular via a specific and identified user name belonging to Mr Sher. In a subsequent interview lasting around one and a quarter hours, Mr Sher made no comment.",
"(b) Mr Sharif and Mr Farooq",
"66. Neither Mr Sharif nor Mr Farooq was interviewed on 15, 16 or 17 April 2009. A further brief was provided on 18 April to each of them. The document summarised information provided by some of the other detainees; set out details of significant text messages received and sent from mobile telephones which were either in the applicants’ possession at the time of their arrest or discovered during the search of their residences; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of interviews with Mr Sharif and Mr Farooq on 18 April lasting for a total of almost three hours and one and a half hours respectively. At the beginning of the interviews, Mr Sharif and Mr Farooq were told that the police believed that they had been conspiring with others to cause explosions. No responses were forthcoming during the interviews.",
"67. On 19 April the applicants and their solicitor received a final briefing document in similar terms in each case. The document referred to their arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:",
"“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”",
"68. The document referred to the Buddy email (see paragraph 62 above) and continued:",
"“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”",
"69. In subsequent interviews with each applicant lasting around one and a quarter hours, neither made any comment.",
"70. No interviews took place on 20 April.",
"D. The applicants’ release",
"71. On 21 April 2009 the applicants were released without charge and were served with deportation orders. They were then detained under immigration legislation and on 22 April were transferred into immigration service custody pending deportation.",
"E. The judicial review proceedings",
"72. On 26 June 2009 the applicants commenced two sets of judicial review proceedings. In the first, they sought to challenge the deportation orders. That action does not form the basis of their application to this Court. The other (“the second action”) was lodged against five defendants: (1) Greater Manchester Police (“GMP”); (2) West Yorkshire Police (“WYP”); (3) the City of Westminster Magistrates’ Court; (4) Manchester Magistrates’ Court; and (5) the Home Secretary. In their claim form, the applicants sought to challenge the legality of their treatment between 8 and 21 April. They contended in particular that their rights under Article 5 §§ 2 and 4 and Article 6 § 1 of the Convention had been breached because they had not been provided with sufficient information at the time of arrest or detention as to the nature of the allegations against them, and because of the closed procedure permitted when hearing applications for warrants of further detention. They further argued that the searches of their homes were unlawful because the search warrants had been granted in terms that were too wide, because the terms of the warrants had been breached in that, although the police had permission to undertake a search on one occasion, they had actually occupied the premises for many days, and because of the seizures themselves.",
"73. On 21 July 2009 permission to apply for judicial review in the second action was refused by the Divisional Court. The judge summarised the remedies sought as follows.",
"“3. The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms:",
"‘(1) A declaration that the arrest of all three claimants by the first defendant was unlawful.",
"(2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful.",
"(3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful.",
"(4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights.",
"(5) An order quashing the search warrants at the home addresses of the claimants.",
"(6) A declaration that ... the issuing of ... [search warrants for the home addresses of the applicants] by the fourth defendant was ... unlawful.",
"(7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful.",
"(8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized.",
"(9) Any other relief the court considers appropriate.",
"(10) Damages.",
"(11) Costs.’”",
"1. The complaints concerning the provision of information",
"74. As regards the applicants’ complaints concerning the provision of information from the police about the reasons for their arrest and detention, the police argued that a private-law remedy for wrongful arrest and wrongful imprisonment was open to the applicants and should have been pursued. The applicants insisted that judicial review was an appropriate remedy in respect of their complaints.",
"75. The judge held that judicial review was not the appropriate forum. The issues which arose were questions of fact which were not appropriate for judicial review proceedings. He explained the following.",
"“79. First, there is a pre-existing private law remedy available to these claimants against GMP and WYP. This is not a case where, if the claimants were not entitled to pursue judicial review proceedings, they would be left without a remedy. There can be no question of injustice if these proceedings were transferred to the QB [Queen’s Bench Division]: indeed, it is only if such a transfer occurred that the defendants could exercise their right to trial by jury.",
"80. Secondly, these claims involve potentially complex disputes of fact ... [S]uch fact-sensitive issues are wholly inappropriate for judicial review proceedings.",
"81. Thirdly, the claims being made by the claimants are historic ... There is therefore no reason for these proceedings to take up the judicial resources of the Administrative Court, which are required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. And although it is said that these issues are of public importance, that is not, without more, a reason to keep a fact-sensitive dispute, where there are obvious alternative remedies, in the Administrative Court.",
"82. I do not consider that the claimants’ complaint that there would be difficulties of public funding if the matter was transferred to the Queen’s Bench Division, or that the claimants may then be the subject of an application for security for costs, can have any relevance to the question of the proper forum for these claims. Judicial review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof. It would be wholly inappropriate to allow judicial review proceedings to become some sort of ‘costs-free’ civil jurisdiction, which gets a claimant to the same result as his private law remedies (regardless of the nature of the underlying dispute), but without the usual costs risks. I note too that the claimants say that public funding has not been readily available for these proceedings either, so that does not appear to be a material consideration in any event. The claimants would not have to return to the UK to give evidence in their private law action, which could instead be provided by way of video-link ...”",
"76. He concluded that the matters raised ought to be addressed in an ordinary private law action in which the potentially complex factual arguments could be properly determined. However, he added the following caveat:",
"“84. I make plain that this conclusion is subject to one point. If the claimants were able to demonstrate that there were other parts of these claims which were arguable, and in respect of which judicial review proceedings offered them their only remedy, then in circumstances where the underlying issue was the same – namely, whether or not the claimants were given sufficient information – it may be a pragmatic and flexible solution for all such matters to be dealt with together in one set of judicial review proceedings. Accordingly, it is important in the subsequent sections of this Judgment to identify whether or not there are any such arguable judicial review claims.”",
"77. He turned to consider the arguability of the judicial review claims against the police, in the event that he was wrong as to the appropriate forum. In that case, he said, the issue was whether, on the material before the court, permission to seek judicial review should be granted on the basis that no one properly directing himself as to the relevant law could reasonably have reached the decision to arrest and detain the applicants (what he called a typical Wednesbury argument).",
"78. The judge referred, inter alia, to this Court’s judgment in Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, Series A no. 182). He examined the lawfulness of the decision to arrest and commented as follows.",
"“91. Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.”",
"79. In the judge’s view, the applicants could only challenge the lawfulness of their actual arrest by way of judicial review proceedings if their case was that the arresting officers did not honestly suspect them of being terrorists or that such belief was unreasonable. Since the applicants did not allege the absence of reasonable suspicion, the lawfulness of the arrests could not be impugned and the application to seek judicial review of the decision to arrest them was “hopeless”.",
"80. Concerning the lawfulness of the decisions to detain the applicants for the first forty-eight hours, the judge stated as follows.",
"“94. The custody logs demonstrate that, during the first 38 hours of the claimants’ detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all.",
"95. That view is confirmed by a consideration of the documents provided to the claimants during this early period ... [O]n 9th April 2009 the claimants were given [the first brief] and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.”",
"81. In response to the applicants’ allegation that their detention after 10 April had been unlawful because it was on the basis of information solely derived from closed hearings, the judge emphasised that only part of the hearing on 10 April had been closed and that the hearing on 15 April had been entirely open. He considered that the applicants were being provided with sufficient information during this period to justify their continuing detention. He therefore viewed this part of the claim for judicial review as “fundamentally flawed”. He noted that counsel for the applicants repeatedly asserted that the basis for the applicants’ detention had never been explained to them, without ever attempting to engage with or address the contents of the various documents which had been provided to them. The judge continued as follows.",
"“98. [I]t is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co ‑ conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England.",
"99. [Counsel for the applicants] submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment ... I consider that that submission is wrong in principle. The whole purpose of those parts of the ... [2000 Act] is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the [2000 Act] to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4.",
"100. Of course ... the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was ... that directly linked them to these allegations.”",
"82. The judge concluded in respect of the provision of information that if, contrary to his view, judicial review proceedings against the police were appropriate, he would refuse permission as the claim was not arguable on the material provided. He accepted that the question whether the decisions of the City of Westminster Magistrates’ Court to issue warrants of further detention were unlawful because inadequate information had been provided to the applicants concerning the reasons for their continued detention was potentially a matter of public law. However, he was satisfied that the claim was “fanciful” and unarguable since sufficient information was provided in the documents and the open hearings for the applicants to know why they were being detained.",
"2. The complaints concerning the searches",
"(a) The manner of execution of the searches",
"83. In respect of allegations that the police had gone outside the terms of the search warrant by executing it over a number of days and of complaints about the seizures themselves, the police again argued that judicial review proceedings were not appropriate and that private-law proceedings should have been pursued by the applicants. The judge found this submission to be unarguably correct.",
"84. In any event, the judge held that even if these were matters for judicial review, there was no basis for concluding that the claim was arguable. He considered that the words “on one occasion” in the warrant authorised the police go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its occupiers. That was precisely what had happened here. The fact that the “occasion” lasted for more than one calendar day was irrelevant since there was nothing temporal about the word “occasion”. Further, the complaint that certain seized items had not been returned could and would have been resolved had the applicants followed the judicial review pre ‑ action protocol. Again, the judge concluded that if, contrary to his view, judicial review proceedings were appropriate, he would refuse permission as the claim was “hopeless”.",
"(b) The scope of the search warrants",
"85. As to the complaint that the warrants were too wide, a complaint which the judge found was amenable to judicial review, he observed that the criticism appeared to be that because the warrants contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. He rejected that submission for three reasons. Firstly, he considered the assertion to be too general, since a list that was too onerous in one case might be entirely appropriate in another. He continued as follows.",
"“109. Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation.",
"110. Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.”",
"86. He concluded that it was “inevitable” that in cases like this the warrants would be in relatively wide terms, explaining that the need to ensure public safety under the Terrorism Act 2000 required nothing less. He accordingly rejected the submission that the warrants were in terms that were too wide or that there was an arguable case that the decision to issue the warrants in those terms was unlawful or irrational.",
"3. The complaints concerning the procedure for issuing a warrant for further detention",
"87. Finally, the judge addressed the claim that the procedure for hearing applications for warrants of further detention in the 2000 Act was incompatible with Article 5 § 4 of the Convention because, although it allowed for a closed procedure, there was no system of special advocates in place. He found this to be a matter which, if it was appropriate to grant permission, would justify judicial review proceedings.",
"88. However, he considered the claim to be unarguable. He referred to the judgment of the House of Lords in Ward (see paragraphs 104 - 105 below) which, he said, made clear that the closed-hearing procedure was compatible with the Convention. He therefore rejected the submission that the provision of a special advocate was essential to ensure the fairness of the proceedings. He further noted that the applicants had not explained why the absence of express provision in the 2000 Act for a special advocate led inevitably to the conclusion that the scheme was incompatible with Article 5 § 4, since the District Judge could provide the necessary critical scrutiny in the interests of the person who was the subject of the proceedings. In any event, he held that such an advocate could have been appointed by the District Judge had such a course been considered necessary in the interests of justice. He noted that the applicants had not requested the appointment of a special advocate at either hearing. Finally, the judge considered the applicants’ case to be wrong on the facts since the warrants of further detention were not made entirely on the basis of closed information: only part of the 10 April hearing had been closed and the 15 April hearing had been entirely open. The claim for permission therefore failed both in principle and on the facts.",
"F. The applicants’ return to Pakistan",
"89. In September 2009, all three applicants voluntarily returned to Pakistan."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Arrest and detention under the Terrorism Act 2000",
"90. The 2000 Act allows for the arrest and detention without charge of suspected terrorists for a maximum of twenty-eight days. The relevant provisions are set out in more detail below.",
"1. Power of arrest",
"91. Section 41(1) of the 2000 Act allows a constable to arrest without a warrant a person whom he reasonably suspects to be a terrorist. The 2000 Act defines a terrorist as either someone who has committed an offence under certain sections of the Act (section 40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b)).",
"92. Terrorism itself is defined in section 1 of the Act in these terms:",
"“(1) ... the use or threat of action where–",
"(a) the action falls within subsection (2),",
"(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and",
"(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.”",
"93. Section 1(2) covers action which:",
"“(a) involves serious violence against a person,",
"(b) involves serious damage to property,",
"(c) endangers a person’s life, other than that of the person committing the action,",
"(d) creates a serious risk to the health or safety of the public or a section of the public, or",
"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.”",
"94. Pursuant to section 1(3), the use or threat of action which involves the use of firearms or explosives is terrorism, whether or not section 1(1)(b) is satisfied.",
"95. Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall, subject to the other provisions of the section and unless detained under any other power, be released not later than a period of forty-eight hours beginning with the time of his arrest under that section.",
"2. Periodic review",
"96. Schedule 8, Part II, of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act.",
"97. Pursuant to paragraph 21, a person’s detention should be periodically reviewed by a review officer. The first review should be carried out as soon as reasonably practicable after the time of the person’s arrest. Subsequent reviews must, except in specific limited cases, be carried out at intervals of not more than twelve hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court (see paragraph 100 below).",
"98. Paragraph 23 entitles a review officer to authorise a person’s continued detention only if satisfied that it is necessary (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence. Continued detention cannot be authorised under (a) or (b) unless the review officer is satisfied that the investigation is being conducted diligently and expeditiously. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism.",
"99. Pursuant to paragraph 26, before determining whether to authorise a person’s continued detention, a review officer must give the detained person or his solicitor an opportunity to make oral or written representations about the detention.",
"3. Warrants of further detention issued by a judicial authority",
"100. Paragraph 29 of Schedule 8 entitles a Crown Prosecutor or senior police officer to apply to a court for the issue of a warrant of further detention. Under paragraph 36, where the application is to extend the detention up to a maximum of fourteen days from the date of arrest, it can be made to a District Judge. Applications for further detention beyond fourteen days must be put before a High Court judge, who may authorise detention up to a maximum of twenty-eight days in total from the date of arrest. Section 41(7) of the 2000 Act provides that where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained during the period specified in the warrant.",
"101. Pursuant to paragraph 31 of Schedule 8, a detained person must be given notice of the application for a warrant of further detention and the grounds on which further detention is sought. Paragraph 33 allows the detained person an opportunity to make oral or written representations about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. Pursuant to paragraph 33(3), the court may exclude the detained person and his solicitor from any part of the hearing.",
"102. Paragraph 34 provides that the person who has made an application for a warrant may apply for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A court may make such an order only if satisfied that there are reasonable grounds for believing that, if the information were disclosed, evidence would be interfered with or harmed; the apprehension, prosecution or conviction of a suspected terrorist would be made more difficult as a result of his being alerted; the prevention of an act of terrorism would be made more difficult as a result of a person being alerted; the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; or a person would be interfered with or physically injured.",
"103. Paragraph 32(1) provides that a warrant of further detention may be issued only if there are reasonable grounds for believing that the further detention of the person is necessary and the investigation is being conducted diligently and expeditiously. Pursuant to paragraph 32(1A), the further detention of a person is “necessary” if it is necessary to obtain relevant evidence whether by questioning him or otherwise; to preserve relevant evidence; or pending the result of an examination or analysis of any relevant evidence. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism.",
"104. In Ward v. Police Service of Northern Ireland ([2007] UKHL 50), the House of Lords considered the fairness of the provisions of Schedule 8 in a case where the judge had excluded the appellant and his solicitor from a hearing on an application to extend a warrant of detention for about ten minutes to consider closed information. The appellant sought judicial review of the decision to grant the warrant of further detention and his claim was refused. His appeal to the House of Lords was subsequently dismissed. The Appellate Committee explained at the outset:",
"“11. Section 41 of the Act ... enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards. ...”",
"105. After careful consideration of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee stated as follows.",
"“27. ... [T]he procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.",
"28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. ...",
"29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. ...”",
"B. Search powers under the 2000 Act",
"106. Schedule 5 of the 2000 Act sets out powers relating to searches. Paragraph 1 of Schedule 5 allows a constable to apply to a justice of the peace for the issue of a warrant for the purposes of a terrorist investigation authorising any constable to enter premises, search them and seize and retain any relevant material found. Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value to a terrorist investigation and it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.",
"107. Paragraph 1(5) provides that a justice may grant an application if satisfied that the warrant is sought for the purposes of a terrorist investigation; that there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation; and that the issue of a warrant is likely to be necessary in the circumstances of the case.",
"C. Judicial review",
"1. Appropriateness of remedy",
"(a) Decisions to arrest and detain",
"108. In R (Rawlinson & Hunter Trustees and Others) v. Central Criminal Court & Anor [2012] EWHC (Admin) 2254, the claimant had been arrested and sought to challenge by way of judicial review the decision to arrest him. Although there was some discussion of whether judicial review was the appropriate forum, the police accepted that judicial review was the appropriate way to challenge the arrest decision and the Divisional Court agreed. It appears that the claimant had accepted in the proceedings before the court that there was no significant factual dispute between the parties and the claim could be resolved on the basis of the documentary evidence.",
"(b) Decisions to grant search warrants",
"109. In Bell v. Greater Manchester Police [2005] EWCA Civ 902, the claimant sought to challenge the validity of a search warrant in private law proceedings. He complained that the warrant had been obtained on a misleading basis and that it did not properly identify the material the subject of the search. The Court of Appeal agreed with the first-instance judge that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review.",
"110. In R (Goode) v. Crown Court at Nottingham [2013] EWHC 1726 (Admin) the Administrative Court said:",
"“51. The issue of a [search] warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another ...”",
"111. The court emphasised that while a seizure of property without judicial authority could be challenged in the Crown Court, a warrant issued with judicial authority could subsequently be quashed or declared unlawful only by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court.",
"112. In R (Lees and Others) v. Solihull Magistrates’ Court and Another [2013] EWHC 3779 (Admin), the Divisional Court, citing R (Goode), said that it was clear that the only forum for a challenge to the validity of a search warrant was in judicial review proceedings.",
"2. Appeal against a refusal to grant permission",
"113. Rule 52.15 of the Civil Procedure Rules (“CPR”) provides:",
"“(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.”",
"114. Section 18(1) of the Senior Courts Act 1981 provides, in so far as relevant:",
"“ No appeal shall lie to the Court of Appeal–",
"(a) ... from any judgment of the High Court in any criminal cause or matter”",
"115. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, the House of Lords decided that the refusal of an application for habeas corpus by a person arrested with a view to extradition was a decision in a “criminal cause or matter” (as set out in a predecessor Act). Viscount Simon LC held:",
"“This distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.”",
"116. Lord Wright explained:",
"“The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter.’ The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter ...”",
"117. Finally, Lord Porter held:",
"“... This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that the case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge ...”",
"118. In R (Guardian News and Media Ltd) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, a newspaper had unsuccessfully requested access to documents referred to by the Magistrates’ Court in extradition proceedings. The Divisional Court upheld the ruling of the District Judge. The question arose in the Court of Appeal whether the proceedings were a “criminal cause or matter”. The newspaper accepted that the extradition proceedings themselves were a “criminal cause or matter” but submitted that the order refusing journalistic access to the underlying material was not. Lord Neuberger, delivering the judgment of the court, undertook a review of the authorities in the area and considered that the newspaper’s application had been wholly collateral to the extradition proceedings and made by someone not a party to those proceedings. The order of the District Judge did not invoke the Magistrates’ Court’s criminal jurisdiction and had no bearing upon the criminal (i.e. extradition) proceedings themselves. Lord Neuberger expressed the opinion that “any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court” and concluded that the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence, was to hold that the Court of Appeal had jurisdiction to hear the appeal in the case.",
"119. In its December 2014 judgment in Panesar & Others v HM Revenue and Customs [2014] EWCA Civ 1613 the Court of Appeal considered the meaning of “criminal cause or matter” in a case concerning retention, under section 59 of the Criminal Justice and Police Act 2001, of property seized pursuant to search warrants that were subsequently quashed. The court found that the case concerned a “criminal cause or matter” and concluded that it had no jurisdiction to hear an appeal. The appellants were instead obliged to make their application to the Divisional Court for certification of a point of law of general importance and pursue their appeal to the Supreme Court. Lord Justice Burnett referred to the “ at times inconsistent authority on the meaning of ‘criminal cause or matter’” and acknowledged that the authorities on the meaning of “criminal cause or matter” had “given rise to some uncertainty and, as Lord Neuberger recognised in the Guardian case, some incoherence”.",
"D. The Human Rights Act 1998",
"120. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention.",
"121. Section 4 of the Act provides, in so far as relevant:",
"“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.",
"(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”",
"122. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:",
"“Subsection (1) does not apply to an act if–",
"(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or",
"(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”",
"123. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority.",
"124. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION IN RESPECT OF PROVISION OF INFORMATION",
"125. The applicants complained that they were not given adequate information by the police about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention. They relied on Article 5 §§ 2 and 4 of the Convention, which provide in so far as relevant as follows:",
"“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”",
"“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"A. Admissibility",
"1. The parties’ submissions",
"126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article 5 of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical.",
"127. Second, the Government argued that the applicants had failed to exhaust available remedies because they had not renewed their application for permission to bring judicial review to the Court of Appeal. The CPR made provision for renewal of an application for permission to the Court of Appeal under Rule 52.15(1) (see paragraph 113 above). Although section 18(1)(a) of the 1981 Act precluded such appeals in any “criminal cause or matter” (see paragraph 114 above), the Government did not agree that the applicants’ complaints before the Divisional Court concerned a “criminal cause or matter”. The Divisional Court had found that complaints in respect of the applicants’ arrest and initial detention should have been brought by private-law action and claims against the police, whether in judicial review or by way of private-law claims, were civil in nature.",
"128. The applicants did not accept that they could have brought a private-law action in respect of their complaints. In their view, the challenge brought could only have proceeded by way of judicial review. They referred to the Divisional Court’s judgment in Rawlinson (see paragraph 108 above) in support of their position that it was perfectly proper for matters of arrest and detention to be challenged by way of judicial review. They argued that it would not have been possible to seek a declaration of incompatibility as the basis for unlawful detention in a private-law action. They further contended that legal aid would have been impossible to obtain, particularly given budgetary cuts and the fact that the applicants were, by that stage, resident abroad.",
"129. The applicants also argued that, in light of section 18(1)(a) of the 1981 Act, they had no right to renew their application for permission before the Court of Appeal, permission having been refused by the Divisional Court in a “criminal cause or matter”. They insisted that there could be no doubt that all the matters that were before the Divisional Court were criminal causes or matters and referred to the Court of Appeal’s judgment in Panesar (see paragraph 119 above).",
"2. The Court’s assessment",
"130. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014 ).",
"131. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138).",
"132. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see also Gough, cited above § 139).",
"133. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; and Gough, cited above § 140).",
"134. In the present case the Government have argued that two remedies were open to the applicants to pursue further their complaints concerning the alleged inadequacy of the information provided to them at the time of their arrest and detention. The applicants contested the availability of either remedy on the facts of their case.",
"135. It is generally unsatisfactory for this Court to find itself in the position of being asked to pronounce on the correct interpretation of domestic law. Both the question whether the present complaint ought to have been pursued in private-law proceedings and the question whether it concerned a “criminal cause or matter”, thus excluding the jurisdiction of the Court of Appeal, are questions better resolved by the domestic courts. However, the Court is required to assess whether domestic remedies have been exhausted and where there is a dispute between the parties about the effectiveness of a particular remedy the Court will decide the matter in accordance with the principles outlined above (see paragraphs 130 - 133 ).",
"136. As regards the first question, the Divisional Court made its view that private-law proceedings were appropriate to challenge the arrest and detention decisions by the police in the applicants’ case very clear in its judgment. As noted above, it is in principle for the domestic courts to determine such questions and the finding of an independent and impartial superior court, such as that of the Divisional Court in the present case, that a remedy is available will generally constitute prima facie evidence of the existence of such remedy. The applicants referred to the case of Rawlinson (see paragraph 108 above) in support of their argument that judicial review, and not private-law proceedings, was the appropriate route to challenge arrest and detention decisions. However, it does not appear that the Divisional Court’s judgment in that case provides support for the general rule contended for by the applicants and the applicants did not point to any specific passage of that judgment which they contended could carry such an interpretation. Moreover, while in their initial application they claimed that it would have been impossible to obtain legal aid for private-law proceedings, as the Government pointed out (see paragraph 126 above), they were not excluded in principle from the possibility of applying for legal aid. In these circumstances; and in the absence of any cited authority or examples of a restrictive approach to the award of legal aid in cases such as the applicants’, the argument that legal aid would not have been available is wholly speculative.",
"137. Further, the Court is of the opinion that the applicants have failed to demonstrate that they were not able to renew their application for permission to bring judicial review to the Court of Appeal. The domestic judgment cited by the applicants and other judgments to which it refers (see paragraphs 115 - 119 above) are of little assistance, since the finding that a “criminal cause or matter” was at stake in those cases followed a careful discussion of the specific facts of the cases. The judgments themselves recognise the ambiguity surrounding the meaning of “criminal cause or matter”, with Lord Neuberger expressing the view that only the Supreme Court would be in a position to resolve the question (see paragraph 118 above). Subsequently, in Panesar, the Court of Appeal recognised the uncertainty and incoherence to which the existing, at times inconsistent, authorities had given rise (see paragraph 119 above). While the court in that case concluded that a “criminal cause of matter” was at stake, its conclusion followed a careful examination of section 59 of the Criminal Justice and Police Act 2001, the legislative provision in respect of which the proceedings had been brought. That provision is not implicated in the present case. Given the finding of the Divisional Court as to the private-law nature of the applicants’ claim, it cannot be said with any degree of certainty that the Court of Appeal would have found that the case concerned a “criminal cause or matter” and that that court accordingly had no jurisdiction in the case.",
"138. The rule of exhaustion in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. The fact that the applicants dispute the findings of the Divisional Court, adjudicating at first instance, as to the true nature of the claims advanced and the appropriate domestic remedy merely underlines the importance of review of that judgment by a more senior domestic court. The Court is satisfied that the Government have demonstrated the availability of remedies that were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, capable of providing redress in respect of the applicants’ complaint and offered reasonable prospects of success. The applicants have failed to establish that these remedies were inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from the requirement to pursue them.",
"139. The applicants’ complaints under Article 5 §§ 2 and 4 as regards provision of information by the police concerning the reasons for their arrest and detention are accordingly inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION AS REGARDS THE PROCEDURE FOR GRANTING WARRANTS OF FURTHER DETENTION",
"140. The applicants complained that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act (see paragraphs 100 - 103 above) was incompatible with Articles 5 § 4 and 6 § 1 because it allowed evidence to be given in closed session and made no provision for special advocates. The Court considers that the complaint falls to be examined under Article 5 § 4 of the Convention only, which reads:",
"“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"141. The Government contested the applicants’ argument.",
"A. Admissibility",
"142. The Government accepted that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented an appeal to the Court of Appeal in respect of this complaint. They did not argue that this complaint was inadmissible on non-exhaustion grounds.",
"143. The Court is satisfied that the application raises arguable issues under Article 5 § 4 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"144. The applicants conceded that they did not make an application at either hearing before the City of Westminster Magistrates’ Court for a special advocate but argued that the right to a special advocate should have been explicit in the legislation. They accepted that the procedural safeguards in Article 5 § 4 were not unvarying. However, they maintained that if both domestic and European courts had held that the provision of special advocates and sufficient information in open session were necessary to safeguard Article 5 rights of individuals where there had been an interference with those rights falling short of a deprivation of liberty, then it had to follow that at least that level of protection was to be afforded where a deprivation of liberty was at stake. The failure to provide disclosure to the applicants compounded the problem. In these circumstances, decisions were made, or might be made, almost entirely based on evidence given in closed session. In the applicants’ view, the Government had failed to justify their position that their case could be distinguished from that in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009).",
"(b) The Government",
"145. The Government argued that the procedural requirements of Article 5 § 4 were not unvarying but depended on the particular circumstances. They emphasised that the applicants’ case involved an extremely complex investigation into a suspected imminent terrorist attack.",
"146. Distinguishing A. and Others v. the United Kingdom, cited above, the Government pointed out that the applicants in the present case were detained for a total of thirteen days only and that the Article 5 § 4 requirements formulated in the context of the former case applied against the backdrop of lengthy or indefinite detention pending charge. Although the applicants had not been privy to all the information placed before the District Judges, they were not deprived of their Article 5 § 4 rights since (i) they were informed of the legal basis and reasons for their detention; (ii) they were legally represented and able to make submissions to the District Judges, as well as to call evidence or to cross-examine the police-officer witness; (iii) the more detailed explanation of the reasons for which detention was being sought was fully before the District Judges, even if it was withheld from the applicants; (iv) the procedure employed enabled the District Judges to be given a detailed explanation of the basis for suspicions so that they could ask questions and, if not satisfied, refuse to order detention; and (v) it was open to the District Judges to order the appointment of a special advocate if they considered it appropriate.",
"2. The Court’s assessment",
"(a) General principles",
"147. As the Court explained in A. and Others v. the United Kingdom, cited above, § 203, the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. As a general rule, an Article 5 § 4 procedure must have a judicial character but it is not always necessary that the procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation. The guarantees it provides must be appropriate to the type of deprivation of liberty in question.",
"148. A deprivation of liberty under Article 5 § 1 (c), as in the present case, is permitted where there is a reasonable suspicion that a person has committed an offence. A key question for a court reviewing the legality of detention is whether a reasonable suspicion exists. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon.",
"149. However, as the Court has explained, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court. Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter organised terrorism in discharge of their duty under the Convention to protect the right to life and the right to bodily security of members of the public. Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, §§ 32-34, Series A no. 182 ). It follows that Article 5 § 4 cannot require disclosure of such material or preclude the holding of a closed hearing to allow a court to consider confidential material. Pursuant to Article 5 § 4, the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able to participate effectively in court proceedings concerning continued detention.",
"(b) Application of the general principles to the facts of the case",
"150. In A. and Others v. the United Kingdom (cited above, § 216) the Court took as its starting-point that, at the time of the detention of the applicants in that case, there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack by al-Qaeda and a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information. The present case, like that in A. and Others v. the United Kingdom, concerned allegations of a planned large-scale terrorist attack which, if carried out, was likely to result in significant loss of life and serious injury. The applicants did not argue that the context of their arrests was inadequate to justify the holding of a closed hearing and restrictions on their right to disclosure. The Court is satisfied that the threat of an imminent terrorist attack, identified in the course of Operation Pathway, provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security.",
"151. In terms of the applicable legal framework governing proceedings for warrants of further detention, Schedule 8 to the 2000 Act sets out clear and detailed procedural rules. Thus, a detained person must be given notice of an application for a warrant of further detention and details of the grounds upon which further detention is sought. He is entitled to legal representation at the hearing and has the right to make written or oral submissions. The possibility of withholding specified information from the detained person and his lawyer is likewise provided for in Schedule 8 and is subject to the court’s authorisation. Schedule 8 also sets out the right of the court to order that a detained person and his lawyer be excluded from any part of a hearing. The grounds for granting a warrant of further detention are listed in Schedule 8 (see paragraphs 100 - 103 above).",
"152. The proceedings in the present case, which took place before the City of Westminster Magistrates’ Court, were judicial in nature and followed the procedure set out in Schedule 8. An application for the warrants of further detention was made and served on the applicants the day before each of the two hearings (see paragraphs 39 and 58 above). The majority of each application was disclosed, with only information in section 9 of the application, concerning the further inquiries to be made, being withheld (see paragraphs 40 and 58 above). That information was provided to the District Judge and the applicants were given reasons for the withholding of the information (see paragraph 42 above).",
"153. It is true that part of the hearing on 10 April 2009 was closed to enable the District Judge to scrutinise and ask questions about the section 9 material (see paragraph 41 above). However, as the House of Lords explained in Ward (see paragraph 105 above), the procedure in Schedule 8 allowing the court to exclude the applicants and their lawyers from any part of a hearing was conceived in the interests of the detained person, and not in the interests of the police. It enabled the court to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy itself, in the detained person’s best interests, that there were reasonable grounds for believing that further detention was necessary. The Court is further satisfied that the District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants (see, similarly, A. and Others v. the United Kingdom, cited above, § 218).",
"154. The applicants complain specifically of the failure of the Schedule 8 procedure to make provision for the appointment of a special advocate. However, it is clear from the judgment of the Divisional Court that the District Judge had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings (see paragraph 88 above). The applicants do not contest that finding. It is noteworthy that the applicants did not request the appointment of a special advocate at any stage in the proceedings in respect of either application.",
"155. At the open hearings, the senior police officer making the application explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized during the searches (see paragraphs 42 and 59 above). The applicants were legally represented and their solicitor was able to cross-examine the police-officer witness, and did so at the first hearing on 10 April 2009 (see paragraph 43 above).",
"156. In the light of the foregoing, the Court is satisfied that there was no unfairness in the proceedings leading to the grant of the warrants of further detention on 10 and 15 April 2009. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4 of the Convention.",
"157. There has accordingly been no violation of Article 5 § 4 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"158. The applicants complained that the searches of their premises violated their right to respect for their private lives and homes because: (i) the warrants permitted entry and search “on one occasion” only which could not be equated with continuous occupation; and (ii) the warrants were drawn too widely, thereby permitting search for, and seizure of, almost any item of property. They relied on Article 8 of the Convention, which provides:",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”",
"159. In respect of the latter complaint the applicants also relied on Article 1 of Protocol No. 1 but the Court considers that the matter is more appropriately examined from the standpoint of Article 8 of the Convention only.",
"160. The Government contested the argument that a violation of Article 8 had occurred.",
"A. Admissibility",
"1. The parties’ submissions",
"161. The Government argued that the complaint as to the manner in which the searches were carried out was inadmissible because the applicants had failed to exhaust available remedies. They referred again to the possibility of bringing a private-law remedy and to the failure of the applicants to seek permission from the Court of Appeal (see paragraphs 126 ‑ 127 above). In so far as Mr Sher complained about the search of his business premises, the Government pointed out that this complaint had not been raised at all in the domestic proceedings. However, the Government accepted that the complaint in respect of the scope of the search warrants was amenable to judicial review and that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented any appeal to the Court of Appeal.",
"162. The applicants claimed that it had long been settled law that search warrants could only be challenged in proceedings for judicial review, because it was the lawfulness of an order of the court that was challenged. They referred to domestic case-law (see paragraphs 109 - 112 above) and argued that the Divisional Court and the Government were wrong on this point. The applicants also relied again on the effect of section 18(1)(a) of the 1981 Act.",
"2. The Court’s assessment",
"163. The Court reiterates its comments as regards the subsidiary nature of the Convention mechanism (see paragraph 138 above). It is significant that the Divisional Court considered the manner of execution of the warrant to be a private-law issue unsuitable for judicial review proceedings (see paragraph 83 above).The cases to which the applicants referred, which concerned the issues surrounding the validity and quashing of search warrants, do not appear sufficient to displace the evidence provided by the Divisional Court’s judgment of the prima facie existence of an available and effective remedy. The Court further reiterates its comments in respect of the application of section 18(1)(1a) of the 1981 Act (see paragraph 137 above). The complaint in respect of the manner of execution of the warrant must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.",
"164. As regards the search of Mr Sher’s business premises, it is clear from the judgment of the Divisional Court that no relevant complaint was made in the domestic proceedings (see paragraph 73 above). This complaint must also be rejected, pursuant to Article 35 §§ 1 and 4, on account of the failure to exhaust domestic remedies.",
"165. Finally, the Court is satisfied that the complaint concerning the scope of the search warrants issued in respect of the applicants’ homes raises arguable issues under Article 8 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"166. The applicants maintained that the warrants were unjustifiably wide in scope.",
"(b) The Government",
"167. The Government accepted that the search of the applicants’ homes amounted to an interference with their Article 8 rights. The question was whether the reasons adduced to justify the measures were relevant and sufficient and whether the proportionality principle had been respected. The Government considered these conditions to be satisfied and made a number of points in this respect.",
"168. Firstly, they emphasised that the warrants were issued by a judicial authority which was satisfied that the relevant statutory criteria had been met, namely, that the warrants were sought for the purposes of a terrorist investigation; that there were reasonable grounds for believing that there would be material on the premises which was likely to be of substantial value to the investigation; and that the issue of a warrant was likely to be necessary in the circumstances of the case. Secondly, the warrants did not purport to grant authority to seize protected or privileged material. Thirdly, the warrant was expressly worded so that any constable was only authorised to seize articles in respect of which application had been made or to seize and retain “relevant” materials found during the search, thus excluding seizure or retention of material not justified by the terrorist investigation. Fourthly, the width of the description of relevant material was justified by the fact that the police had genuine and reasonable concerns about an imminent terrorist attack and elaborate reasoning as to precisely what items might prove to be relevant was not consistent with the urgency of the situation. The width was also justified by the nature of the investigation, which concerned a sophisticated terrorist plot in which different media (in particular electronic media) were reasonably suspected of being used by the plotters to communicate. Fifthly, the warrants and searches were subject to a further safeguard in the form of an ex post facto judicial review or claim for damages. In the present case the applicants were unable to identify any item seized or searched for that was not justified by reference to the particular nature of the investigation.",
"169. As regards the comments of the third-party intervener, the Government considered that they concerned an unjustified trawl and retention of personal data that was not the subject of the applicants’ complaint or the domestic proceedings. Notwithstanding the sincerity of the concerns raised, the Government maintained that there was no basis for concluding that searches of the applicants’ electronic data were not justified.",
"(c) The third-party intervener",
"170. The third-party intervener, Privacy International, focused its comments on searches of electronic devices, which entailed access to personal and communications data. It emphasised the innovations in technology which had resulted in previously unimagined forms of collecting, storing, sharing and analysing data. Access by law-enforcement officers to an individual’s electronic devices could enable access to everything that person had ever digitally touched, encompassing data not stored on the device itself but on external networked servers. The combination of data available could be extremely revelatory. In light of the particularly intrusive nature of searches of electronic devices, Privacy International argued for a high threshold when determining whether an interference with Article 8 rights was justified.",
"2. The Court’s assessment",
"171. It is not contested that the search of the applicants’ homes amounted to an interference with their right under paragraph 1 of Article 8 to respect for their private lives and homes.",
"172. The applicants did not dispute that the issue of the search warrants was “in accordance with the law” and in pursuit of a legitimate aim, as required by paragraph 2 of Article 8. The question for the Court is whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular, whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 57, ECHR 2007 ‑ IV ).",
"173. The warrant in the present case was issued by a District Judge in the Magistrates’ Court, in the context of criminal proceedings against the applicants on suspicion of involvement in terrorism. The police officer making the application confirmed that he had reasonable grounds for believing that the material at the addresses identified was likely to be of substantial value to a terrorism investigation and the judge agreed (see paragraph 33 - 35 above). The applicants did not suggest that there were no reasonable grounds for granting the warrant.",
"174. It is true that the search warrant was couched in relatively broad terms. While limiting the search and seizure of files to specific addresses, it authorised in a general and unlimited manner the search and seizure of correspondence, books, electronic equipment, financial documents and numerous other items. However, the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case depending on the nature of the allegations in question. Cases such as the present one, which involve allegations of a planned large-scale terrorist attack, pose particular challenges, since, while there may be sufficient evidence to give rise to a reasonable suspicion that an attack is under preparation, an absence of specific information about the intended nature of the attack or its targets make precise identification of items sought during a search impossible. Further, the complexity of such cases may justify a search based on terms that are wider than would otherwise be permissible. Multiple suspects and use of coded language, as in the present case, compound the difficulty faced by the police in seeking to identify in advance of the search the specific nature of the items and documents sought. Finally, the urgency of the situation cannot be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination. While searches of electronic devices raise particularly sensitive issues, and arguably require specific safeguards to protect against excessive interference with personal data, such searches were not the subject of the applicants’ complaints or the domestic proceedings in this case and, in consequence, no evidence has been led by the parties as to the presence or otherwise of such safeguards in English law.",
"175. Finally, it is of some relevance in the present case that the applicants had a remedy in respect of the seized items in the form of an ex post facto judicial review claim or a claim for damages (see paragraph 168 above). It is noteworthy that they did not seek to challenge the seizure of any specific item during the search, nor did they point to any item which they contend was seized or searched for unjustifiably by reference to the nature of the investigation.",
"176. For these reasons, the Court concludes that the search warrants in the present case cannot be regarded as having been excessively wide. The national authorities were therefore entitled to consider that the resultant “interference” with the applicants’ right to respect for their private lives and homes was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention."
] |
283 | Sher and Others v. the United Kingdom | 20 October 2015 | This case concerned the arrest and detention of the applicants, three Pakistani nationals, in the context of a counterterrorism operation. The applicants complained in particular about the search of their homes during their detention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life and home) of the Convention. It found in particular that the fight against terrorism and the urgency of the situation had justified a search of the applicants’ homes pursuant to a search warrant framed in relatively broad terms. Moreover, there had been sufficient safeguards against the risk of arbitrariness in respect of the search warrants, which had been issued by a judge, without the applicants suggesting that there had been no reasonable grounds for doing so. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix.",
"A. The applicants’ arrests and initial detention",
"7. On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway.",
"1. Mr Sher",
"8. Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions.",
"9. At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.",
"10. At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following:",
"“You are hereby informed that",
"...",
"SULTAN SHER",
"has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.”",
"11. Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence and that he had no representations to make at that time.",
"12. At 9.35 a.m. a further review of Mr Sher’s detention took place. Mr Sher was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"13. At around 4 p.m. Mr Yousaf was provided with a copy of a pre-interview briefing document (“brief”). The third paragraph of the brief stated:",
"“Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism Act 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit.”",
"14. It went on to list the names of twelve people under arrest at different locations and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase “as further intelligence associating individuals to various premises come to the attention of the investigative team”. It added:",
"“Your client should be made aware that such examinations of scenes will include searches for bomb-making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones ...”",
"15. It concluded:",
"“Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism ...”",
"16. At around 5 p.m. a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"17. Shortly after 6 p.m. a first police interview began. Mr Sher was asked detailed questions about the other people who had been arrested, the various premises being searched and his knowledge of bomb-making equipment. He made no comment in response to these questions. The interview lasted for around one and a half hours in total.",
"18. Shortly before midnight, a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"2. Mr Sharif",
"19. Mr Sharif was arrested at 5.37 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions and the applicant was informed of this.",
"20. At 11 p.m. a review of Mr Sharif’s detention was carried out by a senior police officer. Mr Sharif made no representations. His continued detention was authorised as necessary to secure and preserve evidence and to obtain evidence by questioning.",
"21. At 7.40 a.m. on 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Sharif in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.",
"22. At 9.50 a.m. a further review of Mr Sharif’s detention took place. Mr Sharif was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"23. At 4.50 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"24. At some point in the afternoon, Mr Sharif received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). He was subsequently interviewed for around half an hour and was asked in particular about the other people who had been arrested. He made no comment.",
"25. At 11.45 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"3. Mr Farooq",
"26. Mr Farooq was arrested at 5.35 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, the reasons for his detention were explained to him.",
"27. At around 9.45 p.m. a review of Mr Farooq’s detention was carried out by a senior police officer. Mr Farooq made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.",
"28. On 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Farooq in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.",
"29. At 9.15 a.m. a further review of Mr Farooq’s detention took place. Mr Farooq was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence.",
"30. At 5.40 p.m. a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"31. At some point in the afternoon, Mr Farooq received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). A subsequent police interview lasted for around half an hour and Mr Farooq was asked in particular about the other people who had been arrested. He made no comment.",
"32. Shortly before midnight, a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.",
"B. The search warrants",
"33. Meanwhile, on 8 April 2009, the police applied for and were granted search warrants by the Manchester Magistrates’ Court in respect of a number of addresses connected with the applicants. The police officer making the application indicated that he had reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation and that it had to be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.",
"34. The relevant material was defined as:",
"“Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA’s software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism ...”",
"35. Search warrants were granted in those terms. The warrants included these words:",
"“Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises ...”",
"36. The search of Mr Sher’s home address was conducted over a ten-day period between 8 April and 18 April. The search at his place of work was conducted between 11 and 14 April.",
"37. Mr Sharif and Mr Farooq shared an address. Their residence was the subject of a search between 8 April and 19 April.",
"38. In relation to all of the properties that were searched, the police went to the property first thing in the morning and worked in shifts until about 7 p.m. They then closed up the property and it was cordoned off. They resumed their work at the property again the next morning, and worked in this way until the search was concluded.",
"C. The applicants’ further detention",
"1. The first application for further detention",
"39. On 9 April 2009 the applicants were informed that an application would be made at the City of Westminster Magistrates’ Court for a warrant of further detention for the period of seven days beginning with the day of their arrest; and that a hearing would take place on 10 April. The notice of the application and the hearing went on to explain the following.",
"“Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000.”",
"40. The application to the City of Westminster Magistrates’ Court contained, at section 9 under a heading “Further Enquiries to be made”, a lengthy description of the police operation and the current state of play in the ongoing investigation. The section 9 material was not provided to the applicants or Mr Yousaf.",
"41. The hearing was fixed for 9.30 a.m. on 10 April 2009. Part of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material in section 9. The applicants and Mr Yousaf were therefore excluded from this part of the hearing. They made no complaint about the procedure at that time.",
"42. During the open part of the hearing, a senior police officer made an oral application for further detention which was reduced to writing and a copy of the note was provided to the applicants and to Mr Yousaf. The written note explained why the section 9 material was being withheld and provided some details of the police operation. It also gave details of all the property seized so far and explained that the investigation contained",
"“intelligence and evidence that support[ed] the premise that [the applicants] through significant association with other detained persons [were] conspiring to plan a terrorist attack within the UK”.",
"43. Mr Yousaf cross-examined the police officer during the hearing and did not complain of the applicants’ detention or suggest that they should not be further detained.",
"44. At 1.20 p.m. the District Judge granted the warrants for further detention until 15 April. The formal notification of the decision stated as follows.",
"“On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that:",
"...",
"(ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously;",
"(iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence ...”",
"2. The detention from 10 April to 15 April",
"(a) Mr Sher",
"45. On 10 April 2009 Mr Sher was provided with a second brief. It indicated that one of the other arrested suspects had said that he had lived with Mr Sher at two addresses and that he had knowledge of another arrested suspect. This document formed the basis of an interview with Mr Sher which began shortly after 6 p.m. and concluded one and a half hours later. During the interview, Mr Sher was asked about his acquaintance with some of the other arrested suspects and his familiarity with some of the searched premises. He made no reply to the questions put.",
"46. No interviews were carried out over 11 and 12 April, which was the Easter weekend.",
"47. On 13 April Mr Sher received a third brief which contained details of material found at various searched properties which could allegedly be linked to him. The brief was used as the basis of a further series of interviews which began at around 1 p.m. and lasted for about four hours in total. Again Mr Sher answered no comment to the points put to him.",
"48. On 14 April Mr Sher and his solicitor were provided with a fourth brief. It identified a number of items which were said to be “areas of interest” to the investigation, including: text messages between detainees; maps outlining designated areas of interest which significant numbers of the public would be expected to frequent; a detailed handwritten document depicting a militaristic zone abroad; access to and movements around the security industry including access to airports; mobile telephone use; international travel, including visits to Pakistan, and the purpose of travel; suspected reconnaissance at public locations; meetings of significance; and money transfers abroad. The document went on to state as follows.",
"“Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation.",
"The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing.”",
"49. Again, the document provided the basis of an interview with Mr Sher which began shortly before 1 p.m. and lasted for about an hour and twenty minutes. Mr Sher declined to comment.",
"(b) Mr Sharif",
"50. On 10 April 2009 Mr Sharif was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Sharif which began at around 4 p.m. and concluded one and a half hours later. During the interview, Mr Sharif was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.",
"51. Again, no interviews were carried out over the Easter weekend of 11 and 12 April.",
"52. On 13 April Mr Sharif received a third brief. It provided details of material found at his place of residence. The document was used as the basis of a further series of interviews which began at around 1.30 p.m. and lasted for about three hours in total. Mr Sharif answered no comment to the points put to him.",
"53. On 14 April Mr Sharif was provided with a fourth brief. It contained details of information provided by other detainees and otherwise reproduced the content of Mr Sher’s fourth brief (see paragraph 48 above). It provided the basis of an interview with Mr Sharif which lasted for about three hours. Mr Sharif declined to comment.",
"(c) Mr Farooq",
"54. On 10 April 2009 Mr Farooq was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Farooq which began at around 4 p.m. and concluded just over an hour later. During the interview, Mr Farooq was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.",
"55. Again, no interviews were carried out over the Easter weekend of 11 and 12 April.",
"56. On 13 April Mr Farooq received a third brief which set out details of exhibits recovered from properties linked to him. The briefing document was used as the basis of a further series of interviews which lasted for just over two hours. Again Mr Farooq answered no comment to the points put to him.",
"57. On 14 April Mr Farooq was provided with a fourth brief in terms almost identical to that provided to Mr Sharif (see paragraph 53 above). It provided the basis of an interview with Mr Farooq which lasted for just over an hour. Mr Farooq declined to comment.",
"3. The second application for further detention",
"58. On 14 April 2009 the applicants and Mr Yousaf were informed that an application had been made to the City of Westminster Magistrates’ Court to extend the warrants of further detention for a further seven days. Notification of this application was in similar terms to the earlier notice. Section 9 of the application, which was withheld from the applicants, contained detailed information on the background to the investigation, the associations of the applicants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. Under section 10, there was a list of bullet points under the heading “Reason Detention is Necessary Whilst Enquiries Made”, which included the need to await the conclusion of forensic searches and examination and the outcome of analyses instructed and the need to question the applicants concerning items found in their possession or at premises linked with them.",
"59. The application was heard on 15 April at around 9.30 a.m. and the applicants attended by video link. The hearing was entirely open. A senior police officer made the oral application, which had again been reduced to writing and provided to the applicants and Mr Yousaf. He said that the police operation in question was the most significant counterterrorism investigation since a plot in 2006 to cause explosions on aeroplanes through the use of liquid bombs, and that the North West Counter Terrorism Unit had never before undertaken an investigation of this size. He explained that searches had taken place at various properties and that only one scene had been completed and released. Three were awaiting results of forensic tests and seven scenes were still being searched. A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards and data storage devices; a large number of computers were being searched as well as DVDs and CDs; 127 phone or sim cards had been recovered and were being forensically examined, some with large memories. The application concluded by seeking the extension to the warrant on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence.",
"60. At around 10.15 a.m. the Senior District Judge granted the extensions sought. The formal notification in relation to each applicant confirmed in writing that the judge was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the applicants was necessary to obtain relevant evidence. The warrants were extended by seven days, until 22 April 2009.",
"4. The detention from 15 April to 21 April",
"(a) Mr Sher",
"61. Mr Sher was not interviewed on 15, 16, 17 or 18 April 2009. However, on 18 April, further briefs were provided. The documents referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:",
"“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”",
"62. The document referred specifically to a wordpad document recovered from a pen drive (“the Buddy email”), which appeared to be a personal email discussing the weather and plans for an Islamic wedding “after 15th and before 20th of this month”. The police believed this to be code and considered that it suggested an imminent attack. The document continued:",
"“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”",
"63. It identified various maps found with locations highlighted and photographs of public places in the North West of England. There was also a reference to a mobile phone belonging to another of the suspects which was found to contain Mr Sher’s telephone number.",
"64. The briefing formed the basis of a series of interviews on 19 April in which specific questions were put as to Mr Sher’s knowledge of these documents and the other materials. No answers were forthcoming. The total duration of the interviews was about four and a half hours.",
"65. On 20 April there was a final round of briefing documents, again referring to emails and computer communications, in particular via a specific and identified user name belonging to Mr Sher. In a subsequent interview lasting around one and a quarter hours, Mr Sher made no comment.",
"(b) Mr Sharif and Mr Farooq",
"66. Neither Mr Sharif nor Mr Farooq was interviewed on 15, 16 or 17 April 2009. A further brief was provided on 18 April to each of them. The document summarised information provided by some of the other detainees; set out details of significant text messages received and sent from mobile telephones which were either in the applicants’ possession at the time of their arrest or discovered during the search of their residences; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of interviews with Mr Sharif and Mr Farooq on 18 April lasting for a total of almost three hours and one and a half hours respectively. At the beginning of the interviews, Mr Sharif and Mr Farooq were told that the police believed that they had been conspiring with others to cause explosions. No responses were forthcoming during the interviews.",
"67. On 19 April the applicants and their solicitor received a final briefing document in similar terms in each case. The document referred to their arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:",
"“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”",
"68. The document referred to the Buddy email (see paragraph 62 above) and continued:",
"“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”",
"69. In subsequent interviews with each applicant lasting around one and a quarter hours, neither made any comment.",
"70. No interviews took place on 20 April.",
"D. The applicants’ release",
"71. On 21 April 2009 the applicants were released without charge and were served with deportation orders. They were then detained under immigration legislation and on 22 April were transferred into immigration service custody pending deportation.",
"E. The judicial review proceedings",
"72. On 26 June 2009 the applicants commenced two sets of judicial review proceedings. In the first, they sought to challenge the deportation orders. That action does not form the basis of their application to this Court. The other (“the second action”) was lodged against five defendants: (1) Greater Manchester Police (“GMP”); (2) West Yorkshire Police (“WYP”); (3) the City of Westminster Magistrates’ Court; (4) Manchester Magistrates’ Court; and (5) the Home Secretary. In their claim form, the applicants sought to challenge the legality of their treatment between 8 and 21 April. They contended in particular that their rights under Article 5 §§ 2 and 4 and Article 6 § 1 of the Convention had been breached because they had not been provided with sufficient information at the time of arrest or detention as to the nature of the allegations against them, and because of the closed procedure permitted when hearing applications for warrants of further detention. They further argued that the searches of their homes were unlawful because the search warrants had been granted in terms that were too wide, because the terms of the warrants had been breached in that, although the police had permission to undertake a search on one occasion, they had actually occupied the premises for many days, and because of the seizures themselves.",
"73. On 21 July 2009 permission to apply for judicial review in the second action was refused by the Divisional Court. The judge summarised the remedies sought as follows.",
"“3. The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms:",
"‘(1) A declaration that the arrest of all three claimants by the first defendant was unlawful.",
"(2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful.",
"(3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful.",
"(4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights.",
"(5) An order quashing the search warrants at the home addresses of the claimants.",
"(6) A declaration that ... the issuing of ... [search warrants for the home addresses of the applicants] by the fourth defendant was ... unlawful.",
"(7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful.",
"(8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized.",
"(9) Any other relief the court considers appropriate.",
"(10) Damages.",
"(11) Costs.’”",
"1. The complaints concerning the provision of information",
"74. As regards the applicants’ complaints concerning the provision of information from the police about the reasons for their arrest and detention, the police argued that a private-law remedy for wrongful arrest and wrongful imprisonment was open to the applicants and should have been pursued. The applicants insisted that judicial review was an appropriate remedy in respect of their complaints.",
"75. The judge held that judicial review was not the appropriate forum. The issues which arose were questions of fact which were not appropriate for judicial review proceedings. He explained the following.",
"“79. First, there is a pre-existing private law remedy available to these claimants against GMP and WYP. This is not a case where, if the claimants were not entitled to pursue judicial review proceedings, they would be left without a remedy. There can be no question of injustice if these proceedings were transferred to the QB [Queen’s Bench Division]: indeed, it is only if such a transfer occurred that the defendants could exercise their right to trial by jury.",
"80. Secondly, these claims involve potentially complex disputes of fact ... [S]uch fact-sensitive issues are wholly inappropriate for judicial review proceedings.",
"81. Thirdly, the claims being made by the claimants are historic ... There is therefore no reason for these proceedings to take up the judicial resources of the Administrative Court, which are required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. And although it is said that these issues are of public importance, that is not, without more, a reason to keep a fact-sensitive dispute, where there are obvious alternative remedies, in the Administrative Court.",
"82. I do not consider that the claimants’ complaint that there would be difficulties of public funding if the matter was transferred to the Queen’s Bench Division, or that the claimants may then be the subject of an application for security for costs, can have any relevance to the question of the proper forum for these claims. Judicial review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof. It would be wholly inappropriate to allow judicial review proceedings to become some sort of ‘costs-free’ civil jurisdiction, which gets a claimant to the same result as his private law remedies (regardless of the nature of the underlying dispute), but without the usual costs risks. I note too that the claimants say that public funding has not been readily available for these proceedings either, so that does not appear to be a material consideration in any event. The claimants would not have to return to the UK to give evidence in their private law action, which could instead be provided by way of video-link ...”",
"76. He concluded that the matters raised ought to be addressed in an ordinary private law action in which the potentially complex factual arguments could be properly determined. However, he added the following caveat:",
"“84. I make plain that this conclusion is subject to one point. If the claimants were able to demonstrate that there were other parts of these claims which were arguable, and in respect of which judicial review proceedings offered them their only remedy, then in circumstances where the underlying issue was the same – namely, whether or not the claimants were given sufficient information – it may be a pragmatic and flexible solution for all such matters to be dealt with together in one set of judicial review proceedings. Accordingly, it is important in the subsequent sections of this Judgment to identify whether or not there are any such arguable judicial review claims.”",
"77. He turned to consider the arguability of the judicial review claims against the police, in the event that he was wrong as to the appropriate forum. In that case, he said, the issue was whether, on the material before the court, permission to seek judicial review should be granted on the basis that no one properly directing himself as to the relevant law could reasonably have reached the decision to arrest and detain the applicants (what he called a typical Wednesbury argument).",
"78. The judge referred, inter alia, to this Court’s judgment in Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, Series A no. 182). He examined the lawfulness of the decision to arrest and commented as follows.",
"“91. Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.”",
"79. In the judge’s view, the applicants could only challenge the lawfulness of their actual arrest by way of judicial review proceedings if their case was that the arresting officers did not honestly suspect them of being terrorists or that such belief was unreasonable. Since the applicants did not allege the absence of reasonable suspicion, the lawfulness of the arrests could not be impugned and the application to seek judicial review of the decision to arrest them was “hopeless”.",
"80. Concerning the lawfulness of the decisions to detain the applicants for the first forty-eight hours, the judge stated as follows.",
"“94. The custody logs demonstrate that, during the first 38 hours of the claimants’ detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all.",
"95. That view is confirmed by a consideration of the documents provided to the claimants during this early period ... [O]n 9th April 2009 the claimants were given [the first brief] and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.”",
"81. In response to the applicants’ allegation that their detention after 10 April had been unlawful because it was on the basis of information solely derived from closed hearings, the judge emphasised that only part of the hearing on 10 April had been closed and that the hearing on 15 April had been entirely open. He considered that the applicants were being provided with sufficient information during this period to justify their continuing detention. He therefore viewed this part of the claim for judicial review as “fundamentally flawed”. He noted that counsel for the applicants repeatedly asserted that the basis for the applicants’ detention had never been explained to them, without ever attempting to engage with or address the contents of the various documents which had been provided to them. The judge continued as follows.",
"“98. [I]t is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co ‑ conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England.",
"99. [Counsel for the applicants] submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment ... I consider that that submission is wrong in principle. The whole purpose of those parts of the ... [2000 Act] is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the [2000 Act] to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4.",
"100. Of course ... the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was ... that directly linked them to these allegations.”",
"82. The judge concluded in respect of the provision of information that if, contrary to his view, judicial review proceedings against the police were appropriate, he would refuse permission as the claim was not arguable on the material provided. He accepted that the question whether the decisions of the City of Westminster Magistrates’ Court to issue warrants of further detention were unlawful because inadequate information had been provided to the applicants concerning the reasons for their continued detention was potentially a matter of public law. However, he was satisfied that the claim was “fanciful” and unarguable since sufficient information was provided in the documents and the open hearings for the applicants to know why they were being detained.",
"2. The complaints concerning the searches",
"(a) The manner of execution of the searches",
"83. In respect of allegations that the police had gone outside the terms of the search warrant by executing it over a number of days and of complaints about the seizures themselves, the police again argued that judicial review proceedings were not appropriate and that private-law proceedings should have been pursued by the applicants. The judge found this submission to be unarguably correct.",
"84. In any event, the judge held that even if these were matters for judicial review, there was no basis for concluding that the claim was arguable. He considered that the words “on one occasion” in the warrant authorised the police go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its occupiers. That was precisely what had happened here. The fact that the “occasion” lasted for more than one calendar day was irrelevant since there was nothing temporal about the word “occasion”. Further, the complaint that certain seized items had not been returned could and would have been resolved had the applicants followed the judicial review pre ‑ action protocol. Again, the judge concluded that if, contrary to his view, judicial review proceedings were appropriate, he would refuse permission as the claim was “hopeless”.",
"(b) The scope of the search warrants",
"85. As to the complaint that the warrants were too wide, a complaint which the judge found was amenable to judicial review, he observed that the criticism appeared to be that because the warrants contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. He rejected that submission for three reasons. Firstly, he considered the assertion to be too general, since a list that was too onerous in one case might be entirely appropriate in another. He continued as follows.",
"“109. Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation.",
"110. Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.”",
"86. He concluded that it was “inevitable” that in cases like this the warrants would be in relatively wide terms, explaining that the need to ensure public safety under the Terrorism Act 2000 required nothing less. He accordingly rejected the submission that the warrants were in terms that were too wide or that there was an arguable case that the decision to issue the warrants in those terms was unlawful or irrational.",
"3. The complaints concerning the procedure for issuing a warrant for further detention",
"87. Finally, the judge addressed the claim that the procedure for hearing applications for warrants of further detention in the 2000 Act was incompatible with Article 5 § 4 of the Convention because, although it allowed for a closed procedure, there was no system of special advocates in place. He found this to be a matter which, if it was appropriate to grant permission, would justify judicial review proceedings.",
"88. However, he considered the claim to be unarguable. He referred to the judgment of the House of Lords in Ward (see paragraphs 104 - 105 below) which, he said, made clear that the closed-hearing procedure was compatible with the Convention. He therefore rejected the submission that the provision of a special advocate was essential to ensure the fairness of the proceedings. He further noted that the applicants had not explained why the absence of express provision in the 2000 Act for a special advocate led inevitably to the conclusion that the scheme was incompatible with Article 5 § 4, since the District Judge could provide the necessary critical scrutiny in the interests of the person who was the subject of the proceedings. In any event, he held that such an advocate could have been appointed by the District Judge had such a course been considered necessary in the interests of justice. He noted that the applicants had not requested the appointment of a special advocate at either hearing. Finally, the judge considered the applicants’ case to be wrong on the facts since the warrants of further detention were not made entirely on the basis of closed information: only part of the 10 April hearing had been closed and the 15 April hearing had been entirely open. The claim for permission therefore failed both in principle and on the facts.",
"F. The applicants’ return to Pakistan",
"89. In September 2009, all three applicants voluntarily returned to Pakistan."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Arrest and detention under the Terrorism Act 2000",
"90. The 2000 Act allows for the arrest and detention without charge of suspected terrorists for a maximum of twenty-eight days. The relevant provisions are set out in more detail below.",
"1. Power of arrest",
"91. Section 41(1) of the 2000 Act allows a constable to arrest without a warrant a person whom he reasonably suspects to be a terrorist. The 2000 Act defines a terrorist as either someone who has committed an offence under certain sections of the Act (section 40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b)).",
"92. Terrorism itself is defined in section 1 of the Act in these terms:",
"“(1) ... the use or threat of action where–",
"(a) the action falls within subsection (2),",
"(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and",
"(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.”",
"93. Section 1(2) covers action which:",
"“(a) involves serious violence against a person,",
"(b) involves serious damage to property,",
"(c) endangers a person’s life, other than that of the person committing the action,",
"(d) creates a serious risk to the health or safety of the public or a section of the public, or",
"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.”",
"94. Pursuant to section 1(3), the use or threat of action which involves the use of firearms or explosives is terrorism, whether or not section 1(1)(b) is satisfied.",
"95. Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall, subject to the other provisions of the section and unless detained under any other power, be released not later than a period of forty-eight hours beginning with the time of his arrest under that section.",
"2. Periodic review",
"96. Schedule 8, Part II, of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act.",
"97. Pursuant to paragraph 21, a person’s detention should be periodically reviewed by a review officer. The first review should be carried out as soon as reasonably practicable after the time of the person’s arrest. Subsequent reviews must, except in specific limited cases, be carried out at intervals of not more than twelve hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court (see paragraph 100 below).",
"98. Paragraph 23 entitles a review officer to authorise a person’s continued detention only if satisfied that it is necessary (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence. Continued detention cannot be authorised under (a) or (b) unless the review officer is satisfied that the investigation is being conducted diligently and expeditiously. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism.",
"99. Pursuant to paragraph 26, before determining whether to authorise a person’s continued detention, a review officer must give the detained person or his solicitor an opportunity to make oral or written representations about the detention.",
"3. Warrants of further detention issued by a judicial authority",
"100. Paragraph 29 of Schedule 8 entitles a Crown Prosecutor or senior police officer to apply to a court for the issue of a warrant of further detention. Under paragraph 36, where the application is to extend the detention up to a maximum of fourteen days from the date of arrest, it can be made to a District Judge. Applications for further detention beyond fourteen days must be put before a High Court judge, who may authorise detention up to a maximum of twenty-eight days in total from the date of arrest. Section 41(7) of the 2000 Act provides that where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained during the period specified in the warrant.",
"101. Pursuant to paragraph 31 of Schedule 8, a detained person must be given notice of the application for a warrant of further detention and the grounds on which further detention is sought. Paragraph 33 allows the detained person an opportunity to make oral or written representations about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. Pursuant to paragraph 33(3), the court may exclude the detained person and his solicitor from any part of the hearing.",
"102. Paragraph 34 provides that the person who has made an application for a warrant may apply for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A court may make such an order only if satisfied that there are reasonable grounds for believing that, if the information were disclosed, evidence would be interfered with or harmed; the apprehension, prosecution or conviction of a suspected terrorist would be made more difficult as a result of his being alerted; the prevention of an act of terrorism would be made more difficult as a result of a person being alerted; the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; or a person would be interfered with or physically injured.",
"103. Paragraph 32(1) provides that a warrant of further detention may be issued only if there are reasonable grounds for believing that the further detention of the person is necessary and the investigation is being conducted diligently and expeditiously. Pursuant to paragraph 32(1A), the further detention of a person is “necessary” if it is necessary to obtain relevant evidence whether by questioning him or otherwise; to preserve relevant evidence; or pending the result of an examination or analysis of any relevant evidence. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism.",
"104. In Ward v. Police Service of Northern Ireland ([2007] UKHL 50), the House of Lords considered the fairness of the provisions of Schedule 8 in a case where the judge had excluded the appellant and his solicitor from a hearing on an application to extend a warrant of detention for about ten minutes to consider closed information. The appellant sought judicial review of the decision to grant the warrant of further detention and his claim was refused. His appeal to the House of Lords was subsequently dismissed. The Appellate Committee explained at the outset:",
"“11. Section 41 of the Act ... enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards. ...”",
"105. After careful consideration of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee stated as follows.",
"“27. ... [T]he procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.",
"28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. ...",
"29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. ...”",
"B. Search powers under the 2000 Act",
"106. Schedule 5 of the 2000 Act sets out powers relating to searches. Paragraph 1 of Schedule 5 allows a constable to apply to a justice of the peace for the issue of a warrant for the purposes of a terrorist investigation authorising any constable to enter premises, search them and seize and retain any relevant material found. Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value to a terrorist investigation and it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.",
"107. Paragraph 1(5) provides that a justice may grant an application if satisfied that the warrant is sought for the purposes of a terrorist investigation; that there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation; and that the issue of a warrant is likely to be necessary in the circumstances of the case.",
"C. Judicial review",
"1. Appropriateness of remedy",
"(a) Decisions to arrest and detain",
"108. In R (Rawlinson & Hunter Trustees and Others) v. Central Criminal Court & Anor [2012] EWHC (Admin) 2254, the claimant had been arrested and sought to challenge by way of judicial review the decision to arrest him. Although there was some discussion of whether judicial review was the appropriate forum, the police accepted that judicial review was the appropriate way to challenge the arrest decision and the Divisional Court agreed. It appears that the claimant had accepted in the proceedings before the court that there was no significant factual dispute between the parties and the claim could be resolved on the basis of the documentary evidence.",
"(b) Decisions to grant search warrants",
"109. In Bell v. Greater Manchester Police [2005] EWCA Civ 902, the claimant sought to challenge the validity of a search warrant in private law proceedings. He complained that the warrant had been obtained on a misleading basis and that it did not properly identify the material the subject of the search. The Court of Appeal agreed with the first-instance judge that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review.",
"110. In R (Goode) v. Crown Court at Nottingham [2013] EWHC 1726 (Admin) the Administrative Court said:",
"“51. The issue of a [search] warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another ...”",
"111. The court emphasised that while a seizure of property without judicial authority could be challenged in the Crown Court, a warrant issued with judicial authority could subsequently be quashed or declared unlawful only by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court.",
"112. In R (Lees and Others) v. Solihull Magistrates’ Court and Another [2013] EWHC 3779 (Admin), the Divisional Court, citing R (Goode), said that it was clear that the only forum for a challenge to the validity of a search warrant was in judicial review proceedings.",
"2. Appeal against a refusal to grant permission",
"113. Rule 52.15 of the Civil Procedure Rules (“CPR”) provides:",
"“(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.”",
"114. Section 18(1) of the Senior Courts Act 1981 provides, in so far as relevant:",
"“ No appeal shall lie to the Court of Appeal–",
"(a) ... from any judgment of the High Court in any criminal cause or matter”",
"115. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, the House of Lords decided that the refusal of an application for habeas corpus by a person arrested with a view to extradition was a decision in a “criminal cause or matter” (as set out in a predecessor Act). Viscount Simon LC held:",
"“This distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.”",
"116. Lord Wright explained:",
"“The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter.’ The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter ...”",
"117. Finally, Lord Porter held:",
"“... This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that the case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge ...”",
"118. In R (Guardian News and Media Ltd) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, a newspaper had unsuccessfully requested access to documents referred to by the Magistrates’ Court in extradition proceedings. The Divisional Court upheld the ruling of the District Judge. The question arose in the Court of Appeal whether the proceedings were a “criminal cause or matter”. The newspaper accepted that the extradition proceedings themselves were a “criminal cause or matter” but submitted that the order refusing journalistic access to the underlying material was not. Lord Neuberger, delivering the judgment of the court, undertook a review of the authorities in the area and considered that the newspaper’s application had been wholly collateral to the extradition proceedings and made by someone not a party to those proceedings. The order of the District Judge did not invoke the Magistrates’ Court’s criminal jurisdiction and had no bearing upon the criminal (i.e. extradition) proceedings themselves. Lord Neuberger expressed the opinion that “any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court” and concluded that the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence, was to hold that the Court of Appeal had jurisdiction to hear the appeal in the case.",
"119. In its December 2014 judgment in Panesar & Others v HM Revenue and Customs [2014] EWCA Civ 1613 the Court of Appeal considered the meaning of “criminal cause or matter” in a case concerning retention, under section 59 of the Criminal Justice and Police Act 2001, of property seized pursuant to search warrants that were subsequently quashed. The court found that the case concerned a “criminal cause or matter” and concluded that it had no jurisdiction to hear an appeal. The appellants were instead obliged to make their application to the Divisional Court for certification of a point of law of general importance and pursue their appeal to the Supreme Court. Lord Justice Burnett referred to the “ at times inconsistent authority on the meaning of ‘criminal cause or matter’” and acknowledged that the authorities on the meaning of “criminal cause or matter” had “given rise to some uncertainty and, as Lord Neuberger recognised in the Guardian case, some incoherence”.",
"D. The Human Rights Act 1998",
"120. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention.",
"121. Section 4 of the Act provides, in so far as relevant:",
"“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.",
"(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”",
"122. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:",
"“Subsection (1) does not apply to an act if–",
"(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or",
"(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”",
"123. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority.",
"124. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION IN RESPECT OF PROVISION OF INFORMATION",
"125. The applicants complained that they were not given adequate information by the police about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention. They relied on Article 5 §§ 2 and 4 of the Convention, which provide in so far as relevant as follows:",
"“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”",
"“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"A. Admissibility",
"1. The parties’ submissions",
"126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article 5 of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical.",
"127. Second, the Government argued that the applicants had failed to exhaust available remedies because they had not renewed their application for permission to bring judicial review to the Court of Appeal. The CPR made provision for renewal of an application for permission to the Court of Appeal under Rule 52.15(1) (see paragraph 113 above). Although section 18(1)(a) of the 1981 Act precluded such appeals in any “criminal cause or matter” (see paragraph 114 above), the Government did not agree that the applicants’ complaints before the Divisional Court concerned a “criminal cause or matter”. The Divisional Court had found that complaints in respect of the applicants’ arrest and initial detention should have been brought by private-law action and claims against the police, whether in judicial review or by way of private-law claims, were civil in nature.",
"128. The applicants did not accept that they could have brought a private-law action in respect of their complaints. In their view, the challenge brought could only have proceeded by way of judicial review. They referred to the Divisional Court’s judgment in Rawlinson (see paragraph 108 above) in support of their position that it was perfectly proper for matters of arrest and detention to be challenged by way of judicial review. They argued that it would not have been possible to seek a declaration of incompatibility as the basis for unlawful detention in a private-law action. They further contended that legal aid would have been impossible to obtain, particularly given budgetary cuts and the fact that the applicants were, by that stage, resident abroad.",
"129. The applicants also argued that, in light of section 18(1)(a) of the 1981 Act, they had no right to renew their application for permission before the Court of Appeal, permission having been refused by the Divisional Court in a “criminal cause or matter”. They insisted that there could be no doubt that all the matters that were before the Divisional Court were criminal causes or matters and referred to the Court of Appeal’s judgment in Panesar (see paragraph 119 above).",
"2. The Court’s assessment",
"130. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014 ).",
"131. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138).",
"132. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see also Gough, cited above § 139).",
"133. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; and Gough, cited above § 140).",
"134. In the present case the Government have argued that two remedies were open to the applicants to pursue further their complaints concerning the alleged inadequacy of the information provided to them at the time of their arrest and detention. The applicants contested the availability of either remedy on the facts of their case.",
"135. It is generally unsatisfactory for this Court to find itself in the position of being asked to pronounce on the correct interpretation of domestic law. Both the question whether the present complaint ought to have been pursued in private-law proceedings and the question whether it concerned a “criminal cause or matter”, thus excluding the jurisdiction of the Court of Appeal, are questions better resolved by the domestic courts. However, the Court is required to assess whether domestic remedies have been exhausted and where there is a dispute between the parties about the effectiveness of a particular remedy the Court will decide the matter in accordance with the principles outlined above (see paragraphs 130 - 133 ).",
"136. As regards the first question, the Divisional Court made its view that private-law proceedings were appropriate to challenge the arrest and detention decisions by the police in the applicants’ case very clear in its judgment. As noted above, it is in principle for the domestic courts to determine such questions and the finding of an independent and impartial superior court, such as that of the Divisional Court in the present case, that a remedy is available will generally constitute prima facie evidence of the existence of such remedy. The applicants referred to the case of Rawlinson (see paragraph 108 above) in support of their argument that judicial review, and not private-law proceedings, was the appropriate route to challenge arrest and detention decisions. However, it does not appear that the Divisional Court’s judgment in that case provides support for the general rule contended for by the applicants and the applicants did not point to any specific passage of that judgment which they contended could carry such an interpretation. Moreover, while in their initial application they claimed that it would have been impossible to obtain legal aid for private-law proceedings, as the Government pointed out (see paragraph 126 above), they were not excluded in principle from the possibility of applying for legal aid. In these circumstances; and in the absence of any cited authority or examples of a restrictive approach to the award of legal aid in cases such as the applicants’, the argument that legal aid would not have been available is wholly speculative.",
"137. Further, the Court is of the opinion that the applicants have failed to demonstrate that they were not able to renew their application for permission to bring judicial review to the Court of Appeal. The domestic judgment cited by the applicants and other judgments to which it refers (see paragraphs 115 - 119 above) are of little assistance, since the finding that a “criminal cause or matter” was at stake in those cases followed a careful discussion of the specific facts of the cases. The judgments themselves recognise the ambiguity surrounding the meaning of “criminal cause or matter”, with Lord Neuberger expressing the view that only the Supreme Court would be in a position to resolve the question (see paragraph 118 above). Subsequently, in Panesar, the Court of Appeal recognised the uncertainty and incoherence to which the existing, at times inconsistent, authorities had given rise (see paragraph 119 above). While the court in that case concluded that a “criminal cause of matter” was at stake, its conclusion followed a careful examination of section 59 of the Criminal Justice and Police Act 2001, the legislative provision in respect of which the proceedings had been brought. That provision is not implicated in the present case. Given the finding of the Divisional Court as to the private-law nature of the applicants’ claim, it cannot be said with any degree of certainty that the Court of Appeal would have found that the case concerned a “criminal cause or matter” and that that court accordingly had no jurisdiction in the case.",
"138. The rule of exhaustion in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. The fact that the applicants dispute the findings of the Divisional Court, adjudicating at first instance, as to the true nature of the claims advanced and the appropriate domestic remedy merely underlines the importance of review of that judgment by a more senior domestic court. The Court is satisfied that the Government have demonstrated the availability of remedies that were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, capable of providing redress in respect of the applicants’ complaint and offered reasonable prospects of success. The applicants have failed to establish that these remedies were inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from the requirement to pursue them.",
"139. The applicants’ complaints under Article 5 §§ 2 and 4 as regards provision of information by the police concerning the reasons for their arrest and detention are accordingly inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION AS REGARDS THE PROCEDURE FOR GRANTING WARRANTS OF FURTHER DETENTION",
"140. The applicants complained that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act (see paragraphs 100 - 103 above) was incompatible with Articles 5 § 4 and 6 § 1 because it allowed evidence to be given in closed session and made no provision for special advocates. The Court considers that the complaint falls to be examined under Article 5 § 4 of the Convention only, which reads:",
"“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”",
"141. The Government contested the applicants’ argument.",
"A. Admissibility",
"142. The Government accepted that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented an appeal to the Court of Appeal in respect of this complaint. They did not argue that this complaint was inadmissible on non-exhaustion grounds.",
"143. The Court is satisfied that the application raises arguable issues under Article 5 § 4 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"144. The applicants conceded that they did not make an application at either hearing before the City of Westminster Magistrates’ Court for a special advocate but argued that the right to a special advocate should have been explicit in the legislation. They accepted that the procedural safeguards in Article 5 § 4 were not unvarying. However, they maintained that if both domestic and European courts had held that the provision of special advocates and sufficient information in open session were necessary to safeguard Article 5 rights of individuals where there had been an interference with those rights falling short of a deprivation of liberty, then it had to follow that at least that level of protection was to be afforded where a deprivation of liberty was at stake. The failure to provide disclosure to the applicants compounded the problem. In these circumstances, decisions were made, or might be made, almost entirely based on evidence given in closed session. In the applicants’ view, the Government had failed to justify their position that their case could be distinguished from that in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009).",
"(b) The Government",
"145. The Government argued that the procedural requirements of Article 5 § 4 were not unvarying but depended on the particular circumstances. They emphasised that the applicants’ case involved an extremely complex investigation into a suspected imminent terrorist attack.",
"146. Distinguishing A. and Others v. the United Kingdom, cited above, the Government pointed out that the applicants in the present case were detained for a total of thirteen days only and that the Article 5 § 4 requirements formulated in the context of the former case applied against the backdrop of lengthy or indefinite detention pending charge. Although the applicants had not been privy to all the information placed before the District Judges, they were not deprived of their Article 5 § 4 rights since (i) they were informed of the legal basis and reasons for their detention; (ii) they were legally represented and able to make submissions to the District Judges, as well as to call evidence or to cross-examine the police-officer witness; (iii) the more detailed explanation of the reasons for which detention was being sought was fully before the District Judges, even if it was withheld from the applicants; (iv) the procedure employed enabled the District Judges to be given a detailed explanation of the basis for suspicions so that they could ask questions and, if not satisfied, refuse to order detention; and (v) it was open to the District Judges to order the appointment of a special advocate if they considered it appropriate.",
"2. The Court’s assessment",
"(a) General principles",
"147. As the Court explained in A. and Others v. the United Kingdom, cited above, § 203, the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. As a general rule, an Article 5 § 4 procedure must have a judicial character but it is not always necessary that the procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation. The guarantees it provides must be appropriate to the type of deprivation of liberty in question.",
"148. A deprivation of liberty under Article 5 § 1 (c), as in the present case, is permitted where there is a reasonable suspicion that a person has committed an offence. A key question for a court reviewing the legality of detention is whether a reasonable suspicion exists. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon.",
"149. However, as the Court has explained, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court. Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter organised terrorism in discharge of their duty under the Convention to protect the right to life and the right to bodily security of members of the public. Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, §§ 32-34, Series A no. 182 ). It follows that Article 5 § 4 cannot require disclosure of such material or preclude the holding of a closed hearing to allow a court to consider confidential material. Pursuant to Article 5 § 4, the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able to participate effectively in court proceedings concerning continued detention.",
"(b) Application of the general principles to the facts of the case",
"150. In A. and Others v. the United Kingdom (cited above, § 216) the Court took as its starting-point that, at the time of the detention of the applicants in that case, there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack by al-Qaeda and a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information. The present case, like that in A. and Others v. the United Kingdom, concerned allegations of a planned large-scale terrorist attack which, if carried out, was likely to result in significant loss of life and serious injury. The applicants did not argue that the context of their arrests was inadequate to justify the holding of a closed hearing and restrictions on their right to disclosure. The Court is satisfied that the threat of an imminent terrorist attack, identified in the course of Operation Pathway, provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security.",
"151. In terms of the applicable legal framework governing proceedings for warrants of further detention, Schedule 8 to the 2000 Act sets out clear and detailed procedural rules. Thus, a detained person must be given notice of an application for a warrant of further detention and details of the grounds upon which further detention is sought. He is entitled to legal representation at the hearing and has the right to make written or oral submissions. The possibility of withholding specified information from the detained person and his lawyer is likewise provided for in Schedule 8 and is subject to the court’s authorisation. Schedule 8 also sets out the right of the court to order that a detained person and his lawyer be excluded from any part of a hearing. The grounds for granting a warrant of further detention are listed in Schedule 8 (see paragraphs 100 - 103 above).",
"152. The proceedings in the present case, which took place before the City of Westminster Magistrates’ Court, were judicial in nature and followed the procedure set out in Schedule 8. An application for the warrants of further detention was made and served on the applicants the day before each of the two hearings (see paragraphs 39 and 58 above). The majority of each application was disclosed, with only information in section 9 of the application, concerning the further inquiries to be made, being withheld (see paragraphs 40 and 58 above). That information was provided to the District Judge and the applicants were given reasons for the withholding of the information (see paragraph 42 above).",
"153. It is true that part of the hearing on 10 April 2009 was closed to enable the District Judge to scrutinise and ask questions about the section 9 material (see paragraph 41 above). However, as the House of Lords explained in Ward (see paragraph 105 above), the procedure in Schedule 8 allowing the court to exclude the applicants and their lawyers from any part of a hearing was conceived in the interests of the detained person, and not in the interests of the police. It enabled the court to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy itself, in the detained person’s best interests, that there were reasonable grounds for believing that further detention was necessary. The Court is further satisfied that the District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants (see, similarly, A. and Others v. the United Kingdom, cited above, § 218).",
"154. The applicants complain specifically of the failure of the Schedule 8 procedure to make provision for the appointment of a special advocate. However, it is clear from the judgment of the Divisional Court that the District Judge had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings (see paragraph 88 above). The applicants do not contest that finding. It is noteworthy that the applicants did not request the appointment of a special advocate at any stage in the proceedings in respect of either application.",
"155. At the open hearings, the senior police officer making the application explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized during the searches (see paragraphs 42 and 59 above). The applicants were legally represented and their solicitor was able to cross-examine the police-officer witness, and did so at the first hearing on 10 April 2009 (see paragraph 43 above).",
"156. In the light of the foregoing, the Court is satisfied that there was no unfairness in the proceedings leading to the grant of the warrants of further detention on 10 and 15 April 2009. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4 of the Convention.",
"157. There has accordingly been no violation of Article 5 § 4 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"158. The applicants complained that the searches of their premises violated their right to respect for their private lives and homes because: (i) the warrants permitted entry and search “on one occasion” only which could not be equated with continuous occupation; and (ii) the warrants were drawn too widely, thereby permitting search for, and seizure of, almost any item of property. They relied on Article 8 of the Convention, which provides:",
"“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”",
"159. In respect of the latter complaint the applicants also relied on Article 1 of Protocol No. 1 but the Court considers that the matter is more appropriately examined from the standpoint of Article 8 of the Convention only.",
"160. The Government contested the argument that a violation of Article 8 had occurred.",
"A. Admissibility",
"1. The parties’ submissions",
"161. The Government argued that the complaint as to the manner in which the searches were carried out was inadmissible because the applicants had failed to exhaust available remedies. They referred again to the possibility of bringing a private-law remedy and to the failure of the applicants to seek permission from the Court of Appeal (see paragraphs 126 ‑ 127 above). In so far as Mr Sher complained about the search of his business premises, the Government pointed out that this complaint had not been raised at all in the domestic proceedings. However, the Government accepted that the complaint in respect of the scope of the search warrants was amenable to judicial review and that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented any appeal to the Court of Appeal.",
"162. The applicants claimed that it had long been settled law that search warrants could only be challenged in proceedings for judicial review, because it was the lawfulness of an order of the court that was challenged. They referred to domestic case-law (see paragraphs 109 - 112 above) and argued that the Divisional Court and the Government were wrong on this point. The applicants also relied again on the effect of section 18(1)(a) of the 1981 Act.",
"2. The Court’s assessment",
"163. The Court reiterates its comments as regards the subsidiary nature of the Convention mechanism (see paragraph 138 above). It is significant that the Divisional Court considered the manner of execution of the warrant to be a private-law issue unsuitable for judicial review proceedings (see paragraph 83 above).The cases to which the applicants referred, which concerned the issues surrounding the validity and quashing of search warrants, do not appear sufficient to displace the evidence provided by the Divisional Court’s judgment of the prima facie existence of an available and effective remedy. The Court further reiterates its comments in respect of the application of section 18(1)(1a) of the 1981 Act (see paragraph 137 above). The complaint in respect of the manner of execution of the warrant must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.",
"164. As regards the search of Mr Sher’s business premises, it is clear from the judgment of the Divisional Court that no relevant complaint was made in the domestic proceedings (see paragraph 73 above). This complaint must also be rejected, pursuant to Article 35 §§ 1 and 4, on account of the failure to exhaust domestic remedies.",
"165. Finally, the Court is satisfied that the complaint concerning the scope of the search warrants issued in respect of the applicants’ homes raises arguable issues under Article 8 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicants",
"166. The applicants maintained that the warrants were unjustifiably wide in scope.",
"(b) The Government",
"167. The Government accepted that the search of the applicants’ homes amounted to an interference with their Article 8 rights. The question was whether the reasons adduced to justify the measures were relevant and sufficient and whether the proportionality principle had been respected. The Government considered these conditions to be satisfied and made a number of points in this respect.",
"168. Firstly, they emphasised that the warrants were issued by a judicial authority which was satisfied that the relevant statutory criteria had been met, namely, that the warrants were sought for the purposes of a terrorist investigation; that there were reasonable grounds for believing that there would be material on the premises which was likely to be of substantial value to the investigation; and that the issue of a warrant was likely to be necessary in the circumstances of the case. Secondly, the warrants did not purport to grant authority to seize protected or privileged material. Thirdly, the warrant was expressly worded so that any constable was only authorised to seize articles in respect of which application had been made or to seize and retain “relevant” materials found during the search, thus excluding seizure or retention of material not justified by the terrorist investigation. Fourthly, the width of the description of relevant material was justified by the fact that the police had genuine and reasonable concerns about an imminent terrorist attack and elaborate reasoning as to precisely what items might prove to be relevant was not consistent with the urgency of the situation. The width was also justified by the nature of the investigation, which concerned a sophisticated terrorist plot in which different media (in particular electronic media) were reasonably suspected of being used by the plotters to communicate. Fifthly, the warrants and searches were subject to a further safeguard in the form of an ex post facto judicial review or claim for damages. In the present case the applicants were unable to identify any item seized or searched for that was not justified by reference to the particular nature of the investigation.",
"169. As regards the comments of the third-party intervener, the Government considered that they concerned an unjustified trawl and retention of personal data that was not the subject of the applicants’ complaint or the domestic proceedings. Notwithstanding the sincerity of the concerns raised, the Government maintained that there was no basis for concluding that searches of the applicants’ electronic data were not justified.",
"(c) The third-party intervener",
"170. The third-party intervener, Privacy International, focused its comments on searches of electronic devices, which entailed access to personal and communications data. It emphasised the innovations in technology which had resulted in previously unimagined forms of collecting, storing, sharing and analysing data. Access by law-enforcement officers to an individual’s electronic devices could enable access to everything that person had ever digitally touched, encompassing data not stored on the device itself but on external networked servers. The combination of data available could be extremely revelatory. In light of the particularly intrusive nature of searches of electronic devices, Privacy International argued for a high threshold when determining whether an interference with Article 8 rights was justified.",
"2. The Court’s assessment",
"171. It is not contested that the search of the applicants’ homes amounted to an interference with their right under paragraph 1 of Article 8 to respect for their private lives and homes.",
"172. The applicants did not dispute that the issue of the search warrants was “in accordance with the law” and in pursuit of a legitimate aim, as required by paragraph 2 of Article 8. The question for the Court is whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular, whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 57, ECHR 2007 ‑ IV ).",
"173. The warrant in the present case was issued by a District Judge in the Magistrates’ Court, in the context of criminal proceedings against the applicants on suspicion of involvement in terrorism. The police officer making the application confirmed that he had reasonable grounds for believing that the material at the addresses identified was likely to be of substantial value to a terrorism investigation and the judge agreed (see paragraph 33 - 35 above). The applicants did not suggest that there were no reasonable grounds for granting the warrant.",
"174. It is true that the search warrant was couched in relatively broad terms. While limiting the search and seizure of files to specific addresses, it authorised in a general and unlimited manner the search and seizure of correspondence, books, electronic equipment, financial documents and numerous other items. However, the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case depending on the nature of the allegations in question. Cases such as the present one, which involve allegations of a planned large-scale terrorist attack, pose particular challenges, since, while there may be sufficient evidence to give rise to a reasonable suspicion that an attack is under preparation, an absence of specific information about the intended nature of the attack or its targets make precise identification of items sought during a search impossible. Further, the complexity of such cases may justify a search based on terms that are wider than would otherwise be permissible. Multiple suspects and use of coded language, as in the present case, compound the difficulty faced by the police in seeking to identify in advance of the search the specific nature of the items and documents sought. Finally, the urgency of the situation cannot be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination. While searches of electronic devices raise particularly sensitive issues, and arguably require specific safeguards to protect against excessive interference with personal data, such searches were not the subject of the applicants’ complaints or the domestic proceedings in this case and, in consequence, no evidence has been led by the parties as to the presence or otherwise of such safeguards in English law.",
"175. Finally, it is of some relevance in the present case that the applicants had a remedy in respect of the seized items in the form of an ex post facto judicial review claim or a claim for damages (see paragraph 168 above). It is noteworthy that they did not seek to challenge the seizure of any specific item during the search, nor did they point to any item which they contend was seized or searched for unjustifiably by reference to the nature of the investigation.",
"176. For these reasons, the Court concludes that the search warrants in the present case cannot be regarded as having been excessively wide. The national authorities were therefore entitled to consider that the resultant “interference” with the applicants’ right to respect for their private lives and homes was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention."
] |
284 | Heaney and McGuinness v. Ireland | 21 December 2000 | The two applicants were arrested on suspicion of serious terrorist offences. After having been cautioned by police officers that they had the right to remain silent, they were requested under section 52 of the Offences Against the State Act 1939 to give details about their movements at the time of the relevant offences. The applicants complained that section 52 of the 1939 Act violated their rights to silence and against self-incrimination and inverted the presumption of innocence. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) and 6 § 2 (presumption of innocence) of the Convention. It found that the security and public order concerns invoked by the Irish Government could not justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention. Moreover, given the close link with the presumption of innocence guaranteed by Article 6 § 2, there had also been a violation of that provision. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"8. At approximately 4.10 a.m. on 23 October 1990 a large explosion occurred at a British Army/Royal Ulster Constabulary checkpoint in County Derry. Five British soldiers and one civilian were killed and a number of other British army personnel were seriously injured.",
"9. Approximately an hour and a half later, Irish police officers on surveillance duty noted a light in a house approximately four miles from the scene of the explosion. At approximately 6.05 a.m. on 24 October 1990 a warrant was obtained to search the house. At or around 7 a.m. that morning the police entered the house and found an assortment of gloves (rubber and knitted), balaclavas, caps and other clothing. The seven men in the house, including the owner and the applicants, were arrested and detained by the police under section 30 of the Offences against the State Act 1939 (“the 1939 Act”). As later noted by the High Court (see paragraph 15 below), it was suspected that the bombing had been carried out by the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the applicants were, in turn, suspected by the police of membership of that organisation and of involvement in the bombing.",
"10. Both applicants were cautioned by police officers in the usual terms, namely that they were not required to say anything unless they wished to do so and they were also informed that anything they did say would be taken down in writing and might be given in evidence against them.",
"Mr Heaney was then questioned about the bombing and about his presence in the house where he was arrested. He refused to answer the questions put to him. Police officers then read section 52 of the 1939 Act to him and he was requested pursuant to that section to give a full account of his movements and actions between 6 p.m. on 23 October and 6.55 a.m. on 24 October 1990. He refused to answer any questions.",
"Mr McGuinness was also questioned about the explosion and about his presence in the house where he was arrested. He refused to answer those questions. He was then requested to account for his movements between 1 a.m. and 7.15 a.m. on 24 October 1990. He refused to answer. Police officers then read section 52 of the 1939 Act to him and he was handed a copy of the section and asked to read it. He continued not to answer questions put to him.",
"11. On 25 October 1990 both applicants were brought to the Special Criminal Court in Dublin and charged with the offence of membership of an unlawful organisation (contrary to section 21 of the 1939 Act) and of failing to account for their movements (contrary to section 52 of the 1939 Act).",
"12. On 19 April 1991 the applicants' trial in the Special Criminal Court took place. On 26 June 1991 the applicants were acquitted of the charge of membership of an unlawful organisation but each was convicted of failing to provide an account of their movements during a specified period contrary to section 52 of the 1939 Act. The court rejected their arguments that section 52 must be read as including a right to refuse to provide such information on reasonable grounds and about the confusion caused by police officers giving the usual caution about the right to remain silent and then making a request for information under section 52 of the 1939 Act. Both applicants were sentenced to six months' imprisonment. Their sentences commenced on 26 June 1991. They were released on 10 November 1991.",
"13. The applicants then appealed against their conviction and sentence under section 52 to the Court of Criminal Appeal. As regards their conviction, they submitted that the Special Criminal Court had erred in finding that the applicants were not confused as a result of the caution about their right to remain silent and the conflicting request for information under section 52 by the same officers. They argued that section 52 should have been read as including the possibility of a refusal to give information based on reasonable excuse. As to their sentence, they argued that the confusion caused by the caution and request for information should have been a mitigating factor; that there was no evidence that they warranted the maximum sentence; and that the court failed to take into account the time the applicants had spent in custody prior to their trial.",
"14. On 3 May 1992 the applicants took proceedings in the High Court challenging the constitutionality of section 52 of the 1939 Act. The proceedings pending before the Court of Criminal Appeal were consequently adjourned.",
"15. By a judgment dated 24 June 1994, the High Court rejected their application. It based the applicants' right not to answer questions as regards their movements on Article 38 of the Constitution rather than on Article 40, noting that their case related to suspects in custody and not to accused persons on trial. However, it was considered that section 52 constituted a proportionate interference with the applicants' right to silence, the objective being to assist police investigations into serious crimes of a subversive nature involving the security of the State. In addition, the restrictions were not considered arbitrary or irrational.",
"The High Court also considered that the restriction did not excessively impair the right to silence given the objective pursued by section 52 and the other legal protections applicable to persons in custody under section 30 of the 1939 Act, which protections were afforded to minimise the risk of an accused wrongfully confessing to a crime and to safeguard against the possible abuse of the powers provided by section 52 of the 1939 Act. Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligation to inform the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to a court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act.",
"16. By a judgment dated 23 July 1996 the Supreme Court rejected the applicants' appeal, finding that section 52 of the 1939 Act was not inconsistent with the Constitution. It was noted that section 52 of the 1939 Act was silent on the use which could be made of statements provided pursuant to requests made under section 52. While the Court of Criminal Appeal had suggested in a previous case ( The People (Director of Public Prosecutions) v. McGowan [1979] Irish Reports 45) that information lawfully obtained under section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not.",
"The Supreme Court considered that the right to silence was a corollary to freedom of expression guaranteed by Article 40 of the Constitution and that the relevant assessment was to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made pursuant to section 35 of the 1939 Act remained in force.",
"As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those with something relevant to disclose concerning the commission of a crime to remain silent must be regarded as of an even lesser order. The Supreme Court concluded that the restriction in section 52 was proportionate to the State's entitlement to protect itself.",
"17. The applicants' appeal to the Court of Criminal Appeal in relation to their conviction under section 52 of the 1939 Act has been adjourned generally pending the outcome of the present application."
] | [
"II. RELEVANT DOMESTIC LAW",
"A. Pertinent Constitutional provisions",
"18. Article 38 § 1 of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions.",
"B. The Offences against the State Act 1939",
"19. The Offences against the State Act 1939 is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts.",
"20. Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act.",
"21. Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances' legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph).",
"22. Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the government made when the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date.",
"23. By section 36 of the 1939 Act the government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act.",
"24. Section 52 of the 1939 Act reads as follows:",
"“1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the [police] may demand of such person, at any time while he is so detained, a full account of such person's movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence.",
"2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the [police], fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”",
"25. Under the terms of the Good Friday Peace Agreement of 10 April 1998, the government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law Reform has, with government approval, established a committee to examine all aspects of the Offences against the State Acts and to report to the Minister with recommendations for reform. The committee has already commenced its work.",
"C. Relevant case-law",
"26. In the McGowan case cited above, the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The court did not find this argument persuasive since no section 52 requests had in fact been made. It went on to point out that, even if section 52 had been relied on by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings.",
"27. The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows:",
"“The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence.”",
"The judicial authority for that proposition was noted in the handbook as being found in the McGowan case cited above and the earlier Irish case-law approved in the McGowan case.",
"28. In the case of National Irish Bank Ltd ( In the matter of National Irish Bank Ltd and the Companies Act 1990, [1999] 1 Irish Law Reports Monthly 343) the Supreme Court found that a confession of a bank official obtained by inspectors as a result of the exercise by them of their powers under section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it.",
"THE LAW",
"i. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 2 OF THE CONVENTION",
"29. The applicants complained that section 52 of the 1939 Act violated their rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention and inverted the presumption of innocence guaranteed by Article 6 § 2. The relevant parts of Article 6 read as follows:",
"“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...",
"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”",
"A. The parties' submissions",
"1. The Government's submissions",
"30. The Government submitted, in the first place, that the applicants' complaints fell outside the scope of Article 6 §§ 1 and 2 of the Convention. They had had, for reasons outlined by the Government, a fair trial in respect of their conviction under section 52 of the 1939 Act. Since Article 6 provides protection of a procedural nature for the determination of a criminal charge, the applicants could not rely on Article 6 effectively to challenge the offence under section 52 itself. In addition, both were acquitted on the charge of membership of an illegal organisation so that they could not, in that respect, complain of a violation of the procedural guarantees of Article 6 of the Convention.",
"31. Secondly, the Government pointed to substantial safeguards which exist in order to minimise the risk that an individual may wrongfully confess to a crime, which safeguards were noted by the High Court in the present applicants' constitutional action (see paragraph 15 above).",
"32. Thirdly, the Government maintained that section 52 of the 1939 Act was a reasonable and appropriate measure given that that section did not provide for, or allow, the use in subsequent criminal proceedings against an accused of information obtained compulsorily from that person.",
"While the domestic courts in the applicants' case left the question open, if there were cases where information obtained pursuant to section 52 had been later introduced in evidence against the accused, the Government could not find any such case. They pointed out that the statement of the Court of Criminal Appeal in the McGowan case cited above on which the applicant relied was obiter dictum since no section 52 requests had been made of that accused. In any event, the matter was clarified for the future by the Supreme Court in its judgment of January 1999 in the National Irish Bank Ltd case cited above. That court found that compelling a person to confess and then convicting him on the basis of the compelled confession would be contrary to Article 38 of the Constitution. It also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial only if the trial judge considered, in all the circumstances of the case, that it would be just and fair to admit it.",
"33. Fourthly, the Government also considered that section 52 of the 1939 Act was a proportionate response given the security situation pertaining in the Irish State related to Northern Ireland and the consequent concerns to ensure the effective administration of justice and to preserve public peace and order.",
"The Government maintained that, as it is legitimate to impose sanctions in civil matters (such as, for example, taxation matters) when a citizen does not divulge information, the power to obtain information under threat of sanction is all the more necessary in criminal matters where the information sought could be essential for the investigation of serious and subversive crime. They noted that the applicants were suspected by the police of membership of the IRA and of having been involved in the bombing of 23 October 1990 and that their questioning under section 52 of the 1939 Act took place in the context of police investigations into that bombing, an explosion which caused the death and serious injury of many persons.",
"The Government emphasised that section 52 of the 1939 Act remained applicable only as long as a proclamation under section 35 of the 1939 Act was in force. As such, section 52 was a part of Irish law only as long as it was considered warranted by a subsisting terrorist and security threat. The Government summarised the duration and level of violence to the date of their observations, detailed recent bombings and other atrocities, referred to a public statement in December 1999 of the Continuity IRA (who are committed to continuing an armed campaign) and outlined recent weapons, explosives and vehicle bomb seizures. Consequently, they considered that the maintenance of the section 35 proclamation continued to be necessary. This necessity had been constantly reviewed, most recently in March 1998, when it was decided to maintain the proclamation in force, the Government noting, in this context, that the single worst atrocity of the entire period of the proclamation occurred in August 1998 when twenty-nine persons lost their lives in a bombing in Omagh. The Government also referred to their commitment as regards the Offences against the State Acts in the Good Friday Peace Agreement of 10 April 1998.",
"Moreover, the use of section 52 of the 1939 Act was strictly limited to arrests and detention under section 30 of that Act and the circumstances in which section 30 came into play were, in turn, strictly limited. The domestic courts were, in addition, vigilant in ensuring that the arrest powers under section 30 were not abused or used for improper purposes (The People (D.P.P.) v. Quilligan and O'Reilly [1986] Irish Reports 495 and The State ( Trimbole ) v. the Governor of Mountjoy Prison [1985] Irish Reports 550).",
"34. Finally, the Government distinguished the Saunders v. the United Kingdom judgment (17 December 1996, Reports of Judgments and Decisions 1996-VI) on the basis that the Court condemned the use at trial of evidence obtained from the accused under compulsion but not the means by which that evidence was initially obtained. They also distinguished the Funke v. France judgment ( 25 February 1993, Series A no. 256-A), pointing out that Mr Funke was subjected to a continuing sanction as long as he refused to provide the requested information. The John Murray v. the United Kingdom judgment (8 February 1996, Reports 1996-I) was also distinguished, the Government emphasising that Mr Murray's case related to the subsequent drawing of negative inferences from his silence during questioning whereas the present applicants were acquitted on the charges of membership of an unlawful organisation. The Government considered the Serves v. France case (judgment of 20 October 1997, Reports 1997-VI) to be similar to the present case but, nevertheless, also distinguishable in that Mr Serves's objection was premature because he refused to take the oath as a witness rather than being compelled to respond to questions.",
"2. The applicants' submissions",
"35. The applicants emphasised the precise nature of their complaints. Information was demanded of them while they were in police custody. On the one hand, they were warned that a failure to answer could itself entail a criminal conviction (section 52 of the 1939 Act) and, on the other, the police officers advised them of their right to remain silent (the standard caution).",
"They did not deny that the State was entitled to have certain information-gathering powers, but submitted that the State was not entitled to force a person to provide it and to use that information thereafter against that person. They relied on their rights to silence and against self-incrimination noting, as was accepted by the High Court in their case, that the fairness of a trial can be compromised because of what happened prior to it.",
"36. As to the domestic law applicable to the use against the accused of prior involuntary statements and the Government's reliance on the National Irish Bank Ltd case, the applicants pointed out that the legal position at the relevant time was that any information they provided could have been admissible in subsequent criminal proceedings against them and they referred, in this respect, to the judgments of the High and Supreme Courts in their constitutional proceedings.",
"In addition, they disputed the Government's interpretation of the judgment of the Supreme Court in the National Irish Bank Ltd case, pointing out that even after that judgment it is still not clear if involuntary confessions could be used in a subsequent trial or as a basis for gathering further evidence to be used in a subsequent trial. In the first place, the Supreme Court confirmed that Article 38 of the Irish Constitution required that any confession admitted against an accused person in a criminal trial should be a voluntary confession but that court did not, and did not have to, resolve the question of whether a test of proportionality could be applied to dilute the protection offered by Article 38 of the Constitution when, for example, national security matters are alleged to be at issue. The applicants considered this important as the domestic courts in their cases balanced the security concerns underlying the 1939 Act against their constitutional rights, an approach continued by the Government in their submissions to this Court. Secondly, the Supreme Court rejected the contention that no use at all could be made of any such confessions so that it would be for the trial judge to decide in all the circumstances of the case whether it would be fair to admit evidence obtained as a result of or in consequence of a compelled confession. This uncertainty is, according to the applicants, itself unacceptable under the Convention.",
"In any event, even if the National Irish Bank Ltd case did clarify the position as the Government alleged, it did not do so until January 1999, many years after the applicants were questioned and convicted under section 52 of the 1939 Act.",
"37. The applicants further considered the Government's reliance on matters of public security and proportionality to have been misplaced, noting that the Court in the Saunders case cited above pointed out that the public interest could not be relied on to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during later trial proceedings. In any event, the public policy and security concerns could have been addressed otherwise. Accordingly, if the purpose of the section 52 request was to prosecute the person to whom the request was made, certain negative inferences could have been drawn from that accused's silence (as in the John Murray case cited above) or if the objective of the section 52 request was to investigate a crime committed by others, the request could have been coupled with a clear immunity from prosecution in favour of the addressee of the request in respect of and based upon answers so provided.",
"38. As to the previous case-law of this Court referred to by the Government, the applicants pointed out that, inter alia, their punishment for not providing information placed them in an even worse position than Mr Funke (see the Funke judgment cited above): the demands were made of them in police custody; the request was for oral admissions and not for physical evidence which existed independently of the applicants as in Mr Funke's case; and they served substantial prison terms for refusing to provide the information requested. They were in a worse situation than Mr Murray (see the John Murray judgment cited above) since he was only sanctioned by the drawing of adverse inferences at his trial.",
"B. The Court's assessment",
"1. Applicability of Article 6 §§ 1 and 2 of the Convention",
"39. The Government argued that Article 6 could not apply to the applicants' complaints because of their later acquittal on the charge of membership of an unlawful organisation (“the substantive proceedings”) and because they had had a fair hearing in relation to the other charge under section 52 of the 1939 Act. The applicants considered that they are entitled to rely on Article 6 § 1 given that they were convicted of an offence and sentenced to imprisonment for having relied on their rights guaranteed by that Article.",
"40. The Court recalls its established case-law to the effect that, although not specifically mentioned in Article 6 of the Convention, the rights relied on by the applicants, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right in question is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (see the Saunders judgment cited above, p. 2064, § 68).",
"The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. The Court would note, in this context, that the present case does not concern a request, through the use of compulsory powers, of material which had an existence independent of the will of the applicants, such as documents or blood samples (ibid., pp. 2064-65, § 69).",
"41. The Court observes that the applicants complained under Article 6 of the Convention about having been punished, through the application of section 52 of the 1939 Act, for relying on their rights to silence, against self-incrimination and to be presumed innocent during police questioning in the course of a serious criminal investigation. It recalls that the autonomous meaning of the expression “charge” in Article 6 § 1 of the Convention means that a person can be considered to have been “charged” for the purposes of that Article when that individual's situation has been “substantially affected” (see the Serves judgment cited above, p. 2172, § 42).",
"42. While the present applicants had not yet been formally charged on 24 October 1990 when the section 52 requests were made, the Court considers that they were, at that stage, “substantially affected” and therefore “charged”, in the above-noted sense, with membership of the IRA and with some involvement in the bombing in October 1990.",
"The High Court noted that it was suspected that the bombing had been carried out by the IRA and that the applicants had been arrested on suspicion of membership of the IRA and of involvement in that bombing. The Government confirmed this in their observations. They were arrested within approximately twenty-four hours of the bombing in a house close to the site of the explosion while that house was being searched by the police on the basis of a warrant. They were expressly arrested and detained under section 30 of the 1939 Act. Having been cautioned, they were questioned, inter alia, about the bombing. The subsequent section 52 requests related to the applicants' movements around the time of that bombing.",
"43. However, it is true that, while the applicants may have been so charged within the meaning of Article 6 when the section 52 requests were made, they were acquitted in the substantive proceedings relating to the charge of membership of the IRA. The Court recalls that an accused's acquittal, in general, precludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6 (see, for example, Byrn v. Denmark, application no. 13156/87, Commission decision of 1 July 1992, Decisions and Reports 73, p. 5).",
"44. Nevertheless, the Court notes that this latter principle has been refined in certain circumstances.",
"Article 6 § 2 has already been applied, and violations of that provision found, in the Minelli and Sekanina cases (Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, and Sekanina v. Austria, judgment of 25 August 1993 Series A no. 266-A), even though the relevant national courts concerned had, in the former case, closed the proceedings because the limitation period had expired and had, in the latter case, acquitted the applicant. It has also found Article 6 § 2 to be applicable in respect of the public comments of police officers suggestive of an accused's guilt of charges even though the proceedings on those charges were subsequently discontinued (see the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, pp. 15-17, §§ 32-37). Moreover, while Mr Funke was convicted for not supplying information to the customs authorities, the criminal proceedings initially considered by those authorities as regards his financial dealings with other countries were never actually initiated against him (see the Funke judgment cited above).",
"45. In the Allenet de Ribemont case, the Court explained this refinement, pointing out that the Convention, including Article 6 § 2, must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see the Allenet de Ribemont judgment cited above, p. 16, § 35). Applying this approach to the present case, the Court observes that, if the applicants were unable to rely on Article 6, their acquittal in the substantive proceedings would exclude any consideration under Article 6 of their complaints that they had been, nevertheless, already punished prior to that acquittal for having defended what they considered to be their rights guaranteed by Article 6 of the Convention.",
"46. In such circumstances, the Court finds that the applicants can rely on Article 6 §§ 1 and 2 in respect of their conviction and imprisonment under section 52 of the 1939 Act.",
"2. Compliance with Article 6 §§ 1 and 2 of the Convention",
"47. The Court accepts that the right to silence and the right not to incriminate oneself guaranteed by Article 6 § 1 are not absolute rights (see the John Murray judgment cited above, pp. 49-50, § 47).",
"48. However, it is also recalled that Mr Funke's criminal conviction for refusing to provide information requested by the customs authorities was considered to amount to a violation of Article 6 § 1. In that case, the Court noted that the customs authorities had secured Mr Funke's conviction in order to obtain certain documents which they believed existed, although they were not certain of the fact. The Court found that the customs authorities, being unable or unwilling to procure them by some other means, attempted to compel Mr Funke himself to provide the evidence of offences he had allegedly committed. The special features of customs law were found insufficient by the Court to justify such an infringement of the right of anyone charged with a criminal offence, within the autonomous meaning of that expression in Article 6, to remain silent and not to contribute to incriminating himself (see the Funke judgment cited above, p. 22, § 44).",
"In the John Murray judgment, the Court described the Funke case, pointing out that the “degree of compulsion” which had been applied through the initiation of criminal proceedings against Mr Funke was found to have been incompatible with Article 6 because “in effect, it destroyed the very essence of the privilege against self-incrimination” (see the John Murray judgment cited above, p. 50, § 49).",
"49. The Government distinguished the Funke case from the present application on the basis of the sanctions imposed. The Court does not find this argument persuasive. The nature of the sanction inflicted on Mr Funke (accumulating fines) may have been different from that imposed in the present case (a single prison sentence). However, both cases concerned the threat and imposition of a criminal sanction on the applicants in question because they failed to supply information to authorities investigating the alleged commission of criminal offences by them.",
"50. However, the Government pointed out that section 52 of the 1939 Act should be considered against the background of the numerous protections available to persons in the applicants' position.",
"51. The Court notes that the High Court considered that such protections minimised the risk of accused persons wrongfully confessing to a crime and of an abuse of the powers conferred by section 52 of the 1939 Act. Important as they are, the Court is, however, of the view that such protections could only be relevant to the present complaints if they could effectively and sufficiently reduce the degree of compulsion imposed by section 52 of the 1939 Act to the extent that the essence of the rights at issue would not be impaired by that domestic provision. However, it is considered that the protections listed by the High Court, and subsequently raised by the Government before this Court, could not have had this effect. The application of section 52 of the 1939 Act in an entirely lawful manner and in circumstances which conformed with all of the safeguards referred to above could not change the choice presented by section 52 of the 1939 Act: either the information requested was provided by the applicants or they faced potentially six months' imprisonment.",
"52. The Government also maintained that section 52 of the 1939 Act was a reasonable measure given that a statement made pursuant to that section was not later admissible in evidence against its author and because any evidence obtained as a result of such a statement could only be admitted if the trial judge considered it fair and equitable to do so. The applicants essentially considered that any relevant indications in the domestic case-law prior to the National Irish Bank Ltd judgment cited above indicated that such section 52 statements could be later admitted in evidence against their author and that the latter case did not authoritatively clarify this question. In any event, the applicants pointed to the conflicting cautions given to them on 24 October 1990.",
"53. The Court considers that the legal position as regards the admission into evidence of section 52 statements was particularly uncertain in October 1990 when the applicants were questioned.",
"It notes that the text of section 52 of the 1939 Act is silent on this point. The Government did not refer to any domestic case-law prior to October 1990 which would have authoritatively excluded the later admission into evidence against the applicants of any statements made by them pursuant to those requests. Nor did the Government exclude the possibility that, prior to October 1990, statements made pursuant to section 52 had in fact been admitted in evidence against accused persons. The Government's position was rather that, in any event, the situation had been clarified for the future by the January 1999 judgment in the National Irish Bank Ltd case. This uncertainty about the domestic legal position in October 1990 is underlined by the comments of the Supreme Court in the present applicants' constitutional proceedings on the judgment of the Court of Criminal Appeal in the earlier McGowan case (see paragraphs 16 and 26-27 above).",
"In any event, the applicants were provided with conflicting information in this respect by the questioning police officers on 24 October 1990. At the beginning of their interviews they were informed that they had the right to remain silent. Nevertheless, when the section 52 requests were made during those interviews, they were then effectively informed that, if they did not account for their movements at particular times, they risked six months' imprisonment. The only reference during the interviews to the possible use of statements made by the applicants in any later proceedings was to inform them that anything they did say would be written down and might be used against them.",
"54. Given this uncertainty, the position in October 1990 as regards the later admission into evidence of section 52 statements could not have, in the Court's view, contributed to restoring the essence of the present applicant's rights to silence and against self-incrimination guaranteed by Article 6 of the Convention.",
"The Court is not, therefore, called upon in the present case to consider the impact on the rights to silence or against self-incrimination of the direct or indirect use made in later proceedings against an accused of statements made pursuant to section 52 of the 1939 Act.",
"55. Accordingly, the Court finds that the “degree of compulsion” imposed on the applicants by the application of section 52 of the 1939 Act with a view to compelling them to provide information relating to charges against them under that Act in effect destroyed the very essence of their privilege against self-incrimination and their right to remain silent.",
"56. The Government contended that section 52 of the 1939 Act is, nevertheless, a proportionate response to the subsisting terrorist and security threat given the need to ensure the proper administration of justice and the maintenance of public order and peace.",
"57. The Court has taken judicial notice of the security and public order concerns detailed by the Government.",
"However, the Court recalls that in the Saunders case (judgment cited above, pp. 2066-67, § 74) it found that the argument of the United Kingdom government that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could not justify such a marked departure in that case from one of the basic principles of a fair procedure. It considered that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, “apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex”. It concluded that the public interest could not be relied on to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings.",
"Moreover, the Court also recalls that the Brogan case (Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B) concerned the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The United Kingdom government had relied on the special security context of Northern Ireland to justify the length of the impugned detention periods under Article 5 § 3. The Court found that even the shortest periods of detention at issue in that case would have entailed consequences impairing the very essence of the relevant right protected by Article 5 § 3. It concluded that the fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not, on its own, sufficient to ensure compliance with the specific requirements of Article 5 § 3 of the Convention.",
"58. The Court, accordingly, finds that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention.",
"59. It concludes, therefore, that there has been a violation of the applicants' right to silence and their right not to incriminate themselves guaranteed by Article 6 § 1 of the Convention.",
"Moreover, given the close link, in this context, between those rights guaranteed by Article 6 § 1 of the Convention and the presumption of innocence guaranteed by Article 6 § 2 (see paragraph 40 above), the Court also concludes that there has been a violation of the latter provision.",
"iI. ALLEGED VIOLATION OF ARTICLES 8 and 10 OF THE CONVENTION",
"60. The applicants also complained that section 52 of the 1939 Act constituted a violation of their rights guaranteed by Article 8 (referring to the private life aspect of that provision) and by Article 10 of the Convention.",
"61. The relevant parts of Article 8 read as follows:",
"“1. Everyone has the right to respect for his private ... life ...",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”",
"The relevant parts of Article 10 read as follows:",
"“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...",
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for the protection of the ... rights of others ...”",
"62. The Government submitted that there had been no violation of either Article, pointing out that any interference with the applicants' rights under those Articles was in accordance with the law and proportionate to legitimate aims pursued, taking account of the margin of appreciation afforded to the State in such cases. The section 52 requests made of the applicants could have served either in the investigation of crimes of which the applicants were suspected or of crimes committed by others. Moreover, the background to the present case was the commission of an atrocity by subversives and, given the secrecy surrounding the activities of subversives, the Government considered it difficult to see how the relevant information could have been otherwise obtained.",
"The applicants referred to the correlative right not to speak or furnish information guaranteed by Article 10 and to their entitlement to maintain the privacy of their own personal lives and maintained that their conviction and sentencing under section 52 of the 1939 Act constituted a disproportionate interference with their rights protected by Articles 8 and 10 of the Convention.",
"63. The Court considers that the essential issue raised by the applicants was the compulsion imposed by section 52 of the 1939 Act to respond to the questions of police officers investigating the commission of a serious criminal offence, a matter considered above by the Court under Article 6 of the Convention. It does not consider therefore that the applicants' complaints under Articles 8 and 10 of the Convention give rise to any separate issue.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"64. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"65. The applicants did not claim that they had suffered any pecuniary damage.",
"66. They claimed compensation, however, for non-pecuniary damage. They pointed out that, as a direct result of section 52 of the 1939 Act, they were each convicted of a criminal offence and each served a substantial term of imprisonment (from 26 June to 10 November 1991 ). They therefore claimed 50,000 Irish pounds (IEP) for all “injuries” sustained and a further unspecified sum in compensation for the damage to their reputations and for the distress and anxiety suffered.",
"67. The Government argued that, in the absence of any substantiation of the alleged injuries, anxiety, distress or damage to their reputations, the Court should reject those claims. Alternatively, should the Court consider that the applicants had suffered some non-pecuniary damage as a result of their convictions and imprisonment, the Government maintained that a finding of a violation would be sufficient just satisfaction. Should, nevertheless, the Court award some damages as regards the injuries sustained as a result of their convictions and imprisonment, the Government submitted that this could be regarded as sufficient to cover any alleged damage to their reputation. The Government requested the Court to take into account, in considering the applicants' claims, that they were asked to account for their movements during an investigation into a bombing which resulted in the death and serious injury of several persons.",
"68. The Court observes that, as a direct consequence of the violation found in this case, each applicant was convicted of a criminal offence and spent from 26 June to 10 November 1991 in prison. It notes that neither applicant has attempted in any way to detail or substantiate the alleged impairment of reputations to which they referred, although it accepts that, as a result of his criminal conviction and imprisonment, each applicant experienced certain inconvenience, anxiety and distress.",
"The Court concludes that each applicant suffered non-pecuniary damage for which a finding of a violation does not afford just satisfaction. Making its assessment on a equitable basis, it awards each applicant IEP 4,000 in compensation for non-pecuniary damage.",
"B. Costs and expenses",
"69. The applicants initially claimed legal costs and expenses for both the domestic and Convention proceedings. The High and Supreme Courts had recommended that the legal costs and expenses before those courts be discharged by the “Attorney-General's Scheme”, but by letter dated 15 January 1999 the Attorney-General indicated that the proceedings were not of a type that fell within the relevant scheme. The applicants' counsel gave the opinion in August 1999 that the Attorney-General's refusal to cover those costs from the relevant scheme of legal aid was invalid. The Attorney-General then indicated, by a letter dated 24 February 2000, that the relevant scheme would in fact discharge the costs of the applicants' domestic proceedings, without prejudice to the Attorney-General's position that the scheme was not liable to do so. Accordingly, the applicants discontinued their claim before this Court for the costs of the domestic proceedings.",
"Their remaining claim relates to the costs of the Convention proceedings only and is made up of solicitors' costs in the sum of IEP 5,000, counsel's fees in the sum of IEP 2,250 and expenses of IEP 500 amounting to a total sum claimed (inclusive of value-added tax (VAT)) of IEP 9,377.50.",
"The Government accepted that, subject to certain items in the applicants' bill of costs being properly vouched (including counsel's fees), those fees were reasonable apart from two matters. They considered that a sum of IEP 250 would be more appropriate as regards outlay and they rejected the applicants' claim for costs regarding the preparation of a bill of the costs of the domestic proceedings, since the applicants withdrew their claim before this Court for the costs of those proceedings.",
"70. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).",
"The Court notes that the applicants did not pursue before this Court their claim for the costs of the domestic proceedings before the High and Supreme Courts, given the undertaking from the Attorney-General to discharge those legal costs and expenses out of the Attorney-General's Scheme.",
"As to the counsel's fees to which the Government refer, the Court considers the work completed by counsel for the Convention proceedings to be evident from the detailed bill of costs submitted by the applicants' solicitor and it notes that the Government did not in principle contest the amount claimed in respect of counsel. It also considers the outlay claimed to be reasonable as to quantum. As to the applicants' claim regarding time spent preparing a bill of the costs of the domestic proceedings for the purposes of their just satisfaction proposals to this Court, the Court notes that they were not informed that the costs of those proceedings would be discharged from the Attorney-General's scheme until they had prepared and submitted their just satisfaction proposals. Accordingly, the Court finds that the costs incurred and claimed in preparing the relevant bill of costs were necessarily and reasonably incurred.",
"71. Having regard to the foregoing, the Court awards to the applicants, in respect of their legal costs and expenses, the sums claimed by them namely, IEP 9,377.50 (which figure is inclusive of any VAT that may be chargeable) less the amount of legal aid paid by the Council of Europe to the applicants in the sum of 5,000 French francs.",
"C. Default interest",
"72. According to the information available to the Court, the statutory rate of interest applicable in Ireland at the date of adoption of the present judgment is 8% per annum."
] |
285 | El Haski v. Belgium | 25 September 2012 | This case concerned the arrest and conviction of a Moroccan national for participating in the activities of a terrorist group. The applicant complained in particular that his right to a fair trial had been violated because some of the statements used in evidence against him had allegedly been obtained in Morocco by means of treatment contrary to Article 3 (prohibition of torture or inhuman or degrading treatment) of the Convention. | The Court held that there had been a violation of Article 6 (right to a fair trial) of the Convention. Unlike the Belgian courts, the Court found that because of the context in which the statements had been taken, in order to make the criminal court exclude them as evidence it sufficed for the applicant to demonstrate the existence of a “real risk” that the statements concerned had been obtained using treatment contrary to Article 3. Article 6 of the Convention therefore required the domestic courts not to admit them as evidence without first making sure they had not been obtained by such methods. However, in rejecting the applicant’s request to exclude the statements the Court of Appeal simply noted that he had provided no “concrete proof” capable of shedding “reasonable doubt” on the evidence. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicant was born in 1975 and is detained in Andenne prison.",
"5. After studying the Koran and Sharia law, the applicant left his country of birth, Morocco, for Syria. He stayed there from 1993 to 2002 and studied Islamic theology and Arabic. During that period he travelled on several occasions to Morocco, Turkey and Saudi Arabia. He also visited Afghanistan twice, in 1994 and 1995, for a few months each time. He carried out military training there and – according to his application – took part in “a training programme for the military leader Hekmatyar”.",
"6. The applicant returned to Morocco in 2002. Under the surveillance of the Moroccan authorities, he left the country for Saudi Arabia, arriving there in October 2002. He only remained there until 2003 because – he alleged – he was “wanted by both Moroccan and Saudi intelligence services”.",
"7. The applicant reached Belgium via Turkey in early 2004, with false identity papers. He settled there with his Belgian wife and their son. He lodged an asylum application on 16 June 2004.",
"8. The applicant was arrested in Belgium on 1 July 2004. He was charged with participating, between 7 January and 2 July 2004, as a leader, in the activity of a terrorist group (the Moroccan Islamic Fighting Group, referred to hereinafter as “GICM” after its French name Groupe Islamique Combattant Marocain ), and with forgery, conspiring in a leading capacity to commit an offence, handling of stolen goods, use of a false name and illegal entry and residence.",
"A. The context of the applicant’s arrest",
"9. It can be seen from the report on the facts submitted on 26 April 2006 by the Federal Prosecutor before the Brussels Court of Appeal (see paragraph 27 below) and that court’s judgment of 19 January 2007 (see paragraphs 29-41 below) that, on 25 November 2002, the administrator-general of the State security service transmitted to the Federal Prosecutor’s office a report noting the presence in Belgium of a group of North African nationals with links to the GICM, made up of individuals who had undergone military training in Afghanistan in camps connected to Al-Qaeda and led by a certain “Shihab”, alias “Abdellah”. A second report dated 24 December 2002 indicated that B. was part of that group.",
"10. A judicial investigation was opened on 9 January 2003 against persons unknown on a charge of criminal conspiracy.",
"11. In a third report, dated 28 March 2003, the State security service informed the public prosecutor’s office that a certain O. was the individual known as “Shihab”, and that he had spent time in Afghanistan in 2001, where he had followed paramilitary training.",
"12. In connection with the investigation into the Casablanca bombings of 16 May 2003, which left about fifty people dead, the Moroccan authorities arrested a number of Islamist militants. During an interview on 8 August 2003, one of them, N., alias Abu Muad, who acknowledged that he was one of the leaders of the GICM and that he had contributed to organising the movement in 2001 in Afghanistan, stated that a certain H. and the applicant had been given responsibilities within the group. He added that after the Western intervention in Afghanistan in 2001 the movement had been split up into small units based in Morocco, France, Belgium, Italy, the United Kingdom and Canada, and that the Belgian unit included H., B. and O. in particular.",
"In view of those statements, and others made by another suspect on 9 August 2003, Morocco issued, on 3 October 2003, an international arrest and extradition warrant in respect of a number of individuals, including the applicant, H. and B., for, in particular, “conspiring to prepare and commit acts of terrorism, and collecting funds to support terrorist action”.",
"13. On 9 October 2003 the State security service transmitted a fourth report to the investigating judge concerning a certain I., who, on 17 November 2003 reported the loss of his passport to the Moroccan Consulate in Antwerp and applied for a new one. He subsequently stated that he had done so in order to obtain a passport for the applicant to be able to enter Belgium.",
"14. On 15 March 2004 the State security service issued a fifth report, indicating in particular that B.’s home had been placed under surveillance in the second half of January 2004 and that it was frequented by the applicant, his brother Hassan, O. and H.",
"15. On 16 March 2004 the Federal Prosecutor’s Office filed additional submissions against persons unknown on a charge of participating in terrorist activity.",
"16. On 19 March 2004 the federal police arrested H., O. and two other persons, after carrying out searches during which forged passports and Belgian identity cards for foreign residents, among other items, had been seized.",
"17. In the same period in France, in connection with a judicial investigation against persons unknown, opened on 19 May 2003 on a charge of conspiring to commit acts of terrorism, six individuals suspected of taking part in the GICM were arrested on 4 and 5 April 2004 (three of whom had been named in the Moroccan extradition warrant of 3 October 2003).",
"While they were in police custody, and again before the French investigating judges, the suspects made statements in particular about the international structure of GICM, the military training carried out by some of them in Afghanistan, their meeting in that country with those implicated in the Belgian proceedings, the role played by the latter in the GICM’s international structure and their activities in Belgium.",
"18. In a report of 1 June 2004, the State security service referred to its surveillance on 12 March 2004 of a snack bar (“Le Village”) in a suburb of Brussels.",
"19. A second wave of searches took place on 8 June 2004 and four individuals were arrested.",
"20. On 26 June 2004, B., who had been arrested in the Netherlands on 27 January 2004 on the basis of a Moroccan warrant of October 2003, was extradited to Belgium.",
"21. I. was arrested on 16 September 2004. Individuals with links to the applicant or to some of his co-defendants were also arrested in Spain in connection with the investigation into the Madrid bombings of 11 March 2004.",
"22. The last report of the State security service, dated 6 January 2005, indicated that a certain R. might also be linked to the suspects in the case.",
"B. The criminal proceedings",
"23. In a decision of 29 August 2005 the Committals Division ( chambre du conseil ) of the Brussels Court of First Instance committed the applicant and twelve others to stand trial before the Brussels Criminal Court for, in particular, participation in a terrorist group. On the same day, finding that the applicant had provided evidence of low income, it granted him legal aid so that he could receive a free copy of the entire case file.",
"24. Documents transmitted by the Moroccan authorities in response to an international letter of request were added to the file after the finalising of the pre-trial proceedings. They were reports of interviews with four of the suspects who were held in Morocco.",
"One of the reports concerned an interview on 14 January 2004 with a certain A., who had been arrested in Saudi Arabia and extradited on that date to Morocco. According to the indications in the Federal Prosecutor’s report on the facts (see paragraph 9 above), A. had stated, in particular, that he had met the applicant, who was a childhood friend of his, in Afghanistan in 1998, and then in 2000 had met the defendant H., while the latter was on a training course in the use of explosives and remote-controlled bombs. A. had added that, in early 2000, the GICM had been re-organised around committees, with the applicant chairing the religious affairs committee and H. being a member of the security committee. He had also explained that he had shared accommodation with the applicant for four months in Kabul in early 2001, in a “GICM guest house” where the group’s leaders would incite them to “go and carry out jihadist operations in Morocco”, and that after the Western intervention in 2001, he had travelled to Morocco, where he had taken part in GICM meetings accompanied, in particular, by the applicant; he had then met up with the applicant again in 2003 in Saudi Arabia. A. had also confirmed the existence of GICM units in France and Belgium, and the fact that B. and O., who he had seen in Afghanistan in 2000 and 2001 respectively, were involved in the Belgian unit.",
"1. Proceedings before the Brussels Criminal Court",
"25. The public prosecutor’s office set the case down for hearing on 3 November 2005 and then on 16 November 2005. The Criminal Court held a total of twenty-five hearings, which lasted from 3 November 2005 to 16 February 2006, when it sentenced the applicant to seven years’ imprisonment and a fine of 2,500 euros (EUR). It also handed down prison sentences and fines against eight of his co-defendants and acquitted the four others.",
"26. Five of the co-defendants – including the applicant – lodged an appeal, as did the Federal Prosecutor’s Office.",
"2. Proceedings before the Brussels Court of Appeal",
"(a) Judgment in absentia of 15 September 2006",
"27. The first hearing before the Brussels Court of Appeal was scheduled for 26 April 2006. After briefly questioning the applicant about his identity and the reason for his appeal, the President asked the Federal Prosecutor to give a report on the case. The latter proceeded to read out a report on the facts, extending to several dozen pages, which had been prepared by the Federal Prosecutor’s office (even though, the applicant claimed, the usual practice in Belgian criminal courts was for the report on the facts to be presented by a judge of the Court of Appeal). The Court of Appeal subsequently requested the public prosecutor to give his submissions, without there having been any further examination of the applicant or of witnesses.",
"In view of the voluminous nature of the case file (about a hundred binders containing thousands of pages), the co-defendants submitted in writing that the case should be adjourned until 1 September 2006. As the Court of Appeal denied that request, four of them, including the applicant, decided not to appear.",
"28. On 15 September 2006, ruling in absentia in respect of the four defendants, the Court of Appeal varied the judgment of 16 February 2006 and sentenced the applicant to eight years’ imprisonment and a fine of EUR 2,500. The applicant and two of his co-defendants applied to have the judgment set aside.",
"(b) Judgment of 19 January 2007",
"29. Some ten hearings were held between 6 October and 10 November 2006 and on 19 January 2007 the Brussels Court of Appeal confirmed the applicant’s guilt and his original sentence of seven years’ imprisonment and a EUR 2,500 fine.",
"(i) Criminal procedure issues",
"...",
"34. The defendants further protested against the addition to the case file of interview reports from France and Morocco. They argued that the statements had been obtained using treatment in breach of Article 3 of the Convention, adding that, in respect of the interviews conducted in Morocco, they were unlawful under Moroccan law. Invoking their right to a fair trial, they requested the Court of Appeal to remove them from the criminal case file.",
"...",
"36. As to the interviews conducted in Morocco, the Court of Appeal first noted that the defendants had not adduced any concrete evidence giving rise to reasonable doubt as to a possible breach of Moroccan law by the police or judicial authorities of that country in the proceedings from which the interview reports in question had emanated. The court found, in particular, that the interview reports recorded the statements in a detailed manner, mentioning the identity of the police officer by whom they were drawn up, the precise duration of the judicial custody periods and the fact that they had been authorised by the relevant public prosecutor. It further found as follows:",
"“... Moreover, the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ...",
"Lastly, it cannot be surmised from those interviews or from the Moroccan court decisions added to the file that ... the above-mentioned persons were questioned or sentenced after an expedited trial for participating in the Casablanca bombings, on the basis of a Moroccan Law of 28 May 2003 on the combating of terrorism that had been applied retroactively in breach both of Article 4 of the Moroccan Criminal Code and of the general principle that criminal legislation cannot have retrospective effect.",
"An examination of the Moroccan court decisions – and more specifically the judgment of the Rabat Assize Court – reveals, on the contrary, that the eight Moroccan defendants had initially been charged with setting up a criminal association for the preparation and commission of acts of terrorism, forgery of passports, and the collection of funds in aid of terrorist actions, on the basis of legislation that was unconnected with the above-mentioned Law of 28 May 2003.",
"It can be seen from the foregoing findings that the interview reports and Moroccan court decisions that were added to the file, with the possibility of being freely challenged by the parties, should not be excluded.",
"In addition, the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture.",
"Lastly, the Belgian trial courts are by no means bound by those statements and remain free to decide on their relevance and accuracy.”",
"...",
"(ii) Examination on the merits",
"39. In its judgment, the Court of Appeal began by showing that the GICM was a terrorist group within the meaning of Article 139 § 1 of the Criminal Code, explaining that it was an organised association of more than two people, established on a lasting basis, which engaged in concerted action for the purpose of committing terrorist offences covered by Article 137 of the Criminal Code. It observed in particular that the group had set up a coordination committee in Morocco and a number of cells in Europe, which had acted in a concerted manner to commit terrorist offences (in particular, homicide and widespread destruction or damage) with the aim of destroying by violence the fundamental structures of Morocco, so that the caliphate could be restored in that country, and of engaging in a holy war that would spread to other countries.",
"40. As regards, more specifically, the guilt of the applicant himself, the Court of Appeal first noted that “it [could] be seen with certainty from certain elements of the procedure” that he had taken part in the activity of a terrorist group, within the meaning of Article 140 § 1 of the Criminal Code, by taking a number of initiatives to facilitate transfers of funds that were necessary for the financing of the GICM’s unlawful activities, by circulating information about them and acting as a coordinator between the members of the Belgian and French cells, and that he was aware that such participation would contribute to the commission of a criminal offence. It thus concluded that there were a “number of sufficiently strong presumptions of fact”, with reference to the following evidence:",
"- statements made by individuals interviewed in Morocco and information from the Moroccan authorities;",
"- statements made by individuals interviewed in France;",
"- statements made by the applicant, from which it transpired that he had participated in GICM meetings in Europe;",
"- the fact that the applicant had made “a number of journeys in countries known for radical Islamist opinions developed by certain influential groups”, had “followed paramilitary training in Jalalabad” and had had “numerous contacts with individuals known for their close relations with extremist Islamist cells or active participation therein”;",
"- the applicant’s participation in the extremist activities of Islamist groups that were active on an international scale, based on an international arrest warrant issued against him by the Moroccan authorities in connection with an investigation into terrorist activities, and on the fact that he had fled Saudi Arabia, where he was suspected of taking part in the Riyadh bombings of 12 May 2003, for which an arrest warrant had also been delivered against him;",
"- his participation in training specifically given to Islamist terrorist groups, as inferred from his own statements and those of individuals held in Morocco;",
"- the applicant’s links with other members of the GICM’s Belgian cell.",
"The Court of Appeal then noted that the applicant was one of the GICM’s leaders, a fact that could be sufficiently inferred from the statements taken in Morocco and France and from his role as coordinator for the GICM members in Belgium.",
"41. Lastly, the Court of Appeal found that “the acts committed by the defendants fell clearly within the context of a movement whose aim was to further, by violence and intolerance, the cause of a radical form of Islam, directly threatening the religious and philosophical pluralism that existed in democratic societies and the fundamental rights of their citizens, such as freedom of thought and freedom of expression”, and that the sanction should be “commensurate with this very serious breach of public safety and democratic order”. In sentencing the applicant, the court added as follows:",
"“... It should be pointed out that the defendant played a major role within the GICM’s religious committee; that he was subsequently responsible for the Belgian and French cells of the GICM, together with the defendant [O].",
"As has already been mentioned, his duties in the Belgian cell mainly consisted in: directing the collection of funds that would serve to finance the group’s activities after the arrest of [N.]; playing a coordinating role between the members of the Belgian cell and those of the Belgian and French cells; and maintaining contact with numerous members of cells based in other countries.",
"The acts committed by the defendant are clearly of a serious nature because they were committed: by an individual who, in particular, travelled on numerous occasions to Afghanistan, Chechnya, Turkey, Mauritania, Saudi Arabia and Syria to establish international relations between the members of the various cells of the terrorist group; by a professional who followed military training in Afghanistan and training in group leadership and who dispensed religious training as part of the responsibilities entrusted to him within the GICM; by an extremist who has no respect for the physical integrity of others and who is prepared to undermine international public safety, by making possible the use of violent methods to ensure that his opinions prevail.",
"The features of the defendant’s personality, as can be seen from the case file, are a matter of concern. It should be pointed out in this connection that the defendant: has already been known for many years at an international level for his terrorist activities and is also wanted by the Moroccan judicial authorities under an international arrest warrant; resided illegally in Belgium for several months and did not lodge an asylum request with the aliens office until June 2004; cannot prove any means of subsistence and seems to survive only with the support of other members of the terrorist group. ..”",
"42. The applicant and some of his co-defendants appealed on points of law.",
"(c) Proceedings before the Court of Cassation",
"43. The Court of Cassation dismissed the appeal by a judgment of 27 June 2007. ...",
"44. As to the argument concerning treatment in breach of Article 3 that had allegedly been sustained by individuals whose statements had been taken in foreign countries, the Court of Cassation took the view that its examination would entail criticism of the factual assessment of the evidence in the case by the trial judge, or a request for verification of such evidence, and that it did not have jurisdiction in respect of such matters.",
"45. The court further found ... that, as a whole, the applicant had been given a fair trial within the meaning of Article 6 of the Convention.",
"III. MATERIAL ON THE HUMAN RIGHTS SITUATION IN MOROCCO",
"A. Findings and recommendations of the United Nations Committee against Torture and Human Rights Committee",
"50. In its conclusions and recommendations following the third periodic report of Morocco (CAT/C/CR/31/2; 5 February 2004), the United Nations Committee against Torture expressed its concern about, in particular, the increase in the number of allegations of torture and cruel, inhuman or degrading treatment or punishment, implicating the National Surveillance Directorate (DST) (§ 5.d) and the non-existence of a provision of criminal law prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 5.g). It recommended in particular: that the Criminal Code be amended such as to clearly prohibit any act of torture, even if perpetrated in exceptional circumstances or in response to an order received from a superior officer or public authority (§ 6.b), and to incorporate a provision prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 6.h); that all necessary measures be taken to eliminate impunity for public officials responsible for torture and cruel, inhuman or degrading treatment (§ 6.e); that all allegations of torture or cruel, inhuman or degrading treatment be immediately investigated impartially and thoroughly, especially allegations relating to cases and situations verified by the Independent Arbitration Commission and allegations implicating the DST in acts of torture, and that appropriate penalties be imposed on those responsible, with equitable compensation being granted to the victims.",
"51. The concluding observations of the United Nations Committee against Torture, having considered the fourth periodic report of Morocco (CAT/C/MAR/CO/4; 21 December 2011), read as follows:",
"“...",
"Use of torture in cases involving security concerns",
"10. The Committee is concerned by numerous allegations regarding torture and ill-treatment committed by police officers, prison staff and, in particular, agents of the National Surveillance Directorate (DST) who are acting as members of the criminal investigation police force when people are deprived of basic legal safeguards, such as access to legal counsel, particularly in the case of people who are suspected of belonging to terrorist networks or of being supporters of independence for Western Sahara and in the course of interrogations carried out in order to extract confessions from persons suspected of terrorism (arts. 2, 4, 11 and 15).",
"The State party should immediately take substantive steps to investigate acts of torture and to prosecute and punish those who have committed such acts. The State party should ensure that law enforcement officers do not engage in torture through, inter alia, an unambiguous reaffirmation of the absolute prohibition of torture and a public condemnation of that practice by, in particular, the police, prison personnel and members of DST. It should also be made very clear that anyone who commits such acts or is complicit or otherwise participates in such acts will be held personally responsible before the law and will be subject to criminal prosecution and the appropriate penalties. ...",
"Secret arrests and detention in cases involving security concerns",
"14. The Committee is concerned by reports that, in cases involving terrorism, legal procedures for arresting, questioning and holding suspects in custody are not always followed in practice. The Committee is also concerned by information pointing to a consistent pattern whereby suspects are arrested by plain-clothes officers who do not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amounts to incommunicado detention. The suspects are not officially registered and are subjected to torture and other cruel, inhuman or degrading treatment or punishment. They are held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families are not notified of their arrest, of their movements or of their whereabouts until such time as they are transferred to police custody in order to sign confessions that they have made under torture. It is only then that they are officially registered and their cases are processed through the regular justice system on the basis of falsified dates and information (arts. 2, 11, 12, 15 and 16). ...",
"The State party should ensure that the proper legal procedures are followed in the case of all persons who are arrested and taken into custody and that the basic safeguards provided for by law are applied, such as access for detained persons to legal counsel and to an independent physician, notification of their family of the arrest and of the location where they are being held and their appearance before a judge.",
"The State party should take steps to ensure that all register entries, transcripts and statements, and all other official records concerning a person’s arrest and detention are kept in the most rigorous manner possible and that all information regarding a person’s arrest and remand custody is recorded and confirmed by both the investigative police officers and the person concerned. The State party should ensure that prompt, thorough, impartial and effective investigations are conducted into all allegations of arbitrary arrest and detention and should bring those responsible to justice.",
"The State party should ensure that no one is held in a secret detention facility under its de facto effective control. As often emphasized by the Committee, detaining persons under such conditions constitutes a violation of the Convention. The State party should open a credible, impartial, effective investigation in order to determine if such places of detention exist. All places of detention should be subject to regular monitoring and supervision.",
"Prosecution of perpetrators of acts of torture and ill-treatment",
"16. The Committee is particularly concerned that it has received no reports to date of any person being convicted under article 231.1 of the Criminal Code of having committed acts of torture. It notes with concern that police officers are, at the most, prosecuted for assault or assault and battery, but not for torture, and that the information provided by the State party indicates that the administrative and disciplinary penalties imposed on officers for such acts do not seem to be commensurate with their seriousness. The Committee observes with concern that allegations of torture, despite their number and frequency, rarely give rise to investigations and prosecution and that a climate of impunity appears to have taken hold, given the failure to impose genuine disciplinary measures or to bring any significant number of criminal cases against State officials accused of committing acts specified in the Convention, including the gross, large-scale human rights violations that took place between 1956 and 1999 (arts. 2, 4 and 12).",
"The State party should ensure that any and all allegations of torture and of ill-treatment are promptly, effectively and impartially investigated and that the persons who have committed such acts are prosecuted and are given sentences that are commensurate with the grave nature of their acts, as provided for in article 4 of the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should also take steps to ensure that complainants and witnesses are effectively protected from any ill-treatment or act of intimidation related to their complaint or testimony.",
"Coerced confessions",
"17. The Committee is concerned by the fact that, under the State party’s current system of investigation, confessions are commonly used as evidence for purposes of prosecution and conviction. The Committee notes with concern that convictions in numerous criminal cases, including terrorism cases, are based on confessions, thus creating conditions that may provide more scope for the torture and ill-treatment of suspects (arts. 2 and 15).",
"The State party should take all steps necessary to ensure that criminal convictions are based on evidence other than the confession of the persons charged, especially when such persons retract their confessions during the trial, and to make certain that, except in cases involving charges of torture, statements made under torture are not invoked as evidence in any proceedings, in accordance with the Convention.",
"The State party is requested to review criminal convictions that have been based solely on confessions in order to identify cases in which the conviction was based on confessions obtained under torture or ill-treatment. The State party is also invited to take the appropriate remedial measures and to inform the Committee of its findings. ...”",
"52. In its final observations (CCPR/CO/82/MAR; 1 December 2004) on the fifth periodic report of Morocco, the United Nations Human Rights Committee was concerned, in particular, about “the numerous allegations of torture and ill ‑ treatment of detainees” and “the fact that the officials who [were] guilty of such acts [were] generally liable to disciplinary action only, where any sanction exist[ed]”. It further “note[d] with concern that no independent inquiries [were] conducted in police stations and other places of detention in order to guarantee that no torture or ill-treatment [took] place” (§ 14). The Committee also observed with concern that the independence of the judiciary was not fully guaranteed (§ 19) and that, according to numerous reports, the Terrorism Act of 28 May 2003 was being applied retroactively.",
"B. Reports by non-governmental organisations (“NGOs”)",
"53. In its report of 28 November 2005 entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”, which was referred to by the applicant before the Court, as previously before the domestic courts, Human Rights Watch examined the consequences of the Casablanca bombings of 16 May 2003. It made the following points:",
"“... The fragility of Morocco’s human rights progress was laid bare by the state’s response to Morocco’s first-ever mass terrorist attack. On the night of May 16, 2003, suicide bombers struck several locations in Casablanca, killing forty-five persons, including twelve attackers.",
"Less than one week later, parliament unanimously adopted an anti-terrorist law (Law 3/2003), which had been under debate since autumn 2002 and which raised numerous human rights concerns. The law extended the maximum duration of pre-arraignment detention from eight to twelve days in cases considered to involve terrorism. It also defined the term in a very broad manner. The law considers an act as terrorist if its ‘main objective is to disrupt public order by intimidation, force, violence, fear or terror’ and is composed of one or more acts listed in the article. These include, in addition to physical attacks on other persons, ‘the involvement in organized groups or congregations with the intent of committing an act of terrorism,’ and ‘the promulgation and dissemination of propaganda or advertisement in support of the above-mentioned acts.’ In the months following the Casablanca attacks, the government used this broad definition to convict hundreds of suspected members of terrorist cells, as well as several journalists accused of being apologists for terror.",
"Various human rights organizations documented widespread abuses of the rights of the more than 2,000 suspected Islamists detained by the security forces and the Moroccan courts in the weeks following the attacks in Casablanca. [Human Rights Watch referred to the following reports: Moroccan Human Rights Organization, ‘ Muhakamat ikhtal fiha mizan al-`adalah ’ (Trials in which the scales of justice have been tipped), Rabat, November 2003; Human Rights Watch, ‘Morocco: Human Rights at a Crossroads’, A Human Rights Watch Report, New York, October 2004; Amnesty International, Morocco/Western Sahara: ‘Briefing to the Committee against Torture’ (London, November 2003); Amnesty International, ‘Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre’; International Human Rights Federation, ‘ Les autorités marocaines à l’épreuve de terrorisme: la tentation de l’arbitraire ’, (Paris: FIDH, February 2004), no. 379.] Many were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions. The courts denied them their right to a fair hearing. They routinely refused defense motions to call witnesses, and refused to order medical examinations of those who claimed to have been tortured. Many were tried in haste and convicted before October 2003, when legal reforms took place giving defendants the right to appeal their conviction on the basis of the facts ...”",
"Human Rights Watch, commenting that the “crackdown on suspected [Islamist] militants after the Casablanca bombings constituted an alarming deterioration in rights conditions” and that, more generally, the “authorities instrumentalize[d] the courts to serve political ends”, also observed as follows:",
"“... The mistreatment and unfair trials of suspected militants who were rounded up after the suicide bombings of May 16, 2003, recalled in some ways the grave violations of the past ...",
"... while some of the suspects arrested in 2003 went missing in police custody for up to several months, they were all accounted for eventually. However, many were subjected to torture or mistreatment while under interrogation. Some were held in an unacknowledged detention center in Temara, a facility under the auspices of the National Surveillance Directorate ( Direction de la Surveillance du Territoire, DST). Some 900 of the suspects were sentenced to prison terms, many in hasty proceedings that did not provide defendants their basic due process rights. Seventeen were sentenced to death, sentences that have not been carried out yet. ...",
"Authorities have responded to reports of present-day abuses by characterizing them as isolated phenemona. [footnote: For example, [the] Justice Minister ... said abuses in the context of the round-up of terror suspects were ‘rare’ and ‘isolated,’ but vowed, ‘We will respond to reports of violations.’ ...] Mohamed VI, in an interview published in the Spanish daily El País on January 16, 2005, acknowledged the existence of ‘twenty cases of abuse’ that he said were being handled by the courts. No details of these twenty cases have been disclosed, to Human Rights Watch’s knowledge, making it difficult to verify whether and for what offenses officials were being held accountable.",
"Overall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [footnote: See the Concluding Observations of the Human Rights Committee on Morocco, November 5, 2004, CCPR/CO/82/MAR] shows that security forces continue to operate in a climate of impunity and disrespect for the law, and that the executive branch continues to exercise considerable influence over the courts. ...”",
"54. In the above-mentioned report, published in February 2004 and entitled “ mission internationale d’enquête – les autorités marocaines à l’épreuve du terrorisme : la tentation de l’arbitraire – violations flagrantes des droits de l’Homme dans la lutte anti-terroriste ” (international fact-finding mission – the Moroccan authorities’ response to terrorism: the temptation to act arbitrarily – flagrant human rights violations in the counter-terrorism context”, the International Human Rights Federation (FIDH) analysed the human rights situation in Morocco in the context of the crackdown on terrorism after the bombings of 16 May 2003. It reported that there had been thousands of arrests, many of which were illegal, followed by numerous cases of arbitrary deprivations of liberty in secret centres. Chapter 2-4, entitled “torture and cruel, inhuman and degrading treatment”, reads as follows [translation by the Registry]:",
"“In such centres, interrogations are carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Morocco.",
"At the Témara centre, where most prisoners are taken after their arrest, ill-treatment, violence and torture is, by all accounts, common practice. The cells, situated in the basement, are lit day and night. When they move around, as well as during interrogation, the prisoners are blindfolded. Interrogations are often very long, 16 hours a day, we have been told, with police officers taking it in turns to interrogate.",
"Insults and blows are commonplace, with prisoners sometimes being stripped naked. A number of cases of electrical torture have been reported. 22 defendants from the Fikri group wrote in March 2003 to the AMDH to testify. ‘The cell at Témara where I was held had a high ceiling and a small window at the top with thick bars. There was a hole for a toilet and a bucket of water’. Having being assaulted during his arrest, and still having a sprained knee, the witness continued ‘I was in agony and was asking for treatment, as my knee had become very swollen and blue. A warder then answered me “I’ll saw off your bloody knee, then”‘.",
"Abderrazek Fawzi had been held since his arrest on 18 September 2002 in a single cell with no windows. There was only a foam mattress and a dilapidated blanket lying on the floor. Blindfolded and handcuffed, he was ‘grilled’. ‘During that interrogation in Temara’, he wrote, ‘I was punched and kicked, humiliated and insulted and left with cigarette burns on my hands. These twice-daily practices resulted in physical and mental suffering, of which I still have obvious signs, not to mention the nightmares and lack of sleep’.",
"‘... They took me in secret to Tamara, where I underwent a number of interrogations using terrible methods because I would never see the sun again, according to them’, said Salah Zarli. ‘I acknowledged that I had been to Afghanistan. They asked me to work with them to better understand the “Afghans”, especially the Afghan Moroccans and the Islamists in Milan, where I worked at the Islamic Institute. Four days later, they let me go and asked me to keep them informed.’ After being released, S. Zarli was arrested again on 3 September 2002: ‘Four people accompanied me home, searched everywhere and took away all my papers. Once again they took me to Temara, where they kept me a month and a half locked in a single cell that I would leave only for interrogation, which lasted 16 hours at a time; the interrogation began at 8 in the morning and went on until midnight. I was beaten all over, stripped naked, insulted, spat at, threatened and so on. All this without seeing the faces of my torturers. What interested them was the Islamists in Italy and those who were going to Afghanistan or Bosnia. They tried to bribe me by promising to help me set up a business.’",
"Cases of rape have been reported. Abdelghani Bentaous claimed to have been raped three times. Abdelmajid Rais said he was raped with a bottle and burned with cigarettes. Other detainees said they had been burned with cigarettes and suspended for hours or tortured by water-boarding.",
"Bouchaïeb Kermej told his sisters that, in addition to the beatings and threats, he had once been given an injection at the top of the spine, as a result of which he thought he must have fainted.",
"Several detainees who had refused to sign their statements were finally tortured into signing. This was claimed, for example, by Abdelghani Bentaous and Atchane to their lawyers and to the judge. ‘... Handcuffed and blindfolded, I was taken to the torture chamber where I was made to kneel and put my arms on my head to keep me like that during the long interrogation that followed. Whenever I hesitated and stuttered or made a mistake, I was beaten with a braided electric wire. I was struck on the head, back, soles of the feet, buttocks and thighs, also being slapped and punched on the face, which left me deaf in my left ear. A doctor then came to see me and prescribed medication. When I went back the torture room, one of the torturers tore my shirt off in front of my younger brother, who was screaming – I heard him but could not see him because I was still blindfolded. I was taken to torture sessions, where I spent the first night without sleeping because I was interrogated virtually non stop’ (Kamel Chtoubi).",
"The family of Mohamed Chtoubi has claimed that he was raped with a bottle and has insisted on telling us that he was denied treatment in Okasha prison even though he could no longer sit down, as they noticed during his trial. Mohamed Chtoubi was subjected to constant blackmail, being told: ‘confess and your brother will be released’.",
"‘The day I saw him’, his sister recounts, ‘his nose and mouth were distorted by the blows’.",
"‘They became more and more perverse as the nightmare went on’, recounted Mohamed Chtoubi, ‘threatening to rape my mother, my wife and my sisters in front of me. They did not, however, forget the physical torture, using electricity, hanging me, choking me with wet rags ... I was abandoned because my condition seriously deteriorated and I spent whole nights screaming after horrible nightmares haunted me as soon as I tried to sleep, as well as not being able to eat anything. They refused me sleeping pills, just like they refused to give me a Koran ... The most difficult thing was above all the fear of being raped, with which I was constantly threatened, and the screams of those being tortured ... After 40 days of this, I no longer knew what was going on or what I was saying or what I was doing ... One day in the month of Ramadan (November 2002) I removed the cover of my mattress to turn it into a rope, which I then tied to the window to hang myself ... My groans attracted the attention of the warders. The doctor who I was taken to see, blindfolded, told them that my low blood pressure could have serious consequences.’ At that point the prison directors summoned Mohamed Chtoubi to tell him than any other attempt on his part would cost him his life and that he would be ‘buried in the nearby forest without anyone knowing what became of him ...’. Three or four days later, new torturers took over with the same methods ...",
"Abderrahman Majdoubi, who was arrested in Tangiers on the night of 2 July 2002, spoke of a place where he was taken from the second day of his arrest, in the presence of five individuals ‘some of whom interrogated me and others beat me. One of them used the edge of a chopper to strike me and another a rubber-coated metal pipe to tap my knees ... then I was pulled and dragged along the ground to be taken to another cell where a torturer hit my face with his boots while his accomplice interrogated me ... In the evening, I was put into a car and when we arrived on the outskirts of Rabat, I was blindfolded.’ He found himself there in a situation of extreme violence and one of the torturers promised Abderrahman Majdoubi that by the time he got out he would weigh just a few kilos. ‘At night, I heard animal sounds ...’. On the same night, they resumed the interrogation with slapping and kicking and the threat of rape using a bottle, up until daybreak. ‘... The torture lasted for 20 days ... My knee hurt so badly that I prayed sitting down and I had to be taken to see a doctor. In that place, I spent my last three days, handcuffed and blindfolded. When I asked for some water for my ablutions and to say my prayers, I was told that I could do it without water and without moving ...’",
"Kamel Hanouichi, who was sentenced to the death penalty at the trial of Youssef Fikri, testified for his part that when he was taken to Témara, after being arrested in Casablanca, he was, like most of his accomplices, kept in solitary confinement, which was characterised by ‘conditions of extreme cold’. Once his fingerprints had been taken, Kamel Hanouichi did not escape the ritual of blindfolding and also had his feet bound. As he could not walk very quickly, he was beaten, even before being interrogated. ‘When they beat me on the arms and on the soles of my feet with electric cables as hard as rope it was still less painful than the idea that they could go through with their threat to rape my sisters ... for 15 days in a row I endured the same torture and the same questions: my life, my commitments, my friends – 15 days after which I was taken to another place still handcuffed and blindfolded. There I remained, from Thursday evening to Monday morning, in a stinking dirty cell with three other inmates in the same state as me and guarded 24-hours a day by three shifts of 10 to 12 warders. It was only on the Monday that we were examined by the investigating judge and sent to Okacha prison in Casablanca.’”",
"The FIDH further indicated that, according to its own findings, “acts of violence, including torture and cruel, inhuman and degrading treatment, committed against accused persons, together with breaches of the right to a fair trial, including defence rights ... [were] flagrant”. It noted in particular the hurried nature of the investigation phase and non-compliance with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It observed in particular as follows:",
"“... Apparently being bound by an immediate obligation to produce a result, investigating judges have clearly taken liberties with the provisions of Moroccan law: ‘the judicial investigation certainly took place in atrocious conditions, often after midnight and even at 3 or 4 in the morning’ said one lawyer. The accused would wait for hours in the police van, where they would occasionally be allowed to drink. As to the interrogation itself, it was based, according to a lawyer, on a questionnaire that was practically completed beforehand, and the accused had to be precise in answering. ‘Don’t talk to me about anything that’s not connected with the case’, a judge told an accused who was trying to give an explanation. The charges were sometimes supported only by a denunciation or a mention by a third-party or other accused person, usually following ill-treatment or torture. The files rarely contained documents proving possession of weapons or explosives or participation in prohibited associations. ...",
"According to the lawyers ..., the reports drafted by the investigating judges during the preliminary investigation stage were based mainly or exclusively on the reports of the DST, and the judges did not allow them to be challenged, or obliged some of the accused to sign them without being able to read them first ...",
"Neither the public prosecutor nor the investigating judge ordered a medical examination in any of the numerous sets of proceedings, which concerned, as has already been mentioned, hundreds of individuals. Such examinations would have constituted not only a safeguard for the accused, but also for the police officers accused of torture. Similarly, the lawyers found their requests for experts’ reports and for the summoning and appearance of witnesses systematically denied. ...",
"Before [the trial courts], the judges systematically refused to take account of the documents that the defence wished to present, or to hear witnesses for the defence and arrange confrontations that were necessary for the establishment of the facts, basing their findings exclusively on unilateral accusations that remained unsupported by evidence. Systematically, the courts first deferred the calling of witnesses until the end of the proceedings, then decided, after they had finished, to join the lawyers’ requests to the merits, delivering verdicts without ultimately allowing such hearings, even though they were guaranteed by a number of Articles (319, 430, 464, etc.) of the Code of Criminal Procedure. ...",
"It unfortunately goes without saying that all the defence’s objections concerning the above-mentioned violations occurring during the periods of police custody and judicial investigation, were also dismissed in all the sets of proceedings, without exception as far as we know. In this connection, no request for a medical opinion, in order to support the allegations of ill-treatment, was accepted. ...”",
"55. In the above-mentioned report, published on 24 June 2004 and entitled “Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre”, Amnesty International indicated in particular as follows:",
"“... The sharp rise in reported cases of torture or ill-treatment in the context of ‘counterterrorism’ measures in Morocco/Western Sahara since 2002 has been well documented. Reports on the subject have been published in recent months by Amnesty International and other international human rights organizations, as well as by Moroccan human rights groups, including the Moroccan Human Rights Association (Association marocaine des droits humains, AMDH), and the Moroccan Human Rights Organization (Organisation marocaine des droits humains, OMDH). Human rights lawyers and victim support groups such as the Forum for Truth and Justice (Forum pour la vérité et la justice, FVJ), have spoken out about the violations, and the Moroccan and international press have highlighted the problem in numerous articles.",
"The torture or ill-treatment is generally reported to take place in the custody of the security forces, particularly the Directorate for the Surveillance of the Territory (Direction de la surveillance du territoire, DST), and the police, where it is allegedly perpetrated in order to extract confessions or information, or to force the detainee to sign or thumb-print statements, the content of which they reject, deny or do not know.",
"The scores of people allegedly tortured or ill-treated have been among hundreds of Islamists or presumed Islamists arrested and detained on suspicion of belonging to ‘criminal gangs’ or of involvement in planning, inciting or carrying out violent acts. The arrests, numbering some 2,000 according to official sources, began in 2002 when the authorities began a clampdown on individuals accused of being part of groupings of Islamist activists who, in the case of one particular group, were planning bomb attacks or who had reportedly been involved in a number of targeted killings of people whose behaviour they disapproved of. Since May 2003, many of those arrested have been accused in connection with the bomb attacks in Casablanca on 16 May 2003, which killed 45 people, including the 12 assailants. Scores have been sentenced to long prison sentences and over a dozen to the death penalty following trials in which evidence reportedly extracted by torture or ill-treatment has been used to obtain convictions.",
"The detention centre of Témara, operated by the DST, is one of the main places where torture is reported to occur. Dozens of those arrested in the context of ‘counterterrorism’ measures have allegedly been subjected to torture or ill-treatment while being held there. Their detention at the centre has been both secret and unacknowledged, and consequently in breach of both Moroccan law and international human rights standards. ...”",
"Amnesty International reported that many former prisoners from Témara had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied. It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from the Témara centre to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply. As to the treatment inflicted, Amnesty International explained as follows:",
"“... The torture or ill-treatment has taken a number of forms during interrogation sessions. Some detainees have allegedly been blindfolded and handcuffed throughout the session; others have been stripped or suspended from the ceiling of the interrogation room in contorted positions. Many have reported being beaten around the body and the head with fists or an implement, such as a wooden stick or a metal ruler. Reports have also indicated that electricshock batons or live electrodes were applied to the body of some of the detainees. One former detainee, Abdellah Meski, told Amnesty International that he had his head repeatedly plunged into a sink containing water.",
"Some have reportedly had an object, such as a bottle, forcibly inserted into the anus or been threatened with this treatment and other sexual abuse. Some say that they were also threatened with the arrest and rape or other sexual abuse of their wife or other female relative. Some former detainees have even reported hearing screams which they believed at the time might have been those of a female relative in an adjoining room, but later, after leaving the Témara centre and confirming that no female relative had been detained there, concluded this might have been a tape recording meant to dupe them. ...",
"Former detainees have reported that, throughout their time at the Témara centre, whether for a few days or a few months, they were held in solitary confinement in basic cells, containing blankets on the floor rather than a bed, and a toilet and tap in one corner. They say they never saw other detainees and were not allowed outside the cell to enjoy fresh air or exercise. In addition, they were held in secret detention and denied contact with the outside world. Such conditions of detention may themselves amount to cruel, inhuman or degrading treatment, or even torture. ...”.",
"Amnesty International further noted that government officials had, in press interviews, stressed that no complaints were made about torture or ill-treatment or secret detention when detainees were brought before the prosecutor after the police custody, explaining that if such complaints were made following the initial questioning they were dismissed as being merely a means of defence. On the first point, Amnesty International explained this situation by the fact, in particular, that the judicial authorities failed to inform the persons concerned of their right to be assisted by a lawyer and that, appearing alone, many were unaware that they were entitled to make such a complaint. On the second point, it criticised the judicial authorities’ attitude as follows:",
"“... When, during the pre-trial investigation, they have appeared again before the examining magistrate for detailed questioning, they have in many cases complained about the alleged torture or ill-treatment or secret detention. When their cases have come to court, many of the accused have complained again, this time in front of the trial judges, about the treatment they were subjected to and the illegally prolonged nature of the period of garde à vue. Defence lawyers have requested that family members who witnessed the arrests and police officers who drew up the police statements be called to testify before the court to help establish the facts surrounding the contested arrest dates and the circumstances in which declarations were made to the police. The requests have been systematically rejected, however, on the basis that the proposed testimonies did not relate directly to the alleged crimes.",
"Despite the persistent nature of allegations of torture or ill-treatment and secret detention, the judicial authorities appear to have repeatedly dismissed these allegations, without ordering investigations or medical examinations. Amnesty International is not aware of a single case in which an investigation or medical examination has been carried out. ...”",
"Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom. It added that during their trials many accused challenged evidence against them which had been taken from statements made by others who had been arrested and detained by the security forces on similar charges. Given the persistent allegations of statements being made to the security forces under duress, defence lawyers had requested that those who made statements be summoned to the court as witnesses in order to test the veracity of their evidence. Such requests had, however, been denied by the courts on a systematic basis."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"46. Articles 139 and 440 of the Belgian Criminal Code read as follows:",
"Article 139",
"“A terrorist group shall be defined as an organised association of more than two people, established on a lasting basis and engaged in concerted action with a view to the commission of terrorist offences covered by Article 137.",
"An organisation whose real purpose is solely of a political, trade union or philanthropic, philosophical or religious nature, or which solely pursues any other legitimate aim, cannot, as such, be considered a terrorist group within the meaning of paragraph 1.”",
"Article 140",
"“1. Anyone who participates in an activity of a terrorist group, including by providing information or material resources to that group or through any form of financing of a terrorist group’s activity, in the knowledge that such participation aids the commission of an offence by the terrorist group, shall be liable to a prison sentence of between five and ten years and to a fine of between one hundred euros and five thousand euros.",
"2. Leaders of terrorist groups shall be liable to a prison sentence of between fifteen and twenty years and to a fine of between one thousand euros and two hundred thousand euros.”",
"47. Section 13 of the Law of 9 December 2004 on international mutual legal assistance in criminal matters provides that:",
"It shall be prohibited to use in Belgian criminal proceedings any evidence:",
"1 o that has been illegally obtained in a foreign country, where the illegality:",
"– arises, under the law of the State in which the evidence has been gathered, from the breach of a procedural requirement prescribed on pain of nullity;",
"– vitiates the reliability of the evidence;",
"2 o or of which the use violates the right to a fair trial.”",
"...",
"THE LAW",
"...",
"II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"58. The applicant complained that the domestic courts had principally and essentially based his conviction for participation in a terrorist organisation on evidence that was vitiated and obtained in conditions that were incompatible with the requirements of the Convention. Alleging a violation of his right to a fair trial, he relied on Article 6 of the Convention, of which paragraphs 1 and 3 (d) read as follows:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”",
"“3. Everyone charged with a criminal offence has the following minimum rights: ...",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”",
"...",
"Secondly, he complained that, in finding that he had participated in a leading capacity in the activities of the Moroccan Islamic Fighting Group, the Brussels Court of Appeal, in breach of section 13 of the Belgian Mutual Legal Assistance Act of 9 December 2004, had based its findings decisively on statements that had been obtained in proceedings to which he was not a party, which had taken place in France and Morocco. ... Those statements, he claimed, had been made as a result of treatment in breach of Article 3 of the Convention.",
"...",
"A. The parties’ submissions",
"1. The Government",
"...",
"63. Thirdly, the Government asked the Court to dismiss the applicant’s argument that the Belgian courts had invoked statements that had been taken in France and Morocco in conditions that breached Article 3 of the Convention.",
"The Government did not dispute the fact that, according to the Court’s case-law, the use by a court of evidence thus obtained would entail a violation of Article 6 § 1, even if the admission of such evidence was not decisive in securing a conviction. In addition, referring in this connection to the judgment of the United Kingdom House of Lords in the case of A. and Others v. Secretary of State for the Home Department (no. 2) and to Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 10 December 1984, they took the view that this principle should also apply where the breach of Article 3 had not been committed by the respondent State.",
"64. Relying on that same judgment and provision, and also on the El Motassadeq judgment of 14 June 2005 of the Hanseatic Court of Appeal of Hamburg and on the Court’s case-law, the Government nevertheless argued that the exclusionary rule did not apply unless it was clear that the statements in question had been obtained by torture. In their opinion, it was incumbent upon the applicant first to adduce evidence in support of his allegation. In that connection, a mere suspicion was insufficient: the standard of proof “beyond reasonable doubt” applied, bearing in mind that such proof might “follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”; the applicant must at least be able to allege “on arguable grounds” that such evidence had been obtained as a result of torture.",
"The Government emphasised that the argument whereby an item of evidence had to be excluded if there was a “real risk” that it had been obtained by torture could not be upheld, in the light of the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They further observed that the “test of real risk” was in fact the test applied by the Court when it examined allegations of a potential violation of Article 3 in the event of the extradition or expulsion of an individual to a State where he might be subjected to treatment or punishment in breach of that Article. In cases such as the present, it was not a matter of determining whether there was a risk of such treatment, but whether such treatment had actually been inflicted on those individuals whose testimony was at issue.",
"65. In the Government’s submission, even supposing that the applicant’s allegations concerning the interviews carried out in France were “arguable”, within the meaning of the Court’s case-law, the Court of Appeal had found, after a detailed examination of the available documents, that it not been established that the French authorities had breached Article 3. The court had begun by finding, in the light of the documents from the French proceedings, that all the procedural safeguards and the rights of the persons interviewed had been respected (the right to be immediately informed of the “complaint” and of one’s rights in police custody, the right to request an examination by a doctor, the right to have a lawyer, etc.). It had then found that the conditions in which the impugned interviews had taken place were acceptable and that the allegations of violence, intimidation and torture or inhuman and degrading treatment on the part of the police officers at the time of arrest and questioning, judging from the statements in question and from the file, lacked credibility. It had moreover taken the view that it did not suffice for the applicant to refer to general considerations contained in reports by NGOs on the functioning of the French judicial system in order to show that there had been a breach of Article 3 of the Convention. The Government further pointed out that the French witnesses had not brought proceedings before the Court for a violation of that provision.",
"As regards the testimony taken in Morocco, the Government pointed out that the Court of Appeal had found that the applicant had not adduced the slightest evidence of a violation of Article 3. They draw attention to the following findings: “... the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ...”; and “... the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture”.",
"66. The Government were of the view that the authorities could not be criticised for failing to carry out an investigation into allegations that were so poorly substantiated.",
"They added that, before the Court, as before the domestic courts, the applicant had failed to adduce any concrete evidence to show that the impugned statements had been taken using torture and inhuman or degrading treatment.",
"2. The applicant",
"...",
"69. As regards the application in the present case of the rule that evidence obtained by means contrary to Article 3 must be excluded, the applicant was of the view that it also applied to evidence obtained by such means in a foreign country, if the object and purpose of the Convention were not to be meaningless. He had reached this conclusion in particular from the wording of Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, from the case-law of the Committee against Torture and from the above-cited A. and others judgment of the House of Lords.",
"70. The applicant further argued that the Government had been wrong to conclude from the above-cited Article 15 and the A. and others judgment that the burden of proof lay fully with him to show that the impugned statements had been obtained by a means contrary to Article 3.",
"He observed that the standard adopted by the House of Lords in A. and others consisted in ascertaining whether it was “established, by means of such diligent enquiries into the sources that it [was] practicable to carry out and on a balance of probabilities, that the information [had been] obtained under torture”, and that the highest British court seemed to have concluded that the reports of humanitarian organisations did not suffice to show the “established nature” of torture sustained by a complainant. In his view, having regard to the purpose of the Convention and the need for effective protection of fundamental rights, the burden of proof that lay with a defendant should not, however, be “inaccessible”: it should be considered sufficient for him or her to show the existence of a “real risk” that the evidence had been obtained by torture, and to produce for that purpose the reports of respectable NGOs indicating that, in the country in question, torture was practised systematically. To require a defendant to provide more concrete information when he or she had no means of investigating in a foreign country would be asking the impossible. In other words, the defendant should merely be required to show the “likelihood” of what he or she alleged. The applicant claimed that, for his part, he had made such a demonstration.",
"71. As regards the statements obtained in Morocco, the applicant claimed that it was not in dispute that this country had been severely criticised by both governmental and non-governmental organisations for torture and ill-treatment inflicted systematically on persons charged with acts of terrorism after the Casablanca bombings in May 2003. The individuals who had given the statements incriminating the applicant had precisely been prosecuted in that context and during that period.",
"He then pointed out that, before the Belgian courts, he had relied on the following evidence to show the existence of torture:",
"- Reports condemning a systematic practice of ill-treatment of suspects in the months following the Casablanca bombings, in particular the Human Rights Watch report of 2005 (entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”), which noted that, according to various human rights organisations, over 2,000 suspected Islamists had been detained, many in secret detention, for days or even weeks, and had been subjected by the police to various forms of ill-treatment, and in some cases torture, in order to extract confessions.",
"- The fact that the individuals in question had complained of acts of torture and inhuman or degrading treatment – in particular a certain N., who had apparently been arrested in Mauritania and had been held in secret detention for several months – and that the Moroccan authorities had not carried out any investigation in response to those allegations.",
"- The fact that they had been held in police custody for twelve days, under the Terrorism Act of 28 May 2003, applied retroactively.",
"- The fact that the Moroccan proceedings had taken place in a hurried manner, without the use of conventional methods of investigation.",
"...",
"73. In the applicant’s submission, in view of the likelihood of his allegations relating to the statements taken in Morocco and France, Article 6 of the Convention obliged the Belgian courts either to carry out investigations into those allegations – the principle of the prohibition of torture triggering an obligation to investigate – or to exclude the evidence in question.",
"B. Observations of third-party interveners",
"1. The United Kingdom Government",
"74. Referring to the Court’s case-law, the United Kingdom Government invited the Court to confirm the existence, for the purposes of Article 6 of the Convention, of an “exclusionary rule” on statements that had been obtained directly by torture, with the result that a violation of this Article should be found where the rule applied, irrespective of the overall fairness of the proceedings.",
"However, referring in particular to the decision in Sharkunov and Mezentsev v. Russia (no. 75330/01, 2 July 2009), they further asked the Court to confirm that the alleged torture had to be established “beyond reasonable doubt”, and that, while general evidence of the human rights situation in the country from where the statement had been obtained might well be sufficient to trigger an inquiry by the domestic court into the provenance of the statement in issue, this would rarely be sufficient to establish “beyond reasonable doubt” that a particular statement had been obtained using torture: evidence of a direct causal link would in principle be necessary. They added that the standard of proof “beyond reasonable doubt” also corresponded to the requirement of Article 15 of the UN Convention against Torture, under which it had to be “established” that the statement in question had been made as a result of torture for the exclusionary rule to apply. That standard was moreover consistent with the approach taken by other courts and tribunals, in particular the United Kingdom House of Lords in A. and Others v. Secretary of State for the Home Department (no. 2).",
"75. The United Kingdom Government further observed that it was clear from the Court’s case-law – in particular the judgments in Jalloh v. Germany ([GC], no. 54810/00, § 105, ECHR 2006 ‑ IX) and Ashot Harutyunyan v. Armenia (no. 34334/04, 15 June 2010) – that the exclusionary rule did not apply where the domestic court was left with a doubt as to whether the statement had been obtained by torture or where it concluded that the ill-treatment did not reach the necessary threshold of severity to be classified as “torture”. It emphasised in this context that the above-mentioned Article 15 applied only in relation to torture and not to cases of other prohibited ill-treatment.",
"In their view, in any event, the domestic courts retained in such cases some discretion as to the admissibility of and assessment of weight to be given to such a statement, to be exercised bearing in mind the special status of Article 3 and the fact that the use of a statement obtained as a result of a violation of one of the core rights guaranteed by the Convention raised serious issues as to the fairness of the proceedings. The fairness of the proceedings had then to be assessed on a case-by-case basis, considering the proceedings as a whole.",
"2. NGOs European Center for Constitutional and Human Rights and REDRESS",
"76. The third-party interveners pointed out that the “exclusionary rule”, which prohibited the admission of evidence obtained by torture or cruel, inhuman or degrading treatment or punishment, was enshrined in a number of international instruments: Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10 of the Inter-American Convention to Prevent and Punish Torture, the Robben Island Guidelines for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adopted by the African Commission on Human and People’s Rights, and the rules of procedure of the ad hoc international criminal tribunals and of the International Criminal Court. They added that the Human Rights Committee and the Committee against Torture had repeatedly emphasised the importance of the exclusionary rule, with the latter taking the view that it was an inherent part of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.",
"77. In the submission of the third-party interveners, the exclusionary rule applies to evidence obtained not only by torture but also by other cruel, inhuman or degrading treatment or punishment. Whilst Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Article 10 of the Inter-American Convention to Prevent and Punish Torture refer only to torture, Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment refers to other forms of prohibited ill-treatment; the position of the Human Rights Committee and the Committee against Torture is, moreover, consistent with the latter. In addition, the rule extends both to confessions by the person against whom evidence is being sought and to witness statements of third parties.",
"Referring to the above-cited Jalloh and Ashot Harutyunyan judgments, they pointed out that it was clear from the Court’s case-law that the use of evidence obtained by torture automatically rendered the trial unfair. They further drew attention to the Court’s finding in Jalloh (§ 106) that where the evidence in question had been obtained by treatment contrary to Article 3 not amounting to torture, the impact on the fairness of the proceedings would depend on the circumstances of each individual case. They took the view, however, that the Court had left open the question whether the use of evidence obtained by other prohibited ill-treatment automatically rendered a trial unfair (ibid., § 107).",
"78. The third-party interveners observed that the Committee against Torture had considered that the forum State was under an obligation to ensure that statements admitted in evidence in any proceedings had not been obtained by torture (they referred in this connection to the Committee’s decision in G.K. v. Switzerland ). They indicated that, whilst there was little international jurisprudence on the burden and standard of proof, it was quite well established that, where a party to proceedings alleged that evidence had been obtained by torture, the forum State had a duty to investigate the circumstances in which it had been obtained; if that proved to be the case, the evidence had to be excluded. The jurisprudence was inconsistent, however, as to the extent to which an individual had to sustain his or her allegations. Referring to the decisions in Halimi-Nedzibi v. Austria, Encarnación Blanco Abad v. Spain, P.E. v. France and G.K. v. Switzerland, they observed that the Committee against Torture seemed to require the author to demonstrate that his or her allegations were “well founded” – adding, however, that some legal writers took the view, in the light of that jurisprudence, that it was sufficient for the alleged victim to submit “some evidence” of ill-treatment – and that this view was supported by domestic case-law. In the United States of America, the US District Court for Columbia had merely verified that the petitioning detainees had made “sufficient allegations” ( Re Guantánamo Detainee Cases, 31 January 2005); in Canada, the Supreme Court of British Columbia had looked at the “persuasive nature of the allegations” ( India v. Singh, 8 May 1996); and the Supreme Court of the Netherlands had examined whether the allegations were “plausible” ( Hoge Raad, judgment no. 103.094, 1 October 1996).",
"In the submission of the third-party interveners, most of the case-law indicated that the burden of proof could not rest with either the individual or the State alone (they referred, inter alia, to the Human Rights Committee’s decision in Saimijon and Bazarov v. Uzbekistan ). They said that this had also been the approach of the House of Lords in A. and others, cited above.",
"79. The third-party interveners further observed that under Article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment it had to be “established” that the statement in question had been obtained by torture for the exclusionary rule to apply, and that similar wording was used in Article 10 of the Inter-American Convention to Prevent and Punish Torture and in Article 12 of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as in the jurisprudence of the Committee against Torture and the Human Rights Committee. They added that in the case of A. and others, cited above, the House of Lords had considered the meaning of “established” in the context of the above-mentioned Article 15: the majority (four Law Lords out of seven) had interpreted it as requiring evidence to be excluded where it was “more likely than not” that torture had been used to obtain it; in the same vein, the Hamburg Court of Appeal, in its El Motassadeq judgment, cited above, had used certain testimonies despite the fact that serious doubts remained as to how they had been obtained.",
"The interveners were, however, convinced by the opinion of the minority of Law Lords in the above-cited A. and others judgment, to the effect that the exclusionary rule had to apply where there was a “real risk” that evidence had been obtained by torture. In their view, the position of the majority of the Law Lords called into question the sharing of the burden of proof between the State and the defendant, by imposing on the latter too high a burden that in most cases would be impossible to meet. In their view, the fact that the evidence in question was intended to be used against someone accused of terrorism-related offences could not justify such a shift; they referred to the Court’s finding in Hulki Güneş v. Turkey (no. 28490/95, ECHR 2003-VII) that the need to combat terrorism could not justify a restriction on the very essence of the rights of the defence. This had also been the approach adopted by the Spanish Supreme Court in its judgment of 20 July 2006, reversing the conviction of Hamed Abderrahaman Ahmed on the ground that, because of the disrespect for the fundamental rights of the Guantánamo detainees and for due process safeguards, any act carried out in the Guantánamo context had to be declared completely invalid and as such inexistent. They observed that, similarly, the 2009 report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights had expressed concern that, due to the international dimension of recent terrorism attacks, there had been cases where the prosecution had sought to rely on statements of the accused or witnesses obtained abroad under conditions that cast doubt on their reliability. They emphasised that the prevention of torture or other ill-treatment of detainees could only be effectively safeguarded if the judiciary responded urgently and effectively when any allegations concerning such ill-treatment were brought to their attention.",
"C. The Court’s assessment",
"...",
"2. Merits",
"(a) General principles",
"81. The Court reiterates that its duty, pursuant to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, among other authorities, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV; Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007; and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010).",
"82. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX; and Gäfgen, cited above, § 163).",
"83. In determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35 and 37; Allan, cited above, § 43; Jalloh, cited above, § 96; and Gäfgen, cited above, § 164). In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the criminal proceedings (see Gäfgen, cited above, § 164).",
"84. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, and in particular to the question of respect for the applicant’s defence rights and the quality and importance of the evidence in question (ibid.).",
"85. However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Jalloh, cited above, §§ 99 and 104; Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006; Harutyunyan, cited above, § 63; and Gäfgen, cited above, § 165).",
"Therefore, the use in criminal proceedings of statements obtained as a result of a violation of Article 3 – irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6 (see Gäfgen, cited above, §§ 166-167 and 173). This also holds true for the use of real evidence obtained as a direct result of acts of torture (ibid., § 173); the admission of such evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6, however, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence (ibid., § 178).",
"The Court is of the view that these principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned. It would point out in this connection that it has already had occasion to indicate in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, §§ 263 and 267, ECHR 2012), with regard more specifically to a flagrant denial of justice, that the use in a trial of evidence obtained by torture would amount to such a denial even where the person from whom the evidence had been thus extracted was a third party.",
"86. The Court examined the issue of evidence in the above-cited Othman case, where it examined, in particular, the question whether the deportation of a Jordanian national to his country of origin, where he claimed he would face conviction on the basis of statements by third parties that had been extracted under torture and would thus be the victim of a flagrant denial of justice, would entail a violation of Article 6 of the Convention. In response to the United Kingdom Government’s argument that the applicant had to establish “beyond reasonable doubt” that the evidence in issue had been obtained by torture, it took the view that it would be unfair to impose on the applicant a burden of proof that went beyond the demonstration of a “real risk” that the evidence in question had been thus obtained (ibid., § 273). The Court set out three reasons why it would be unfair to impose any higher burden of proof on the applicant.",
"First, the Court did not consider that the balance of probabilities test, as applied by the majority of the House of Lords in the above-mentioned A. and others (no. 2) judgment, was appropriate, as that case had concerned not criminal proceedings but proceedings before the Special Immigration Appeals Commission (SIAC) to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. It further noted that, in any event, the majority of the House of Lords in that judgment had found that the balance of probabilities test was for SIAC itself to apply and that an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture (ibid., § 274). Second, the Court did not consider that the Canadian and German case-law, which had been submitted by the United Kingdom Government (in particular the Singh and El Motassadeq judgments, cited also by the parties in the present case), provided any support for their position (ibid., § 275).",
"Third, describing this as the most important factor, the Court found that it was necessary to have due regard for the special difficulties in proving allegations of torture. It emphasised that torture was uniquely evil, both for its barbarity and its corrupting effect on the criminal process. It was practised in secret, often by experienced interrogators who were skilled at ensuring that it left no visible signs on the victim. All too frequently, those who were charged with ensuring that torture did not occur – courts, prosecutors and medical personnel – were complicit in its concealment. The Court observed that, in a criminal justice system where the courts were independent of the executive, where cases were prosecuted impartially, and where allegations of torture were conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which was complicit in the very practices which it existed to prevent, such a standard of proof was wholly inappropriate (ibid., § 276).",
"87. As to the standard of proof for the application of the exclusionary rule in respect of evidence allegedly obtained as a result of treatment contrary to Article 3, a number of situations may arise. Firstly, such treatment may be imputed to the authorities of the forum State or to those of a third State and the victim may be the actual defendant or a third party. Furthermore, in some cases the Court itself (see, for example, Levinta v. Moldova, no. 17332/03, 16 December 2008), the courts of the forum State (see, for example, the Harutyunyan judgment, cited above) or the courts of the third State have confirmed the veracity and nature of the alleged ill-treatment; in other cases there has been no such judicial decision.",
"88. The Court will not proceed to examine each of those situations. It is sufficient in the present case for it to observe that, at least in a case where a defendant asks the domestic court to exclude statements obtained in a third State as a result, in his submission, of treatment contrary to Article 3 inflicted on another individual, it is appropriate to follow the approach set out in the Othman judgment, cited above. Accordingly, in any event, where the judicial system of the third State in question does not offer meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman and degrading treatment, it will be necessary and sufficient for the complainant, if the exclusionary rule is to be invoked on the basis of Article 6 § 1 of the Convention, to show that there is a “real risk” that the impugned statement was thus obtained. It would be unfair to impose any higher burden of proof on him.",
"89. The domestic court may not then admit the impugned evidence without having first examined the defendant’s arguments concerning it and without being satisfied that, notwithstanding those arguments, no such risk obtains. This is inherent in a court’s responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained (see, mutatis mutandis, Stojkovic v. France and Belgium, no. 25303/08, 7 April 2011, § 55).",
"(b) Application to the present case",
"90. The Court finds it appropriate primarily to examine the applicant’s allegation that, in violation of Article 6 of the Convention, the Belgian courts, in the context of the criminal proceedings against him, had admitted in evidence certain statements by third parties that had been obtained in Morocco using treatment prohibited by Article 3 of the Convention.",
"91. It would first observe that it has been established that the domestic courts refused to apply the exclusionary rule to statements of third parties obtained in Morocco by the Moroccan authorities in the course of criminal proceedings in that country, as can be seen from the reasoning of the Brussels Court of Appeal’s judgment of 19 January 2007 (see paragraphs 36 and 40 above). This has not been disputed by the Government.",
"92. It remains to be determined, in the circumstances of the case, whether the Moroccan judicial system afforded, at the material time, meaningful guarantees of an independent, impartial and serious examination of allegations of torture or inhuman or degrading treatment, and, if not, whether there was a “real risk” that the impugned statements might have been obtained as a result of such means (see paragraph 88 above).",
"93. In the light of the plentiful information before it, the Court has cause to doubt that the Moroccan judicial system did afford such guarantees at the material time. It is at least apparent from that information that this was not the case at the time of the circumstances in question, in so far as the allegations concerned acts committed in the context of general counter-terrorism measures, and, more specifically, in that of the investigations and proceedings that followed the Casablanca bombings of 16 May 2003.",
"94. The Court observes, in this connection, that in its report of 28 November 2005 (see paragraph 53 above) – to which the applicant referred before the Court, as before the domestic courts – Human Rights Watch explained that individuals tried in that context had been denied a fair hearing, that the courts refused, in particular, to order medical examinations of those who claimed to have been tortured, that it was not aware of any prosecution of officials suspected of torture, and that “[o]verall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [CCPR/CO/82/MAR] show[ed] that security forces continue[d] to operate in a climate of impunity and disrespect for the law, and that the executive branch continue[d] to exercise considerable influence over the courts”.",
"Similarly, the FIDH report of February 2004, to which the previous report referred (see paragraph 54 above), commented in particular on the hurried nature of the judicial investigation phase and the failure to comply with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It emphasised that the trial courts had systematically dismissed objections based on alleged problems at the police custody and judicial investigation stages and that no application for a medical expert’s report for the purposes of substantiating ill-treatment allegations had been accepted. Amnesty International made the same observation in its report of 24 June 2004 (see paragraph 55 above) – mentioned in the above-cited report of Human Rights Watch. It reported, in particular, that the judicial authorities appeared to have repeatedly dismissed allegations of torture or ill-treatment, without ordering investigations or medical examinations. Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom. It added that during their trials many accused challenged, on the ground that it had been obtained by duress, evidence against them taken from statements made by others who had been arrested and detained on similar charges, and that their requests for confrontation with witnesses were denied by the courts on a systematic basis.",
"95. In the same vein, the United Nations Committee against Torture and the United Nations Human Rights Committee, in reports covering the relevant period (paragraph 50-51 above), referred to numerous allegations of ill-treatment imputed to agents of the State and expressed concern about the impunity that they enjoyed. The former also noted that there was no provision of criminal law prohibiting a statement obtained under torture from being invoked as evidence in any proceedings, whilst the latter was concerned that the independence of the judiciary was not fully guaranteed.",
"96. The Court concludes from the foregoing that, in order to seek the application of the exclusionary rule as regards statements taken in Morocco by the Moroccan authorities, it was sufficient for the applicant to demonstrate before the domestic court that there was a “real risk” that they had been obtained using torture or inhuman or degrading treatment.",
"97. In this connection, the Court notes that the applicant alleged before the domestic courts that the impugned statements emanated from individuals who were suspected of involvement in the Casablanca bombings of 16 May 2003, and who had been interrogated in Morocco in the context of the ensuing investigations and proceedings. He argued that the country had been harshly criticised by governmental and non-governmental organisations for acts of torture and ill-treatment inflicted systematically on individuals arrested after those events, referring in particular to the above-mentioned report of Human Rights Watch. He explained that those who had given the statements in question had complained of being subjected to acts of torture and inhuman or degrading treatment. He added that the Moroccan authorities had not carried out an investigation into those allegations. He further argued that the Moroccan proceedings had been conducted in a hurried manner.",
"The Brussels Court of Appeal took the view, however, that by merely “citing in general terms” various reports of human rights organisations, the applicant had not adduced any concrete evidence that would be capable of giving rise in the present case to “reasonable doubt” as to the violence, torture or inhuman or degrading treatment that had allegedly been inflicted on the individuals interviewed in Morocco (see paragraph 36 above).",
"98. The Court, for its part, takes that view that since those statements emanated from suspects interrogated in Morocco in the context of investigations and proceedings following the Casablanca bombings of 16 May 2003, the above-mentioned reports established the existence of a “real risk” that they had been obtained using treatment contrary to Article 3 of the Convention. It can be seen from those reports that ill-treatment for the purposes of extracting confessions was widely practised against such suspects.",
"In 2004 the United Nations Human Rights Committee thus expressed concern about the numerous allegations of torture and ill-treatment against detainees in Morocco, as did the United Nations Committee against Torture, which specifically noted the increase in those allegations that implicated the National Surveillance Directorate (see paragraphs 50 and 52 above). In its final observations on the fourth periodic report of Morocco – adopted, however, after the domestic courts had given a final decision in the applicant’s case –, the Committee against Torture reiterated that concern, mentioning more particularly the use of such treatment during interrogations of individuals suspected of terrorism with the aim of extracting confessions from them. It further referred to allegations that pointed to a consistent pattern, “whereby suspects [were] arrested by plain-clothes officers who [did] not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amount[ed] to incommunicado detention. The suspects [were] not officially registered and [were] subjected to torture and other cruel, inhuman or degrading treatment or punishment. They [were] held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families [were] not notified of their arrest, of their movements or of their whereabouts until such time as they [were] transferred to police custody in order to sign confessions that they ha[d] made under torture. It [was ] only then that they [were] officially registered and their cases [were] processed through the regular justice system on the basis of falsified dates and information ...” (see paragraph 51 above).",
"In addition, it can be seen from the report of Human Rights Watch that many of the suspected Islamists who were detained in the weeks following the Casablanca bombings “were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions” (see paragraph 53 above). The FIDH reported numerous cases of arbitrary detention in secret centres, where the interrogations were “carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. It pointed out that at the Témara centre, where most prisoners were taken after their arrest, ill-treatment, violence and torture were common practice. The cells, situated in the basement, were lit day and night and when they moved around, as well as during interrogation, which often lasted a very long time, the suspects were blindfolded. It added that insults and blows were commonplace, with prisoners under interrogation sometimes being stripped naked, and that several cases of electrical torture and rape had been reported. A number of prisoners had signed statements under torture. The FIDH also reproduced various detailed testimonies describing the poor conditions of detention and mentioning, in particular, beatings, blows, rape, cigarette burns, insults, humiliations, spitting, threats, blackmail, placement in solitary confinement, endless questioning, sleep deprivation and denial of medical care (see paragraph 55 above). Amnesty International gave a similar description of treatment inflicted on detainees at the Témara centre. It indicated that many former prisoners had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied. It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from Témara to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply (see paragraph 55 above).",
"99. In the Court’s view, the foregoing information, which emanates from diverse, objective and concurring sources, establishes that there was, at the material time, a “real risk” that the impugned statements had been obtained in Morocco using treatment prohibited by Article 3 of the Convention. Article 6 of the Convention thus required the domestic courts not to admit them in evidence, unless they had first verified, in view of elements specific to the case, that they had not been obtained in such manner. As indicated above, in dismissing the applicant’s request for the exclusion of those statements, the Brussels Court of Appeal merely found that he had not adduced any “concrete evidence” that would be capable of raising “reasonable doubt” in this connection.",
"This is sufficient for the Court to find that there has been a violation of Article 6 in the present case, without it being necessary to ascertain whether, as the applicant contends, that provision has also been breached for other reasons.",
"..."
] |
286 | Abdulla Ali v. the United Kingdom | 30 June 2015 | This case concerned the applicant’s complaint that, because of extensive adverse media coverage, the criminal proceedings against him for conspiring in a terrorist plot to cause explosions on aircraft using liquid bombs had been unfair. Following a first trial in his case which had resulted in his conviction on a charge of conspiracy to murder, there had been extensive media coverage, including reporting on material which had never been put before the jury. A retrial was subsequently ordered in respect of the more specific charge of conspiracy to murder by way of detonation of explosive devices on aircraft mid-flight (on which the jury at the first trial had been unable to reach a verdict) and the applicant argued that it was impossible for the retrial to be fair, given the impact of the adverse publicity. His argument was rejected by the retrial judge and he was convicted at the retrial. He was sentenced to life imprisonment with a minimum term of 40 years. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that it had not been shown that the adverse publicity had influenced the jury to the point of prejudicing the outcome of the proceedings and rendering the applicant’s trial unfair. It observed in particular that the applicable legal framework in the United Kingdom for ensuring a fair trial in the event of adverse publicity had provided appropriate guidance for the retrial judge. It further found that the steps taken by the judge were sufficient. Thus, he considered whether enough time had elapsed to allow the prejudicial reporting to fade into the past before the retrial commenced and recognised the need to give careful jury directions on the importance of impartiality and of deciding the case on the basis of evidence led in court only. He subsequently gave regular and clear directions, to which the applicant did not object. The fact that the jury subsequently handed down differentiated verdicts in respect of the multiple defendants in the retrial proceedings supported the judge’s conclusion that the jury could be trusted to be discerning and follow his instructions to decide the case fairly on the basis of the evidence led in court alone. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"5. The applicant was born in 1980 and is currently detained at HM Prison Frankland.",
"A. The applicant ’ s arrest",
"6. In August 2006 the applicant was arrested, along with others, in the context of a large-scale counter-terrorism operation. It was alleged that he had conspired to construct and simultaneously explode improvised explosive devices (“IEDs”) on transatlantic passenger aircraft in flight, using suicide bombers.",
"B. The trial proceedings",
"1. The first trial",
"7. A first trial of eight defendants, including the applicant, on charges of conspiracy to murder (Count 1) and conspiracy to endanger the safety of an aircraft (Count 2) began in the Crown Court on 4 April 2008. The prosecution case in respect of the conspiracy to murder charge was that the means by which it was to be effected was by way of detonation of IEDs on board aircraft in mid-flight.",
"8. After the close of the prosecution case, the indictment was amended to add a further count (Count 1A) which alleged a conspiracy to murder but did not specify the means by which the murder would be carried out. The count was added at the request of the prosecution to cover the possibility that the jury was satisfied that a defendant had agreed to murder but was not aware of the means settled upon to bring the conspiracy to fruition. Count 1 was amended to make clear that it was concerned with a conspiracy to murder specifically by way of detonation of IEDs on aircraft mid-flight.",
"9. On 8 September 2008 the applicant was convicted of Count 1A but the jury was unable to reach a verdict on Count 1. The jury was also unable to reach verdicts on some or all counts in relation to six other defendants. The eighth defendant was acquitted of all charges.",
"10. An exchange followed between judge and prosecuting counsel and the judge ordered the prosecution to indicate by 26 September 2008 whether a retrial would be sought.",
"11. The announcement of the verdict was widely covered in the press and the media. The reports included references to material which was never put before the jury (see paragraphs 19 - 26 below). The media also attacked the jury ’ s failure to return a guilty verdict on Count 1.",
"2. The retrial",
"(a) The announcement of the retrial",
"12. On 10 September 2008 lawyers for one of the defendants wrote to the Attorney General seeking, inter alia, details of what steps had been taken to ensure the integrity of post-verdict/pre-retrial decision reporting and to prevent the reporting of inadmissible and prejudicial materials.",
"13. On the same day, the Crown Prosecution Service (“CPS”) announced its intention to seek a retrial of the applicant and the other defendants. Communicating this decision to the media, it added:",
"“The CPS would like to remind media organisations of the need to take great care in reporting the events surrounding this alleged plot. These remain allegations only and, if retrials take place, the defendants have the right to a fair trial. It is extremely important that there should be responsible media reporting which does not prejudice the due process of law.”",
"14. On 11 September 2008 every national newspaper reported that the applicants were to face a retrial. General reporting about the case nevertheless continued until around 14 September 2008.",
"15. The Attorney General replied to the defendant ’ s lawyers ’ letter on 25 September confirming that the observations had been noted and were receiving consideration.",
"( b ) The application for a stay of proceedings",
"16. The applicant subsequently applied for a stay of proceedings (i.e. an order effectively terminating his prosecution in respect of Count 1). One of the grounds for the application was that a fair trial was no longer possible as a result of alleged prejudicial publicity which had occurred following the conclusion of the first trial.",
"17. On 18 December 2008 Mr Justice Henriques refused the request for a stay. He summarised the defence case as follows:",
"“It is the defence case ... that the coverage was manipulated and orchestrated by State sources, either intelligence services, police anti-terrorist branches or government officials. It is asserted that there was a widespread press briefing exercise designed and intended to inform the media of non-evidential material for publication post-verdict, the effect of which was to vilify the defendants in the eyes of the public by supplying the media in confidence with significant undisclosed background material.",
"The State, it is said, failed to take any steps either to notify the court of the confidential press briefings, thus preventing appropriate orders from being made to prevent prejudicial publicity resulting from its own briefings.",
"This was, it is said, a deliberate attempt to manipulate the court ’ s process on any retrial by seeking to ensure that the world at large was prejudiced against the defendants by an unprecedented volume of St ate-sourced media coverage ...”",
"18. He considered it implicit in the submissions that the applicant ’ s argument was that no retrial jury exposed to this volume of publicity could try the case as an unbiased, independent and impartial tribunal.",
"19. Henriques J summarised the seven examples of inadmissible material which had been published by the press to which the defence had referred by way of illustrative examples. He stressed that this was “by no means the totality of the information complained of”.",
"20. The first example concerned disclosure of evidence not adduced at trial as to the applicant being in telephone contact with the leader of the 21 July 2005 failed bombings of the London transport system. The statement appeared in almost every national paper and on national media. It was attributed to different sources in different publications, including, inter alia, senior detectives, police, “records show” and counter-terrorism officials.",
"21. The second example concerned disclosure of evidence not adduced at trial as to deeper links between some of the applicants and others convicted of terrorist offences. This included evidence that the applicant had taken trips to Pakistan at the same time as those responsible for the explosions on the London transport system on 7 July 2005 and the failed 21 July bombing attempt and had been in regular telephone contact with the ringleader of the latter attack. The story was published in virtually every national newspaper and was broadcast on national media. It was attributed to, variously, detectives, intelligence officials, counter ‑ terrorism sources, investigators and trial officials.",
"22. The third example concerned disclosure of evidence not adduced at trial as to the defendants ’ acquaintance and contact with a certain Rashid Rauf in Pakistan, who had allegedly put them in touch with Al-Qaeda ’ s leadership. This had been published in almost every national newspaper and broadcast on national media. Some of the attributed sources included the Pakistani Interior Minister, British officials, intelligence services, internal US intelligence documents, security sources and named senior officials in the United Kingdom and the United States.",
"23. The fourth example concerned assertions which were not the subject of evidence or disclosure at trial that the plot might have been overseen by Abu Ubaydah Al Masri, the former head of Al-Qaeda ’ s external operations, who had allegedly overseen the July 2005 London bombing plots. The information was carried by several newspapers and was attributed, inter alia, to the police, counter-terrorism officials, intelligence agencies and senior British and American officials.",
"24. The fifth example concerned assertions which were not the subject of evidence or disclosure at trial that the alleged plot was disrupted following interception of a text message encouraging the conspirators to act. There was also reference to telephone calls and text messages between the UK and Pakistan and a specific incriminating text sent to the applicant. These were published in some national newspapers and broadcast on television, with the attributed source being a British Government source.",
"25. The sixth example concerned assertions which were not the subject of evidence or disclosure at trial that the telephones of unspecified defendants were being intercepted by the police and that interception had revealed that a dummy run was being planned. Several newspapers and media sources carried the story, with the source being variously named as the police, counter-terrorism police and the head of Counter-Terrorism Command.",
"26. The seventh example concerned assertions that the United States Government had pressed Pakistan into making arrests before all the legal evidence had been gathered. The information was reported in several newspapers and by several broadcasters. A terrestrial television channel carried the express statement that the British State authorities had reason to delay the effecting of arrests owing to known intelligence that the conspirators would perform additional incriminating acts in furtherance of the airline conspiracy. The source was said to be the head of Counter ‑ Terrorism Command, US sources, senior British police and counter-terrorism sources, and the former shadow Minister for Homeland Security in the United Kingdom.",
"27. Henriques J set out the events immediately following the handing down of the verdicts and continued:",
"“It is simply not possible in this judgment to recite each and every objectionable word published by the media ... Whilst it will be convenient to cite in due course some of the worst examples, I readily accept that the multiplicity and breadth of reporting must be considered in order to gauge the potential effect upon any juror who will have been exposed to these or any significant number of these many reports ... I have read everything to which my attention has been drawn.”",
"28. He noted that there was an “avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. There was news coverage across all television and radio channels. There was, and continued to be at the time of Henriques J ’ s ruling, vast Internet coverage which could be accessed with ease. The very essence of the large majority of the material asserted that all of the defendants were guilty of the conspiracy to blow up aircraft. Henriques J categorised the offending material as follows:",
"“(i) the defendants have strong links with several prominent Al Qaeda terrorists, including Rashid Rauf, 7/7 bombers and 21/7 bombers, of which the jury were not informed; (ii) but for the premature arrest in Pakistan of Rashid Rauf, for which the Americans are to blame, more evidence would have become available to the prosecution; (iii) the activities of the defendants were being monitored by phone taps and other forms of interception and a dummy run was anticipated which might be used to carry out a real attack; (iv) the investigation had prevented unspeakable carnage and loss of countless lives; (v) the jury were incompetent, the evidence was very strong and the jury ’ s verdict was astonishing; (vi) the trial judge mishandled the trial and in particular permitted a two-week break during the jury retirement, the jury returning for only five days at the commencement of their deliberations before then going on holiday.”",
"29. On the subject of pre-verdict briefing, Henriques J said:",
"“... [I]t is common practice for there to be pre-verdict briefings in high profile cases. There are any number of matters in which the public have an interest. There is frequently a public debate concerning topics raised by the case. Instant reporting is demanded by the public at large. They are entitled to it. It is their right. Before there can be immediate post-verdict reporting, there must be pre-verdict briefing.”",
"30. Turning to the first of the specific complaints made by the defence, the judge noted that prosecution counsel had conceded that there had been some “significant disclosure of non-evidential material by the Executive” but had “vehemently objected” to any suggestion that there had been secret briefings. The judge did not accept that secret Executive press briefings had taken place. He referred to material published in particular in the United States and concluded that there were a “multiplicity of avenues” through which journalists could have gained information other than through secret briefings. He explained:",
"“... I regard the submission that the Executive quite deliberately briefed the press during the trial with a view to disadvantaging the defendants in any retrial that might possibly take place as fanciful ... The plot alleged requires not only foresight of a retrial during the trial itself; it requires foresight that the press will breach the embargoes that they have signed not to disclose such material until conclusion of the proceedings.”",
"31. As to the second allegation, that the State “perpetrated a gross manipulation and abuse of the court process by failing to restrain publicity resulting from its own briefings, the judge found again that there was absolutely no evidence that any individual had been party to such a plot. He described as a “most extravagant allegation” and rejected it “with certainty”.",
"32. On the third question whether the defendants could receive a fair trial, having regard to the publicity, the judge noted that the publicity was worldwide, often repeated and reported by every branch of the media, including the Internet and associated blogs. It had run in the main from 8 September to 14 September 2008, and much of the reporting remained available on the Internet. He reviewed in some detail the major publications of 9 September as well as a few of the worst other examples. As to the law on adverse publicity, the judge explained :",
"“As to the legal principles relevant to a defendant receiving a fair trial, I have reminded myself of Montgomery v HM Advocate [see paragraph 60 below], and in the context of this case reminded myself that the only issue to be addressed is the right of a defendant to a fair trial and no assessment of the weight to be given to the public interest comes into the exercise. The fact that the allegations here are of the gravest nature is wholly irrelevant. The defendants must receive a fair trial, however grave the allegations and however far-reaching the consequences may be of staying this trial.”",
"33. The judge considered a number of domestic judgments concerning the impact of prejudicial publicity before or during trial. He continued:",
"“I have concluded that a fair trial is in this case possible for all defendants on this indictment and propose to ensure that each of them does receive a fair trial. In reaching that conclusion I have brought the experience of many years in the criminal courts to this decision. I trust juries and have every confidence that they do indeed have regard to the directions given by judges.",
"...",
"I trust a jury in this building to decide whether they can be sure on the evidence presented to them that there was indeed a plan to blow up aircraft. I cannot accept the proposition that an English jury may convict because of something they may remember having read many months earlier. I do believe that juries pay attention and act upon the directions we give them. I will give them at the outset of the trial a most careful direction tailored particularly to this case and I shall canvass the direction with counsel before I deliver it. If necessary, I will repeat it from time to time.",
"I have no fears that the jury will be influenced by those earlier press reports. They know that none of us can believe everything that we read in the press ...",
"I believe that sufficient time will have passed by February 16 th of next year, over five months since the publicity ...",
"There have been other terrorist trials in the meantime occupying crime correspondents and their readers. I am sure that the facts will have receded and faded, as will any possible prejudice.”",
"34. The judge further pointed out that all defendants had admitted conspiracy to commit public nuisance by making martyrdom videos and that the first three defendants had admitted conspiring to cause explosions. These convictions would be put before the jury in the retrial and, the judge said, in the face of these admissions links to other terrorists, if remembered by jury members, became “rather less significant”. In any event, in his experience, the impact of pre-trial publicity and prejudicial media coverage was minimal even in high-profile cases. He cited examples of cases where offensive pre-trial publicity had taken place but the defendants had subsequently been acquitted. He concluded that he had absolutely no doubt that juries took their responsibilities most seriously and decided cases on the evidence presented to them in court. He fixed the retrial to commence on 16 February 2009.",
"( c ) The retrial proceedings",
"35. The retrial of seven defendants, including the applicant, on Count 1 and four defendants on Count 1A duly commenced on 16 February 2009 but was twice aborted in the early stages. On 2 March 2009 a further jury was selected and sworn. During jury selection that day, the judge directed the potential jury members as follows:",
"“It is, of course, of critical importance that we are able to select a jury which is completely unbiased and a jury which is prepared to give its time to a very important case indeed. You will appreciate the gravity of the allegation, a plan to blow up a number of aircraft effectively simultaneously. It is a hugely important task, quite possibly the most important task required or asked of any of you; hugely important public service. Of course not all of you will be in a position to serve and for those who do undertake the task, it will necessarily involve a degree of self-sacrifice.”",
"36. He specifically asked them whether there was any reason arising from their beliefs, occupation or any other matter that might inhibit their ability to return an impartial verdict in this trial or whether they or any relative or close friend, held views of such strength that they might materially influence their consideration of the case.",
"37. On the matter of the adverse publicity prior to the retrial, he said the following:",
"“Next: as a result of publicity given to this case and to these allegations, do any of you hold any pre-conceived views of guilt or innocence incompatible with an unbiased discharge of your duties as a juror? No. Thank you.",
"Next: are you, or is any member of your immediate family or any close friend, or have you, or any member of your immediate family or any close friend, been employed by any media agency involved in the investigation and/or reporting of this case? Come forward, sir.”",
"38. He further asked the potential jury members questions concerning two recent broadcasts which had discussed the case:",
"“Two broadcasts. One broadcast: did any of you watch this programme on BBC television, it was two weeks ago, that is not yesterday, not the Sunday before that but the Sunday before that, in other words 15 days ago, at 10 o ’ clock in the morning, BBC1, there was a programme broadcast called The Big Questions? The host was Nicky Campbell and there were a panel of three or four experts, if I can call them that, one of whom certainly was a rabbi, when there was a discussion which touched upon the plot to blow up airliners and terrorism and the facts giving rise to this case were to some extent touched upon. Did anybody, 10 o ’ clock in the morning, watch that programme? Could you come forward, please, sir.",
"Then exactly two weeks ago today, 10.00 pm on a Monday evening, Radio 4, there was broadcast a programme, The World Tonight, in which the alleged plot to blow up airliners was discussed. Did anybody listen to that radio programme on Radio 4? No. Next – sorry, come forward, please. Thank you. I told you that this case started some two weeks ago and on all the major television programmes publicity was given to it. Did any of you, as a result of seeing that publicity, carry out any internet research; in other words, have any of you carried out internet research in the last two weeks into the alleged airline plot? No. Thank you very much.”",
"39. Finally, the jury having been selected, the judge directed the jury as follows:",
"“Can I please give you some additional instructions? There may now be a temptation, knowing that you are going to serve upon this case, to try to find out a little bit more about it and if any of you are addicts of the internet or the web, there may be a temptation to go on to it and read about it and see about it. Please do not do that. There was an element of inaccurate and unsatisfactory reporting at the time this matter first came to light. The allegations were not accurately reported in every instance and it is critically important that you decide the case upon the evidence that you hear in court and nowhere else. We tell jurors in all criminal cases not to carry out any research of their own. In a typical pub fight case we tell jurors not to go and have a look at the pub, not to turn themselves into sleuths because what is critical is you decide the case only upon what you hear in court. The defendants are entitled to know the basis and the exact basis upon which they are being tried. So, accordingly, please do not, either before the case starts tomorrow or indeed at any stage, carry out any internet research or indeed any research of any kind. I will also give you further instructions not to read any newspapers or listen to any television reports. The reason for that is sometimes they are inaccurate, sometimes they are speculative and they are always partial reporting. The only way you can hear and receive all the evidence is by being here in court, listening to it. That is where you receive the information.",
"The other danger is when you go back tonight you will say, ‘ I ’ ve been selected for a jury ’ and those with whom you live or those you meet tonight may say to you, ‘ I know all about that case. I have read about it in the newspapers. ’ Please do not discuss the case with anybody. It will be quite wrong for anybody to tell you what they think about the case and it might affect your judgment in the long run. You have been selected to try a terrorist case, tell them, because that is what the allegation is here, one of terrorism, and leave it at that. There is no purpose at all in discussing the facts of the case with anybody and, indeed, it would be absolutely wrong and a contempt of court if you were to do so. I have explained the real reason for not doing so is the person you were discussing it with might be playing a part in deciding the case and you and only the 12 of you must do that, nobody else must play any part in doing so. There are other instructions which I will give you tomorrow after the case has started, but for the time being that suffices.”",
"40. The trial commenced with the prosecution ’ s opening speech on 3 March 2009. At the end of the first day, the trial judge gave the jury the following instructions:",
"“I am obliged to give you certain instructions. Some of them you are familiar with because I said a few things to you yesterday. I remind you, please, do not carry out any research of any kind into this case, either over the internet or in any other way at all. That includes not visiting any site referred to in the case. All your information must come to you in this court. Please ignore any newspaper reports, if there are any, into this case and please disregard any broadcast of any kind that you may hear. It is vital that you do not discuss the case with anybody for reasons which I gave you yesterday. Other people will express views which might in due course affect your judgment. The decision must be the decision of the 12 of you and nobody else.”",
"41. The judge reminded the jury intermittently throughout the trial that they were not permitted to discuss the case with family or friends or to carry out Internet research. On 30 June 2009, the first day of the parties ’ closing speeches, he said:",
"“We have embarked now upon a new phase of this case and now is as good a time as any to remind you of what I said earlier in the case about avoiding information which may in some way touch upon terrorism or even this case. I remind you again, please: do not carry out any internet research. Do not read any books. Do, please, switch channels if a television programme comes on which is obviously about terrorism or some related topic. Please avoid all newspaper articles and the like which deal with terrorism. The reason for that is to allow you to approach the facts of this case and when you come to reach your several decisions with a clear mind, unaffected by anything outside of this case, anything originating outside this courtroom. You decide this case on the information that you have received within this court and nothing else.”",
"42. Again during his summing- up, the trial judge reminded the jury that they should not discuss the case with anyone outside the jury. Once the jury had retired to consider its verdict, he reminded them at the close of each day that they should not discuss the case outside the jury room.",
"43. On 7 September 2009 the applicant was convicted on Count 1. Of the other six defendants tried on Count 1, two were convicted, three were acquitted and the jury were unable to reach a verdict in respect of one. Of the four defendants tried on Count 1A, one was convicted and the jury were unable to reach a verdict in respect of the other three.",
"44. The applicant was sentenced to life imprisonment with a minimum term of forty years.",
"3. The appeal against conviction",
"45. The applicant sought leave to appeal against his conviction. The Court of Appeal granted leave on several grounds, including the question whether the retrial was fair having regard to the media publicity after the first trial.",
"46. On 19 May 2011 the appeal against conviction was dismissed.",
"47. The court noted the high media interest in the first trial and the simultaneous reporting of the trial proceedings, including the verdicts. It observed that in the circumstances it was impossible to have imposed restrictions on the verdicts as no-one had applied to the trial judge to ask for this to be done before the verdicts were taken. Even if such an application had been made and granted, given the worldwide interest in the case the Court of Appeal considered it difficult to see how publication of the verdicts could have been prevented in jurisdictions outside the trial court ’ s jurisdiction.",
"48. Responding to the submission on behalf of the applicant that jurors at his retrial could no longer be relied upon to follow the trial judge ’ s directions, the court said:",
"“92. To the extent that there remains the risk that, despite what jurors are told by a judge, an individual juror might look up matters on the internet, any attempt by an individual juror to use what was found to influence the views of the other jurors is, in our judgement, bound to fail. For what was found on the internet to have any influence on the verdict of a jury, it would require other members of the jury to disobey their oath. In our judgement, ... the trial process in this trial was capable of coping with the adverse publicity. There was, it must be emphasised, no evidence at all to suggest that any juror had sought information on the internet.”",
"49. The Court of Appeal emphasised that allegations that the publicity and disclosure of certain facts by State authorities had been deliberate were not pursued on appeal. It noted that embargoed police or prosecution service briefings were commonplace in major trials and that no challenge was made to the propriety of the press briefings. It also reviewed the actions of the prosecution and the Attorney General. The court then turned to consider in detail the ruling of Henriques J of 8 December 2008 and expressed itself to be “entirely satisfied” that he had not only applied the correct principles but had come to a conclusion that was open to him, namely that a fair-minded observer would consider that a jury, properly directed, could fairly try the applicant. It explained:",
"“104. Not only do we consider that conclusion open to him but we also consider that that conclusion was correct. We accept ... that trying the case elsewhere was not an option; asking potential jurors about their knowledge of the case again was not an option. However, we do consider that, given the trial process and the months that had elapsed before the second trial, the informed observer would be satisfied that a jury would consider fairly and impartially the evidence and would have no regard to the publicity to which we have referred.”",
"50. The court added:",
"“105. We have also taken into account the fact that, unlike the decisions in Abu Hamza and Montgomery v HM & Another [2003] 1 AC 641 [see paragraphs 60 - 61 below], this was not a case concerned with pre-trial publicity but with publicity following a conviction. The fact that it was a trial following a conviction on one count in our view is an important factor that may be viewed as more significant than pre-trial publicity. However, looking at the matter overall, we consider that the trial process could ensure a fair trial and a fair-minded observer would think that as well.”",
"51. On 16 November 2011 the Court of Appeal declined to certify that the applicant ’ s case raised a point of law of public importance."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Impartiality",
"52. In a judgment of the House of Lords in Magill v. Porter [2001] UKHL 67, Lord Hope of Craighead considered the question of apparent bias and concluded that:",
"“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”",
"B. Adverse publicity and contempt of court",
"1. Statutory provisions and other guidance",
"(a) The Contempt of Court Act 1981",
"53. Pursuant to section 2(2) of the Contempt of Court Act 1981, a “ strict liability ” rule applies to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. Thus, where such a risk exists there is no need to prove intent to interfere with the course of justice in the proceedings.",
"54. Section 4(2) of the Contempt of Court Act 1981 empowers a court to make orders postponing publication to avoid substantial prejudice to the administration of justice in the proceedings or in other imminent or pending proceedings.",
"(b) CPS Protocol on Publicity and the Criminal Justice System",
"55. A Protocol entitled Publicity and the Criminal Justice System (“the 2005 Protocol”) was published by the CPS for Chief Police Officers, Chief Crown Prosecutors and the Media in October 2005. Its overriding objective was to provide an open and accountable prosecution process by ensuring the media had access to all relevant material wherever possible and at the earliest appropriate opportunity. The Protocol explained that the aim of the CPS was to ensure that the principle of open justice was maintained while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material to the media.",
"56. The Protocol lists prosecution material which, if it has been relied upon by the prosecution in court, should normally be released to the media. It also lists prosecution material which may be released, after consideration by the CPS in consultation with the police and relevant victims, witnesses and family members. Finally, it explains that where a guilty plea is accepted and the case does not proceed to trial, the same principles apply. But to ensure that only material informing the decision of the court is published, material released to the media must reflect the prosecution case and must have been read out, or shown in open court, or placed before the sentencing judge.",
"(c) CPS guidelines on Contempt of Court and Reporting Restrictions",
"57. The CPS published guidelines entitled Contempt of Court and Reporting Restrictions ” to supplement the 2005 Protocol. The guidelines note that any restriction on reporting is contrary to the general rule in favour of open justice and the fair and accurate reporting of public court proceedings, referring to Article 10 of the Convention. They explain that prosecutors should, inter alia, seek reporting restrictions only where necessary, for example to protect a forthcoming prosecution involving the same defendant, where it is considered that publicity of the first trial is likely to prejudice the proceedings which are pending. The guidelines clarify that any application should seek only such restrictions and for such period as are necessary to meet the interests of justice.",
"2. Relevant case-law",
"(a) Contempt of court",
"58. In Attorney General v. MGN Limited [1997] E.M.L.R. 284, the Divisional Court listed ten principles governing the application of the strict liability rule for contempt in the 1981 Act. Principles (7) to (10) were as follows:",
"“(7) In making an assessment of whether the publication does create this substantial risk of that serious effect on the course of justice the following amongst other matters arise for consideration: (a) the likelihood of the publication coming to the attention of a potential juror; (b) the likely impact of the publication on an ordinary reader at the time of publication; and (c) the residual impact of the publication on a notional juror at the time of trial. It is this last matter which is crucial.",
"One must remember that in this, as in any exercise of risk assessment, a small risk multiplied by a small risk results in an even smaller risk.",
"(8) In making an assessment of the likelihood of the publication coming to the attention of a potential juror the court will consider amongst other matters: (a) whether the publication circulates in the area from which the jurors are likely to be drawn, and (b) how many copies circulated.",
"(9) In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication the court will consider amongst other matters: (a) the prominence of the article in the publication, and (b) the novelty of the content of the article in the context of likely readers of that publication.",
"(10) In making an assessment of the residual impact of the publication on a notional juror at the time of trial the court will consider amongst other matters:",
"(a) the length of time between publication and the likely date of the trial,",
"(b) the focusing effect of listening over a prolonged period to evidence in a case, and",
"(c) the likely effect of the judge ’ s directions to a jury.",
"This last matter in particular has been the subject of extensive judicial comment in two different contexts: in the context of a trial or an appeal from a trial verdict and in the context of contempt proceedings ...",
"In the former category of cases what has been stressed is that the whole system of trial by jury is predicated upon the ability and willingness of juries to abide by the directions given to them by the judge and not to accept as true the content of a publication just because it has been published.” (footnotes omitted)",
"(b) Adverse publicity",
"59. In R. v. West [1996] 2 Cr. App. R. 374, Lord Taylor of Gosforth CJ found that that there was no doubt that the press coverage in advance of the trial in that case was extensive and hostile to the defendants. He continued:",
"“But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view, it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray (1969) 53 Cr App R 412 at pp. 414, 415, Lawton J said:",
"‘ The drama ... of a trial almost always has the effect of excluding from recollection that which went before. ’",
"...",
"In Ex p. The Telegraph Plc (1994) 98 Cr App R 91, 98 [1993 ] 1 WLR 980, 987, I said:",
"‘ a court should credit the jury with the will and ability to abide by a judge ’ s direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury ’ s minds on the evidence put before them rather than on matters outside the courtroom. ’ ”",
"60. In Montgomery v HM Advocate and Another; Coulter v. HM Advocate and Another [2003] 1 AC 641, the Privy Council considered the impact of adverse pre-trial publicity. It held that the test to be applied in determining whether a stay should be ordered was whether the risk of prejudice was so grave that no directions to the jury could prevent it. Lord Hope, giving the lead judgment, explained:",
"“I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal ... The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.",
"...",
"[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”",
"61. In R v. Hamza [2007] QB 659, the Court of Appeal observed that the fact that adverse publicity may have risked prejudicing a fair trial did not require that the trial should be stayed if the judge concluded that, with his assistance, a fair trial was still possible.",
"3. Reports",
"(a) Ministry of Justice report 2010",
"62. The Ministry of Justice published a report prepared by Professor Cheryl Thomas entitled Are juries fair? in February 2010. The report discusses the impact of media coverage and includes the results of a study covering 688 jurors sitting in 62 different cases. It summarised the findings of the study as follows:",
"“- Jurors serving on high profile cases were almost seven times more likely to recall media coverage (70%) than jurors serving on standard cases (11%).",
"- Most jurors who recalled media reports of their case saw or heard reports only during the time their trial was going on. This provides the first empirical evidence in this country of the ‘ fade factor ’ in jury trials (the further away media reports are from a trial the more likely they are to fade from jurors ’ memories).",
"- But a third of jurors (35%) on high profile cases remembered pre-trial coverage.",
"- In high profile cases, jurors recalled media reports of their cases from a range of media outlets, with television (66%) and national newspapers (53%) the two main sources. This contrasts with jurors ’ recall of media reports in standard cases, where local newspapers accounted for almost all (77%) coverage recalled.",
"- Most jurors (66%) in high profile cases who recalled media coverage either did not or could not remember it having any particular slant. Where jurors did recall any emphasis, almost all recalled it suggesting the defendant was guilty.",
"- In high profile cases, 20% of jurors who recalled media reports of their case said they found it difficult to put these reports out of their mind while serving as a juror.”",
"(b) Law Commission consultation paper 2012",
"63. The Law Commission published a consultation paper on Contempt of Court (No. 209) in 2012. The paper discussed the matter of contempt by publication and, in particular, the need to show under section 2(2) the 1981 Act that a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced. In this context, referring to principles (7) and (8) set out in Attorney General v. MGN Limited (see paragraph 58 above), the paper explained :",
"“2.38 Thus, relevant factors when assessing the degree of risk and gravity of the prejudice would include a newspaper ’ s circulation in the locality of the trial, or the length of any television broadcast and its repetition. This principle obviously requires modification when considering its application to the new media, for example, the number of times an online publication is accessed will be a relevant factor. The fact that no juror actually saw the material does not mean that no juror might have done, although the reaction of a juror who sees a publication may be relevant. ” (footnotes omitted)",
"64. In respect of principle (9), the paper noted:",
"“ 2.39 The style of the publication, for example, particularly sensationalist reporting, is relevant ” (footnotes omitted)",
"65. As regards principle (10), the paper said:",
"“ 2. 40 The court, therefore, has to consider the fade factor, although a long delay between publication and trial will not preclude a finding of contempt where the case or publication is memorable. A court will, however, also take into account the focus that jurors have on the evidence presented in the courtroom and the obligation on the judge to give them appropriate warnings and directions ” (footnotes omitted)",
"66. The paper continued:",
"“2.48 Some stakeholders also questioned whether there should be an alignment between (i) the test applied by the courts to determine an application to stay proceedings as an abuse of the process of the court on the ground of prejudicial publicity and (ii) the test under section 2(2). The test applied when considering an application for an abuse of process is whether it is possible for the defendant to have a fair trial. The court must consider what measures can be taken to reduce the impact of prejudicial publicity – for example, by giving warnings to jurors. However, the court will be required to stay the proceedings where ‘ the risk of prejudice is so grave that no direction by a trial judge, however careful, could reasonably be expected to remove it ’.",
"2.49 Obviously, the two tests occur in different contexts and are focused on different bodies (the defendant and the publisher respectively). Contempt and an abuse of process have different standards of proof (contempt beyond reasonable doubt, abuse of process on the balance of probabilities). The abuse of process test needs to account for the cumulative effect of publicity, given that the issue is whether a fair trial is possible in all the circumstances and the effect that media coverage has had on the independence and impartiality of the tribunal. In contrast, the contempt test is necessarily focused on individual publications, because to hold media organisations in contempt for contributing to a climate of ‘ trial by media ’, where their individual publications would not give rise to a substantial risk of serious prejudice, could contravene article 10. In consequence, we consider that it would be a mistake to align the tests for whether there has been an abuse of process because of prejudicial media coverage and whether there has been a breach of section 2(2). Do consultees agree that the tests for whether there has been an abuse of process because of prejudicial media coverage and whether there has been a breach of section 2(2) should remain distinct? ” (footnotes omitted)",
"67. The paper specifically considered section 4(2) of the 1981 Act and the court ’ s power to order postponement of publication. On this subject, it said:",
"“2.85 There is, essentially, a three-stage test to surmount before an order can be made:",
"(1) Is there a substantial risk of prejudice to the administration of justice in the current or other pending or imminent proceedings?",
"2.86 Substantial here means not insubstantial. In considering the risk, the court should bear in mind the jury ’ s ability to follow the directions of the trial judge, the fade factor, the ‘ drama of the trial ’, and should assume that press coverage will be fair and accurate. The risk has to be assessed at the time that the order is sought and the relevant risk is to the administration of justice not to other matters such as fears about community hostility towards witnesses. It is notable that the test under section 4(2) does not require serious prejudice unlike that under section 2(2) and some have questioned how far section 4(2) can be said to be article 10 compliant if the prejudice is less than serious.",
"(2) If so, is the order necessary to eliminate that risk, including considering possible alternative measures?",
"...",
"(3) If so, in light of the competing public interests at stake, ought the court to make the order and if so, in what terms? This is a value judgment.",
"2.88 This stage of the test should be considered in light of the article 10(2) requirement that any interference be ‘ necessary in a democratic society ’ ...",
"2.89 The courts have held that there is a strong public interest in the media reporting legal proceedings. Nonetheless, in striking the balance between the right to a fair trial and the freedom of speech of the media, it is the fair trial which takes primacy.",
"2.90 The failure to make an order may mean that reports of what occurs in open court can be published, even if what is being reported was revealed in the absence of the jury, although there is a lack of clarity about this in the current law. ” (footnotes omitted)",
"C. Instructions and directions to the jury",
"68. Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors ’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.",
"69. Once selected for jury duty, jurors must swear an oath or make an affirmation that they will:",
"“faithfully try the defendant and give a true verdict according to the evidence.”",
"70. At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.",
"71. In Re B [2006] EWCA Crim 2692, which involved an appeal against an order restricting the reporting of a criminal trial, the Court of Appeal (Criminal Division) said:",
"“There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case [the judge] will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair. ”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"72. The applicant complained that the adverse publicity between his first trial and his retrial prevented his receiving a fair trial by an impartial tribunal. He relied on Article 6 § 1 of the Convention, which reads as follows:",
"“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”",
"73. The Government contested that argument.",
"A. Admissibility",
"74. The Court is satisfied that the application raises arguable issues under Article 6 § 1 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submission",
"(a) The applicant",
"75. The applicant argued that the particular, unexpected and unprecedented circumstances surrounding the ending of his first trial produced the real possibility that a particular view of the core evidence and issues might persist in, and predispose, the minds of the jury at the retrial. He emphasised that if objective bias was established, there could be no balancing act between his right to a fair trial and the public interest in prosecuting serious crimes or the right of the media to report on matters of public interest: his Article 6 rights prevailed. He contended that there were no steps which could have been taken to counter the danger of bias in his case. In particular, judicial directions were inadequate and a far greater, enhanced degree of retrospective analysis of the potential prejudice should have been carried out.",
"76. This was all the more important where no urgent judicial or executive preventative intervention had been proactively and decisively undertaken following the announcement of the verdicts at the first trial. No steps had been taken by the CPS to notify the court of confidential pre-verdict briefings or to prevent the extensive media reporting following the handing down of the verdicts in the first trial. He pointed out that lawyers for one of the defendants had written to the Attorney General on 10 September seeking details of action being taken to prevent prejudicial pre-retrial publicity. The Attorney General had replied on 25 September merely to confirm that the request was being considered (see paragraphs 12 and 15 above).",
"77. The applicant relied on three matters to support his argument that objective bias was demonstrated in his case. First, he referred to the “ abandonment ” of the statutory safeguards contained in the Contempt of Court Act 1981 at the conclusion of his first trial. No orders were made pursuant to section 4(2) of that Act (see paragraph 54 above) to prevent publication of relevant material. The applicant claimed that the restrictions on the release of prosecution material to the media set out in the 2005 Protocol (see paragraph 55 above) were breached by the dissemination of prohibited material. The failure of the CPS and the trial court to impose any restrictions pending a decision on retrial meant that the media unleashed themselves from any restraint and released an unprecedented amount of alleged evidence which had never been presented in court.",
"78. Second, the applicant pointed to recent research on the impact of media on juries in the United Kingdom (see paragraphs 62 - 67 above). He considered this to show an increasing awareness of the vulnerabilities of the criminal justice system in the United Kingdom, in particular its reliance on juries. He emphasised in particular that the 2010 report had found that jurors serving on high-profile cases were almost seven times more likely to recall media coverage than jurors serving on standard case and that in high-profile cases, twenty per cent of jurors who recalled media reports said that they had found it difficult to put the reporting out of their minds while serving as jurors. The 2012 Law Commission paper supported his argument that the risk of each publication should have been addressed separately, by reference, inter alia, to the area of circulation of the publication in question, the number of copies circulated, the prominence of the article in the publication, directions to the jury and the delay between publication and trial. The applicant contended that the difficult challenges produced by the multiple publications of different kinds had received no individualised assessment by the trial judge, who had simply concluded, after summarising the content of some of the offending material, that his experience informed him that he could ensure impartiality by directing the jury appropriately.",
"79. Finally, the applicant referred to the content of the material published in the media. That there had been significant disclosure of non-evidential material by the executive had been conceded by the prosecution (see paragraph 30 above). The publications were rendered more authoritative because they were reported as emanating from politicians, the Executive, the CPS and senior retired police officers involved in the investigation of the case. The material suggested that the applicant was far more deserving of conviction for reasons that the jury had not been permitted to know. The publications attacked not only the outcome of the first trial but also the judge and the jury for failing to produce a guilty verdict. The unrestrained and continuing labelling of the case as the “Airline Plot”, which was the very issue to be decided in the retrial, was hammered into the national consciousness by constant repetition.",
"80. The applicant argued that there was a real possibility that a potential jury panel might be affected by conscious or unconscious recollection of the previously published material. He considered that the enduring nature of the material was underlined by the breadth of the coverage, the circulation figures of the publications in question, the fact that there was news coverage on all television channels and that Internet coverage was, and remained at the date of Henriques J ’ s ruling, enormous. He distinguished this Court ’ s decision in Mustafa (Abu Hamza) (No. 1) v. United Kingdom (dec.), no. 31411/07, § 39, 18 January 2011, on a number of grounds, including the generalised nature of the reporting in that case compared to the specific reporting on the trial and the facts to be decided by the jury in his case; the delay of over a year between the reporting and the trial in Mustafa (Abu Hamza) compared to the period of just five months in his case; and the specificity of the trial judge ’ s directions in Mustafa (Abu Hamza) compared to the “entirely formulaic and minimal” directions in his case. He also referred to new broadcasts and publications during trial which the trial judge had not found to be in contempt of court.",
"(b) The Government",
"81. The Government emphasised that before any violation of Article 6 § 1 could be found, there had to be cogent evidence that concerns as to the impartiality of jurors were objectively justified. They argued that four points emerged from the Court ’ s case-law on the question of adverse publicity (referring to Mustafa (Abu Hamza), cited above ). First, there was a risk that adverse publicity, particularly when unremitting and sensational, might prejudice a jury but the domestic case-law showed that English courts were well aware of that risk. Second, in the majority of cases the nature of the trial process and the role of the trial judge in directing the jury would ensure that the proceedings were fair. Third, in deciding whether a case was so exceptional that a fair trial was no longer possible, domestic courts were better placed to make the assessment than the Court. Fourth, the approach in England reflected not only the experience of the domestic courts but that of criminal justice systems throughout the common law world and that experience had to be respected.",
"82. The Government accepted that there was a large amount of adverse publicity relating to the allegations against the applicant and his co-defendants in advance of the retrial. However, they argued that there was no basis for concluding that the jury was not impartial. First there was no evidence of subjective bias. Second, the charge against the applicant was determined in adversarial proceedings by a randomly selected jury after a long trial. A large volume of evidence was adduced before the jury. The evidence was subjected to cross-examination and the applicant ’ s counsel had the opportunity to address the jury on the issues in the case. There was no reason to suppose that the jury had not conscientiously discharged its duty to decide the case on the evidence presented in court.",
"83. Third, the jury was given full and unequivocal directions to ignore adverse publicity and to concentrate on the evidence before them. These directions were given during jury selection, when the prosecution began opening the case, during the trial, shortly before the jury retired to consider its verdict and when the jury was in retirement (see paragraphs 35 - 42 above). It was evident that the trial judge had taken particular care to assist the jury to reach a true verdict according to the evidence, and this was therefore a highly material safeguard.",
"84. Fourth, the fact that there was adverse publicity after the applicant ’ s conviction on Count 1A and before his retrial on Count 1 did not distinguish his case. There were clear safeguards against partiality in the trial process, and the judicial directions were carefully tailored to the particular circumstances of his case. Moreover, as the trial judge noted, there was a period of five months between the publicity and the start of the trial, and about a year between the publicity and the verdicts. This was relevant because, as had been recognised by the courts, the staying power of media reports was limited.",
"85. Fifth, the verdicts delivered indicated that the jury had decided the case based on the evidence. Different verdicts were reached in respect of different defendants on different counts. The differentiation tended to suggest that the jury had carefully weighed the evidence presented in court.",
"86. Finally, the trial court and the Court of Appeal had carefully analysed the arguments currently before this Court and had rejected them. There was no basis for concluding that their analysis was incorrect. Again, the Government emphasised that the domestic courts were best placed to assess the fairness of proceedings in such a case.",
"2. The Court ’ s assessment",
"(a) General principles",
"87. A virulent press campaign can adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors called upon to decide the guilt of an accused. In this way it risks having an impact on the impartiality of the court under Article 6 § 1 as well as the presumption of innocence enshrined in Article 6 § 2 (see Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999 ‑ V; and Beggs v. the United Kingdom (dec.), no. 15499/10, § 123, 16 October 2012). If there is a virulent press campaign surrounding a trial, what is decisive is not the subjective apprehensions of the suspect but whether, in the particular circumstances of the case, his fears can be held to be objectively justified (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000; Włoch v. Poland (dec.), no. 27785/95, 30 March 2000; Priebke v. Italy (dec.), no. 48799/99, 5 April 2001; and Beggs, cited above, § 123).",
"88. The Court has previously identified various matters that it considers relevant to the assessment of the impact of adverse publicity on the fairness of the trial or on respect for the presumption of innocence. Thus, it has made clear that there is unlikely to be any arguable complaint under Article 6 where the criminal charges are determined by professional judges, since their professional training and experience allow them to disregard any external influence (see, for example, Priebke, cited above; and G.C.P. v. Romania, no. 20899/03, § 48, 20 December 2011).",
"89. Even in cases involving jury trials, an appropriate lapse of time between the appearance of any prejudicial commentary in the media and the subsequent criminal proceedings, together with any suitable directions to the jury, will generally suffice to remove any concerns regarding the appearance of bias (see Beggs, cited above, § 124-128; and, as regards in particular the importance of jury directions, Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000; and Mustafa (Abu Hamza), cited above, § § 39 -40 ). In particular, where the impugned newspaper reports appeared at a time when the future members of the jury did not know that they would be involved in the trial process, the likelihood of any appearance of bias is all the more remote, since it is highly unlikely that the jury members would have paid any particular attention to the detail of the reports at the time of their publication (see Beggs, cited above, § 126). In such cases, a direction to the jury to disregard extraneous material will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial press campaign (for an example where such a direction was sufficient, see Beggs, cited above, § 128). It is essential to underline in this respect that it is reasonable to assume that a jury will follow the directions given by the judge in the absence of any evidence suggesting the contrary ( Beggs, cited above, § 128; and Szypusz v. the United Kingdom, no. 8400/07, § 85, 21 September 2010).",
"90. In some cases concerning adverse press publicity, the Court has looked at whether the impugned publications were attributable to, or informed by, the authorities (see, for example, Sutyagin v. Russia (dec.), no. 30024/02, 8 July 2008; and Beggs, cited above, § 127 ). However, it is important to emphasise that the fact that the authorities were the source of the prejudicial information is relevant to the question of the impartiality of the tribunal only in so far as the material might be viewed by readers as more authoritative in light of its source. The question whether public officials have prejudged a defendant ’ s guilt in a manner incompatible with the presumption of innocence is a separate issue to be considered under Article 6 § 2, with the focal point being the conduct of those public officials and not the impartiality of the tribunal itself (see, for example, Allenet de Ribemont v. France, 10 February 1995, §§ 39-41, Series A no. 308). Thus, while the authoritative nature of the published material may require, for example, a greater lapse of time or most robust jury directions, it is unlikely in itself to lead to the conclusion that a fair trial by an impartial tribunal is no longer possible. In particular, allegations that any disclosure of prejudicial material by the authorities was deliberate and was intended to undermine the fairness of the trial are irrelevant to the assessment of the impact of the disclosure on the impartiality of the trial court.",
"91. It can be concluded from the foregoing that it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible. Indeed, the applicant has not pointed to a single case where this Court has found a violation of Article 6 on account of adverse publicity affecting the fairness of the trial itself. As noted above, the trial judge, when invited to consider the effect that an adverse media campaign might have on a “tribunal”, has at his disposal various possibilities to neutralise any possible risk of prejudice to the defence and ensure an impartial tribunal. In cases involving trial by jury, what is an appropriate lapse of time and what are suitable directions will vary depending on the specific facts of the case. It is for the national courts to address these matters – which, as the Law Commission observed in its 2012 consultation paper (see paragraph 67 above), are essentially value judgments – having regard to the extent and content of the published material and the nature of the commentary, subject to review by this Court of the relevance and sufficiency of the steps taken and the reasons given.",
"(b) Application of the general principles to the facts of the case",
"92. There is no suggestion that the applicable legal framework was defective as regards the safeguards provided with a view to ensuring a fair trial in circumstances – such as occurred in the present case – of adverse publicity following a trial and preceding a retrial (see paragraphs 52 et seq. above). In particular, the relevant domestic case-law sets out a meticulous analysis of how a trial judge is to assess the risk of adverse publicity prejudicing a fair trial and then to deal appropriately with such a risk (see paragraphs 58 - 61 above). As a consequence, a trial judge faced with a challenge to the fairness of proceedings based on adverse publicity is able to take a variety of steps during the trial process, within an established and adequate legal framework which provides appropriate guidance, aimed at securing the fairness of the trial. The question in the present case is whether the steps taken by the trial judge were sufficient in all the circumstances of the case.",
"93. It has not been disputed that in the instant case the material published following the announcement of the verdicts after the first trial included evidence not adduced at trial. The judge at the retrial described an “avalanche of objectionable material” (see paragraph 28 above). The Court cannot but accept that the material was prejudicial to the applicant.",
"94. After the retrial had been announced, the applicant sought a stay on proceedings. In his application for a stay, he invoked arguments concerning the impact of adverse publicity between the trial and the announcement of the retrial. The judge considered the applicant ’ s arguments in a careful and detailed judgment. He readily accepted that the multiplicity and breadth of the prejudicial reporting had to be considered in order to gauge the potential effect upon jurors exposed to the media reports and confirmed that, in order to assess their impact, he had read everything to which his attention had been drawn (see paragraph 27 above). He rejected as “fanciful” the suggestion that the authorities had deliberately briefed the press with a view to disadvantaging the applicant in the retrial (see paragraph 30 above). He also found no evidence that the State had manipulated and abused the court process by failing to restrain publicity resulting from its own press briefings (see paragraph 31 above).",
"95. On the question whether the applicant could still receive a fair trial, the judge rightly reminded himself that the gravity of the allegations made against the applicant was wholly irrelevant to his assessment and that there could be no weighing of the public interest against the applicant ’ s right to a fair trial (see paragraph 32 above). He considered that sufficient time would have passed since the end of the prejudicial reporting on 14 September 2008 until the commencement of the retrial scheduled for 16 February 2009. He also expressed his confidence that the jury would decide the case on the basis of the evidence and would follow the directions given to them. He undertook to give the jury members, at the outset of the trial, “a most careful direction tailored particularly to this case”, to canvass the direction with counsel before delivering it and, if necessary, to repeat it from time to time (see paragraphs 33 - 34 above).",
"96. In the event, the retrial did not commence until 2 March 2009, almost six months after the prejudicial reporting had ceased (see paragraph 35 above). It is clear that during jury selection, the trial judge took care to underline the importance of impartiality and asked questions to elicit any information which might put the impartiality of any particular jury member in doubt (see paragraphs 36 - 38 above). The applicant does not suggest that the judge failed to discharge any particular jury member during this process. Once the jury had been selected, the judge gave a lengthy direction in which he alluded to prior “inaccurate and unsatisfactory reporting” and emphasised that the jury had to decide the case on the evidence heard in court and nowhere else. He warned them not to speak about the case to family and friends, not to read newspaper report or watch television broadcasts about the case and not to carry out any research, including on the Internet (see paragraph 39 above). The applicant has not suggested that, at the commencement of the retrial, he objected to the direction proposed by the trial judge. Throughout the trial, the judge repeated his injunction to the jury not to discuss the case with family or friends and not to carry out research (see paragraphs 40 - 41 above). During his summing-up, the judge again reminded the jury that they should not discuss the case with anyone other than other jury members and, after the jury had retired to deliberate, he reminded them each evening that they should not discuss the case outside the jury room (see paragraph 42 above).",
"97. The judge ’ s ruling on the application for a stay was reviewed by the Court of Appeal. It is noteworthy that the applicant did not pursue on appeal allegations that the publicity and disclosure of certain facts by the State had been deliberate (see paragraph 49 above). The court not only was “entirely satisfied” that the retrial judge had applied the correct principles and come to a conclusion that was open to him, but also agreed with him that, given the trial process and the time that had elapsed before the retrial, there was no risk of any appearance of bias (see paragraphs 48 - 49 above).",
"98. The Court is likewise satisfied that the reasons given by the judge in the retrial for refusing the application for a stay on proceedings and by the Court of Appeal for dismissing the appeal were both relevant and sufficient. When publication of the prejudicial material commenced, the decision to pursue a retrial had not yet been made. Any members of the public exposed to the reports would not have known at that time that they would be involved in the subsequent retrial. The trial judge considered whether sufficient time had elapsed to allow the reports to fade into the past, having carefully reviewed the content of each and every instance of reporting to which his attention had been drawn, and recognised the need for careful jury directions, which he subsequently delivered. There is nothing in the circumstances of the case to suggest that the jury could not be relied upon to follow the judge ’ s instructions to try the case only on the evidence heard in court. The fact that the jury subsequently handed down differentiated verdicts in respect of the multiple defendants in the retrial proceedings, including three acquittals on Count 1 (see paragraph 43 above), supports the trial judge ’ s conclusion that the jury could be trusted to be discerning and to ignore previous media reports and, consequently, decide the case fairly on the basis of the evidence led in court.",
"99. For these reasons, the Court concludes that it has not been shown that the impugned publications were capable of influencing the jury to the point of prejudicing the outcome of the proceedings and rendering his trial unfair. There has accordingly been no violation of Article 6 § 1 in the present case."
] |
287 | Otegi Mondragon and Others v. Spain | 6 November 2018 | This case concerned the applicants’ complaint of bias on the part of the panel of the first instance court which had convicted them for being members of the ETA organisation. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. It found in particular that the first applicant in the case had previously won an appeal against a conviction on different ETA-related charges because the presiding judge had shown a lack of impartiality, which had contaminated the whole panel in that case and had led to a retrial. The same panel, including the judge who had presided in the earlier trial, had convicted all five applicants in a second set of proceedings on different charges a year later. The applicants had thus had objectively justified fears that these judges lacked impartiality in their case. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"4. The applicants were born in 1958, 1977, 1956, 1981 and 1979, respectively (see appendix).",
"A. Previous proceedings before the Audiencia Nacional concerning the first applicant",
"5. On 2 March 2010 the first applicant was sentenced to two years ’ imprisonment by a panel of the Fourth Section of the Audiencia Nacional for encouragement of terrorism ( enaltecimiento del terrorismo ). He was also acquitted of the charges of unlawful assembly and association ( reunión ilícita y asociación ilítica ).",
"6. The first applicant brought a cassation appeal before the Supreme Court, challenging, inter alia, the impartiality of the President of the Fourth Section of the Audiencia Nacional and judge rapporteur of that judgment (hereinafter “the presiding judge”), as she had displayed hostility towards him during those criminal proceedings.",
"7. In particular, the first applicant argued that during the oral hearing, and once the applicant had finished his statement, the presiding judge had asked him whether he condemned ETA ’ s ( Euskadi Ta Askatasuna, the former armed Basque nationalist and separatist organisation) violence. The first applicant had refused to give an answer. The presiding judge had then replied that she “already knew that he was not going to give an answer to that question”.",
"8. On 2 February 2011 the Supreme Court ruled in favour of the first applicant, finding that the presiding judge ’ s declarations during the trial had cast doubts on the absence of prejudice or bias. The Supreme Court stressed the following:",
"“The significance of the Judge ’ s action...cannot be reduced to an isolated assessment of the question raised by her, yet it must be put in direct connection with the comment that she made after the appellant refused to give an answer, as well as the nature of the charges, their legal characterization and the moment the question and the answer take place...",
"The question put by the presiding judge and, very particularly, her reaction to the appellant ’ s refusal to give an answer, can be interpreted, from an objective perspective, as an expression of a previously formed opinion...about the significance assigned to the words spoken by the appellant...The appellant had objectives reasons to think that the judge was precipitately voicing out a value judgment on the criminal nature of [his statements]”",
"9. The Supreme Court, assessing the proceedings as a whole, found that there were “objective reasons” to consider that the presiding judge (and judge rapporteur of the case) was expressing a prejudice against the first applicant about the significance that should be given to the phrases and words expressed by him, which had also led to a preconceived idea as to his guilt. This had taken place before the oral phase had terminated, i.e, before the presiding judge (as well as the whole panel) had had an opportunity to assess all the pieces of evidence brought before her and prior to the applicant ’ s right to have a last word. Thus, the applicant ’ s doubts as to the impartiality of this judge were “objectively justified”. Consequently, the Supreme Court declared that the judgment was void and ordered a re-trial by a new panel formed by three other judges different from the ones that were part of the composition of that panel.",
"10. As a result, a new and different composition of the Fourth Section of the Audiencia Nacional tried the applicant on the charge of encouragement of terrorism. On 22 July 2011 the Audiencia Nacional acquitted the applicant.",
"B. Proceedings before the Audiencia Nacional concerning all the applicants",
"11. In 2009, criminal proceedings were brought against all the applicants before the Audiencia Nacional, on the grounds that a political party that the applicants intended to create was in fact under the control of the terrorist organisation ETA. The applicants were accused of being members of this terrorist organisation. The facts have been referred to as the “ Bateragune Case”. These proceedings were allocated to the Fourth Section of the Audiencia Nacional, whose composition consisted of the same judges that had taken part in the first set of criminal proceedings followed against the first applicant, which ended with the judgment of 2 March 2010, finally declared void by the Supreme Court on 2 February 2011. This time the presiding judge was not the judge rapporteur.",
"12. The first applicant initiated proceedings to challenge the whole panel, arguing that the Section ’ s composition did not offer sufficient guarantees to exclude any legitimate doubt in respect of its impartiality, for the presiding judge had already showed signs of partiality and bias in previous criminal proceedings against him. According to the first applicant, the bias previously shown by the presiding judge created an objective situation which contaminated the impartiality of the judges. This also created a subjective situation of mistrust on the Section ’ s composition.",
"13. On 26 April 2011 a special chamber of the Audiencia Nacional (a chamber that, according to Article 69 of the Judicature Act is ex professo formed to deal with challenge proceedings) ruled against the first applicant. According to the Audiencia Nacional, these new proceedings had a different object, i.e. his belonging to a terrorist organisation and the existence of strong and permanent links with ETA, which had nothing to do with his previous charge of encouragement of terrorism. Neither the question previously put by the presiding judge (see paragraph 7 above) nor her subsequent reaction showed any sign of prejudice against the first applicant.",
"14. On 16 September 2011 the Audiencia Nacional delivered its judgment and sentenced the first and third applicants to ten years ’ imprisonment for being a member and leader of a terrorist organisation. The second, fourth and fifth applicants were sentenced to eight years ’ imprisonment for belonging to a terrorist organisation. All applicants were further disqualified from taking part in elections for the same length of time as their respective prison sentences.",
"15. All the applicants brought a cassation appeal before the Supreme Court. The first and fifth applicants contested in particular the impartiality of the panel of the Fourth Section of the Audiencia Nacional reiterating the same arguments that were brought during the challenging proceedings before the Audiencia Nacional.",
"16. On 7 May 2012 the Supreme Court, in a 3 to 2 decision, partially upheld the applicants ’ appeals and reduced their sentence to six years and six months ’ imprisonment in respect of the first and third applicants and six years in respect of the second, fourth and fifth applicants. The disqualification from taking part in elections was confirmed. However, the Supreme Court rejected the applicants ’ arguments concerning the alleged violation of the their right to an impartial tribunal by declaring that the bias displayed by the presiding judge against one of the applicants during previous and different proceedings did not reach the necessary threshold to believe that the judges (and, specifically, the presiding judge) had become again biased or prejudiced, not only against the first applicant but against all of them. According to the Supreme Court, there was no evidence apart from what happened in previous proceedings that supported the alleged partiality of the judges. The Supreme Court stressed the following:",
"“To presume that every judge that has been declared biased in previous proceedings must be forcefully contaminated in any other further proceedings...implies to issue a universal judgment on bias that lacks a minimum objectives proofs ad causam ...The question of subjective partiality or impartiality and even in many cases of objective impartiality is a very delicate one since it directly affect the composition of the Tribunals subject to the rule of law. Consequently, the appearances can only be relevant if they have a connection with the legal causes to challenge a judge as established by the lawmaker...in the sense that it is not possible to established different causes according to an analogic criterion or treating the appearance as an autonomous cause with its own procedural life...Therefore, the complaint must be rejected”",
"17. Two of the Supreme Court ’ s judges issued two separate dissenting opinions. According to the first dissenting opinion (which was endorsed, in substance, by the second dissenting judge), the applicants ’ right to an impartial tribunal had indeed been violated, because the preconceived idea showed by the presiding judge in previous criminal proceedings against the first applicant also affected her judgment during subsequent proceedings. This lack of impartiality also had affected the other two judges of the panel. Consequently, a new trial before a different panel of judges should have been ordered. According to the second dissenting opinion, however, there was not enough evidence to support the applicants ’ conviction. Consequently, the fact that the Fourth Section of the Audiencia Nacional lacked impartiality, although true, was irrelevant, for the applicants should have been acquitted by the Supreme Court.",
"C. Proceedings before the Constitutional Court",
"18. On 21 June 2012 the third applicant lodged a separate amparo appeal against the judgments of 16 September 2011 and of 7 May 2012, arguing, inter alia, that there was not sufficient evidence to substantiate the applicant ’ s conviction. On 27 June 2012 the first, second, fourth and fifth applicants lodged an amparo appeal with the Constitutional Court against these judgments, arguing, inter alia, that the panel composition of the Fourth Section of the Audiencia Nacional fell short of the requirements of an impartial tribunal.",
"19. On 22 July 2014 the Constitutional Court, in a 7 to 5 decision, ruled against the first, second, fourth and fifth applicants. The majority of the Constitutional Court found that the doubts as to the presiding judge ’ s impartiality were neither subjectively nor objectively justified. The Constitutional Court observed that the doubts on the presiding judge were in connection with previous proceedings dealing with a different subject, i.e. the determination on whether the first applicant had committed the crime of encouragement of terrorism, which differed from the charges they were all accused of in the framework of the second set of criminal proceedings. The two proceedings did not present enough similarities as to cast doubts on the judges ’ impartiality.",
"20. The five dissenting judges were of the opinion that the applicants ’ right to an impartial tribunal had been violated. In particular, they considered that the presiding judge ’ s conduct in previous proceedings was a clear sign of a preconceived idea regarding the first applicant ’ s guilt, which made her impartiality during the proceedings against all applicants questionable.",
"21. On 22 September 2014 the Constitutional Court ruled against the third applicant in a 4 to 2 decision."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Constitution",
"22. Article 24 of the Spanish Constitution reads as follow:",
"“1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.",
"2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.",
"The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.”",
"B. The Judicature Act",
"Section 217",
"“Judges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.”",
"Section 219",
"“Grounds for withdrawal or, where appropriate, a challenge, include:",
"...",
"9. Friendship or self-evident enmity between the judge and any of the parties.",
"10. Have direct or indirect interest in the outcome of the proceeding.",
"...",
"13. Having held public office or post where he or she previously participated directly or indirectly in anything related to the case",
"...”",
"Section 221",
"“A judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged.",
"...”",
"C. The Criminal Procedure Code",
"Section 954 § 3, as modified by Law 41/2015, of 5 October 2015",
"\" A request for review of a final decision may be made when the European Court of Human Rights has declared that this decision is contrary to the rights recognised in the European Convention on Human Rights and Fundamental Freedoms as well as in its Protocols, provided that the violation, by its nature and seriousness, entails persistent effects which can not cease otherwise than through this revision.",
"In this case, the review can only be requested by the person who, having the legitimacy to bring such an appeal, was the applicant to the European Court of Human Rights. The request must be made within one year after the judgment of the Court has become final.\"",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION",
"23. The applicants complain under Article 6 § 1 of the Convention that the Fourth Section of the Audiencia Nacional lacked impartiality, as this Section had previously been declared biased against the first applicant by the Supreme Court in the framework of previous criminal proceedings where the first applicant was finally acquitted of all charges. Article 6 § 1 which reads as follows in its relevant part:",
"“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (...)”.",
"24. The Government contested that argument.",
"A. Admissibility",
"1. Lack of victim status of the second, third, fourth and fifth applicants",
"25. The Government submitted that the second, third, fourth and fifth applicants could not claim to be “victims”, for the purposes of Article 34 of the Convention, of the facts of which they complained. In support of their objections, the Government claimed that these applicants had not taken part in the previous criminal proceedings that had been declared void by the Supreme Court in view of the presiding judge ’ s lack of impartiality.",
"26. The applicants, for their part, submitted that the presiding judge ’ s behaviour in the previous criminal proceedings followed against the first applicant casted serious doubts on her impartiality (as well as on the impartiality of the two other judges being part of the Section) which led to a subjective feeling of mistrust that was objectively justified.",
"27. The Court notes that all that Article 34 of the Convention requires is that an applicant should claim to have been affected by an act, omission or situation said to be in breach of the Convention. Thus, the questions whether the applicants have in fact been so affected and whether they are actually the victims of a breach go to the merits of the case (see Klass and Others v. Germany, 6 September 1978, §§ 33 and 38, Series A no. 28; Doğan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 93, ECHR 2004-VI (extracts); Al- Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 106-07, ECHR 2011-IV; and Dimov and Others v. Bulgaria, no. 30086/05, § 61, 6 November 2012).",
"28. Consequently, the Government ’ s preliminary objection of a lack of victim status is rejected.",
"2. Non exhaustion of domestic remedies",
"( a ) As regards the first applicant",
"29. The Government raised an objection of failure to exhaust domestic remedies as regards the first applicant by claiming the applicant did not bring a specific complaint about the alleged lack of “subjective” impartiality.",
"30. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France ( dec. ) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of directly resolving the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The Court notes that the application of this rule must make due allowance for the context of the individual case including, among other things, the personal circumstances of the applicant. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-66 and 69, Reports of Judgments and Decisions 1996 ‑ IV).",
"31. When assessing impartiality, the Court has distinguished between a subjective approach ( i.e., endeavouring to ascertain the personal conviction or interest of a given judge in a particular case) and an objective approach, i.e. determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect ( Kyprianou v. Cyprus [GC], § 118; Piersack v. Belgium, § 30; and Grieves v. the United Kingdom [GC], § 69). The Court recalls that there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) ( Korzeniak v. Poland, no. 56134/08, § 49, 10 January 2017; and Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII).",
"32. The Court observes that the complaint concerning the impartiality of the Fourth Section of the Audiencia Nacional on the ground that it had previously been declared biased in former proceedings, was properly raised “in substance” in the framework of the domestic proceedings and in compliance with the formal requirements and time-limits laid down in domestic law (see Castells v. Spain, 23 April 1992, § 27, Series A no. 236; and Guzzardi v. Italy, 6 November 1980, § 72, Series A no. 39). Indeed, the applicant brought properly to the attention of the domestic tribunals his fears as to the lack of impartiality of the presiding judge (and, consequently, the whole new panel) on the grounds of her previous behaviour displayed in the framework of previous criminal proceedings where the Supreme Court had determined that it casted doubts on the absence of prejudice or bias against him.",
"33. Therefore, the Government ’ s objection that the first applicant failed to exhaust domestic remedies must therefore be dismissed.",
"( b ) As regards the third applicant",
"34. The Government observed that the third applicant did not raise this specific complaint before the domestic courts, namely, by challenging the judge(s) before the Audiencia Nacional or through the cassation appeal and the amparo appeal lodged with the Supreme Court and the Constitutional Court, respectively. The Government further argued that the amparo appeal was an effective remedy compatible with the requirements of Article 13 of the Convention.",
"35. The third applicant noted that the first applicant had properly raised this specific complaint before domestic courts and by that giving the opportunity to the State to put matters right through their own legal systems.",
"36. The Court notes that all of the applicants were defendants in the same criminal proceedings facing the similar criminal charges based on the similar incriminating evidence. The Court further notes that the remaining applicants brought to a sufficient degree all of the matters raised in the present complaint to the attention of the domestic courts in their appeal (specially their amparo appeal). Indeed, the first applicant challenged the presiding judge before the Audiencia Nacional and brought a cassation appeal and an amparo appeal with both the Supreme Court and the Constitutional Court where he specifically brought this particular complaint. In the same manner, the second, fourth and fifth applicant also brought this complaint before the Constitutional Court.",
"37. Accordingly, in so far as the third applicant was in the same situation as the other applicants and raised the same complaints before the Court, the domestic appeal lodged by the other applicants brought to the domestic authorities ’ attention all of the alleged defects in the trial that affected all of them, including the third applicant (see Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 136-137, 26 July 2011).",
"38. In those circumstances, the Court is of the view, because all the appeal Courts (namely, the Audiencia Nacional, the Supreme Court and the Constitutional Court) examined the substance of applicants ’ complaint, that the Government ’ s objection of non-exhaustion of domestic remedies must be dismissed.",
"( c ) As regards the second, fourth and fifth applicants",
"39. Furthermore, the Government raised an objection of failure to exhaust domestic remedies as regards the second, fourth and fifth applicants applicant by claiming that they did not raise the present issue neither before the Audiencia Nacional (by challenging the composition of the Fourth Section) nor before the Supreme Court through the cassation appeal. The applicants raised the present complaint only before the Constitutional Court.",
"40. The Court observes that, despite the fact that these applicants did not raise the complaint concerning the lack of impartiality of the Fourth Section of the Audiencia Nacional before the Audiencia Nacional itself or the Supreme Court, they did bring properly to the attention of the domestic tribunals their fears as to the lack of impartiality of the presiding judge, namely, through the amparo appeal lodged with the Constitutional Court, which thoroughly addressed the issue and by that examined the substance of the applicants ’ complaint. It follows that the Government ’ s objection of non-exhaustion of domestic remedies as regards the second, fourth and fifth applicants must be dismissed.",
"3. Conclusion",
"41. The applications cannot be dismissed on the grounds that the second, third, fourth and fifth applicants lacked victim status or that the applicants failed to exhaust domestic remedies. The Court therefore rejects the preliminary objections raised by the respondent Government. It further considers that the applicants ’ complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant",
"42. The applicants stressed that the presiding ’ s judge behaviour in previous proceedings, where she and the whole composition had been declared biased against the applicant by the Supreme Court, created a situation which had rendered their fears objectively justified.",
"43. According to the applicants, the fact that the first applicant was finally acquitted once a different composition of the Audiencia Nacional addressed his case was a clear sign that the former Section of the Audiencia Nacional had not been impartial.",
"44. The applicants further argued that the second set of criminal proceedings had a direct legal and factual connection with the first set of proceedings, as in both proceedings the nature of the links with ETA were assessed and judged upon. The act of refusing to condemn the actions of ETA was not in itself a clear sign of belonging to a terrorist organization, yet it could be considered as a relevant element (namely, circumstantial evidence) to support the believe that the first applicant did or did not belong to the terrorist organization ETA.",
"45. The fact that the same composition had sat on the bench of the Fourth Section of the Audiencia Nacional sufficed in itself to show that there had been a violation of Article 6 § 1 of the Convention.",
"(b) The Government",
"46. The Government argued that there were several differences between both set of criminal proceedings. The first set of proceedings was only brought against the first applicant, while the second set of proceedings was brought against all the applicants. The charges were also different. While in the first set of proceedings the first applicant was charged with unlawful assembly and association and for encouragement of terrorism, in the second set of proceedings all the applicants were charged with belonging to a terrorist organization (some of them were also charged with being a leader of a terrorist organization). Additionally, the Government stress the fact that the presiding judge was not the judge rapporteur in the second set of proceedings.",
"47. The Government additionally pointed out that what had happened in the previous set of criminal proceedings could not have had any effect on the second set of proceedings. They argued that the alleged partiality of the presiding judge had not prevented her from acquitting the first applicant of the other two charges he was accused of in that first set of criminal proceedings. In fact, that composition of the Audiencia Nacional had acquitted the applicant of the charge of illegal association, which presented some similarities with the charge of belonging to a terrorist organization. They also stressed the fact that the presiding judge had not displayed any sign of bias in the second set of proceedings that could cast doubts as to her impartiality. There were thus no doubts as to the subjective impartiality on the part of the judges who had tried the applicants.",
"48. The Government also added that, since the presiding judge was not the judge rapporteur in the second set of proceedings, her vote was not decisive.",
"49. They also pointed out the fact that the applicants had changed their legal strategy in the framework of the domestic proceedings, previously claiming that there had been a lack of objective impartiality and afterwards indicating that there had been a lack of subjective impartiality.",
"50. According to the Government, the applicants ’ intent to prevent the presiding judge from addressing any ETA-related issue was in clear violation of the right to a fair trial by a tribunal established by law.",
"51. The Government finally stressed that, in any case, the reasons that could cast doubts as to the Section ’ s lack of impartiality towards the first applicant could not display a general effect on all the remaining applicants.",
"2. The Court ’ s assessment",
"(a) General principles",
"52. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII; and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009).",
"53. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, cited above, § 119, and Micallef, cited above, § 94). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).",
"54. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).",
"55. As to the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96).",
"56. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings ( ibid ., § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38).",
"57. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII; and Micallef, cited above, § 98).",
"(b) Application of those principles in the present case",
"58. The Court observes that in the present case the fear of a lack of impartiality laid in the fact that presiding judge had been previously declared biased against the first applicant in a previous set of criminal proceedings which not only had a connection with terrorist activities but also with the applicant ’ s support (or lack of) of ETA as a central element.",
"59. The Court must firstly address the reference made by the Government as to the applicants ’ change of legal strategy, in that they firstly argued that the panel of the Fourth Section lacked impartiality from an objective approach, then changing to a subjective approach. The Court recalls that there is no watertight division between subjective and objective impartiality. In any case, the Court observes that the applicants properly raised in substance the complaint concerning the impartiality of the Fourth Section of the Audiencia Nacional before the domestic authorities, both from a subjective and an objective approach.",
"60. The Court is not persuaded that there is evidence that the presiding judge (or any other member of the panel) displayed personal bias against the applicants in the framework of the second set of criminal proceedings. In the Court ’ s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicants ’ doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case.",
"61. The Court firstly takes the view that, according to the Supreme Court in its judgment of 2 February 2011 the question put by the presiding judge and, very particularly, her reaction to the appellant ’ s refusal to give an answer, could be interpreted, from an objective perspective, as an expression of a previously formed opinion on the first applicant ’ s guilt (see paragraph § 7 above). This had also contaminated the whole composition of the panel which led the Supreme Court to order a re-trial by a new and different composition of the panel, where none of the three judges could take part. In addition to this, it cannot be ignored that the applicant, who had been initially declared guilty by the former panel of the Fourth Section of the Audiencia Nacional, was finally acquitted after a different panel of judges tried him. The Court notes that this fact, if not conclusively, strongly contributes to the existence of a legitimate fear as to the former panel ’ s lack of impartiality.",
"62. The Court observes that that same panel of three judges was in charge of trying all the applicants in a second and different set of criminal proceedings, where they were accused, inter alia, of belonging to a terrorist organization, namely, ETA.",
"63. The Court observes that the very singular context of the case cannot be overlooked. It notes that the charge for which the first applicant had been convicted in the first set of proceedings (and later acquitted by a new and different panel composition) could in some way or another be associated with the acts, values and/or goals of the terrorist organization ETA. Indeed, the applicant was initially convicted for encouragement of terrorism, which, in the Spanish context in general at that time – and the first applicant ’ s individual context in particular – was inevitably associated with the terrorist activity of ETA. The presiding judge had showed at that time, as it was confirmed by the Supreme Court, a prejudice against the applicant as regards what she thought was a sort of affinity with the terrorist organization ETA.",
"64. The second set of criminal proceedings, even if they did not deal with similar facts and charges addressed in the first set of criminal proceedings, had the ETA organization and its terrorist activities as a central element: all the applicants were accused either of belonging and being the leaders of or just belonging to a terrorist organization. Consequently, when analysing the first applicant ’ s link with ETA, the previous prejudice concerning his possible affinity to this terrorist organization inevitably casts doubts, at least from an objective approach, as to the presiding ’ s judge impartiality.",
"65. The Court considers that the fact that the presiding judge had publicly used expressions which implied that she had already formed an unfavourable view of the first applicant ’ s case before that case had been finally decided, appears clearly incompatible with her participation in the second set of criminal proceedings. The statements made by the presiding judge, her subsequent behaviour, as well as the following annulment of the judgment were such as to objectively justify the first applicant ’ s fears as to her impartiality (see Morice v. France [GC], no. 29369/10, §§ 79-92, ECHR 2015, Olujić v. Croatia, no. 22330/05, § 59, 5 February 2009, Buscemi v. Italy, no. 29569/95, § 68, ECHR 1999 ‑ VI; and, mutatis mutandis, Lavents v. Latvia, no. 58442/00, §§ 118 and 119, 28 November 2002).",
"66. As regards the presiding ’ s judge lack of impartiality concerning the remaining applicants, the Court observes that all the applicants were charged with belonging to the same terrorist organization. This type of crime necessarily implies a certain degree of collectivity. Indeed, the domestic courts analysed several pieces of evidence involving all the applicants, their strong interpersonal relationship and their common activities. Thus, in the context described, it cannot be completely ruled out that the unfavourable view of the presiding judge as regards the first applicant ’ s guilt may have had also a negative impact on the remaining applicants. The presiding judge ’ s previous behaviour (as well as the later annulment of the judgment by the Supreme Court) could objectively justify the remaining applicants ’ fears as to her impartiality.",
"67. The last question would be whether the presiding ’ s judge lack of objective partiality could also cast doubts as to the two remaining members of the panel of the Fourth Section. The Court takes the view that the same rationale that led the Supreme Court to believe that the presiding ’ s judge lack of impartiality made it necessary to repeat the trial with a new and different composition of the panel must be applicable to the present case. Additionally, the Court notes that the Government ’ s argument to the effect that the presiding judge was no longer the judge rapporteur is not decisive for the objective impartiality issue under Article 6 § 1 of the Convention. Indeed, in view of the secrecy of the deliberations, it is impossible to ascertain the presiding ’ s judge ’ s actual influence on that occasion (see, mutatis mutandis, Morice [GC], cited above, § 89). Therefore, the impartiality of that court could be open to genuine doubt.",
"68. Having regard to the foregoing, the Court finds that in the present case the applicants ’ fears could have been considered objectively justified.",
"69. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention.",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"70. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"71. The first, second, fourth and fifth applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.",
"A. Damage",
"72. Only the third applicant claimed EUR 40,000 euros in respect of non-pecuniary damage.",
"73. The Government argued that the applicant ’ s claim was mostly unsubstantiated.",
"74. Where, as in the instant case, a person is convicted in domestic proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the Court has held that the most appropriate form of redress would, in principle, be a retrial or the reopening of the case, at the request of the interested person (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; Sejdovic, cited above, § 126; and Cudak v. Lithuania [GC], no. 15869/02, § 79, ECHR 2010). In this connection, it notes that Section 954 § 3 of the Spanish Criminal Procedure Code, as modified by Law 41/2015, of 5 October 2015, it appears to provide for the possibility of revision of a final decision where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of its Protocols.",
"75. The Court furthermore notes that it has previously concluded that a finding of a violation of Article 6 of the Convention constitutes sufficient just satisfaction for the purposes of Article 41 of the Convention when such procedural arrangements were in place under the domestic law (see, among recent authorities, Hokkeling v. the Netherlands, no. 30749/12, §§ 67-68, 14 February 2017; and Zadumov v. Russia, no. 2257/12, §§ 80-81, 12 December 2017). It reiterates that the payment of monetary awards under Article 41 is designed to make reparation only for such consequences of a violation that cannot be remedied otherwise (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 250, ECHR 2000 ‑ VIII). Therefore, the finding of a violation constitutes sufficient just satisfaction in the present case.",
"B. Costs and expenses",
"76. The third applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court.",
"77. The Government contested this claim.",
"78. The Court notes that the applicant failed to provide the Court with any justification of the costs incurred. It therefore rejects this claim."
] |
288 | Atristain Gorosabel v. Spain | 18 January 2022 | This case concerned the pre-trial detention incommunicado of the applicant, who was alleged to be part of the terrorist group ETA, and the fact that he was questioned by the police without a lawyer present, making self-incriminating statements. Those statements had formed part of the reasons for his conviction for terrorism offences. | The Court held that there had been a violation of Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) of the Convention in the present case. It found, in particular, that preventing the applicant from having access to counsel without giving individualised reasons had undermined the fairness of the subsequent criminal proceedings in so far as the applicant’s incriminating initial statement was admitted in evidence. The absence of remedial measures during the trial had irretrievably prejudiced his defence rights. The Court further noted that the Code of Criminal Procedure had been amended by an Organic Law in October 2015 and currently provided an individual assessment of the particular circumstances of individuals held incommunicado. That amendment had not however been applicable at the time in question. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"2. The applicant was born in 1970. He is currently serving a seventeen-year sentence of imprisonment for membership of a terrorist group and possession of explosives. The applicant was represented by Mr Z. Reizabal Larrañaga, a lawyer practising in San Sebastian and by Mr O. Peter, a lawyer practising in Switzerland.",
"3. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. Within the context of an initial anti-terrorist investigation carried out by investigating judge no. 2 of the Audiencia Nacional, the applicant was arrested in France under a European arrest warrant and handed over to Spain, where he was remanded in custody for allegedly, along with other individuals, belonging to the terrorist group ETA. On 8 April 2010, the applicant, assisted by a lawyer chosen by him, after denying his alleged membership of ETA, waived his right not to testify before the investigating judge.",
"6. On 20 April 2010 the applicant was released on condition that he appear before the judge dealing with the case once a week.",
"7. On 20 June 2010, at the Public Prosecutor’s Office’s request, the pre-trial phase was discontinued for lack of evidence against the applicant. Other investigations against ETA continued. Within the framework of new inquiries, further evidence against the applicant was found, which led to a second set of proceedings.",
"8. On 28 September 2010, within the framework of the second set of proceedings, the Guardia Civil requested that investigating judge no. 2 of the Audiencia Nacional authorise eight entries to and searches of properties used by the cell of ETA to which the applicant allegedly belonged. The requested entries and searches were mainly aimed at locating two explosives depots, which investigations had revealed to have been organised and used by the applicant. Various sources of information had indicated that the applicant was a member of ETA and that he was storing a large number of explosives and firearms that were in a fit condition to be used.",
"9. On 29 September 2010, at 9:45 a.m., the Guardia Civil arrested the applicant. On 30 September 2010, investigating judge no. 2 of the Audiencia Nacional authorised his detention incommunicado in order to pre-empt the potential frustration of the ongoing investigation, which was primarily aimed at the location of explosives. Simultaneously, a search was carried out at his home, where computer equipment was seized. The detention incommunicado was ordered and supervised by a judge within the framework of a judicial procedure.",
"10. Once the detention incommunicado had been authorised by the investigating judge, the applicant was assigned legal aid. He was informed of his rights as a detainee – including his right not to testify against himself and his right to remain silent; however because his detention was incommunicado in nature, he was neither authorised to choose a lawyer nor to meet in private with the lawyer that had been assigned to him by way of State-funded legal aid (“legal-aid representative”) prior to his being interviewed by the police. During his detention incommunicado, the applicant gave two statements to the police, both in the presence of that legal-aid representative.",
"11. On 30 September 2010, the investigating judge ordered the extension of the applicant’s detention for a period of forty-eight hours in view of the nature of the offences under investigation and the large amount of computer material found during the search of the applicant’s home.",
"12. On 1 October 2010, at 7:23 a.m., in his first statement to the Guardia Civil, the applicant stated that he had “cooperated” with ETA and that his activities during his participation in that group’s terrorist activities had included acts such as attempted kidnapping, verifying details regarding a certain businessman in order that he could be assassinated, and providing information regarding certain police officers serving in the Basque Autonomous Community so that an attack could be planned against them; he also indicated a storage room where he kept explosives. The applicant’s legal-aid representative was present during the interview, and both the legal-aid representative and the applicant signed the applicant’s statement to the Guardia Civil and a document attesting to the fact that the applicant had been informed of his rights as a detainee. Later, the applicant’s legal-aid representative repeatedly tried to make contact with his client. The Guardia Civil informed the legal-aid representative that contact with his client was legally restricted because the applicant was being detained incommunicado. After the applicant had given his statement, a search was carried out of a storage space (indicated by the applicant) in the applicant’s home used to hide explosives, and a large amount of explosive material and computer equipment relating to the activities of ETA was found.",
"13. On 3 October 2010, at 3.13 a.m., the Guardia Civil took a new statement from the applicant, as there were strong suspicions that he knew of other sites at which was stored explosive material that was in a state to be used. Again, after the agents of the Guardia Civil had read out his rights – including his right to remain silent – the applicant made a statement informing them of a hidden place at his home where he still kept a firearm, bullets, various USB keys containing several training handbooks on terrorism, and some false licence plates. He made that statement despite the opposition of his legal-aid representative, who was present and indicated his opposition to the new interview taking place. Subsequently, at the applicant’s residence, the Guardia Civil found all the equipment that had been listed by the applicant in his latter statement.",
"14. During his detention incommunicado, the applicant was examined daily by a forensic doctor, to whom he reported that he had not suffered mistreatment by the Guardia Civil at any time, although he did claim that the Guardia Civil had threatened to arrest his girlfriend if he did not cooperate with them. The doctor submitted a medical report each day to the investigating judge in charge of the case.",
"15. On 4 October 2010 the applicant was brought before the investigating judge, to whom he indicated that his statements to the Guardia Civil had been obtained when being held incommunicado for five days and that for this reason he had made self-incriminatory statements. On the same day, the applicant’s detention incommunicado was lifted, and he was able to appoint a lawyer of his own choosing.",
"16. On 16 April 2013 the Audiencia Nacional convicted the applicant of being a member of a terrorist group and of possession of explosives. He was sentenced to seventeen years’ imprisonment. The conviction was based essentially on: material found on the seized computer material linking him to the terrorist group; the explosive material found in both his home and other places that had been indicated by him; incriminating statements given by the applicant’s co-defendants; statements given by witnesses; and the fact that the applicant had remained silent in response to questions from the prosecution. With reference to reports by the forensic doctor, the Audiencia Nacional ruled out the possibility that the applicant had been mistreated. It deemed that he had given his statements freely and voluntarily (see paragraphs 12 and 13 above), without coercion or pressure of any kind.",
"17. According to the judgment, it had been proved that the applicant had concealed the following effects, tools and instruments:",
"“The following material was found in the search carried out on 1 October 2010 in a storage room used by the defendant:",
"Six USB keys, detonators and three flap-type devices intended to activate explosive devices – [all] in perfect working order;",
"a device intended to activate car bombs;",
"fifty-six kilograms of potassium chlorate and 7 kg of sulphur; ammunition and pistol holsters, forty-six pistol cartridges, twenty detonator fuses;",
"a CD, with a handbook [produced by] the terrorist group;",
"five spent cartridges from the gun that had killed two police officers;",
"seven spent cartridges from a gun that had killed two people;",
"a reddish plastic with wrapping tape and rubber gloves, containing traces of the following explosive substances: ammonium nitrate, nitroglycerine and dinitrotoluene.",
"...",
"During the search carried out on 3 October 2010 at the applicant’s home, the following effects, tools and instrument were found:",
"a gun;",
"fifty cartridges;",
"twenty car registration plates;",
"two detonators intended to activate [explosive] devices;",
"a [detonator] timer;",
"...",
"Among the seized computer files were found: several [copies of] handbooks [containing] instructions [on how to behave] in the event of arrest; training videos on the use of weapons, explosives and security measures; information regarding police officers and politicians; and [plans for] placing a ‘van bomb’ by a hotel.”",
"Regarding the fact that the applicant’s legal-aid representative was not allowed, despite repeated attempts on his part, to communicate with his client, the first-instance court heard the legal-aid representative as a witness at the trial.",
"18. Following an appeal by the applicant, on 18 March 2014 the judgment of the Audiencia Nacional was upheld by the Supreme Court. It concluded that despite the applicant’s assertion that the Guardia Civil had threatened him with the arrest of his girlfriend, there was no evidence of any torture – either physical or psychological. With regard to the evidence that had been found in the applicant’s possession, the Supreme Court concluded that the large amount of material found in his possession, as well as the spent gun cartridges, revealed that not only had he stored explosives, but he had also been part of ETA.",
"19. On 7 May 2014 the applicant lodged an amparo appeal with the Constitutional Court. He argued that his right to be assisted by a lawyer of his own choosing had been violated (Article 24 § 2 of the Constitution). The amparo appeal was declared inadmissible on 7 November 2014 because the applicant had failed to “specifically and sufficiently justify its constitutional relevance”."
] | [
"RELEVANT LEGAL FRAMEWORK AND PRACTICE",
"Domestic law AND PRACTICE",
"20. The relevant provisions of the Spanish Constitution read as follows:",
"Article 17",
"“1. Everyone has the right to liberty and security. No one may be deprived of his liberty otherwise than in accordance with the provisions of this Article and in the circumstances and form provided by law.",
"2. Preventive detention may last no longer than the time strictly required in order to carry out the investigations aimed at establishing the facts; in any event, the person arrested must be set free or handed over to the judicial authorities within a maximum period of seventy-two hours.",
"3. Everyone who is arrested must be informed immediately, and in a manner that he can understand, of his rights and of the reasons for his arrest and cannot be required to make a statement. The assistance of a lawyer is guaranteed to persons detained in police investigations or criminal prosecutions, as provided by law...”",
"Article 24",
"“1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights.",
"2. Likewise, everyone has the right to the assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delay and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent.”",
"21. The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, provide as follows:",
"Article 509",
"“1. The preliminary investigating judge or tribunal may exceptionally order that the suspect be held in detention incommunicado ... to avoid the suspect violating the victim’s legal rights, concealing, modifying or destroying evidence, or committing new criminal acts.",
"2. Detention incommunicado shall last [only] for the period of time that is strictly necessary in order to implement urgent measures aimed at avoiding the dangers referred to in the preceding paragraph. Detention incommunicado cannot be extended beyond five days ...",
"3. The decision ordering the detention incommunicado or, where appropriate, an extension thereof, shall state the grounds on which the measure was taken. ...”",
"Article 510",
"“1. A detainee held incommunicado may attend, with due precautions, proceedings in which, under this law, [he or she] may intervene, provided that their presence will not undermine the purpose of their being detained incommunicado.",
"...",
"3. A detained person shall not be allowed to make or receive any communication. Nevertheless, the judge or court may authorise [contact] that does not defeat the purposes of detention incommunicado and shall, if necessary, adopt appropriate measures.",
"4. A person detained incommunicado who so requests shall have the right to be examined by a second forensic doctor appointed by the judge or court that has jurisdiction in respect thereof.”",
"Article 520",
"“...",
"2. Every detained person shall be informed, in a comprehensible manner and immediately, of the facts in respect of which they are charged and of the reasons for their being deprived of liberty, as well as of the rights to which they are entitled – especially of the following:",
"(a) the right to remain silent, not to make a statement if they do not wish to, not to answer any or some of the questions put to them or to state that they will only make a statement to a judge;",
"(b) the right not to make a statement incriminating themselves and not to confess guilt;",
"(c) the right to appoint a lawyer and to request his or her presence when giving a statement to the police or to a court and for [that lawyer] to be present at any identity parade in which he or she may participate. If a detainee or prisoner does not appoint a lawyer, one shall be appointed ex officio;",
"(d) the right to inform a relative, or any other person, of the detention and the place of custody in which he or she is being held at any time. Foreigners shall have the right to notify the consular office of their country of the above circumstances.",
"....",
"6. Assistance provided by a lawyer shall consist of:",
"(a) requesting, where appropriate, that the detainee or prisoner be informed of the rights set out in section 2 of this Article and that a medical examination – as provided above ... be conducted;",
"(b) requesting from the court or the civil servant who conducted the proceedings in which the lawyer has intervened, once [those proceedings] have finished, to declare or expand on any information [the lawyer] deems appropriate, as well as the recording of any incident that may have arisen while the proceedings were underway;",
"(c) holding a private interview with the detainee at the end of any proceedings at which he or she has been present.",
"Article 520 bis",
"“1. All persons arrested as suspects in respect of any of the crimes referred to in Article 384 bis. will be brought before the competent judge within seventy-two hours of their arrest.",
"However, the detention may be extended for the time needed for investigations [to be carried out], up to a maximum of a further forty-eight hours, as long as, once this extension has been requested in a reasoned manner within forty-eight hours of the arrest, this is authorised by a judge within a further twenty-four hours. Authorisation of or refusal to grant [such an] extension will be given in a reasoned decision.",
"2. Where a person is arrested for the reasons set out in the previous paragraph, a judge may be requested to order their detention incommunicado, and that judge must reach a reasoned decision within a time-limit of twenty-four hours. Once detention incommunicado is requested, the detainee will, in all cases, be kept incommunicado, without prejudice to their right to a defence and to the provisions of Articles 520 and 527, until the judge has issued the relevant decision.",
"3. During the detention, the judge may, at any time, request information and make [himself or herself] aware – personally or through [enquiries made by] the investigating judge for the district or demarcation area in which the detainee is to be found – of the detainee’s situation.”",
"Article 527",
"“1. The detainee or prisoner, while [being held] incommunicado, may not enjoy the rights set out in the present chapter, with the exception of those established in Article 520, with the following provisos:",
"a) in every instance, the lawyer will be appointed ex officio;",
"b) he or she shall not be entitled to the [right to contact] provided for in point d) of paragraph 2;",
"c) neither shall he or she be entitled to the interview with his or her lawyer specified in point c) of paragraph 6.”",
"Article 384 bis",
"“Once an order for prosecution is final and provisional detention is ordered in respect of a crime [allegedly] committed by the person concerned or related to armed gangs or terrorist or rebel individuals, an accused person who may have held a public post or duty will automatically be suspended from exercising [that duty or post] for as long as that detention lasts.”",
"22. The Code of Criminal Procedure, as currently in force (as amended by Organic Law 13/2015 of 5 October 2015), provides as follows.",
"Article 509",
"“1. An investigating judge or court may, exceptionally, by means of a reasoned decision, order detention incommunicado or imprisonment in the event of any of the following circumstances:",
"a) an urgent need to prevent serious consequences that may place the life, liberty or physical integrity of a person in danger, or",
"b) an urgent need for immediate action on the part of the examining judge in order to prevent criminal proceedings from being compromised.",
"2. Detention incommunicado will last for as long as strictly necessary to take urgent legal measures aimed at preventing the risks referred to in the previous paragraph. The detention incommunicado may not last for longer than five days. In cases where imprisonment is ordered on the grounds of one of the crimes referred to in Article 384 bis or of other crimes committed in concert and in an organised manner by two or more persons, the detention incommunicado may be extended by another period of not more than five days.",
"3. The decision imposing detention incommunicado or, as the case may be, an extension thereof must set out the grounds on which this measure was ordered.”",
"Article 520",
"“...",
"“2. All detainees or imprisoned persons will be informed, in writing, in a simple and accessible language, in a language that they can understand, and immediately, of the acts of which they are accused and of the grounds giving rise to their imprisonment, and also of their rights, particularly the following:",
"(a) the right to remain silent – not making a statement if they do not wish to do so or not answering some or any of the questions put to them, or declaring that they will only make a statement to a judge;",
"(b) the right not to make a statement incriminating themselves and not to confess to their own guilt;",
"(c) the right to appoint a lawyer, without prejudice to the provisions of paragraph 1 § (a) of Article 527, and to be advised by [him or her] without unjustified delay. In the event that, owing to geographical distance, it is not possible for the lawyer to attend immediately, the detainee will be allowed contact with [him or her] via telephone or video conferencing, except where such contact is impossible;",
"(d) the right of access to those elements of the proceedings that are essential in order to be able to challenge the lawfulness of the detention or deprivation of liberty.",
"....",
"6. The assistance rendered by a lawyer will consist of:",
"(a) requesting, when appropriate, that the detainee or prisoner be informed of the rights provided in paragraph 2 and, if necessary, that the medical examination ... be carried out;",
"(b) being present at the taking of statements from the detainee, at the recording of any examination to which [he or she is] subject to and at reconstructions of events in which the detainee takes part. The lawyer may ask the judge or official who conducted proceedings in which [the applicant] took part, after those proceedings have been completed, for a statement or clarification regarding any points that [the lawyer] considers pertinent, as well as a copy of the record of any incident that may have occurred during those proceedings;",
"(c) informing the detainee of the consequences of giving or refusing consent to ... such legal measures as are requested ...",
"(d) interviewing the detainee in private, including prior to making a statement to the police, the prosecutor or the judicial authority, without prejudice to the provisions of Article 527.",
"7. Communication between the accused and [his or her] lawyer will be confidential in nature [and conducted] under the same terms and with the same exceptions as those provided in paragraph 4 of Article 118...”",
"Article 527",
"1.“In the case of situations set out under Article 509, a detainee or prisoner may be deprived of the following rights, if the circumstances of the case, so justify,",
"(a) to appoint a lawyer of his or her choice;",
"(b) to communicate with all or any of the persons with whom they have a right to [communicate], except with the judicial authorities, the Public Prosecutor’s Office ... and the forensic doctor;",
"(c) to hold confidential meetings with his or her lawyer;",
"(d) to have access to the proceedings [in question], except for [those concerning] essential elements [necessary] in order to be able to challenge the legality of [his or her] arrest.",
"2. Detention incommunicado or the restriction of any other right noted in the previous paragraph shall be imposed by a court order. When the restriction of rights is requested by the Judicial Police or by the Public Prosecutor’s Office, the measures provided for in paragraph 1 shall be understood to have been ordered for a maximum period of twenty-four hours. Within this time, the judge must rule on the request, as well as on the appropriateness of ordering the secrecy of the proceedings. Detention incommunicado – and the application in respect of the detainee or prisoner of any of the exceptions referred to in the previous paragraph – will be imposed by a court order that states the reasons justifying the application of each one of the exceptions to the general regime, in accordance with the provisions of Article 509.",
"The judge will effectively control the conditions under which the detention incommunicado is carried out, for the purpose of which he or she may demand [certain] information [in order] to monitor the state of the detainee or prisoner and [whether] respect [is observed] for the detainee’s or prisoner’s rights.",
"3. Medical examinations of a detainee whose [contact] with all or any of the persons with whom [he or she] has the right to [communicate] is restricted will be carried out at least twice every twenty-four hours, depending on the criteria followed by the doctor [in question].”",
"23. The Spanish Constitutional Court’s judgment no. 196/1987, dated 11 December 1987, dealing with the unconstitutionality of Article 527 of the Code of Criminal Procedure (as in force at the relevant time), states as follows:",
"“...",
"7. The special nature or seriousness of certain crimes, or the subjective and objective circumstances surrounding them, may render it essential to conduct the police and judicial proceedings in the utmost secrecy. [Such proceedings] would be justified in order to pre-empt escape or evasion of arrest on the part of those involved in the crime under investigation or the destruction or concealment of evidence of its commission.",
"In view of this, the Code of Criminal Procedure grants the judicial authorities exclusive power to order the detention incommunicado of a detainee. This is an exceptional measure of short duration that aims to isolate the detainee from personal relationships that might be used to transmit news of an investigation to the outside world, to the detriment of its success. In such a situation, the imposition of a legal-aid representative appears to be one more measure that the [legislature], within its capacity to regulate the right to legal assistance, has [prescribed] in order to reinforce the secrecy of criminal investigations.",
"...",
"Detention incommunicado imposed under the conditions provided by law serves to protect the values guaranteed by the Constitution and allows the State to fulfil its constitutional duty to provide security to citizens, increasing their confidence in the functional capacity of State institutions. It follows that the [suspension], for a limited length of time, of the [possibility] of a detainee being held incommunicado exercising his right to freely appoint a lawyer ... cannot be considered to constitute an unreasonable or disproportionately restrictive measure, but rather a balanced reconciliation of the right to legal assistance ... with the aforementioned constitutional values. The limitation imposed on that fundamental right is reasonably balanced with the aim pursued, in accordance with the legal requirement of proportionality.",
"This declaration does not in any way contradict the international conventions signed by Spain, whose interpretative value in relation to fundamental rights and public freedoms is enshrined in Article 10 § 2 of the Constitution. As we have already pointed out, these rights are more restrictive in terms of the provision of legal assistance to a detainee [than are the relevant provisions set out] in our Constitution ...",
"Consequently, ... Article 527 § (a) of the Code of Criminal Procedure does not violate the essence of the right to legal assistance guaranteed to the detainee by Article 17 § 3 of the Constitution...”",
"Relevant international law materialsThe Council of Europe",
"The Council of Europe",
"The Council of Europe",
"24. Recommendation Rec (2006)2 of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, as applicable at the relevant time, reads, in so far as relevant, as follows:",
"“Legal advice",
"23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.",
"23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.",
"23.3 Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners.",
"23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.",
"23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.",
"23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”",
"25. The relevant parts of the General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of 10 November 2011, entitled “Access to a lawyer as a means of preventing ill-treatment”, read as follows:",
"“22. The CPT fully recognises that it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice. However, this should not result in the right of access to a lawyer being totally denied during the period in question. In such cases, access to another independent lawyer who can be trusted not to jeopardise the legitimate interests of the investigation should be organised. It is perfectly feasible to make satisfactory arrangements in advance for this type of situation, in consultation with the local Bar Association or Law Society.",
"23. The right of access to a lawyer during police custody must include the right to meet him, and in private. Seen as a safeguard against ill-treatment (as distinct from a means of ensuring a fair trial), it is clearly essential for the lawyer to be in the direct physical presence of the detained person. This is the only way of being able to make an accurate assessment of the physical and psychological state of the person concerned. Likewise, if the meeting with the lawyer is not in private, the detained person may well not feel free to disclose the way he is being treated. Once it has been accepted that exceptionally the lawyer in question may not be a lawyer chosen by the detained person but instead a replacement lawyer chosen following a procedure agreed upon in advance, the CPT fails to see any need for derogations to the confidentiality of meetings between the lawyer and the person concerned.",
"24. The right of access to a lawyer should also include the right to have the lawyer present during any questioning conducted by the police and the lawyer should be able to intervene during the questioning. Naturally, this should not prevent the police from immediately starting to question a detained person who has exercised his right of access to a lawyer, even before the lawyer arrives, if this is warranted by the extreme urgency of the matter in hand; nor should it rule out the replacement of a lawyer who impedes the proper conduct of an interrogation. That said, if such situations arise, the police should subsequently be accountable for their action.”",
"The European Union",
"26. Article 48 of the Charter of Fundamental Rights guarantees “respect for the rights of the defence of anyone who has been charged”. Article 52 § 3 furthermore states that the meaning and scope of that right is the same as that of the equivalent right laid down by the European Convention on Human Rights.",
"27. The relevant parts of the opinion of 7 December 2011 of the European Economic and Social Committee on the “Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest” (Com(2011) 326 final. 2011/0154(COD)), provide:",
"“3.7.2.5.1 The right of access to a lawyer cannot be dissociated from its corollary, the principle of the free choice of lawyer, pursuant to Article 6.3 c) of the European Convention of Human Rights. Having noted that the proposal for a directive makes no reference to this, the EESC proposes reiterating this principle. A derogation might be provided for in cases of terrorism and organised crime at the request of the judicial authorities; the lawyer could then be appointed by the relevant professional body.”",
"28. Directive 2013/48/EU of 22 October 2013 provides, in so far as relevant, as follows:",
"Article 3",
"“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.",
"2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:",
"a) before they are questioned by the police or by another law enforcement or judicial authority;",
"b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;",
"c) without undue delay after deprivation of liberty;",
"d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.",
"3. The right of access to a lawyer shall entail the following:",
"a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;",
"b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;",
"...",
"4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.",
"Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.",
"...",
"6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:",
"a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings...”",
"The United Nations",
"29. The relevant provision of the International Covenant on Civil and Political Rights provides as follows:",
"Article 14 § 3 (b)",
"“Everyone charged with a criminal offence is entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”",
"30. General Comment No. 32 of the Human Rights Committee, entitled “Article 14 – Right to equality before courts and tribunals and to a fair trial”, reads, insofar as relevant, as follows:",
"“34. The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter”.",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION",
"31. The applicant alleged that the fact that during the time that he had been held in detention incommunicado he had not been permitted to receive assistance from a lawyer of his own choosing, nor to communicate with him before and during his questioning by the police, had breached his right to a fair trial under Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"(...)",
"(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”",
"Admissibility",
"32. The Court notes that this application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicant",
"33. The applicant stated that when being questioned by the police he had been deprived of the possibility of being assisted by a lawyer of his choosing, since a legal-aid representative had been appointed to him. He claimed that he was vulnerable because he had travelled a long distance by car and he had not slept before the first police interview. Furthermore, his defence had been neither practical nor effective. The legal-aid representative had had no access to the case file, and he had not been allowed to meet with him before or after the police interview. His legal-aid representative had expressed his opposition to the applicant being required to give his second statement to the police, as he had considered that the applicant’s rights had not been respected.",
"34. In the applicant’s opinion, the statements that he had given during his detention incommunicado had been unsound, and the police had used them to obtain the evidence that had later been used to justify his conviction.",
"(b) The Government",
"35. The Government argued – citing Court’s judgment in Schiesser v. Switzerland, 4 December 1979, § 36, Series A no. 34 – that Article 5 § 3 of the Convention did not provide that a detained person had to be represented by a lawyer when in police custody. They also submitted that when the Court examined issues concerning the criminal prosecution of individuals, it did not necessarily imply that an applicant had the right to be defended by a lawyer of his or her own choosing (see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237-B).",
"36. The Government asserted that the applicant had been provided with legal assistance from the very first moment of his detention incommunicado, even though such assistance had not been required by Article 5 of the Convention. He had been informed of his constitutional rights before giving each of his statements, including his right to remain silent and his right not to incriminate himself, and had been expressly asked whether he wished to make a statement.",
"37. The Government noted that the regime governing the applicant’s detention incommunicado had been decided by the judicial authorities. The legal period for which the applicant could be detained had been extended by the investigating judge owing to the existence of evidence indicating the applicant’s membership of the terrorist group ETA. Moreover, there had been some evidence to indicate that the applicant had been in charge of hiding firearms and material to be used in the preparation of powerful explosives. Therefore, there had been every reason to hold the applicant in detention incommunicado in order to (i) prevent the perpetration of offences and/or the concealment of material to be used in carrying them out, and (ii) prevent the detainee from making contact with a lawyer close to the ETA environment.",
"38. The applicant’s first statement to the police had been made in the presence and with the assistance of a legal-aid representative, with the applicant’s express consent. Furthermore, while in the presence of the police officers responsible for taking the statement, the applicant had had the possibility to be orally advised by his lawyer to refrain from testifying or to refrain from testifying in a certain way. The applicant had provided details of the places where IT equipment, firearms, explosives and false licence plates used by the terrorist group in the perpetration of their attacks were hidden. Afterwards, that material had been found during the searches carried out by the Guardia Civil.",
"39. The Government furthermore submitted that when the legal-aid representative had been questioned at the hearing (see paragraph 1 7 above), he had been unable to specify which of the applicant’s alleged rights had been violated. The applicant’s legal-aid representative, who had been called as a witness at the above-mentioned hearing (see paragraph 17 above) before the Audiencia Nacional, had not reported that the agents responsible for the applicant’s custody had exerted any kind of pressure on him. Furthermore, the judgment delivered by the Audiencia Nacional had been based on numerous items of evidence – not only the second statement given by the applicant when he had still been in custody.",
"The Court’s assessment",
"(a) General principles",
"(i) Applicability and general approach to Article 6 in its criminal aspect at the pre-trial stage",
"40. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that Article 6 has no application to pre-trial proceedings. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, 13 September 2016, and Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, 12 May 2017, and the case-law cited therein). Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015; Ibrahim and Others, cited above, § 251; and Beuze v. Belgium [GC], no. 71409/10, § 121, 9 November 2018). Those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see the above-cited cases of Ibrahim and Others, §§ 251 and 262, and Beuze, § 122).",
"(ii) Right of access to a lawyer",
"41. Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as soon as there is “a criminal charge” and, in particular, from the time of the suspect’s arrest (see Beuze, cited above, § 124). In order for the right to a fair trial to remain “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55-57, ECHR 2008; Panovits v. Cyprus, no. 4268/04, § 66, 11 December 2008; and Dvorski, cited above, § 80).",
"42. Moreover, the Court considers it essential that from the initial stages of the proceedings, a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Martin v. Estonia, no. 35985/09, §§ 90 and 93, 30 May 2013). This follows from the very wording of Article 6 § 3 (c), which guarantees that “[e]veryone charged with a criminal offence has the following minimum rights: ... to defend himself ... through legal assistance of his own choosing ...”, and is generally recognised in international human rights standards as a mechanism for securing an effective defence to the accused (see Dvorski, cited above, § 78).",
"43. Notwithstanding the importance of the relationship of confidence between a lawyer and his or her client, this right is not absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that counsel appointed by them defend the accused (see Croissant, cited above, § 29). The Court has consistently held that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Vitan v. Romania, no. 42084/02, § 59, 25 March 2008). Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant’s defence, regard being had to the proceedings as a whole (see Dvorski, cited above, § 79).",
"44. In contrast to the cases involving denial of access to a lawyer, which may be justified only in case of the existence of “compelling reasons” for such a restriction (see Salduz, cited above, § 55, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 258-259, 13 September 2016), the more lenient requirement of “relevant and sufficient” reasons has been applied in situations raising the less serious issue of “denial of choice”. In such cases the Court’s task will be to assess whether, in the light of the proceedings as a whole, the rights of the defence have been “adversely affected” to such an extent as to undermine their overall fairness (see Dvorski, cited above, § 81; see also Croissant, cited above, § 31; Klimentyev v. Russia, no. 46503/99, §§ 117-18, 16 November 2006; and Martin, cited above, §§ 96-97).",
"45. It is the latter test which is to be applied in cases concerning the restrictions on the right of access to a lawyer of one’s own choosing. Against the above background, the Court considers that the first step should be to assess whether it has been demonstrated in the light of the particular circumstances of each case that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings (see Dvorski, cited above, § 82). In making its assessment, the Court may have regard to a variety of factors, including the nature of the proceedings and the application of certain professional requirements ( Croissant, cited above § 31; Vitan, cited above, §§ 58-64; Martin, cited above, §§ 94-95, among others).",
"(iii) Effectiveness of the defence exercised by the legal representative during the applicant’s detention incommunicado",
"46. When assessing the effectiveness of the defence conducted by the lawyer during the second arrest, it will be necessary to evaluate what the purposes of the free legal aid are. In this respect, the Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Ibrahim and Others, cited above, § 255). Lastly, one of the lawyer’s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself (see Salduz, cited above, § 54) and for his right to remain silent ( Beuze, cited above, § 128).",
"47. In this connection, the Court has considered it to be inherent in the privilege against self-incrimination, the right to remain silent and the right to legal assistance that a person “charged with a criminal offence”, within the meaning of Article 6, should have the right to be informed of these rights, without which the protection thus guaranteed would not be practical and effective (see Beuze, cited above, § 129).",
"48. Although Article 6 § 3 (c) leaves to the States the choice of the means of ensuring that the right of access to a lawyer or its content is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the Convention, namely to guarantee rights that are practical and effective (see the above-cited cases of Salduz, § 51; Dvorski, § 80; and Ibrahim and Others, § 272). Assigning a lawyer does not in itself ensure the effectiveness of the assistance that that lawyer may afford an accused, and to that end, minimum requirements must be met.",
"49. As a rule, suspects must be able to enter into contact with a lawyer from the time at which they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview (see Brusco v. France, no. 1466/07, § 54, 14 October 2010 and A.T. v. Luxembourg, no. 30460/13, §§ 86-87, 9 April 2015). The lawyer must be able to confer with his or her client in private and receive confidential instructions (see Lanz v. Austria, no. 24430/94, § 50, 31 January 2002). Moreover, the Court has found in a number of cases that suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre ‑ trial proceedings (see, inter alia, Brusco, cited above, § 54). Such physical presence must be of a nature to enable the lawyer to provide assistance that is effective and practical rather than merely abstract (see A.T., cited above, § 87), and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (see Beuze, cited above, § 134).",
"50. The Court reiterates that an accused’s right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness. The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European ones (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, restrictions may be imposed on an accused’s access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing (see Öcalan v. Turkey [GC], no. 46221/99, § 133, ECHR 2005 ‑ IV).",
"51. In particular, the Court has accepted that certain restrictions can be imposed on lawyer-client contacts in cases of terrorism and organised crime (see, in particular, Erdem v. Germany, no. 38321/97, §§ 65 et seq., ECHR 2001-VII (extracts), and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 627, 25 July 2013). Nonetheless, the privilege that attaches to communication between prisoners and their lawyers constitutes a fundamental right of the individual and directly affects the rights of the defence. For that reason, the Court has held that the fundamental rule of respect for lawyer-client confidentiality may only be derogated from in exceptional cases and on condition that adequate and sufficient safeguards against abuse are in place (see M v. the Netherlands, no. 2156/10, § 88, 25 July 2017).",
"(iv) Proceedings’ overall fairness",
"52. In addition to the above-mentioned aspects, account must be taken, on a case-by-case basis, in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance: discussion of the case, organisation of the defence, collection of exculpatory evidence, preparation for questioning, support for an accused in distress, and verification of the conditions of detention (see A.T. v. Luxembourg, § 64; Dvorski, §§ 78 and 108; and Beuze, § 136, all cited above).",
"53. In determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected. A non-exhaustive list of factors, drawn from case-law, has been developed which the Court will take into account, where appropriate, when examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of criminal proceedings (see Beuze, cited above, § 82). It must be examined in particular whether the applicant was given the opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006 ‑ IX).",
"54. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question that must be answered is whether the proceedings as a whole, including how the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see Jalloh, cited above, § 95).",
"(b) Application of the general principles to the present case",
"55. The Court observes that, at the time of the events in question, the Spanish Code of Criminal Procedure denied to detainees being held in detention incommunicado, as in cases concerning terrorism such as the present one, the possibility of being assisted by a lawyer of their own choosing although it stipulated that they had to be appointed a legal-aid representative from the moment of their arrest. Detention incommunicado could only be ordered by an investigating judge in exceptional circumstances and only for purposes provided by law. In respect of terrorism cases, an investigating judge could only authorise detention incommunicado by means of a reasoned decision that made reference to the specific circumstances.",
"(i) Restrictions of the applicant’s right of access to a lawyer of his own choosing and of the access to the lawyer before the interviews during his incommunicado detention",
"(α) Existence and extent of relevant and sufficient reasons to restrict the applicant´s right to access to a lawyer of his own choosing",
"56. It is not in dispute that the impugned restrictions stemmed from the applicable provisions of the Code of Criminal Procedure in respect of the ordering of detention incommunicado which, as such, was decided by the investigating judge in a case concerning alleged membership of a terrorist group and possession of explosives (see paragraph 8 above). In particular, the incommunicado detention was decided in view of the Guardia Civil requests to enter and search properties used by the cell of ETA to which the applicant allegedly belonged and the objective of pre-empting the potential frustration of the ongoing investigation, which was primarily aimed at the location of explosives (see paragraph 9 above). Following the investigating judge’s decision, the applicant was entitled to and was granted a legal-aid representative when arrested and prior to his being interviewed by the Guardia Civil for the first time on 1 October 2010 (see paragraph 12 above). His legal-aid representative was again present in person when he made his second statement to the Guardia Civil during his detention incommunicado (see paragraph 13 above).",
"57. The Court has held that, in the abstract, if a suspect receives the assistance of a qualified lawyer, who is bound by professional ethics, rather than another lawyer whom he or she might have preferred to appoint, this is not in itself sufficient to show that the whole trial was unfair – subject to the proviso that there is no evidence of manifest incompetence or bias (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37).",
"58. The Court observes yet that in the concrete situation of the applicant’s detention incommunicado, the decisions which restricted his right to be assisted by a lawyer of his own choosing were of a general nature, and they were based on a general provision of law. They did not entail an assessment on a case by case basis and were not subject to judicial authorisation in the light of the specific facts, but took into account general suspicions that the applicant had participated in a terrorist organisation and had hidden explosives that could allegedly have been used in a manner posing a severe risk to others’ lives.",
"59. Moreover, national judges did not provide any justification as regards the necessity of the restriction and gave no reason on this point. The fact that the judge must provide reasons for the incommunicado detention in general does not imply a justification about the necessity of the restriction of the right of access to a lawyer of one’s own choosing. The national courts failed to demonstrate how the interests of justice required that the applicant should not be able to choose his counsel.",
"60. In conclusion, the applicant’s right of access to a lawyer of his own choosing at the pre-trial stage was restricted, and there were not relevant and sufficient grounds for that restriction, which was not based on an individual assessment of the particular circumstances of the case when the judicial decision to place the applicant in detention incommunicado was adopted, and were, as such, of a general and mandatory nature.",
"(β) Existence and extent of compelling reasons to prevent the applicant from having access to his lawyer before the interviews and during his incommunicado detention",
"61. The applicable test under Article 6 §§ 1 and 3 c) of the Convention consists of two stages – first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer and then examining the overall fairness of proceedings (see the above-cited cases of Beuze, §§ 138 and 141, and Ibrahim and Others, §§ 257 and 258-62).",
"62. In Ibrahim and Others the Court confirmed, however, that the absence of compelling reasons did not lead in itself to a finding of a violation of Article 6. Whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole (see Ibrahim and Others, cited above, § 262). Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the criminal proceedings’ overall fairness and may tip the balance towards finding a violation (see Beuze, cited above, § 145).",
"63. The Court observes that no concrete justification has been provided by domestic courts on the existence of compelling reasons to justify these restrictions. Although it is true that in the case at hand the applicant’s lawyer was present during his interviews, the lack of access to a lawyer before the interviews is also (and logically) covered by this case-law (see Beuze, § 133 and A.T. v. Luxembourg, in particular §§ 85-91), which emphasises the crucial importance of these confidential meetings. It has not been shown that domestic courts carried out an individual assessment of the particular circumstances of the case. The Court notes that a case-by-case analysis is currently provided by the domestic law, which however was not applicable at the time in question.",
"(γ) Conclusion",
"64. Although there was no concrete judicial assessment as to the existence of relevant and sufficient grounds to restrict the applicant’s right of access to a lawyer of his own choosing and the restrictions on the applicant’s right to have access to his lawyer before the interviews were not justified by individual compelling reasons, the Court has still to assess the overall fairness. In the present case, this control must be very strict, taking into account the double nature of the restrictions which were particularly extensive.",
"(ii) The fairness of the proceedings as a whole",
"65. The Court notes on the one hand, concerning the circumstances in which the evidence was obtained, and although the applicant argued that the police had exerted pressure on him by threatening to detain his girlfriend, that these elements were duly examined at two judicial instances, and none of them found that the Guardia Civil had subjected the applicant to inducements or threats before he had given his second police statement. The applicant was informed of his rights and specifically of his right to remain silent and his right not to incriminate himself. Even so, he was interviewed and made a statement, in the presence of his lawyer, and provided details from which the evidence supporting his conviction was subsequently obtained. Both the applicant and his lawyer added their signatures to the applicant’s first statement and to a document confirming that he had previously been informed of his rights as a detainee. As regards the applicant’s second statement, which was given despite the opposition of his legal-aid representative, it must be emphasised that the lawyer did not give any specific reasons for his opposition.",
"66. On the other hand, the Court observes that the applicant’s conviction, as he also maintains, was partially based on the evidence obtained as a result of the statements made by him at the police station while being held incommunicado. In particular, those statements were essential in the discovery of the explosive material. As a result of his statements, the police found data and strong evidence that the applicant had committed the offences in question. The conviction was based mainly on the explosives and computer equipment found in the applicant’s possession, but also on other evidence, such as the incriminating statements made by co-defendants, the statements of witnesses or the applicant’s silence in response to questions from the prosecution (see paragraph 1 above).",
"67. Although there was other evidence against the applicant, the significant likely impact of his initial confession on the further development of the criminal proceedings against him cannot be ignored. The Court observes in this respect that the Government have not provided any reasons, other than the content of Article 527 of the Code of Criminal Procedure, concerning the necessity to prevent the applicant from contacting his lawyer and having an interview with the legal-aid lawyer assigned to him (paragraphs 10 and 21 above). It also notes that this element has been modified in the Code of Criminal Procedure currently in force (paragraph 22 above), which now requires an individual judicial decision to restrict the right of the detained person to communicate with a lawyer including during incommunicado detention.",
"68. In this connection, the Court again emphasises the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54). The fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support for an accused in distress and checking of the conditions of detention (see Dvorski, cited above, § 108).",
"69. The Court’s role is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused (see Beuze, cited above, § 148). The Court is aware of the fact that under the Spanish legal system the right to appoint a lawyer or to benefit from a legal-aid lawyer is guaranteed by the Criminal Procedural Code from the very first moment of the detention (see paragraph 21 above). However, it is not disputed that at that time, although the persons in incommunicado detention had the right to be assisted by a lawyer from the very beginning of the detention, they were restricted to consult with the lawyer prior to the police interviews.",
"70. The Court observes that the evidence obtained as a result of the statements made by the applicant at the police station formed a significant part of the probative evidence upon which the conviction was based ( Beuze, § 150). The Court notes in this regard that neither the first instance court, nor the Supreme Court provided any reasoning to justify the applicant’s complaint concerning the fact that his legal-aid representative was not allowed to communicate with his client, despite repeated attempts on his part (see paragraph 17 above). Moreover, domestic courts did not take into account the fact that the applicant made a new statement despite the opposition of his legal-aid representative, who was present and indicated his opposition to the new interview and refused to sign his agreement (see paragraph 13 above).",
"71. The Court accordingly considers that the lack of an individual decision on the part of the investigating judge on the specific consequences for the applicant of the impossibility to have access to his lawyer before the interviews, coupled with the absence of appropriate remedial measures during the trial, undermined the fairness of the criminal proceedings brought against the applicant, when considered as a whole, and irretrievably prejudiced his defence rights, as far as he could not receive advice from his representative.",
"72. In sum, the objective consequence of preventing the applicant’s legal-aid lawyer from having access to him at the relevant time as well as from being assisted by a lawyer of his own choosing without giving individualised reasons was such as to undermine the fairness of the subsequent criminal proceedings in so far as the applicant’s incriminating initial statement was admitted in evidence ( Dvorski, cited above, § 111).",
"(iii) Conclusion",
"73. The Court therefore finds that in the circumstances of the present case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"74. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"75. The applicant claimed EUR 50,000 euros in respect of non-pecuniary damage.",
"76. The Government argued that the applicant’s claim was mostly unsubstantiated.",
"77. The Court is of the view that the applicant must have suffered a certain amount of distress as a result of the violation of his rights under Article 6 of the Convention, which cannot be compensated solely by the finding of a violation or by the reopening of the proceedings (see, mutatis mutandis, Gil Sanjuan v. Spain, no. 48297/15, § 52, 26 May 2020, and Elisei-Uzun and Andonie v. Romania, no. 42447/10, § 78, 23 April 2019). It therefore awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.",
"Costs and expenses",
"78. The applicant also claimed a total of EUR 18,475.75 in respect of costs and expenses. This sum was divided as follows: EUR 6,000 for barrister fees incurred in the domestic proceedings; EUR 450 for solicitor ( procurador ) fees incurred in those proceedings; EUR 6,000 and EUR 1,283.30 respectively for barrister fees incurred by Mr Rezabal Larrañaga and Mr Peter before the Court; EUR 4,742.45 for translation fees.",
"79. The Government submitted that pursuant to the Court’s case-law claims in respect of costs appertaining to domestic proceedings should be rejected. In respect of the costs in general, they noted that they had not been paid by the applicant but by Ms Ana Atristain Gorosabel, and considered them excessive.",
"80. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred, duly documented and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court dismisses the applicant’s claim concerning costs and expenses before the ordinary domestic courts and considers it reasonable to award the sum of EUR 8,000 for the costs and expenses incurred before the Constitutional Court and before the Court.",
"Default interest",
"81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
289 | Faysal Pamuk v. Turkey | 18 January 2022 | This case concerned the applicant’s trial on terrorism-related charges, in particular the use of evidence that had been given in other jurisdictions in the absence of the applicant or his counsel following letters of request (talimat). The applicant complained that he had not had a fair trial as he had been prevented from confronting certain witnesses in person. | The Court held that there had been a violation of Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination of witnesses) of the Convention, finding that the absence of the four witnesses from the trial, the lack of a confrontation between them and the applicant, and the use by the court of their evidence as the cornerstone of his conviction and life sentence without the necessary procedural safeguards, had substantially hindered the defence in testing the reliability of their evidence and had, in the circumstances of the present case, tainted the overall fairness of the proceedings. The Court noted, in particular, that letters of request and examining witnesses in other jurisdictions could not be considered an adequate method of ensuring a fair trial in the circumstances of the present case. Firstly, it meant that domestic courts could simply refrain from examining whether there were good reasons for the non-attendance of witnesses at trial. Secondly, it effectively meant that the accused and/or defence lawyers would have to travel to different places with a view to attending the hearings where witnesses would be giving evidence in order to benefit from the right to examine them, placing a disproportionate burden on the defence. Thirdly, the relevant domestic law appeared to exclude a detainee’s attendance at a hearing outside of the jurisdiction in which he or she was detained. Lastly, the approach was capable of jeopardising the principle of immediacy, as the trial court would not have the possibility to directly observe the demeanour and credibility of particular witnesses. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"2. The applicant was born in 1978 and was detained in Amasya E-type Prison at the time of lodging the application with the Court. He was represented by Mr S. Çelebi and Mrs K. Yılmaz, lawyers practising in Diyarbakır.",
"3. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"5. On 30 October 1995 F.K., who was accused of membership of a terrorist organisation, made statements to the police, submitting, inter alia, that an organisation member with the code name “Avarej”, a “warrior” from Diyarbakır, had taken part in an attack carried out on 24 September 1995 in Mazgirt.",
"6. On 12 May 1996 Y.A., who was accused of membership of a terrorist organisation, made statements to the police in the absence of a lawyer, submitting, inter alia, that an organisation member with the code name “Avareş” had taken part in armed activities on 22 September 1995 in Mazgirt. He further stated that “Avareş” was a warrior under the command of another PKK member with the code name “Navdar” and that he had been carrying a Kalashnikov rifle and wearing metal-rimmed glasses. Moreover, “Avareş” was twenty-five years old, 1.75 metres tall, slim and dark-skinned with black wavy hair.",
"7. On 17 November 1999 S.Y., who was accused of membership of a terrorist organisation, made statements to the gendarmerie submitting, inter alia, that an organisation member with the code name “Avareş” had taken part in an armed conflict between PKK members and the security forces around May or June 1997. According to her police statements dated 21 November 1999, “Avareş” was a “warrior” from Diyarbakır.",
"8. On 30 November 1999 A.T., who was accused of membership of a terrorist organisation, made statements to the police in the absence of a lawyer submitting, inter alia, that an organisation member whom he had known by the code name “Avreş” had taken part in an armed clash with the security forces in autumn 1997 in Mazgirt. According to page fifteen of A.T.’s police statements, “Avreş” was from Ergani and had been arrested, whereas according to page fifty-three of the document, which contained details of the armed clash, “Avreş” was from Kulp. In describing the physical appearance of “Avreş”, A.T. stated that he was short and dark-skinned with lines on his face.",
"9. On 5 November 2003 the Mazgirt Magistrate’s Court ordered the detention in absentia of thirteen individuals, including the applicant, for their alleged involvement in an armed attack on a police checkpoint on 3 September 1997, which had resulted in the death of two privates and another private being injured.",
"10. On 7 December 2009 the applicant went to the public prosecutor’s office and voluntarily handed himself in, submitting that he had been a member of the PKK for eleven years, from 1994 to 2005.",
"11. On 10 December 2009 he made statements to the Diyarbakır Anti ‑ Terrorist Branch in the presence of his lawyer in respect of the accusations levelled against him, namely the offences of membership of the PKK/KONGRA-GEL terrorist organisation and carrying out armed activities for the rural cadres of the organisation. In his statements, he described how he had become involved in the terrorist organisation and stated the code names given to him, the places he had been to, the activities he had participated in, the training he had received, the activities of the organisation, the names of those who had engaged in them and the names of other organisation members he knew. In particular, he submitted that he had first been given the code name “Kendal”, but that it had later (after two months) been changed to “Avareş-Tekoşin” as there had been another person with the code name “Kendal”. When the police officers asked him whether he was the person referred to as “Avareş” in the various statements given by other PKK members at different times, the applicant provided detailed explanations about two other members with the code name “Avareş”, at the same time pointing out that his code name had been “Avareş ‑ Tekoşin” and not just “Avareş”. He also identified certain other organisation members from photographs. At the end of his statements, the applicant expressed his regret for joining the PKK and asked to benefit from Article 221 of the Criminal Code entitled “Active repentance”, which provided for a reduction in the sentence he could be given in exchange for information.",
"12. On 10 December 2009 the applicant made statements to the public prosecutor in the presence of his lawyer and essentially confirmed the statements he had made to the police. He once again stressed that his code name had been “Avareş ‑ Tekoşin”.",
"13. On the same day, when the applicant was questioned by the investigating judge in the presence of his lawyer, he essentially reiterated his earlier statements.",
"14. On 5 January 2010 the Malatya public prosecutor filed a bill of indictment against the applicant with the Second Division of the Erzurum Assize Court, which had special jurisdiction to hear cases relating to the aggravated crimes specified in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time (hereinafter “the Malatya Specially Authorised Assize Court” or “the trial court”), charging him under Article 125 of the former Criminal Code with carrying out activities aimed at bringing about the secession of part of the national territory. The applicant was accused of having taken part in three specific armed activities:",
"(i) an armed attack on a police checkpoint on 3 September 1997, which had resulted in the death of two privates and another private being injured (“incident 1”, see paragraph 9 above);",
"(ii) an armed assault on two police officers, abduction of a prison guard and an armed attack on a block of flats allocated to police officers with a rocket launcher on 22 September 1995 (“incident 2”, see paragraph 6 above); and",
"(iii) an armed conflict between PKK members and the armed forces on 30 May 1997 resulting in the injury of two gendarmes (“incident 3”, see paragraph 7 above).",
"15. On 13 January 2010 the trial court held a preparatory hearing in the absence of the parties and ordered copies of statements S.Y. and A.T. had made to the public prosecutor and the investigating judge in the context of other sets of criminal proceedings.",
"16. At the first hearing, held on 18 February 2010, the applicant gave evidence in person and reiterated his previous statements but submitted that he had not taken part in any armed activities. The public prosecutor asked the trial court to record the applicant’s physical appearance. It was noted that he was around 1.60 cm tall, slim and dark-skinned with black hair and lines on both sides of his face due to his being slim. The applicant’s lawyer pointed out that the applicant’s code name had been “Avareş-Tekoşin”, that there had been approximately six or seven organisation members in Tunceli with the code name “Avareş” and that the descriptions given of the perpetrators of the armed activities were different from that of the applicant. The applicant’s lawyer also requested that the trial court examine those who had testified that the applicant had taken part in the armed activities and order an in-person confrontation between them and the applicant. The public prosecutor asked the trial court to reject the request for a confrontation, claiming that it would not contribute to the case file given the amount of time that had passed since the armed activities. At the end of the hearing, the trial court decided to deal with that request upon receiving copies of the statements made by S.Y. and A.T.",
"17. At a hearing held on 1 April 2010 the applicant’s lawyer repeated his request for a confrontation to be held between the applicant and S.Y., A.T., Y.A. and F.K. The trial court ordered that photographs be taken of the applicant and stated that a confrontation would take place once the addresses of the individuals had been ascertained.",
"18. On 13 and 16 April 2010 the trial court sent four different letters of request to the courts of the witnesses’ places of residence, asking them to (i) obtain statements from the witnesses; (ii) show them photographs of the applicant and ask them to confirm whether he had been the organisation member with the code name “Avareş-Tekoşin-Kendal”, and (iii) inform the applicant’s lawyer of the hearings during which the witnesses would give evidence. The applicant was in pre-trial detention at the time and remained there until his conviction.",
"19. On 28 April 2010 the Elbistan Assize Court heard evidence from Y.A. in the absence of the applicant’s lawyer. Y.A. submitted that he had neither known the applicant nor about the three incidents mentioned in the indictment and whether the applicant had participated in them. Likewise, he was unable to identify the applicant from the seven photographs shown to him. When the court reminded him of the statements he had made on 12 May 1996, Y.A. stated that he did remember a person with the code name “Avareş” “as mentioned in his police statements”. Nevertheless, he was still unable to identify the applicant from the photographs, arguing that “fifteen years” had passed since he had given those statements to the police. At the end of the hearing, the Elbistan Assize Court decided to send a summons to the applicant’s lawyer and to secure Y.A.’s presence at the next hearing on 26 May 2010. Although the applicant’s lawyer attended the hearing in question, Y.A. was not present as, according to a one-page letter he had sent to the court, he was unwell.",
"20. On 6 May 2010 a third hearing was held before the trial court, during which the applicant’s lawyer submitted that, contrary to the testimony of S.Y. and A.T., the applicant’s code name had not been “Avareş” and he was not from Ergani.",
"21. On 26 May 2010 the Ninth Division of the Istanbul Assize Court, which had special jurisdiction to hear cases relating to the aggravated crimes specified in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time, heard evidence from S.Y. in the absence of the applicant and his lawyer. S.Y. submitted that there had been two or three people with the code name “Avareş”, but that she had not known the applicant. It appears that on 30 April 2010 the court had sent a letter to the applicant’s lawyer, inviting him to attend the examination of S.Y.",
"22. On 27 May 2010 the Muş Assize Court heard evidence from A.T., after noting that the applicant’s lawyer had been duly notified of the hearing. A.T. stated that he had not known anyone with the code name “Avareş” or “Avareş-Tekoşin-Kendal” or the people in the photographs shown to him.",
"23. At a hearing held on 29 July 2010 the trial court noted that F.K.’s work address in Istanbul had been found.",
"24. At a hearing held on 10 August 2010 the Twelfth Division of the Istanbul Assize Court (hereinafter “the Istanbul Court”) noted that the summons sent to F.K.’s work address had been returned as he had not been at that address.",
"25. At a hearing held on 24 September 2010 the Istanbul Court noted that a letter had been sent to the Istanbul Security Directorate to secure F.K.’s presence, but that no answer had been received. As a result, the court decided to call F.K.’s mobile telephone to request his attendance at the hearing. According to a police report dated 6 October 2010, the police could not locate F.K. because the street name of his address was missing.",
"26. At a hearing held on 22 October 2010 the Istanbul Court noted that F.K. could not be reached by his mobile telephone and decided to return the letter of request to the trial court.",
"27. At a hearing held on 11 November 2010 the trial court decided to revoke its decision to hear F.K. because it had been impossible to locate him.",
"28. On 14 April 2011 the trial court found the applicant guilty as charged and sentenced him to life imprisonment. In convicting the applicant, the trial court relied, inter alia, on the evidence given by him and eleven other witnesses, including S.Y., A.T., Y.A. and F.K. In that connection, it held that the fact the applicant had been a “warrior” within the PKK had been established by his confessions and the statements given by the eleven other witnesses.",
"29. As regards the first incident, the trial court pointed out that the physical description given by A.T. of the perpetrator of the armed activities perfectly matched that of the applicant. In its view, it was noteworthy that the applicant had lines on his face, as indicated by A.T., since the likelihood of two persons having lines on their face was very small.",
"30. As regards the second incident, the trial court noted that although Y.A. had stated in 1995 that a person with the code name “Avareş” had taken part in it, he had not known where “Avareş” was from. However, F.K. had indicated in his statements in 1996 that the “Avareş” he had known who had taken part in that incident was from Diyarbakır. The trial court thus found it established that the “Avareş” who had taken part in the second incident was the applicant.",
"31. As regards the third incident, the trial court noted that S.Y. had testified in her statements in 1999 that a person with the code name “Avareş” had taken part in that incident who had been a warrior from Diyarbakır under the command of a person with the code name “Karker”. Noting that three other witnesses (including A.T.) had also stated that “Avareş” and “Karker” had been in the same group, the trial court concluded that the “Avareş” indicated in S.Y.’s statements was the applicant.",
"32. Moreover, the trial court went on to hold that the reason why A.T., S.Y. and Y.A. had stated that they could not recall their previous statements was because they had been trying to protect the PKK members or had had fear of reprisals from the PKK.",
"33. With regard to the applicant’s allegations regarding possible confusion with the code names, the trial court held that his initial code name had been “Kendal” and that it had been changed to “Avareş” as the former had already been used by another member of the organisation. In the trial court’s view, that was the usual practice of the PKK, aimed at preventing any confusion within the organisation. Therefore, even assuming that there had been more than one person using the code name “Avareş” within the PKK, the probability of there being another person (i) from Diyarbakır, (ii) active in the Dersim region, and (iii) with the codename “Avareş” was at odds with the above-mentioned practice of the organisation. Accordingly, and having regard to the applicant’s admission that he had been in Dersim at the time the incidents had taken place and the fact that the evidence given by the different members of the PKK arrested at different times and places had been consistent, the trial court rejected the applicant’s defence submissions.",
"34. In appeal submissions dated 2 June 2011, the applicant’s lawyer mainly criticised the trial court’s stance vis-à-vis the applicant, who had voluntarily handed himself in to the authorities, arguing that it had failed to consider that the applicant had joined the PKK at the age of sixteen, when he had been thoughtless. The lawyer also pointed out that the applicant’s submission that there had been three other persons from Diyarbakır with the code name “Avareş” within the PKK had been verified and that the trial court had failed to respond to his submission that his code name had been “Avareş ‑ Tekoşin” and not merely “Avareş”. In those submissions, the lawyer also stated:",
"“... even though we asked for a confrontation with a view to uncovering the truth, the trial court sent letters of request to the relevant places for photographic identifications. None of the witnesses was able to identify the applicant, as could be understood by the replies given to the letters of request. Moreover, it was decided not to take statements from F.K. because they could not be taken. Although all these developments were in favour of the applicant, the trial court did not release [him]. Accordingly, the applicant was convicted and an unlawful judgment was handed down.”",
"35. On 5 April 2012 the Court of Cassation upheld the trial court’s judgment in a summary fashion."
] | [
"RELEVANT LEGAL FRAMEWORK",
"36. Article 125 of the former Criminal Code (Law no. 765) provided as follows:",
"“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Republic of Turkey or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.”",
"37. The relevant parts of Article 180 of the Code of Criminal Procedure (Law no. 5271 of 4 December 2004), entitled “Examination of witnesses and experts by a delegated judge or on commission”, provide as follows:",
"“(1) In cases where it is impossible for a witness or an expert to be present at a hearing for a long and unanticipated period of time owing to sickness, invalidity or any other unavoidable reason, the court may decide [that] he or she shall be examined by a delegated judge or on commission.",
"(2) This provision shall also apply in respect of witness[es] and expert[s] [in cases] where it is difficult to bring them to court because their [private] place of residence is located outside the jurisdiction of the competent court.",
"...",
"(5) If there is a possibility, pursuant to the above paragraphs, that witness[es] and expert[s] may be examined via the use of audiovisual communication techniques, evidence shall be taken by using this method. The conditions and procedure for the installation and use of technical equipment allowing this [method to be employed] shall be laid down in a regulation.”",
"38. Article 181 provides as follows:",
"“(1) The date on which a witness or an expert is to give evidence shall be notified to the public prosecutor, the victim and his or her representative, the accused and his or her defence counsel.",
"(2) The above provision shall also apply in cases where a new physical examination [of the accused] and reconstruction of events are required.",
"(3) A detainee may only ask to be present during acts of this type in the court of his place of detention. However, in cases where it is deemed necessary, the judge or court may decide to have a detained suspect or accused present during such acts.”",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION",
"39. The applicant complained under Article 6 § 3 (d) of the Convention that he had not had a fair trial in that he had been prevented from confronting certain witnesses in person. The relevant parts of Article 6 read as follows:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...",
"...",
"3. Everyone charged with a criminal offence has the following minimum rights:",
"...",
"(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;",
"...”",
"Admissibility",
"40. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"41. The applicant did not submit any observations within the time-limit allocated for that purpose.",
"42. The Government argued that the trial court’s decision to have the four witnesses examined by the courts of their places of residence pursuant to letters of request sent to those courts had been taken in accordance with Article 180 of the Code of Criminal Procedure, which provided for such a method under certain circumstances. Y.A., S.Y. and A.T. were all convicted persons who had been serving prison sentences in three different cities in Turkey. As for F.K., the trial court had revoked its decision to take evidence from him after efforts to locate him had been to no avail. While A.T., S.Y. and Y.A. could not recall their previous statements, arguing that a long time had passed since then, the latter had been able to recall a person with the code name “Avareş” as written in his statements. Furthermore, although the applicant’s lawyer had been notified of the hearings held in the courts which had taken evidence from those witnesses, he had not attended any of the commission hearings.",
"43. Moreover, the trial court had carried out a meticulous assessment of the evidence in the case file before convicting the applicant. In that connection, it had not found credible the evidence given by the witnesses before the courts acting on the letters of request, setting out the reasons leading it to attach more weight to their initial statements. Similarly, the trial court had also provided a reasoned reply to the applicant’s allegations that there had been more than one person with the code name “Avareş”. The Government therefore asked the Court to find that there had been no violation of Article 6 of the Convention.",
"The Court’s assessment",
"(a) General principles",
"44. The key principle governing the application of Article 6 is fairness. The right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting the guarantees of Article 6 § 1 of the Convention restrictively (see Asatryan v. Armenia, no. 3571/09, § 51, 27 April 2017).",
"45. The general principles with regard to complaints relating to the examination of absent witnesses and use by the courts of the evidence given by those witnesses may be found in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131, ECHR 2015), and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118 ‑ 147, ECHR 2011; see also Seton v. the United Kingdom, no. 55287/10, §§ 57 ‑ 59, 31 March 2016 for a concise summary of those principles).",
"46. In sum, these principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason for the non-attendance of the absent witness at the trial; (ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis ‑ à ‑ vis the evidence given by the absent witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial (see Šmajgl v. Slovenia, no. 29187/10, § 61, 4 October 2016). The Court has already held that the same principles will be applicable in respect of the examination of a witness in the course of the trial, including the relevant modalities thereof (see Chernika v. Ukraine, no. 53791/11, § 46, 12 March 2020; Ürek and Ürek v. Turkey, no. 74845/12, § 49, 30 July 2019; and Cherpion v. Belgium (dec.), no. 47158/11, §§ 35-41, 9 May 2017).",
"47. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Schatschaschwili, cited above, § 103, and Lucà v. Italy, no. 33354/96, § 39, ECHR 2001 ‑ II).",
"48. Under certain circumstances, it may be necessary for the courts to have recourse to statements made during the criminal investigation stage. If the accused had sufficient and adequate opportunity to challenge such statements, at the time they were taken or at a later stage of the proceedings, their use does not run counter to the guarantees of Article 6 §§ 1 and 3 (d) of the Convention (see Berhani v. Albania, no. 847/05, § 51, 27 May 2010, with further references therein). In that connection, the Court further reiterates that evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should, however, be treated with extreme care (see Visser v. the Netherlands, no. 26668/95, § 44, 14 February 2002, and S.N. v. Sweden, no. 34209/96, § 53, ECHR 2002-V). While it is true that the admission of such evidence will not automatically result in a breach of Article 6, the Court must subject the proceedings to the most searching scrutiny where a conviction is based solely or decisively on the evidence of absent witnesses or where such evidence carried significant weight in respect thereof (see Al-Khawaja and Tahery, cited above, §§ 118-147). The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (ibid., § 147).",
"49. Furthermore, the Court reiterates that failure to recall a witness previously cross-examined by the applicant in the event of a retraction of his or her incriminating testimony may raise an issue under Article 6 §§ 1 and 3 (d) of the Convention (see Bondar v. Ukraine, no. 18895/08, § 75, 16 April 2019). This approach is a fortiori applicable in respect of witnesses that have not been cross-examined at any stage of the proceedings by the applicant.",
"50. As regards confrontations, the Court has already held that it is normally desirable that witnesses should identify a person suspected of serious crimes in person if there is any doubt about his or her identity (see Šmajgl, cited above, § 70) and that the absence of such identification necessarily creates difficulties for the defence. Furthermore, as regards the criteria developed by the Convention organs to examine whether the absence of a direct confrontation in an individual case complies with the requirements of Article 6 §§ 1 and 3 (d) of the Convention, the Court notes that the first question addressed is similar to that applicable to cases involving absent or anonymous witnesses, namely whether there was a good reason to hear evidence from a witness in the absence of the accused. In cases where it was found that such a good reason existed, the Convention organs have further examined whether the applicants were substantially affected in the exercise of their defence on account of the lack of such a confrontation (see Šmajgl, cited above, § 64).",
"(b) Application of those principles to the instant case",
"(i) Whether there was a good reason for the non-attendance of witnesses S.Y., A.T., Y.A. and F.K. at the trial",
"51. The Court notes that the applicant went to the police and voluntarily handed himself in, confessing to his involvement with the PKK. In that connection, although he spelled out, inter alia, the activities he had carried out for the PKK over a span of approximately eleven years, he denied having carried out or taken part in any of the armed activities. Nevertheless, the public prosecutor relied on the statements eleven other organisation members had made in the course of different criminal proceedings. He argued that four of those witnesses, namely S.Y., A.T., Y.A. and F.K., had described a certain organisation member with the code name “Avareş” as the person who had taken part in, inter alia, the three armed activities, which had later formed the basis of the indictment lodged against the applicant. Relying on the evidence given by those four witnesses between 1995 and 1999, the public prosecutor averred that the individual described by them was the applicant.",
"52. The Court notes that it is not disputed that when the four witnesses made their statements between 1995 and 1999, neither the applicant nor his lawyer had the opportunity to examine or question them. Moreover, when the applicant’s lawyer asked the trial court to hold a confrontation between the applicant and the four witnesses, the court decided that they would be examined by the courts of their places of residence. In doing so, the trial court invited those courts to examine the witnesses, show them several photographs, including of the applicant, and ask them whether they were able to identify him. It is important to note that none of the witnesses could identify the applicant from those photographs.",
"53. The method chosen by the trial court, namely the examination of the witnesses by the courts of their places of residence if they were residing somewhere other than where the trial was taking place, appears to result, as the Government have claimed, from the interpretation of the relevant provisions of the Code of Criminal Procedure, in particular Article 180. The Court should therefore first ascertain whether that interpretation could be considered a good reason in the sense of the term used by the Court in its case-law under Article 6 § 3 (d) of the Convention for the non-attendance of witnesses at trial.",
"54. In that connection, the Court reiterates that it has already held in Seton (cited above, § 61) that the absence of a witness from the country where the proceedings were being conducted was not in itself sufficient reason to justify his or her absence from the trial (see also Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012). These considerations hold true a priori when witnesses are located in the same country in which the trial against the accused is being held but in different places. Furthermore, the Court has already held that the distance between two cities cannot be regarded of itself and in the abstract as a good reason for failure by judges to ensure the examination of witnesses in person (see Süleyman v. Turkey, no. 59453/10, § 78, 17 November 2020) and that the Contracting States are required to take positive steps, in particular to enable the accused to examine or have examined witnesses against him. Lastly, the Court has clarified that the fact that witnesses are in prison, in other words in a place within the exclusive knowledge and control of the authorities of the State, cannot by and of itself constitute a good reason for their non-attendance at the trial in person (see Bondar, cited above, § 76, and Daştan v. Turkey, no. 37272/08, § 24, 10 October 2017).",
"55. When viewed in the light of the above principles, the Court notes that the interpretation and application of Article 180 of the Code of Criminal Procedure by the trial court meant that the witnesses would always be examined by the courts of their places of residence if they were residing in a city other than where the trial was taking place. Accordingly, the evidence of three of the four witnesses was taken by courts other than the trial court, and the latter admitted copies of their written statements as evidence in lieu of their live in-court testimony. In other words, the crux of the applicant’s inability to examine the witnesses in person stemmed from the trial court’s inflexible and mechanical approach, which rested on the fact that the witnesses were situated in different cities. In the Court’s view, that fact alone, which precludes any individualised assessment of the question whether there were good reasons for the witnesses’ non-attendance at the trial and which appears to absolve the domestic courts of their duty to make all reasonable efforts to secure their attendance, cannot be considered a good reason to do away with the applicants’ right to confront witnesses before their triers of fact.",
"56. Indeed, the fact that three of the witnesses were serving their sentences in different prisons in Turkey at the time they gave evidence during the applicant’s trial, and were hence under the exclusive authority of the State, did not prompt the trial court to assess whether it was possible to hear them in person.",
"57. Similarly, the Court finds that the steps taken by the domestic authorities to locate F.K., which consisted only of enquiring at his alleged work address and calling a mobile telephone number belonging to him do not suggest that they did everything reasonably expected of them to secure his presence (see Panagis v. Greece, no. 72165/13, § 47 in fine, 5 November 2020, and Tseber v. the Czech Republic, no. 46203/08, §§ 50 ‑ 51, 22 November 2012).",
"58. In view of the above, the Court cannot conclude that the trial court’s decision to send letters of request to the courts was the result of an inability to secure the attendance of the witnesses. Accordingly, it follows that no good reason has been shown by the domestic courts or the Government for the non-attendance of those witnesses at trial.",
"(ii) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction",
"59. The Court notes that the domestic courts’ decisions contain no assessment as regards the weight attached to the evidence given by the absent witnesses. It will therefore proceed with its own assessment on this point. In that connection, the Court observes that while the applicant acknowledged that he had been a member of the PKK and maintained this position throughout the whole criminal proceedings, he consistently claimed that he had not taken part in any armed activities perpetrated by it. That was a crucial point in the instant case because it was the requisite material element of the offence of “carrying out activities aimed at bringing about the secession of part of the national territory” under Article 125 of the then Criminal Code, of which the applicant was eventually found guilty. Indeed, his conviction under that provision and the eventual life imprisonment imposed on him were contingent upon the establishment of his involvement in the three armed activities carried out by the PKK.",
"60. While it is true that the trial court had in its possession the statements made by other witnesses and incident reports regarding the acts attributed to the applicant, it appears from the trial court’s reasoned judgment that the evidence given by the four absent witnesses was central to his conviction given that none of the remaining evidence could have been sufficient of itself to find the applicant guilty (see Dan v. Moldova, no. 8999/07, § 31, 5 July 2011). Indeed, the trial court’s findings in respect of the first and third incidents decisively consisted of the statements made by Y.A., F.K. and A.T. As regards the second incident, the trial court based the crux of its assessment on the statements given by S.Y., who was the only person to have stated that the organisation member with the code name “Avareş” had taken part in that incident, before corroborating part of S.Y.’s statements (in so far as it concerned his being a warrior from Diyarbakır operating within the “Karker” group) with those of three other witnesses, including A.T.",
"61. Therefore, in establishing the applicant’s involvement in the three armed incidents indicated in the indictment and sentencing him to life imprisonment, the trial court relied, in the Court’s view, to a decisive extent on the evidence given by the absent witnesses (contrast Verdam v. the Netherlands, (dec.) no. 35253/97, 31 August 1999).",
"62. In view of the above, it remains to be seen whether there were any procedural safeguards capable of compensating for the non-attendance at trial of the four witnesses.",
"(iii) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured",
"63. The Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence in question. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (see Schatschaschwili, cited above, § 116). Given the centrality of witness evidence, the Court considers that weighty counterbalancing factors are required to ensure fairness of proceedings (see Chernika, cited above, § 66). The Court has considered the following elements to be relevant in this context: the trial court’s approach to the evidence in question; the availability and strength of further incriminating evidence; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, § 145, and Ürek and Ürek, § 60, both cited above).",
"64. As regards whether the domestic courts had in place any procedural safeguards with a view to reigning in the negative impact of the admission of the evidence given by the absent witnesses, the Court notes that the Government’s arguments on this point were twofold: firstly, they argued that the applicant’s lawyer had failed to attend the commission hearings, which would have enabled him to examine the witnesses and, secondly, they laid emphasis on the trial court’s meticulous examination of the evidence given by the absent witnesses. The Court will address both of these points in turn.",
"65. The Court reiterates that the underlying reason calling for procedural safeguards vis-à-vis evidence given by absent witnesses under Article 6 § 3 (d) of the Convention is the need for a fair and proper assessment of the reliability of evidence given by such witnesses with a view to ensuring the overall fairness of the criminal proceedings from the standpoint of Article 6 § 1 of the Convention (see Al-Khawaja and Tahery, cited above, § 147).",
"66. As regards the first limb of the Government’s argument, the Court reiterates that it has already found that there was no good reason for the absence of the witnesses due to the trial court’s interpretation of Article 180 of the Code of Criminal Procedure. As a result, the Court will subject the proceedings to the most searching scrutiny (ibid., § 147).",
"67. In that connection, the Court further observes that the second paragraph of Article 180 provides that the examination of witnesses by the courts of their places of residence is only possible if it is difficult to bring them before the trial court. However, the trial court’s decision was silent on this crucial requirement. Similarly, while the fifth paragraph of the same provision stipulates that wherever possible the courts should have recourse to audiovisual means of taking statements from witnesses who reside outside their jurisdiction, the trial court does not appear to have considered that method either. Nor did it provide any reasons capable of showing that it had been prevented from doing so. Accordingly, the Court concludes that the trial court failed to explore alternative measures for obtaining evidence from the absent witnesses.",
"68. Be that as it may, in order to consider the first limb of the Government’s argument, the Court ought also to examine the preliminary question of whether the method the trial court opted for, namely issuing letters of request to the courts of the absent witnesses’ places of residence to take evidence from them, was such as to allow the defence to properly and fairly assess the credibility of the evidence. The Court is unable to answer that question in the affirmative in the present case for the following reasons.",
"69. Firstly, were the Court to accept the Government’s contention, the accused and/or defence lawyers would have to travel to different places with a view to attending the hearings where witnesses would be giving evidence in order to benefit from the right to examine witnesses. Such a course of action, requiring lawyers to attend potentially multiple hearings in distant cities would risk placing a disproportionate burden on the defence to an extent incompatible with the principle of equality of arms. In the present case, the applicant’s lawyer attended the hearing held before the Elbistan Assize Court with a view to examining Y.A. However, by that time that court had already examined Y.A. at an earlier hearing and the transcript of that hearing contained nothing to indicate that the applicant’s lawyer had been duly informed of it. During the second hearing attended by the applicant’s lawyer, Y.A. was not present as he was unwell, and the applicant’s lawyer could not cross-examine him (see paragraph 19). In any event, at no point did the Government argue that the applicant, who remained in pre-trial detention throughout the criminal proceedings, could attend the commission hearings before the different courts had he so wished. In fact, such a possibility appears to have been ruled out by Article 181 § 3 of the Code of Criminal Procedure, which limits a detainee’s right to attend a witness examination to situations where it is carried out by the court of his or her place of detention. The Court reiterates that in cases where physical identification plays a pivotal role, an applicant’s personal presence before a trial court together with that of witnesses takes on such an importance that the mere presence of his or her lawyer would not suffice to endorse the rights of defence, even when the lawyer is able to challenge the credibility of those witnesses (see Fikret Karahan v. Turkey, no. 53848/07, §§ 54-55, 16 March 2021).",
"70. Secondly, the trial court’s approach is capable of jeopardising the principle of immediacy, in particular when domestic courts have not done everything reasonably expected of them to secure the presence of a witness, in so far as this approach gives rise to a situation in which the trial court would not have the possibility to directly observe the demeanour and credibility of a certain witness giving evidence in the courts of his or her place of residence. The assessment of the trustworthiness of a witness and the accuracy of his or her statements are complex matters which usually cannot be achieved by a mere reading of his or her recorded words (see Daştan, cited above, § 33). Indeed, even if defence lawyers availed themselves of the opportunity to travel to and attend each commission hearing, the purpose sought by the cross-examination of witnesses or their identification of the accused may not be properly served given that the judges who would ultimately adjudicate upon the question of the accused’s guilt would not have the benefit of observing the demeanour of the absent witnesses and assessing their credibility without a good reason for their absence. On this point, the present case is distinguishable from other cases where the examination of witnesses in the absence of the accused, but in the presence of his or her lawyer by the trial courts – which, unlike the present case, had ultimately ruled upon the question of guilt – was found to have been compatible with the requirements of Articl 6 § 3 (d) of the Convention (see, as regards the absence of a direct confrontation during the trial between the accused and witnesses, Fikret Karahan, cited above, § 55; Šmajgl, cited above, § 64 and the cases cited therein; and compare Riahi v. Belgium, no. 65400/10, §§ 40-42, 14 June 2016 and the cases cited therein as regards the Court’s assessment of the existence of a direct confrontation between the applicants and witnesses that had taken place only during the pre ‑ trial investigation; and contrast Vronchenko v. Estonia, no. 59632/09, § 56, 18 July 2013 and the cases cited therein for the Court’s approach in cases concerning offences of sexual abuse). In the Court’s view, the above considerations are all the more significant given that what is at issue in the present case is the confrontation (or lack thereof) of the applicant with the absent witnesses, an issue which a fortiori calls for an oral examination of the latter.",
"71. Accordingly, the Court concludes that the hearing of witnesses by the courts of their places of residence is not capable of operating as a procedural safeguard in the absence of good reasons for the non-attendance of absent witnesses and when the trial court had recourse to it without considering alternative measures for obtaining evidence from the absent witnesses. To conclude otherwise would effectively mean that the underlying principle under Article 6 § 3 (d) of the Convention, namely that “before an accused can be convicted, all evidence against him or her normally has to be produced in his or her presence at a public hearing with a view to adversarial argument” would become the exception without any good reason for the non-attendance of witnesses at the trial or without any due consideration by the domestic courts for less stringent measures. In view of the foregoing considerations, the theoretical possibility for the applicant’s lawyer to attend the hearings during which A.T. and S.Y. gave evidence before the Istanbul and Muş Assize Courts did not constitute a sufficient counterbalancing factor. The Court therefore dismisses the Government’s argument on this point.",
"72. As regards the second limb of the Government’s argument, the Court observes that there is no indication in the case file that the national courts either approached the evidence given by the absent witnesses with any particular caution or that they were aware that it carried less weight owing to their absence from the trial (see Süleyman, cited above, § 89, with further references therein).",
"73. Moreover, the Court observes that the trial court concluded that the description given by A.T. in 1999 of the organisation member with the code name “Avreş” who had lines on his face perfectly matched that of the applicant, given that he also had lines on his face. Nevertheless, it is noteworthy that the trial court simply disregarded the fact that A.T. had also stated in 1999 that “Avreş” had been arrested. Given that the applicant was arrested some ten years after that incident, the clarification of that point was crucial and exemplified the need to hear the witnesses in person. Similarly, although the trial court appears to have addressed the applicant’s contention that there had been more than one “Avareş” in the PKK, it did not deal with the question of whether the person with the code name “Avreş” as stated by A.T. had been the same “Avareş” as the one indicated by the three other witnesses (F.K., S.Y. and Y.A.) or “Avareş-Tekoşin”, the codename allegedly used by the applicant. Those points were all the more significant given that the explanations of those witnesses were not based on an identification made on the basis of the applicant’s photographs (see, mutatis mutandis, Fernandes Pedroso v. Portugal, no. 59133/11, § 102, 12 June 2018). Given the above shortcomings, and reiterating that the assessment of the trustworthiness of a witness is a task which usually cannot be achieved by a mere reading of his or her recorded words (see Daştan, cited above, § 33), the Court takes the view that the examination carried out by the trial court was not, by and of itself, such as to counteract the adverse impact that the admission of the evidence given by the absent witnesses had on the fairness of the criminal proceedings against the applicant.",
"74. As regards the availability and strength of further incriminating evidence, the Court reiterates its above findings as regards the probative value of the evidence given by the absent witnesses for the applicant’s conviction (see paragraphs 59 and 61). Although the weight attached by the trial court to the evidence given by the absent witnesses required that it duly applied the procedural safeguards aimed at properly and fairly assessing the reliability and accuracy of such evidence, the Court discerns no such safeguards in the present case. Indeed, the applicant’s conviction rested on the untested evidence of the absent witnesses, whom the applicant had no real opportunity to examine either when they made their statements in the period between 1995 and 1999 or when they gave evidence during the criminal proceedings against him.",
"75. In view of the foregoing considerations, the Court concludes that the four witnesses’ non-attendance at trial, the lack of an in-person confrontation between them and the applicant without a good reason and the reliance placed upon their evidence by the trial court in convicting the applicant and sentencing him to life imprisonment without the necessary procedural safeguards, substantially affected the defence’s ability to test the truthfulness and reliability of their evidence and, in the circumstances of the present case, tainted the overall fairness of the proceedings against the applicant.",
"76. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"77. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"78. The applicant did not submit any just satisfaction claims. Therefore, the Court makes no award under this head.",
"79. Notwithstanding that conclusion, the Court notes that Article 311 of the Code of Criminal Procedure allows for reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Fikret Karahan, cited above, § 64, and Daştan, cited above, § 44)."
] |
290 | Del Río Prada v. Spain | 21 October 2013 (Grand Chamber) | This case concerned the postponement of the final release of a person convicted of terrorist offences, on the basis of a new approach – known as the “Parot doctrine” – adopted by the Spanish Supreme Court after she had been sentenced. The applicant complained that the Supreme Court’s departure from the case-law concerning remissions of sentence had been retroactively applied to her after she had been sentenced, thus extending her detention by almost nine years. She further alleged that she had been kept in detention in breach of the requirements of “lawfulness” and “a procedure prescribed by law”. | The Court held that there had been a violation of Article 7 (no punishment without law) of the Convention. It considered in particular that the applicant could not have foreseen either that the Spanish Supreme Court would depart from its previous case-law in February 2006, or that this change in approach would be applied to her and would result in the date of her release being postponed by almost nine years – from 2 July 2008 until 27 June 2017. The applicant had therefore served a longer term of imprisonment than she should have served under the Spanish legal system in operation at the time of her conviction. Accordingly, it was incumbent on the Spanish authorities to ensure that she was released at the earliest possible date. The Court also held that since 3 July 2008 the applicant’s detention had not been lawful, in violation of Article 5 § 1 (right to liberty and security) of the Convention. It lastly held, under Article 46 (binding force and execution of judgments) of the Convention, that Spain was to ensure that the applicant was released at the earliest possible date. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicant was born in 1958. She is serving a prison sentence in the region of Galicia.",
"11. In eight separate sets of criminal proceedings before the Audiencia Nacional [1], the applicant was sentenced as follows.",
"(a) In judgment no. 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; and for using forged identity documents, to six months’ imprisonment.",
"(b) In judgment no. 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment.",
"(c) In judgment no. 43/1989 of 22 April 1989: for a fatal attack and for murder, to twenty-nine years’ imprisonment on each count.",
"(d) In judgment no. 54/1989 of 7 November 1989, for a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; and for damage to property, to eleven years’ imprisonment. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years.",
"(e) In judgment no. 58/1989 of 25 November 1989: for a fatal attack and two murders, to twenty-nine years’ imprisonment in respect of each charge. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years.",
"(f) In judgment no. 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; and on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that for the purposes of the custodial sentences the maximum sentence provided for in Article 70.2 of the Criminal Code of 1973 should be taken into account.",
"(g) In judgment no. 29/1995 of 18 April 1995: for a fatal attack, to twenty-eight years’ imprisonment, and for attempted murder, to twenty years and one day. The court again referred to the limits provided for in Article 70 of the Criminal Code.",
"(h) In judgment no. 24/2000 of 8 May 2000: for an attack with intent to murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment stated that the sentence to be served should not exceed the limit provided for in Article 70.2 of the Criminal Code of 1973. In determining which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term to be served as provided for in Article 70.2 of that Code, combined with the remissions of sentence for work done in detention as provided for in Article 100.",
"12. In all, the terms of imprisonment to which the applicant was sentenced for these offences, committed between 1982 and 1987, amounted to over 3,000 years.",
"13. The applicant was held in pre-trial detention from 6 July 1987 to 13 February 1989 and began to serve her first sentence after conviction on 14 February 1989.",
"14. By a decision of 30 November 2000, the Audiencia Nacional notified the applicant that the legal and chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the applicant in respect of all her prison sentences combined at thirty years.",
"15. By a decision of 15 February 2001, the Audiencia Nacional set the date on which the applicant would have fully discharged her sentence ( liquidación de condena ) at 27 June 2017.",
"16. On 24 April 2008, taking into account the 3,282 days’ remission to which she was entitled for the work she had done since 1987, the authorities at Murcia Prison, where the applicant was serving her sentence, proposed to the Audiencia Nacional that she be released on 2 July 2008. Documents submitted to the Court by the Government show that the applicant was granted ordinary and extraordinary remissions of sentence by virtue of decisions of the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria at first instance and Audiencias Provinciales on appeal) in 1993, 1994, 1997, 2002, 2003 and 2004, for cleaning the prison, her cell and the communal areas and undertaking university studies.",
"17. However, on 19 May 2008 the Audiencia Nacional rejected that proposal and asked the prison authorities to submit a new date for the applicant’s release, based on a new precedent (known as the “Parot doctrine”) set by the Supreme Court in its judgment no. 197/2006 of 28 February 2006. According to this new approach, sentence adjustments ( beneficios ) and remissions were no longer to be applied to the maximum term of imprisonment of thirty years, but successively to each of the sentences imposed (see “Relevant domestic law and practice”, paragraphs 39-42 below).",
"18. The Audiencia Nacional explained that this new approach applied only to people convicted under the Criminal Code of 1973 to whom Article 70.2 thereof had been applied. As that was the applicant’s case, the date of her release was to be changed accordingly.",
"19. The applicant lodged an appeal ( súplica ) against that decision. She argued, inter alia, that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactive application of criminal-law provisions less favourable to the accused, because instead of being applied to the maximum term to be served, which was thirty years, remissions of sentence for work done in detention were henceforth to be applied to each of the sentences imposed. The effect, she argued, would be to increase the term of imprisonment she actually served by almost nine years. The Court has not been apprised of the outcome of this appeal.",
"20. By an order of 23 June 2008, based on a new proposal by the prison authorities, the Audiencia Nacional set the date for the applicant’s final release ( licenciamiento definitivo ) at 27 June 2017.",
"21. The applicant lodged a súplica appeal against the order of 23 June 2008. By a decision of 10 July 2008 the Audiencia Nacional rejected the applicant’s appeal, explaining that it was not a question of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of a prisoner’s release. Such reductions were henceforth to be applied to each sentence individually. Lastly, the Audiencia Nacional considered that the principle of non-retroactive application had not been breached because the criminal law applied in this case had been that in force at the time of its application.",
"22. Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective judicial protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the ground that the applicant had not demonstrated the constitutional relevance of her complaints."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Constitution",
"23. The relevant provisions of the Constitution read as follows:",
"Article 9",
"“...",
"3. The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the non-retroactivity of punitive measures that are unfavourable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities and the prohibition against arbitrary action on the part of the latter.”",
"Article 14",
"“All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”",
"Article 17",
"“1. Every person has the right to liberty and security. No one may be deprived of his or her liberty except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law.",
"...”",
"Article 24",
"“1. All persons have the right to obtain effective protection by the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence.",
"...”",
"Article 25",
"“1. No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a serious or petty criminal offence or administrative offence according to the law in force at that time.",
"2. Punishments entailing imprisonment and security measures shall be aimed at rehabilitation and social reintegration and may not consist of forced labour. While serving their sentence, convicted persons shall enjoy the fundamental rights set out in this Chapter, with the exception of those expressly limited by the terms of the sentence, the purpose of the punishment and the prison law. In all circumstances, they shall be entitled to paid employment and to the corresponding social-security benefits, as well as to access to cultural activities and the overall development of their personality.",
"...”",
"B. The law applicable under the Criminal Code of 1973",
"24. The relevant provisions of the Criminal Code of 1973, as in force at the time the offences were committed, read as follows:",
"Article 70",
"“When all or some of the sentences [ penas ] imposed ... cannot be served simultaneously by a convicted person, the following rules shall apply:",
"1. In imposing the sentences [ penas ], where possible the order to be followed for the purposes of their successive completion by the convicted person is that of their respective severity, the convicted person going on to serve the next sentence when the previous one has been served or extinguished by pardon ...",
"2. Notwithstanding the previous rule, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed thirty years, is attained.",
"The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.”",
"Article 100 (as amended by Organic Law [ Ley Orgánica ] no. 8/1983)",
"“Once his judgment or conviction has become final, any person sentenced to imprisonment [ reclusión, prisión or arresto mayor [2] ] may be granted remission of sentence [ pena ] in exchange for work done while in detention. In serving the sentence [ pena ] imposed the prisoner shall be entitled, with the approval of the judge responsible for the execution of sentences [ Juez de Vigilancia ], to one day’s remission for every two days worked in detention, and the time thus deducted shall be taken into account when granting release on licence. This benefit shall also apply, for the purposes of discharging [ liquidación ] the term of imprisonment to be served [ condena ], to prisoners who were held in pre-trial detention.",
"The following persons shall not be entitled to remission for work done in detention:",
"1. prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed.",
"2. prisoners who repeatedly misbehave while serving their sentence [ condena ].”",
"25. The relevant provision of the Criminal Procedure Act in force at the material time reads as follows:",
"Section 988",
"“... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with section 17 of this Act, the judge or court which delivered the last judgment convicting the person concerned shall, of their own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of all the sentences imposed, in accordance with Article 70.2 of the Criminal Code ...”",
"26. The right to remission of sentence for work done in detention was provided for in the Prison Regulations of 2 February 1956, the relevant provisions of which (Articles 65-73) were applicable at the time the offences were committed, by virtue of the second transitional provision of the 1981 Prison Regulations. The provisions concerned read as follows:",
"Article 65",
"“1. Under Article 100 of the Criminal Code, once his judgment or conviction has become final, any person sentenced to [imprisonment] may be granted remission of sentence [ pena ] in exchange for work done while in detention.",
"...",
"3. The following persons shall not be entitled to remission for work done in detention:",
"(a) prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed.",
"(b) prisoners who repeatedly misbehave while serving their sentence [ condena ]. This provision applies to prisoners who commit a further serious or very serious disciplinary offence when they have not yet expunged a previous offence ...”",
"Article 66",
"“1. Whatever the regime to which he is subject, any prisoner may be granted remission of sentence for work done in detention provided that he meets the legal conditions. In such cases the detainee shall be entitled, for the purposes of his final release, to one day’s remission for every two days’ work done in detention. The total period of entitlement to remission shall also be taken into account when granting release on licence.",
"2. The prison’s supervisory body shall submit a proposal to the Patronato de Nuestra Señora de la Merced. When the proposal is approved the days worked shall be counted retroactively in the prisoner’s favour, from the day when he started to work. [3] ”",
"Article 68",
"“Be it paid or unpaid, intellectual or manual, done inside the prison or outside ..., any work done by prisoners must be useful.”",
"Article 71",
"“...",
"3. Extraordinary remissions of sentence may be granted for special reasons of discipline and productivity at work ..., within the limit of one day for each day worked and 175 days per year of sentence actually served ...”",
"Article 72",
"“Remissions of sentence may be granted for intellectual work:",
"(1) for undertaking and succeeding in religious or cultural studies organised by the management;",
"(2) for joining an arts, literature or science club set up by the prison authorities;",
"(3) for engaging in intellectual activities;",
"(4) for producing original works of an artistic, literary or scientific nature.",
"...”",
"Article 73",
"“The following prisoners shall forfeit the right to remission of sentence for work done in detention:",
"(1) prisoners who escape or attempt to escape. They shall forfeit the right to earn any future remission of sentence;",
"(2) prisoners who commit two serious or very serious disciplinary offences ...",
"Any remission already granted, however, shall be counted towards reducing the corresponding sentence or sentences.",
"27. Article 98 of the Criminal Code of 1973, regulating the release of prisoners on licence, read as follows:",
"“Release on licence may be granted to prisoners sentenced to more than one year’s imprisonment who:",
"(1) are in the final phase of the term to be served [ condena ];",
"(2) have already served three-quarters of the term to be served;",
"(3) deserve early release for good behaviour; and",
"(4) afford guarantees of social reintegration.”",
"28. Article 59 of the 1981 Prison Regulations (Royal Decree no.1201/1981), which explained how to calculate the term of imprisonment (three-quarters of the sentence imposed) to be served in order for a prisoner to be eligible for release on licence, read as follows:",
"Article 59",
"“In calculating three-quarters of the sentence [ pena ], the following rules shall apply:",
"(a) for the purposes of release on licence, the part of the term to be served [ condena ] in respect of which a pardon has been granted shall be deducted from the total sentence [ pena ] imposed, as if that sentence had been replaced by a lesser one;",
"(b) the same rule shall apply to sentence adjustments [ beneficios penitenciarios ] entailing a reduction of the term to be served [ condena ];",
"(c) when a person is sentenced to two or more custodial sentences, for the purposes of release on licence the sum of those sentences shall be treated as a single term of imprisonment to be served [ condena ]. ...”",
"C. The law applicable following the entry into force of the Criminal Code of 1995",
"29. Promulgated on 23 November 1995, the Criminal Code of 1995 (Organic Law no. 10/1995) replaced the Criminal Code of 1973. It entered into force on 24 May 1996.",
"30. The new Code did away with remissions of sentences for work done in detention. However, the first and second transitional provisions of the new Code provided that prisoners convicted under the 1973 Code were to continue to enjoy that privilege even if their conviction was pronounced after the new Code entered into force. The transitional provisions concerned read as follows:",
"First transitional provision",
"“Crimes and lesser offences committed prior to the entry into force of the present Code shall be tried in conformity with the [Criminal Code of 1973] and other special criminal laws repealed by the present Code. As soon as this Code enters into force its provisions shall be applicable if they are more favourable to the accused.”",
"Second transitional provision",
"“In order to determine which is the more favourable law, regard shall be had to the penalty applicable to the charges in the light of all the provisions of both Codes. The provisions concerning remission of sentence for work done in detention shall apply only to persons convicted under the old Code. They shall not be available to persons tried under the new Code ...”",
"31. Under the first transitional provision of the 1996 Prison Regulations (Royal Decree no. 190/1996), Articles 65-73 of the 1956 Regulations remained applicable to the execution of sentences imposed under the 1973 Criminal Code and to the determination of the more lenient criminal law.",
"32. The 1995 Criminal Code introduced new rules governing the maximum duration of prison sentences and the measures by which they could be adjusted ( beneficios penitenciarios ). Those rules were amended by Organic Law no. 7/2003 introducing reforms to ensure the full and effective execution of sentences. The amended provisions of the Criminal Code which are relevant to the present case read as follows:",
"Article 75",
"“When some or all of the sentences [ penas ] for the different offences cannot be served concurrently, they shall, as far as possible, be served consecutively, in descending order of severity.”",
"Article 76",
"“1. Notwithstanding what is set forth in the preceding Article, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed twenty years, is attained. Exceptionally, the maximum limit shall be:",
"(a) twenty-five years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years;",
"(b) thirty years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years;",
"(c) forty years when a person has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years;",
"(d) forty years when a person has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years.",
"2. The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.”",
"Article 78",
"“1. If, as a result of the limitations provided for in Article 76 § 1, the term to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that decisions concerning adjustments of sentence [ beneficios penitenciarios ], day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence should take into account all of the sentences [ penas ] imposed.",
"2. Such an order shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of Article 76 § 1 of this Code when the term to be served is less than half the aggregate of all the sentences imposed.",
"...”",
"33. According to the explanatory memorandum on Law no. 7/2003, Article 78 of the Criminal Code is meant to improve the efficacy of punishment for the most serious crimes:",
"“... Article 78 of the Criminal Code is amended so that for the most serious crimes the sum total of all the sentences imposed is taken into account for the purposes of adjustments of sentence, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence.",
"The purpose of this amendment is to improve the efficacy of the penal system vis-à-vis people convicted of several particularly serious crimes, that is to say those provided for in Article 76 of the Criminal Code (namely twenty-five, thirty or forty years’ actual imprisonment) when the term to be served amounts to less than half the total duration of all the sentences imposed. Where these limits are not applied, however, the courts may use their full discretion.",
"In application of this rule a person sentenced to one hundred, two hundred or three hundred years’ imprisonment will, in reality, effectively and fully serve the maximum term [ condena ] applicable.”",
"34. Article 90 of the Criminal Code of 1995 (as amended by Organic Law no. 7/2003) regulates release on licence. It subjects release on licence to conditions similar to those provided for in the Criminal Code of 1973 (pre-release classification, completion of three-quarters of the sentence, good behaviour and good prospects of social reintegration), but it also requires offenders to have complied with their obligations in respect of civil liability. In order to have good prospects of social reintegration offenders convicted of terrorism or organised crime must have unequivocally demonstrated their disavowal of terrorist methods and have actively cooperated with the authorities. This could take the form of a statement expressly repudiating the offences they committed and renouncing violence, together with an explicit appeal to the victims to forgive them. Unlike the new rules on the maximum duration of the sentence to be served and the conditions for applying sentence adjustments in the event of multiple convictions (Articles 76 and 78 of the Criminal Code), Article 90 of the Code is applicable immediately, regardless of when the offences were committed or the date of conviction (single transitional provision of Law no. 7/2003).",
"D. The case-law of the Supreme Court",
"1. The case-law prior to the “Parot doctrine”",
"35. In an order of 25 May 1990 the Supreme Court considered that the combining of sentences in application of Article 70.2 of the Criminal Code of 1973 and section 988 of the Criminal Procedure Act concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the trial court, not the judge responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ).",
"36. In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70.2 of the Criminal Code of 1973 amounted to a “new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence and remission of sentence, apply”. The Supreme Court referred to Article 59 of the Prison Regulations of 1981, according to which the combination of two custodial sentences was treated as a new sentence for the purposes of release on licence.",
"37. In an agreement adopted by the full court on 18 July 1996, following the entry into force of the Criminal Code of 1995, the Criminal Division of the Supreme Court explained that for the purpose of determining which was the more lenient law, regard had to be had to the system of remissions of sentence introduced by the old Code of 1973 when comparing the sentences to be served respectively under that Code and the new Criminal Code of 1995. It added that under Article 100 of the Criminal Code of 1973 a prisoner who had served two days of his sentence was irrevocably considered to have served three days. The application of this rule gave the beneficiary an acquired right. [4] The Spanish courts, which had to apply this criterion to compare the terms to be served respectively under the new and the old Criminal Code, took into account the remissions of sentence granted under the old Code. They accordingly considered that where the remainder of the sentence to be served after deduction of the remissions granted prior to the entry into force of the new Code did not exceed the length of the sentence provided for in the new Code, the latter could not be considered more lenient than the old Code. That approach was confirmed by the Supreme Court in various decisions, including judgments nos. 557/1996 of 18 July 1996 and 1323/1997 of 29 October 1997.",
"38. The Supreme Court continued to adopt that interpretation of the maximum term to be served as prescribed in Article 76 of the new Criminal Code of 1995. In judgment no. 1003/2005, delivered on 15 September 2005, it held that “this limit amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, day-release permits and pre-release classification apply”. In the same manner and terms, it stated in judgment no. 1223/2005, delivered on 14 October 2005, that the maximum term to be served “amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, apply subject to the exceptions provided for in Article 78 of the Criminal Code of 1995”.",
"2. The “Parot doctrine”",
"39. In judgment no. 197/2006 of 28 February 2006 the Supreme Court set a precedent known as the “Parot doctrine”. The case concerned a terrorist member of ETA (H. Parot) who had been convicted under the Criminal Code of 1973. The plenary Criminal Division of the Supreme Court ruled that the remissions of sentence granted to prisoners were henceforth to be applied to each of the sentences imposed and not to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973. The court’s ruling was based in particular on a literal interpretation of Articles 70.2 and 100 of the Criminal Code of 1973 according to which that maximum term of imprisonment was not to be treated as a new sentence distinct from those imposed, or a distinct sentence resulting from those imposed, but rather as the maximum term a convicted person should spend in prison. This reasoning made a distinction between the “sentence” ( pena ) and the “term to be served” ( condena ); the former referred to the sentences imposed taken individually, to which remissions of sentence should be applied, while the latter referred to the maximum term of imprisonment to be served. The Supreme Court also used a teleological argument. The relevant parts of its reasoning read as follows:",
"“... the joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year limit does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment [ máximo de cumplimiento ] a prisoner should serve in prison. The reasons that lead us to this interpretation are: (a) first, a literal analysis of the relevant provisions leads us to conclude that the Criminal Code by no means considers the maximum term of thirty years to amount to a new sentence to which any reductions to which the prisoner is entitled should apply, for the simple reason that it says no such thing; (b) on the contrary, the sentence [ pena ] and the resulting term of imprisonment to be served [ condena ] are two different things; the wording used in the Criminal Code refers to the resulting limit as the ‘term to be served’ [ condena ], and fixes the different lengths of that maximum ‘term to be served’ [ condena ] in relation to the ‘sentences’ imposed. According to the first rule, that maximum is arrived at in one of two ways: the different sentences are served in descending order of severity until one of the two limits set by the system is attained (three times the length of the heaviest sentence imposed or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after having served the successive sentences as mentioned, the prisoner will no longer have to discharge [i.e. serve] the remaining ones [in the prescribed order] once the sentences already served reach the maximum length, which may not exceed thirty years ...; (e) and from a teleological point of view, it would not be rational for the combination of sentences to reduce a long string of convictions to a single new sentence of thirty years, with the effect that an individual who has committed a single offence would be treated, without any justification, in the same way as someone convicted of multiple offences, as in the present case. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served [ condena ], but rather to one, several or all of the different sentences imposed; in such a case it is for the sentencing court to decide, and not the judicial body responsible for setting the limit (the last one), which shows that the sentences are not combined into one. Besides, the first rule of Article 70 of the Criminal Code of 1973 explains how, in such a case, the sentences must be served successively ‘the convicted person going on to serve the next sentence when the previous one has been extinguished by pardon’; (g) lastly, from a procedural point of view section 988 of the Criminal Procedure Act clearly states that it is a matter of setting the maximum limit of the sentences imposed (in the plural, in keeping with the wording of the law), ‘ fixing the maximum term to be served in respect of all the sentences ’ (the wording is very clear).",
"Which is why the term ‘combination [ refundición ] of the sentences to be served [ condenas ]’ is very misleading and inappropriate. There is no merging of sentences into a single sentence, but the number of years an individual can be expected to serve in respect of multiple sentences is limited by law. This means that the prisoner serves the different sentences, with their respective specificities and with all the corresponding entitlements. That being so, the remissions of sentence for work done in detention as provided for in Article 100 of the Criminal Code of 1973 may be applied to the sentences successively served by the prisoner.",
"The total term to be served [ condena ] is thus served in the following manner: the prisoner begins by serving the heaviest sentences imposed. The relevant adjustments [ beneficios ] and remissions are applied to each of the sentences the prisoner serves. When the first [sentence] has been completed, the prisoner begins to serve the next one, and so on until the limits provided for in Article 70.2 of the Criminal Code of 1973 have been reached, at which point all of the sentences comprised in the total term to be served [ condena ] will have been extinguished.",
"Take, for example, the case of an individual given three prison sentences: thirty years, fifteen years and ten years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the maximum term to be served to three times the most serious sentence or thirty years’ imprisonment. In this case the actual term to be served would be thirty years. The prisoner would begin serving the successive sentences (the total term to be served), starting with the longest sentence (thirty years in this case). If he were granted a ten-year remission for whatever reason, he would have served that sentence after twenty years’ imprisonment, and the sentence would be extinguished; next, the prisoner would start to serve the next longest sentence (fifteen years). With five years’ remission that sentence will have been served after ten years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences ceasing to have effect, as provided for in the applicable Criminal Code, once this maximum term, which may not exceed thirty years, is attained. ”",
"40. In the above-mentioned judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in conjunction with Article 70.2. It referred to a single precedent, its judgment of 8 March 1994 in which it had considered that the maximum duration provided for in Article 70.2 of the Criminal Code of 1973 amounted to “a new, independent sentence” (see paragraph 36 above). However, the Supreme Court departed from that interpretation, pointing out that that decision was an isolated one and could therefore not be relied on as a precedent in so far as it had never been applied in a consistent manner.",
"Even assuming that its new interpretation of Article 70 of the Criminal Code of 1973 could have been regarded as a departure from its case-law and from previous prison practice, the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the criminal law should not be applied retroactively (Article 25 § 1 and Article 9 § 3 of the Constitution) was not meant to apply to case-law.",
"41. Judgment no. 197/2006 was adopted by a majority of twelve votes to three. The three dissenting judges appended an opinion stating that the sentences imposed successively were transformed or joined together into another sentence, similar in nature but different in so far as it combined the various sentences into one. That sentence, which they called “the sentence to be served”, was the one resulting from the application of the limit fixed in Article 70.2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done in detention was to be applied. Remissions would therefore affect the sentences imposed, but only once the rules on the consecutive serving of sentences had been applied to them “for the purposes of their completion”. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted by the plenary Criminal Division on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70.2 of the Criminal Code of 1973 (the thirty-year limit). In application of that principle no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done in detention although they had each been given prison sentences totalling over a hundred years.",
"42. The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as amended by Organic Law no. 7/2003 introducing measures to ensure the full and effective execution of sentences. This new interpretation to the convicted person’s detriment was based on a policy of full execution of sentences which was alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the settled case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer as in the case concerned.",
"3. Application of the “Parot doctrine”",
"43. The Supreme Court confirmed the “Parot doctrine” in subsequent judgments (see, for example, judgment no. 898/2008 of 11 December 2008). In its judgment no. 343/2011 of 3 May 2011 it referred to the departure from previous case-law in judgment no. 197/2006 in the following terms:",
"“In the present case it was initially considered that the appellant would have finished serving the ljjegal maximum term of imprisonment on 17 November 2023, and that situation has not changed. It is the way sentence adjustments [ beneficios penitenciarios ] are applied that has changed. Until judgment no. 197/2006 (cited above) they were applied to the maximum term a prisoner could serve. This judgment and others that followed deemed that to be an error, and considered that the adjustment should be applied to the sentences actually imposed, which were to be served in succession, one after the other, until the limit provided for by law had been reached.”",
"44. According to information supplied by the Government, the “Parot doctrine” has been applied to ninety-three convicted members of ETA and thirty-seven other people found guilty of particularly serious crimes (drug traffickers, rapists and murderers).",
"E. The case-law of the Constitutional Court",
"45. In its judgment no. 174/1989 of 30 October 1989 the Constitutional Court noted that the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973 were periodically validated by the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ) further to a proposal by the prison authorities. It explained that remissions of sentence which had already been approved had to be taken into account by the trial court required to rule on the discharge ( liquidación ) of the term of imprisonment to be served ( condena ), and that remissions already accrued in application of the law could not subsequently be revoked to correct any errors or permit the application of a new interpretation. It added that where there was no appeal against a decision by a judge responsible for the execution of sentences, that decision became final and binding in conformity with the principle of legal certainty and the right not to have final judicial decisions overruled. It considered that the right to remissions of sentence for work done in detention was not conditional under the relevant law, as demonstrated by the fact that prisoners who misbehaved or attempted to escape lost that right only in respect of future adjustments, not in respect of those already granted.",
"46. In judgment no. 72/1994 of 3 March 1994 the Constitutional Court explained that the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973 reflected the principle enshrined in Article 25 § 2 of the Constitution that punishments entailing imprisonment must be aimed at the rehabilitation and social reintegration of the offender.",
"47. Various people who had suffered the effects of the “Parot doctrine” lodged amparo appeals with the Constitutional Court. The public prosecutor supported the cases of some of the individuals concerned, who complained in their appeals of violations of the principles of legality and non-retroactive interpretation of the law to the detriment of the accused. In his submissions he maintained that the principle of legality – and the principle of non-retroactivity it entailed – should apply to the execution of sentences. In a series of judgments of 29 March 2012 the Constitutional Court, sitting as a full court, ruled on the merits of these amparo appeals.",
"48. In two of those judgments (nos. 39/2012 and 57/2012), the Constitutional Court allowed the appeals, holding that there had been a violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) and of the right to liberty (Article 17 § 1 of the Constitution). It considered that the new method of applying remissions of sentence as a result of the Supreme Court’s departure from its case-law in 2006 had challenged final judicial decisions concerning the interested parties. It noted that the Audiencia Nacional which had adopted the decisions in question had considered that the Criminal Code of 1973 (which provided for a maximum term of imprisonment of thirty years) was more favourable to the persons concerned than the Criminal Code of 1995 (where the limit was twenty-five years) because they would have lost the right to remissions of sentence from the time the Criminal Code of 1995 entered into force had it been applied to them. Observing that the Audiencia Nacional had based its finding on the principle that the remissions of sentence provided for under the old Code should be deducted from the legal maximum term of imprisonment (namely thirty years), it held that final judicial decisions could not be altered by a new judicial decision applying another method. It concluded that there had been a violation of the right to effective judicial protection, and more specifically of the right not to have final judicial decisions overruled (the “intangibility” of final judicial decisions, or the principle of res judicata ). Concerning the right to liberty, it considered that, regard being had to the Criminal Code of 1973 and the method of applying remissions of sentence adopted in the judicial decisions cited above, the prisoners concerned had completed their sentences, which meant that their continued detention after the release date proposed by the prison authorities (in conformity with the formerly applicable rules) had no legal basis. In both decisions it referred to the Court’s judgment in Grava v. Italy (no. 43522/98, §§ 44-45, 10 July 2003).",
"49. In a third case (judgment no. 62/2012), the Constitutional Court allowed an amparo appeal, holding that there had been a violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) because the Audiencia Nacional had changed the date of the prisoner’s final release, thereby disregarding its own firm and final judicial decision given a few days earlier.",
"50. The Constitutional Court rejected amparo appeals in twenty-five cases (judgments nos. 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 61, 64, 65, 66, 67, 68 and 69/2012), because the decisions of the ordinary courts fixing the prisoners’ final release date based on the new approach introduced in 2006 had not contradicted the final decisions previously reached in those cases. Those decisions had not explicitly mentioned the manner of applying remissions of sentence for work done in detention, and that issue had not been decisive as regards the choice of the applicable Criminal Code.",
"51. Both in the judgments in favour of the appellants and in those against, the Constitutional Court rejected the complaint under Article 25 of the Constitution (principle of legality) because the question of the application of remissions of sentence for work done in detention concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law, or a sentence exceeding the limit allowed by law. The Constitutional Court referred to the Court’s case-law establishing a distinction between measures constituting a “penalty” and those relating to the “execution” of a sentence for the purposes of Article 7 of the Convention ( Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231; Grava, cited above, § 51; and Gurguchiani v. Spain, no. 16012/06, § 31, 15 December 2009).",
"52. In the parts of its judgment no. 39/2012 concerning the principle of legality, for example, the Constitutional Court stated:",
"“3. ... It must first be observed that the question under examination does not fall within the scope of the fundamental right enshrined in Article 25 § 1 of the Constitution – namely the interpretation and application of criminal charges, the classification of the facts established in respect of the offences concerned and the application of the corresponding penalties ... – but rather concerns the execution of custodial sentences, that is to say the application of remissions of sentence for work done in detention, and the interpretation we are required to examine cannot lead to the serving of sentences heavier than those provided for in respect of the criminal offences concerned, or to imprisonment in excess of the legal limit. In a similar manner, contrary to what the prosecution have argued, the European Court of Human Rights also considers that, even when they have an impact on the right to liberty, measures concerning the execution of the sentence – rather than the sentence itself – do not fall within the scope of the principle of no punishment without law enshrined in Article 7 § 1 of the Convention provided that they do not result in the imposition of a penalty harsher than that provided for by law. In its judgment in the case of Grava v. Italy (§ 51) of 10 July 2003, the European Court of Human Rights reached this conclusion in a case concerning remission of sentence, citing mutatis mutandis Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports (DR) 46, pp. 231, 242, relating to release on licence). More recently, in its judgment of 15 December 2009 in the case of Gurguchiani v. Spain (§ 31), the Court stated: ‘both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relate to a remission of sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7.’",
"The court must also reject the complaint concerning the alleged violation of the principle of no punishment without law (Article 25 § 1 of the Constitution) as a result of the retroactive application of Article 78 of the Criminal Code of 1995 (in its initial wording and as amended by Organic Law no. 7/2003), authorising the sentencing judge or court to order that ‘decisions concerning adjustments of sentence, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence should take into account all of the sentences imposed’ in certain situations where sentences were grouped together (Article 78 § 1 of the Criminal Code). The law obliges the courts to take into account all the sentences in cases where particularly heavy multiple sentences were imposed. There are certain exceptions to this obligation, however (Article 78 §§ 2 and 3 of the Criminal Code currently in force). That said, the impugned decisions and the Supreme Court decision cited in them did not involve any retroactive application of that rule (which in any event is not applicable to remissions of sentence for work done in detention, as the Criminal Code of 1995 did away with such remissions). They simply applied the provisions that were in force at the time the offences of which the applicant was convicted were committed (Articles 70.2 and 100 of the Criminal Code of 1973), but with a new interpretation which, although based on the method of calculation expressly provided for in Article 78 of the Criminal Code of 1995, was possible, they explained, in view of the wording of Articles 70.2 and 100 of the Criminal Code of 1973. That being so, if one follows the reasoning of the judicial bodies and the applicable rules, the appellant’s complaint lacks any factual basis as the principle of the non-retroactive application of a harsher criminal law enshrined in Article 25 § 1 of the Constitution is breached only where a criminal law has been applied retroactively to acts committed before its entry into force ...”",
"Concerning the right to liberty, the Constitutional Court held:",
"“4. ... In our case-law remissions of sentence for work done in detention directly affect the fundamental right to liberty guaranteed by Article 17 § 1 of the Constitution, as the duration of the term of imprisonment depends inter alia on how they are applied, regard being had to Article 100 of the Criminal Code of 1973 ... That provision states that ‘the prisoner shall be entitled, with the approval of the judge responsible for the execution of sentences, to one day’s remission for every two days worked’, as calculated periodically by the judges responsible for the execution of sentences, based on proposals made by the prison authorities, said remission then being taken into account, for the purposes of the term of imprisonment to be served, by the sentencing court ...",
"We have also held that remissions of sentence for work done in detention are in the spirit of Article 25 § 2 of the Constitution and the rehabilitational purpose of custodial sentences ... While it is true that Article 25 § 2 embodies no fundamental right protected by the amparo remedy, it does establish a penal and prison policy guideline for the legislature, as well as a principle regarding the interpretation of the rules on the imposition and execution of prison sentences, and both the guideline and the principle are enshrined in the Constitution ...",
"Also, having noted that the right guaranteed by Article 17 § 1 of the Constitution authorises deprivation of liberty only ‘in the cases and in the manner prescribed by law’, we have found that it cannot be ruled out that the manner in which the sentence to be served is calculated may undermine that right in the event of failure to comply with the legal provisions relating to the consecutive or concurrent serving of different sentences that might have given rise to a reduction of the duration of the detention, where failure to apply the rules concerned leads to the unlawful extension of the detention and, consequently, of the deprivation of liberty ... In a similar vein the European Court of Human Rights has also found a violation of the right to liberty guaranteed by Article 5 of the Convention in a case where a prisoner served a longer sentence ‘than the sentence [he] should have served under the domestic law, taking into account the remission to which he was entitled. The additional time spent in prison accordingly amounted to unlawful detention within the meaning of the Convention’ ( Grava v. Italy, ECHR, 10 July 2003, § 45).”",
"After having found a violation of the right to effective judicial protection, the Constitutional Court had the following to say concerning the consequences of that violation as regards the right to liberty:",
"“8. However, we cannot limit ourselves to the mere finding of a violation [of Article 24 § 1 of the Constitution] arrived at above. We must also consider the consequences of that violation in terms of the right to liberty (Article 17 § 1 of the Constitution).",
"Bearing in mind the binding nature of the order of 28 May 1997 adopted by the court responsible for the execution of sentences (whose role it was to determine how the sentence should be served and when it should end) and the legal situation created by the aforesaid decision in respect of the calculation of remissions of sentence for work done in detention, the sentence was served for years as prescribed in the order in question: application of the former Criminal Code and the rules governing remissions of sentence for work done in detention, according to which the prisoner was entitled to one day’s remission for every two days worked, and deduction of the resulting remission, as periods of sentence discharged, from the maximum actual term of thirty years to be served following the combination of the sentences. That was confirmed by unequivocal acts by the prison authorities, who drew up charts showing provisional lengths of sentence taking into account remission for work done in detention, approved periodically by the judge responsible for the execution of sentences further to proposals by the prison authorities, and in particular one chart of 25 January 2006 which served as a basis for the proposal to release the prisoner on 29 March 2006, submitted to the judge by the prison governor.",
"It follows that, under the legislation in force at the time of the offence, and taking into account the remissions of sentence for work done in detention as calculated according to the firm and binding criteria established by the judge responsible for the execution of sentences, the appellant had already discharged the sentence he was given. That being so, and although the appellant was deprived of his liberty in a lawful manner, his deprivation of liberty fell outside the cases provided for by law once he had finished serving his sentence in the conditions outlined above, as the legal basis for his continuing detention had ceased to exist. It follows that the additional time the appellant served in prison amounted to unlawful deprivation of liberty in breach of the fundamental right to liberty guaranteed by Article 17 § 1 of the Constitution (see Grava v. Italy, ECHR 10 July 2003, §§ 44 and 45).",
"In a State where the rule of law prevails it is unacceptable to extend a prisoner’s incarceration once he has served his sentence. The courts should accordingly take the necessary steps, as soon as possible, to put a stop to the violation of the fundamental right to liberty and arrange for the appellant’s immediate release.”",
"53. The judgments of the Constitutional Court prompted separate opinions – concurring or dissenting – from certain judges. In the dissenting opinion she appended to judgment no. 40/2012, Judge A. Asua Batarrita stated that the fact that the new interpretation of the rule for calculating the term of imprisonment to be served had been applied while the sentence was already under way shed doubt on an established legal situation and distorted projections based on the consistent interpretation of the applicable rules. She described the arrangements for remissions of sentence introduced by the Criminal Code of 1973 and the distinction traditionally made between the “nominal duration” and the “actual duration” of the sentence, which the courts took into account when fixing sentences. She pointed out that remissions of sentence for work done in detention differed from other measures entailing adjustment of sentences, such as release on licence, and that the granting of such remissions was not left to the discretion of the courts, which were not bound by criteria such as the prisoner’s good conduct or how dangerous he or she was considered to be. The judge concluded that remissions of sentence for work done in detention were mandatory by law. She stated that, under the Criminal Code of 1973, the principle of legality should apply not only to offences but also to the punitive consequences of their commission, that is to say the nominal limit of the prison sentences and their actual limit after deduction of the remissions of sentence for work done in detention as provided for in Article 100 of the Criminal Code of 1973. Noting that the limits set under Article 70.2 of the Criminal Code of 1973, combined with the remissions of sentence for work done in detention, had effectively reduced the maximum nominal sentence (thirty years) to a shorter actual term of imprisonment (twenty years), except in the event of misconduct or attempted escape, she expressed the view that the “Parot doctrine” had established an artificial distinction between the “sentence” ( pena ) and the “term of imprisonment to be served” ( condena ) that had no basis in the Criminal Code, and had subjected the application of the thirty-year limit to a new condition – not provided for by Article 70.2 of the Criminal Code of 1973 – according to which, during that period, the sentence was to be served “in a prison”, thereby preventing the application of the rules on remissions of sentence for work done in detention. In her view that was tantamount to imposing a nominal maximum term of forty-five years (that is, thirty years’ actual imprisonment plus fifteen years corresponding to work done in detention).",
"She considered that neither the teleological arguments nor the criminal policy considerations underlying the “Parot doctrine” could justify such a departure from the case-law concerning the interpretation of a law – the Criminal Code of 1973 – that had been repealed over ten years earlier. In view of all these considerations she concluded that the interpretation by the Supreme Court in its judgment of 2006 had not been foreseeable and that there had been a violation of Article 25 § 1 (principle of legality), Article 17 § 1 (right to liberty) and Article 24 § 1 (right to effective judicial protection) of the Constitution.",
"54. In the concurring opinion he appended to judgment no. 39/2012, Judge P. Perez Tremps referred to the Court’s case-law concerning Article 5 of the Convention, and in particular the requirement that the law be foreseeable ( M. v. Germany, no. 19359/04, § 90, ECHR 2009). He specified that this requirement should apply to the real and effective duration of the deprivation of liberty. Having noted that the legislation interpreted by the Supreme Court – the Criminal Code of 1973 – was no longer in force in 2006 and could therefore be brought into play only if it worked in the convicted person’s favour, he concluded that a sudden, unforeseeable departure from the case-law was incompatible with the right to liberty. He also doubted that legislation that made no explicit provision for the means of calculating remissions of sentence, and could be interpreted in two radically different ways, met the required standard of quality of the law.",
"55. In the dissenting opinion he appended to judgment no. 41/2012, Judge E. Gay Montalvo stated that the application of Articles 70.2 and 100 of the Criminal Code of 1973 in conformity with the “Parot doctrine” had led to the imposition of a penalty exceeding the thirty-year limit if one added the sentence actually served to the time the law deemed to have been served in other ways. He concluded that there had been a violation of the principle of no punishment without law, on the one hand, and of the right to liberty on the other, because the prisoner’s detention had been unlawfully extended.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"56. The applicant alleged that what she considered to be the retroactive application of a departure from the case-law by the Supreme Court after she had been convicted had extended her detention by almost nine years, in violation of Article 7 of the Convention, which reads as follows:",
"“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”",
"A. The Chamber judgment",
"57. In its judgment of 10 July 2012, the Chamber found that there had been a violation of Article 7 of the Convention.",
"58. It reached that finding after having noted, first of all, that although the provisions of the Criminal Code of 1973 applicable to remissions of sentence and the maximum term of imprisonment a person could serve – namely thirty years under Article 70 of that Code – were somewhat ambiguous, in practice the prison authorities and the Spanish courts tended to treat the maximum legal term of imprisonment as a new, independent sentence to which adjustments such as remission of sentence for work done in detention should be applied. It concluded that at the time when the offences had been committed and at the time when the decision to combine the sentences had been adopted (on 30 November 2000), the relevant Spanish law, taken as a whole, including the case-law, had been formulated with sufficient precision to enable the applicant to discern to a reasonable degree the scope of the penalty imposed and the manner of its execution (see paragraph 55 of the Chamber judgment, with a reference, by contrast, to Kafkaris v. Cyprus [GC], no 21906/04, § 150, ECHR 2008).",
"59. Secondly, the Chamber observed that in the applicant’s case the new interpretation by the Supreme Court in 2006 of the way in which remissions of sentence should be applied had led, retroactively, to the extension of the applicant’s term of imprisonment by almost nine years, by depriving her of the remissions of sentence for work done in detention to which she would otherwise have been entitled. That being so, it considered that this measure not only concerned the execution of the applicant’s sentence, but also had a decisive impact on the scope of the “penalty” for the purposes of Article 7 (see paragraph 59 of the Chamber judgment).",
"60. Thirdly, the Chamber noted that the Supreme Court’s change of approach had no basis in the case-law, and that the Government themselves had acknowledged that the previous practice of the prisons and the courts would have been more favourable to the applicant. It pointed out that the departure from previous practice had come about after the entry into force of the new Criminal Code of 1995, which had done away with remissions of sentence for work done in detention and established new – stricter – rules on the application of sentence adjustments to prisoners sentenced to several lengthy terms of imprisonment. It emphasised that the domestic courts must not, retroactively and to the detriment of the individual concerned, apply the criminal policy behind legislative changes brought in after the offence was committed (see paragraph 62 of the Chamber judgment). It concluded that it had been difficult, or even impossible, for the applicant to imagine, at the material time and also at the time when all the sentences were combined and a maximum term of imprisonment fixed, that the Supreme Court would depart from its previous case-law in 2006 and change the way remissions of sentence were applied, that this departure from case-law would be applied to her case and that the duration of her incarceration would be substantially lengthened as a result (see paragraph 63 of the Chamber judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"61. The applicant submitted that the thirty-year maximum term of imprisonment set by the decision of 30 November 2000 to combine the sentences and place an upper limit on the term to be served amounted to a new sentence and/or the final determination of her sentence. She agreed with the Chamber’s finding that practice at the time gave her a legitimate expectation, while serving her prison sentence, that the remissions of sentence to which she was entitled for the work done since 1987 would be applied to the maximum legal term of thirty years’ imprisonment.",
"62. That being so, she submitted that the application to her case of the Supreme Court’s departure from case-law in its judgment no. 197/2006 amounted to the retroactive imposition of an additional penalty that could not merely be described as a measure relating to the execution of the sentence. As a result of this change of approach the thirty-year term fixed by the decision of 30 November 2000, of which she had been notified the same day, had ceased to be treated as a new, independent and/or final sentence and the various sentences imposed on her between 1988 and 2000 (totalling over 3,000 years’ imprisonment) in eight trials had, in a manner of speaking, been restored. The applicant submitted that by applying the remissions of sentence to each of her sentences individually the Spanish courts had deprived her of the remissions of sentence she had earned and added nine years to her imprisonment. In so doing, the courts concerned had not simply altered the rules applicable to remissions of sentence, but had also redefined and/or substantially changed the “penalty” she had been informed she would have to serve.",
"63. The applicant argued that the Supreme Court’s departure from the case-law in its judgment no. 197/2006 had not been reasonably foreseeable in the light of the previous practice and case-law, and had deprived the remissions of sentence for work done in detention provided for in the Criminal Code of 1973 of any meaning for people in her situation. In the applicant’s submission the judgment concerned had resulted in the application to her case of the criminal policy behind the new Criminal Code of 1995, in spite of the fact that the intention of the drafters of the Code had been to keep the remissions of sentence provided for in the Criminal Code of 1973 in place for anyone who had been convicted under that Code.",
"64. In the alternative, there was no denying that at the time the applicant had committed the offences Spanish law had not been formulated with sufficient precision to enable her to discern, to a degree that was reasonable in the circumstances, the scope of the penalty imposed and the manner of its execution (the applicant referred to Kafkaris, cited above, § 150). In the applicant’s submission, the Criminal Code of 1973 was ambiguous in that it did not specify whether the maximum term of thirty years’ imprisonment was a new, independent sentence, whether the individual sentences continued to exist once they had been combined together, and to which sentence the remissions of sentence for work done should be applied. Judgment no. 197/2006 had not clarified the question of sentencing as the Supreme Court had not expressly set aside its order of 25 May 1990 according to which the combining of sentences provided for in Article 70.2 of the Criminal Code of 1973 was the means of determining the sentence.",
"Besides, had that order still been in force the Audiencia Nacional would have had to choose between the various sentences to which the remissions of sentence could potentially have been applied, namely the thirty-year maximum term or the individual sentences. In conformity with the Scoppola v. Italy (no. 2) judgment ([GC], no. 10249/03, 17 September 2009), the Audiencia Nacional would have been obliged to apply the more lenient criminal law, regard being had to the particular circumstances of the case.",
"65. Also, the distinction between the penalty and its execution was not always clear in practice. It was for the Government, when relying on that distinction, to demonstrate that it was applicable in a particular case, notably when the lack of clarity was due to the way in which the State had drafted or applied its laws. The present case should be distinguished from cases concerning discretionary measures of early release or measures that did not result in a redefinition of the penalty (the applicant referred to Hogben, cited above, Hosein v. the United Kingdom, no. 26293/95, Commission decision of 28 February 1996; Grava, cited above; and Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005). In the alternative, from the point of view of the quality of the law the present case was more like the above-cited Kafkaris judgment in terms of the uncertainty as to the scope and substance of the penalty, due in part to the way in which the rules on remissions of sentence had been interpreted and applied. In any event, it was clear from Kafkaris that the “quality of law” requirement applied both to the scope of the penalty and to the manner of its execution, particularly when the substance and the execution of the penalty were closely linked.",
"66. Lastly, regarding the case-law in criminal matters, even assuming that it was legitimate for the courts to alter their approach to keep abreast of social changes, the Government had failed to explain why the new approach had been applied retroactively. In any event, neither the Government nor the courts had claimed that the new 2006 approach had been applied to the applicant in response to “new social realities”.",
"2. The Government",
"67. The Government reiterated that the applicant was a member of the ETA criminal organisation and had taken part in numerous terrorist attacks from 1982 until her detention in 1987. They added that for her crimes the applicant had been sentenced between 1988 and 2000 to imprisonment totalling over 3,000 years, for twenty-three murders, fifty-seven attempted murders and other offences. They submitted that the different judgments convicting the applicant had been based on the Criminal Code of 1973, which had been in force at the times when the offences had been committed and which gave a very clear definition of the different offences and the penalties they entailed. Five of the judgments by which the applicant had been convicted, as well as the decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, had expressly informed the applicant that, in accordance with Article 70.2 of the Criminal Code, the total duration of the prison sentence she would have to serve was thirty years. They also pointed out that on 15 February 2001, the date of the Audiencia Nacional ’s decision setting 27 June 2017 as the date on which the applicant would have finished serving her sentence, the applicant had already accrued over four years’ remission of sentence for work done in detention. And as she had not appealed against that decision, she was considered to have acquiesced to the release date fixed by the Audiencia Nacional.",
"68. It was perfectly clear under the provisions of the Criminal Code of 1973 that the maximum term of thirty years was not to be regarded as a new penalty but rather as a measure placing an upper limit on the total term of imprisonment in respect of the various sentences imposed, to be served successively in order of decreasing severity, the residual sentences being extinguished accordingly. The sole purpose of combining and placing an upper limit on the sentences had been to fix the duration of the actual term to be served as a result of all the sentences imposed in the different sets of proceedings. Besides, Article 100 of the Criminal Code of 1973 made it just as clear that remissions of sentence for work done in detention were to be applied to the “sentence imposed”, in other words to each of the sentences imposed until the maximum term had been reached.",
"69. While it was true that prior to the adoption by the Supreme Court of judgment no. 197/2006 the Spanish prisons and courts had tended, in practice, to apply remissions of sentence for work done in detention to the thirty-year maximum term of imprisonment, that practice did not concern the determination of the penalty, but rather its execution. Furthermore, that practice had no basis in the case-law of the Supreme Court in the absence of any established principle as to the manner of applying remissions of sentence for work done in detention. The sole judgment delivered on this issue by the Supreme Court in 1994 did not suffice to set an authoritative precedent under Spanish law. The Supreme Court’s case-law in the matter had not been settled until its Criminal Division had adopted judgment no. 197/2006. What is more, the Government argued, that case-law had been endorsed by the full Constitutional Court in several judgments delivered on 29 March 2012, containing numerous references to the Court’s case-law concerning the distinction between a “penalty” and its “execution”.",
"70. In the Government’s submission, the Chamber had mistakenly considered that the application of the “Parot doctrine” had deprived of all purpose the remissions of sentence for work done in detention granted to convicted prisoners under the Criminal Code of 1973. Remissions of sentence continued to be applied, but to each of the sentences individually, until the maximum term had been reached. Only in the case of the most serious crimes, such as those committed by the applicant, would the thirty-year limit be reached before the remissions of sentence granted for work done in detention had significantly reduced the sentences imposed. Similarly, the Chamber had mistakenly considered that the Supreme Court had retroactively applied the policy behind the legislative reforms of 1995 and 2003. It was plain to see that the reforms in question made no mention of the means of applying remissions of sentence for work done in detention, the Criminal Code of 1995 having done away with them. Had the criminal policy behind the 2003 law been applied retroactively, the applicant would have been liable to a maximum term of imprisonment of forty years.",
"71. In its judgment the Chamber had departed from the Court’s case-law concerning the distinction between measures that amounted to a “penalty” and those relating to the “execution” of a penalty. Under that case-law a measure concerning remission of sentence or a change in the system of release on licence was not an integral part of the “penalty” within the meaning of Article 7 (the Government referred to Grava, § 51; Uttley; Kafkaris, § 142; and Hogben, all cited above). In Kafkaris, the Court had acknowledged that a prison-law reform which was applied retroactively, excluding prisoners serving life sentences from earning remissions of sentence for work done in detention, concerned the execution of the sentence as opposed to the “penalty” imposed (§ 151). In the present case the Government submitted that there had been no change in prison law. The only effect of Supreme Court judgment no. 197/2006 concerning remissions of sentence for work done in detention had been to prevent the date of the applicant’s release being brought forward nine years, not to increase the penalty imposed on her.",
"72. The present case differed from cases which clearly concerned the penalty as opposed to its execution (the Government cited Scoppola (no. 2); Gurguchiani; and M. v. Germany, all cited above). The disputed measure concerned remissions of sentence or “early release”, not the maximum term that could be served in respect of the sentences imposed, which had not changed. Remissions of sentence for work done in detention did not pursue the same aims as the penalty as such, but were measures relating to its execution in so far as they allowed prisoners to be released before all their sentences had been served, provided that they demonstrated a willingness to return to the social mainstream through work or other paid activities. That being so, remissions of sentence for work done in detention could not be likened to measures imposed following conviction for a “criminal offence”; instead, they were measures relating to the prisoner’s conduct while serving the sentence. In any event there was no question of any “severity” as they always benefited the prisoner concerned by bringing forward the date of release.",
"73. The Government further submitted that the Chamber judgment was inconsistent with the Court’s case-law on the question of to what extent a person should be able, when committing an offence, to predict the exact term of imprisonment he or she would incur. As remissions of sentence for work done in detention were purely a prison matter, the Supreme Court could not be criticised for having departed from previous practice with regard to the application of remissions of sentence, as the change had had no effect on the rights enshrined in Article 7. The Court had never held that the foreseeability requirement extended to the exact length of the sentence to be served taking into account sentence adjustments, remissions, pardons or any other factors affecting the execution of the sentence. Such factors were impossible to foresee and to calculate ex ante.",
"74. Lastly, the Government submitted that the implications of the Chamber judgment were open to dispute as they shed doubt on the value and purpose the Court itself had attributed to case-law in criminal and prison matters (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II). The Chamber had considered that a single judgment given in 1994 – faulty, albeit confirmed by administrative practice – should prevail over case-law established by the Supreme Court and endorsed by the Constitutional Court, even though the latter case-law was more in keeping with the wording of the law in force at the material time. A judicial interpretation respectful of the letter of the applicable law could not, as a matter of principle, be said to be unforeseeable.",
"C. Third-party observations",
"75. The International Commission of Jurists pointed out that the principle of no punishment without law enshrined in Article 7 of the Convention and in other international agreements was an essential component of the rule of law. It submitted that, in conformity with that principle, and with the aim and purpose of Article 7 prohibiting any arbitrariness in the application of the law, the autonomous concepts of “law” and “penalty” must be interpreted sufficiently broadly to preclude the surreptitious retroactive application of a criminal law or a penalty to the detriment of a convicted person. It argued that where changes to the law or the interpretation of the law affected a sentence or remission of sentence in such a way as to seriously alter the sentence in a way that was not foreseeable at the time when it was initially imposed, to the detriment of the convicted person and his or her Convention rights, those changes, by their very nature, concerned the substance of the sentence and not the procedure or arrangements for executing it, and accordingly fell within the scope of the prohibition of retroactivity. The International Commission of Jurists submitted that certain legal provisions classified at domestic level as rules governing criminal procedure or the execution of sentences had serious, unforeseeable effects detrimental to individual rights, and were by nature comparable or equivalent to a criminal law or a penalty with retroactive effect. For this reason the prohibition of retroactivity should apply to such provisions.",
"76. In support of its argument that the principle of non-retroactivity should apply to procedural rules or rules governing the execution of sentences which seriously affected the rights of the accused or convicted person, the International Commission of Jurists referred to various sources of international and comparative law (statutes and rules of procedure of international criminal courts, as well as Portuguese, French and Netherlands legislation and case-law).",
"D. The Court’s assessment",
"1. Principles established by the Court’s case-law",
"(a) Nullum crimen, nulla poena sine lege",
"77. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 even in time of war or other public emergency threatening the life of the nation. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335-C; and Kafkaris, cited above, § 137).",
"78. Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage (concerning the retrospective application of a penalty, see Welch v. the United Kingdom, 9 February 1995, § 36, Series A no. 307 ‑ A; Jamil v. France, 8 June 1995, § 35, Series A no. 317 ‑ B; Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 36, ECHR 2001 ‑ II; and Mihai Toma v. Romania, no. 1051/06, §§ 26-31, 24 January 2012). It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege – see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII; for an example of the application of a penalty by analogy, see Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 42 ‑ 43, ECHR 1999 ‑ IV).",
"79. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996 ‑ V, and Kafkaris, cited above, § 140).",
"80. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others, cited above, § 145, and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"(b) The concept of a “penalty” and its scope",
"81. The concept of a “penalty” in Article 7 § 1 of the Convention is, like the notions of “civil rights and obligations” and “criminal charge” in Article 6 § 1, an autonomous Convention concept. To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch, § 27, and Jamil, § 30, both cited above).",
"82. The wording of the second sentence of Article 7 § 1 indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, § 28; Jamil, § 31; Kafkaris, § 142; and M. v. Germany, § 120, all cited above). The severity of the order is not in itself decisive, however, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32, and Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 ‑ XV).",
"83. Both the European Commission of Human Rights and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty”. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the “penalty” within the meaning of Article 7 (see, among other authorities, Hogben, cited above; Hosein, cited above; L.-G.R. v. Sweden, no. 27032/95, Commission decision of 15 January 1997; Grava, cited above, § 51; Uttley, cited above; Kafkaris, cited above, § 142; Monne v. France (dec.), no. 39420/06, 1 April 2008; M. v. Germany, cited above, § 121; and Giza v. Poland (dec.), no. 1997/11, § 31, 23 October 2012). In Uttley, for example, the Court found that the changes made to the rules on early release after the applicant’s conviction had not been “imposed” on him but were part of the general regime applicable to prisoners and, far from being punitive, the nature and purpose of the “measure” were to permit early release, so they could not be regarded as inherently “severe”. The Court accordingly found that the application to the applicant of the new regime for early release was not part of the “penalty” imposed on him.",
"84. In Kafkaris, where changes to the prison legislation had deprived prisoners serving life sentences – including the applicant – of the right to remissions of sentence, the Court considered that the changes related to the execution of the sentence as opposed to the penalty imposed on the applicant, which remained that of life imprisonment. It explained that although the changes in the prison legislation and in the conditions of release might have rendered the applicant’s imprisonment harsher, these changes could not be construed as imposing a heavier “penalty” than that imposed by the trial court. It reiterated in this connection that issues relating to release policies, the manner of their implementation and the reasoning behind them fell within the power of the States Parties to the Convention to determine their own criminal policy (see Achour, cited above, § 44, and Kafkaris, cited above, § 151).",
"85. However, the Court has also acknowledged that in practice the distinction between a measure that constitutes a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” may not always be clear-cut (see Kafkaris, § 142; Gurguchiani, § 31; and M. v. Germany, § 121, all cited above). In Kafkaris it accepted that the manner in which the Prison Regulations concerning the execution of sentences had been understood and applied in respect of the life sentence the applicant was serving went beyond the mere execution of the sentence. Whereas the trial court had sentenced the applicant to imprisonment for life, the Prison Regulations explained that what that actually meant was twenty years’ imprisonment, to which the prison authorities might apply any remissions of sentence. The Court considered that “the distinction between the scope of a life sentence and the manner of its execution was therefore not immediately apparent” (see Kafkaris, § 148).",
"86. In Gurguchiani (cited above), the Court considered that the replacement of a prison sentence – while it was being served – by expulsion combined with a ten-year ban on entering the country amounted to a penalty just like the one imposed when the applicant had been convicted.",
"87. In M. v. Germany (cited above), the Court considered that the extension of the applicant’s preventive detention by the courts responsible for the execution of sentences, by virtue of a law enacted after the applicant had committed his offence, amounted to an additional sentence imposed on him retrospectively.",
"88. The Court would emphasise that the term “imposed”, used in the second sentence of Article 7 § 1, cannot be interpreted as excluding from the scope of that provision all measures introduced after the pronouncement of the sentence. It reiterates in this connection that it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012, and Scoppola (no. 2), cited above, § 104).",
"89. In the light of the foregoing, the Court does not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the “penalty” imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention. Otherwise, States would be free – by amending the law or reinterpreting the established regulations, for example – to adopt measures which retroactively redefined the scope of the penalty imposed, to the convicted person’s detriment, when the latter could not have imagined such a development at the time when the offence was committed or the sentence was imposed. In such conditions Article 7 § 1 would be deprived of any useful effect for convicted persons, the scope of whose sentences was changed ex post facto to their disadvantage. The Court points out that such changes must be distinguished from changes made to the manner of execution of the sentence, which do not fall within the scope of Article 7 § 1 in fine.",
"90. In order to determine whether a measure taken during the execution of a sentence concerns only the manner of execution of the sentence or, on the contrary, affects its scope, the Court must examine in each case what the “penalty” imposed actually entailed under the domestic law in force at the material time or, in other words, what its intrinsic nature was. In doing so it must have regard to the domestic law as a whole and the way it was applied at the material time (see Kafkaris, cited above, § 145).",
"(c) Foreseeability of criminal law",
"91. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Kokkinakis, cited above, §§ 40-41; Cantoni, cited above, § 29; Coëme and Others, cited above, § 145; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries.",
"92. It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kokkinakis, cited above, § 40, and Cantoni, cited above, § 31). However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances (see Kafkaris, cited above, § 141).",
"93. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain ( ibid. ). The progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see S.W. v. the United Kingdom, cited above, § 36; C.R. v. the United Kingdom, cited above, § 34; Streletz, Kessler and Krenz, cited above, § 50; K.-H.W. v. Germany [GC], no. 37201/97, § 85, 22 March 2001; Korbely v. Hungary [GC], no. 9174/02, § 71, ECHR 2008; and Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010). The lack of an accessible and reasonably foreseeable judicial interpretation can even lead to a finding of a violation of the accused’s Article 7 rights (see, concerning the constituent elements of the offence, Pessino v. France, no. 40403/02, §§ 35-36, 10 October 2006, and Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, §§ 43-44, 24 May 2007; as regards the penalty, see Alimuçaj v. Albania, no. 20134/05, §§ 154-62, 7 February 2012). Were that not the case, the object and the purpose of this provision – namely that no one should be subjected to arbitrary prosecution, conviction or punishment – would be defeated.",
"2. Application of the above principles to the present case",
"94. The Court notes at the outset that the legal basis for the applicant’s various convictions and prison sentences was the Criminal Code of 1973, the criminal law applicable at the time when the offences were committed (between 1982 and 1987), which the applicant has not disputed.",
"95. The Court observes that the parties’ submissions mainly concern the calculation of the total term of imprisonment the applicant should serve in accordance with the rules concerning the maximum term of imprisonment in respect of combined sentences, on the one hand, and the system of remissions of sentence for work done in detention as provided for in the Criminal Code of 1973, on the other. The Court notes in this connection that, by a decision adopted on 30 November 2000 on the basis of section 988 of the Criminal Procedure Act and Article 70.2 of the Criminal Code of 1973, the Audiencia Nacional fixed the maximum term of imprisonment the applicant should serve in respect of all her prison sentences at thirty years (see paragraph 14 above). It further notes that, after having deducted from that thirty-year maximum term the remissions of sentence granted to the applicant for work done in detention, on 24 April 2008 the Murcia Prison authorities proposed 2 July 2008 to the Audiencia Nacional as the date for the applicant’s final release (see paragraph 16 above). On 19 May 2008 the Audiencia Nacional asked the prison authorities to change the proposed date and calculate a new date for the applicant’s release based on the new approach – the so-called “Parot doctrine” – adopted by the Supreme Court in judgment no. 197/2006 of 28 February 2006, according to which any applicable adjustments and remissions of sentence should be applied successively to each individual sentence until such time as the prisoner had finished serving the thirty-year maximum term of imprisonment (see paragraphs 17, 18 and 39-42 above). Lastly, the Court observes that in application of this new case-law the Audiencia Nacional fixed the date of the applicant’s final release at 27 June 2017 (see paragraph 20 above).",
"(a) Scope of the penalty imposed",
"96. It is the Court’s task in the present case to establish what the “penalty” imposed on the applicant entailed under the domestic law, based in particular on the wording of the law, read in the light of the accompanying interpretative case-law. In so doing, it must also have regard to the domestic law as a whole and the way it was applied at the material time (see Kafkaris, cited above, § 145).",
"97. It is true that when the applicant committed the offences, Article 70.2 of the Criminal Code of 1973 referred to a limit of thirty years’ imprisonment as the maximum term to be served ( condena ) in the event of multiple sentences (see paragraph 24 above). There thus seems to have been a distinction between the concept of the “term to be served” ( condena ) and the individual sentences ( penas ) actually pronounced or imposed in the various judgments convicting the applicant. At the same time, Article 100 of the Criminal Code of 1973, on remission of sentence for work done, established that in discharging the “sentence imposed” the detainee was entitled to one day’s remission for every two days’ work done (see paragraph 24 above). However, that Article contained no specific guidance on how to apply remissions of sentence when multiple sentences were combined as provided for under Article 70.2 of the Criminal Code and a maximum total term of imprisonment was fixed, as in the applicant’s case, where sentences totalling 3,000 years’ imprisonment were reduced to thirty years in application of that provision. The Court observes that it was not until Article 78 of the new Criminal Code of 1995 was introduced that the law expressly stated, with regard to the application of sentence adjustments, that in exceptional cases the total duration of the sentences imposed could be taken into account, rather than the maximum term provided for by law (see paragraph 32 above).",
"98. The Court must also consider the case-law and practice regarding the interpretation of the relevant provisions of the Criminal Code of 1973. It notes that, as the Government have acknowledged, prior to the Supreme Court’s judgment no. 197/2006, when a person was given several prison sentences and it was decided to combine them and fix a maximum term to be served, the prison authorities and the Spanish courts applied the remissions of sentence for work done in detention to the maximum term to be served under Article 70.2 of the Criminal Code of 1973. The prison and judicial authorities thus took into account the maximum legal term of thirty years’ imprisonment when applying remissions of sentence for work done in detention. In a judgment of 8 March 1994 (its first ruling on this question – see paragraph 36 above), the Supreme Court referred to the maximum legal term of thirty years’ imprisonment as a “new, independent sentence” to which the possibilities of adjustment provided for by law, such as release on licence and remission of sentence, should be applied. The Spanish courts, including the Supreme Court, took the same approach when comparing the sentences to be served respectively under the Criminal Code of 1995 and the previous Code, taking into account any remissions of sentence already granted under the previous Code, in order to determine which was the most lenient criminal law (see paragraphs 37, 41 and 48 above). Lastly, until the Supreme Court’s judgment no. 197/2006 this approach was applied to numerous prisoners convicted under the Criminal Code of 1973, whose remissions for work done in detention were deducted from the maximum term of thirty years’ imprisonment (see paragraph 41 above).",
"99. Like the Chamber, the Grand Chamber considers that in spite of the ambiguity of the relevant provisions of the Criminal Code of 1973 and the fact that the Supreme Court did not set about clarifying them until 1994, it was clearly the practice of the Spanish prison and judicial authorities to treat the term of imprisonment to be served ( condena ), that is to say the thirty-year maximum term of imprisonment provided for in Article 70.2 of the Criminal Code of 1973, as a new, independent sentence to which certain adjustments, such as remissions of sentence for work done in detention, should be applied.",
"100. That being so, while she was serving her prison sentence – and in particular after the Audiencia Nacional decided on 30 November 2000 to combine her sentences and fix a maximum term of imprisonment – the applicant had every reason to believe that the penalty imposed was the thirty-year maximum term, from which any remissions of sentence for work done in detention would be deducted. Indeed, in its last judgment convicting the applicant, on 8 May 2000, delivered before the decision to combine the sentences was taken, the Audiencia Nacional took into account the maximum term of imprisonment provided for in the Criminal Code of 1973, combined with the system of remissions of sentence for work done in detention provided for in Article 100 of the same Code, in determining which Criminal Code – the one in force at the material time or the Criminal Code of 1995 – was the more favourable to the applicant (see paragraph 11 above). In these circumstances, contrary to what the Government have suggested, the fact that the applicant did not challenge the decision of the Audiencia Nacional of 15 February 2001 fixing the date on which she would have finished serving her sentence ( liquidación de condena ) at 27 June 2017 is not decisive, as that decision did not take into account the remissions of sentence already earned and was therefore unrelated to the question of how remissions of sentence should be applied.",
"101. The Court further notes that remissions of sentence for work done in detention were expressly provided for by statutory law (Article 100 of the Criminal Code of 1973), and not by regulations (compare Kafkaris, cited above). Moreover, it was in the same Code that the sentences were prescribed and the remissions of sentence were provided for. The Court also notes that such remissions of sentence gave rise to substantial reductions of the term to be served – up to a third of the total sentence – unlike release on licence, which simply provided for improved or more lenient conditions of execution of the sentence (see, for example, Hogben and Uttley, both cited above; see also the dissenting opinion of Judge A. Asua Batarrita appended to judgment no. 40/2012 of the Constitutional Court, paragraph 53 above). After deduction of the remissions of sentence for work done in detention periodically approved by the judge responsible for the execution of sentences ( Juez de Vigilancia Penitenciaria ), the sentence was fully and finally discharged on the date of release approved by the sentencing court. Furthermore, unlike other measures that affected the execution of the sentence, the right to remissions of sentence for work done in detention was not subject to the discretion of the judge responsible for the execution of sentences: the latter’s task was to fix the remissions of sentence by simply applying the law, on the basis of proposals made by the prison authorities, without considering such criteria as how dangerous the prisoner was considered to be, or his or her prospects of reintegration (see paragraph 53 above; compare Boulois v. Luxembourg [GC], no. 37575/04, §§ 98-99, ECHR 2012, and Macedo da Costa v. Luxembourg (dec.), no. 26619/07, 5 June 2012). It should be noted in this connection that Article 100 of the Criminal Code of 1973 provided for the automatic reduction of the term of imprisonment for work done in detention, except in two specific cases: when the prisoner escaped or attempted to escape, and when the prisoner misbehaved (which, according to Article 65 of the 1956 Prison Regulations, meant committing two or more serious or very serious breaches of discipline; see paragraph 26 above). Even in these two cases, remissions of sentence already allowed by the judge could not be taken away retroactively, as days of remission of sentence already granted were deemed to have been served and formed part of the prisoner’s legally acquired rights (see paragraphs 26 and 45 above). The present case should be distinguished in this respect from Kafkaris, where the five years’ remission of sentence granted to life prisoners at the beginning of their incarceration was conditional on their good conduct (see Kafkaris, cited above, §§ 16 and 65).",
"102. The Court also considers it significant that, although the Criminal Code of 1995 did away with remissions of sentence for work done in detention for people convicted in the future, its transitional provisions authorised prisoners convicted under the old Criminal Code of 1973 – like the applicant – to continue to enjoy the benefits of the scheme if it was to their advantage (see paragraph 30 above). Law no. 7/2003, on the other hand, introduced harsher conditions of release on licence, even for prisoners convicted before its entry into force (see paragraph 34 above). The Court infers from this that in opting, as a transitional measure, to maintain the effects of the rules concerning remissions of sentence for work done in detention and for the purposes of determining the most lenient criminal law, the Spanish legislature considered those rules to be part of substantive criminal law, that is to say of the provisions which affected the actual fixing of the sentence, not just its execution.",
"103. In the light of the foregoing the Grand Chamber considers, like the Chamber, that at the time when the applicant committed the offences that led to her prosecution and when the decision to combine the sentences and fix a maximum prison term was taken, the relevant Spanish law, taken as a whole, including the case-law, was formulated with sufficient precision to enable the applicant to discern, to a degree that was reasonable in the circumstances, the scope of the penalty imposed on her, regard being had to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973 and the remissions of sentence for work done in detention provided for in Article 100 of the same Code (contrast Kafkaris, cited above, § 150). The penalty imposed on the applicant thus amounted to a maximum of thirty years’ imprisonment, and any remissions of sentence for work done in detention would be deducted from that maximum penalty.",
"(b) Whether the application of the “Parot doctrine” to the applicant altered only the means of execution of the penalty or its actual scope",
"104. The Court must now determine whether the application of the “Parot doctrine” to the applicant concerned only the manner of execution of the penalty imposed or, on the contrary, affected its scope. It notes that in its decisions of 19 May and 23 June 2008, the court that convicted the applicant – that is, the Audiencia Nacional – rejected the proposal by the prison authorities to set 2 July 2008 as the date of the applicant’s final release, based on the old method of applying remissions of sentence (see paragraphs 17, 18 and 20 above). Relying on the “Parot doctrine” established in judgment no. 197/2006, given by the Supreme Court on 28 February 2006 – well after the offences had been committed, the sentences combined and a maximum term of imprisonment fixed – the Audiencia Nacional moved the date back to 27 June 2017 (see paragraph 20 above). The Court notes that in judgment no. 197/2006, the Supreme Court departed from the interpretation it had adopted in a previous judgment of 1994 (see paragraph 40 above). The majority of the Supreme Court considered that the new rule by which remissions of sentence for work done in detention were to be applied to each of the individual sentences – rather than to the thirty-year maximum term as previously – was more in conformity with the actual wording of the provisions of the 1973 Criminal Code, which distinguished between the “sentence” ( pena ) and the “term to be served” ( condena ).",
"105. While the Court readily accepts that the domestic courts are the best placed to interpret and apply domestic law, it reiterates that their interpretation must nevertheless be in keeping with the principle, embodied in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty.",
"106. The Court also notes that the calculation of the remissions of sentence for work done in detention by the applicant – that is to say, the number of days worked in detention and the number of days’ remission deductible from her sentence – was never in dispute. As determined by the prison authorities, the duration of these remissions of sentence – 3,282 days in all – was accepted by all the courts which handled the case. For example, in its decision applying the Supreme Court’s “Parot doctrine”, the Audiencia Nacional did not change the quantum of the remissions of sentence granted to the applicant for work done in detention. The decision did not concern whether she deserved the remissions, for example in view of her conduct or circumstances relating to the execution of her sentence. The aim of the decision was to determine the element of the penalty to which the remissions of sentence should be applied.",
"107. The Court notes that the application of the “Parot doctrine” to the applicant’s situation deprived of any useful effect the remissions of sentence for work done in detention to which she was entitled by law and in accordance with final decisions by the judges responsible for the execution of sentences. In other words, the applicant was initially sentenced to a number of lengthy terms of imprisonment, which were combined and limited to an effective term of thirty years, on which the remissions of sentence to which she was meant to be entitled had no effect whatsoever. It is significant that the Government have been unable to specify whether the remissions of sentence granted to the applicant for work done in detention have had – or will have – any effect at all on the duration of her incarceration.",
"108. That being so, although the Court agrees with the Government that arrangements for granting adjustments of sentence as such fall outside the scope of Article 7, it considers that the way in which the provisions of the Criminal Code of 1973 were applied in the present case went beyond mere prison policy.",
"109. Regard being had to the foregoing and to Spanish law in general, the Court considers that the recourse in the present case to the new approach to the application of remissions of sentence for work done in detention introduced by the “Parot doctrine” cannot be regarded as a measure relating solely to the execution of the penalty imposed on the applicant as the Government have argued. This measure taken by the court that convicted the applicant also led to the redefinition of the scope of the “penalty” imposed. As a result of the “Parot doctrine”, the maximum term of thirty years’ imprisonment ceased to be an independent sentence to which remissions of sentence for work done in detention were applied, and instead became a thirty-year sentence to which no such remissions would effectively be applied.",
"110. The measure in issue accordingly falls within the scope of the last sentence of Article 7 § 1 of the Convention.",
"(c) Whether the “Parot doctrine” was reasonably foreseeable",
"111. The Court notes that the Audiencia Nacional used the new method of application of remissions of sentence for work done in detention introduced by the “Parot doctrine” rather than the method in use at the time of the commission of the offences and the applicant’s conviction, thus depriving her of any real prospect of benefiting from the remissions of sentence to which she was nevertheless entitled in accordance with the law.",
"112. This change in the system for applying remissions of sentence was the result of the Supreme Court’s departure from previous case-law, as opposed to a change in legislation. That being so, it remains to be determined whether the new interpretation of the relevant provisions of the Criminal Code of 1973, long after the offences were committed and the applicant convicted – and even after the decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment – was reasonably foreseeable for the applicant, that is to say whether it could be considered to reflect a perceptible line of case-law development (see S.W. v. the United Kingdom, § 43, and C.R. v. the United Kingdom, § 41, both cited above). To establish that, the Court must examine whether the applicant could have foreseen at the time of her conviction, and also when she was notified of the decision to combine the sentences and set a maximum term of imprisonment – if need be, after taking appropriate legal advice – that the penalty imposed might turn into thirty years of actual imprisonment, with no reduction for the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973.",
"In so doing it must have regard to the law applicable at the time, and in particular the judicial and administrative practice prior to the “Parot doctrine” introduced by the Supreme Court’s judgment of 28 February 2006. The Court observes in this connection that the only relevant precedent cited in that judgment was a judgment of 8 March 1994 in which the Supreme Court had taken the opposite approach, namely that the maximum prison term of thirty years was a “new, independent sentence” to which all the remissions of sentence provided for by law were to be applied (see paragraph 36 above). In the Court’s view, the fact that a single judgment does not serve as an authority under Spanish law (see paragraph 40 above) cannot be decisive. What is more, as the dissenting judges observed in the judgment of 28 February 2006, an agreement adopted by the plenary Supreme Court on 18 July 1996 had established that remissions of sentence granted under the Criminal Code of 1973 were to be taken into account when comparing the sentences to be served under the new and the old Criminal Codes respectively (see paragraphs 37 and 41 above). Following the entry into force of the Criminal Code of 1995, the Spanish courts were required to use this criterion, on a case-by-case basis, to determine which Criminal Code was the more lenient, taking into account the effects on sentencing of the system of remissions of sentence for work done in detention.",
"113. The Government themselves have admitted that it was the practice of the prison and judicial authorities prior to the “Parot doctrine” to apply remissions of sentence for work done in detention to the maximum term of thirty years’ imprisonment, even though the first decision of the Supreme Court on the question was not delivered until 1994.",
"114. The Court also attaches importance to the fact that the Supreme Court did not depart from its case-law until 2006, ten years after the law concerned had been repealed. In acting thus the Supreme Court gave a new interpretation of the provisions of a law that was no longer in force, namely the Criminal Code of 1973, which had been superseded by the Criminal Code of 1995. In addition, as indicated above (see paragraph 102), the transitional provisions of the Criminal Code of 1995 were intended to maintain the effects of the system of remissions of sentence for work done in detention set in place by the Criminal Code of 1973 in respect of people convicted under that Code – like the applicant – precisely so as to comply with the rules prohibiting retroactive application of the more stringent criminal law. However, the Supreme Court’s new interpretation, which rendered ineffective any remissions of sentence already granted, led in practice to the applicant and other people in similar situations being deprived of the benefits of the remission system.",
"115. Moreover, the Court cannot accept the Government’s argument that the Supreme Court’s interpretation was foreseeable because it was more in keeping with the letter of the Criminal Code of 1973. The Court reiterates that its task is not to determine how the provisions of that Code should be interpreted in the domestic law, but rather to examine whether the new interpretation was reasonably foreseeable for the applicant under the “law” applicable at the material time. That “law” – in the substantive sense in which the term is used in the Convention, which includes unwritten law or case-law – had been applied consistently by the prison and judicial authorities for many years, until the “Parot doctrine” set a new course. Unlike the judicial interpretations involved in S.W. v. the United Kingdom and C.R. v. the United Kingdom (both cited above), the departure from case-law in the present case did not amount to an interpretation of criminal law pursuing a perceptible line of case-law development.",
"116. Lastly, the Court is of the view that the criminal-policy considerations relied on by the Supreme Court cannot suffice to justify such a departure from case-law. While the Court accepts that the Supreme Court did not retroactively apply Law no. 7/2003 amending the Criminal Code of 1995, it is clear from the reasoning given by the Supreme Court that its aim was the same as that of the above-mentioned law, namely to guarantee the full and effective execution of the maximum legal term of imprisonment by people serving several long sentences (see paragraph 33 above). In this connection, while the Court accepts that the States are free to determine their own criminal policy, for example by increasing the penalties applicable to criminal offences (see Achour, cited above, § 44), they must comply with the requirements of Article 7 in doing so ( Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 75, ECHR 2013). On this point, the Court reiterates that Article 7 of the Convention unconditionally prohibits the retrospective application of the criminal law where it is to an accused’s disadvantage.",
"117. In the light of the foregoing, the Court considers that at the time when the applicant was convicted and at the time when she was notified of the decision to combine her sentences and set a maximum term of imprisonment, there was no indication of any perceptible line of case-law development in keeping with the Supreme Court’s judgment of 28 February 2006. The applicant therefore had no reason to believe that the Supreme Court would depart from its previous case-law and that the Audiencia Nacional, as a result, would apply the remissions of sentence granted to her not in relation to the maximum thirty-year term of imprisonment to be served, but successively to each of the sentences she had received. As the Court has noted above (see paragraphs 109 and 111), this departure from the case-law had the effect of modifying the scope of the penalty imposed, to the applicant’s detriment.",
"118. It follows that there has been a violation of Article 7 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"119. The applicant alleged that, since 3 July 2008, she had been kept in detention in breach of the requirements of “lawfulness” and “a procedure prescribed by law”. She relied on Article 5 of the Convention, the relevant parts of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"...”",
"A. The Chamber judgment",
"120. In its judgment the Chamber stated, in the light of the considerations that had led it to find a violation of Article 7 of the Convention, that at the material time the applicant could not have foreseen to a reasonable degree that the effective duration of her term of imprisonment would be increased by almost nine years, and that following a departure from case-law a new method of applying remissions of sentence would be applied to her retroactively. The Chamber accordingly found that, since 3 July 2008, the applicant’s detention had not been “lawful” and was therefore in violation of Article 5 § 1 of the Convention (see paragraph 75 of the judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"121. The applicant submitted that Article 5 § 1 of the Convention also enshrined requirements as to the quality of the law, which meant that a domestic law authorising deprivation of liberty had to be sufficiently clear and foreseeable in its application. She further submitted that Article 5 applied to the right of a convicted person to early release where the legal provisions establishing the right did not make it conditional or discretionary but applicable to anyone who met the legal conditions of entitlement (see Grava, cited above, §§ 31-46), irrespective of whether the measure related to the sentence proper or to its execution for the purposes of Article 7. She argued that the extension of the sentence and/or of its effective duration had not been reasonably foreseeable and, in the alternative, that the substance of the penalty imposed and/or the manner of its execution and/or its effective duration had not been reasonably foreseeable either.",
"2. The Government",
"122. The Government submitted that the Chamber judgment had departed from the Court’s case-law concerning Article 5 of the Convention, in particular the Kafkaris and M. v. Germany judgments cited above. They argued that in the present case there was a perfect causal link between the penalties imposed for the numerous serious crimes the applicant had committed and the length of time she had spent in prison. The judgments by which she had been convicted had stated that she would have to spend thirty years in prison, as had the decision of 2000 to combine the sentences and fix a maximum term of imprisonment and the decision of 2001 setting the date of the applicant’s release at 27 June 2017.",
"C. The Court’s assessment",
"1. Principles established by the Court’s case-law",
"123. Sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see M. v. Germany, cited above, § 86). Article 5 § 1 (a) permits “the lawful detention of a person after conviction by a competent court”. Having regard to the French text, the word “conviction”, for the purposes of Article 5 § 1 (a), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi v. Italy, 6 November 1980, § 100, Series A no. 39), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).",
"124. Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from, “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the two (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002 ‑ IV; Kafkaris, cited above, § 117; and M. v. Germany, cited above, § 88). However, with the passage of time the link between the initial conviction and the extension of the deprivation of liberty gradually becomes less strong (see Van Droogenbroeck, cited above, § 40). The causal link required under sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release, or to redetain a person, was based on grounds that were inconsistent with the objectives of the sentencing court, or on an assessment that was unreasonable in terms of those objectives. Where that was the case a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (see Weeks, cited above, § 49, and Grosskopf v. Germany, no. 24478/03, § 44, 21 October 2010).",
"125. It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris, cited above, § 116, and M. v. Germany, cited above, § 90). The “quality of the law” implies that where a national law authorises a deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996 ‑ III). The standard of “lawfulness” set by the Convention requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000 ‑ III; M. v. Germany, cited above, § 90; and Oshurko v. Ukraine, no. 33108/05, § 98, 8 September 2011). Where deprivation of liberty is concerned, it is essential that the domestic law define clearly the conditions for detention (see Creangă v. Romania [GC], no. 29226/03, § 120, 23 February 2012).",
"126. Lastly, the Court reiterates that although Article 5 § 1 (a) of the Convention does not guarantee, in itself, a prisoner’s right to early release, be it conditional or final (see Kalan v. Turkey (dec.), no. 73561/01, 2 October 2001, and Çelikkaya v. Turkey (dec.), no. 34026/03, 1 June 2010), the situation may differ when the competent authorities, having no discretionary power, are obliged to apply such a measure to any individual who meets the conditions of entitlement laid down by law (see Grava, cited above, § 43; Pilla v. Italy, no. 64088/00, § 41, 2 March 2006; and Şahin Karataş v. Turkey, no. 16110/03, § 37, 17 June 2008).",
"2. Application of the above principles to the present case",
"127. The Court observes first of all that as the applicant rightly pointed out, the distinction made for the purposes of Article 7 of the Convention between the “penalty” and the “execution” of the penalty is not decisive in connection with Article 5 § 1 (a). Measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5 § 1, as the actual duration of deprivation of liberty depends on their application, among other things (see, for example, Grava, cited above, §§ 45 and 51, and, concerning the transfer of prisoners between States, Szabó v. Sweden (dec.), no. 28578/03, ECHR 2006-VIII). While Article 7 applies to the “penalty” as imposed by the sentencing court, Article 5 applies to the resulting detention.",
"128. In the present case the Court has no doubt that the applicant was convicted by a competent court in accordance with a procedure prescribed by law, within the meaning of Article 5 § 1 (a) of the Convention. Indeed, the applicant did not dispute that her detention was legal until 2 July 2008, the date initially proposed by the prison authorities for her final release. The Court must therefore establish whether the applicant’s continued detention after that date was “lawful” within the meaning of Article 5 § 1 of the Convention.",
"129. The Court notes that in eight different sets of proceedings the Audiencia Nacional found the applicant guilty of various offences linked to terrorist attacks. In application of the Criminal Code in force at the time when the offences were committed, the applicant was given prison sentences totalling over 3,000 years (see paragraphs 11-12 above). In most of those judgments, as well as in its decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, the Audiencia Nacional indicated that the applicant was to serve a maximum term of thirty years’ imprisonment in accordance with Article 70.2 of the Criminal Code of 1973 (see paragraphs 11 and 14 above). The Court notes that the applicant’s detention has not yet attained that maximum term. There is clearly a causal link between the applicant’s convictions and her continuing detention after 2 July 2008, which resulted respectively from the guilty verdicts and the maximum thirty-year term of imprisonment fixed on 30 November 2000 (see, mutatis mutandis, Kafkaris, § 120).",
"130. However, the Court must examine whether the “law” authorising the applicant’s continuing detention beyond 2 July 2008 was sufficiently foreseeable in its application. Compliance with the foreseeability requirement must be examined with regard to the “law” in force at the time of the initial conviction and throughout the subsequent period of detention. In the light of the considerations that led it to find a violation of Article 7 of the Convention, the Court considers that at the time when the applicant was convicted, when she worked in detention and when she was notified of the decision to combine the sentences and set a maximum term of imprisonment, she could not have foreseen to a reasonable degree that the method used to apply remissions of sentence for work done in detention would change as a result of a departure from case-law by the Supreme Court in 2006, and that the new approach would be applied to her.",
"131. The Court notes that the application of the departure from case-law to the applicant’s situation effectively delayed the date of her release by almost nine years. She has therefore served a longer term of imprisonment than she should have served under the domestic legislation in force at the time of her conviction, taking into account the remissions of sentence she had already been granted in conformity with the law (see, mutatis mutandis, Grava, cited above, § 45).",
"132. The Court concludes that since 3 July 2008 the applicant’s detention has not been “lawful”, in violation of Article 5 § 1 of the Convention.",
"III. ARTICLE 46 OF THE CONVENTION",
"133. The relevant parts of Article 46 of the Convention read as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.",
"...”",
"A. The Chamber judgment",
"134. Having regard to the particular circumstances of the case and to the urgent need to put an end to the violation of Article 7 and Article 5 § 1 of the Convention, the Chamber considered it incumbent on the respondent State to ensure that the applicant was released at the earliest possible date (see paragraph 83 of the judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"135. The applicant argued that the fact that the Court had never made use in a similar case of its exceptional power to indicate individual measures was irrelevant. She submitted that the Court had the power to indicate the measures to be taken and that when the nature of the violation found did not leave “any real choice as to the measures required to remedy it”, it could decide to indicate only one such measure. She also criticised the Government for not having indicated which remedies other than her release were available should the Court find violations of Articles 5 and 7 of the Convention.",
"2. The Government",
"136. The Government submitted that in similar cases concerning the retroactive application of legislative changes resulting in the extension of a convicted person’s detention the Court had never used its exceptional power to indicate individual measures for the execution of its judgment (they referred to M. v. Germany, cited above). In this connection they pointed out that, although it had found a violation of Article 7 in Kafkaris (cited above) because the legislation failed to meet the requisite standard, the Court had not indicated any measure concerning the release of the applicant, who was still in prison when the judgment was delivered (the Government also referred to Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011).",
"C. The Court’s assessment",
"137. By virtue of Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. This means that when the Court finds a violation, the respondent State is under a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among many other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII; Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 85, ECHR 2009; and Scoppola (no. 2), cited above, § 147).",
"138. It is true that in principle the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta, cited above, § 249). However, in certain particular situations, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation that gave rise to the finding of a violation (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004 ‑ V, and Stanev v. Bulgaria [GC], no. 36760/06, §§ 255 ‑ 58, ECHR 2012). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze v. Georgia [GC], no. 71503/01, §§ 202 ‑ 03, ECHR 2004 ‑ II; Aleksanyan v. Russia, no. 46468/06, §§ 239 ‑ 40, 22 December 2008; and Fatullayev v. Azerbaijan, no. 40984/07, §§ 176-77, 22 April 2010).",
"139. The Grand Chamber agrees with the Chamber’s finding and considers that the present case belongs to this last-mentioned category. Having regard to the particular circumstances of the case and to the urgent need to put an end to the violations of the Convention it has found, it considers it incumbent on the respondent State to ensure that the applicant is released at the earliest possible date.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"140. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"141. The applicant sought compensation for the non-pecuniary damage allegedly suffered and also the reimbursement of the costs and expenses incurred. The Government contested the claim in respect of non-pecuniary damage.",
"A. The Chamber judgment",
"142. In its judgment the Chamber awarded the applicant 30,000 euros (EUR) in respect of non-pecuniary damage. It also awarded her EUR 1,500 for costs and expenses incurred in the proceedings before it.",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"143. The applicant claimed EUR 60,000 for the non-pecuniary damage she had allegedly sustained, and the reimbursement of the costs and expenses incurred in the proceedings before the Grand Chamber, in addition to those already awarded by the Chamber. She submitted no receipts for the costs and expenses incurred in the proceedings before the Grand Chamber.",
"2. The Government",
"144. The Government submitted that an award of compensation by the Court to a person convicted of acts as murderous as those committed by the applicant – who had been found guilty in judicial proceedings that met all the requirements of a fair trial – would be difficult to understand. They argued that in the Kafkaris judgment (cited above), “having regard to all the circumstances of the case”, the Court had considered that the finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered.",
"C. The Court’s assessment",
"1. Non-pecuniary damage",
"145. The Court accepts that in the Kafkaris judgment it considered that a finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered. In that judgment, however, it had found no violation of Article 5 § 1, and its finding of a violation of Article 7 concerned only the quality of the law. The present case is different, the Court having found that the applicant’s continued detention after 2 July 2008 is in breach of Article 5 § 1, and that she has had to serve a heavier penalty than the one that was imposed, in disregard of Article 7 of the Convention (see, mutatis mutandis, M. v. Germany, cited above, § 141). This must have caused the applicant non-pecuniary damage which cannot be compensated solely by these findings of violations.",
"146. Having regard to all the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 30,000 under this head.",
"2. Costs and expenses",
"147. According to the Court’s case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI).",
"148. The Grand Chamber notes that the applicant was awarded EUR 1,500 for costs and expenses incurred in the proceedings before the Chamber. As she has submitted no documentary evidence of the costs and expenses incurred in the proceedings before the Grand Chamber (compare Tănase v. Moldova [GC], no. 7/08, § 193, ECHR 2010), she should be awarded EUR 1,500 in respect of all costs and expenses.",
"3. Default interest",
"149. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
291 | Del Río Prada v. Spain | 21 October 2013 (judgment – Grand Chamber) | The case concerned the postponement of the final release of a person convicted of terrorist offences, on the basis of a new approach – based on jurisprudence known as the “Parot doctrine” – adopted by the Supreme Court after she had been sentenced. The applicant complained in particular that the Supreme Court’s departure from the case-law concerning remissions of sentence had been retroactively applied to her after she had been sentenced, thus extending her detention by almost nine years. | The Court found that there had been a violation of Article 7 of the Convention, as the applicant had served a prison sentence of a term that was longer than that which had been applicable in Spanish law at the time of her conviction. It observed in particular as follows: “The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 even in time of war or other public emergency threatening the life of the nation” (paragraph 77 of the judgment). | Derogation in time of emergency | Article 7 (no punishment without law) of the Convention | [
"I. THE CIRCUMSTANCES OF THE CASE",
"10. The applicant was born in 1958. She is serving a prison sentence in the region of Galicia.",
"11. In eight separate sets of criminal proceedings before the Audiencia Nacional [1], the applicant was sentenced as follows.",
"(a) In judgment no. 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; and for using forged identity documents, to six months’ imprisonment.",
"(b) In judgment no. 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment.",
"(c) In judgment no. 43/1989 of 22 April 1989: for a fatal attack and for murder, to twenty-nine years’ imprisonment on each count.",
"(d) In judgment no. 54/1989 of 7 November 1989, for a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; and for damage to property, to eleven years’ imprisonment. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years.",
"(e) In judgment no. 58/1989 of 25 November 1989: for a fatal attack and two murders, to twenty-nine years’ imprisonment in respect of each charge. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years.",
"(f) In judgment no. 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; and on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that for the purposes of the custodial sentences the maximum sentence provided for in Article 70.2 of the Criminal Code of 1973 should be taken into account.",
"(g) In judgment no. 29/1995 of 18 April 1995: for a fatal attack, to twenty-eight years’ imprisonment, and for attempted murder, to twenty years and one day. The court again referred to the limits provided for in Article 70 of the Criminal Code.",
"(h) In judgment no. 24/2000 of 8 May 2000: for an attack with intent to murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment stated that the sentence to be served should not exceed the limit provided for in Article 70.2 of the Criminal Code of 1973. In determining which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term to be served as provided for in Article 70.2 of that Code, combined with the remissions of sentence for work done in detention as provided for in Article 100.",
"12. In all, the terms of imprisonment to which the applicant was sentenced for these offences, committed between 1982 and 1987, amounted to over 3,000 years.",
"13. The applicant was held in pre-trial detention from 6 July 1987 to 13 February 1989 and began to serve her first sentence after conviction on 14 February 1989.",
"14. By a decision of 30 November 2000, the Audiencia Nacional notified the applicant that the legal and chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the applicant in respect of all her prison sentences combined at thirty years.",
"15. By a decision of 15 February 2001, the Audiencia Nacional set the date on which the applicant would have fully discharged her sentence ( liquidación de condena ) at 27 June 2017.",
"16. On 24 April 2008, taking into account the 3,282 days’ remission to which she was entitled for the work she had done since 1987, the authorities at Murcia Prison, where the applicant was serving her sentence, proposed to the Audiencia Nacional that she be released on 2 July 2008. Documents submitted to the Court by the Government show that the applicant was granted ordinary and extraordinary remissions of sentence by virtue of decisions of the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria at first instance and Audiencias Provinciales on appeal) in 1993, 1994, 1997, 2002, 2003 and 2004, for cleaning the prison, her cell and the communal areas and undertaking university studies.",
"17. However, on 19 May 2008 the Audiencia Nacional rejected that proposal and asked the prison authorities to submit a new date for the applicant’s release, based on a new precedent (known as the “Parot doctrine”) set by the Supreme Court in its judgment no. 197/2006 of 28 February 2006. According to this new approach, sentence adjustments ( beneficios ) and remissions were no longer to be applied to the maximum term of imprisonment of thirty years, but successively to each of the sentences imposed (see “Relevant domestic law and practice”, paragraphs 39-42 below).",
"18. The Audiencia Nacional explained that this new approach applied only to people convicted under the Criminal Code of 1973 to whom Article 70.2 thereof had been applied. As that was the applicant’s case, the date of her release was to be changed accordingly.",
"19. The applicant lodged an appeal ( súplica ) against that decision. She argued, inter alia, that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactive application of criminal-law provisions less favourable to the accused, because instead of being applied to the maximum term to be served, which was thirty years, remissions of sentence for work done in detention were henceforth to be applied to each of the sentences imposed. The effect, she argued, would be to increase the term of imprisonment she actually served by almost nine years. The Court has not been apprised of the outcome of this appeal.",
"20. By an order of 23 June 2008, based on a new proposal by the prison authorities, the Audiencia Nacional set the date for the applicant’s final release ( licenciamiento definitivo ) at 27 June 2017.",
"21. The applicant lodged a súplica appeal against the order of 23 June 2008. By a decision of 10 July 2008 the Audiencia Nacional rejected the applicant’s appeal, explaining that it was not a question of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of a prisoner’s release. Such reductions were henceforth to be applied to each sentence individually. Lastly, the Audiencia Nacional considered that the principle of non-retroactive application had not been breached because the criminal law applied in this case had been that in force at the time of its application.",
"22. Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective judicial protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the ground that the applicant had not demonstrated the constitutional relevance of her complaints."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The Constitution",
"23. The relevant provisions of the Constitution read as follows:",
"Article 9",
"“...",
"3. The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the non-retroactivity of punitive measures that are unfavourable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities and the prohibition against arbitrary action on the part of the latter.”",
"Article 14",
"“All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”",
"Article 17",
"“1. Every person has the right to liberty and security. No one may be deprived of his or her liberty except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law.",
"...”",
"Article 24",
"“1. All persons have the right to obtain effective protection by the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence.",
"...”",
"Article 25",
"“1. No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a serious or petty criminal offence or administrative offence according to the law in force at that time.",
"2. Punishments entailing imprisonment and security measures shall be aimed at rehabilitation and social reintegration and may not consist of forced labour. While serving their sentence, convicted persons shall enjoy the fundamental rights set out in this Chapter, with the exception of those expressly limited by the terms of the sentence, the purpose of the punishment and the prison law. In all circumstances, they shall be entitled to paid employment and to the corresponding social-security benefits, as well as to access to cultural activities and the overall development of their personality.",
"...”",
"B. The law applicable under the Criminal Code of 1973",
"24. The relevant provisions of the Criminal Code of 1973, as in force at the time the offences were committed, read as follows:",
"Article 70",
"“When all or some of the sentences [ penas ] imposed ... cannot be served simultaneously by a convicted person, the following rules shall apply:",
"1. In imposing the sentences [ penas ], where possible the order to be followed for the purposes of their successive completion by the convicted person is that of their respective severity, the convicted person going on to serve the next sentence when the previous one has been served or extinguished by pardon ...",
"2. Notwithstanding the previous rule, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed thirty years, is attained.",
"The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.”",
"Article 100 (as amended by Organic Law [ Ley Orgánica ] no. 8/1983)",
"“Once his judgment or conviction has become final, any person sentenced to imprisonment [ reclusión, prisión or arresto mayor [2] ] may be granted remission of sentence [ pena ] in exchange for work done while in detention. In serving the sentence [ pena ] imposed the prisoner shall be entitled, with the approval of the judge responsible for the execution of sentences [ Juez de Vigilancia ], to one day’s remission for every two days worked in detention, and the time thus deducted shall be taken into account when granting release on licence. This benefit shall also apply, for the purposes of discharging [ liquidación ] the term of imprisonment to be served [ condena ], to prisoners who were held in pre-trial detention.",
"The following persons shall not be entitled to remission for work done in detention:",
"1. prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed.",
"2. prisoners who repeatedly misbehave while serving their sentence [ condena ].”",
"25. The relevant provision of the Criminal Procedure Act in force at the material time reads as follows:",
"Section 988",
"“... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with section 17 of this Act, the judge or court which delivered the last judgment convicting the person concerned shall, of their own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of all the sentences imposed, in accordance with Article 70.2 of the Criminal Code ...”",
"26. The right to remission of sentence for work done in detention was provided for in the Prison Regulations of 2 February 1956, the relevant provisions of which (Articles 65-73) were applicable at the time the offences were committed, by virtue of the second transitional provision of the 1981 Prison Regulations. The provisions concerned read as follows:",
"Article 65",
"“1. Under Article 100 of the Criminal Code, once his judgment or conviction has become final, any person sentenced to [imprisonment] may be granted remission of sentence [ pena ] in exchange for work done while in detention.",
"...",
"3. The following persons shall not be entitled to remission for work done in detention:",
"(a) prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed.",
"(b) prisoners who repeatedly misbehave while serving their sentence [ condena ]. This provision applies to prisoners who commit a further serious or very serious disciplinary offence when they have not yet expunged a previous offence ...”",
"Article 66",
"“1. Whatever the regime to which he is subject, any prisoner may be granted remission of sentence for work done in detention provided that he meets the legal conditions. In such cases the detainee shall be entitled, for the purposes of his final release, to one day’s remission for every two days’ work done in detention. The total period of entitlement to remission shall also be taken into account when granting release on licence.",
"2. The prison’s supervisory body shall submit a proposal to the Patronato de Nuestra Señora de la Merced. When the proposal is approved the days worked shall be counted retroactively in the prisoner’s favour, from the day when he started to work. [3] ”",
"Article 68",
"“Be it paid or unpaid, intellectual or manual, done inside the prison or outside ..., any work done by prisoners must be useful.”",
"Article 71",
"“...",
"3. Extraordinary remissions of sentence may be granted for special reasons of discipline and productivity at work ..., within the limit of one day for each day worked and 175 days per year of sentence actually served ...”",
"Article 72",
"“Remissions of sentence may be granted for intellectual work:",
"(1) for undertaking and succeeding in religious or cultural studies organised by the management;",
"(2) for joining an arts, literature or science club set up by the prison authorities;",
"(3) for engaging in intellectual activities;",
"(4) for producing original works of an artistic, literary or scientific nature.",
"...”",
"Article 73",
"“The following prisoners shall forfeit the right to remission of sentence for work done in detention:",
"(1) prisoners who escape or attempt to escape. They shall forfeit the right to earn any future remission of sentence;",
"(2) prisoners who commit two serious or very serious disciplinary offences ...",
"Any remission already granted, however, shall be counted towards reducing the corresponding sentence or sentences.",
"27. Article 98 of the Criminal Code of 1973, regulating the release of prisoners on licence, read as follows:",
"“Release on licence may be granted to prisoners sentenced to more than one year’s imprisonment who:",
"(1) are in the final phase of the term to be served [ condena ];",
"(2) have already served three-quarters of the term to be served;",
"(3) deserve early release for good behaviour; and",
"(4) afford guarantees of social reintegration.”",
"28. Article 59 of the 1981 Prison Regulations (Royal Decree no.1201/1981), which explained how to calculate the term of imprisonment (three-quarters of the sentence imposed) to be served in order for a prisoner to be eligible for release on licence, read as follows:",
"Article 59",
"“In calculating three-quarters of the sentence [ pena ], the following rules shall apply:",
"(a) for the purposes of release on licence, the part of the term to be served [ condena ] in respect of which a pardon has been granted shall be deducted from the total sentence [ pena ] imposed, as if that sentence had been replaced by a lesser one;",
"(b) the same rule shall apply to sentence adjustments [ beneficios penitenciarios ] entailing a reduction of the term to be served [ condena ];",
"(c) when a person is sentenced to two or more custodial sentences, for the purposes of release on licence the sum of those sentences shall be treated as a single term of imprisonment to be served [ condena ]. ...”",
"C. The law applicable following the entry into force of the Criminal Code of 1995",
"29. Promulgated on 23 November 1995, the Criminal Code of 1995 (Organic Law no. 10/1995) replaced the Criminal Code of 1973. It entered into force on 24 May 1996.",
"30. The new Code did away with remissions of sentences for work done in detention. However, the first and second transitional provisions of the new Code provided that prisoners convicted under the 1973 Code were to continue to enjoy that privilege even if their conviction was pronounced after the new Code entered into force. The transitional provisions concerned read as follows:",
"First transitional provision",
"“Crimes and lesser offences committed prior to the entry into force of the present Code shall be tried in conformity with the [Criminal Code of 1973] and other special criminal laws repealed by the present Code. As soon as this Code enters into force its provisions shall be applicable if they are more favourable to the accused.”",
"Second transitional provision",
"“In order to determine which is the more favourable law, regard shall be had to the penalty applicable to the charges in the light of all the provisions of both Codes. The provisions concerning remission of sentence for work done in detention shall apply only to persons convicted under the old Code. They shall not be available to persons tried under the new Code ...”",
"31. Under the first transitional provision of the 1996 Prison Regulations (Royal Decree no. 190/1996), Articles 65-73 of the 1956 Regulations remained applicable to the execution of sentences imposed under the 1973 Criminal Code and to the determination of the more lenient criminal law.",
"32. The 1995 Criminal Code introduced new rules governing the maximum duration of prison sentences and the measures by which they could be adjusted ( beneficios penitenciarios ). Those rules were amended by Organic Law no. 7/2003 introducing reforms to ensure the full and effective execution of sentences. The amended provisions of the Criminal Code which are relevant to the present case read as follows:",
"Article 75",
"“When some or all of the sentences [ penas ] for the different offences cannot be served concurrently, they shall, as far as possible, be served consecutively, in descending order of severity.”",
"Article 76",
"“1. Notwithstanding what is set forth in the preceding Article, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed twenty years, is attained. Exceptionally, the maximum limit shall be:",
"(a) twenty-five years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years;",
"(b) thirty years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years;",
"(c) forty years when a person has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years;",
"(d) forty years when a person has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years.",
"2. The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.”",
"Article 78",
"“1. If, as a result of the limitations provided for in Article 76 § 1, the term to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that decisions concerning adjustments of sentence [ beneficios penitenciarios ], day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence should take into account all of the sentences [ penas ] imposed.",
"2. Such an order shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of Article 76 § 1 of this Code when the term to be served is less than half the aggregate of all the sentences imposed.",
"...”",
"33. According to the explanatory memorandum on Law no. 7/2003, Article 78 of the Criminal Code is meant to improve the efficacy of punishment for the most serious crimes:",
"“... Article 78 of the Criminal Code is amended so that for the most serious crimes the sum total of all the sentences imposed is taken into account for the purposes of adjustments of sentence, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence.",
"The purpose of this amendment is to improve the efficacy of the penal system vis-à-vis people convicted of several particularly serious crimes, that is to say those provided for in Article 76 of the Criminal Code (namely twenty-five, thirty or forty years’ actual imprisonment) when the term to be served amounts to less than half the total duration of all the sentences imposed. Where these limits are not applied, however, the courts may use their full discretion.",
"In application of this rule a person sentenced to one hundred, two hundred or three hundred years’ imprisonment will, in reality, effectively and fully serve the maximum term [ condena ] applicable.”",
"34. Article 90 of the Criminal Code of 1995 (as amended by Organic Law no. 7/2003) regulates release on licence. It subjects release on licence to conditions similar to those provided for in the Criminal Code of 1973 (pre-release classification, completion of three-quarters of the sentence, good behaviour and good prospects of social reintegration), but it also requires offenders to have complied with their obligations in respect of civil liability. In order to have good prospects of social reintegration offenders convicted of terrorism or organised crime must have unequivocally demonstrated their disavowal of terrorist methods and have actively cooperated with the authorities. This could take the form of a statement expressly repudiating the offences they committed and renouncing violence, together with an explicit appeal to the victims to forgive them. Unlike the new rules on the maximum duration of the sentence to be served and the conditions for applying sentence adjustments in the event of multiple convictions (Articles 76 and 78 of the Criminal Code), Article 90 of the Code is applicable immediately, regardless of when the offences were committed or the date of conviction (single transitional provision of Law no. 7/2003).",
"D. The case-law of the Supreme Court",
"1. The case-law prior to the “Parot doctrine”",
"35. In an order of 25 May 1990 the Supreme Court considered that the combining of sentences in application of Article 70.2 of the Criminal Code of 1973 and section 988 of the Criminal Procedure Act concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the trial court, not the judge responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ).",
"36. In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70.2 of the Criminal Code of 1973 amounted to a “new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence and remission of sentence, apply”. The Supreme Court referred to Article 59 of the Prison Regulations of 1981, according to which the combination of two custodial sentences was treated as a new sentence for the purposes of release on licence.",
"37. In an agreement adopted by the full court on 18 July 1996, following the entry into force of the Criminal Code of 1995, the Criminal Division of the Supreme Court explained that for the purpose of determining which was the more lenient law, regard had to be had to the system of remissions of sentence introduced by the old Code of 1973 when comparing the sentences to be served respectively under that Code and the new Criminal Code of 1995. It added that under Article 100 of the Criminal Code of 1973 a prisoner who had served two days of his sentence was irrevocably considered to have served three days. The application of this rule gave the beneficiary an acquired right. [4] The Spanish courts, which had to apply this criterion to compare the terms to be served respectively under the new and the old Criminal Code, took into account the remissions of sentence granted under the old Code. They accordingly considered that where the remainder of the sentence to be served after deduction of the remissions granted prior to the entry into force of the new Code did not exceed the length of the sentence provided for in the new Code, the latter could not be considered more lenient than the old Code. That approach was confirmed by the Supreme Court in various decisions, including judgments nos. 557/1996 of 18 July 1996 and 1323/1997 of 29 October 1997.",
"38. The Supreme Court continued to adopt that interpretation of the maximum term to be served as prescribed in Article 76 of the new Criminal Code of 1995. In judgment no. 1003/2005, delivered on 15 September 2005, it held that “this limit amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, day-release permits and pre-release classification apply”. In the same manner and terms, it stated in judgment no. 1223/2005, delivered on 14 October 2005, that the maximum term to be served “amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, apply subject to the exceptions provided for in Article 78 of the Criminal Code of 1995”.",
"2. The “Parot doctrine”",
"39. In judgment no. 197/2006 of 28 February 2006 the Supreme Court set a precedent known as the “Parot doctrine”. The case concerned a terrorist member of ETA (H. Parot) who had been convicted under the Criminal Code of 1973. The plenary Criminal Division of the Supreme Court ruled that the remissions of sentence granted to prisoners were henceforth to be applied to each of the sentences imposed and not to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973. The court’s ruling was based in particular on a literal interpretation of Articles 70.2 and 100 of the Criminal Code of 1973 according to which that maximum term of imprisonment was not to be treated as a new sentence distinct from those imposed, or a distinct sentence resulting from those imposed, but rather as the maximum term a convicted person should spend in prison. This reasoning made a distinction between the “sentence” ( pena ) and the “term to be served” ( condena ); the former referred to the sentences imposed taken individually, to which remissions of sentence should be applied, while the latter referred to the maximum term of imprisonment to be served. The Supreme Court also used a teleological argument. The relevant parts of its reasoning read as follows:",
"“... the joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year limit does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment [ máximo de cumplimiento ] a prisoner should serve in prison. The reasons that lead us to this interpretation are: (a) first, a literal analysis of the relevant provisions leads us to conclude that the Criminal Code by no means considers the maximum term of thirty years to amount to a new sentence to which any reductions to which the prisoner is entitled should apply, for the simple reason that it says no such thing; (b) on the contrary, the sentence [ pena ] and the resulting term of imprisonment to be served [ condena ] are two different things; the wording used in the Criminal Code refers to the resulting limit as the ‘term to be served’ [ condena ], and fixes the different lengths of that maximum ‘term to be served’ [ condena ] in relation to the ‘sentences’ imposed. According to the first rule, that maximum is arrived at in one of two ways: the different sentences are served in descending order of severity until one of the two limits set by the system is attained (three times the length of the heaviest sentence imposed or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after having served the successive sentences as mentioned, the prisoner will no longer have to discharge [i.e. serve] the remaining ones [in the prescribed order] once the sentences already served reach the maximum length, which may not exceed thirty years ...; (e) and from a teleological point of view, it would not be rational for the combination of sentences to reduce a long string of convictions to a single new sentence of thirty years, with the effect that an individual who has committed a single offence would be treated, without any justification, in the same way as someone convicted of multiple offences, as in the present case. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served [ condena ], but rather to one, several or all of the different sentences imposed; in such a case it is for the sentencing court to decide, and not the judicial body responsible for setting the limit (the last one), which shows that the sentences are not combined into one. Besides, the first rule of Article 70 of the Criminal Code of 1973 explains how, in such a case, the sentences must be served successively ‘the convicted person going on to serve the next sentence when the previous one has been extinguished by pardon’; (g) lastly, from a procedural point of view section 988 of the Criminal Procedure Act clearly states that it is a matter of setting the maximum limit of the sentences imposed (in the plural, in keeping with the wording of the law), ‘ fixing the maximum term to be served in respect of all the sentences ’ (the wording is very clear).",
"Which is why the term ‘combination [ refundición ] of the sentences to be served [ condenas ]’ is very misleading and inappropriate. There is no merging of sentences into a single sentence, but the number of years an individual can be expected to serve in respect of multiple sentences is limited by law. This means that the prisoner serves the different sentences, with their respective specificities and with all the corresponding entitlements. That being so, the remissions of sentence for work done in detention as provided for in Article 100 of the Criminal Code of 1973 may be applied to the sentences successively served by the prisoner.",
"The total term to be served [ condena ] is thus served in the following manner: the prisoner begins by serving the heaviest sentences imposed. The relevant adjustments [ beneficios ] and remissions are applied to each of the sentences the prisoner serves. When the first [sentence] has been completed, the prisoner begins to serve the next one, and so on until the limits provided for in Article 70.2 of the Criminal Code of 1973 have been reached, at which point all of the sentences comprised in the total term to be served [ condena ] will have been extinguished.",
"Take, for example, the case of an individual given three prison sentences: thirty years, fifteen years and ten years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the maximum term to be served to three times the most serious sentence or thirty years’ imprisonment. In this case the actual term to be served would be thirty years. The prisoner would begin serving the successive sentences (the total term to be served), starting with the longest sentence (thirty years in this case). If he were granted a ten-year remission for whatever reason, he would have served that sentence after twenty years’ imprisonment, and the sentence would be extinguished; next, the prisoner would start to serve the next longest sentence (fifteen years). With five years’ remission that sentence will have been served after ten years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences ceasing to have effect, as provided for in the applicable Criminal Code, once this maximum term, which may not exceed thirty years, is attained. ”",
"40. In the above-mentioned judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in conjunction with Article 70.2. It referred to a single precedent, its judgment of 8 March 1994 in which it had considered that the maximum duration provided for in Article 70.2 of the Criminal Code of 1973 amounted to “a new, independent sentence” (see paragraph 36 above). However, the Supreme Court departed from that interpretation, pointing out that that decision was an isolated one and could therefore not be relied on as a precedent in so far as it had never been applied in a consistent manner.",
"Even assuming that its new interpretation of Article 70 of the Criminal Code of 1973 could have been regarded as a departure from its case-law and from previous prison practice, the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the criminal law should not be applied retroactively (Article 25 § 1 and Article 9 § 3 of the Constitution) was not meant to apply to case-law.",
"41. Judgment no. 197/2006 was adopted by a majority of twelve votes to three. The three dissenting judges appended an opinion stating that the sentences imposed successively were transformed or joined together into another sentence, similar in nature but different in so far as it combined the various sentences into one. That sentence, which they called “the sentence to be served”, was the one resulting from the application of the limit fixed in Article 70.2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done in detention was to be applied. Remissions would therefore affect the sentences imposed, but only once the rules on the consecutive serving of sentences had been applied to them “for the purposes of their completion”. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted by the plenary Criminal Division on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70.2 of the Criminal Code of 1973 (the thirty-year limit). In application of that principle no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done in detention although they had each been given prison sentences totalling over a hundred years.",
"42. The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as amended by Organic Law no. 7/2003 introducing measures to ensure the full and effective execution of sentences. This new interpretation to the convicted person’s detriment was based on a policy of full execution of sentences which was alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the settled case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer as in the case concerned.",
"3. Application of the “Parot doctrine”",
"43. The Supreme Court confirmed the “Parot doctrine” in subsequent judgments (see, for example, judgment no. 898/2008 of 11 December 2008). In its judgment no. 343/2011 of 3 May 2011 it referred to the departure from previous case-law in judgment no. 197/2006 in the following terms:",
"“In the present case it was initially considered that the appellant would have finished serving the ljjegal maximum term of imprisonment on 17 November 2023, and that situation has not changed. It is the way sentence adjustments [ beneficios penitenciarios ] are applied that has changed. Until judgment no. 197/2006 (cited above) they were applied to the maximum term a prisoner could serve. This judgment and others that followed deemed that to be an error, and considered that the adjustment should be applied to the sentences actually imposed, which were to be served in succession, one after the other, until the limit provided for by law had been reached.”",
"44. According to information supplied by the Government, the “Parot doctrine” has been applied to ninety-three convicted members of ETA and thirty-seven other people found guilty of particularly serious crimes (drug traffickers, rapists and murderers).",
"E. The case-law of the Constitutional Court",
"45. In its judgment no. 174/1989 of 30 October 1989 the Constitutional Court noted that the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973 were periodically validated by the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ) further to a proposal by the prison authorities. It explained that remissions of sentence which had already been approved had to be taken into account by the trial court required to rule on the discharge ( liquidación ) of the term of imprisonment to be served ( condena ), and that remissions already accrued in application of the law could not subsequently be revoked to correct any errors or permit the application of a new interpretation. It added that where there was no appeal against a decision by a judge responsible for the execution of sentences, that decision became final and binding in conformity with the principle of legal certainty and the right not to have final judicial decisions overruled. It considered that the right to remissions of sentence for work done in detention was not conditional under the relevant law, as demonstrated by the fact that prisoners who misbehaved or attempted to escape lost that right only in respect of future adjustments, not in respect of those already granted.",
"46. In judgment no. 72/1994 of 3 March 1994 the Constitutional Court explained that the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973 reflected the principle enshrined in Article 25 § 2 of the Constitution that punishments entailing imprisonment must be aimed at the rehabilitation and social reintegration of the offender.",
"47. Various people who had suffered the effects of the “Parot doctrine” lodged amparo appeals with the Constitutional Court. The public prosecutor supported the cases of some of the individuals concerned, who complained in their appeals of violations of the principles of legality and non-retroactive interpretation of the law to the detriment of the accused. In his submissions he maintained that the principle of legality – and the principle of non-retroactivity it entailed – should apply to the execution of sentences. In a series of judgments of 29 March 2012 the Constitutional Court, sitting as a full court, ruled on the merits of these amparo appeals.",
"48. In two of those judgments (nos. 39/2012 and 57/2012), the Constitutional Court allowed the appeals, holding that there had been a violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) and of the right to liberty (Article 17 § 1 of the Constitution). It considered that the new method of applying remissions of sentence as a result of the Supreme Court’s departure from its case-law in 2006 had challenged final judicial decisions concerning the interested parties. It noted that the Audiencia Nacional which had adopted the decisions in question had considered that the Criminal Code of 1973 (which provided for a maximum term of imprisonment of thirty years) was more favourable to the persons concerned than the Criminal Code of 1995 (where the limit was twenty-five years) because they would have lost the right to remissions of sentence from the time the Criminal Code of 1995 entered into force had it been applied to them. Observing that the Audiencia Nacional had based its finding on the principle that the remissions of sentence provided for under the old Code should be deducted from the legal maximum term of imprisonment (namely thirty years), it held that final judicial decisions could not be altered by a new judicial decision applying another method. It concluded that there had been a violation of the right to effective judicial protection, and more specifically of the right not to have final judicial decisions overruled (the “intangibility” of final judicial decisions, or the principle of res judicata ). Concerning the right to liberty, it considered that, regard being had to the Criminal Code of 1973 and the method of applying remissions of sentence adopted in the judicial decisions cited above, the prisoners concerned had completed their sentences, which meant that their continued detention after the release date proposed by the prison authorities (in conformity with the formerly applicable rules) had no legal basis. In both decisions it referred to the Court’s judgment in Grava v. Italy (no. 43522/98, §§ 44-45, 10 July 2003).",
"49. In a third case (judgment no. 62/2012), the Constitutional Court allowed an amparo appeal, holding that there had been a violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) because the Audiencia Nacional had changed the date of the prisoner’s final release, thereby disregarding its own firm and final judicial decision given a few days earlier.",
"50. The Constitutional Court rejected amparo appeals in twenty-five cases (judgments nos. 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 59, 61, 64, 65, 66, 67, 68 and 69/2012), because the decisions of the ordinary courts fixing the prisoners’ final release date based on the new approach introduced in 2006 had not contradicted the final decisions previously reached in those cases. Those decisions had not explicitly mentioned the manner of applying remissions of sentence for work done in detention, and that issue had not been decisive as regards the choice of the applicable Criminal Code.",
"51. Both in the judgments in favour of the appellants and in those against, the Constitutional Court rejected the complaint under Article 25 of the Constitution (principle of legality) because the question of the application of remissions of sentence for work done in detention concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law, or a sentence exceeding the limit allowed by law. The Constitutional Court referred to the Court’s case-law establishing a distinction between measures constituting a “penalty” and those relating to the “execution” of a sentence for the purposes of Article 7 of the Convention ( Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231; Grava, cited above, § 51; and Gurguchiani v. Spain, no. 16012/06, § 31, 15 December 2009).",
"52. In the parts of its judgment no. 39/2012 concerning the principle of legality, for example, the Constitutional Court stated:",
"“3. ... It must first be observed that the question under examination does not fall within the scope of the fundamental right enshrined in Article 25 § 1 of the Constitution – namely the interpretation and application of criminal charges, the classification of the facts established in respect of the offences concerned and the application of the corresponding penalties ... – but rather concerns the execution of custodial sentences, that is to say the application of remissions of sentence for work done in detention, and the interpretation we are required to examine cannot lead to the serving of sentences heavier than those provided for in respect of the criminal offences concerned, or to imprisonment in excess of the legal limit. In a similar manner, contrary to what the prosecution have argued, the European Court of Human Rights also considers that, even when they have an impact on the right to liberty, measures concerning the execution of the sentence – rather than the sentence itself – do not fall within the scope of the principle of no punishment without law enshrined in Article 7 § 1 of the Convention provided that they do not result in the imposition of a penalty harsher than that provided for by law. In its judgment in the case of Grava v. Italy (§ 51) of 10 July 2003, the European Court of Human Rights reached this conclusion in a case concerning remission of sentence, citing mutatis mutandis Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports (DR) 46, pp. 231, 242, relating to release on licence). More recently, in its judgment of 15 December 2009 in the case of Gurguchiani v. Spain (§ 31), the Court stated: ‘both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relate to a remission of sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7.’",
"The court must also reject the complaint concerning the alleged violation of the principle of no punishment without law (Article 25 § 1 of the Constitution) as a result of the retroactive application of Article 78 of the Criminal Code of 1995 (in its initial wording and as amended by Organic Law no. 7/2003), authorising the sentencing judge or court to order that ‘decisions concerning adjustments of sentence, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence should take into account all of the sentences imposed’ in certain situations where sentences were grouped together (Article 78 § 1 of the Criminal Code). The law obliges the courts to take into account all the sentences in cases where particularly heavy multiple sentences were imposed. There are certain exceptions to this obligation, however (Article 78 §§ 2 and 3 of the Criminal Code currently in force). That said, the impugned decisions and the Supreme Court decision cited in them did not involve any retroactive application of that rule (which in any event is not applicable to remissions of sentence for work done in detention, as the Criminal Code of 1995 did away with such remissions). They simply applied the provisions that were in force at the time the offences of which the applicant was convicted were committed (Articles 70.2 and 100 of the Criminal Code of 1973), but with a new interpretation which, although based on the method of calculation expressly provided for in Article 78 of the Criminal Code of 1995, was possible, they explained, in view of the wording of Articles 70.2 and 100 of the Criminal Code of 1973. That being so, if one follows the reasoning of the judicial bodies and the applicable rules, the appellant’s complaint lacks any factual basis as the principle of the non-retroactive application of a harsher criminal law enshrined in Article 25 § 1 of the Constitution is breached only where a criminal law has been applied retroactively to acts committed before its entry into force ...”",
"Concerning the right to liberty, the Constitutional Court held:",
"“4. ... In our case-law remissions of sentence for work done in detention directly affect the fundamental right to liberty guaranteed by Article 17 § 1 of the Constitution, as the duration of the term of imprisonment depends inter alia on how they are applied, regard being had to Article 100 of the Criminal Code of 1973 ... That provision states that ‘the prisoner shall be entitled, with the approval of the judge responsible for the execution of sentences, to one day’s remission for every two days worked’, as calculated periodically by the judges responsible for the execution of sentences, based on proposals made by the prison authorities, said remission then being taken into account, for the purposes of the term of imprisonment to be served, by the sentencing court ...",
"We have also held that remissions of sentence for work done in detention are in the spirit of Article 25 § 2 of the Constitution and the rehabilitational purpose of custodial sentences ... While it is true that Article 25 § 2 embodies no fundamental right protected by the amparo remedy, it does establish a penal and prison policy guideline for the legislature, as well as a principle regarding the interpretation of the rules on the imposition and execution of prison sentences, and both the guideline and the principle are enshrined in the Constitution ...",
"Also, having noted that the right guaranteed by Article 17 § 1 of the Constitution authorises deprivation of liberty only ‘in the cases and in the manner prescribed by law’, we have found that it cannot be ruled out that the manner in which the sentence to be served is calculated may undermine that right in the event of failure to comply with the legal provisions relating to the consecutive or concurrent serving of different sentences that might have given rise to a reduction of the duration of the detention, where failure to apply the rules concerned leads to the unlawful extension of the detention and, consequently, of the deprivation of liberty ... In a similar vein the European Court of Human Rights has also found a violation of the right to liberty guaranteed by Article 5 of the Convention in a case where a prisoner served a longer sentence ‘than the sentence [he] should have served under the domestic law, taking into account the remission to which he was entitled. The additional time spent in prison accordingly amounted to unlawful detention within the meaning of the Convention’ ( Grava v. Italy, ECHR, 10 July 2003, § 45).”",
"After having found a violation of the right to effective judicial protection, the Constitutional Court had the following to say concerning the consequences of that violation as regards the right to liberty:",
"“8. However, we cannot limit ourselves to the mere finding of a violation [of Article 24 § 1 of the Constitution] arrived at above. We must also consider the consequences of that violation in terms of the right to liberty (Article 17 § 1 of the Constitution).",
"Bearing in mind the binding nature of the order of 28 May 1997 adopted by the court responsible for the execution of sentences (whose role it was to determine how the sentence should be served and when it should end) and the legal situation created by the aforesaid decision in respect of the calculation of remissions of sentence for work done in detention, the sentence was served for years as prescribed in the order in question: application of the former Criminal Code and the rules governing remissions of sentence for work done in detention, according to which the prisoner was entitled to one day’s remission for every two days worked, and deduction of the resulting remission, as periods of sentence discharged, from the maximum actual term of thirty years to be served following the combination of the sentences. That was confirmed by unequivocal acts by the prison authorities, who drew up charts showing provisional lengths of sentence taking into account remission for work done in detention, approved periodically by the judge responsible for the execution of sentences further to proposals by the prison authorities, and in particular one chart of 25 January 2006 which served as a basis for the proposal to release the prisoner on 29 March 2006, submitted to the judge by the prison governor.",
"It follows that, under the legislation in force at the time of the offence, and taking into account the remissions of sentence for work done in detention as calculated according to the firm and binding criteria established by the judge responsible for the execution of sentences, the appellant had already discharged the sentence he was given. That being so, and although the appellant was deprived of his liberty in a lawful manner, his deprivation of liberty fell outside the cases provided for by law once he had finished serving his sentence in the conditions outlined above, as the legal basis for his continuing detention had ceased to exist. It follows that the additional time the appellant served in prison amounted to unlawful deprivation of liberty in breach of the fundamental right to liberty guaranteed by Article 17 § 1 of the Constitution (see Grava v. Italy, ECHR 10 July 2003, §§ 44 and 45).",
"In a State where the rule of law prevails it is unacceptable to extend a prisoner’s incarceration once he has served his sentence. The courts should accordingly take the necessary steps, as soon as possible, to put a stop to the violation of the fundamental right to liberty and arrange for the appellant’s immediate release.”",
"53. The judgments of the Constitutional Court prompted separate opinions – concurring or dissenting – from certain judges. In the dissenting opinion she appended to judgment no. 40/2012, Judge A. Asua Batarrita stated that the fact that the new interpretation of the rule for calculating the term of imprisonment to be served had been applied while the sentence was already under way shed doubt on an established legal situation and distorted projections based on the consistent interpretation of the applicable rules. She described the arrangements for remissions of sentence introduced by the Criminal Code of 1973 and the distinction traditionally made between the “nominal duration” and the “actual duration” of the sentence, which the courts took into account when fixing sentences. She pointed out that remissions of sentence for work done in detention differed from other measures entailing adjustment of sentences, such as release on licence, and that the granting of such remissions was not left to the discretion of the courts, which were not bound by criteria such as the prisoner’s good conduct or how dangerous he or she was considered to be. The judge concluded that remissions of sentence for work done in detention were mandatory by law. She stated that, under the Criminal Code of 1973, the principle of legality should apply not only to offences but also to the punitive consequences of their commission, that is to say the nominal limit of the prison sentences and their actual limit after deduction of the remissions of sentence for work done in detention as provided for in Article 100 of the Criminal Code of 1973. Noting that the limits set under Article 70.2 of the Criminal Code of 1973, combined with the remissions of sentence for work done in detention, had effectively reduced the maximum nominal sentence (thirty years) to a shorter actual term of imprisonment (twenty years), except in the event of misconduct or attempted escape, she expressed the view that the “Parot doctrine” had established an artificial distinction between the “sentence” ( pena ) and the “term of imprisonment to be served” ( condena ) that had no basis in the Criminal Code, and had subjected the application of the thirty-year limit to a new condition – not provided for by Article 70.2 of the Criminal Code of 1973 – according to which, during that period, the sentence was to be served “in a prison”, thereby preventing the application of the rules on remissions of sentence for work done in detention. In her view that was tantamount to imposing a nominal maximum term of forty-five years (that is, thirty years’ actual imprisonment plus fifteen years corresponding to work done in detention).",
"She considered that neither the teleological arguments nor the criminal policy considerations underlying the “Parot doctrine” could justify such a departure from the case-law concerning the interpretation of a law – the Criminal Code of 1973 – that had been repealed over ten years earlier. In view of all these considerations she concluded that the interpretation by the Supreme Court in its judgment of 2006 had not been foreseeable and that there had been a violation of Article 25 § 1 (principle of legality), Article 17 § 1 (right to liberty) and Article 24 § 1 (right to effective judicial protection) of the Constitution.",
"54. In the concurring opinion he appended to judgment no. 39/2012, Judge P. Perez Tremps referred to the Court’s case-law concerning Article 5 of the Convention, and in particular the requirement that the law be foreseeable ( M. v. Germany, no. 19359/04, § 90, ECHR 2009). He specified that this requirement should apply to the real and effective duration of the deprivation of liberty. Having noted that the legislation interpreted by the Supreme Court – the Criminal Code of 1973 – was no longer in force in 2006 and could therefore be brought into play only if it worked in the convicted person’s favour, he concluded that a sudden, unforeseeable departure from the case-law was incompatible with the right to liberty. He also doubted that legislation that made no explicit provision for the means of calculating remissions of sentence, and could be interpreted in two radically different ways, met the required standard of quality of the law.",
"55. In the dissenting opinion he appended to judgment no. 41/2012, Judge E. Gay Montalvo stated that the application of Articles 70.2 and 100 of the Criminal Code of 1973 in conformity with the “Parot doctrine” had led to the imposition of a penalty exceeding the thirty-year limit if one added the sentence actually served to the time the law deemed to have been served in other ways. He concluded that there had been a violation of the principle of no punishment without law, on the one hand, and of the right to liberty on the other, because the prisoner’s detention had been unlawfully extended.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"56. The applicant alleged that what she considered to be the retroactive application of a departure from the case-law by the Supreme Court after she had been convicted had extended her detention by almost nine years, in violation of Article 7 of the Convention, which reads as follows:",
"“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”",
"A. The Chamber judgment",
"57. In its judgment of 10 July 2012, the Chamber found that there had been a violation of Article 7 of the Convention.",
"58. It reached that finding after having noted, first of all, that although the provisions of the Criminal Code of 1973 applicable to remissions of sentence and the maximum term of imprisonment a person could serve – namely thirty years under Article 70 of that Code – were somewhat ambiguous, in practice the prison authorities and the Spanish courts tended to treat the maximum legal term of imprisonment as a new, independent sentence to which adjustments such as remission of sentence for work done in detention should be applied. It concluded that at the time when the offences had been committed and at the time when the decision to combine the sentences had been adopted (on 30 November 2000), the relevant Spanish law, taken as a whole, including the case-law, had been formulated with sufficient precision to enable the applicant to discern to a reasonable degree the scope of the penalty imposed and the manner of its execution (see paragraph 55 of the Chamber judgment, with a reference, by contrast, to Kafkaris v. Cyprus [GC], no 21906/04, § 150, ECHR 2008).",
"59. Secondly, the Chamber observed that in the applicant’s case the new interpretation by the Supreme Court in 2006 of the way in which remissions of sentence should be applied had led, retroactively, to the extension of the applicant’s term of imprisonment by almost nine years, by depriving her of the remissions of sentence for work done in detention to which she would otherwise have been entitled. That being so, it considered that this measure not only concerned the execution of the applicant’s sentence, but also had a decisive impact on the scope of the “penalty” for the purposes of Article 7 (see paragraph 59 of the Chamber judgment).",
"60. Thirdly, the Chamber noted that the Supreme Court’s change of approach had no basis in the case-law, and that the Government themselves had acknowledged that the previous practice of the prisons and the courts would have been more favourable to the applicant. It pointed out that the departure from previous practice had come about after the entry into force of the new Criminal Code of 1995, which had done away with remissions of sentence for work done in detention and established new – stricter – rules on the application of sentence adjustments to prisoners sentenced to several lengthy terms of imprisonment. It emphasised that the domestic courts must not, retroactively and to the detriment of the individual concerned, apply the criminal policy behind legislative changes brought in after the offence was committed (see paragraph 62 of the Chamber judgment). It concluded that it had been difficult, or even impossible, for the applicant to imagine, at the material time and also at the time when all the sentences were combined and a maximum term of imprisonment fixed, that the Supreme Court would depart from its previous case-law in 2006 and change the way remissions of sentence were applied, that this departure from case-law would be applied to her case and that the duration of her incarceration would be substantially lengthened as a result (see paragraph 63 of the Chamber judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"61. The applicant submitted that the thirty-year maximum term of imprisonment set by the decision of 30 November 2000 to combine the sentences and place an upper limit on the term to be served amounted to a new sentence and/or the final determination of her sentence. She agreed with the Chamber’s finding that practice at the time gave her a legitimate expectation, while serving her prison sentence, that the remissions of sentence to which she was entitled for the work done since 1987 would be applied to the maximum legal term of thirty years’ imprisonment.",
"62. That being so, she submitted that the application to her case of the Supreme Court’s departure from case-law in its judgment no. 197/2006 amounted to the retroactive imposition of an additional penalty that could not merely be described as a measure relating to the execution of the sentence. As a result of this change of approach the thirty-year term fixed by the decision of 30 November 2000, of which she had been notified the same day, had ceased to be treated as a new, independent and/or final sentence and the various sentences imposed on her between 1988 and 2000 (totalling over 3,000 years’ imprisonment) in eight trials had, in a manner of speaking, been restored. The applicant submitted that by applying the remissions of sentence to each of her sentences individually the Spanish courts had deprived her of the remissions of sentence she had earned and added nine years to her imprisonment. In so doing, the courts concerned had not simply altered the rules applicable to remissions of sentence, but had also redefined and/or substantially changed the “penalty” she had been informed she would have to serve.",
"63. The applicant argued that the Supreme Court’s departure from the case-law in its judgment no. 197/2006 had not been reasonably foreseeable in the light of the previous practice and case-law, and had deprived the remissions of sentence for work done in detention provided for in the Criminal Code of 1973 of any meaning for people in her situation. In the applicant’s submission the judgment concerned had resulted in the application to her case of the criminal policy behind the new Criminal Code of 1995, in spite of the fact that the intention of the drafters of the Code had been to keep the remissions of sentence provided for in the Criminal Code of 1973 in place for anyone who had been convicted under that Code.",
"64. In the alternative, there was no denying that at the time the applicant had committed the offences Spanish law had not been formulated with sufficient precision to enable her to discern, to a degree that was reasonable in the circumstances, the scope of the penalty imposed and the manner of its execution (the applicant referred to Kafkaris, cited above, § 150). In the applicant’s submission, the Criminal Code of 1973 was ambiguous in that it did not specify whether the maximum term of thirty years’ imprisonment was a new, independent sentence, whether the individual sentences continued to exist once they had been combined together, and to which sentence the remissions of sentence for work done should be applied. Judgment no. 197/2006 had not clarified the question of sentencing as the Supreme Court had not expressly set aside its order of 25 May 1990 according to which the combining of sentences provided for in Article 70.2 of the Criminal Code of 1973 was the means of determining the sentence.",
"Besides, had that order still been in force the Audiencia Nacional would have had to choose between the various sentences to which the remissions of sentence could potentially have been applied, namely the thirty-year maximum term or the individual sentences. In conformity with the Scoppola v. Italy (no. 2) judgment ([GC], no. 10249/03, 17 September 2009), the Audiencia Nacional would have been obliged to apply the more lenient criminal law, regard being had to the particular circumstances of the case.",
"65. Also, the distinction between the penalty and its execution was not always clear in practice. It was for the Government, when relying on that distinction, to demonstrate that it was applicable in a particular case, notably when the lack of clarity was due to the way in which the State had drafted or applied its laws. The present case should be distinguished from cases concerning discretionary measures of early release or measures that did not result in a redefinition of the penalty (the applicant referred to Hogben, cited above, Hosein v. the United Kingdom, no. 26293/95, Commission decision of 28 February 1996; Grava, cited above; and Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005). In the alternative, from the point of view of the quality of the law the present case was more like the above-cited Kafkaris judgment in terms of the uncertainty as to the scope and substance of the penalty, due in part to the way in which the rules on remissions of sentence had been interpreted and applied. In any event, it was clear from Kafkaris that the “quality of law” requirement applied both to the scope of the penalty and to the manner of its execution, particularly when the substance and the execution of the penalty were closely linked.",
"66. Lastly, regarding the case-law in criminal matters, even assuming that it was legitimate for the courts to alter their approach to keep abreast of social changes, the Government had failed to explain why the new approach had been applied retroactively. In any event, neither the Government nor the courts had claimed that the new 2006 approach had been applied to the applicant in response to “new social realities”.",
"2. The Government",
"67. The Government reiterated that the applicant was a member of the ETA criminal organisation and had taken part in numerous terrorist attacks from 1982 until her detention in 1987. They added that for her crimes the applicant had been sentenced between 1988 and 2000 to imprisonment totalling over 3,000 years, for twenty-three murders, fifty-seven attempted murders and other offences. They submitted that the different judgments convicting the applicant had been based on the Criminal Code of 1973, which had been in force at the times when the offences had been committed and which gave a very clear definition of the different offences and the penalties they entailed. Five of the judgments by which the applicant had been convicted, as well as the decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, had expressly informed the applicant that, in accordance with Article 70.2 of the Criminal Code, the total duration of the prison sentence she would have to serve was thirty years. They also pointed out that on 15 February 2001, the date of the Audiencia Nacional ’s decision setting 27 June 2017 as the date on which the applicant would have finished serving her sentence, the applicant had already accrued over four years’ remission of sentence for work done in detention. And as she had not appealed against that decision, she was considered to have acquiesced to the release date fixed by the Audiencia Nacional.",
"68. It was perfectly clear under the provisions of the Criminal Code of 1973 that the maximum term of thirty years was not to be regarded as a new penalty but rather as a measure placing an upper limit on the total term of imprisonment in respect of the various sentences imposed, to be served successively in order of decreasing severity, the residual sentences being extinguished accordingly. The sole purpose of combining and placing an upper limit on the sentences had been to fix the duration of the actual term to be served as a result of all the sentences imposed in the different sets of proceedings. Besides, Article 100 of the Criminal Code of 1973 made it just as clear that remissions of sentence for work done in detention were to be applied to the “sentence imposed”, in other words to each of the sentences imposed until the maximum term had been reached.",
"69. While it was true that prior to the adoption by the Supreme Court of judgment no. 197/2006 the Spanish prisons and courts had tended, in practice, to apply remissions of sentence for work done in detention to the thirty-year maximum term of imprisonment, that practice did not concern the determination of the penalty, but rather its execution. Furthermore, that practice had no basis in the case-law of the Supreme Court in the absence of any established principle as to the manner of applying remissions of sentence for work done in detention. The sole judgment delivered on this issue by the Supreme Court in 1994 did not suffice to set an authoritative precedent under Spanish law. The Supreme Court’s case-law in the matter had not been settled until its Criminal Division had adopted judgment no. 197/2006. What is more, the Government argued, that case-law had been endorsed by the full Constitutional Court in several judgments delivered on 29 March 2012, containing numerous references to the Court’s case-law concerning the distinction between a “penalty” and its “execution”.",
"70. In the Government’s submission, the Chamber had mistakenly considered that the application of the “Parot doctrine” had deprived of all purpose the remissions of sentence for work done in detention granted to convicted prisoners under the Criminal Code of 1973. Remissions of sentence continued to be applied, but to each of the sentences individually, until the maximum term had been reached. Only in the case of the most serious crimes, such as those committed by the applicant, would the thirty-year limit be reached before the remissions of sentence granted for work done in detention had significantly reduced the sentences imposed. Similarly, the Chamber had mistakenly considered that the Supreme Court had retroactively applied the policy behind the legislative reforms of 1995 and 2003. It was plain to see that the reforms in question made no mention of the means of applying remissions of sentence for work done in detention, the Criminal Code of 1995 having done away with them. Had the criminal policy behind the 2003 law been applied retroactively, the applicant would have been liable to a maximum term of imprisonment of forty years.",
"71. In its judgment the Chamber had departed from the Court’s case-law concerning the distinction between measures that amounted to a “penalty” and those relating to the “execution” of a penalty. Under that case-law a measure concerning remission of sentence or a change in the system of release on licence was not an integral part of the “penalty” within the meaning of Article 7 (the Government referred to Grava, § 51; Uttley; Kafkaris, § 142; and Hogben, all cited above). In Kafkaris, the Court had acknowledged that a prison-law reform which was applied retroactively, excluding prisoners serving life sentences from earning remissions of sentence for work done in detention, concerned the execution of the sentence as opposed to the “penalty” imposed (§ 151). In the present case the Government submitted that there had been no change in prison law. The only effect of Supreme Court judgment no. 197/2006 concerning remissions of sentence for work done in detention had been to prevent the date of the applicant’s release being brought forward nine years, not to increase the penalty imposed on her.",
"72. The present case differed from cases which clearly concerned the penalty as opposed to its execution (the Government cited Scoppola (no. 2); Gurguchiani; and M. v. Germany, all cited above). The disputed measure concerned remissions of sentence or “early release”, not the maximum term that could be served in respect of the sentences imposed, which had not changed. Remissions of sentence for work done in detention did not pursue the same aims as the penalty as such, but were measures relating to its execution in so far as they allowed prisoners to be released before all their sentences had been served, provided that they demonstrated a willingness to return to the social mainstream through work or other paid activities. That being so, remissions of sentence for work done in detention could not be likened to measures imposed following conviction for a “criminal offence”; instead, they were measures relating to the prisoner’s conduct while serving the sentence. In any event there was no question of any “severity” as they always benefited the prisoner concerned by bringing forward the date of release.",
"73. The Government further submitted that the Chamber judgment was inconsistent with the Court’s case-law on the question of to what extent a person should be able, when committing an offence, to predict the exact term of imprisonment he or she would incur. As remissions of sentence for work done in detention were purely a prison matter, the Supreme Court could not be criticised for having departed from previous practice with regard to the application of remissions of sentence, as the change had had no effect on the rights enshrined in Article 7. The Court had never held that the foreseeability requirement extended to the exact length of the sentence to be served taking into account sentence adjustments, remissions, pardons or any other factors affecting the execution of the sentence. Such factors were impossible to foresee and to calculate ex ante.",
"74. Lastly, the Government submitted that the implications of the Chamber judgment were open to dispute as they shed doubt on the value and purpose the Court itself had attributed to case-law in criminal and prison matters (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II). The Chamber had considered that a single judgment given in 1994 – faulty, albeit confirmed by administrative practice – should prevail over case-law established by the Supreme Court and endorsed by the Constitutional Court, even though the latter case-law was more in keeping with the wording of the law in force at the material time. A judicial interpretation respectful of the letter of the applicable law could not, as a matter of principle, be said to be unforeseeable.",
"C. Third-party observations",
"75. The International Commission of Jurists pointed out that the principle of no punishment without law enshrined in Article 7 of the Convention and in other international agreements was an essential component of the rule of law. It submitted that, in conformity with that principle, and with the aim and purpose of Article 7 prohibiting any arbitrariness in the application of the law, the autonomous concepts of “law” and “penalty” must be interpreted sufficiently broadly to preclude the surreptitious retroactive application of a criminal law or a penalty to the detriment of a convicted person. It argued that where changes to the law or the interpretation of the law affected a sentence or remission of sentence in such a way as to seriously alter the sentence in a way that was not foreseeable at the time when it was initially imposed, to the detriment of the convicted person and his or her Convention rights, those changes, by their very nature, concerned the substance of the sentence and not the procedure or arrangements for executing it, and accordingly fell within the scope of the prohibition of retroactivity. The International Commission of Jurists submitted that certain legal provisions classified at domestic level as rules governing criminal procedure or the execution of sentences had serious, unforeseeable effects detrimental to individual rights, and were by nature comparable or equivalent to a criminal law or a penalty with retroactive effect. For this reason the prohibition of retroactivity should apply to such provisions.",
"76. In support of its argument that the principle of non-retroactivity should apply to procedural rules or rules governing the execution of sentences which seriously affected the rights of the accused or convicted person, the International Commission of Jurists referred to various sources of international and comparative law (statutes and rules of procedure of international criminal courts, as well as Portuguese, French and Netherlands legislation and case-law).",
"D. The Court’s assessment",
"1. Principles established by the Court’s case-law",
"(a) Nullum crimen, nulla poena sine lege",
"77. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 even in time of war or other public emergency threatening the life of the nation. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335-C; and Kafkaris, cited above, § 137).",
"78. Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage (concerning the retrospective application of a penalty, see Welch v. the United Kingdom, 9 February 1995, § 36, Series A no. 307 ‑ A; Jamil v. France, 8 June 1995, § 35, Series A no. 317 ‑ B; Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 36, ECHR 2001 ‑ II; and Mihai Toma v. Romania, no. 1051/06, §§ 26-31, 24 January 2012). It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege – see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII; for an example of the application of a penalty by analogy, see Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 42 ‑ 43, ECHR 1999 ‑ IV).",
"79. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996 ‑ V, and Kafkaris, cited above, § 140).",
"80. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others, cited above, § 145, and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV).",
"(b) The concept of a “penalty” and its scope",
"81. The concept of a “penalty” in Article 7 § 1 of the Convention is, like the notions of “civil rights and obligations” and “criminal charge” in Article 6 § 1, an autonomous Convention concept. To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch, § 27, and Jamil, § 30, both cited above).",
"82. The wording of the second sentence of Article 7 § 1 indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, § 28; Jamil, § 31; Kafkaris, § 142; and M. v. Germany, § 120, all cited above). The severity of the order is not in itself decisive, however, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32, and Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 ‑ XV).",
"83. Both the European Commission of Human Rights and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty”. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the “penalty” within the meaning of Article 7 (see, among other authorities, Hogben, cited above; Hosein, cited above; L.-G.R. v. Sweden, no. 27032/95, Commission decision of 15 January 1997; Grava, cited above, § 51; Uttley, cited above; Kafkaris, cited above, § 142; Monne v. France (dec.), no. 39420/06, 1 April 2008; M. v. Germany, cited above, § 121; and Giza v. Poland (dec.), no. 1997/11, § 31, 23 October 2012). In Uttley, for example, the Court found that the changes made to the rules on early release after the applicant’s conviction had not been “imposed” on him but were part of the general regime applicable to prisoners and, far from being punitive, the nature and purpose of the “measure” were to permit early release, so they could not be regarded as inherently “severe”. The Court accordingly found that the application to the applicant of the new regime for early release was not part of the “penalty” imposed on him.",
"84. In Kafkaris, where changes to the prison legislation had deprived prisoners serving life sentences – including the applicant – of the right to remissions of sentence, the Court considered that the changes related to the execution of the sentence as opposed to the penalty imposed on the applicant, which remained that of life imprisonment. It explained that although the changes in the prison legislation and in the conditions of release might have rendered the applicant’s imprisonment harsher, these changes could not be construed as imposing a heavier “penalty” than that imposed by the trial court. It reiterated in this connection that issues relating to release policies, the manner of their implementation and the reasoning behind them fell within the power of the States Parties to the Convention to determine their own criminal policy (see Achour, cited above, § 44, and Kafkaris, cited above, § 151).",
"85. However, the Court has also acknowledged that in practice the distinction between a measure that constitutes a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” may not always be clear-cut (see Kafkaris, § 142; Gurguchiani, § 31; and M. v. Germany, § 121, all cited above). In Kafkaris it accepted that the manner in which the Prison Regulations concerning the execution of sentences had been understood and applied in respect of the life sentence the applicant was serving went beyond the mere execution of the sentence. Whereas the trial court had sentenced the applicant to imprisonment for life, the Prison Regulations explained that what that actually meant was twenty years’ imprisonment, to which the prison authorities might apply any remissions of sentence. The Court considered that “the distinction between the scope of a life sentence and the manner of its execution was therefore not immediately apparent” (see Kafkaris, § 148).",
"86. In Gurguchiani (cited above), the Court considered that the replacement of a prison sentence – while it was being served – by expulsion combined with a ten-year ban on entering the country amounted to a penalty just like the one imposed when the applicant had been convicted.",
"87. In M. v. Germany (cited above), the Court considered that the extension of the applicant’s preventive detention by the courts responsible for the execution of sentences, by virtue of a law enacted after the applicant had committed his offence, amounted to an additional sentence imposed on him retrospectively.",
"88. The Court would emphasise that the term “imposed”, used in the second sentence of Article 7 § 1, cannot be interpreted as excluding from the scope of that provision all measures introduced after the pronouncement of the sentence. It reiterates in this connection that it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012, and Scoppola (no. 2), cited above, § 104).",
"89. In the light of the foregoing, the Court does not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the “penalty” imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention. Otherwise, States would be free – by amending the law or reinterpreting the established regulations, for example – to adopt measures which retroactively redefined the scope of the penalty imposed, to the convicted person’s detriment, when the latter could not have imagined such a development at the time when the offence was committed or the sentence was imposed. In such conditions Article 7 § 1 would be deprived of any useful effect for convicted persons, the scope of whose sentences was changed ex post facto to their disadvantage. The Court points out that such changes must be distinguished from changes made to the manner of execution of the sentence, which do not fall within the scope of Article 7 § 1 in fine.",
"90. In order to determine whether a measure taken during the execution of a sentence concerns only the manner of execution of the sentence or, on the contrary, affects its scope, the Court must examine in each case what the “penalty” imposed actually entailed under the domestic law in force at the material time or, in other words, what its intrinsic nature was. In doing so it must have regard to the domestic law as a whole and the way it was applied at the material time (see Kafkaris, cited above, § 145).",
"(c) Foreseeability of criminal law",
"91. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Kokkinakis, cited above, §§ 40-41; Cantoni, cited above, § 29; Coëme and Others, cited above, § 145; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries.",
"92. It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kokkinakis, cited above, § 40, and Cantoni, cited above, § 31). However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances (see Kafkaris, cited above, § 141).",
"93. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain ( ibid. ). The progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 ‑ A). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see S.W. v. the United Kingdom, cited above, § 36; C.R. v. the United Kingdom, cited above, § 34; Streletz, Kessler and Krenz, cited above, § 50; K.-H.W. v. Germany [GC], no. 37201/97, § 85, 22 March 2001; Korbely v. Hungary [GC], no. 9174/02, § 71, ECHR 2008; and Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010). The lack of an accessible and reasonably foreseeable judicial interpretation can even lead to a finding of a violation of the accused’s Article 7 rights (see, concerning the constituent elements of the offence, Pessino v. France, no. 40403/02, §§ 35-36, 10 October 2006, and Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, §§ 43-44, 24 May 2007; as regards the penalty, see Alimuçaj v. Albania, no. 20134/05, §§ 154-62, 7 February 2012). Were that not the case, the object and the purpose of this provision – namely that no one should be subjected to arbitrary prosecution, conviction or punishment – would be defeated.",
"2. Application of the above principles to the present case",
"94. The Court notes at the outset that the legal basis for the applicant’s various convictions and prison sentences was the Criminal Code of 1973, the criminal law applicable at the time when the offences were committed (between 1982 and 1987), which the applicant has not disputed.",
"95. The Court observes that the parties’ submissions mainly concern the calculation of the total term of imprisonment the applicant should serve in accordance with the rules concerning the maximum term of imprisonment in respect of combined sentences, on the one hand, and the system of remissions of sentence for work done in detention as provided for in the Criminal Code of 1973, on the other. The Court notes in this connection that, by a decision adopted on 30 November 2000 on the basis of section 988 of the Criminal Procedure Act and Article 70.2 of the Criminal Code of 1973, the Audiencia Nacional fixed the maximum term of imprisonment the applicant should serve in respect of all her prison sentences at thirty years (see paragraph 14 above). It further notes that, after having deducted from that thirty-year maximum term the remissions of sentence granted to the applicant for work done in detention, on 24 April 2008 the Murcia Prison authorities proposed 2 July 2008 to the Audiencia Nacional as the date for the applicant’s final release (see paragraph 16 above). On 19 May 2008 the Audiencia Nacional asked the prison authorities to change the proposed date and calculate a new date for the applicant’s release based on the new approach – the so-called “Parot doctrine” – adopted by the Supreme Court in judgment no. 197/2006 of 28 February 2006, according to which any applicable adjustments and remissions of sentence should be applied successively to each individual sentence until such time as the prisoner had finished serving the thirty-year maximum term of imprisonment (see paragraphs 17, 18 and 39-42 above). Lastly, the Court observes that in application of this new case-law the Audiencia Nacional fixed the date of the applicant’s final release at 27 June 2017 (see paragraph 20 above).",
"(a) Scope of the penalty imposed",
"96. It is the Court’s task in the present case to establish what the “penalty” imposed on the applicant entailed under the domestic law, based in particular on the wording of the law, read in the light of the accompanying interpretative case-law. In so doing, it must also have regard to the domestic law as a whole and the way it was applied at the material time (see Kafkaris, cited above, § 145).",
"97. It is true that when the applicant committed the offences, Article 70.2 of the Criminal Code of 1973 referred to a limit of thirty years’ imprisonment as the maximum term to be served ( condena ) in the event of multiple sentences (see paragraph 24 above). There thus seems to have been a distinction between the concept of the “term to be served” ( condena ) and the individual sentences ( penas ) actually pronounced or imposed in the various judgments convicting the applicant. At the same time, Article 100 of the Criminal Code of 1973, on remission of sentence for work done, established that in discharging the “sentence imposed” the detainee was entitled to one day’s remission for every two days’ work done (see paragraph 24 above). However, that Article contained no specific guidance on how to apply remissions of sentence when multiple sentences were combined as provided for under Article 70.2 of the Criminal Code and a maximum total term of imprisonment was fixed, as in the applicant’s case, where sentences totalling 3,000 years’ imprisonment were reduced to thirty years in application of that provision. The Court observes that it was not until Article 78 of the new Criminal Code of 1995 was introduced that the law expressly stated, with regard to the application of sentence adjustments, that in exceptional cases the total duration of the sentences imposed could be taken into account, rather than the maximum term provided for by law (see paragraph 32 above).",
"98. The Court must also consider the case-law and practice regarding the interpretation of the relevant provisions of the Criminal Code of 1973. It notes that, as the Government have acknowledged, prior to the Supreme Court’s judgment no. 197/2006, when a person was given several prison sentences and it was decided to combine them and fix a maximum term to be served, the prison authorities and the Spanish courts applied the remissions of sentence for work done in detention to the maximum term to be served under Article 70.2 of the Criminal Code of 1973. The prison and judicial authorities thus took into account the maximum legal term of thirty years’ imprisonment when applying remissions of sentence for work done in detention. In a judgment of 8 March 1994 (its first ruling on this question – see paragraph 36 above), the Supreme Court referred to the maximum legal term of thirty years’ imprisonment as a “new, independent sentence” to which the possibilities of adjustment provided for by law, such as release on licence and remission of sentence, should be applied. The Spanish courts, including the Supreme Court, took the same approach when comparing the sentences to be served respectively under the Criminal Code of 1995 and the previous Code, taking into account any remissions of sentence already granted under the previous Code, in order to determine which was the most lenient criminal law (see paragraphs 37, 41 and 48 above). Lastly, until the Supreme Court’s judgment no. 197/2006 this approach was applied to numerous prisoners convicted under the Criminal Code of 1973, whose remissions for work done in detention were deducted from the maximum term of thirty years’ imprisonment (see paragraph 41 above).",
"99. Like the Chamber, the Grand Chamber considers that in spite of the ambiguity of the relevant provisions of the Criminal Code of 1973 and the fact that the Supreme Court did not set about clarifying them until 1994, it was clearly the practice of the Spanish prison and judicial authorities to treat the term of imprisonment to be served ( condena ), that is to say the thirty-year maximum term of imprisonment provided for in Article 70.2 of the Criminal Code of 1973, as a new, independent sentence to which certain adjustments, such as remissions of sentence for work done in detention, should be applied.",
"100. That being so, while she was serving her prison sentence – and in particular after the Audiencia Nacional decided on 30 November 2000 to combine her sentences and fix a maximum term of imprisonment – the applicant had every reason to believe that the penalty imposed was the thirty-year maximum term, from which any remissions of sentence for work done in detention would be deducted. Indeed, in its last judgment convicting the applicant, on 8 May 2000, delivered before the decision to combine the sentences was taken, the Audiencia Nacional took into account the maximum term of imprisonment provided for in the Criminal Code of 1973, combined with the system of remissions of sentence for work done in detention provided for in Article 100 of the same Code, in determining which Criminal Code – the one in force at the material time or the Criminal Code of 1995 – was the more favourable to the applicant (see paragraph 11 above). In these circumstances, contrary to what the Government have suggested, the fact that the applicant did not challenge the decision of the Audiencia Nacional of 15 February 2001 fixing the date on which she would have finished serving her sentence ( liquidación de condena ) at 27 June 2017 is not decisive, as that decision did not take into account the remissions of sentence already earned and was therefore unrelated to the question of how remissions of sentence should be applied.",
"101. The Court further notes that remissions of sentence for work done in detention were expressly provided for by statutory law (Article 100 of the Criminal Code of 1973), and not by regulations (compare Kafkaris, cited above). Moreover, it was in the same Code that the sentences were prescribed and the remissions of sentence were provided for. The Court also notes that such remissions of sentence gave rise to substantial reductions of the term to be served – up to a third of the total sentence – unlike release on licence, which simply provided for improved or more lenient conditions of execution of the sentence (see, for example, Hogben and Uttley, both cited above; see also the dissenting opinion of Judge A. Asua Batarrita appended to judgment no. 40/2012 of the Constitutional Court, paragraph 53 above). After deduction of the remissions of sentence for work done in detention periodically approved by the judge responsible for the execution of sentences ( Juez de Vigilancia Penitenciaria ), the sentence was fully and finally discharged on the date of release approved by the sentencing court. Furthermore, unlike other measures that affected the execution of the sentence, the right to remissions of sentence for work done in detention was not subject to the discretion of the judge responsible for the execution of sentences: the latter’s task was to fix the remissions of sentence by simply applying the law, on the basis of proposals made by the prison authorities, without considering such criteria as how dangerous the prisoner was considered to be, or his or her prospects of reintegration (see paragraph 53 above; compare Boulois v. Luxembourg [GC], no. 37575/04, §§ 98-99, ECHR 2012, and Macedo da Costa v. Luxembourg (dec.), no. 26619/07, 5 June 2012). It should be noted in this connection that Article 100 of the Criminal Code of 1973 provided for the automatic reduction of the term of imprisonment for work done in detention, except in two specific cases: when the prisoner escaped or attempted to escape, and when the prisoner misbehaved (which, according to Article 65 of the 1956 Prison Regulations, meant committing two or more serious or very serious breaches of discipline; see paragraph 26 above). Even in these two cases, remissions of sentence already allowed by the judge could not be taken away retroactively, as days of remission of sentence already granted were deemed to have been served and formed part of the prisoner’s legally acquired rights (see paragraphs 26 and 45 above). The present case should be distinguished in this respect from Kafkaris, where the five years’ remission of sentence granted to life prisoners at the beginning of their incarceration was conditional on their good conduct (see Kafkaris, cited above, §§ 16 and 65).",
"102. The Court also considers it significant that, although the Criminal Code of 1995 did away with remissions of sentence for work done in detention for people convicted in the future, its transitional provisions authorised prisoners convicted under the old Criminal Code of 1973 – like the applicant – to continue to enjoy the benefits of the scheme if it was to their advantage (see paragraph 30 above). Law no. 7/2003, on the other hand, introduced harsher conditions of release on licence, even for prisoners convicted before its entry into force (see paragraph 34 above). The Court infers from this that in opting, as a transitional measure, to maintain the effects of the rules concerning remissions of sentence for work done in detention and for the purposes of determining the most lenient criminal law, the Spanish legislature considered those rules to be part of substantive criminal law, that is to say of the provisions which affected the actual fixing of the sentence, not just its execution.",
"103. In the light of the foregoing the Grand Chamber considers, like the Chamber, that at the time when the applicant committed the offences that led to her prosecution and when the decision to combine the sentences and fix a maximum prison term was taken, the relevant Spanish law, taken as a whole, including the case-law, was formulated with sufficient precision to enable the applicant to discern, to a degree that was reasonable in the circumstances, the scope of the penalty imposed on her, regard being had to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973 and the remissions of sentence for work done in detention provided for in Article 100 of the same Code (contrast Kafkaris, cited above, § 150). The penalty imposed on the applicant thus amounted to a maximum of thirty years’ imprisonment, and any remissions of sentence for work done in detention would be deducted from that maximum penalty.",
"(b) Whether the application of the “Parot doctrine” to the applicant altered only the means of execution of the penalty or its actual scope",
"104. The Court must now determine whether the application of the “Parot doctrine” to the applicant concerned only the manner of execution of the penalty imposed or, on the contrary, affected its scope. It notes that in its decisions of 19 May and 23 June 2008, the court that convicted the applicant – that is, the Audiencia Nacional – rejected the proposal by the prison authorities to set 2 July 2008 as the date of the applicant’s final release, based on the old method of applying remissions of sentence (see paragraphs 17, 18 and 20 above). Relying on the “Parot doctrine” established in judgment no. 197/2006, given by the Supreme Court on 28 February 2006 – well after the offences had been committed, the sentences combined and a maximum term of imprisonment fixed – the Audiencia Nacional moved the date back to 27 June 2017 (see paragraph 20 above). The Court notes that in judgment no. 197/2006, the Supreme Court departed from the interpretation it had adopted in a previous judgment of 1994 (see paragraph 40 above). The majority of the Supreme Court considered that the new rule by which remissions of sentence for work done in detention were to be applied to each of the individual sentences – rather than to the thirty-year maximum term as previously – was more in conformity with the actual wording of the provisions of the 1973 Criminal Code, which distinguished between the “sentence” ( pena ) and the “term to be served” ( condena ).",
"105. While the Court readily accepts that the domestic courts are the best placed to interpret and apply domestic law, it reiterates that their interpretation must nevertheless be in keeping with the principle, embodied in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty.",
"106. The Court also notes that the calculation of the remissions of sentence for work done in detention by the applicant – that is to say, the number of days worked in detention and the number of days’ remission deductible from her sentence – was never in dispute. As determined by the prison authorities, the duration of these remissions of sentence – 3,282 days in all – was accepted by all the courts which handled the case. For example, in its decision applying the Supreme Court’s “Parot doctrine”, the Audiencia Nacional did not change the quantum of the remissions of sentence granted to the applicant for work done in detention. The decision did not concern whether she deserved the remissions, for example in view of her conduct or circumstances relating to the execution of her sentence. The aim of the decision was to determine the element of the penalty to which the remissions of sentence should be applied.",
"107. The Court notes that the application of the “Parot doctrine” to the applicant’s situation deprived of any useful effect the remissions of sentence for work done in detention to which she was entitled by law and in accordance with final decisions by the judges responsible for the execution of sentences. In other words, the applicant was initially sentenced to a number of lengthy terms of imprisonment, which were combined and limited to an effective term of thirty years, on which the remissions of sentence to which she was meant to be entitled had no effect whatsoever. It is significant that the Government have been unable to specify whether the remissions of sentence granted to the applicant for work done in detention have had – or will have – any effect at all on the duration of her incarceration.",
"108. That being so, although the Court agrees with the Government that arrangements for granting adjustments of sentence as such fall outside the scope of Article 7, it considers that the way in which the provisions of the Criminal Code of 1973 were applied in the present case went beyond mere prison policy.",
"109. Regard being had to the foregoing and to Spanish law in general, the Court considers that the recourse in the present case to the new approach to the application of remissions of sentence for work done in detention introduced by the “Parot doctrine” cannot be regarded as a measure relating solely to the execution of the penalty imposed on the applicant as the Government have argued. This measure taken by the court that convicted the applicant also led to the redefinition of the scope of the “penalty” imposed. As a result of the “Parot doctrine”, the maximum term of thirty years’ imprisonment ceased to be an independent sentence to which remissions of sentence for work done in detention were applied, and instead became a thirty-year sentence to which no such remissions would effectively be applied.",
"110. The measure in issue accordingly falls within the scope of the last sentence of Article 7 § 1 of the Convention.",
"(c) Whether the “Parot doctrine” was reasonably foreseeable",
"111. The Court notes that the Audiencia Nacional used the new method of application of remissions of sentence for work done in detention introduced by the “Parot doctrine” rather than the method in use at the time of the commission of the offences and the applicant’s conviction, thus depriving her of any real prospect of benefiting from the remissions of sentence to which she was nevertheless entitled in accordance with the law.",
"112. This change in the system for applying remissions of sentence was the result of the Supreme Court’s departure from previous case-law, as opposed to a change in legislation. That being so, it remains to be determined whether the new interpretation of the relevant provisions of the Criminal Code of 1973, long after the offences were committed and the applicant convicted – and even after the decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment – was reasonably foreseeable for the applicant, that is to say whether it could be considered to reflect a perceptible line of case-law development (see S.W. v. the United Kingdom, § 43, and C.R. v. the United Kingdom, § 41, both cited above). To establish that, the Court must examine whether the applicant could have foreseen at the time of her conviction, and also when she was notified of the decision to combine the sentences and set a maximum term of imprisonment – if need be, after taking appropriate legal advice – that the penalty imposed might turn into thirty years of actual imprisonment, with no reduction for the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973.",
"In so doing it must have regard to the law applicable at the time, and in particular the judicial and administrative practice prior to the “Parot doctrine” introduced by the Supreme Court’s judgment of 28 February 2006. The Court observes in this connection that the only relevant precedent cited in that judgment was a judgment of 8 March 1994 in which the Supreme Court had taken the opposite approach, namely that the maximum prison term of thirty years was a “new, independent sentence” to which all the remissions of sentence provided for by law were to be applied (see paragraph 36 above). In the Court’s view, the fact that a single judgment does not serve as an authority under Spanish law (see paragraph 40 above) cannot be decisive. What is more, as the dissenting judges observed in the judgment of 28 February 2006, an agreement adopted by the plenary Supreme Court on 18 July 1996 had established that remissions of sentence granted under the Criminal Code of 1973 were to be taken into account when comparing the sentences to be served under the new and the old Criminal Codes respectively (see paragraphs 37 and 41 above). Following the entry into force of the Criminal Code of 1995, the Spanish courts were required to use this criterion, on a case-by-case basis, to determine which Criminal Code was the more lenient, taking into account the effects on sentencing of the system of remissions of sentence for work done in detention.",
"113. The Government themselves have admitted that it was the practice of the prison and judicial authorities prior to the “Parot doctrine” to apply remissions of sentence for work done in detention to the maximum term of thirty years’ imprisonment, even though the first decision of the Supreme Court on the question was not delivered until 1994.",
"114. The Court also attaches importance to the fact that the Supreme Court did not depart from its case-law until 2006, ten years after the law concerned had been repealed. In acting thus the Supreme Court gave a new interpretation of the provisions of a law that was no longer in force, namely the Criminal Code of 1973, which had been superseded by the Criminal Code of 1995. In addition, as indicated above (see paragraph 102), the transitional provisions of the Criminal Code of 1995 were intended to maintain the effects of the system of remissions of sentence for work done in detention set in place by the Criminal Code of 1973 in respect of people convicted under that Code – like the applicant – precisely so as to comply with the rules prohibiting retroactive application of the more stringent criminal law. However, the Supreme Court’s new interpretation, which rendered ineffective any remissions of sentence already granted, led in practice to the applicant and other people in similar situations being deprived of the benefits of the remission system.",
"115. Moreover, the Court cannot accept the Government’s argument that the Supreme Court’s interpretation was foreseeable because it was more in keeping with the letter of the Criminal Code of 1973. The Court reiterates that its task is not to determine how the provisions of that Code should be interpreted in the domestic law, but rather to examine whether the new interpretation was reasonably foreseeable for the applicant under the “law” applicable at the material time. That “law” – in the substantive sense in which the term is used in the Convention, which includes unwritten law or case-law – had been applied consistently by the prison and judicial authorities for many years, until the “Parot doctrine” set a new course. Unlike the judicial interpretations involved in S.W. v. the United Kingdom and C.R. v. the United Kingdom (both cited above), the departure from case-law in the present case did not amount to an interpretation of criminal law pursuing a perceptible line of case-law development.",
"116. Lastly, the Court is of the view that the criminal-policy considerations relied on by the Supreme Court cannot suffice to justify such a departure from case-law. While the Court accepts that the Supreme Court did not retroactively apply Law no. 7/2003 amending the Criminal Code of 1995, it is clear from the reasoning given by the Supreme Court that its aim was the same as that of the above-mentioned law, namely to guarantee the full and effective execution of the maximum legal term of imprisonment by people serving several long sentences (see paragraph 33 above). In this connection, while the Court accepts that the States are free to determine their own criminal policy, for example by increasing the penalties applicable to criminal offences (see Achour, cited above, § 44), they must comply with the requirements of Article 7 in doing so ( Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 75, ECHR 2013). On this point, the Court reiterates that Article 7 of the Convention unconditionally prohibits the retrospective application of the criminal law where it is to an accused’s disadvantage.",
"117. In the light of the foregoing, the Court considers that at the time when the applicant was convicted and at the time when she was notified of the decision to combine her sentences and set a maximum term of imprisonment, there was no indication of any perceptible line of case-law development in keeping with the Supreme Court’s judgment of 28 February 2006. The applicant therefore had no reason to believe that the Supreme Court would depart from its previous case-law and that the Audiencia Nacional, as a result, would apply the remissions of sentence granted to her not in relation to the maximum thirty-year term of imprisonment to be served, but successively to each of the sentences she had received. As the Court has noted above (see paragraphs 109 and 111), this departure from the case-law had the effect of modifying the scope of the penalty imposed, to the applicant’s detriment.",
"118. It follows that there has been a violation of Article 7 of the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"119. The applicant alleged that, since 3 July 2008, she had been kept in detention in breach of the requirements of “lawfulness” and “a procedure prescribed by law”. She relied on Article 5 of the Convention, the relevant parts of which read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"...”",
"A. The Chamber judgment",
"120. In its judgment the Chamber stated, in the light of the considerations that had led it to find a violation of Article 7 of the Convention, that at the material time the applicant could not have foreseen to a reasonable degree that the effective duration of her term of imprisonment would be increased by almost nine years, and that following a departure from case-law a new method of applying remissions of sentence would be applied to her retroactively. The Chamber accordingly found that, since 3 July 2008, the applicant’s detention had not been “lawful” and was therefore in violation of Article 5 § 1 of the Convention (see paragraph 75 of the judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"121. The applicant submitted that Article 5 § 1 of the Convention also enshrined requirements as to the quality of the law, which meant that a domestic law authorising deprivation of liberty had to be sufficiently clear and foreseeable in its application. She further submitted that Article 5 applied to the right of a convicted person to early release where the legal provisions establishing the right did not make it conditional or discretionary but applicable to anyone who met the legal conditions of entitlement (see Grava, cited above, §§ 31-46), irrespective of whether the measure related to the sentence proper or to its execution for the purposes of Article 7. She argued that the extension of the sentence and/or of its effective duration had not been reasonably foreseeable and, in the alternative, that the substance of the penalty imposed and/or the manner of its execution and/or its effective duration had not been reasonably foreseeable either.",
"2. The Government",
"122. The Government submitted that the Chamber judgment had departed from the Court’s case-law concerning Article 5 of the Convention, in particular the Kafkaris and M. v. Germany judgments cited above. They argued that in the present case there was a perfect causal link between the penalties imposed for the numerous serious crimes the applicant had committed and the length of time she had spent in prison. The judgments by which she had been convicted had stated that she would have to spend thirty years in prison, as had the decision of 2000 to combine the sentences and fix a maximum term of imprisonment and the decision of 2001 setting the date of the applicant’s release at 27 June 2017.",
"C. The Court’s assessment",
"1. Principles established by the Court’s case-law",
"123. Sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see M. v. Germany, cited above, § 86). Article 5 § 1 (a) permits “the lawful detention of a person after conviction by a competent court”. Having regard to the French text, the word “conviction”, for the purposes of Article 5 § 1 (a), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi v. Italy, 6 November 1980, § 100, Series A no. 39), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).",
"124. Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from, “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the two (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002 ‑ IV; Kafkaris, cited above, § 117; and M. v. Germany, cited above, § 88). However, with the passage of time the link between the initial conviction and the extension of the deprivation of liberty gradually becomes less strong (see Van Droogenbroeck, cited above, § 40). The causal link required under sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release, or to redetain a person, was based on grounds that were inconsistent with the objectives of the sentencing court, or on an assessment that was unreasonable in terms of those objectives. Where that was the case a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (see Weeks, cited above, § 49, and Grosskopf v. Germany, no. 24478/03, § 44, 21 October 2010).",
"125. It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris, cited above, § 116, and M. v. Germany, cited above, § 90). The “quality of the law” implies that where a national law authorises a deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996 ‑ III). The standard of “lawfulness” set by the Convention requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000 ‑ III; M. v. Germany, cited above, § 90; and Oshurko v. Ukraine, no. 33108/05, § 98, 8 September 2011). Where deprivation of liberty is concerned, it is essential that the domestic law define clearly the conditions for detention (see Creangă v. Romania [GC], no. 29226/03, § 120, 23 February 2012).",
"126. Lastly, the Court reiterates that although Article 5 § 1 (a) of the Convention does not guarantee, in itself, a prisoner’s right to early release, be it conditional or final (see Kalan v. Turkey (dec.), no. 73561/01, 2 October 2001, and Çelikkaya v. Turkey (dec.), no. 34026/03, 1 June 2010), the situation may differ when the competent authorities, having no discretionary power, are obliged to apply such a measure to any individual who meets the conditions of entitlement laid down by law (see Grava, cited above, § 43; Pilla v. Italy, no. 64088/00, § 41, 2 March 2006; and Şahin Karataş v. Turkey, no. 16110/03, § 37, 17 June 2008).",
"2. Application of the above principles to the present case",
"127. The Court observes first of all that as the applicant rightly pointed out, the distinction made for the purposes of Article 7 of the Convention between the “penalty” and the “execution” of the penalty is not decisive in connection with Article 5 § 1 (a). Measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5 § 1, as the actual duration of deprivation of liberty depends on their application, among other things (see, for example, Grava, cited above, §§ 45 and 51, and, concerning the transfer of prisoners between States, Szabó v. Sweden (dec.), no. 28578/03, ECHR 2006-VIII). While Article 7 applies to the “penalty” as imposed by the sentencing court, Article 5 applies to the resulting detention.",
"128. In the present case the Court has no doubt that the applicant was convicted by a competent court in accordance with a procedure prescribed by law, within the meaning of Article 5 § 1 (a) of the Convention. Indeed, the applicant did not dispute that her detention was legal until 2 July 2008, the date initially proposed by the prison authorities for her final release. The Court must therefore establish whether the applicant’s continued detention after that date was “lawful” within the meaning of Article 5 § 1 of the Convention.",
"129. The Court notes that in eight different sets of proceedings the Audiencia Nacional found the applicant guilty of various offences linked to terrorist attacks. In application of the Criminal Code in force at the time when the offences were committed, the applicant was given prison sentences totalling over 3,000 years (see paragraphs 11-12 above). In most of those judgments, as well as in its decision of 30 November 2000 to combine the sentences and set a maximum term of imprisonment, the Audiencia Nacional indicated that the applicant was to serve a maximum term of thirty years’ imprisonment in accordance with Article 70.2 of the Criminal Code of 1973 (see paragraphs 11 and 14 above). The Court notes that the applicant’s detention has not yet attained that maximum term. There is clearly a causal link between the applicant’s convictions and her continuing detention after 2 July 2008, which resulted respectively from the guilty verdicts and the maximum thirty-year term of imprisonment fixed on 30 November 2000 (see, mutatis mutandis, Kafkaris, § 120).",
"130. However, the Court must examine whether the “law” authorising the applicant’s continuing detention beyond 2 July 2008 was sufficiently foreseeable in its application. Compliance with the foreseeability requirement must be examined with regard to the “law” in force at the time of the initial conviction and throughout the subsequent period of detention. In the light of the considerations that led it to find a violation of Article 7 of the Convention, the Court considers that at the time when the applicant was convicted, when she worked in detention and when she was notified of the decision to combine the sentences and set a maximum term of imprisonment, she could not have foreseen to a reasonable degree that the method used to apply remissions of sentence for work done in detention would change as a result of a departure from case-law by the Supreme Court in 2006, and that the new approach would be applied to her.",
"131. The Court notes that the application of the departure from case-law to the applicant’s situation effectively delayed the date of her release by almost nine years. She has therefore served a longer term of imprisonment than she should have served under the domestic legislation in force at the time of her conviction, taking into account the remissions of sentence she had already been granted in conformity with the law (see, mutatis mutandis, Grava, cited above, § 45).",
"132. The Court concludes that since 3 July 2008 the applicant’s detention has not been “lawful”, in violation of Article 5 § 1 of the Convention.",
"III. ARTICLE 46 OF THE CONVENTION",
"133. The relevant parts of Article 46 of the Convention read as follows:",
"“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.",
"2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.",
"...”",
"A. The Chamber judgment",
"134. Having regard to the particular circumstances of the case and to the urgent need to put an end to the violation of Article 7 and Article 5 § 1 of the Convention, the Chamber considered it incumbent on the respondent State to ensure that the applicant was released at the earliest possible date (see paragraph 83 of the judgment).",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"135. The applicant argued that the fact that the Court had never made use in a similar case of its exceptional power to indicate individual measures was irrelevant. She submitted that the Court had the power to indicate the measures to be taken and that when the nature of the violation found did not leave “any real choice as to the measures required to remedy it”, it could decide to indicate only one such measure. She also criticised the Government for not having indicated which remedies other than her release were available should the Court find violations of Articles 5 and 7 of the Convention.",
"2. The Government",
"136. The Government submitted that in similar cases concerning the retroactive application of legislative changes resulting in the extension of a convicted person’s detention the Court had never used its exceptional power to indicate individual measures for the execution of its judgment (they referred to M. v. Germany, cited above). In this connection they pointed out that, although it had found a violation of Article 7 in Kafkaris (cited above) because the legislation failed to meet the requisite standard, the Court had not indicated any measure concerning the release of the applicant, who was still in prison when the judgment was delivered (the Government also referred to Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011).",
"C. The Court’s assessment",
"137. By virtue of Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. This means that when the Court finds a violation, the respondent State is under a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to take individual and/or, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among many other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII; Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 85, ECHR 2009; and Scoppola (no. 2), cited above, § 147).",
"138. It is true that in principle the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta, cited above, § 249). However, in certain particular situations, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation that gave rise to the finding of a violation (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004 ‑ V, and Stanev v. Bulgaria [GC], no. 36760/06, §§ 255 ‑ 58, ECHR 2012). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze v. Georgia [GC], no. 71503/01, §§ 202 ‑ 03, ECHR 2004 ‑ II; Aleksanyan v. Russia, no. 46468/06, §§ 239 ‑ 40, 22 December 2008; and Fatullayev v. Azerbaijan, no. 40984/07, §§ 176-77, 22 April 2010).",
"139. The Grand Chamber agrees with the Chamber’s finding and considers that the present case belongs to this last-mentioned category. Having regard to the particular circumstances of the case and to the urgent need to put an end to the violations of the Convention it has found, it considers it incumbent on the respondent State to ensure that the applicant is released at the earliest possible date.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"140. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"141. The applicant sought compensation for the non-pecuniary damage allegedly suffered and also the reimbursement of the costs and expenses incurred. The Government contested the claim in respect of non-pecuniary damage.",
"A. The Chamber judgment",
"142. In its judgment the Chamber awarded the applicant 30,000 euros (EUR) in respect of non-pecuniary damage. It also awarded her EUR 1,500 for costs and expenses incurred in the proceedings before it.",
"B. The parties’ submissions to the Grand Chamber",
"1. The applicant",
"143. The applicant claimed EUR 60,000 for the non-pecuniary damage she had allegedly sustained, and the reimbursement of the costs and expenses incurred in the proceedings before the Grand Chamber, in addition to those already awarded by the Chamber. She submitted no receipts for the costs and expenses incurred in the proceedings before the Grand Chamber.",
"2. The Government",
"144. The Government submitted that an award of compensation by the Court to a person convicted of acts as murderous as those committed by the applicant – who had been found guilty in judicial proceedings that met all the requirements of a fair trial – would be difficult to understand. They argued that in the Kafkaris judgment (cited above), “having regard to all the circumstances of the case”, the Court had considered that the finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered.",
"C. The Court’s assessment",
"1. Non-pecuniary damage",
"145. The Court accepts that in the Kafkaris judgment it considered that a finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered. In that judgment, however, it had found no violation of Article 5 § 1, and its finding of a violation of Article 7 concerned only the quality of the law. The present case is different, the Court having found that the applicant’s continued detention after 2 July 2008 is in breach of Article 5 § 1, and that she has had to serve a heavier penalty than the one that was imposed, in disregard of Article 7 of the Convention (see, mutatis mutandis, M. v. Germany, cited above, § 141). This must have caused the applicant non-pecuniary damage which cannot be compensated solely by these findings of violations.",
"146. Having regard to all the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 30,000 under this head.",
"2. Costs and expenses",
"147. According to the Court’s case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI).",
"148. The Grand Chamber notes that the applicant was awarded EUR 1,500 for costs and expenses incurred in the proceedings before the Chamber. As she has submitted no documentary evidence of the costs and expenses incurred in the proceedings before the Grand Chamber (compare Tănase v. Moldova [GC], no. 7/08, § 193, ECHR 2010), she should be awarded EUR 1,500 in respect of all costs and expenses.",
"3. Default interest",
"149. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
292 | Arrozpide Sarasola and Others v. Spain | 23 October 2018 | This case concerned the calculation of the maximum length of prison terms to be served in Spain by members of the terrorist organisation ETA and the question whether time already served in France should be taken into account. The applicants complained in particular of what they saw as the retrospective application of new Supreme Court case-law and of a new law which had come into force after their conviction, which they submitted had extended the actual length of their sentences. | The Court observed in particular that the decisions of the Spanish Supreme Court had not changed the maximum length of the total term of imprisonment, which had always been set at thirty years. The discrepancies between the various courts concerned as to the possibility of combining sentences had lasted for only about ten months, until the adoption by the Supreme Court of its leading judgment, which had settled the matter in the negative. The solutions adopted in the applicants’ cases had merely followed the judgment of the plenary formation of the Supreme Court. There had thus been no violation of Article 7 (no punishment without law) of the Convention. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"THE CIRCUMSTANCES OF THE CASE",
"5. The applicants were born in 1948, 1956 and 1953 respectively. The first applicant was detained in Topas Prison when his application was lodged with the Court. The third applicant is detained in Zuera Prison. The second applicant was living in Ciboure (France) when his application was lodged with the Court.",
"Application no. 65101/16",
"6. On 30 September 1987 the first applicant was arrested in France.",
"7. On 3 October 1987 he was placed in detention in France for belonging to the ETA terrorist organisation.",
"8. On 4 July 1990 the Paris Regional Court sentenced him to ten years ’ imprisonment on charges of criminal conspiracy, breach of the law on arms and explosives, breach of the Electronic Mail and Communications Code and an offence related to individual or collective action aimed at creating public disorder through intimidation or terror. That conviction concerned offences committed in France in 1987. The first applicant served his sentence up until 3 October 1995, after a full prison term of seven years.",
"9. The first applicant then remained in detention in France, for the purposes of extradition, until 21 December 2000, when he was surrendered to the Spanish judicial authorities pursuant to an extradition request.",
"10. In Spain, the first applicant was sentenced to more than three thousand years ’ imprisonment after eleven separate sets of criminal proceedings before the Audiencia Nacional. He was convicted of several terrorist attacks and murders committed in Spain between 1980 and 1987 by the ETA terrorist organisation, including the booby-trapped car explosion on the Plaza República Dominicana in Madrid on 14 July 1986 ( killing twelve Guardia Civil officers and injuring forty-four Guardia Civil officers and seventeen passers-by ) and the car-bomb attack on the Hipercor shopping centre in Barcelona on 19 June 1987 ( killing twenty-one people and injuring forty-six others ).",
"11. Once the convictions in Spain had become final by decision of 7 March 2006, the Audiencia Nacional noted that the chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed (see “ relevant domestic law and practice” in the case of Del Río Prada v. Spain [GC], no. 42750/09, §§ 24-25, ECHR 2013). The Audiencia Nacional fixed the maximum term to be served by the first applicant in respect of all his prison sentences in Spain combined at thirty years.",
"12. On 27 June 2006 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 30 January 2030.",
"13. At the first applicant ’ s request, the period of detention in France for the purposes of extradition ( from 3 October 1995 to 21 December 2000) was deducted from the maximum prison term by decision of 24 May 2011 of the Audiencia Nacional. Consequently, the prison authorities recalculated the prison term and fixed the date on which he would have finished serving his sentence for 24 September 2025. That calculation was confirmed by an order issued on 27 September 2011 by the Audiencia Nacional.",
"14. Following the judgment delivered by the Court in the case of Del Río Prada, cited above, the first applicant sought and ultimately obtained a recalculation of his prison term, fixing the date of his release on 21 July 2020, which was approved by decision of 28 February 2014. The remissions of sentence to which the applicant was entitled were deducted from the maximum term of thirty years ’ imprisonment, rather than from each of the sentences separately ( see, as regards the consequences of the Del Río Prada judgment for other convicted persons, Lorenzo Vázquez v. Spain ( dec. ), no. 30502/12, §§ 19-24, 19 January 2016), for the purposes of determining his release date.",
"15. On 25 March 2014 the first applicant requested the deduction of the prison sentence imposed by the French judicial authorities and served in France from the maximum thirty-year term established in Spain. He relied on judgment no. 186/2014 of 13 March 2014 of the Supreme Court, which had accepted the possibility of taking into consideration a sentence served in France for the purposes of grouping together sentences on the basis of Framework Decision no. 2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings ( “ Framework Decision no. 2008/675/JAI ” ) ( see “ relevant domestic and EU law and practice ”, paragraphs 73-77 and 83 below ).",
"16. By decision of 2 December 2014 the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union ( “ the EU ” ) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. The Audiencia Nacional took the view that a previous conviction handed down in another Member State should therefore be taken into account in calculating the maximum prison terms provided in criminal law.",
"17. The public prosecutor ’ s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the first applicant requested an application for a preliminary ruling from the Court of Justice of the European Union ( “ the CJEU ” ) on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that allowing the appeal on points of law would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection.",
"18. On 4 December 2014, while the appeal on points of law was pending before the Supreme Court, the Audiencia Nacional recalculated the sentence to be served by the first applicant under the impugned decision. It noted that pursuant to that decision, and taking account of the sentence served in France for the purposes of grouping the sentences together, the applicant ought to have finished serving his sentence on 27 January 2013.",
"19. On 21 December 2014 the first applicant was released from prison. He was placed in pre-trial detention on 20 January 2015 in relation to offences committed in 1986 and 1987 for which he had not yet stood trial.",
"20. On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping sentences together ( acumulación de penas ). The Supreme Court had followed the same approach as in its leading judgment no. 874/2014 of 27 January 2015, by which the Plenary Criminal Division had decided not to take account of sentences imposed and served in France in tandem with sentences imposed in Spain for the purposes of determining the maximum prison term ( see “ Relevant law and practice at the domestic and EU levels ”, paragraph 69 below ).",
"21. Referring to the reasoning set out in its leading judgment no. 874/2014 of 27 January 2015, the Supreme Court reiterated all the applicable case-law and legislation concerning the consideration of sentences imposed abroad. It identified three different periods in this regard: the first period up until 15 August 2008, the date of publication of Framework Decision no. 2008/675/JAI; the second extending between that date and the date of publication of Organic Law no. 7/2014 of 12 November 2014 on the exchange of information from police records and taking account of criminal court decisions in the EU, which had come into force on 3 December 2014; and lastly, the third period from the date of publication of the aforementioned organic law to the present day. As regards the first period, the Supreme Court noted that the Spanish courts had only agreed to take account of sentences imposed abroad alongside those imposed in Spain where the sentence imposed abroad was to be served in Spain under an international treaty on the execution of criminal judgments ( for example a bilateral treaty or the Council of Europe ’ s Convention on the Transfer of Convicted persons ). On the other hand, it pointed out that when the sentence had already been served abroad, there was no reason to consider it in connection with sentences to be served in Spain for the purposes of implementing the maximum prison term ( judgment no. 2117/2002 of 18 December 2002). Concerning the second period (mid - August 2008 to November 2014), the Supreme Court observed that under the Framework Decision itself ( Article 3 § 5), it was not compulsory for States to take account of a sentence imposed in another Member State for the purposes of applying the maximum prison term set out in the Penal Code. The court added, however, that as it transpired from its judgment no. 186/2014 of 13 March 2014, in the absence of domestic legislation transposing the Framework Decision or of rules expressly governing this matter, the rules in force should be interpreted in a manner as compatible as possible with the content of European regulations, provided that such interpretation was not contra legem where domestic law was concerned. It pointed out that it was in that context that judgment no. 186/2014, which had been enacted before the transposition of the Framework Decision, had agreed to take into consideration a sentence imposed in France for the purposes of grouping it together with sentences subsequently imposed in Spain. Finally, as regards the third period, the Supreme Court noted that Organic Law no. 7/2014 had incorporated the Framework Decision into Spanish law, while expressly ruling out the effects of sentences imposed in another Member State in calculating the length of sentences given in Spain for offences committed before any sentences handed down by the courts of the other Member State ( section 14 ( 2 ) of Organic Law no. 7/2014 ). It considered that under those circumstances, even though the aim was not to apply that law directly, its existence meant that it was no longer possible to interpret Spanish law ( Article 70.2 of the Penal Code and section 988 of the Criminal Procedure Act ) in the previously accepted sense, that is to say in favour of taking into account sentences imposed in another Member State for the purposes of calculating the maximum prison term. Given that the Spanish State, through the intermediary of its legislature, had expressed its choice in the transposition of the Framework Decision, ruling out any consideration of sentences imposed in another Member State, the previous interpretation was no longer possible, because it was no longer praeter legem but contra legem.",
"22. Furthermore, in its judgment, the Supreme Court had considered whether Organic Law no. 7/2014 was compatible with the Framework Decision, and concluded that the exceptions provided for in the Consideration of Sentences imposed in other Member States Act were authorised by the optional exception set out in Article 3 § 5 of the Framework Decision.",
"23. The Supreme Court also considered that the new interpretation of the law set out in its judgment no. 874/2014 did not contravene Article 7 of the Convention read in the light of the Court ’ s case-law. It took the view that the change of interpretation could not be compared with the reversal of case-law which had given rise to the case of Del Río Prada. Firstly, the Supreme Court held that it would be difficult for an interpretation based on such a legal instrument as a Framework Decision, which itself introduced optional exceptions for its transposition, to give rise to legitimate expectations. Secondly, it considered that it was a case of a pre- established case-law or interpretative practice laying down the general rule of consideration of sentences already served abroad. Thirdly, it pointed out that judgment no. 186/2014 of 13 March 2014 had been the first decision in which it had been called upon to interpret the Framework Decision, at a time when the commonly accepted practice of the courts in similar cases had been to refuse to take account of sentences served abroad. Fourthly, the court emphasised that in the absence of any established case-law, the first applicant could not, when he had been serving his prison sentence, have legitimately expected that the sentence already served in France would be taken into consideration for the purposes of applying the maximum prison term in Spain. It concluded that even though the impugned interpretation differed from that adopted in judgment no. 186/2014, that change was not such as to infringe any expectation on the first applicant ’ s part based on reasonable foreseeability. Moreover, it considered that that foreseeability could never have existed either at the time the first applicant had committed the offences in France (1987) or at the time the decision was taken to group together sentences in Spain (2006), since the Framework Decision had not yet been adopted then and no judicial precedent had supported the taking into account of sentences served abroad. Finally, the Supreme Court held that the first applicant must have known that the Framework Decision had to be implemented at the domestic level, and pointed out that such transposition would determine whether or not sentences imposed in another Member State could be taken into account under the optional exception set forth in Article 3 § 5 of the Framework Decision itself. It noted that ultimately, Spanish law as a whole, including the relevant case-law, had not been drawn up sufficiently precisely for the argument advanced by the applicant to be accepted as established and evident.",
"24. As regards the first applicant ’ s desire to request a preliminary ruling from the CJEU, the Supreme Court held that that was unnecessary in view of the clear wording of Article 3 § 5 of the Framework Decision read in its context and in the light of the procedure for adopting that instrument.",
"25. The Supreme Court had adopted its judgment by four votes to one. One judge had appended a dissenting opinion submitting that the exceptions laid down in Organic Law no. 7/2014 on taking account of sentences imposed in another Member State were contrary to the spirit of the Framework Decision and destroyed the very essence of the equivalence objective which that instrument was supposed to enshrine.",
"26. On 13 March 2015 the Audiencia Nacional took note of the communication of the Supreme Court judgment and of the latter ’ s annulment of the 2 December 2014 decision on grouping sentences together in respect of the first applicant, thus rendering inoperative the latest calculation of the prison term to be served. It stated that the first applicant now had to continue serving his prison sentence.",
"27. On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the first applicant ’ s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days.",
"28. On 15 April 2015 the first applicant filed an action ( incidente de nulidad ) to set aside the judgment of the Supreme Court on the basis of section 241 ( 1 ) of the Organic Law on the Judiciary ( “ LOPJ ” ) ( see “ Relevant law and practice at the domestic and EU levels ”, paragraph 69 below ), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit.",
"29. On 25 May 2015 the first applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights.",
"30. On 26 May 2015 the first applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 ( equality principle ), Article 17 ( right to liberty ), Article 24 ( right to effective judicial protection) and Article 25 ( principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court.",
"31. At a subsequent date (27 May 2015 according to the applicant and 8 June 2015 according to the Government ) the first applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant ’ s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241 ( 1 ) LOPJ, the action should be declared inadmissible.",
"32. On 24 May 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non- exhaustion of existing legal remedies, relying on section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 ( 1 ) LOPJ.",
"B. Application no. 73789/16",
"33. The second applicant was arrested in France on 18 November 1990. He was subsequently placed in pre-trial detention.",
"34. By judgment of 11 March 1994 the Paris Regional Court sentenced him to seven years ’ imprisonment on charges of criminal conspiracy ( terrorism ), transport of arms and munitions and use of forged documents, in respect of offences committed in French territory in 1990. In its decision the court noted that the applicant was a member of the ETA.",
"35. The second applicant served that sentence in France up until the date of his extradition to Spain on 11 March 1996.",
"36. By judgment of 31 July 1997 the Audiencia Nacional sentenced the second applicant to a forty- six years ’ imprisonment for two attempted murders and damage to property, in connection with a terrorist attack on a bar in Eskoriaza ( Guipuscoa Province ) on 22 May 1987. The judgment stated that regard would be had to the upper limit set out in Article 70.2 of the 1973 Penal Code, which provided for a maximum prison term of thirty years. The judgment was upheld by the Supreme Court on 12 June 1998 following an appeal on points of law.",
"37. On 18 August 1998 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 3 March 2026. The Audiencia Nacional approved that calculation on 27 August 1998.",
"38. On 20 March 2014 the second applicant requested that the prison sentence imposed by the French judicial authorities and served in France be taken into account in determining the maximum thirty -year prison term set in Spain. He relied on judgment no. 186/2014 of the Supreme Court of 13 March 2014 and Framework Decision no. 2008/675/JAI of 24 July 2008.",
"39. By decision of 2 December 2014 the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account.",
"40. The public prosecutor ’ s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the second applicant requested an application for a preliminary ruling from the CJEU on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that should the appeal on points of law be allowed, that would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection.",
"41. On 2 December 2014 the Audiencia Nacional recalculated the sentence to be served by the second applicant in accordance with the impugned decision. It noted that pursuant to that decision and having taken into account the sentence served in France for the purposes of grouping sentences together, the applicant should have completed his sentence on 24 August 2013. The Audiencia Nacional also had regard to the ordinary remissions of sentence to which the second applicant was entitled and which had to be deducted from the thirty-year limit.",
"42. On 4 December 2014 the Audiencia Nacional confirmed that calculation and the second applicant was released from prison.",
"43. On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping the sentences together. The Supreme Court had followed the same approach as in its cassation judgment concerning the first applicant (see paragraphs 20-24 above), referring to the approach which it had adopted in its leading judgment no. 874/2014 of 27 January 2015. One judge had appended a dissenting opinion to the judgment.",
"44. Also on 10 March 2015, the cassation judgment was communicated to the Audiencia Nacional. The latest calculation of the prison term to be served by the second applicant was rendered inoperative and the previous calculation was reinstated. The Audiencia Nacional therefore fixed the date on which the second applicant would have finished serving his sentence as 16 August 2018 ( liquidación de condena ), and ordered his recall to prison.",
"45. Just as he was to return to prison, the second applicant absconded and remained untraceable. International arrest warrants were issued, and once he had been located, an extradition request was issued to the French State.",
"46. On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the second applicant ’ s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court, to be lodged within thirty working days.",
"47. On 17 April 2015 the second applicant filed an action to set aside the judgment of the Supreme Court on the basis of section 241 (1) of the Organic Law on the judiciary (“LOPJ”), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit.",
"48. On 26 May 2015 the second applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights.",
"49. On the same date the second applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court.",
"50. On 27 May 2015 the second applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant ’ s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241 (1) LOPJ, the action had to be declared inadmissible.",
"51. The second applicant was arrested in France on 7 September 2015. It transpires from the case file that the Government adopted an agreement to request his extradition on 9 October 2015.",
"52. On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non-exhaustion of existing legal remedies, relying on section 44 (1) (a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ.",
"C. Application no. 73902/16",
"53. The third applicant was arrested in France on 29 March 1992 in the framework of an operation against the main ETA leaders.",
"54. By judgment of 19 June 1997, the Paris Regional Court sentenced him to ten years ’ imprisonment on charges, inter alia, of criminal conspiracy, unlawful possession of arms and munitions and use of forged documents, in respect of offences which had been committed in French territory between 1990 and 1992. The third applicant served that sentence in France.",
"55. On 8 February 2000 he was surrendered to the Spanish judicial authorities pursuant to an extradition request.",
"56. In Spain the third applicant was sentenced to over four thousand seven hundred years ’ imprisonment following seventeen separate sets of criminal proceedings before the Audiencia Nacional. He was convicted, inter alia, of several terrorist attacks and murders (twenty-three in all) committed in Spain (Madrid, Zaragoza, Santander and Valencia) between 1987 and 1993.",
"57. On 4 December 2012, once the sentences imposed in Spain had become final, the third applicant requested the grouping together of the sentences for the purposes of determining the maximum prison term to be served ( thirty years ). He did not refer to the sentence served in France.",
"58. By decision of 18 November 2013, the Audiencia Nacional noted that the chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the first applicant in respect of all his prison sentences in Spain combined at thirty years.",
"59. By decision of 11 April 2014, the Audiencia Nacional approved the calculation of the sentence to be served by the third applicant, taking account of the remissions of sentence to which he was entitled. The date on which he would have finished serving his sentence ( liquidación de condena ) was fixed for 13 November 2024.",
"60. On 30 April 2014 the third applicant requested that the prison sentence which he had served in France be taken into account in determining the maximum thirty -year term. He relied in particular on judgment no. 186/2014 of the Supreme Court and Framework Decision no. 2008/675/JAI.",
"61. By decision of 2 December 2014, the Audiencia Nacional ( first section of the Criminal Division ) agreed to deduct the prison term served in France from the maximum term of thirty years ’ imprisonment. The Audiencia relied, in particular, on judgment no. 186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no. 2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account.",
"62. That decision was contested on points of law before the Supreme Court by the public prosecutor ’ s office for the purposes of clarifying the law, and by the third applicant. The latter requested the consideration of the whole sentence imposed in France ( ten years ), encompassing the remissions of sentence given, and not exclusively the time actually spent in prison ( from 29 March 1992 to 7 February 2000 – seven years and eleven months ). In the framework of the cassation proceedings, the third applicant requested that the CJEU be invited to give a preliminary ruling on the basis of Article 267 of the Treaty on the Functioning of the European Union. Furthermore, he complained of an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection.",
"63. On 3 December 2014, the date on which the third applicant would have finished serving his sentence ( liquidación de condena ) was fixed for 21 March 2022, pursuant to the impugned decision and after deduction of the prison sentence served in France from 29 March 1992 to 7 February 2000. Having regard to the remissions of sentence already granted, deductible from the maximum thirty-year term, his final date of release ( licenciamiento definitivo ) was fixed for 5 August 2016.",
"64. On 23 April 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law, holding that there had been no need to take account of the sentence served by the third applicant in France for the purposes of grouping sentences together. The Supreme Court had followed the same approach as in its judgments concerning the first and second applicants (see paragraphs 20-24 above), while also referring to the approach adopted in its leading judgment no. 874/2014 of 27 January 2015. Two judges appended a dissenting opinion to the Supreme Court ’ s judgment. The appeal on points of law lodged by the third applicant was dismissed.",
"65. On 18 May 2015 the judgment of the Supreme Court was communicated to the Audiencia Nacional and served on the third applicant, who was represented by the same solicitor as the first and second applicants. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days.",
"66. On 20 May 2015 the latest calculation of the prison term to be served by the third applicant was rendered inoperative. The previous calculation was re - validated and updated by taking account of the further applicable remissions of sentence. According to that calculation, approved by the Audiencia Nacional on 21 July 2015, the third applicant would have finished serving his sentence ( liquidación de condena ) on 14 March 2024.",
"67. On 26 June 2015 the third applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties ) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the third applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court.",
"68. On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non- exhaustion of existing domestic remedies, relying on section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ.",
"RELEVANT DOMESTIC AND eUROPEAN UNION LAW AND PRACTICE",
"A. Action for annulment",
"69. Section 241 ( 1 ) of the Organic Law on the Judiciary ( “ LOPJ ” ) as amended under the first final provision of Organic Law no. 6/2007 of 24 May 2007 provides :",
"“ As a general rule, actions for the annulment of judicial decisions must be declared inadmissible. In exceptional cases, however, legitimate or potentially legitimate parties may request in writing that judicial decisions be declared null and void on grounds of a violation of a fundamental right secured under Article 53 § 2 of the Constitution, provided that such violation could not have been complained of before the delivery of the judgment or decision terminating the proceedings, and that, in either case, no ordinary or extraordinary remedy lies with the judgment or decision .”",
"B. Organic Law on the Constitutional Court",
"70. Section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court as amended under Organic Law no. 6/2007 of 24 May 2007, provides :",
"“ 1. Violations of rights and freedoms which are open to an amparo appeal and which derive immediately and directly from an act or omission on the part of a judicial body may give rise to such an appeal, subject to the following conditions:",
"( a ) that all the legal remedies provided for by procedural rules have been exercised in the practical case, through judicial channels ... ”.",
"C. Applicable law regarding upper limits on and the grouping together of sentences in Spain",
"71. The relevant provision of the 1973 Penal Code in force at the time of commission of the offences in issue read :",
"Article 70",
"“ Where all or some of the sentences ( penas ) ... cannot be served simultaneously by the convicted person, the follow rules will apply :",
"1. Sentences ( penas ) shall be imposed in accordance with their respective severity such that the convicted person serves them one after another, whereby the execution of a sentence shall begin, as far as possible, when the previous sentence has been served or been the subject of a pardon ...",
"2. Notwithstanding the foregoing rule, the maximum prison term ( condena ) to be served by the convicted person cannot exceed three times the length of the heaviest of the sentences ( penas ) imposed, the remainder of which shall lapse as soon as the maximum term, which cannot exceed thirty years, has been reached.",
"The thirty-year maximum shall apply even if the sentences ( penas ) were imposed in the framework of separate sets of proceedings, provided that the connection between the offences concerned was such that they could have been the subject of one single set of proceedings. ”",
"72. The relevant provision of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in force at the material time provided :",
"Article 988",
"“ ... where a person found guilty of several criminal offences was convicted in the framework of separate sets of proceedings of offences which could have been covered by the same proceedings pursuant to section 17 of this Act, the judge or court which delivered the latest judgment shall fix, proprio motu or at the request of the public prosecutor ’ s office or the convicted person, the maximum prison term for serving the sentences imposed in pursuance of Article 70.2 of the Criminal Code. ... ”",
"D. Framework Decision no. 2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings",
"73. Framework Decision no. 2008/675/JAI, which was adopted by the Council of the European Union on 24 July 2008 (JO L 220/32, 15/08/2008, pp. 32-34), came into force on 15 August 2008. Article 5 § 1 required EU Member States to take the necessary measures to comply with the provisions of the instrument by 15 August 2010.",
"74. The relevant parts of the preamble to the Framework Decision read as follows :",
"“6. In contrast to other instruments, this Framework Decision does not aim at the execution in one Member State of judicial decisions taken in other Member States, but rather aims at enabling consequences to be attached to a previous conviction handed down in one Member State in the course of new criminal proceedings in another Member State to the extent that such consequences are attached to previous national convictions under the law of that other Member State.",
"...",
"7. The effects of a conviction handed down in another Member State should be equivalent to the effects of a national decision at the pre-trial stage of criminal proceedings, at the trial stage and at the time of execution of the sentence.",
"8. Where, in the course of criminal proceedings in a Member State, information is available on a previous conviction in another Member State, it should as far as possible be avoided that the person concerned is treated less favourably than if the previous conviction had been a national conviction.",
"9. Article 3(5) should be interpreted, inter alia, in line with recital 8, in such a manner that if the national court in the new criminal proceedings, when taking into account a previously imposed sentence handed down in another Member State, is of the opinion that imposing a certain level of sentence within the limits of national law would be disproportionately harsh on the offender, considering his or her circumstances, and if the purpose of the punishment can be achieved by a lower sentence, it may reduce the level of sentence accordingly, if doing so would have been possible in purely domestic cases. ”",
"75. The relevant parts of Article 3 of the Framework Decision, titled “ Taking into account, in the course of new criminal proceedings, a conviction handed down in another Member State ”, provide :",
"“ 1. Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law.",
"2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision.",
"...",
"5. If the offence for which the new proceedings being conducted was committed before the previous conviction had been handed down or fully executed, paragraphs 1 and 2 shall not have the effect of requiring Member States to apply their national rules on imposing sentences, where the application of those rules to foreign convictions would limit the judge in imposing a sentence in the new proceedings.",
"However, the Member States shall ensure that in such cases their courts can otherwise take into account previous convictions handed down in other Member States. ”",
"76. In its 2 June 2014 report on the implementation by Member States of Framework Decision no. 2008/675/JAI (COM(2014) 312 final), the European Commission noted that six Member States, including Spain, had not yet notified it of the measures transposing the obligations laid down in this instrument. With reference to Article 3 § 5 of the Framework Decision, the European Commission pointed out that the implementation of that provision would have to be assessed in the light of national criminal law principles and procedures related specifically to imposing sentences (e.g. aggregated sentences).",
"77. Framework decisions taken on the basis of Title VI of the version of the Treaty on European Union as amended by the Treaty of Amsterdam are binding on Member States as regards the required outcome, leaving to the national authorities the choice of form and methods. Such decisions cannot induce any direct effect ( Article 34 § 2 ( b) from the Treaty on European Union, in its version amended by the Treaty of Amsterdam). According to the case-law of the CJEU ( case of Pupino, judgment of 16 June 2005, C-105/3), the binding nature of such framework decisions imposes on the national authorities, and in particular the national courts, an obligation of interpretation in conformity with national law. In applying national law, a national court called upon to interpret the latter is required to do so as far as possible in the light of the wording and purpose of the framework decision in order to achieve the outcome pursued by that decision. This obligation ceases where national law cannot be the subject of a mode of application leading to a result compatible with that pursued by the framework decision. In other words, the compatible interpretation principle cannot serve as the basis for an interpretation contra legem of national law. That principle nevertheless requires the national court to take account, where appropriate, of national law in its entirety in order to assess the extent to which it can be applied in such a way as to avoid a result contrary to that pursued by the framework decision.",
"E. Organic Law no. 7/2014 of 12 November 2014 on the exchange of information from police records and taking account of criminal court decisions in the EU",
"78. The draft legislation which gave rise to Organic Law no. 7/2014 on the exchange of information from police records and taking account of criminal court decisions in the EU was tabled in Parliament ( the Cortes Generales ), before the Congress of Deputies, on 14 March 2014. It was published in the Parliament ’ s Official Gazette on 21 March 2014. The relevant provisions of the bill underwent several amendments during the enactment procedure in the Senate, between September and October 2014. The Organic law was finally approved by the Congress of Deputies, with the Senate ’ s amendments, on 30 October 2014.",
"79. Organic Law no. 7/2014 was enacted on 12 November 2014 and published in the State Official Journal the next day. It came into force on 3 December 2014. It transposed Framework Decision no. 2008/675/JAI into Spanish law ( see paragraphs 73-75 above ).",
"80. The relevant parts of the explanatory memorandum to Organic Law no. 7/2014 read as follows :",
"“ The regulations set out in Title II of this law presuppose official recognition of the principle of equivalence between judgments delivered within the European Union by taking them into account in subsequent proceedings held following the commission of fresh offences. That means that, like previous convictions handed down in Spain, sentences imposed in another Member State must be taken into account [ at whatever stage], whether during the preliminary phase of criminal proceedings, the criminal proceedings themselves, or the sentence-enforcement phase. The effects of taking such sentences into account are confined to those attaching to a conviction handed down in Spain, and are, moreover, subject to the condition that the conviction in another Member State was handed down in respect of acts punishable under Spanish law as in force at the date of their commission.",
"Recognition of the effects concerns not only the time of imposition of the sentence, but also the decisions which must be taken during the investigatory and sentence-enforcement phases, for example decisions on the pre-trial detention of a suspect, on the amount of bail, on the calculation of the sentence, on a stay of execution or a revocation of such stay, or on release on licence.",
"With this general principle, in order to reinforce legal certainty, the law lists, pursuant to the provisions and options laid down in the Framework Decision, the cases in which such convictions [ handed down in another Member State ] cannot be taken into account : where previous convictions in Spain or decisions given with a view to their enforcement must be reconsidered; where convictions likely to be handed down at a later date in Spain are given in respect of offences committed before the sentence could be imposed by the other Member State; and in cases of decisions relating to the determination of the maximum prison term in respect of sentences imposed pursuant to section 988 of the Criminal Procedure Act, where one such sentence is incorporated.",
"... ”",
"81. The relevant provisions of Organic Law no. 7/2014 read as follows :",
"Article 14 Legal effects attaching to previous convictions under the new criminalprocedure",
"“ 1. Previous final convictions handed down in other Member States in respect of a person for a different offence will, on the occasion of fresh criminal proceedings, the same legal effects as those attaching to a conviction handed down in Spain, subject to the following conditions:",
"( a) the convictions must have been handed down for acts which were punishable under Spanish law as in force at the time of their commission;",
"( b) sufficient information on the convictions must have been obtained under the instruments applicable to legal mutual assistance or the exchange of information from police records.",
"2. Notwithstanding the provisions of the previous sub-paragraph, final convictions handed down in other Member States will have no effect on the following, nor can they lead to their revocation or reconsideration:",
"( a) final judgments delivered previously by Spanish judges and courts, and decisions adopted for their enforcement;",
"( b) convictions handed down during subsequent proceedings conducted in Spain for offences committed before any conviction has been handed down by the courts in the other Member State;",
"( c) decisions which have given or are to be given in pursuance of the provisions of section 988 (3) of the Criminal Procedure Act, fixing the maximum prison term for grouping together sentences, including any conviction of the type set out in sub- paragraph ( b) above.",
"... ”",
"Single additional provision. Convictions prior to 15 August 2010",
"“ Account will not be taken, for the purposes of the present law, of convictions handed down by a court in any Member State of the European Union prior to 15 August 2010. ”",
"F. Case-law of the Supreme Court on the grouping together of sentences imposed and served in another State",
"82. By judgment no. 2117/2002 of 18 December 2002, the Supreme Court rejected the possibility of taking into account a sentence already served in France for the purposes of implementing the maximum prison term in Spain. It considered that the various offences which had been committed in France and Spain could not possibly have been the subject of the same criminal proceedings, since they had occurred in different national territories, subject to the sovereignty of different States, and had consequently been prosecuted before different national courts.",
"83. By judgment no. 186/2014 of 13 March 2014 the Supreme Court ( a five-judge criminal division ) considered the possibility of grouping together a sentence already served in France with subsequent sentences imposed in Spain for different offences, for the purposes of implementing the maximum prison term established by the Spanish Penal Code ( thirty years ). It accepted that possibility, in the light of Framework Decision no. 2008/675/JAI and in the absence, at the time, of domestic legislation transposing that Framework Decision or rules explicitly governing that subject matter. The Supreme Court held as follows :",
"“ ... the existence of a European area of freedom, security and justice, which, in a way, implies separate consideration of specific aspects relating to the exercise of sovereignty. Accordingly, Framework Decision no. 2008/675/JAI of the Council of the European Union, which was adopted on 24 July 2008 and therefore subsequently to our judgment of 18 December 2002, stated that its aim was to establish a minimum obligation on Member States to take outside of convictions handed down in other Member States. Article 3 of the Framework Decision provided : ‘ 1. Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law. 2. Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision. ’",
"Regardless of the Spanish State ’ s diligence, as an EU Member State, in implementing the provisions of Article 5.1 of the aforementioned Framework Decision ( ‘ 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 15 August 2010 ’ ), the fact is that in the absence of rules explicitly governing the present subject matter in any categorical manner, the current regulations must be interpreted in a manner as compatible as possible with the content of European regulations, the transposition of which into the domestic system is an obligation entered into by the Spanish State on becoming a member of the European Union.",
"Therefore, there is nothing to prevent taking into account the judgment delivered in France for the purposes of grouping sentences together. ”",
"84. In accordance with the approach thus followed by the Supreme Court in its judgment no. 186/2014, some sections of the Criminal Division of the Audiencia Nacional have decided, in calculating the maximum thirty-year prison term, to deduct sentences imposed and served in France. The decisions given by that court concerning the three applicants in the present case followed the same reasoning ( see paragraphs 16, 39 and 61 above ). Those decisions did not become final, since they were set aside by the Supreme Court following the appeals on points of law lodged by the public prosecutor ’ s office for the purposes of clarifying the law. Moreover, it transpires from the information supplied by the parties that in three different cases concerning other defendants, the sectional decisions in their favour were not the subject of an appeal on points of law and therefore became res judicata ( two decisions of 9 June 2014 and one decision of 24 November 2014).",
"85. By judgment no. 874/2014 of 27 January 2015, the Plenary Criminal Division of the Supreme Court ( comprising fifteen judges) discounted the possibility of grouping together sentences imposed and served in another EU Member State with sentences handed down in Spain for the purposes of determining the maximum prison term. The Division ’ s reasoning largely served as the basis for that adopted by the Supreme Court in its judgments on points of law relating to the three applicants in the instant case. The main lines of that reasoning are summarised in the “ Facts ” section on the first applicant ( see paragraphs 20-24 above ). Judgment no. 874/2014 was adopted by a majority of nine votes to six. Four judges appended dissenting opinions.",
"G. Case-law of the Constitutional Court",
"86. By judgment of 19 December 2013 (no. 216/2013) the Constitutional Court ( Plenary formation ) clarified the criteria for determining when an action for annulment was a judicial remedy which had to be exercised by a litigant before lodging an amparo appeal, pursuant to section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court. It held that such an action did not have to be lodged where the judicial authorities had already had an opportunity to decide on the fundamental rights subsequently relied on in the framework of the amparo appeal. The Constitutional Court considered that the aim of the rule on exhaustion of available domestic remedies was to preserve the subsidiary nature of the amparo remedy, so that the ordinary courts could consider and, where appropriate, remedy the alleged fundamental rights violations. The Constitutional Court pointed out that this reasoning also applied in cases where the rights violation had originated in a single judicial decision given by a court at first instance and where the subject matter of the dispute before that court had entailed assessing the alleged violation of the fundamental right in issue. In that case, the aim of bringing an action for annulment would merely be to seek a re- examination of the merits of the decision by the same court, on the basis of arguments analogous to those used during the main proceedings.",
"87. Furthermore, by reasoned decision ( auto ) of 20 September 2016, the Constitutional Court ( plenary formation) determined the amparo appeal lodged against judgment no. 874/2014 of the Supreme Court. The court held that the Supreme Court had not retroactively applied Organic Law no. 7/2014 – which had entered into force after the applicant ’ s request to group his sentences together – but had mentioned it solely in order to back up its interpretation of Framework Decision no. 2008/675/JAI, particularly in relation to the exception set out in Article 3 § 5 of that legal instrument. As regards the allegation of possible retroactive application of case-law unfavourable to the convicted person, the Constitutional Court drew a distinction between the case in question and Del Río Prada. It noted that when the total sentence to be served had been fixed in 2007 and throughout the execution of the sentence in Spain, the applicant had obtained no decision in favour of taking account of the sentence served in France. The court therefore considered that criminal legislation had been applied clearly and in complete conformity with existing judicial practice, without ever encouraging the applicant to hope that the sentence which he had served in France would be taken into account in determining the maximum prison term in Spain. It noted that the only requests which the applicant had submitted for such an eventuality had been in 2013, that is to say after the 2007 decision to group decisions together, and they had all been dismissed. It consequently considered that in the instant case there had been no retroactive application of an unfavourable interpretation inconsistent with the judicial practice applicable at the time when the sentence had been determined. The Constitutional Court noted that the applicant had only claimed that a possible interpretation of a previous legal rule, that is to say the rule laid down in judgment no. 186/2014 of the Supreme Court, had been applied to him retroactively. In fact, under the principle of equality before the law, it had noted that that interpretation – adopted by a five-judge section of the Supreme Court the first time that court had been called upon to adjudicate on the Framework Decision – had remained isolated and been rejected a few months later by the Plenary Supreme Court in its judgment no. 874/2014. Moreover, the Constitutional Court observed that the detailed reasoning of that judgment had not been based on an arbitrary or unreasonable interpretation of the applicable legislation. For all those reasons it declared the amparo appeal inadmissible, since there had manifestly been no violation of the fundamental rights relied upon ( including the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law, the right to equality before the law ).",
"88. That decision gave rise to two dissenting opinions by four judges of the Constitutional Court. In one dissenting opinion, two judges held that the Constitutional should have declared the appeal admissible and adjudicated on the merits with a judgment. In the other dissenting opinion, two judges also held that there had been a violation of the right to liberty and the principle that only a statute can define offences and lay down penalties, given that, in their view, the applicant had suffered the retroactive application of an unfavourable rule extending his prison term.",
"H. Civil Code",
"89. Article 1 of the Civil Code provides :",
"“ 1. The sources of the Spanish legal system are the law, custom and the general principles of law.",
"...",
"6. Case-law complements the legal system with the doctrine regularly established by the Supreme Court in its interpretations and applications of the law, custom and the general principles of law. ... ”"
] | [
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"90. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them and examine them jointly in a single judgment.",
"ALLEGED VIOLATION OF ARTICLE OF THE CONVENTION",
"91. The applicants complained that the decisions of the Constitutional Court declaring their amparo appeals inadmissible deprived them of their right of access to a court. They relied on Article 6 § 1 of the Convention, which reads as follows:",
"“ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ”",
"92. The Government contested that argument.",
"Admissibility",
"93. The Government objected that the available domestic remedies had not been exhausted.",
"94. The Court reiterates that under Article 35 § 1 of the Convention, an application can be lodged only after domestic remedies had been exhausted. In the present case the Government seems to be requesting a declaration of inadmissibility of the complaint on the same grounds as justified, in the Court ’ s view, the communication of the complaint in question, that is to say the reason for which the Constitutional Court declared the amparo appeal inadmissible. The Court considers therefore that that objection is closely linked to the merits of the complaint put forward by the applicants under Article 6 of the Convention, and decides to join it to the merits ( see, to that effect, Ferré Gisbert v. Spain, no. 39590/05, § 20, 13 October 2009 ). The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"Merits",
"1. The parties ’ submissions",
"95. The applicants complained that the Constitutional Court had dismissed their amparo appeals for failure to file an action for annulment with the Supreme Court, thus precluding their examination on the merits. They explained that the Supreme Court had itself explicitly stated in its notices accompanying the impugned judgments on points of law that the latter were open to an amparo appeal to the Constitutional Court within thirty days. The first and second applicants added that their actions for annulment had been declared inadmissible by the Supreme Court on the grounds that their complaints had already been examined in the judgments concluding their respective appeals on points of law. They therefore saw a blatant contradiction between the Supreme Court and the Constitutional Court, submitting that the interpretation effected by the latter of the admissibility criteria had been excessively formalistic and strict.",
"96. The Government contested that argument. They submitted that following the 2007 reform of the Organic Law on the Constitutional Court the scope of the action for annulment had been broadened in order to allow litigants to complain of any fundamental rights violation before the ordinary courts before lodging an amparo appeal with the Constitutional Court. That applied, in particular, to the instant case, in which the alleged fundamental rights violation had occurred on one single occasion before the Supreme Court, which was at the summit of the ordinary judicial system. In that connection, the Government relied on judgment no. 216/2013 of 19 December 2013 of the Constitutional Court ( see paragraph 86 above ). They pointed out that that court had declared the amparo inadmissible for failure to exercise the action for annulment before the ordinary courts. Furthermore, in the case of the applicant, his lawyer had not even lodged an action for annulment and, in the case of the other two applicants, their lawyers had requested the withdrawal of the actions which they had lodged with the Supreme Court. According to the Government, the applicants had deliberately triggered the declaration of the inadmissibility of their amparo appeals by the Constitutional Court without giving it an opportunity to consider their allegations of fundamental rights violations, which ran counter to the subsidiarity principle.",
"97. The first applicant replied that the Constitutional Court judgment cited by the Government supported the applicant party ’ s argument : that judgment clearly stated that where a court had had an opportunity to adjudicate on the fundamental rights subsequently relied upon before the Constitutional Court, it was no longer necessary to file an action for annulment before the latter court. He added that already in his reply to the appeal on points of law lodged by the public prosecutor ’ s office with the Supreme Court he had referred to the fundamental rights violations which the admission of the public prosecutor ’ s appeal would involve.",
"2. The Court ’ s assessment",
"98. The Court reiterated that the “right to a court”, of which the right of access is one aspect (see in particular Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18), is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard ( see García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and De la Fuente Ariza v. Spain, no. 3321/04, § 22, 8 November 2007). Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018, and Arribas Antón v. Spain, no. 16563/11, § 41, 20 January 2015). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court ( see Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009 ( extracts )).",
"99. The Court also reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation and, even less, courts with jurisdiction to deal with amparo appeals. However, where such courts do exist, the State must ensure that they provide litigants with access to the fundamental guarantees of Article 6 ( see Zubac, cited above, § 80, and Arribas Antón, cited above, § 42). Furthermore, the compatibility of limitations laid in domestic law with the right of access to a court as secured by Article 6 depends on the specific features of the proceedings in issue. The Court has several times found that the imposition by the national courts of compliance with formalities in order to lodge an appeal is liable to breach the right of access to a court. This is the case when an excessively formalistic interpretation of a legal provision prevents de facto the consideration of the merits of a remedy exercised by a litigant ( see, for example, Zvolský and Zvolská v. the Czech Republic, no. 46129/99, §§ 48 ‑ 55, ECHR 2002 ‑ IX; De la Fuente Ariza, cited above, §§ 24-28; and Ferré Gisbert, cited above, §§ 28-33). Regard should be had to the domestic proceedings as a whole and to the role played in them by the Constitutional Court, although the conditions for the admissibility of an amparo appeal may be stricter than in the case of an ordinary appeal ( see Arribas Antón, cited above, § 42).",
"100. Finally, the Court reiterates the fundamental principle that it is for the national authorities, particularly the courts, to interpret and apply domestic law ( see Brualla Gómez de la Torre v. Spain, 19 December 1997, Reports of Judgments and Decisions 1997-VIII, § 31). The Court will not therefore question the judgment of the national courts as regards alleged errors of law, unless their findings can be regarded as arbitrary or manifestly unreasonable ( see, to that effect, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).",
"101. In the present case, the Court observes that the Constitutional Court ’ s decision of 24 May 2016 ( concerning the first applicant) and those of 22 June 2016 ( concerning the second and applicants) declared inadmissible the amparo appeals lodged by the applicants against the Supreme Court ’ s judgments rejecting the possibility of grouping together sentences served in France with sentences imposed in Spain. Those decisions were based on the grounds of inadmissibility set out in section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court, that is to say non- exhaustion of ordinary legal remedies : in the present case the Supreme Court criticised the applicants for failing to lodge an action for annulment under section 241 ( 1 ) LOPJ.",
"102. The Court notes that the first two applicants did in fact lodge actions for annulment with the Supreme Court, requesting urgent procedure so that they could lodge an amparo appeal with the Constitutional Court within the thirty-day legal time-limit from the date of notification of the cassation judgments. It is true that those two applicants subsequently withdrew their actions for annulment before applying to the Constitutional Court, but the Supreme Court nonetheless served them with a decision declaring the actions inadmissible as irrelevant. That decision was served after the expiry of the thirty-day legal time-limit for lodging the amparo appeal and after the applicants in question had lodged that appeal with the Constitutional Court ( see paragraphs 31 and 50 above ). It should be noted that the notices accompanying the cassation judgments on 10 April 2015 explained that the latter were final but that an amparo appeal lay with them before the Constitutional Court within a thirty-day time-limit. There is nothing to suggest that that time-limit had been suspended by the lodging of the actions for annulment. If the two applicants had awaited notification of the decisions concerning their actions for annulment before preparing and validly lodging their amparo appeal, there would have been nothing to prevent the Constitutional Court from subsequently declaring their appeals inadmissible as being out of time, on grounds of the irrelevance of the actions for annulment ( see, for example, Del Pino García and Ortín Méndez v. Spain ( dec. ), no. 23651/07, § 32, 14 June 2011).",
"103. Furthermore, the Court notes that the Constitutional Court decisions concerning the first and second applicants are inconsistent with the decisions of the Supreme Court declaring inadmissible as irrelevant the actions for annulment lodged by those applicants. Indeed, the Supreme Court held that most of the complaints put forward by the two applicants had already been examined in the impugned cassation judgments, and that pursuant to section 241 ( 1 ) LOPJ the actions for annulment had therefore to be declared inadmissible. The Court observes that those remedies had already been the subject of a thorough assessment in the framework of the cassation proceedings ( see paragraphs 23-24 above ). Moreover, this was the position defended by the two applicants in their amparo appeals with regard to the legal requirement of exhaustion of available remedies ( see paragraphs 30 and 49 above ).",
"104. Clearly, it is not the Court ’ s task to determine the question whether an action for annulment was an appropriate remedy under domestic law in these circumstances. However, the Court considers that the reasoning of the impugned decisions of the Constitutional Court is inconsistent with that of the previous decisions given by the Supreme Court on the irrelevance of the actions for annulment.",
"105. The Court notes that the third applicant, unlike the first and second applicants, did not file an action for annulment with the Supreme Court before lodging an amparo appeal with the Constitutional Court. It should nevertheless be noted that, since he was represented by the same solicitor as the first and second applicants, he could have been apprised of the declaration of inadmissibility of the actions for annulment lodged by the other applicants before the expiry of the thirty-day time-limit for lodging an amparo appeal. In those circumstances, that applicant and his representative could reasonably have foreseen that if he were to file an action for annulment with the Supreme it would also fail. The third applicant cannot therefore be accused of having directly lodged an amparo appeal with the Constitutional Court, especially since in his appeal he, like the other applicants, pointed out that the Supreme Court, which had originated the impugned cassation judgment, had already adjudicated on all the allegations of fundamental rights violations which he was submitting to the Constitutional Court, and that he had therefore exhausted all the available legal remedies ( see paragraph 67 above ).",
"106. The Court attaches particular importance to whether the procedure to be followed for an action for annulment as a remedy to be used before applying to the Constitutional Court could be regarded as foreseeable from the litigants ’ point of view (see, as regards the requirement of foreseeability of a restriction on access to a higher court, Zubac, cited above, §§ 87-89). It notes in that regard that the Government relies on a Constitutional Court judgment of 2013 establishing the criteria for determining when the exercise of an action for annulment was required before an application to that higher court ( see paragraph 86 above ). The Court notes, however, that that judgment stated that the use of such an action was not required where the court having originated the impugned judicial decision given at first instance had already adjudicated on the allegations of fundamental rights violations which were subsequently to be put forward in the framework of the amparo appeal. That was precisely the situation in the present case, as noted by the Supreme Court in its decisions declaring the first and second applicants ’ actions for annulment inadmissible. Accordingly, the Constitutional Court ’ s subsequent decisions were not foreseeable or consistent with the case-law relied upon by the Government.",
"107. In the light of all those facts, the Court considers that a disproportionate burden was imposed on the applicants, thus upsetting the requisite fair balance between, on the one hand, the legitimate aim of ensuring compliance with the formal conditions for applying to the Constitutional Court, and on the other, the right of access to that court. In the present case, the fact that the amparo appeals had been declared inadmissible on grounds of non- exhaustion of available domestic remedies, even though the Supreme Court had previously declared the first and second applicants ’ actions for annulment inadmissible as irrelevant and had served the litigants with its decisions outside the thirty-day time-limit for lodging an amparo appeal, must at the very least be considered as creating legal uncertainty to the applicants ’ detriment ( see, mutatis mutandis, Ferré Gisbert, cited above, § 33).",
"108. The Court consequently holds that the inadmissibility decisions regarding the amparo appeals for non- exhaustion of available domestic remedies deprived the applicants of their right of access to a court.",
"109. The Court therefore rejects the Government ’ s objection and finds a violation of Article 6 § 1 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION",
"110. The applicants complained of what they saw as the retroactive application of new Supreme Court case-law and of a new law which had come into force after their conviction, arguing that this had prolonged the actual length of their prison terms. They relied on Article 7 of the Convention, the relevant parts of which provide :",
"“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.",
"... ”.",
"111. The Government contested that argument.",
"A. Admissibility",
"112. The Government pleaded a failure to exhaust domestic remedies. They submitted that the available remedies had not been properly exhausted because the applicants ’ amparo appeals had been declared inadmissible by the Constitutional Court on grounds of non- exhaustion of available remedies. The applicants therefore stood accused of failure to comply with the requisite legal formalities and conditions for the admissibility of a domestic remedy.",
"113. The Government considered that the issue arising in the present case related exclusively to the enforcement of the lawfully imposed sentences, which issue was not covered by Article 7 of the Convention. They stated that the sentences imposed on the applicants had totalled over three thousand years ’ imprisonment (for the first applicant), forty ‑ six years ’ imprisonment (for the second applicant) and over four thousand seven hundred years ’ imprisonment (for the third applicant), respectively. The implementation of the maximum thirty-year prison term was aimed at restricting or setting an upper limit on the actual period of imprisonment under sentences already imposed. Furthermore, implementing the maximum prison term presupposed the remission of a large number of sentences imposed for connected offences. The Government relied in that regard on the judgment in the case of Kafkaris v. Cyprus ([GC], no. 21906/04, § 142, 12 February 2008) as regards the distinction between a measure constituting a “ sentence ” and a measure relating to the “ execution ” or “ enforcement ” of a “ sentence ”. They therefore invited the Court to declare that complaint inadmissible as incompatible ratione materiae.",
"114. The applicants replied that they had exhausted all the existing domestic remedies in conformity with the subsidiarity principle.",
"115. They submitted that the issued raised by their case went beyond mere sentence enforcement. They took the view that refusing to group together the sentences served in France for the purposes of implementing the maximum prison term in Spain had led to a redefinition of the scope of the “ sentences ” imposed, bringing it within the ambit of Article 7 of the Convention.",
"116. The Court notes that the first objection is closely linked to the substance of the applicants ’ complaint under Article 6 § 1 of the Convention. In the light of the considerations which led it to find a violation of that provision ( see paragraphs 101-109 above ), the Court considers that the applicants gave the domestic courts an opportunity to provide redress for the alleged violation, and concludes that it must reject the Government ’ s objection as to failure to exhaust domestic remedies.",
"117. As regards the second objection as to inadmissibility, the Court considers that it is closely linked to the substance of the applicants ’ complaint under Article 7 and decides to join it to the merits ( see, mutatis mutandis, Gurguchiani v. Spain, no. 16012/06, § 25, 15 December 2009).",
"Further noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.",
"B. The merits",
"1. The parties ’ submissions",
"118. The applicants submitted that the application in their cases of the case-law reversal effected under judgment no. 874/2014 of the Supreme Court and under Organic Law no. 7/2014, which had come into force after their conviction and their requests to group together the sentences served in France, had actually prolonged their prison sentences. The application of that case-law reversal, which had been detrimental to their interests, had been unforeseeable and retroactive. The applicants explained that when they had submitted their requests to group together the sentences served in France they had been unable, in the light of domestic law as a whole, to foresee the legislative changes that would stem from Organic Law no. 7/2014 and the Supreme Court ’ s case-law reversal. They added that the justification for this reversal had been the spirit of Organic Law no. 7/2014, which the Supreme Court had de facto applied retroactively.",
"119. The Government considered that the applicants or their lawyers could not have expected – before the adoption of Framework Decision no. 2008/675/JAI – that there was any possibility of the sentences imposed in France being grouped together with the sentences to be served in Spain for the purposes of determining the maximum prison terms to be served. Nor could they have foreseen such a possibility before the date scheduled for the transposition into national law of the Framework Decision (15 August 2010), or between that date and the date of publication of the draft transposition legislation (21 March 2014). Indeed, the Government pointed out that when the Supreme Court had delivered its isolated judgment no. 186/2014 ( on 13 March 2014), none of the three applicants had submitted any request under the Framework Decision for grouping together the sentences served in France. They added that once the draft transposition legislation had been tabled, the applicants and their lawyers had known that they would have to comply with its provisions. Furthermore, the Government stated that before the enactment and entry into force of Organic Law no. 7/2014 (on 3 December 2014), the only established Supreme Court case-law was that prohibiting the grouping together of sentences imposed in France. Furthermore, the decisions of the Audiencia Nacional in the three applicants ’ favour had been given one day before the entry into force of that law and had been immediately challenged before the Supreme Court, and the latter had quashed and annulled them in line with the approach adopted in its leading judgment no. 874/2014 of 27 January 2015, which was adopted by the plenary court. The Government explained that that Supreme Court judgment dispelled any doubts which might have arisen as regards the validity of its previous line of authority.",
"120. The Government drew a distinction between the present case and Del Río Prada. They took the view that in the instant case the pre-existing legislation and the Supreme Court case-law had been clear: unless there was an international treaty which was in force and had been transposed into domestic law, sentences imposed abroad were not taken into account for the purposes of the determination of the maximum prison term. They held that it was impossible to claim that judgment no. 186/2014 could have created “ certainty ” in the applicants ’ or their lawyers ’ minds as regards the change in the applicable legislation, because it was a case of one isolated judgment of the Supreme Court which had not set a precedent and had given rise to contradictory decisions in the different sections of the Audiencia Nacional based on an EU Framework Decision currently in the process of transposition. The judgment had been delivered during the procedure for enacting the transposition bill at parliamentary level, and had in fact been disavowed only nine months later by the plenary Criminal Division of the Supreme Court. The Government pointed out that the applicants had never secured a final court decision in their favour regarding the incorporation of the sentences imposed in France. Furthermore, the fact that the first and second applicants had been released pending the outcome of the appeals on points of law had constituted an interim measure benefiting those two applicants.",
"2. The Court ’ s assessment",
"121. The Court refers to its Del Río Prada judgment, cited above, which sets out the general principles concerning Article 7 of the Convention (§§ 77-93). As regards, more specifically, the distinction between the concept of a “penalty” and that of measures relating to the “execution” of a penalty, it established in that judgment that it did not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the “penalty” imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention ( ibid. , § 89).",
"122. In the present case, the Court observes from the outset that by three decisions given on 7 March 2006 ( concerning the first applicant), 31 July 1997 ( concerning the second applicant) and 18 November 2013 ( concerning the third applicant), the trial courts fixed at thirty years the maximum prison terms to be served by the applicants under the custodial sentences imposed on them under section 70.2 of the 1973 Penal Code in force at the time of the commission of the offences. In the case of the first and third applicants, that measure was also the result of a decision to group together the various sentences imposed in the framework of separate sets of criminal proceedings, having regard to the chronological connection between the offences committed, on the basis of section 988 of the Criminal Procedure Act. Under Spanish law, a sentence to be served resulting from that maximum prison term and from those decisions to group sentences together and / or set au upper limit on them was conceived of as a new independent sentence ( see, to that effect, Del Río Prada, cited above, §§ 97-99). Furthermore, it was from that latter sentence that such prison benefits as remissions of sentence ( see paragraphs 14, 41 and 59 above; see also Del Río Prada, cited above, § 99) and periods spent in pre-trial detention were to be deducted.",
"123. In the light of the foregoing considerations, the Court cannot accept the Government ’ s argument that the application of the maximum prison term laid down in the Penal Code was a measure that placed an upper limit on the total term of imprisonment, relating exclusively to the “execution” of individual sentences already imposed. On the contrary, it was a measure which concerned the extent of the sentences imposed on the applicants ( see also, as regards combining multiple sentences into an overall sentence, Koprivnikar v. Slovenia, §§ 50-52, 24 January 2017). Therefore, the impugned decisions of the Supreme Court refusing to allow the applicants ’ requests to take account of the sentences already served in France for the purposes of the determination of the maximum prison term in Spain also concerned the scope of the sentences imposed, and thus fell within the ambit of the last sentence of Article 7 § 1 of the Convention. The Government ’ s objection as to incompatibility ratione materiae should therefore be rejected.",
"124. The Court must now seek to establish whether the impugned decisions of the Supreme Court altered the extent of the sentences imposed on the applicants. In doing so, it must have regard to the domestic law as a whole and to how it was applied at the material time ( see, mutatis mutandis, Del Río Prada, cited above, §§ 90, 96 and 109). However, the Court points out that it is not competent to decide what is the proper interpretation of domestic law in the sphere of consideration of sentences served in another EU member State or to rule formally on the question whether the Supreme Court correctly applied Framework Decision no. 2008/675/JAI or any other provision of EU law ( see, mutatis mutandis, Avotiņš v. Latvia [GC], no. 17502/07, § 100, ECHR 2016).",
"125. In the present case the Court noted, firstly, that the impugned decisions of the Supreme Court did not alter the maximum prison term, which has always been thirty years ’ imprisonment. The subject matter of the dispute before the Spanish courts was whether, in order to implement that maximum term, account should be taken of sentences already served by the applicants in France under the convictions handed down in France for criminal offences committed in that State. The decisions given by the Audiencia Nacional in favour of taking account of those sentences never became res judicata, because the public prosecutor ’ s office appealed against them on points of law to the Supreme Court, the highest court in the Spanish judicial system, with jurisdiction to determine divergences among the lower courts in the application of the law. The fact that the first and second applicants were released on licence pursuant to the Audiencia Nacional ’ s decisions in favour of considering the French sentences, pending the outcome of the appeals on points of law, did not alter the non - final nature of those decisions.",
"126. The Court also observes that when the applicants had committed the criminal offences and when the decisions had been adopted to take account of and/or to place an upper limit on their sentences (on 7 March 2006, 31 July 1997 and 18 November 2013 respectively), the relevant Spanish law, taken as a whole – including precedent-based law – did not provide, to any reasonable extent, for taking account of sentences already served in another State for the purposes of determining the maximum prison term in Spain. Section 988 of the Criminal Procedure Act on the consideration of sentences imposed in the framework of separate criminal proceedings did not include any specific rule on taking account of sentences imposed abroad. The only precedents in favour of such consideration of sentences concerned sentences imposed abroad prior to being served in Spain under an international treaty on the transfer of convicted persons, but not sentences already completed abroad ( see paragraph 21 above ). In the only case similar to that of the applicants ( Supreme Court judgment no. 2117/2002, see paragraph 82 above ), the Supreme Court had refused to take into account a sentence already served in France. That lack of foreseeability might explain the fact that at the time the applicants had not requested the consideration of the sentences served in France, even though the latter had ended in 1995, 1996 and 2000 respectively. Even the third applicant, who had requested consideration of his sentence on 4 December 2012, when Framework Decision no. 2008/675/JAI was already in force, had not referred to the sentence served in France and / or the Framework Decision ( see paragraph 57 above ). It should be noted that under the Treaty on European Union itself, Framework Decisions could not induce any direct effect.",
"127. The Court attaches importance to the fact that the three applicants did not request consideration of their sentences served in France on the basis of Framework Decision no. 2008/675/JAI until after the adoption on 13 March 2014 of Supreme Court judgment no. 186/2014, that is, on 25 March 2014, 20 March 2014 and 30 April 2014 respectively. In that judgment the Supreme Court had been called upon for the first time to interpret Framework Decision no. 2008/675/JAI, and even though it had been in favour of the possibility of taking account of sentences served in another EU Member State for the purposes of grouping sentences together, it pointed out that this stance had been adopted because there was no national legislation transposing the Framework Decision or any explicit regulation on that matter ( see paragraph 83 above ). Pursuing that approach, some sections of the Criminal Division of the Audiencia Nacional have grouped sentences served in France together with sentences imposed in Spain for the purpose of determining the maximum thirty-year prison term. All these decisions, apart from three isolated cases, were set aside by the Supreme Court after the public prosecutor ’ s office had lodged appeals on points of law and after the adoption by the Plenary Criminal Division of the Supreme Court of its judgment no. 874/2014 of 27 January 2015 ( see paragraph 85 above ). The Court observes that under Spanish law, precedents are not a source of law and that only case-law repeatedly established by the Supreme Court can complement law ( see paragraph 89 above ). At all events, irrespective of whether isolated judgment no. 186/2014 of 13 March 2014 set an authoritative precedent under Spanish law ( see, mutatis mutandis, Del Río Prada, § 112), the Court considers that that judgment was not accompanied by a judicial or administrative practice consolidated over time which could have created legitimate expectations in the applicants as regards a stable interpretation if criminal law. The present case clearly differs in that respect from Del Río Prada, where the applicant could reasonably have thought, while she was serving her prison sentence and when the decision to combine the sentences and fix a maximum prison term was taken, that the remissions of sentence for work done in prison would be deducted from the maximum thirty -year prison term in accordance with the established practice that had been applied consistently by the Spanish prison and judicial authorities for many years ( ibid. , §§ 98-100, 103, 112-113). It was with regard to that previous practice concerning the interpretation of criminal law and the scope of the sentence imposed that the Court considered that the Supreme Court ’ s case-law reversal ( the “ Parot doctrine ” ) as applied to the applicant could not be deemed foreseeable, and that consequently there had been a violation of Article 7 ( ibid. , §§ 111-118).",
"128. The Court observes that in the instant case the divergences among the different courts concerned as to the possibility of grouping together sentences served in another Member State with sentences imposed in Spain only lasted for about ten months, up until the adoption by the Supreme Court of its leading judgment no. 874/2014. It accepts that achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated when the domestic legal system is capable of accommodating them ( see, mutatis mutandis, Borcea v. Romania ( dec. ), no. 55959/14, § 66, 22 September 2015). In the present case, the highest court in Spain in matters of criminal law, that is to say the Supreme Court ( its plenary Criminal Division ), settled the divergence in question by adjudicating on the issue of taking account of sentences served in another EU Member State. The Court notes that the solutions adopted in the applicants ’ cases merely followed the judgment of the plenary Supreme Court.",
"129. In the light of the foregoing considerations, and having regard to the relevant domestic law in force when the applicants committed the offences, when the decisions had been adopted to take account of and/or to place an upper limit on their sentences, and when the applicants requested consideration of the sentences served in France, the Court considers that the impugned decisions did not lead to any change in the scope of the sentences imposed. The sentences imposed were always maximum thirty-year prison terms resulting from the consideration of and / or the placing of an upper limit on the individual sentences imposed on the applicants by the Spanish criminal courts, without taking account of the sentences imposed and served in France.",
"130. It follows that the impugned Supreme Court decisions did not lead to any change in the extent of the sentences imposed on the applicants. Accordingly, the Court finds that there was no violation of Article 7 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION",
"131. The applicants further complained of the fact that their detention had been extended by twelve years (in the case of the first applicant), seven years (in the case of the second applicant) and ten years (in the case of the third applicant), respectively, owing to the retroactive application of the law to their detriment. The first and third applicants alleged that they had been held in unlawful and arbitrary detention since 27 January 2013 and 5 August 2016 respectively. The applicants relied on Article 5 § 1 of the Convention, the relevant parts of which provide :",
"“ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law :",
"(a) the lawful detention of a person after conviction by a competent court;",
"... ”",
"132. The Government contested that argument.",
"A. Admissibility",
"133. The Government raised the same preliminary objection as to non ‑ exhaustion of domestic remedies as under Article 7 (see paragraph 112 above). The applicants recorded their disagreement.",
"134. The Court can only refer to its previous conclusions under Article 6 § 1 of the Convention concerning the right of access to the Constitutional Court and the objection as to non- exhaustion of domestic remedies in relation to Article 7 ( see paragraphs 101-109 and 116 above ). The objection must accordingly be rejected.",
"135. Noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.",
"B. The merits",
"1. The parties ’ submissions",
"136. The applicants submitted that their continued detention after the date on which they would have completed their sentences if the Spanish courts had agreed to take into account the sentences which they had served in France could not have been “ lawful or “ in accordance with a procedure prescribed by law ”. They took the view that that continued detention was the result of the retroactive application of Organic Law no. 7/2014 and of the Supreme Court case-law applying that law, to their detriment.",
"137. The Government contested that argument. They submitted that the decisions of the Audiencia Nacional allowing the requests for consideration of the sentences served by the applicants in France for the purposes of determining the maximum prison term had been non- final decisions, specifying that they had all been quashed and set aside by the Supreme Court. They argued that the fact that the applicants had been released on licence during the cassation proceedings had merely been the result of applying domestic legislation, which, in their view, had been fully consistent with paragraphs 3 and 4 of Article 5 of the Convention. From the moment the Supreme Court had set aside the decisions of the Audiencia Nacional it had been necessary to recalculate the sentences to be served. In that connection, the recalculation had been effected on the basis of the final judgments of the Supreme Court deciding not to take account of the sentences served in France for the purposes of determining the maximum prison term in Spain. The Government also alleged that, inasmuch as the approach followed by the Supreme Court had fully complied with the provisions of Article 7 of the Convention, the actual prison term should be understood as being covered by the sentences imposed in Spain and that the applicable law had been clearly foreseeable. The Government considered that it was only if the Audiencia Nacional ’ s decisions on the consideration of sentences had become final that the prison terms in question would not have been covered by the sentences imposed.",
"2. The Court ’ s assessment",
"138. The Court refers to its judgment in Del Río Prada, cited above, which sets out the relevant principles concerning Article 5 § 1 of the Convention, and in particular indent ( a) thereof (§§ 123-127).",
"139. In the present case, the Court has no doubt that the applicants were in fact convicted, after proceedings prescribed by law, by courts which were competent within the meaning of Article 5 § 1 ( a) of the Convention. Moreover, the applicants do not deny that their detention was lawful up until the dates on which they ought to have completed their respective sentences in accordance with the decisions of 2 December 2014 of the Audiencia Nacional ( on 27 January 2013, 24 August 2013 and 5 August 2016 respectively ), taking into account the sentences which they had served in France for the purposes of determining the maximum thirty-year prison term. It remains to be seen whether the applicants ’ continued detention or reimprisonment after those dates was “ lawful ” within the meaning of Article 5 § 1 ( a) of the Convention.",
"140. In the light of the considerations which have led it to find no violation of Article 7 of the Convention ( see paragraphs 124-130 above ), the Court considers that when the applicants ’ sentences had been imposed, and even later, when they requested the taking into account of the sentences served in France, Spanish law had not provided, to any reasonable extent, that sentences already served in France should be taken into account for the purposes of determining the maximum thirty-year prison term. Given that the impugned decisions had not led to any change, in the light of Article 7, in the extent of the sentences imposed, the prison terms impugned by the applicants cannot be designated as unforeseeable or unauthorised by “ law” within the meaning of Article 5 § 1 ( see, to converse effect, Del Río Prada, cited above, §§ 130-131).",
"141. Moreover, the Court notes that there is a causal link for the purposes of Article 5 § 1 ( a) of the Convention between the sentences imposed on the applicants and their continued detention after the dates indicated by them, stemming from the guilty verdicts and the maximum thirty-year prison term established in decisions to group sentences imposed in Spain together and/or to set au upper limit on them ( see, mutatis mutandis, Del Río Prada, cited above, § 129).",
"142. Accordingly, the Court considers that in the present case there has been no violation of Article 5 § 1 of the Convention.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"143. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"144. The applicants claimed compensation for the non-pecuniary damage which they had sustained solely in connection with the alleged violation of Article 7 and Article 5 § 1. Their pecuniary claims did not concern the complaints under Article 6 § 1 of the Convention. The applicants also requested their release from prison at the earliest possible date.",
"145. Having regard to the fact that it has found a violation of Article 6 § 1 but no violation of Article 7 and Article 5 § 1 of the Convention, the Court holds that there is no need to make any award in respect of non-pecuniary damage or to indicate individual measures to the respondent State as requested by the applicants ( see, to converse effect, Del Río Prada, cited above, §§ 137-139).",
"B. Costs and expenses",
"146. The first applicant claimed 2, 662 euros (EUR) in respect of costs and expenses incurred before the domestic courts and EUR 3, 138. 71 in respect of those incurred before the Court. He requested that the sums relating to unpaid invoices be paid directly to his representative. The second and third applicants claimed EUR 2, 662 each in respect of costs and expenses incurred before the domestic courts and EUR 1,815 each in respect of those incurred before the Court. They requested that the awards under this head be paid directly into their representative ’ s bank account",
"147. The Government submitted that under the Court ’ s case-law, claims in respect of costs appertaining to domestic proceedings should be rejected. As regards the award in respect of the costs incurred before the Court, they left that matter to the latter ’ s discretion.",
"148. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court considers that in the present case the applicants are not entitled to the reimbursement of all the costs and expenses incurred for their defence before the Spanish courts, and that they are only entitled to the reimbursement of the costs required to complain of the alleged violation found by the Court. In the instant case the Court found a violation of Article 6 § 1 of the Convention on account of the inadmissibility decisions given on the amparo appeals by the highest national court, that is to say the Constitutional Court, with whose decisions no further effective remedies lie ( see, for example, Ferré Gisbert, cited above, §§ 38 ‑ 39 and 49). The Court therefore considers that the costs appertaining to the domestic proceedings cannot be deemed to have been incurred with a view to preventing or denouncing the violation which it has found, and therefore rejects the corresponding claims.",
"149. As regards the costs and expenses incurred before the Court, having regard to the documents at its disposal and to the fact that it has only found one violation of the Convention, the Court considers it reasonable to award the first applicant the sum of EUR 2,000 and the second and third applicants EUR 1,000 each. Those sums are to be paid directly into the bank accounts of the applicants ’ representatives ( see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, ECHR 2016).",
"C. Default interest",
"150. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
293 | Ghoumid and Others v. France | 25 June 2020 | This case concerned five individuals, formerly having dual nationality, who were convicted of participation in a criminal conspiracy to commit an act of terrorism. After serving their sentences they were released in 2009 and 2010, then stripped of their French nationality in October 2015. The applicants argued in particular that the revocation of their nationality had breached their right to respect for their private life. They added that their loss of nationality was a “disguised punishment” constituting a sanction for conduct in respect of which they had already been convicted and sentenced in 2007 by the Paris Criminal Court. | The Court held that there had been no violation of Article 8 of the Convention, finding that the decision to deprive the applicants of French nationality had not had disproportionate consequences for their private life. It reiterated in particular the point, already made in a number of judgments, that terrorist violence constituted in itself a serious threat to human rights. As the applicants already had another nationality, the decision to deprive them of French nationality had not had the effect of making them stateless. In addition, loss of French nationality did not automatically entail deportation from France, but if such a measure were to be decided against them they would have the appropriate remedies by which to assert their rights. The Court further observed that deprivation of nationality under Article 25 of the French Civil Code was not a criminal sanction, within the meaning of Article 4 of Protocol No. 7 (right not to be tried or punished twice) of the Convention, and that this provision was therefore inapplicable. | Deprivation of citizenship | In the context of terrorism and national security considerations | [
"2. The first, second and third applicants live in Mantes-la-Jolie. The fourth and fifth applicants live in Les Mureaux. They were represented by Mr W. Bourdon, lawyer.",
"3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs.",
"4. Born in France in 1974, the first applicant acquired French nationality by a declaration of nationality registered on 26 May 1992.",
"5. Born in Morocco in 1975, the second applicant acquired French nationality on 22 August 1991 through the collective effect of his father’s naturalisation (Article 84 of the French Nationality Code).",
"6. Born in France in 1976, the third applicant acquired French nationality on 16 June 1994 as a result of the registration of his express voluntary declaration under Article 21-7 of the Civil Code.",
"7. Born in Morocco in 1977, the fourth applicant acquired French nationality on 19 February 2001 by a declaration of nationality registered on 30 November 2001.",
"8. Born in Morocco in 1975, the fifth applicant acquired French nationality on 14 February 2000 by a declaration of nationality registered on 19 December 2000.",
"9. In a judgment of 11 July 2007 the Paris Criminal Court convicted the five applicants (and three other individuals) of participation in a criminal conspiracy to commit an act of terrorism in the years 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003 and 2004. They were found to have provided financial and logistical support to the “Moroccan Islamist Combatant Group” ( Groupe islamiste combattant marocain – “GICM”), which was close to the Salafiya Jihadia organisation (to which the perpetrators of the 16 May 2003 bombings in Casablanca, Morocco, were linked), on account, inter alia, of working in businesses supporting the activity of the GICM, harbouring GICM members clandestinely (except in the fourth applicant’s case) and obtaining passports intended, after falsification, to facilitate the movement of GICM members. The Criminal Court handed down the following sentences: to the first applicant, seven years’ imprisonment with a minimum term of fifty-six months; to the second applicant, eight years’ imprisonment with a minimum term of sixty-four months; for the third applicant, six years’ imprisonment with a minimum term of forty-eight months; for the fourth applicant, six years’ imprisonment with a period of security of forty-eight months; and for the fifth applicant, eight years’ imprisonment with a minimum term of sixty-four months.",
"10. The third and fourth applicants appealed to the Paris Court of Appeal, which upheld their convictions in a judgment of 1 July 2008.",
"11. In April 2015 the Minister of the Interior sent a letter to the applicants informing them that, in view of the judgment of 11 July 2007 convicting them of an offence constituting an act of terrorism, he had decided to initiate against them the procedure for deprivation of nationality provided for in Articles 25 and 25-1 of the Civil Code (see paragraph 19 below). Referring to Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, on redintegration, and on the loss, deprivation and withdrawal of French nationality (see paragraph 21 below), he invited the applicants to submit their observations within one month. The Minister specified that at the end of this period the Conseil d’État would be asked to give its opinion on the proposed deprivation of nationality, adding that this measure could be ordered only with its assent.",
"12. After receiving the assent of the Conseil d’État on 1 September 2015 (not produced for the file), the Prime Minister, by five orders of 7 October 2015, deprived the applicants of their French nationality. The orders were based on Article 25 of the Civil Code and Article 25-1 of the same Code as amended by Law no. 2006-64 of 23 January 2006 (see paragraph 19 below), and referred to the applicants’ criminal convictions.",
"13. The applicants made urgent applications to the Conseil d’État seeking the suspension of the orders of 7 October 2015 together with actions for judicial review.",
"14. The urgent applications were rejected by five similar decisions of 20 November 2015.",
"15. In the context of the judicial review procedure, the public rapporteur emphasised the following points in his opinion addressed to that court:",
"“... I am of the opinion ... that it is necessary for the court ... to bring its case-law up to date in order to recognise that, in this type of dispute, Article 8 of the [Convention] can be relied upon.",
"As your case-law stands, you have consistently held that Article 8 of the Convention ... cannot be invoked in nationality cases. ... This is also the approach of the Constitutional Council, which, again in its decision [no. 2014-439 QPC of 23 January 2015], dismissed as invalid the complaint that the right to private life of individuals deprived of their nationality had been breached.",
"In a judgment of 11 October 2011, Genovese v. Malta, no. 53124/09, the Court ..., however, further developed its case-law by its disapproval of the Maltese legislation which drew a distinction, for the granting of Maltese nationality by descent, depending on whether a child had been born in or out of wedlock, considering that in that case such discrimination ... undermined the applicant’s social identity, which was itself protected by Article 8 of the Convention in respect of private life. It relied only on the head of private life, being a component of Article 8, as you know, being distinguishable from family life, which is not mentioned in this case-law. It reiterated this approach in its Mennesson and Labassée judgments (26 June 2014, Mennesson v. France, application no. 65192/11, and Labassée v. France, application no. 65941/11), concerning the status of children born of surrogacy arrangements abroad, and you yourselves entered into this line of reasoning on the question whether a certificate of nationality should be issued to those same children, in your decision Association juristes pour l’enfance et autres (CE, 12 December 2014, no. 365779, A).",
"In my view it is both necessary and appropriate to recognise the operation of Article 8 in relation to the measure depriving a person of nationality. It is simply a matter of recognising the reality that a person’s nationality is a constituent element of his or her identity, not only legally, but also at a personal level. This will lead you to carry out a more in-depth review, which could, for example, take into account the circumstances in which the nationality was originally acquired by the person who has been deprived of it.",
"However, my proposition is that you should recognise, exactly as the Court does in its case-law, that Article 8 can only be invoked with regard to the private life of the persons concerned, i.e. their personal identity, and not to any interference with their family life, because as the Court ... itself has pointed out, the consequences of deprivation of nationality for one’s right of abode or place of abode are not automatic. It is noteworthy that in the opinion given by the Conseil d’État on 11 December 2015 on the constitutional bill for the ‘protection of the nation’, family life was also mentioned, but it is my opinion that on this matter you should remain as closely as possible to the Court’s findings ...",
"This twofold development that I am proposing to you, namely full review and applicability of Article 8, is probably more of jurisprudential than of practical interest in the current state of the legislation and administrative practice: not only are the conditions laid down by law for deprivation of nationality exceptional and confined, in practice one can see that such measures are rarely adopted. Thus, since the grounds for deprivation of nationality have to be criminal convictions for very serious offences, only in cases where the overall sanction imposed is light would it be possible to consider that such a measure may not be justified by the weight in the balance.",
"But this development is nevertheless proposed with the firm conviction that it is not insignificant, in such matters, be it for the administrative authorities today, or for those, whether a legislator or the European court, who may be called upon to consider whether Articles 25 and 25-1 of the Civil Code provide a balanced response, for you to clearly set out the framework of your review.",
"...",
"[As regards the criticism relating to] proportionality, [which can be expressed] both: in the field of EU law in line with the Rottmann case-law, which you have already engaged with, as has been said; under Article 8 of the Convention ...; and in the context of the full review in which you are now invited to engage.",
"In this connection, it must first be stressed that the acts for which the individuals concerned were convicted are serious ...",
"With regard to the consequences of the measure for those concerned, it is important to emphasise that the loss of nationality does not in itself have a definite impact on the right of abode of the persons concerned. It is not certain that the applicants, or at least not all of them, can be expelled or deported to their country of origin, especially if they are able to show that they would be exposed to a risk of treatment in breach of Article 3 of the Convention. The Court has been willing to enter into such an examination and has recognised the existence of a violation in certain cases (see the judgment of 3 December 2009, no. 19576/08, Daoudi v. France ). In your office, you do yourselves ensure compliance with the Convention, as interpreted by the Court, of course, and regardless of the criticisms that may be made of it and which may affect you as well. In this connection, I would strongly emphasise that it is the responsibility of the authorities, when they seek to expel an alien, even on grounds of absolute urgency, to ensure that the Court’s case-law is adhered to, and to ensure that the right of appeal is guaranteed, as well as the effectiveness of any such appeal.",
"Lastly, with regard to the interference with personal identity, I am of the view that it can certainly be regarded as more detrimental for Mr Turk, Mr Ghoumid and Mr Charouali, the first two having been born in France and having acquired nationality by declaration when they reached the age of their majority, the third having become French at the age of 16 by the collective effect of his father’s naturalisation. But at the same time, I cannot but note that the allegiances revealed by the actions which justified their criminal convictions also demonstrate that their allegiance to France and its values has been of scant importance to them in the construction of their personal identity.",
"In sum, therefore, I submit that the deprivation of nationality appears to be proportionate to the seriousness of the acts committed. I would add that there is nothing in the subsequent behaviour of the individuals concerned that would negate this assessment of the proportionality of the sanctions. ...”",
"16. The Conseil d’État dismissed the applicants’ actions to have the measures set aside in five similar decisions of 8 June 2016. It concluded that they could not validly claim that the orders appealed against had breached Article 4 of Protocol No. 7, which “was only applicable to criminal proceedings, [whereas] deprivation of nationality was an administrative sanction”.",
"17. It further found as follows:",
"“... whilst, as regards the imposition of administrative sanctions, only acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when these acts were committed are punishable, on the other hand, and save where otherwise provided, texts laying down the conditions for bringing proceedings and the forms of procedure apply immediately, even if they lead to the punishment of misconduct predating their entry into force; that it is the case for the texts setting the time-limits within which an administrative sanction can be issued, unless the previously applicable time-limits had already expired before they entered into force.",
"... in the present case, the most recent acts for which [the applicants were] convicted were committed in 2004. The Law of 23 January 2006 increased from ten to fifteen years the time-limit set in Article 25-1 of the Civil Code within which deprivation of nationality may be decided, from the time of commission of the acts giving rise to conviction for a serious offence constituting an act of terrorism. On the date of entry into force of this law, the previously applicable ten-year period within which the sanction of deprivation of nationality could be imposed on [the applicants] had not expired. As a result, the argument that by applying the time-limit provided for in Article 25-1 of the Civil Code, as amended by the Law of 23 January 2006, the impugned order[s] [were] based on inapplicable legislative provisions must be rejected;",
"... it is clear from the documents in the file that [the applicants were] convicted [and given the sentences set out in paragraph 9 above] for providing financial and logistical support to an organisation known as the ‘Moroccan Islamist Combatant Group’ (GICM), which was close to the ‘Salafiya Jihadia’ organisation, to which the perpetrators of the attacks in Casablanca, Morocco, on 16 May 2003 were linked, and that these acts were classified by the criminal court as participation in a criminal conspiracy to commit an act of terrorism. It can be seen from the findings of fact made by the criminal court that they had, inter alia, worked in businesses which supported the activity of the GICM, provided clandestine accommodation for its members [except in the fourth applicant’s case], and obtained passports intended to facilitate, after falsification, the movement of GICM members. Having regard to the nature and seriousness of the acts committed by the applicant[s] which led to [their] criminal conviction, the penalty of deprivation of French nationality was not, in the circumstances of the case, disproportionate. The subsequent conduct of the applicant[s] does not call this assessment into question.",
"... the sanction of deprivation of nationality, as provided for in Articles 25 and 25-1 of the Civil Code, seeks to strengthen the prevention of terrorism. An order depriving a person of French nationality in itself has no effect on that person’s presence in France, or on his or her family relationships, and therefore does not affect the person’s right to respect for his or her family life. However, such an order does affect a constituent element of that person’s identity and is thus capable of infringing that person’s right to respect for his or her private life. In the present case, having regard to the seriousness of the acts committed by the applicant(s), the impugned orders did not disproportionately infringe the right to respect for private life guaranteed by Article 8 of the Convention ...”",
"18. The fourth and fifth applicants were heard by the Deportation Board of Les Yvelines on 8 September 2016. On 21 October 2016 the prefect of Les Yvelines informed them that she had given an opinion in favour of their deportation. They were summoned on 26 October 2016 by the police but were not notified of their deportation orders."
] | [
"RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE",
"19. Articles 21-24, 25 and 25-1 of the Civil Code read as follows:",
"Article 21-24",
"“To be naturalised a person must prove assimilation into the French community, in particular by having sufficient knowledge, depending on the person’s condition, of the language, history, culture, and society of France, the level and means of assessment of that knowledge being regulated by decree in the Conseil d’État, and of the rights and duties conferred by French nationality, and also by adhering to the basic principles and values of the Republic.",
"After such assimilation has been ascertained, the person concerned signs the charter of the rights and duties of the French citizen. This charter, approved by decree in the Conseil d’État, restates the basic principles, values, and symbols of the French Republic.”",
"Article 25",
"“A person who has acquired the status of French national may, by an order made with the assent of the Conseil d’État, be deprived of his or her French nationality, unless deprivation would have the effect of rendering him or her stateless, where:",
"1 o He or she has been convicted of an act characterised as a serious offence ( crime or délit ) which constitutes a violation of the fundamental interests of the Nation, or for a serious offence ( crime or délit ) which constitutes an act of terrorism.",
"2 o He or she has been convicted for an act characterised as a serious offence ( crime or délit ) which is provided for by Chapter II of Title III of Book IV of the Criminal Code.",
"3 o He or she has been convicted for evading compulsory duties under the Code of National Service.",
"4 o He or she has committed, for the benefit of a foreign State, acts incompatible with the status of French national and detrimental to the interests of France.”",
"Article 25-1",
"“Deprivation of nationality is ordered only where the acts committed by the person concerned, as referred to in Article 25, occurred prior to the acquisition of French nationality or within ten years from the date of that acquisition.",
"It can be ordered only within a period of ten years from the perpetration of those acts.",
"[added by Law no. 2006-64 of 23 January 2006] Where the acts of which the person concerned stands accused are those referred to in Article 25 1 o, the periods referred to in the preceding two paragraphs shall be extended to fifteen years.”",
"20. The Conseil d’État clarified in a decision of 17 November 2006 ( Société CNP assurances, no. 276926) that, with regard to the imposition of administrative penalties, while only those acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when those acts were committed were punishable, on the other hand, and unless otherwise provided, texts laying down the conditions for bringing proceedings and the procedures to be followed would apply immediately, even if they led to punishment for misconduct committed prior to their entry into force.",
"21. Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, redintegration, loss, deprivation and withdrawal of French nationality states as follows:",
"“When the government decides to apply Articles 25 and 25-1 of the Civil Code, it notifies the legal and factual grounds justifying the deprivation of French nationality, by an administrative act or by registered letter with return receipt. Where the address is unknown, a notice is published in the official gazette ( Journal officiel de la République française ). The person concerned will have a period of one month from the date of notification or publication of the notice in that gazette within which to send the Minister for naturalisations his or her observations in defence. On the expiry of this period, the government may declare, by a reasoned order made with the assent of the Conseil d’État, that the person concerned has been deprived of French nationality.”",
"22. Article L. 521-1 of the Code of Administrative Justice reads as follows:",
"“When an application is made to have an administrative decision, even one rejecting a request, set aside or varied, the urgent applications judge dealing with the case may order that the enforcement of that decision, or some of its effects, be suspended, where the urgency of the case so justifies and where evidence is produced that is sufficient to cast serious doubt on the legality of the decision, at the current stage of the proceedings.",
"When a suspension has been granted, the judge will rule on the application to have the decision set aside or varied as soon as possible. The suspension will be lifted, at the latest, when the judge rules on the application to have the decision set aside or varied.”",
"CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION",
"23. In its judgment of 2 March 2010, in Rottmann, C ‑ 135/08, EU:C:2010:104, the Court of Justice of the European Union (CJEU) examined a request for a preliminary ruling referred in a case concerning the withdrawal of a person’s naturalisation as a German national, based on the interpretation of EU law concerning EU citizenship. It held in particular as follows:",
"“51. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.",
"...",
"54. Those considerations on the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remain, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union.",
"55 In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.",
"56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.",
"...",
"59 Having regard to the foregoing, ... it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.”",
"24. In its judgment of 12 March 2019, in M.G. Tjebbes and Others, C-221/17, EU:C:2019:189, the CJEU examined a request for a preliminary ruling referred in a case concerning a refusal to examine passport applications on account of a person’s loss of Dutch nationality on grounds of absence from the country, based on the interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union and Article 7 of the EU Charter of Fundamental Rights. It held in particular as follows:",
"“33. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality (judgment of 2 March 2010, Rottmann, C ‑ 135/08, EU:C:2010:104, paragraph 51).",
"...",
"35. ... when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.",
"...",
"37. The legitimacy, in principle, of the loss of the nationality of a Member State in those situations is indeed supported by the provisions of Article 6 and Article 7(3) to (6) of the Convention on the Reduction of Statelessness which provide that, in similar situations, a person may lose the nationality of a Contracting State in so far as he does not become stateless. ...",
"...",
"40. ... it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law ...”",
"INTERNATIONAL LAW",
"25. The European Convention on Nationality of the Council of Europe, of 6 November 1997 (signed but not ratified by France), provides in particular as follows:",
"Article 7 Loss of nationality ex lege or at the initiative of a State Party",
"“1 A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:",
"a voluntary acquisition of another nationality;",
"b acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant;",
"c voluntary service in a foreign military force;",
"d conduct seriously prejudicial to the vital interests of the State Party;",
"e lack of a genuine link between the State Party and a national habitually residing abroad;",
"f where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled;",
"g adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents.",
"2 A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it.",
"3 A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of this article.”",
"26. Article 15 of the Universal Declaration of Human Rights of 10 December 1948 reads as follows:",
"“1. Everyone has the right to a nationality.",
"2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”",
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"27. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"28. The applicants complained that the order depriving them of their nationality breached their right to respect for their private life. They relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Admissibility",
"29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"30. The applicants began by emphasising the eminently political nature of the measure depriving them of nationality. They observed that it had been announced in the National Assembly by the Minister of the Interior on 6 October 2015, that the following day the newspaper Le Monde had published a detailed article, referring in particular to a lack of remorse and of respect for French values and principles that had been attributed to them by the Minister, and that they had received notification of the orders only on 8 October. The measure’s real purpose in their view had therefore been one of political communication.",
"31. The applicants acknowledged that in their case the Conseil d’État had, for the first time, recognised the need to carry out a full proportionality review, particularly with regard to the right to respect for private life, whereas it had previously held that reliance on Article 8 was invalid in nationality cases. They submitted, however, that its review in their case had been quite superficial.",
"32. The applicants argued that there had been a disproportionate interference with their right to respect for their private life. The measure had been taken in respect of events that had occurred more than ten years previously, thus demonstrating a lack of diligence, and that the limitation period provided for in Article 25-1 of the Civil Code, which had previously been ten years after an offence, had been extended to fifteen years by a law of January 2006, which post-dated the judgment in their case. They stated that they had rebuilt their lives after the conviction and after serving their sentences, that they were working and had a family life and that two of them were born in France. They further observed that the Government had not taken into account the specific circumstances of their cases or the fact that they were well integrated in France, nor had the Government explained why other individuals convicted in the same case had not been deprived of their nationality. They reiterated that the measure taken against them had been decided in a highly political context, marked by the authorities’ desire to publicly and symbolically express their commitment to combating terrorism. They also pointed out that four of them had Moroccan nationality, that they could therefore be deported to Morocco even though they had no ties there and that they risked being subjected to ill-treatment in that country since they had been convicted for offences related to the Casablanca bombing. They referred in this connection to the judgments in El Haski v. Belgium (no. 649/08, §§ 92-93, 25 September 2012) and Ouabour v. Belgium (no. 26417/10, §§ 71 and 73-75, 2 June 2015) and stated that the proceedings against them had been based on a confession obtained from a suspect during an interrogation in Morocco, most likely by torture. This fear of removal to a country where they would be at risk of inhuman and degrading treatment exacerbated the violation of Article 8 of which they complained.",
"33. The applicants emphasised that they did not share the Government’s view that depriving them of their nationality had no effect on their right to reside in France. They pointed out that the order in question had entailed, as soon as it was published, the loss of the right to reside in France and, as a result, the right to work there and to receive social benefits. They had consequently been obliged to apply for a “private and family life” residence permit, which had still not been granted, so they only had temporary residence permits valid for three months. They added that two of them (the fourth and fifth applicants) had been the subject of a deportation order, which, although it had not been implemented, showed that their presence in France was no longer secured.",
"34. Lastly, the parliamentary debates had shown that the decision to deprive them of French nationality was not based on any grounds of general interest and was merely symbolic. This had to be weighed against the consequences of such a measure for the individual: loss of voting rights and eligibility to stand for election, inability to access public and private employment, loss of European citizenship, risk of deportation and, more generally, social exclusion.",
"(b) The Government",
"35. The Government stated that they did not dispute that deprivation of nationality was capable of infringing the right to respect for private life in so far as that right included the right to one’s identity. They noted that the Conseil d’État had so decided in its judgments in the applicants’ case.",
"36. They took the view, however, that the deprivation of nationality decided in the present case had been prescribed by law, namely by Articles 25 and 25-1 of the Civil Code. In this connection, they pointed out that the time-limit laid down in Article 25-1 for imposing the measure, which had been ten years from the commission of the offences of which the person concerned stood accused, i.e. those classified as more serious offences ( crimes or délits ) constituting an act of terrorism, had been increased to fifteen years by a Law of January 2006. The Government submitted that, as the Conseil d’État had ruled, it had been correct to apply this new time-limit in the present case, even though the offences dated from 2004, since, in the case of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied with immediate effect, in accordance with established case-law.",
"37. The Government further submitted that the applicants had been afforded all the procedural safeguards necessary for them to defend their interests: they had been notified of the intention to deprive them of their nationality in April 2015; they had been given one month to file their observations, which they had done; the draft ministerial orders had then been submitted to the Conseil d’État and the orders had subsequently been adopted with its assent; the applicants had been able to submit an application for judicial review to the Conseil d’État, which had carried out a full review of proportionality; represented by counsel, they had been able to put forward their arguments relating to the procedural compliance and merits of the decisions. The Government added that, in accordance with Article 25 of the Civil Code, the deprivation measure had been decided at a time when the applicants had been convicted by a final judgment, meaning that the substance of the acts of which they stood accused had been addressed in separate proceedings before the criminal courts.",
"38. Furthermore, in spite of the time that had elapsed between the criminal conviction, which dated from 2007, and the deprivation proceedings, the authorities had conducted those proceedings expeditiously and promptly. In the Government’s submission, this passage of time could be explained by the fact that, in addition to the applicants’ conviction for terrorist offences, it was also on account of the particularly serious security situation that it had appeared necessary to punish the applicants, as France had been hit by a series of major attacks in 2015. In any event, this would not have been detrimental to the applicants since they had enjoyed French nationality during that period.",
"39. The Government further contended that the deprivation of nationality had not had disproportionate consequences for the applicants’ private life in view of the particular seriousness of the facts which had justified the measures, namely the fact that they had participated, over several years, in a particularly structured terrorist organisation whose goal was international jihad and which had carried out terrorist acts abroad. In their submission, the applicants could legitimately be excluded from the national community in view of the very nature and seriousness of their offences, which revealed an acceptance of values that were radically opposed to French republican principles and therefore reflected a lack of loyalty to the French nation. They referred to the opinion of the public rapporteur before the Conseil d’État, according to which it was doubtful that French nationality constituted an underlying element of the applicants’ personal identity, given that their allegiance to the principles advocated by the terrorist organisation in which they were fully involved was incompatible with an allegiance to the French community. They also emphasised that the applicants had another nationality, that the loss of French nationality had not in itself affected their right to reside in France, and that their removal would require a separate decision, which they could then challenge before the Administrative Court if they so wished. In this connection they explained that deportation proceedings had been initiated in respect of the fourth and fifth applicants but that no decision had been taken to date. They added that the applicants remained legally resident in France since they held temporary residence certificates, valid for three months, which were regularly renewed and which also allowed them to work in France.",
"40. With regard to the applicants’ allegation that they had been convicted on the basis of testimony obtained by torture in Morocco, the Government responded that it had been rejected by the Paris Criminal Court and that, as they had failed to use the domestic remedies available, their complaint to the Court had to be found inadmissible. The Government further took the view that the applicants could not validly complain about any consequences of the deprivation of nationality for their family life, since the complaint notified by the Court had only concerned the question of respect for their private life.",
"The Court’s assessment",
"41. The applicants argued in their applications that the measure depriving them of nationality had constituted a violation not only of their right to respect for their private life but also their right to respect for their family life. This latter complaint was, however, declared inadmissible by the Section President, sitting in a single judge formation, at the time when notice of the application was given to the respondent State pursuant to Rule 54 § 2 of the Rules of Court, in so far as it concerned the applicants’ right to respect for their family life.",
"42. While the removal of an alien from a country where he or she has close relatives may breach that person’s right to respect for his or her family (see, for example, Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193), as stated by the Conseil d’État, an order made to deprive a person of French nationality will have no effect on that person’s presence in France. Moreover, the applicants, who had applied for “private and family life” residence permits, thus had certificates of application allowing them to reside in France. If such permits are denied, followed by removal measures against them, they would be able to lodge an appeal with the Administrative Court on the basis, in particular, of their right to respect for their family life. Consequently, the orders depriving the applicants of nationality did not constitute interference with their right to respect for their family life.",
"43. Nevertheless, even though the Convention and the Protocols thereto do not guarantee a right to a given nationality as such, any arbitrary deprivation of nationality might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual (see Ramadan v. Malta, no. 76136/12, § 85, 21 June 2016, see also K2 v. the United Kingdom (dec.), no. 42387/13, § 45, 7 February 2017). In this connection the Court reiterates that nationality is an element of personal identity (see, among other authorities, Mennesson v. France, no. 65192/11, § 97, ECHR 2014 (extracts)).",
"44. The Court will therefore examine the measures taken against the applicants in the light of their right to respect for their private life. Its supervision will concern two points (see Ramadan, §§ 86-93, cited above, and K2, §§ 50-63, decision cited above). Firstly, it will ascertain whether the measures were arbitrary; it will thus establish whether they were lawful, whether the applicants enjoyed procedural safeguards, and in particular whether they had access to appropriate judicial review, and whether the authorities acted diligently and promptly. Secondly, it will consider the impact of the deprivation of nationality on the applicants’ private life.",
"45. The Court notes, firstly, that the administrative authorities did not immediately initiate proceedings for deprivation of nationality following the applicants’ convictions. They informed the applicants of their intention to deprive them of French nationality in April 2015, more than ten years after the acts that led to their conviction for participation in a criminal conspiracy to commit an act of terrorism, almost eight years after the first-instance judgment (judgment of the Paris Criminal Court of 11 July 2007) and almost seven years after the judgment on appeal (judgment of the Paris Court of Appeal of 1 July 2008; only the third and fourth applicants had lodged an appeal). The Court takes note of the Government’s explanation that the fact that France waited until 2015 to deprive the applicants of French nationality stemmed from the fact that it had been affected by a series of major attacks that year. It also notes the applicants’ argument that this timing had given a political connotation to the measure taken against them. The Court is able to accept, however, that in the presence of events of this nature, a State may reinforce its assessment of the bond of loyalty and solidarity existing between itself and persons previously convicted of a serious offence constituting an act of terrorism (see, for example, Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 183, ECHR 2012 (extracts), and Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts)), and that it may therefore, subject to a strict proportionality review, decide to take measures against them with which it had not initially proceeded. The Court accordingly considers that, in the particular circumstances of the present case, the time that elapsed between the applicants’ convictions, which under French law allowed proceedings to be brought for deprivation of nationality, and the date on which those proceedings were actually initiated, is not sufficient in itself to render arbitrary the decision to deprive them of French nationality.",
"46. As regards the lawfulness of the measure, the Court observes that, at the time of the events in the present case, Article 25-1 of the Civil Code provided that deprivation of nationality could be ordered only within ten years from the time of the commission of the offences on which the criminal conviction was based. In the present case, however, the decisions to deprive the applicants of their French nationality were taken in 2015, even though the most recent offences dated from 2004. The Court notes, however, that the legislature had extended the time-limit to fifteen years in January 2006 (see paragraph 19 above) and that the Conseil d’État had considered in the present case, in accordance with its case-law (see paragraph 20 above), that in respect of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied immediately on their entry into force (see paragraph 17 above). The Court concludes that the measures taken against the applicants were lawful. It notes, as an additional consideration, that the approach of the Conseil d’État is compatible with the Court’s case-law in respect of Article 7 of the Convention (see, in particular, Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 147-149, ECHR 2000-VII, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 110, 17 September 2009).",
"47. The Court further notes that the applicants were afforded substantial procedural safeguards. In accordance with Article 61 of Decree no. 93-1362 of 30 December 1993 (see paragraph 21 above), the authorities notified them in advance of their intention to deprive them of French nationality and informed them of the legal and factual grounds for that measure. The applicants were then given one month to submit observations in their defence, which they did. The Conseil d’État was then asked for its opinion, as deprivation of nationality could be decided only after obtaining its assent. The relevant orders, adopted in the light of that assent, contained reasoning in fact and in law, and the applicants had the possibility – of which they availed themselves – of referring the matter to the urgent applications judge on the basis of Article L. 521-1 of the Code of Administrative Justice (see paragraph 22 above) and of seeking judicial review by the Conseil d’État. In particular, they were able to assert their rights under the Convention and, in the context of the action for judicial review, the Conseil d’État carried out a proportionality review and gave a reasoned decision after proceedings whose fully adversarial nature has not been called into question by the applicants, who were represented by lawyers in those proceedings (see paragraphs 11-17 above).",
"48. The examination of these various factors does not therefore lead to the conclusion that the decisions to deprive the applicants of their French nationality were arbitrary.",
"49. As to the consequences of these decisions for the applicants’ private life, it is true that their ability to remain in France was thereby undermined. The Court notes in this connection that adversarial proceedings with a view to deportation were initiated against the fourth and fifth applicants. They were summoned on 8 September 2016 by the Yvelines Deportation Board, which gave an opinion in favour of their expulsion. Although no decision was taken at the end of that procedure (see paragraph 18 above), it can be seen that, as aliens on French soil, the applicants may now have to face deportation. A measure of this kind would be likely to have an impact on their private life, in that it could result in a loss of employment, separation from their families and a breakdown in the social ties they have developed in France. However, as the case stands, since no deportation order has been issued, the consequence of the deprivation of nationality for the applicants’ private life is confined to the loss of an element of their identity.",
"50. That being so, the Court is able to accept the Government’s arguments. As it has repeatedly emphasised, terrorist violence is in itself a grave threat to human rights (see Othman (Abu Qatada), cited above, § 183; Trabelsi, cited above, § 117; Ouabour v. Belgium, no. 26417/10, § 63, 2 June 2015; and Big Brother Watch and Others v. the United Kingdom, nos. 58170/13 and 2 others, § 445, 13 September 2018). The Court therefore understands, as it has previously stated, the decision of the French authorities, following the attacks in France in 2015, to take a firmer stand against individuals who had been convicted of a serious offence constituting an act of terrorism. It also notes the Government’s position to the effect that, as a result of their actions, such individuals may no longer enjoy the specific bond conferred on them by the nationality of the country in which they reside. It has also taken note of the view of the public rapporteur before the Conseil d’État that the actions leading to their criminal convictions reveal certain allegiances which show that their attachment to France and its values is of little importance for them in the construction of their personal identity (see paragraph 15 above). It further notes that the participation in a criminal conspiracy to prepare a terrorist act, of which all five applicants were found guilty, continued for ten consecutive years (see paragraph 9 above). Some of the applicants had just acquired French nationality when they committed the offences and the others acquired it while they were in the process of committing them (see paragraphs 4-9 above). The Court also notes that the applicants all have another nationality, a fact to which it attaches some importance. The decision to deprive them of their French nationality did not therefore have the effect of rendering them stateless, which is indeed a prerequisite for the application of Article 25 of the Civil Code. Moreover, as the Court has already noted and as the applicants’ situation illustrates, the loss of French nationality does not automatically entail deportation and if such a decision came to be taken in their cases, remedies would be available to them through which they could assert their rights.",
"51. In the light of the foregoing, the Court finds that the decision to deprive the applicants of their French nationality did not have any disproportionate consequences for their private life.",
"52. Accordingly, there has been no violation of Article 8 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"53. The applicants argued that the deprivation of their French nationality was a “disguised punishment”, being tantamount to a sanction aimed at penalising the same conduct as that for which they had been convicted in 2007 by the Paris Criminal Court. They relied on Article 4 of Protocol No. 7, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"The parties’ submissions",
"(a) The Government",
"54. The Government primarily argued that this complaint was inadmissible.",
"55. They began by pointing out the reservation made by France under Article 4 of Protocol No. 7, to the effect that “only those offences which under French law fall within the jurisdiction of the French criminal courts may be regarded as offences within the meaning of [Article 4] of this Protocol”. They acknowledged that this reservation did not contain a brief statement of the law or laws that might be incompatible with the provision in question, but submitted that the phrase “criminal courts” delimited its scope with sufficient precision, such that it could not be set aside. They pointed out that, under French law, deprivation of nationality by ministerial order was not a matter for the criminal courts but for the Conseil d’État.",
"56. The Government further submitted that such a measure was not a criminal sanction and that the complaint was therefore incompatible ratione materiae with the provisions of the Convention.",
"57. They pointed out in that connection that the European Commission of Human Rights had held, in its decision in Saladhin Gaip v. Greece (no. 17309/90, 30 August 1994), that proceedings relating to deprivation of nationality before the administrative courts in that country did not concern a criminal charge within the meaning of Article 6 of the Convention.",
"58. They stressed that the so-called Engel criteria should be applied to determine whether proceedings could be characterised as criminal within the meaning of Article 4 of Protocol No. 7. In their view, those criteria would lead to the conclusion that this was not the case for the proceedings at issue, since the deprivation of nationality provided for in Article 25 of the Civil Code was an administrative sanction under French law and its essential purpose was not to punish or deter but to terminate the special bond between the person concerned and the country which had conferred its nationality thereon, given the particularly serious nature of the offences, which could be regarded as incompatible with the requirement of loyalty to France. On that last point, the Government observed that the Criminal Court could not impose a measure of deprivation of nationality by way of addition to a criminal sentence. They added that, although it was a sanction with a certain degree of severity, it was not disproportionate in view of: the particular seriousness of the conduct referred to in Article 25 of the Civil Code, the fact that it could not be decided against a person who would be rendered stateless as a result, the fact that it did not in itself entail deportation, and the fact that the resulting loss of civic rights and of the right to join the French civil service were penalties that could ordinarily stem from convictions for offences such as those of which the applicants had been found guilty. In addition, the Constitutional Council had twice validated the constitutionality of the measure of deprivation of nationality (decisions of 6 July 1996, no. 96-377 DC, and 23 January 2015, no. 2015-439 QPC).",
"(b) The applicants",
"59. The applicants asked the Court to declare the application admissible.",
"60. They began by observing that France’s reservation had been strongly criticised in literature and that, in the circumstances of the present case, it would be tantamount to rendering Article 4 of Protocol No. 7 devoid of substance.",
"61. They pointed out that the concept of offence, within the meaning of Article 4 of Protocol No. 7 extended beyond the criminal domain. Referring to the judgment in Sergueï Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009), they stated that there was no doubt that the measure taken against them was an administrative sanction which supplemented the criminal conviction and sentence handed down against them in 2007 in respect of the same offences. Since the measure was irrevocable and could entail deportation to countries with which they had no links, deprivation of nationality could be perceived as a more serious sanction than the sentence itself.",
"62. In their view, the deprivation of nationality was undoubtedly punitive in nature when it was ordered in circumstances such as those of their case, as it was a sanction for a presumed lack of loyalty and resulted in the loss of a number of rights.",
"The Court’s assessment",
"63. The Court does not find it necessary to examine the question concerning the application of France’s reservation in respect of Article 4 of Protocol No. 7, in so far as the complaint is inadmissible for another reason (see, for example, Durand v. France (dec.), no. 10212/07, § 54, 31 January 2012).",
"64. For that complaint is, in any event, incompatible ratione materiae with the provisions of the Convention.",
"65. In order for Article 4 of Protocol No. 7 to be applicable, it is necessary in particular for the applicant to have been tried or “punished in criminal proceedings” for an offence for which he has already been finally acquitted or convicted.",
"66. In the present case, there is no doubt that, after being found guilty by the criminal courts for the offence of participation in a criminal conspiracy to commit a terrorist act, the applicants had indeed been “convicted” within the meaning of Article 4 of Protocol No. 7. Moreover, their conviction in 2007 had already become final when they were deprived of French nationality in 2015.",
"67. The question thus arising, as to the applicability of Article 4 of Protocol No. 7, is whether, by the effect of this deprivation of French nationality, pursuant to Article 25 of the Civil Code, the applicants may be regarded as having been “punished in criminal proceedings” within the meaning of Article 4 of Protocol No. 7.",
"68. In this connection the Court clarified, in the case of A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016) that, in order to determine whether proceedings are “criminal” for the purposes of Article 4 of Protocol No. 7, it is necessary to apply the so-called Engel criteria in respect of the concept of a “criminal charge”, within the meaning of Article 6 § 1 of the Convention (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The criteria are as follows: (1) the legal classification of the measure under national law, (2) the very nature of the measure, and (3) the nature and degree of severity of the “penalty” (see, among other authorities, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 52, 30 April 2015, and Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII). The second and third criteria are alternative, not cumulative, but this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, for example, Kapetanios and Others, cited above, § 52).",
"69. The Court will therefore ascertain whether the decision to deprive a person of nationality under Article 25 of the Civil Code is classified as a criminal measure under French law; it will also examine the very nature of this measure together with the nature and degree of severity of the “penalty”.",
"70. It would first observe that deprivation of nationality under Article 25 of the Civil Code is not a “criminal” measure in French law. It is not provided for in the Criminal Code but in the Civil Code and does not fall under the jurisdiction of the criminal courts but that of the administrative authorities and courts; the Conseil d’État indeed clarified in the present case that it was an “administrative sanction”.",
"71. Secondly, as to the “very nature” of this measure, the Court is of the view, as argued by the Government, that going beyond its punitive connotation, deprivation of nationality under Article 25 of the Civil Code has a specific objective in that it gives effect to the fact that an individual who has benefited from acquisition of French nationality has subsequently severed the bond of loyalty to France by committing particularly serious acts which, in the case of terrorism, undermine the very foundation of democracy. Its primary purpose is thus to serve as a solemn acknowledgment of this severance of their bond with France.",
"72. Thirdly, as to the degree of severity of the measure in question, the Court does not underestimate either the serious nature of the message that the State thereby addresses to those concerned – a seriousness that is clearly reflected in the term “ déchéance ” (the fact of being deprived or stripped of a status) – or the impact that it may have on their identity. Its degree of severity must, however, be unreservedly put into perspective, having regard to the fact that deprivation of nationality under Article 25 of the Civil Code is directed against conduct which, in the case of terrorist acts, undermines the very foundation of democracy. The Court would further point out that this measure does not in itself result in the deportation from France of those concerned (see paragraphs 42 and 50 above). Lastly, referring to paragraph 71 above, it notes that it is not a sanction that can be regarded as criminal in nature.",
"73. It can be seen from the foregoing that deprivation of nationality, as prescribed by Article 25 of the Civil Code, is not a punishment in criminal proceedings, within the meaning of Article 4 of Protocol No. 7. That provision is therefore inapplicable in the present case.",
"74. This part of the application must therefore be declared inadmissible as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 thereof."
] |
294 | Ghoumid and Others v. France | 25 June 2020 | See above, under “Issues under Article 8 (right to respect for private and family life) of the Convention”, “Deprivation of citizenship”. | judgments) of the Convention, the Court indicated the need for a variety of measures aimed at drawing lessons from the past, raising awareness of applicable legal and operational standards, and deterring similar violations in the future. It also held that the future requirements of the pending investigation into the incident must be determined with regard to the Court’s conclusions about investigation’s failures to date. | Terrorism and the European Convention on Human Rights | (Suspected) terrorists | [
"2. The first, second and third applicants live in Mantes-la-Jolie. The fourth and fifth applicants live in Les Mureaux. They were represented by Mr W. Bourdon, lawyer.",
"3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs.",
"4. Born in France in 1974, the first applicant acquired French nationality by a declaration of nationality registered on 26 May 1992.",
"5. Born in Morocco in 1975, the second applicant acquired French nationality on 22 August 1991 through the collective effect of his father’s naturalisation (Article 84 of the French Nationality Code).",
"6. Born in France in 1976, the third applicant acquired French nationality on 16 June 1994 as a result of the registration of his express voluntary declaration under Article 21-7 of the Civil Code.",
"7. Born in Morocco in 1977, the fourth applicant acquired French nationality on 19 February 2001 by a declaration of nationality registered on 30 November 2001.",
"8. Born in Morocco in 1975, the fifth applicant acquired French nationality on 14 February 2000 by a declaration of nationality registered on 19 December 2000.",
"9. In a judgment of 11 July 2007 the Paris Criminal Court convicted the five applicants (and three other individuals) of participation in a criminal conspiracy to commit an act of terrorism in the years 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003 and 2004. They were found to have provided financial and logistical support to the “Moroccan Islamist Combatant Group” ( Groupe islamiste combattant marocain – “GICM”), which was close to the Salafiya Jihadia organisation (to which the perpetrators of the 16 May 2003 bombings in Casablanca, Morocco, were linked), on account, inter alia, of working in businesses supporting the activity of the GICM, harbouring GICM members clandestinely (except in the fourth applicant’s case) and obtaining passports intended, after falsification, to facilitate the movement of GICM members. The Criminal Court handed down the following sentences: to the first applicant, seven years’ imprisonment with a minimum term of fifty-six months; to the second applicant, eight years’ imprisonment with a minimum term of sixty-four months; for the third applicant, six years’ imprisonment with a minimum term of forty-eight months; for the fourth applicant, six years’ imprisonment with a period of security of forty-eight months; and for the fifth applicant, eight years’ imprisonment with a minimum term of sixty-four months.",
"10. The third and fourth applicants appealed to the Paris Court of Appeal, which upheld their convictions in a judgment of 1 July 2008.",
"11. In April 2015 the Minister of the Interior sent a letter to the applicants informing them that, in view of the judgment of 11 July 2007 convicting them of an offence constituting an act of terrorism, he had decided to initiate against them the procedure for deprivation of nationality provided for in Articles 25 and 25-1 of the Civil Code (see paragraph 19 below). Referring to Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, on redintegration, and on the loss, deprivation and withdrawal of French nationality (see paragraph 21 below), he invited the applicants to submit their observations within one month. The Minister specified that at the end of this period the Conseil d’État would be asked to give its opinion on the proposed deprivation of nationality, adding that this measure could be ordered only with its assent.",
"12. After receiving the assent of the Conseil d’État on 1 September 2015 (not produced for the file), the Prime Minister, by five orders of 7 October 2015, deprived the applicants of their French nationality. The orders were based on Article 25 of the Civil Code and Article 25-1 of the same Code as amended by Law no. 2006-64 of 23 January 2006 (see paragraph 19 below), and referred to the applicants’ criminal convictions.",
"13. The applicants made urgent applications to the Conseil d’État seeking the suspension of the orders of 7 October 2015 together with actions for judicial review.",
"14. The urgent applications were rejected by five similar decisions of 20 November 2015.",
"15. In the context of the judicial review procedure, the public rapporteur emphasised the following points in his opinion addressed to that court:",
"“... I am of the opinion ... that it is necessary for the court ... to bring its case-law up to date in order to recognise that, in this type of dispute, Article 8 of the [Convention] can be relied upon.",
"As your case-law stands, you have consistently held that Article 8 of the Convention ... cannot be invoked in nationality cases. ... This is also the approach of the Constitutional Council, which, again in its decision [no. 2014-439 QPC of 23 January 2015], dismissed as invalid the complaint that the right to private life of individuals deprived of their nationality had been breached.",
"In a judgment of 11 October 2011, Genovese v. Malta, no. 53124/09, the Court ..., however, further developed its case-law by its disapproval of the Maltese legislation which drew a distinction, for the granting of Maltese nationality by descent, depending on whether a child had been born in or out of wedlock, considering that in that case such discrimination ... undermined the applicant’s social identity, which was itself protected by Article 8 of the Convention in respect of private life. It relied only on the head of private life, being a component of Article 8, as you know, being distinguishable from family life, which is not mentioned in this case-law. It reiterated this approach in its Mennesson and Labassée judgments (26 June 2014, Mennesson v. France, application no. 65192/11, and Labassée v. France, application no. 65941/11), concerning the status of children born of surrogacy arrangements abroad, and you yourselves entered into this line of reasoning on the question whether a certificate of nationality should be issued to those same children, in your decision Association juristes pour l’enfance et autres (CE, 12 December 2014, no. 365779, A).",
"In my view it is both necessary and appropriate to recognise the operation of Article 8 in relation to the measure depriving a person of nationality. It is simply a matter of recognising the reality that a person’s nationality is a constituent element of his or her identity, not only legally, but also at a personal level. This will lead you to carry out a more in-depth review, which could, for example, take into account the circumstances in which the nationality was originally acquired by the person who has been deprived of it.",
"However, my proposition is that you should recognise, exactly as the Court does in its case-law, that Article 8 can only be invoked with regard to the private life of the persons concerned, i.e. their personal identity, and not to any interference with their family life, because as the Court ... itself has pointed out, the consequences of deprivation of nationality for one’s right of abode or place of abode are not automatic. It is noteworthy that in the opinion given by the Conseil d’État on 11 December 2015 on the constitutional bill for the ‘protection of the nation’, family life was also mentioned, but it is my opinion that on this matter you should remain as closely as possible to the Court’s findings ...",
"This twofold development that I am proposing to you, namely full review and applicability of Article 8, is probably more of jurisprudential than of practical interest in the current state of the legislation and administrative practice: not only are the conditions laid down by law for deprivation of nationality exceptional and confined, in practice one can see that such measures are rarely adopted. Thus, since the grounds for deprivation of nationality have to be criminal convictions for very serious offences, only in cases where the overall sanction imposed is light would it be possible to consider that such a measure may not be justified by the weight in the balance.",
"But this development is nevertheless proposed with the firm conviction that it is not insignificant, in such matters, be it for the administrative authorities today, or for those, whether a legislator or the European court, who may be called upon to consider whether Articles 25 and 25-1 of the Civil Code provide a balanced response, for you to clearly set out the framework of your review.",
"...",
"[As regards the criticism relating to] proportionality, [which can be expressed] both: in the field of EU law in line with the Rottmann case-law, which you have already engaged with, as has been said; under Article 8 of the Convention ...; and in the context of the full review in which you are now invited to engage.",
"In this connection, it must first be stressed that the acts for which the individuals concerned were convicted are serious ...",
"With regard to the consequences of the measure for those concerned, it is important to emphasise that the loss of nationality does not in itself have a definite impact on the right of abode of the persons concerned. It is not certain that the applicants, or at least not all of them, can be expelled or deported to their country of origin, especially if they are able to show that they would be exposed to a risk of treatment in breach of Article 3 of the Convention. The Court has been willing to enter into such an examination and has recognised the existence of a violation in certain cases (see the judgment of 3 December 2009, no. 19576/08, Daoudi v. France ). In your office, you do yourselves ensure compliance with the Convention, as interpreted by the Court, of course, and regardless of the criticisms that may be made of it and which may affect you as well. In this connection, I would strongly emphasise that it is the responsibility of the authorities, when they seek to expel an alien, even on grounds of absolute urgency, to ensure that the Court’s case-law is adhered to, and to ensure that the right of appeal is guaranteed, as well as the effectiveness of any such appeal.",
"Lastly, with regard to the interference with personal identity, I am of the view that it can certainly be regarded as more detrimental for Mr Turk, Mr Ghoumid and Mr Charouali, the first two having been born in France and having acquired nationality by declaration when they reached the age of their majority, the third having become French at the age of 16 by the collective effect of his father’s naturalisation. But at the same time, I cannot but note that the allegiances revealed by the actions which justified their criminal convictions also demonstrate that their allegiance to France and its values has been of scant importance to them in the construction of their personal identity.",
"In sum, therefore, I submit that the deprivation of nationality appears to be proportionate to the seriousness of the acts committed. I would add that there is nothing in the subsequent behaviour of the individuals concerned that would negate this assessment of the proportionality of the sanctions. ...”",
"16. The Conseil d’État dismissed the applicants’ actions to have the measures set aside in five similar decisions of 8 June 2016. It concluded that they could not validly claim that the orders appealed against had breached Article 4 of Protocol No. 7, which “was only applicable to criminal proceedings, [whereas] deprivation of nationality was an administrative sanction”.",
"17. It further found as follows:",
"“... whilst, as regards the imposition of administrative sanctions, only acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when these acts were committed are punishable, on the other hand, and save where otherwise provided, texts laying down the conditions for bringing proceedings and the forms of procedure apply immediately, even if they lead to the punishment of misconduct predating their entry into force; that it is the case for the texts setting the time-limits within which an administrative sanction can be issued, unless the previously applicable time-limits had already expired before they entered into force.",
"... in the present case, the most recent acts for which [the applicants were] convicted were committed in 2004. The Law of 23 January 2006 increased from ten to fifteen years the time-limit set in Article 25-1 of the Civil Code within which deprivation of nationality may be decided, from the time of commission of the acts giving rise to conviction for a serious offence constituting an act of terrorism. On the date of entry into force of this law, the previously applicable ten-year period within which the sanction of deprivation of nationality could be imposed on [the applicants] had not expired. As a result, the argument that by applying the time-limit provided for in Article 25-1 of the Civil Code, as amended by the Law of 23 January 2006, the impugned order[s] [were] based on inapplicable legislative provisions must be rejected;",
"... it is clear from the documents in the file that [the applicants were] convicted [and given the sentences set out in paragraph 9 above] for providing financial and logistical support to an organisation known as the ‘Moroccan Islamist Combatant Group’ (GICM), which was close to the ‘Salafiya Jihadia’ organisation, to which the perpetrators of the attacks in Casablanca, Morocco, on 16 May 2003 were linked, and that these acts were classified by the criminal court as participation in a criminal conspiracy to commit an act of terrorism. It can be seen from the findings of fact made by the criminal court that they had, inter alia, worked in businesses which supported the activity of the GICM, provided clandestine accommodation for its members [except in the fourth applicant’s case], and obtained passports intended to facilitate, after falsification, the movement of GICM members. Having regard to the nature and seriousness of the acts committed by the applicant[s] which led to [their] criminal conviction, the penalty of deprivation of French nationality was not, in the circumstances of the case, disproportionate. The subsequent conduct of the applicant[s] does not call this assessment into question.",
"... the sanction of deprivation of nationality, as provided for in Articles 25 and 25-1 of the Civil Code, seeks to strengthen the prevention of terrorism. An order depriving a person of French nationality in itself has no effect on that person’s presence in France, or on his or her family relationships, and therefore does not affect the person’s right to respect for his or her family life. However, such an order does affect a constituent element of that person’s identity and is thus capable of infringing that person’s right to respect for his or her private life. In the present case, having regard to the seriousness of the acts committed by the applicant(s), the impugned orders did not disproportionately infringe the right to respect for private life guaranteed by Article 8 of the Convention ...”",
"18. The fourth and fifth applicants were heard by the Deportation Board of Les Yvelines on 8 September 2016. On 21 October 2016 the prefect of Les Yvelines informed them that she had given an opinion in favour of their deportation. They were summoned on 26 October 2016 by the police but were not notified of their deportation orders."
] | [
"RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE",
"19. Articles 21-24, 25 and 25-1 of the Civil Code read as follows:",
"Article 21-24",
"“To be naturalised a person must prove assimilation into the French community, in particular by having sufficient knowledge, depending on the person’s condition, of the language, history, culture, and society of France, the level and means of assessment of that knowledge being regulated by decree in the Conseil d’État, and of the rights and duties conferred by French nationality, and also by adhering to the basic principles and values of the Republic.",
"After such assimilation has been ascertained, the person concerned signs the charter of the rights and duties of the French citizen. This charter, approved by decree in the Conseil d’État, restates the basic principles, values, and symbols of the French Republic.”",
"Article 25",
"“A person who has acquired the status of French national may, by an order made with the assent of the Conseil d’État, be deprived of his or her French nationality, unless deprivation would have the effect of rendering him or her stateless, where:",
"1 o He or she has been convicted of an act characterised as a serious offence ( crime or délit ) which constitutes a violation of the fundamental interests of the Nation, or for a serious offence ( crime or délit ) which constitutes an act of terrorism.",
"2 o He or she has been convicted for an act characterised as a serious offence ( crime or délit ) which is provided for by Chapter II of Title III of Book IV of the Criminal Code.",
"3 o He or she has been convicted for evading compulsory duties under the Code of National Service.",
"4 o He or she has committed, for the benefit of a foreign State, acts incompatible with the status of French national and detrimental to the interests of France.”",
"Article 25-1",
"“Deprivation of nationality is ordered only where the acts committed by the person concerned, as referred to in Article 25, occurred prior to the acquisition of French nationality or within ten years from the date of that acquisition.",
"It can be ordered only within a period of ten years from the perpetration of those acts.",
"[added by Law no. 2006-64 of 23 January 2006] Where the acts of which the person concerned stands accused are those referred to in Article 25 1 o, the periods referred to in the preceding two paragraphs shall be extended to fifteen years.”",
"20. The Conseil d’État clarified in a decision of 17 November 2006 ( Société CNP assurances, no. 276926) that, with regard to the imposition of administrative penalties, while only those acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when those acts were committed were punishable, on the other hand, and unless otherwise provided, texts laying down the conditions for bringing proceedings and the procedures to be followed would apply immediately, even if they led to punishment for misconduct committed prior to their entry into force.",
"21. Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, redintegration, loss, deprivation and withdrawal of French nationality states as follows:",
"“When the government decides to apply Articles 25 and 25-1 of the Civil Code, it notifies the legal and factual grounds justifying the deprivation of French nationality, by an administrative act or by registered letter with return receipt. Where the address is unknown, a notice is published in the official gazette ( Journal officiel de la République française ). The person concerned will have a period of one month from the date of notification or publication of the notice in that gazette within which to send the Minister for naturalisations his or her observations in defence. On the expiry of this period, the government may declare, by a reasoned order made with the assent of the Conseil d’État, that the person concerned has been deprived of French nationality.”",
"22. Article L. 521-1 of the Code of Administrative Justice reads as follows:",
"“When an application is made to have an administrative decision, even one rejecting a request, set aside or varied, the urgent applications judge dealing with the case may order that the enforcement of that decision, or some of its effects, be suspended, where the urgency of the case so justifies and where evidence is produced that is sufficient to cast serious doubt on the legality of the decision, at the current stage of the proceedings.",
"When a suspension has been granted, the judge will rule on the application to have the decision set aside or varied as soon as possible. The suspension will be lifted, at the latest, when the judge rules on the application to have the decision set aside or varied.”",
"CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION",
"23. In its judgment of 2 March 2010, in Rottmann, C ‑ 135/08, EU:C:2010:104, the Court of Justice of the European Union (CJEU) examined a request for a preliminary ruling referred in a case concerning the withdrawal of a person’s naturalisation as a German national, based on the interpretation of EU law concerning EU citizenship. It held in particular as follows:",
"“51. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.",
"...",
"54. Those considerations on the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remain, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union.",
"55 In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law.",
"56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.",
"...",
"59 Having regard to the foregoing, ... it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.”",
"24. In its judgment of 12 March 2019, in M.G. Tjebbes and Others, C-221/17, EU:C:2019:189, the CJEU examined a request for a preliminary ruling referred in a case concerning a refusal to examine passport applications on account of a person’s loss of Dutch nationality on grounds of absence from the country, based on the interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union and Article 7 of the EU Charter of Fundamental Rights. It held in particular as follows:",
"“33. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality (judgment of 2 March 2010, Rottmann, C ‑ 135/08, EU:C:2010:104, paragraph 51).",
"...",
"35. ... when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family.",
"...",
"37. The legitimacy, in principle, of the loss of the nationality of a Member State in those situations is indeed supported by the provisions of Article 6 and Article 7(3) to (6) of the Convention on the Reduction of Statelessness which provide that, in similar situations, a person may lose the nationality of a Contracting State in so far as he does not become stateless. ...",
"...",
"40. ... it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law ...”",
"INTERNATIONAL LAW",
"25. The European Convention on Nationality of the Council of Europe, of 6 November 1997 (signed but not ratified by France), provides in particular as follows:",
"Article 7 Loss of nationality ex lege or at the initiative of a State Party",
"“1 A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:",
"a voluntary acquisition of another nationality;",
"b acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant;",
"c voluntary service in a foreign military force;",
"d conduct seriously prejudicial to the vital interests of the State Party;",
"e lack of a genuine link between the State Party and a national habitually residing abroad;",
"f where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled;",
"g adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents.",
"2 A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it.",
"3 A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of this article.”",
"26. Article 15 of the Universal Declaration of Human Rights of 10 December 1948 reads as follows:",
"“1. Everyone has the right to a nationality.",
"2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”",
"THE LAW",
"JOINDER OF THE APPLICATIONS",
"27. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"28. The applicants complained that the order depriving them of their nationality breached their right to respect for their private life. They relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Admissibility",
"29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"30. The applicants began by emphasising the eminently political nature of the measure depriving them of nationality. They observed that it had been announced in the National Assembly by the Minister of the Interior on 6 October 2015, that the following day the newspaper Le Monde had published a detailed article, referring in particular to a lack of remorse and of respect for French values and principles that had been attributed to them by the Minister, and that they had received notification of the orders only on 8 October. The measure’s real purpose in their view had therefore been one of political communication.",
"31. The applicants acknowledged that in their case the Conseil d’État had, for the first time, recognised the need to carry out a full proportionality review, particularly with regard to the right to respect for private life, whereas it had previously held that reliance on Article 8 was invalid in nationality cases. They submitted, however, that its review in their case had been quite superficial.",
"32. The applicants argued that there had been a disproportionate interference with their right to respect for their private life. The measure had been taken in respect of events that had occurred more than ten years previously, thus demonstrating a lack of diligence, and that the limitation period provided for in Article 25-1 of the Civil Code, which had previously been ten years after an offence, had been extended to fifteen years by a law of January 2006, which post-dated the judgment in their case. They stated that they had rebuilt their lives after the conviction and after serving their sentences, that they were working and had a family life and that two of them were born in France. They further observed that the Government had not taken into account the specific circumstances of their cases or the fact that they were well integrated in France, nor had the Government explained why other individuals convicted in the same case had not been deprived of their nationality. They reiterated that the measure taken against them had been decided in a highly political context, marked by the authorities’ desire to publicly and symbolically express their commitment to combating terrorism. They also pointed out that four of them had Moroccan nationality, that they could therefore be deported to Morocco even though they had no ties there and that they risked being subjected to ill-treatment in that country since they had been convicted for offences related to the Casablanca bombing. They referred in this connection to the judgments in El Haski v. Belgium (no. 649/08, §§ 92-93, 25 September 2012) and Ouabour v. Belgium (no. 26417/10, §§ 71 and 73-75, 2 June 2015) and stated that the proceedings against them had been based on a confession obtained from a suspect during an interrogation in Morocco, most likely by torture. This fear of removal to a country where they would be at risk of inhuman and degrading treatment exacerbated the violation of Article 8 of which they complained.",
"33. The applicants emphasised that they did not share the Government’s view that depriving them of their nationality had no effect on their right to reside in France. They pointed out that the order in question had entailed, as soon as it was published, the loss of the right to reside in France and, as a result, the right to work there and to receive social benefits. They had consequently been obliged to apply for a “private and family life” residence permit, which had still not been granted, so they only had temporary residence permits valid for three months. They added that two of them (the fourth and fifth applicants) had been the subject of a deportation order, which, although it had not been implemented, showed that their presence in France was no longer secured.",
"34. Lastly, the parliamentary debates had shown that the decision to deprive them of French nationality was not based on any grounds of general interest and was merely symbolic. This had to be weighed against the consequences of such a measure for the individual: loss of voting rights and eligibility to stand for election, inability to access public and private employment, loss of European citizenship, risk of deportation and, more generally, social exclusion.",
"(b) The Government",
"35. The Government stated that they did not dispute that deprivation of nationality was capable of infringing the right to respect for private life in so far as that right included the right to one’s identity. They noted that the Conseil d’État had so decided in its judgments in the applicants’ case.",
"36. They took the view, however, that the deprivation of nationality decided in the present case had been prescribed by law, namely by Articles 25 and 25-1 of the Civil Code. In this connection, they pointed out that the time-limit laid down in Article 25-1 for imposing the measure, which had been ten years from the commission of the offences of which the person concerned stood accused, i.e. those classified as more serious offences ( crimes or délits ) constituting an act of terrorism, had been increased to fifteen years by a Law of January 2006. The Government submitted that, as the Conseil d’État had ruled, it had been correct to apply this new time-limit in the present case, even though the offences dated from 2004, since, in the case of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied with immediate effect, in accordance with established case-law.",
"37. The Government further submitted that the applicants had been afforded all the procedural safeguards necessary for them to defend their interests: they had been notified of the intention to deprive them of their nationality in April 2015; they had been given one month to file their observations, which they had done; the draft ministerial orders had then been submitted to the Conseil d’État and the orders had subsequently been adopted with its assent; the applicants had been able to submit an application for judicial review to the Conseil d’État, which had carried out a full review of proportionality; represented by counsel, they had been able to put forward their arguments relating to the procedural compliance and merits of the decisions. The Government added that, in accordance with Article 25 of the Civil Code, the deprivation measure had been decided at a time when the applicants had been convicted by a final judgment, meaning that the substance of the acts of which they stood accused had been addressed in separate proceedings before the criminal courts.",
"38. Furthermore, in spite of the time that had elapsed between the criminal conviction, which dated from 2007, and the deprivation proceedings, the authorities had conducted those proceedings expeditiously and promptly. In the Government’s submission, this passage of time could be explained by the fact that, in addition to the applicants’ conviction for terrorist offences, it was also on account of the particularly serious security situation that it had appeared necessary to punish the applicants, as France had been hit by a series of major attacks in 2015. In any event, this would not have been detrimental to the applicants since they had enjoyed French nationality during that period.",
"39. The Government further contended that the deprivation of nationality had not had disproportionate consequences for the applicants’ private life in view of the particular seriousness of the facts which had justified the measures, namely the fact that they had participated, over several years, in a particularly structured terrorist organisation whose goal was international jihad and which had carried out terrorist acts abroad. In their submission, the applicants could legitimately be excluded from the national community in view of the very nature and seriousness of their offences, which revealed an acceptance of values that were radically opposed to French republican principles and therefore reflected a lack of loyalty to the French nation. They referred to the opinion of the public rapporteur before the Conseil d’État, according to which it was doubtful that French nationality constituted an underlying element of the applicants’ personal identity, given that their allegiance to the principles advocated by the terrorist organisation in which they were fully involved was incompatible with an allegiance to the French community. They also emphasised that the applicants had another nationality, that the loss of French nationality had not in itself affected their right to reside in France, and that their removal would require a separate decision, which they could then challenge before the Administrative Court if they so wished. In this connection they explained that deportation proceedings had been initiated in respect of the fourth and fifth applicants but that no decision had been taken to date. They added that the applicants remained legally resident in France since they held temporary residence certificates, valid for three months, which were regularly renewed and which also allowed them to work in France.",
"40. With regard to the applicants’ allegation that they had been convicted on the basis of testimony obtained by torture in Morocco, the Government responded that it had been rejected by the Paris Criminal Court and that, as they had failed to use the domestic remedies available, their complaint to the Court had to be found inadmissible. The Government further took the view that the applicants could not validly complain about any consequences of the deprivation of nationality for their family life, since the complaint notified by the Court had only concerned the question of respect for their private life.",
"The Court’s assessment",
"41. The applicants argued in their applications that the measure depriving them of nationality had constituted a violation not only of their right to respect for their private life but also their right to respect for their family life. This latter complaint was, however, declared inadmissible by the Section President, sitting in a single judge formation, at the time when notice of the application was given to the respondent State pursuant to Rule 54 § 2 of the Rules of Court, in so far as it concerned the applicants’ right to respect for their family life.",
"42. While the removal of an alien from a country where he or she has close relatives may breach that person’s right to respect for his or her family (see, for example, Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193), as stated by the Conseil d’État, an order made to deprive a person of French nationality will have no effect on that person’s presence in France. Moreover, the applicants, who had applied for “private and family life” residence permits, thus had certificates of application allowing them to reside in France. If such permits are denied, followed by removal measures against them, they would be able to lodge an appeal with the Administrative Court on the basis, in particular, of their right to respect for their family life. Consequently, the orders depriving the applicants of nationality did not constitute interference with their right to respect for their family life.",
"43. Nevertheless, even though the Convention and the Protocols thereto do not guarantee a right to a given nationality as such, any arbitrary deprivation of nationality might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual (see Ramadan v. Malta, no. 76136/12, § 85, 21 June 2016, see also K2 v. the United Kingdom (dec.), no. 42387/13, § 45, 7 February 2017). In this connection the Court reiterates that nationality is an element of personal identity (see, among other authorities, Mennesson v. France, no. 65192/11, § 97, ECHR 2014 (extracts)).",
"44. The Court will therefore examine the measures taken against the applicants in the light of their right to respect for their private life. Its supervision will concern two points (see Ramadan, §§ 86-93, cited above, and K2, §§ 50-63, decision cited above). Firstly, it will ascertain whether the measures were arbitrary; it will thus establish whether they were lawful, whether the applicants enjoyed procedural safeguards, and in particular whether they had access to appropriate judicial review, and whether the authorities acted diligently and promptly. Secondly, it will consider the impact of the deprivation of nationality on the applicants’ private life.",
"45. The Court notes, firstly, that the administrative authorities did not immediately initiate proceedings for deprivation of nationality following the applicants’ convictions. They informed the applicants of their intention to deprive them of French nationality in April 2015, more than ten years after the acts that led to their conviction for participation in a criminal conspiracy to commit an act of terrorism, almost eight years after the first-instance judgment (judgment of the Paris Criminal Court of 11 July 2007) and almost seven years after the judgment on appeal (judgment of the Paris Court of Appeal of 1 July 2008; only the third and fourth applicants had lodged an appeal). The Court takes note of the Government’s explanation that the fact that France waited until 2015 to deprive the applicants of French nationality stemmed from the fact that it had been affected by a series of major attacks that year. It also notes the applicants’ argument that this timing had given a political connotation to the measure taken against them. The Court is able to accept, however, that in the presence of events of this nature, a State may reinforce its assessment of the bond of loyalty and solidarity existing between itself and persons previously convicted of a serious offence constituting an act of terrorism (see, for example, Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 183, ECHR 2012 (extracts), and Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts)), and that it may therefore, subject to a strict proportionality review, decide to take measures against them with which it had not initially proceeded. The Court accordingly considers that, in the particular circumstances of the present case, the time that elapsed between the applicants’ convictions, which under French law allowed proceedings to be brought for deprivation of nationality, and the date on which those proceedings were actually initiated, is not sufficient in itself to render arbitrary the decision to deprive them of French nationality.",
"46. As regards the lawfulness of the measure, the Court observes that, at the time of the events in the present case, Article 25-1 of the Civil Code provided that deprivation of nationality could be ordered only within ten years from the time of the commission of the offences on which the criminal conviction was based. In the present case, however, the decisions to deprive the applicants of their French nationality were taken in 2015, even though the most recent offences dated from 2004. The Court notes, however, that the legislature had extended the time-limit to fifteen years in January 2006 (see paragraph 19 above) and that the Conseil d’État had considered in the present case, in accordance with its case-law (see paragraph 20 above), that in respect of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied immediately on their entry into force (see paragraph 17 above). The Court concludes that the measures taken against the applicants were lawful. It notes, as an additional consideration, that the approach of the Conseil d’État is compatible with the Court’s case-law in respect of Article 7 of the Convention (see, in particular, Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 147-149, ECHR 2000-VII, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 110, 17 September 2009).",
"47. The Court further notes that the applicants were afforded substantial procedural safeguards. In accordance with Article 61 of Decree no. 93-1362 of 30 December 1993 (see paragraph 21 above), the authorities notified them in advance of their intention to deprive them of French nationality and informed them of the legal and factual grounds for that measure. The applicants were then given one month to submit observations in their defence, which they did. The Conseil d’État was then asked for its opinion, as deprivation of nationality could be decided only after obtaining its assent. The relevant orders, adopted in the light of that assent, contained reasoning in fact and in law, and the applicants had the possibility – of which they availed themselves – of referring the matter to the urgent applications judge on the basis of Article L. 521-1 of the Code of Administrative Justice (see paragraph 22 above) and of seeking judicial review by the Conseil d’État. In particular, they were able to assert their rights under the Convention and, in the context of the action for judicial review, the Conseil d’État carried out a proportionality review and gave a reasoned decision after proceedings whose fully adversarial nature has not been called into question by the applicants, who were represented by lawyers in those proceedings (see paragraphs 11-17 above).",
"48. The examination of these various factors does not therefore lead to the conclusion that the decisions to deprive the applicants of their French nationality were arbitrary.",
"49. As to the consequences of these decisions for the applicants’ private life, it is true that their ability to remain in France was thereby undermined. The Court notes in this connection that adversarial proceedings with a view to deportation were initiated against the fourth and fifth applicants. They were summoned on 8 September 2016 by the Yvelines Deportation Board, which gave an opinion in favour of their expulsion. Although no decision was taken at the end of that procedure (see paragraph 18 above), it can be seen that, as aliens on French soil, the applicants may now have to face deportation. A measure of this kind would be likely to have an impact on their private life, in that it could result in a loss of employment, separation from their families and a breakdown in the social ties they have developed in France. However, as the case stands, since no deportation order has been issued, the consequence of the deprivation of nationality for the applicants’ private life is confined to the loss of an element of their identity.",
"50. That being so, the Court is able to accept the Government’s arguments. As it has repeatedly emphasised, terrorist violence is in itself a grave threat to human rights (see Othman (Abu Qatada), cited above, § 183; Trabelsi, cited above, § 117; Ouabour v. Belgium, no. 26417/10, § 63, 2 June 2015; and Big Brother Watch and Others v. the United Kingdom, nos. 58170/13 and 2 others, § 445, 13 September 2018). The Court therefore understands, as it has previously stated, the decision of the French authorities, following the attacks in France in 2015, to take a firmer stand against individuals who had been convicted of a serious offence constituting an act of terrorism. It also notes the Government’s position to the effect that, as a result of their actions, such individuals may no longer enjoy the specific bond conferred on them by the nationality of the country in which they reside. It has also taken note of the view of the public rapporteur before the Conseil d’État that the actions leading to their criminal convictions reveal certain allegiances which show that their attachment to France and its values is of little importance for them in the construction of their personal identity (see paragraph 15 above). It further notes that the participation in a criminal conspiracy to prepare a terrorist act, of which all five applicants were found guilty, continued for ten consecutive years (see paragraph 9 above). Some of the applicants had just acquired French nationality when they committed the offences and the others acquired it while they were in the process of committing them (see paragraphs 4-9 above). The Court also notes that the applicants all have another nationality, a fact to which it attaches some importance. The decision to deprive them of their French nationality did not therefore have the effect of rendering them stateless, which is indeed a prerequisite for the application of Article 25 of the Civil Code. Moreover, as the Court has already noted and as the applicants’ situation illustrates, the loss of French nationality does not automatically entail deportation and if such a decision came to be taken in their cases, remedies would be available to them through which they could assert their rights.",
"51. In the light of the foregoing, the Court finds that the decision to deprive the applicants of their French nationality did not have any disproportionate consequences for their private life.",
"52. Accordingly, there has been no violation of Article 8 of the Convention.",
"ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7",
"53. The applicants argued that the deprivation of their French nationality was a “disguised punishment”, being tantamount to a sanction aimed at penalising the same conduct as that for which they had been convicted in 2007 by the Paris Criminal Court. They relied on Article 4 of Protocol No. 7, which reads as follows:",
"“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.",
"2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.",
"3. No derogation from this Article shall be made under Article 15 of the Convention.”",
"The parties’ submissions",
"(a) The Government",
"54. The Government primarily argued that this complaint was inadmissible.",
"55. They began by pointing out the reservation made by France under Article 4 of Protocol No. 7, to the effect that “only those offences which under French law fall within the jurisdiction of the French criminal courts may be regarded as offences within the meaning of [Article 4] of this Protocol”. They acknowledged that this reservation did not contain a brief statement of the law or laws that might be incompatible with the provision in question, but submitted that the phrase “criminal courts” delimited its scope with sufficient precision, such that it could not be set aside. They pointed out that, under French law, deprivation of nationality by ministerial order was not a matter for the criminal courts but for the Conseil d’État.",
"56. The Government further submitted that such a measure was not a criminal sanction and that the complaint was therefore incompatible ratione materiae with the provisions of the Convention.",
"57. They pointed out in that connection that the European Commission of Human Rights had held, in its decision in Saladhin Gaip v. Greece (no. 17309/90, 30 August 1994), that proceedings relating to deprivation of nationality before the administrative courts in that country did not concern a criminal charge within the meaning of Article 6 of the Convention.",
"58. They stressed that the so-called Engel criteria should be applied to determine whether proceedings could be characterised as criminal within the meaning of Article 4 of Protocol No. 7. In their view, those criteria would lead to the conclusion that this was not the case for the proceedings at issue, since the deprivation of nationality provided for in Article 25 of the Civil Code was an administrative sanction under French law and its essential purpose was not to punish or deter but to terminate the special bond between the person concerned and the country which had conferred its nationality thereon, given the particularly serious nature of the offences, which could be regarded as incompatible with the requirement of loyalty to France. On that last point, the Government observed that the Criminal Court could not impose a measure of deprivation of nationality by way of addition to a criminal sentence. They added that, although it was a sanction with a certain degree of severity, it was not disproportionate in view of: the particular seriousness of the conduct referred to in Article 25 of the Civil Code, the fact that it could not be decided against a person who would be rendered stateless as a result, the fact that it did not in itself entail deportation, and the fact that the resulting loss of civic rights and of the right to join the French civil service were penalties that could ordinarily stem from convictions for offences such as those of which the applicants had been found guilty. In addition, the Constitutional Council had twice validated the constitutionality of the measure of deprivation of nationality (decisions of 6 July 1996, no. 96-377 DC, and 23 January 2015, no. 2015-439 QPC).",
"(b) The applicants",
"59. The applicants asked the Court to declare the application admissible.",
"60. They began by observing that France’s reservation had been strongly criticised in literature and that, in the circumstances of the present case, it would be tantamount to rendering Article 4 of Protocol No. 7 devoid of substance.",
"61. They pointed out that the concept of offence, within the meaning of Article 4 of Protocol No. 7 extended beyond the criminal domain. Referring to the judgment in Sergueï Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009), they stated that there was no doubt that the measure taken against them was an administrative sanction which supplemented the criminal conviction and sentence handed down against them in 2007 in respect of the same offences. Since the measure was irrevocable and could entail deportation to countries with which they had no links, deprivation of nationality could be perceived as a more serious sanction than the sentence itself.",
"62. In their view, the deprivation of nationality was undoubtedly punitive in nature when it was ordered in circumstances such as those of their case, as it was a sanction for a presumed lack of loyalty and resulted in the loss of a number of rights.",
"The Court’s assessment",
"63. The Court does not find it necessary to examine the question concerning the application of France’s reservation in respect of Article 4 of Protocol No. 7, in so far as the complaint is inadmissible for another reason (see, for example, Durand v. France (dec.), no. 10212/07, § 54, 31 January 2012).",
"64. For that complaint is, in any event, incompatible ratione materiae with the provisions of the Convention.",
"65. In order for Article 4 of Protocol No. 7 to be applicable, it is necessary in particular for the applicant to have been tried or “punished in criminal proceedings” for an offence for which he has already been finally acquitted or convicted.",
"66. In the present case, there is no doubt that, after being found guilty by the criminal courts for the offence of participation in a criminal conspiracy to commit a terrorist act, the applicants had indeed been “convicted” within the meaning of Article 4 of Protocol No. 7. Moreover, their conviction in 2007 had already become final when they were deprived of French nationality in 2015.",
"67. The question thus arising, as to the applicability of Article 4 of Protocol No. 7, is whether, by the effect of this deprivation of French nationality, pursuant to Article 25 of the Civil Code, the applicants may be regarded as having been “punished in criminal proceedings” within the meaning of Article 4 of Protocol No. 7.",
"68. In this connection the Court clarified, in the case of A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016) that, in order to determine whether proceedings are “criminal” for the purposes of Article 4 of Protocol No. 7, it is necessary to apply the so-called Engel criteria in respect of the concept of a “criminal charge”, within the meaning of Article 6 § 1 of the Convention (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The criteria are as follows: (1) the legal classification of the measure under national law, (2) the very nature of the measure, and (3) the nature and degree of severity of the “penalty” (see, among other authorities, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 52, 30 April 2015, and Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII). The second and third criteria are alternative, not cumulative, but this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, for example, Kapetanios and Others, cited above, § 52).",
"69. The Court will therefore ascertain whether the decision to deprive a person of nationality under Article 25 of the Civil Code is classified as a criminal measure under French law; it will also examine the very nature of this measure together with the nature and degree of severity of the “penalty”.",
"70. It would first observe that deprivation of nationality under Article 25 of the Civil Code is not a “criminal” measure in French law. It is not provided for in the Criminal Code but in the Civil Code and does not fall under the jurisdiction of the criminal courts but that of the administrative authorities and courts; the Conseil d’État indeed clarified in the present case that it was an “administrative sanction”.",
"71. Secondly, as to the “very nature” of this measure, the Court is of the view, as argued by the Government, that going beyond its punitive connotation, deprivation of nationality under Article 25 of the Civil Code has a specific objective in that it gives effect to the fact that an individual who has benefited from acquisition of French nationality has subsequently severed the bond of loyalty to France by committing particularly serious acts which, in the case of terrorism, undermine the very foundation of democracy. Its primary purpose is thus to serve as a solemn acknowledgment of this severance of their bond with France.",
"72. Thirdly, as to the degree of severity of the measure in question, the Court does not underestimate either the serious nature of the message that the State thereby addresses to those concerned – a seriousness that is clearly reflected in the term “ déchéance ” (the fact of being deprived or stripped of a status) – or the impact that it may have on their identity. Its degree of severity must, however, be unreservedly put into perspective, having regard to the fact that deprivation of nationality under Article 25 of the Civil Code is directed against conduct which, in the case of terrorist acts, undermines the very foundation of democracy. The Court would further point out that this measure does not in itself result in the deportation from France of those concerned (see paragraphs 42 and 50 above). Lastly, referring to paragraph 71 above, it notes that it is not a sanction that can be regarded as criminal in nature.",
"73. It can be seen from the foregoing that deprivation of nationality, as prescribed by Article 25 of the Civil Code, is not a punishment in criminal proceedings, within the meaning of Article 4 of Protocol No. 7. That provision is therefore inapplicable in the present case.",
"74. This part of the application must therefore be declared inadmissible as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 thereof."
] |
295 | Romeo Castaño v. Belgium | 9 July 2019 | In this case the applicants complained that their right to an effective investigation had been breached as a result of the Belgian authorities’ refusal to execute the European arrest warrants issued by Spain in respect of N.J.E., the individual suspected of shooting their father, who was murdered in 1981 by a commando unit claiming to belong to the terrorist organisation ETA. The Belgian courts had held that N.J.E.’s extradition would infringe her fundamental rights under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. | The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural aspect (effective investigation). Observing, firstly, that a risk to the person whose surrender was requested of being subjected to inhuman or degrading treatment could constitute a legitimate ground for refusing to execute a European arrest warrant and thus for refusing the cooperation requested, it noted, however, that the finding that such a risk existed had to have a sufficient factual basis. In the present case, the Court found, in particular, that the scrutiny performed by the Belgian courts during the surrender proceedings had not been sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had had a sufficient factual basis. Among other things, the Belgian authorities had not sought to identify a real and individual risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain. However, the Court stressed that the finding of a violation did not necessarily imply that Belgium was required to surrender N.J.E. to the Spanish authorities. It was the lack of sufficient factual support for the refusal to surrender her that had led the Court to find a violation of Article 2 of the Convention. That in no way lessened the obligation for the Belgian authorities to verify that N.J.E. would not run a risk of treatment contrary to Article 3 of the Convention if she were surrendered to the Spanish authorities. | Terrorism and the European Convention on Human Rights | Victims of terrorist acts | [
"THE CIRCUMSTANCES OF THE CASEThe background to the case",
"The background to the case",
"The background to the case",
"5. The applicants are the children of Lieutenant Colonel Ramón Romeo, who died following an attack carried out on 19 March 1981 in Bilbao (Spain) by a commando unit claiming to belong to the terrorist organisation ETA [1]. An alleged member of the commando unit, N.J.E., a Spanish national of Basque origin, was suspected of shooting the applicants’ father at point ‑ blank range.",
"6. One of Ramón Romeo’s children joined proceedings in Spain as a civil party. In May 2007 all the members of the commando unit were convicted by the Spanish courts, with the exception of N.J.E., who had reportedly fled to Mexico following the events of 1981 and later moved to Belgium.",
"Legal challengesFirst set of surrender proceedings",
"First set of surrender proceedings",
"First set of surrender proceedings",
"7. A Spanish investigating judge of the Audiencia Nacional issued two European arrest warrants in respect of N.J.E. on 9 July 2004 and 1 December 2005 for the purpose of bringing criminal proceedings, respectively, on charges of attempted murder and terrorism committed in Bilbao on 14 June 1981, and participation in a criminal organisation, terrorism, intentional killing, infliction of serious bodily harm, and murder, committed in Bilbao on 19 March 1981.",
"8. By an order of the investigating judge of the Ghent Court of First Instance of 9 October 2013, N.J.E. was placed in detention.",
"9. In an order of 16 October 2013 the Committals Division ( chambre du conseil ) of the same court declared the European arrest warrants enforceable.",
"10. N.J.E. appealed against that order. She argued at the outset that execution of the arrest warrants should be refused, since prosecution of the offences was time-barred under Belgian law and the facts came within the extraterritorial jurisdiction of the Belgian courts (section 4(4) of the European Arrest Warrant Act of 19 December 2003, see paragraph 25 below). She also submitted that there were substantial reasons for believing that execution of the European arrest warrants would infringe her fundamental rights under Article 6 of the Treaty on European Union (section 4(5) of the above-mentioned Act).",
"11. On 31 October 2013, referring to Articles 6 and 7 of the preliminary part of the Code of Criminal Procedure (see paragraph 26 below), the Indictments Division of the Ghent Court of Appeal held that N.J.E. did not come within the jurisdiction of the Belgian criminal courts, taking the view that N.J.E. did not have her main residence in Belgium. The Indictments Division further noted that N.J.E. was not being prosecuted in Belgium for any of the offences provided for in Article 6 of the preliminary part of the Code of Criminal Procedure. Lastly, it observed that there had been no “complaint from the aggrieved foreign national or his or her family”, or any “official notice given to the Belgian authority by the authority of the country in which the offence [had been] committed” within the meaning of Article 7 § 2 of the preliminary part of the Code of Criminal Procedure.",
"12. Nevertheless, the Indictments Division refused execution of the European arrest warrants on the basis of section 4(5) of the European Arrest Warrant Act. It held that the punishable acts needed to be viewed in the broader context of Spain’s contemporary political history and the personal background of N.J.E., who, having been active in the “Basque armed resistance movement” in her twenties, was now a 55-year-old professional woman living a normal life in Ghent. Furthermore, basing its finding in particular on a report by the European Committee for the Prevention of Torture (CPT) concerning the latter’s periodic visit to Spain from 31 May to 13 June 2011, the Indictments Division held that there were substantial reasons for believing that execution of the European arrest warrant would infringe N.J.E.’s fundamental rights under Article 6 of the Treaty on European Union. It found in particular as follows:",
"“... persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance), as borne out by evidence ... The investigating judge and the public prosecutor’s office were wrong to assert that there exists a presumption of observance of fundamental rights in Spain including with regard to former members of the Basque resistance movements, as [N.J.E.] probably was.",
"Firstly, there can never be a presumption of observance of human rights.",
"Secondly, the law itself runs counter to the existence [of such a presumption], given that the person concerned by the [European arrest warrant] has the right to demonstrate and explain convincingly that there are substantial reasons to fear a human rights violation. This additional safeguard is afforded within a strictly European legal context.",
"Reports from international organisations support these genuine fears.",
"Thirdly, the law nowhere requires it to be demonstrated that fundamental rights would be breached as a matter of absolute certainty.”",
"13. Lastly, the Indictments Division ordered N.J.E.’s release.",
"14. The Belgian Federal Prosecutor’s Office lodged an appeal on points of law against this judgment. It argued that, regard being had to the principle of mutual trust between the member States of the European Union (“the EU”), any decision to refuse extradition on the grounds of a breach of the fundamental rights of the person concerned had to be supported by detailed evidence demonstrating the existence of a clear threat to his or her rights and capable of rebutting the presumption of observance of fundamental rights. The judgment of the Indictments Division had provided no specific evidence of a risk of a breach of N.J.E.’s fundamental rights, and had been drafted in such general terms that the presumption of observance of human rights in favour of the State issuing the European arrest warrant could not be rebutted.",
"15. In a judgment of 19 November 2013 the Court of Cassation dismissed the appeal by the Federal Prosecutor’s Office. With regard to the principles applicable in the case before it, it observed the following:",
"“Under section 4(5) of the Act of 19 December 2003, execution of a European arrest warrant must be refused if there are substantial reasons for believing that execution would infringe the fundamental rights of the person concerned as enshrined in Article 6 of the Treaty on European Union, namely the rights guaranteed by the [Convention], which stem from the constitutional traditions common to the European Union Member States, as general principles of Community law.",
"Recital 10 of the preamble to Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States makes clear that the mechanism of the European arrest warrant is based on a high level of confidence between Member States. This high level of confidence entails a presumption of observance by the issuing State of the fundamental rights referred to in section 4(5) of the European Arrest Warrant Act of 19 December 2003.",
"In view of this principle of mutual trust between the Member States, any refusal to surrender the person concerned must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in favour of the issuing State of observance of those rights.",
"The judge has unfettered discretion to assess whether the detailed evidence relied on, pointing to a clear threat to the fundamental rights of the person concerned, is sufficient to rebut the aforementioned presumption. The Court [of Cassation] merely verifies that the judge has not drawn inferences from his or her findings that are unconnected to the latter or cannot be justified by them.”",
"Turning to the circumstances of the case before it, the Court of Cassation found as follows:",
"“The judgment finds that there are substantial reasons for believing that the execution of the European arrest warrants would infringe the defendant’s fundamental rights because ‘persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance)’. In so finding, it refers to the 2011 reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe.",
"Hence, the judgment provides legal justification for refusing extradition, as there are substantial reasons for believing that execution of the European arrest warrants would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union.",
"This ground of appeal cannot be upheld.”",
"16. In a letter of 27 November 2014 in reply to one of the applicants, concerning the refusal to execute the European arrest warrant in respect of N.J.E., the President of the Court of Cassation specified that the refusal to execute a European arrest warrant did not necessarily mean that the person concerned would escape punishment. He added as follows:",
"« [O]ther procedures exist which should be implemented by the competent authority, as appropriate, so that persons suspected of serious crimes who are no longer in the State where the crimes were allegedly committed can be put on trial. You may assess in that regard whether or not to make an application to the Federal Prosecutor’s Office.”",
"Second set of surrender proceedings",
"17. On 8 May 2015 a fresh European arrest warrant was issued against N.J.E. by an investigating judge of the Audiencia Nacional, concerning the acts committed in Bilbao on 19 March 1981 and classified, in particular, as “terrorist murder” in Spanish law. As to the risk of torture in Spain alleged by the Indictments Division, the investigating judge specified that the CPT’s information had been disputed by the Spanish Government in March 2012 and that, during its subsequent periodic visits in 2012 and 2014, the CPT had made no further mention of it. With regard to incommunicado detention, the judge stated that it was tightly regulated. It could be imposed only in exceptional cases concerning the investigation of armed gangs or terrorists; all persons subjected to such detention were guaranteed a forensic medical examination, and the national torture prevention mechanism included the possibility of unannounced visits by the Ombudsman; the person concerned was entitled to the assistance of a lawyer during the police and judicial proceedings; detention was always subject to judicial supervision, and the person concerned had the right to apply for a writ of habeas corpus; the communal areas were monitored by CCTV and interviews could be recorded; and the restrictions on communications with family and friends were limited to five days and had to be reviewed by a judge. Furthermore, the crime of torture under the Spanish Criminal Code encompassed any physical or psychological ill-treatment, and allegations of torture were examined by an independent judge. Lastly, the investigating judge observed that Spain had transposed the European directives strengthening existing safeguards in criminal matters.",
"18. Following the issuing of this arrest warrant, N.J.E. was re-arrested by the Belgian authorities on 20 June 2016 but was released on the same day.",
"19. In an order of 29 June 2016 the Committals Division of the Ghent Court of First Instance refused execution of the new arrest warrant.",
"20. On 14 July 2016, following an appeal by the Federal Prosecutor’s Office, the Indictments Division of the Ghent Court of Appeal upheld the order, ruling that the new arrest warrant did not contain any information that would lead to a different conclusion than that reached in its judgment of 31 October 2013. It based its finding on, among other things, the documents submitted by N.J.E. and, in particular, the United Nations Human Rights Committee’s concluding observations on the sixth periodic report of Spain (adopted at its session from 29 June to 24 July 2015), which recommended “once again” that the Spanish authorities put an end to incommunicado detention and guarantee the rights of all suspects to freely choose a lawyer whom they could consult in complete confidentiality and who could be present at interrogations.",
"21. On 15 July 2016 the Federal Prosecutor’s Office lodged an appeal on points of law, arguing in particular that there had been a breach of section 4(5) of the European Arrest Warrant Act on the grounds that the reference to the Human Rights Committee’s observations was insufficient to rebut the presumption of observance of human rights.",
"22. In a judgment of 27 July 2016 the Court of Cassation dismissed the appeal, finding that the ground of appeal relied on had been based on an incomplete reading of the impugned judgment.",
"RELEVANT DOMESTIC LAW AND PRACTICEFramework Decision 2002/584/JAI",
"Framework Decision 2002/584/JAI",
"Framework Decision 2002/584/JAI",
"23. For the purposes of the present case the Court refers to its judgment in Pirozzi v. Belgium (no. 21055/11, §§ 24-29, 17 April 2018), which sets out the relevant provisions of Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, together with a summary of the case-law of the Court of Justice of the European Union (“the CJEU”) in that regard.",
"24. Mention should also be made of the CJEU judgment in the case of Generalstaatsanwaltschaft (Conditions of detention in Hungary) (Case C ‑ 220/18 PPU, judgment of 25 July 2018). This judgment expanded on the methodology set out in the judgment in Aranyosi and Căldăraru (Joined Cases C‑404/15 and C‑659/15, judgment of 5 April 2016) and determined the extent of the assessment which the executing member State had to undertake where it had evidence pointing to systemic or generalised deficiencies with regard to the conditions of detention in prisons in the issuing State. The CJEU held, in substance, firstly, that the executing judicial authorities were required only to assess the actual and precise conditions of detention of the person concerned that were relevant in determining whether he or she was at real risk of being subjected to inhuman or degrading treatment. Secondly, where the issuing authority had given assurances that the person concerned would not be subjected to such treatment, the executing authority, in view of the mutual trust between the judicial authorities of the member States, had to rely on those assurances, in the absence of any specific indications that the conditions of detention were in breach of Article 4 of the Charter of Fundamental Rights of the European Union.",
"The European Arrest Warrant Act of 19 December 2003",
"25. In Belgium, the above-mentioned framework decision was transposed by means of the European Arrest Warrant Act of 19 December 2003, the relevant provisions of which read as follows:",
"Section 2",
"“1. The arrest and surrender of persons sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order between Belgium and the other Member States of the European Union shall be governed by this Act.",
"2. The arrest and surrender shall be carried out on the basis of a European arrest warrant.",
"3. The European arrest warrant is a judicial decision issued by the competent judicial authority of a European Union Member State, referred to as the issuing judicial authority, with a view to the arrest and surrender by the competent judicial authority of another Member State, referred to as the executing authority, of a person sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.",
"...”",
"Section 3",
"“A European arrest warrant may be issued for acts punishable under the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.”",
"Section 4",
"“Execution of the European arrest warrant shall be refused in the following cases:",
"1. If the offence on which the arrest warrant is based is covered by amnesty in Belgium, where Belgium had jurisdiction to prosecute the offence under its own law.",
"2. If it transpires from the information available to the judge that the requested person has been the subject of a final judgment in Belgium or in another Member State in respect of the same acts, provided that, where sentence has been passed, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State, or where a final judgment has been given in respect of the requested person in Belgium or in another Member State in relation to the same acts, which prevents further proceedings.",
"3. If the person who is the subject of the European arrest warrant may not, owing to his or her age, be held criminally responsible for the acts on which the arrest warrant is based under Belgian law.",
"4. Where the criminal prosecution or punishment of the requested person is statute-barred according to Belgian law and the acts fall within the jurisdiction of the Belgian courts.",
"5. If there are substantial grounds for believing that execution of the European arrest warrant would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union.",
"...”",
"Section 11",
"“1. Within twenty-four hours following the actual deprivation of liberty, the person concerned shall be brought before an investigating judge, who shall inform him or her (1) of the existence and content of the European arrest warrant; (2) of the possibility of consenting to his or her surrender to the issuing judicial authority; and (3) of the right to choose a lawyer and an interpreter.",
"This information shall be mentioned in the record of the hearing.",
"...”",
"Section 15",
"“If the investigating judge deems the information provided by the issuing Member State in the European arrest warrant to be insufficient to enable a decision to be taken on the person’s surrender, he or she shall make an urgent request for the additional information required and may stipulate a time-limit for receiving it, taking account of the need to comply with the time-limit laid down in section 16(1).",
"...”",
"Extraterritorial jurisdiction of the Belgian courts in criminal matters",
"26. Article 4 of the Belgian Criminal Code provides:",
"“Offences committed outside the territory of the Kingdom of Belgium by Belgians or foreign nationals shall be punishable in Belgium only in those cases stipulated by law.”",
"27. The relevant provisions concerning the extraterritorial jurisdiction of the Belgian courts in criminal matters are contained in the preliminary part of the Code of Criminal Procedure:",
"Article 6",
"“Criminal proceedings may be brought in Belgium against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits one of the following:",
"1. a criminal offence against State security;",
"1 bis. a serious violation of international humanitarian law for the purposes of Title I bis of Book II of the Criminal Code;",
"1 ter. a terrorist offence under Title I ter of Book II of the Criminal Code.",
"2. A criminal offence against public confidence as laid down in Chapters I, II and III of Book II, Title III, of the Criminal Code or an offence under Articles 497 and 497 bis, if the offence in question concerns either the euro or other currencies which are legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of the Belgian State or public authorities or institutions.",
"3. A criminal offence against public confidence under the same provisions, if the offence in question concerns currencies which are not legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of another country.",
"In the latter case prosecution shall be possible only where the Belgian authority receives official notice from the authority of the country concerned.”",
"Article 7",
"“1. Criminal proceedings may be brought against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits an act classified as a criminal offence under Belgian law, if the act in question is punishable by the legislation of the country where it was committed.",
"2. If the offence was committed against a foreign national, a prosecution may be brought only on an application by the public prosecutor. It must also be preceded by a complaint from the aggrieved foreign national or his or her family, or by official notice given to the Belgian authority by the authority of the country in which the offence was committed.",
"If the offence was committed in wartime against a national of a country allied with Belgium for the purposes of the second paragraph of Article 117 of the Criminal Code, the official notice may also be given by the authority of the country of which the foreign national is or was a national.”",
"RELEVANT INTERNATIONAL INSTRUMENT",
"28. In its concluding observations on the sixth periodic report of Spain, adopted at its 3192nd meeting held on 20 July 2015, the United Nations Human Rights Committee addressed the issue of incommunicado detention in the following terms:",
"“17. The Committee reiterates its concern at the practice of court-authorized incommunicado detention. The Committee notes the initiative to reform the Code of Criminal Procedure and the information provided by the State party concerning the reduced use of incommunicado detention, but regrets that the reform does not abolish incommunicado detention or guarantee all the rights set out in article 14 of the Covenant, including the right to legal aid (arts. 7, 9, 10 and 14).",
"The Committee reiterates its previous recommendations (CCPR/C/ESP/CO/5, para. 14) and recommends once again that the State party should take the necessary legislative measures to put an end to incommunicado detention and to guarantee the rights of all detainees to medical services and to freely choose a lawyer whom they can consult in complete confidentiality and who can be present at interrogations.”"
] | [
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION",
"29. The applicants alleged a violation of Article 2 of the Convention by the Belgian authorities, arguing that the decision not to execute the European arrest warrants prevented the suspected perpetrator of their father’s murder from being prosecuted by the Spanish authorities. The applicants also raised an issue of access to a court under Article 6 of the Convention.",
"30. The Court reiterates that it has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).",
"31. In the instant case, noting that the applicants’ complaints cover the same ground, it considers it appropriate to examine them under Article 2 of the Convention alone. The relevant parts of that Article provide:",
"“1. Everyone’s right to life shall be protected by law. ...”",
"AdmissibilityWhether the applicants come within Belgium’s jurisdiction",
"Whether the applicants come within Belgium’s jurisdiction",
"Whether the applicants come within Belgium’s jurisdiction",
"32. Article 1 of the Convention provides:",
"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”",
"(a) The parties’ submissions",
"33. The Government submitted that the present case did not fall within the jurisdiction of the Belgian State within the meaning of Article 1 of the Convention. The applicants were in Spain and the proceedings concerning their father’s murder had been conducted, and continued to be conducted, in the Spanish courts. Moreover, the murder had taken place in Spain and no connection with Belgium had been invoked. Furthermore, the Belgian authorities’ refusal to execute the European arrest warrant had been based on considerations relating to the treatment of prisoners in Spain. While it was true that N.J.E now came prima facie within the jurisdiction of the Belgian courts, it could not be inferred from this that the same applied to the victims, who had no connection to that country. While acknowledging that the procedure for the execution of a European arrest warrant did not allow the applicants to intervene and that the decisions complained of had had an (indirect) impact on their interests, the Government nevertheless stressed that the applicants had never been parties to proceedings in Belgium.",
"34. The Government submitted that the applicants essentially came within Spain’s jurisdiction and should therefore have lodged a complaint against Spain with the Court. It was primarily Spain’s responsibility to conduct an investigation into their father’s murder in 1981 and to prosecute the suspected perpetrators and N.J.E, in accordance with Article 2 of the Convention. The present case was to be distinguished from cases in which the Court had recognised that the State to which the suspected perpetrator had fled could have jurisdiction within the meaning of Article 1 of the Convention. Firstly, Belgium had never instituted an investigation into the murder of the applicants’ father. Secondly, it could not be argued that the Belgian State had any obligation under Article 2 to obtain evidence. There had never been any question of this in the proceedings concerning the European arrest warrant, and in view of the time elapsing between the murder and the first set of proceedings in Belgium, the idea of still being able to gather evidence was somewhat illusory. Thirdly, the Government stressed that Belgium had cooperated with Spain and that it was only in the course of that cooperation that the Belgian courts, applying Article 3 of the Convention in particular, had decided not to surrender N.J.E. From that standpoint it was clear that the harm alleged by the applicants did not stem from the conduct of the Belgian authorities, but rather from the situation in Spanish prisons at the time of the refusal decision.",
"35. The applicants argued that although, from a criminal-law perspective, prosecution of the offence in the present case was a matter for the Spanish judicial authorities, it had not been possible to bring that prosecution to a successful conclusion as the actual perpetrator had escaped the jurisdiction of the Spanish courts. In their view, it was not for the Belgian authorities to carry out any investigative measures, as that stage had already been completed in Spain; their task was to allow N.J.E. to be tried in Spain, by executing the European arrest warrant issued in 2015. The Spanish authorities had done everything in their power to investigate the case by instituting an independent investigation and carrying out all the necessary inquiries in order to establish the facts and the persons responsible.",
"(b) The Court’s assessment",
"36. The Court reiterates that “jurisdiction” under Article 1 of the Convention is a threshold criterion and is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019).",
"37. The Court further observes that, in the context of the procedural limb of Article 2 concerning deaths occurring under a different jurisdiction from that of the State in respect of which the procedural obligation is said to arise, the Grand Chamber has recently specified that, where no investigation or proceedings have been instituted in the respondent State in respect of a death which has occurred outside its jurisdiction, a jurisdictional link may nevertheless be established and a procedural obligation may arise for that State under Article 2. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, “special features” in a given case may justify departure from this approach (ibid., § 190, referring to Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-44, ECHR 2010 (extracts)).",
"38. In the present case the applicants’ complaint under Article 2 of the Convention with regard to Belgium concerns the alleged failure of the Belgian authorities to cooperate with the Spanish authorities by taking the necessary steps to enable the suspected murderer of the applicants’ father, who had fled to Belgium, to be tried in Spain.",
"39. Hence, unlike in the cases of Güzelyurtlu and Others and Rantsev, cited above, the Article 2 complaint is not based on the assertion that the Belgian authorities failed to fulfil a procedural obligation to investigate the murder themselves.",
"40. That being said, the Court does not see this as a reason for distinguishing the present case for the purposes of determining whether there is a jurisdictional link with Belgium, and considers it appropriate to apply the principles set forth in that regard in Güzelyurtlu and Others.",
"41. Applying, mutatis mutandis, the case-law cited above (see paragraph 37), the Court notes that N.J.E., the suspected perpetrator of the killing, fled to Belgium and remains there to this day. In the context of the mutual undertakings given by the two States in the sphere of cooperation in criminal matters, in this instance under the European arrest warrant scheme (see paragraphs 23-24 above), the Belgian authorities were subsequently informed of the Spanish authorities’ intention to institute criminal proceedings against N.J.E., and were requested to arrest and surrender her.",
"42. These special features of the case suffice for the Court to consider that a jurisdictional link exists between the applicants and Belgium for the purposes of Article 1 of the Convention with regard to the applicants’ complaint under the procedural limb of Article 2 of the Convention (see, mutatis mutandis, Güzelyurtlu and Others, cited above, §§ 194-96).",
"43. The Court therefore concludes that the Government’s preliminary objection of incompatibility ratione loci should be dismissed. In assessing the complaint on the merits, it will have to determine the scope and extent of the procedural obligation on Belgium to cooperate in the circumstances of the present case.",
"Whether the applicants have victim status",
"(a) The parties’ submissions",
"44. The Government questioned the existence of a causal link between the refusal of the Belgian courts and the hypothetical failure ultimately to recognise N.J.E.’s responsibility. The option of the European arrest warrant had been chosen by the Spanish authorities. When the Belgian authorities had refused execution, the Spanish authorities could also have explored other avenues. Other procedures, such as conducting proceedings in absentia in Spain, should have been possible. The applicants’ argument that the Spanish Constitution prohibited such proceedings, and that the Belgian authorities should therefore be more “cooperative”, was problematic in that it made Belgium’s obligations under Article 2 of the Convention contingent on the provisions of the Spanish Constitution; at the same time, Belgium could not be criticised for complying with its obligations under Article 3 of the Convention.",
"45. The applicants, relying on the Court’s case-law, submitted that they had victim status as the children of the murder victim. In view of the provisions of both Spanish and Belgian law, the issuing of a European arrest warrant by the Spanish authorities was the only appropriate means of securing N.J.E.’s prosecution. In their view, the fact that no proceedings could be brought against N.J.E. was attributable solely to the conduct of the Belgian authorities. In that connection the applicants asserted that the reason why sentence could not be passed in absentia in Spain was in order to prevent infringements of the right to a fair trial under Article 24.1 of the Spanish Constitution. The prohibition applied to acts punishable by a custodial sentence of more than one year (Article 841 of the Code of Criminal Procedure).",
"(b) Observations of the third-party interveners",
"46. The Spanish Government confirmed that the refusal of the Belgian judicial authorities meant that the requested person would never be prosecuted for her involvement in the murder. If she was not surrendered she could not be tried in the Spanish courts. Furthermore, according to the Belgian courts’ own findings, N.J.E. could under no circumstances be tried in the Belgian courts if she was not surrendered to Spain.",
"47. N.J.E. stressed that victims who lodged a civil claim could not intervene in the proceedings for execution of a European arrest warrant, since the investigating courts did not rule on the merits of the case or on damages, but simply returned a suspect to the country where he or she was the subject of an ongoing judicial investigation. Likewise, civil parties did not fall within the jurisdiction of the aforementioned courts, as the procedure for execution of a European arrest warrant was an inter-State procedure, as was clear from the EU framework decision and the Belgian legislation on the European arrest warrant.",
"(c) The Court’s assessment",
"48. The Court refers to the applicable principles regarding victim status for the purposes of Article 34 of the Convention, as set out in particular in its judgment in Vallianatos and Others v. Greece ([GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)).",
"49. The Court observes, in particular, that it has accepted that close family members of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2 of the Convention (see, for instance, McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III (in relation to children), and Van Colle v. the United Kingdom, no. 7678/09, § 86, 13 November 2012 (in relation to parents)).",
"50. Regard being had to this case-law, the Court considers that the applicants in the present case have victim status for the purposes of Article 34 of the Convention.",
"Exhaustion of domestic remedies",
"(a) The parties’ submissions",
"51. The Government submitted that the applicants had not exhausted domestic remedies. While one of the applicants had joined the criminal proceedings in the Spanish courts as a civil party, this was irrelevant in so far as their application was only against Belgium. Although the application was directed solely against the Belgian State, the applicants had not taken any procedural steps in Belgium apart from the “informal courtesy correspondence” between one of the applicants and the President of the Court of Cassation. The Government conceded that the applicants could not be criticised for not intervening in the proceedings for execution of the European arrest warrant as victims of the alleged offence, since those proceedings mainly concerned the public prosecutor’s office and the arrested person whose surrender was requested. However, it was clear from the letter of 27 November 2014 from the President of the Court of Cassation (see paragraph 16 above) that the door had been open to dialogue in order to explore with the federal prosecuting authorities possible means of overcoming the refusal to execute the European arrest warrant. In their additional observations the Government also referred to the option available to the applicants of making an application under the urgent procedure or bringing an action for damages.",
"52. For their part, the applicants argued that they had exhausted domestic remedies in Spain, as one of the applicants had participated as a civil party in the criminal proceedings in the Spanish courts concerning their father’s murder. As to Belgium, they contended that domestic remedies had been exhausted by means of the appeals lodged by the Federal Prosecutor’s Office, given the latter’s task of representing victims, and that they could not lodge any other appeal or take other procedural steps. In their view, the letter they had received from the President of the Court of Cassation was to be regarded purely as a courteous and informal reply to the victims.",
"(b) The Court’s assessment",
"53. The Court reiterates that the rule on the exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights. The Court has also accepted that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-84, 9 July 2015, with further references).",
"54. As regards the burden of proof, it is incumbent on the respondent Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77, and Gherghina, cited above, §§ 88-89, with further references).",
"55. Turning to the particular circumstances of the present case, the Court notes that the Spanish authorities instituted a criminal investigation into the case and that one of the applicants joined the criminal proceedings against N.J.E. in Spain as a civil party. However, the present case concerns the proceedings for execution of the European arrest warrant in the Belgian courts, which are the direct source of the current inability to prosecute N.J.E.; there is no provision, either under the framework decision or under Belgian law, for the applicants to take part or intervene in those proceedings.",
"56. As to the Government’s argument concerning the letter from the President of the Court of Cassation and their contention that the applicants could have contacted the Belgian Federal Prosecutor’s Office with a view to finding a means of overcoming the refusal to execute the European arrest warrant, the Court considers that this option is vague and speculative and cannot be regarded as capable of remedying directly the impugned state of affairs or offering reasonable prospects of success (see, in particular, paragraphs 11 and 26 above).",
"57. As regards an urgent application or an action for damages, the Court notes that the Government did not produce any evidence in support of their claim apt to demonstrate that these remedies would be effective in the present case.",
"58. Hence, while it is true that the applicants did not make use of the remedies suggested by the Government, the Court considers that the Government, with whom the burden of proof lies in this regard (see paragraph 54 above), have not demonstrated that the use of the remedies to which they referred would be capable of affording redress in respect of the applicants’ complaint under Article 2 of the Convention.",
"59. In view of the foregoing, the Court considers that the application should not be dismissed for failure to exhaust domestic remedies.",
"The six-month time-limit",
"(a) The parties’ submissions",
"60. Lastly, the Government raised an objection of failure to comply with the six-month time-limit. They argued that the harm alleged by the applicants did not stem from the refusal to execute the 2015 European arrest warrant, but rather from the decision of the Indictments Division of 31 October 2013, upheld by the Court of Cassation on 19 November 2013, refusing to execute the European arrest warrants issued in 2004 and 2005. They therefore criticised the applicants for not challenging this first refusal decision before the Court. Moreover, the Indictments Division had held on 14 July 2016 that the 2015 arrest warrant did not contain any new information compared with the warrants issued in 2004 and 2005.",
"61. The applicants argued that the information concerning the follow-up by the CPT, referred to in the European arrest warrant issued on 8 May 2015, had clarified the situation in Spanish prisons and the conditions of the detention regime applicable to suspected terrorists, prompting the Spanish judicial authorities to issue this new arrest warrant, the refusal to execute which had triggered the start of a new six-month period. They therefore submitted that this period had started running on 27 July 2016, the date of the final Court of Cassation judgment terminating the domestic proceedings.",
"(b) The Court’s assessment",
"62. In the present case the Court notes that, although the first set of surrender proceedings indeed ended with a Court of Cassation judgment of 19 November 2013, the Government did not adduce any evidence demonstrating that the applicants, who had not been parties to the proceedings in question, had been informed of this development at that time. Only as of the time when the applicants wrote to the President of the Court of Cassation, on 17 November 2014 (see paragraph 16 above), can it be said with certainty that they were aware of the Belgian authorities’ refusal. On 8 May 2015, that is, within six months of that contact, a fresh European arrest warrant based on new information was issued by the Spanish courts (see paragraph 17 above). There followed a new set of proceedings for execution of the arrest warrant, which terminated with a Court of Cassation judgment of 27 July 2016.",
"63. Reiterating that Article 35 § 1 of the Convention cannot require an applicant to lodge his or her complaint with the Court before his or her position in connection with the matter has been finally settled at the domestic level, the Court considers that the six-month period in the present case began running on 27 July 2016.",
"64. In the light of the foregoing, the Court concludes that the Government’s objection that the application was lodged out of time should be dismissed.",
"Conclusion as to admissibility",
"65. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.",
"MeritsThe parties’ submissions",
"The parties’ submissions",
"The parties’ submissions",
"(a) The applicants",
"66. The applicants contended that the Belgian State’s refusal to execute the European arrest warrants issued by the Spanish authorities in respect of the suspected perpetrator of their father’s murder was unjustified and manifestly unreasonable, and was therefore in breach of the procedural aspect of Article 2 of the Convention. Taking as its basis an arbitrary assessment of one of the exceptions allowed to the execution of a European arrest warrant, it made it effectively impossible for the suspected perpetrator of their father’s murder to be tried.",
"67. In the applicants’ view, even if the Belgian courts had noted a risk of a breach of N.J.E.’s fundamental rights, they should not have refused to surrender her on that ground alone. The Belgian courts had had a duty to specify the alleged risk in the individual case by examining the specific and practical impact which the surrender was liable to have on N.J.E. In order to do that, they should have requested more information from the Spanish authorities concerning the conditions of detention to which N.J.E. would have been subjected. This would have enabled Spain, as the State issuing the European arrest warrant, to provide assurances that N.J.E. would not be subjected to inhuman or degrading treatment.",
"68. As to the reasons given by the Belgian courts, the applicants contended that these were political rather than legal and that they were inaccurate. During the second set of surrender proceedings the Belgian courts had merely echoed the arguments advanced by the Indictments Division of the Ghent Court of Appeal in its order of 31 October 2013, thereby reproducing a “false, mistaken and inappropriate” portrayal of Spain.",
"69. In contrast to the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), the international reports in the present case were not sufficient to rebut the presumption of observance of human rights. The shortcomings that had been highlighted related solely to the conditions of incommunicado detention, which did not apply in the case of a surrender requested for the purposes of a criminal prosecution, as in the present case. In view of the time that had elapsed since the events in issue and the fact that “the legal criteria for application” were not met (see paragraph 78 below), and given that the other members of the commando unit had already been convicted, the regime of incommunicado detention in police custody would in no circumstances be applied in N.J.E.’s case, and she would be brought directly before the judicial authorities. The applicants criticised the Belgian authorities for not obtaining this information from their Spanish counterparts.",
"70. Lastly, relying on a report from the State Secretariat for Security of the Spanish Interior Ministry, the applicants asserted that between 2011 and 2017 European arrest warrants issued by the Spanish judicial authorities, concerning 70 individuals linked to the terrorist organisation ETA, had been executed and that the countries executing the warrants (including France, the United Kingdom and Italy) had not identified any risk of a violation of the fundamental rights of the persons to be surrendered. Moreover, it emerged from the report that Belgium itself had executed four European arrest warrants issued by the Audiencia Nacional in respect of suspected members of ETA (in 2005, 2010 and 2011).",
"(b) The Belgian Government",
"71. The Belgian Government stressed that the obligations arising under the procedural limb of Article 2 lay first and foremost with the Spanish State. While it was true that the Court had found that, where several States were involved, the other States could also have obligations under Article 2 of the Convention, the Court should find in the present case that Belgium had fulfilled its obligation to cooperate. The Belgian judicial authorities had arrested N.J.E. Only later, during the proceedings before the investigating courts, had it become clear that N.J.E. could not be surrendered owing to the real risk that she would be subjected to ill-treatment in Spanish prisons. Hence, although the Belgian authorities had wished to cooperate with Spain, their obligations under Article 3 of the Convention had prevented this cooperation from resulting in N.J.E.’s surrender.",
"72. The Government emphasised the very awkward situation facing the Belgian authorities in that regard. Whatever option they chose they were in danger of breaching the Convention. That situation was especially regrettable given that Belgium was not responsible either for the criminal investigation in Spain or for the situation in Spanish prisons and that no investigation was being conducted in Belgium.",
"73. In such a situation the Court’s role was to ascertain whether the national authorities had struck a fair balance between the competing rights and had taken all the relevant factors into account. In that connection, given the absolute nature of Article 3, it should be regarded as normal for the Belgian judicial authorities to give precedence to the protection of this absolute right over their duty to cooperate in the context of the procedural limb of Article 2.",
"74. The Government further stressed that the Belgian courts had based their decisions on reports by the CPT and the United Nations Human Rights Committee. Consequently, they could not be said to have taken those decisions lightly, in arbitrary fashion or without credible supporting information.",
"75. Lastly, the Government argued that the presumption of protection of human rights which underpinned the system of mutual trust between EU member States, of which the European arrest warrant formed a part, was not an “irrebuttable presumption”. Referring to recitals 12 and 13 of the Framework Decision on the European arrest warrant and to section 4(5) of the Belgian European Arrest Warrant Act, they argued that the principle of mutual trust could not displace the obligation of States Parties to the Convention to satisfy themselves that a person’s removal was not liable to result in an infringement of his or her fundamental rights in the requesting State.",
"76. Pointing out that in the present case nobody questioned the fact that N.J.E. was of Basque origin and was suspected of involvement in ETA’s activities, the Government submitted that the two criteria laid down by the Court with regard to Article 3 of the Convention – namely, the availability of reliable international reports demonstrating the existence of the risks in question and the ability of the applicant to demonstrate that he or she belonged to a group targeted by the measures allegedly contrary to that provision – had been met in the present case.",
"77. The Government concluded that in view of the information available to the Belgian courts at the time they took their decisions, and of the obligations flowing from Article 3 of the Convention, those courts had acted in full compliance with Belgium’s obligations under the Convention and could not be said to have infringed Article 2 of the Convention.",
"(c) Observations of the third-party interveners",
"78. The Spanish Government contended that the Belgian authorities’ refusal to execute the European arrest warrant had been based on general, erroneous considerations rather than on any actual circumstance applicable to the requested person. They argued in particular, citing the report on the Spanish legislation concerning incommunicado detention in police custody referred to in the European arrest warrant, that the legislation in question was not applicable in N.J.E.’s case, as the legal regime in question applied only for the first five days following the initial detention of a suspected terrorist, in order to prevent evidence being lost or the damage caused to the victims being aggravated, and to prevent further attacks. Moreover, Spain was a democracy of almost forty years’ standing, with one of the most advanced constitutions with regard to human rights protection, and was the country with the fewest cases before the Court in relative terms. Relying on the Court’s case-law, the Spanish Government concluded that there was no real or substantial risk that N.J.E. would be subjected to any violation of Article 3 if she were tried before the Spanish courts.",
"The Court’s assessment",
"79. Having already concluded that the applicants come within Belgian jurisdiction, the Court must now determine the extent and scope of Belgium’s procedural obligation to cooperate in the circumstances of the present case (see paragraphs 42-43 above). It will then have to ascertain to what extent Belgium complied with that obligation.",
"80. The Court observes that the applicants’ complaint under Article 2 of the Convention stemmed from the refusal of the Belgian courts to execute the European arrest warrants issued by the Spanish authorities in respect of N.J.E. They complained that the Belgian authorities’ refusal to execute the European arrest warrants deprived them of the enjoyment of their right to an effective official investigation by Spain. As the Court has already stressed, it is therefore not called upon to determine whether Belgium is responsible for any acts or procedural omissions in the context of an investigation into the case, which falls exclusively within the jurisdiction of the Spanish authorities.",
"81. That being said, the Court observes that in its judgment in Güzelyurtlu and Others (cited above, §§ 232-35), it found as follows in this regard:",
"“232. The Court has previously held that in interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms ... This collective character may, in some specific circumstances, imply a duty for Contracting States to act jointly and to cooperate in order to protect the rights and freedoms they have undertaken to secure within their jurisdiction ... In cases where an effective investigation into an unlawful killing which occurred within the jurisdiction of one Contracting State requires the involvement of more than one Contracting State, the Court finds that the Convention’s special character as a collective enforcement treaty entails in principle an obligation on the part of the States concerned to cooperate effectively with each other in order to elucidate the circumstances of the killing and to bring the perpetrators to justice.",
"233. The Court accordingly takes the view that Article 2 may require from both States a two-way obligation to cooperate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there.",
"234. Such a duty is in keeping with the effective protection of the right to life as guaranteed by Article 2. Indeed, to find otherwise would sit ill with the State’s obligation under Article 2 to protect the right to life, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, since it would hamper investigations into unlawful killings and necessarily lead to impunity for those responsible. Such a result could frustrate the purpose of the protection under Article 2 and render illusory the guarantees in respect of an individual’s right to life. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective ...",
"235. The Court notes, however, that the obligation to cooperate, which is incumbent on States under the procedural limb of Article 2, can only be an obligation of means, not one of result, in line with what the Court has established in respect of the obligation to investigate ... This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. In this connection, the Court is aware that Contracting States cannot cooperate with each other in a legal vacuum; specific formalised modalities of cooperation between States have developed in international criminal law. This approach is consistent with the previous transnational cases under the procedural limb of Articles 2, 3 and 4, in which the Court has generally referred to existing extradition and other mutual assistance instruments binding on the States concerned ...",
"236. ... In this context, the procedural obligation to cooperate will only be breached in respect of a State required to seek cooperation if it has failed to trigger the proper mechanisms for cooperation under the relevant international treaties; and in respect of the requested State, if it has failed to respond properly or has not been able to invoke a legitimate ground for refusing the cooperation requested under those instruments.”",
"82. In the present case the mechanism under which Spain sought Belgium’s cooperation was the system put in place within the EU by the Framework Decision on the European arrest warrant (see paragraphs 23-24 above). Applying the principles set out above, the Court must therefore first examine whether, in this context, the Belgian authorities responded properly to the request for cooperation. It must then verify whether the refusal to cooperate was based on legitimate grounds.",
"83. As regards the first question, the Court observes that the Belgian authorities provided their Spanish counterparts with a properly reasoned response. As the Belgian Court of Cassation pointed out in its judgment of 19 November 2013, the mechanism in question is based on a high degree of trust between member States which entails a presumption of observance of fundamental rights by the issuing State. In view of this principle, any refusal to surrender an individual must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in question. In the present case the Court of Cassation found that the Indictments Division of the Ghent Court of Appeal, in its judgment of 31 October 2013, had provided legal justification, on the basis of section 4(5) of the Belgian European Arrest Warrant Act, for its decision to refuse execution of the European arrest warrants issued by the Spanish investigating judge, on account of the risk of an infringement of N.J.E.’s fundamental rights in the event of her surrender to Spain, and in particular the risk that she would be detained there in conditions contrary to Article 3 of the Convention (see paragraph 12 above). In its judgment of 14 July 2016 the Indictments Division essentially referred to its previous judgment, taking the view that the fresh information referred to in the new European arrest warrant did not call for a different assessment and that the previous assessment was in fact confirmed by the observations made by the Human Rights Committee in 2015 (see paragraph 20 above).",
"84. The Court notes that the approach taken by the Belgian courts is compatible with the principles it has set out in its case-law (see Pirozzi, cited above, §§ 57-64, which echoes the methodology advocated in Avotiņš v. Latvia [GC], no. 17502/07, §§ 105-27, 23 May 2016). According to that case-law, in the context of execution of a European arrest warrant by an EU member State, the mutual recognition mechanism should not be applied automatically and mechanically to the detriment of fundamental rights.",
"85. As to the second question the Court emphasises that, from the standpoint of the Convention, a risk to the person whose surrender is sought of being subjected to inhuman and degrading treatment on account of the conditions of detention in Spain may constitute a legitimate ground for refusing execution of the European arrest warrant and thus for refusing cooperation with Spain. Nevertheless, given the presence of third-party rights, the finding that such a risk exists must have a sufficient factual basis.",
"86. In this connection the Court notes that the Indictments Division based its decision mainly on international reports and on the context of “Spain’s contemporary political history” (see paragraph 12 above). In its judgment of 31 October 2013 it referred in particular to the report drawn up following the CPT’s periodic visit to Spain a few years previously, in 2011. Despite the information provided in support of the European arrest warrant issued on 8 May 2015, particularly regarding the fact that the CPT’s subsequent reports made no mention of the issue and regarding the characteristics of incommunicado detention in Spain (see paragraph 17 above), the Indictments Division, in its judgment of 14 July 2016, found that the information in question did not enable it to depart from the assessment it had made in 2013 (see paragraph 20 above). It is true that the Indictments Division referred to observations published in 2015 by the Human Rights Committee concerning the existence of incommunicado detention (see paragraph 28 above), but it did not conduct a detailed, updated examination of the situation prevailing in 2016 and did not seek to identify a real and individualised risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain.",
"87. The Court also notes that, according to the Spanish Government’s observations concerning the legislative framework governing incommunicado detention, that regime would not be applicable in a situation such as that in the present case. As this issue was not discussed before the Belgian courts, the Court does not consider it necessary to determine it.",
"88. The Court further takes note of the applicants’ argument, not disputed by the Government, to the effect that numerous European arrest warrants had been issued and executed in respect of suspected members of ETA without the executing States identifying any risk of a violation of the fundamental rights of the persons being surrendered, and that Belgium had been among the executing States (see paragraph 70 above).",
"89. Lastly, the Court is of the view that the circumstances of the case and the interests at stake should have prompted the Belgian authorities, making use of the possibility afforded by Belgian law (section 15 of the European Arrest Warrant Act, see paragraph 25 above), to request additional information concerning the application of the detention regime in N.J.E.’s case, and in particular concerning the place and conditions of detention, in order to ascertain whether there was a real and concrete risk of a violation of the Convention in the event of her surrender.",
"90. In view of the foregoing, the Court considers that the examination conducted by the Belgian courts during the surrender proceedings was not sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had a sufficient factual basis.",
"91. The Court therefore concludes that Belgium failed in its obligation to cooperate arising under the procedural limb of Article 2 of the Convention, and that there has been a violation of that provision.",
"92. The Court would emphasise that this finding of a violation of Article 2 of the Convention does not necessarily entail a requirement for Belgium to surrender N.J.E. to the Spanish authorities. The reason which has prompted the Court to find a violation of Article 2 is the lack of sufficient factual basis for the refusal to surrender her. This in no way releases the Belgian authorities from their obligation to ensure that in the event of her surrender to the Spanish authorities N.J.E. would not run a risk of treatment contrary to Article 3 of the Convention. More generally, this judgment cannot be construed as lessening the obligation for States not to extradite a person to a requesting country where there are serious grounds to believe that if the person is extradited to that country he or she will run a real risk of being subjected to treatment contrary to Article 3 (see, in particular, Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Trabelsi v. Belgium, no. 140/10, § 116, ECHR 2014 (extracts)), and hence to verify that no such risk exists.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"93. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"Damage",
"94. The applicants claimed an overall amount of 150,000 euros (EUR) in respect of the non-pecuniary damage they had allegedly sustained on account of the violation of the procedural limb of Article 2 of the Convention.",
"95. The Government contended that the amount claimed by the applicants did not correspond to the Court’s practice in cases of this kind, and that the award should in any event not exceed EUR 5,000.",
"96. The Court observes that the Belgian State is not responsible for the death of the applicants’ father or the resulting suffering. Nevertheless, it considers that the Belgian authorities’ failure to cooperate, which made it impossible to prosecute the suspected murderer of the applicants’ father, must have caused the applicants considerable distress and frustration. Ruling on an equitable basis as required by Article 41, it awards the applicants EUR 5,000 each under this head.",
"Costs and expenses",
"97. Submitting documentary evidence, the applicants claimed EUR 7,260 for the costs and expenses incurred in the proceedings before the Court.",
"98. The Government left the matter to the Court’s discretion.",
"99. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, in view of the documents in its possession, the Court considers the amount claimed for the proceedings before it to be reasonable and awards it to the applicants.",
"Default interest",
"100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
296 | McCann and Others v. the United Kingdom | 27 September 1995 | Three members of the Provisional IRA, suspected of having on them a remote control device to be used to explode a bomb, were shot dead on the street by SAS (Special Air Service) soldiers in Gibraltar. The applicants, who are representatives of their estates, alleged that the killing of the deceased by members of the security forces constituted a violation of Article 2 (right to life) of the Convention. | The Court held that there had been a violation of Article 2 (right to life) of the Convention because the operation could have been planned and controlled without the need to kill the suspects. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"12. The facts set out below, established by the Commission in its report of 4 March 1994 (see paragraphs 132 and 142 below), are drawn mainly from the transcript of evidence given at the Gibraltar inquest (see paragraph 103 below).",
"I. PARTICULAR CIRCUMSTANCES OF THE CASE",
"13. Before 4 March 1988, and probably from at least the beginning of the year, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA (Irish Republican Army - \"IRA\") were planning a terrorist attack on Gibraltar. It appeared from the intelligence received and from observations made by the Gibraltar police that the target was to be the assembly area south of Ince ’ s Hall where the Royal Anglian Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00 hours.",
"14. Prior to 4 March 1988, an advisory group was formed to advise and assist Mr Joseph Canepa, the Gibraltar Commissioner of Police (\"the Commissioner\"). It consisted of Soldier F (senior military adviser and officer in the Special Air Service or \"SAS\"), Soldier E (SAS attack commander), Soldier G (bomb-disposal adviser), Mr Colombo (Acting Deputy Commissioner of Police), Detective Chief Inspector Ullger, attached to Special Branch, and Security Service officers. The Commissioner issued instructions for an operational order to be prepared to deal with the situation.",
"A. Military rules of engagement",
"15. Soldier F and his group, including Soldier E and a number of other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988. Preliminary briefings had been conducted by the Ministry of Defence in London. According to the military rules of engagement (entitled \"Rules of Engagement for the Military Commander in Operation Flavius\") issued to Soldier F by the Ministry of Defence, the purpose of the military forces being in Gibraltar was to assist the Gibraltar police to arrest the IRA active service unit (\"ASU\") should the police request such military intervention. The rules also instructed F to operate as directed by the Commissioner.",
"16. The rules also specified the circumstances in which the use of force by the soldiers would be permissible as follows:",
"\"Use of force",
"4. You and your men will not use force unless requested to do so by the senior police officer(s) designated by the Gibraltar Police Commissioner; or unless it is necessary to do so in order to protect life. You and your men are not then to use more force than is necessary in order to protect life ... Opening fire",
"5. You and your men may only open fire against a person if you or they have reasonable grounds for believing that he/she is currently committing, or is about to commit, an action which is likely to endanger your or their lives, or the life of any other person, and if there is no other way to prevent this.",
"Firing without warning",
"6. You and your men may fire without warning if the giving of a warning or any delay in firing could lead to death or injury to you or them or any other person, or if the giving of a warning is clearly impracticable.",
"Warning before firing",
"7. If the circumstances in paragraph 6 do not apply, a warning is necessary before firing. The warning is to be as clear as possible and is to include a direction to surrender and a clear warning that fire will be opened if the direction is not obeyed.\"",
"B. Operational order of the Commissioner",
"17. The operational order of the Commissioner, which was drawn up on 5 March 1988, stated that it was suspected that a terrorist attack was planned in Gibraltar and that the target was highly probably the band and guard of the First Battalion of the Royal Anglian Regiment during a ceremonial changing of the guard at Ince ’ s Hall on 8 March 1988. It stated that there were \"indications that the method to be used is by means of explosives, probably using a car bomb\". The intention of the operation was then stated to be",
"\"(a) to protect life;",
"(b) to foil the attempt;",
"(c) to arrest the offenders;",
"(d) the securing and safe custody of the prisoners\".",
"18. The methods to be employed were listed as police surveillance and having sufficient personnel suitably equipped to deal with any contingency. It was also stated that the suspects were to be arrested by using minimum force, that they were to be disarmed and that evidence was to be gathered for a court trial. Annexed to the order were, inter alia, lists of attribution of police personnel, firearms rules of engagement and a guide to firearms use by police (see paragraphs 136 and 137 below).",
"C. Evacuation plan",
"19. A plan for evacuation of the expected area of attack was drawn up on 5 March 1988 by Chief Inspector Lopez. It was to be put into effect on Monday or Tuesday (7-8 March). It included arrangements to evacuate and cordon off the area around Ince ’ s Hall to a radius of 200 m, identified the approach roads to be closed, detailed the necessary traffic diversions and listed the personnel to implement the plan. The plan was not, however, distributed to other officers.",
"D. Joint operations room",
"20. The operation in Gibraltar to counter the expected terrorist attack was run from a joint operations room in the centre of Gibraltar. In the operations room there were three distinct groups - the army or military group (comprising the SAS and bomb-disposal personnel), a police group and the surveillance or security service group. Each had its own means of communication with personnel on the ground operated from a separate control station. The two principal means of communication in use were, however, the two radio-communication networks known as the surveillance net and the tactical or military net. There was a bomb-disposal net which was not busy and, while the police had a net, it was not considered secure and a telephone appears to have been used for necessary communications with the central police station.",
"E. First sighting of the suspects in Spain on 4 March 1988",
"21. On 4 March 1988, there was a reported sighting of the ASU in Malaga in Spain. As the Commissioner was not sure how or when they would come to Gibraltar surveillance was mounted.",
"F. Operational briefing on 5 March 1988",
"22. At midnight between 5 and 6 March 1988, the Commissioner held a briefing which was attended by officers from the Security Services (including from the surveillance team Witnesses H, I, J, K, L, M and N), military personnel (including Soldiers A, B, C, D, E, F and G) and members of the Gibraltar police (Officers P, Q and R and Detective Chief Inspector Ullger, Head of Special Branch, and Detective Constable Viagas).",
"The Commissioner conducted the police aspect of the briefing, the members of the Security Services briefed on the intelligence aspects of the operation, the head of the surveillance team covered the surveillance operation and Soldier E explained the role of the military if they were called on for assistance. It then appears that the briefing split into smaller groups, E continuing to brief the soldiers under his command but in the same location.",
"The Commissioner also explained the rules of engagement and firearms procedures and expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists.",
"23. The briefing by the representative of the Security Services included inter alia the following assessments:",
"(a) the IRA intended to attack the changing of the guard ceremony in the assembly area outside Ince ’ s Hall on the morning of Tuesday 8 March 1988;",
"(b) an ASU of three would be sent to carry out the attack, consisting of Daniel McCann, Sean Savage and a third member, later positively identified as Mairead Farrell. McCann had been previously convicted and sentenced to two years ’ imprisonment for possession of explosives. Farrell had previously been convicted and sentenced to fourteen years ’ imprisonment for causing explosions. She was known during her time in prison to have been the acknowledged leader of the IRA wing of prisoners. Savage was described as an expert bomb-maker. Photographs were shown of the three suspects;",
"(c) the three individuals were believed to be dangerous terrorists who would almost certainly be armed and who, if confronted by security forces, would be likely to use their weapons;",
"(d) the attack would be by way of a car bomb. It was believed that the bomb would be brought across the border in a vehicle and that it would remain hidden inside the vehicle;",
"(e) the possibility that a \"blocking\" car - i.e. a car not containing a bomb but parked in the assembly area in order to reserve a space for the car containing the bomb - would be used had been considered, but was thought unlikely.",
"This possibility was discounted, according to Senior Security Services Officer O in his evidence to the inquest, since (1) it would involve two trips; (2) it would be unnecessary since parking spaces would be available on the night before or on a Tuesday morning; (3) there was the possibility that the blocking car would itself get blocked by careless parking. The assessment was that the ASU would drive in at the last moment on Monday night or on Tuesday morning. On the other hand Chief Inspector Lopez, who was not present at the briefing, stated that he would not have brought in a bomb on Tuesday since it would be busy and difficult to find a parking place.",
"1. Mode of detonation of bomb",
"24. Various methods of detonation of the bomb were mentioned at the briefing: by timing device, by RCIED (radio-controlled improvised explosive device) and by command wire. This last option which required placing a bomb connected to a detonator by a wire was discounted as impracticable in the circumstances. The use of a timer was, according to O, considered highly unlikely in light of the recent IRA explosion of a bomb by timer device at Enniskillen which had resulted in a high number of civilian casualties. Use of a remote-control device was considered to be far more likely since it was safer from the point of view of the terrorist who could get away from the bomb before it exploded and was more controllable than a timer which once activated was virtually impossible to stop.",
"25. The recollection of the others present at the briefing differs on this point. The police witnesses remembered both a timer and a remote-control device being discussed. The Commissioner and his Deputy expected either type of device. Chief Inspector Ullger recalled specific mention of the remote-control device as being more likely. The surveillance officers also thought that an emphasis was placed on the use of a remote-control device.",
"26. The military witnesses in contrast appear to have been convinced that it would certainly be a remote-control device. Soldier F made no mention of a timer but stated that they were briefed that it was to be a \"button job\", that is, radio-controlled so that the bomb could be detonated at the press of a button. He believed that there had been an IRA directive not to repeat the carnage of a recent bomb in Enniskillen and to keep to a minimum the loss of life to innocent civilians. It was thought that the terrorists knew that if it rained the parade would be cancelled and in that event, if a timer was used, they would be left with a bomb that would go off indiscriminately.",
"Soldier E also stated that at the briefing they were informed that the bomb would be initiated by a \"button job\". In answer to a question by a juror, he stated that there had been discussion with the soldiers that there was more chance that they would have to shoot to kill in view of the very short time factor which a \"button job\" would impose.",
"27. Soldiers A, B, C and D stated that they were told at the briefing that the device would be radio-controlled. Soldier C said that E stressed to them that it would be a \"button job\".",
"2. Possibility that the terrorists would detonate the bomb if confronted",
"28. Soldier O stated that it was considered that, if the means of detonation was by radio control, it was possible that the suspects might, if confronted, seek to detonate the device.",
"Soldier F also recalled that the assessment was that any one of the three could be carrying a device. In answer to a question pointing out the inconsistency of this proposition with the assessment that the IRA wished to minimise civilian casualties, F stated that the terrorists would detonate in order nonetheless to achieve some degree of propaganda success. He stated that the briefing by the intelligence people was that it was likely if the terrorists were cornered they would try to explode the bomb.",
"Soldier E confirmed that they had been told that the three suspects were ruthless and if confronted would resort to whatever weapons or \"button jobs\" they carried. He had particularly emphasised to his soldiers that there was a strong likelihood that at least one of the suspects would be carrying a \"button job\".",
"29. This was recalled, in substance, by Soldiers C and D. Soldier B did not remember being told that they would attempt to detonate if arrested but was aware of that possibility in his own mind. They were warned that the suspects were highly dangerous, dedicated and fanatical.",
"30. It does not appear that there was any discussion at the briefing as to the likely size, mode of activation or range of a remote-control device that might be expected. The soldiers appear to have received information at their own briefings. Soldier F did not know the precise size a radio detonator might be, but had been told that the device would be small enough to conceal on the person. Soldier D was told that the device could come in a small size and that it could be detonated by the pressing of just one button.",
"31. As regards the range of the device, Soldier F said that the military were told that the equipment which the IRA had was capable of detonating a radio-controlled bomb over a distance of a mile and a half.",
"G. Events on 6 March 1988",
"1. Deployment of Soldiers A, B, C and D",
"32. The operations room opened at 8.00 hours. The Commissioner was on duty there from 10.30 to 12.30 hours. When he left, Deputy Commissioner Colombo took his place. Members of the surveillance teams were on duty in the streets of Gibraltar as were Soldiers A, B, C and D and members of the police force involved in the operation. Soldiers A, B, C and D were in civilian clothing and were each armed with a 9mm Browning pistol which was carried in the rear waistband of their trousers. Each also carried a radio concealed on their person. They were working in pairs. In each pair, one was in radio communication on the tactical net and the other on the surveillance net. Police officers P, Q and R, who were on duty to support the soldiers in any arrest, were also in plain clothes and armed.",
"2. Surveillance at the border",
"33. On 6 March 1988, at 8.00 hours, Detective Constable Huart went to the frontier to keep observation for the three suspects from the computer room at the Spanish immigration post. He was aware of the real names of the three suspects and had been shown photographs. The Spanish officers had photographs. The computer room was at some distance from the frontier crossing point itself. The Spanish officers at the immigration post showed him passports by means of a visual aid unit. It appears that they only showed him the passports of those cars containing two men and one woman. Several pictures were flashed up for him during the course of the day but he did not recognise them. At the inquest, under cross-examination, he at first did not recall that he had been given any of the aliases that the three suspects might be employing. Then, however, he thought that he remembered the name of Coyne being mentioned in relation to Savage and that at the time he must have known the aliases of all three, as must the Spanish officers. Chief Inspector Ullger, who had briefed Huart however, had no recollection of the name of Coyne being mentioned before 6 March and he only recalled the name of Reilly in respect of McCann. However, if Huart recalled it, he did not doubt that it was so.",
"34. On the Gibraltar side of the border, the customs officers and police normally on duty were not informed or involved in the surveillance on the basis that this would involve information being provided to an excessive number of people. No steps were taken to slow down the line of cars as they entered or to scrutinise all passports since it was felt that this might put the suspects on guard. There was, however, a separate surveillance team at the border and, in the area of the airfield nearby, an arrest group. Witness M who led a surveillance team at the frontier expressed disappointment at the apparent lack of co-operation between the various groups involved in Gibraltar but he understood that matters were arranged that way as a matter of security.",
"35. At the inquest, Chief Inspector Ullger stated, when pressed about the failure to take more scrupulous measures on the Gibraltar side,",
"\"In this particular case, we are talking about dangerous terrorists. We were talking about a very, very major and delicate operation - an operation that had to succeed. I think the only way it could have succeeded is to allow the terrorists to come in and for the terrorists to have been dealt with in the way they were dealt with as far as the surveillance is concerned.\"",
"36. While Soldiers E and F made reference to the preferred military option as being to intercept and arrest the suspects in the frontier area, it appears not to have been pursued with any conviction, on the assumption that identification would not be possible in light of the brief time available for identification to be made (10 to 15 seconds per car) and the lack of prior warning from the Spanish side.",
"3. Arrest options: Advisory Group policy",
"37. Soldier F stated that the military option had been refined down to the preferred option of arresting the suspects when they were on foot in the assembly area, to disarm them and then to defuse the bomb. He referred also to four key indicators formulated by the Advisory Group with a view to guiding the Commissioner:",
"1. if a car was driven into Gibraltar and parked in the assembly area by an identified member of the active service unit;",
"2. if a car was driven into the assembly area by an ASU member without prior warning;",
"3. the presence in Gibraltar of the other members of the ASU;",
"4. if there was clear indication that terrorists having parked their car bomb intended to leave Gibraltar, that is to say, they were heading for the border.",
"The plan was for an arrest to be carried out once all the members of the ASU were present and identified and they had parked a car which they intended to leave. Any earlier action was considered premature as likely to raise suspicion in any unapprehended members of the ASU with possible risk resulting and as leaving no evidence for the police to use in court.",
"4. Sighting of Mr Savage",
"38. Detective Constable Viagas was on surveillance duty in a bank which had a view over the area in which the car driven in by the terrorists was expected to be parked. At about 12.30 hours, he heard a report over the surveillance net that a car had parked in a parking space in the assembly area under observation. A member of the Security Service commented that the driver had taken time to get out and fiddled with something between the seats. DC Viagas saw the man lock the car door and walk away towards the Southport Gate. One of the Security Service officers present consulted a colleague as to possible identification but neither was sure. A field officer was requested to confirm the identity. DC Viagas could not himself identify the man from his position.",
"39. Witness N of the Security Service team on surveillance in the car-park in the assembly area recalled that at 12.45 hours a white Renault car drove up and parked, the driver getting out after two to three minutes and walking away. A young man resembling the suspect was spotted next at about 14.00 hours in the area. Witness H, who was sent to verify his identification, saw the suspect at about that time and recognised him as Savage without difficulty. Witness N also saw the suspect at the rear of John Mackintosh Hall and at 14.10 hours reported over the radio to the operations room that he identified him as Savage and also as the man who had earlier parked the car in the assembly area.",
"Officer Q who was on duty on the street recalled hearing over the surveillance net at about 14.30 hours that Savage had been identified.",
"40. The Commissioner however did not recollect being notified about the identification of Savage until he arrived in the operations room at 15.00 hours. Colombo did not recall hearing anything about Savage either until it was reported that he had met up with two other suspects at about 14.50 hours. Soldiers E and F recalled however that a possible sighting of Savage was reported at about 14.30 hours. Soldier G also refers to the later sighting at 14.50 hours as the first identification of Savage.",
"41. There appears to have been a certain time-lag between information on the ground either being received in the operations room or being passed on. Soldiers E and F may have been more aware than the Commissioner of events since they were monitoring closely the information coming in over the nets, which apparently was not audible to the Commissioner where he sat at a table away from the control stations. 42. The suspect was followed for approximately an hour by Witness H who recalled that the suspect was using anti-surveillance techniques such as employing devious routes through the side streets. Witness N was also following him, for an estimated 45 minutes, and considered that he was alert and taking precautions, for example stopping round the corner at the end of alleyways to see who followed.",
"5. Sighting of Mr McCann and Ms Farrell",
"43. Witness M who was leading the surveillance at the border stated that two suspects passed the frontier at about 14.30 hours though apparently they were initially not clearly identified. They were on foot and reportedly taking counter-surveillance measures (Farrell looking back frequently). Their progress into Gibraltar was followed.",
"44. At 14.30 hours, Soldiers E and F recalled a message being received that there was a possible sighting of McCann and Farrell entering on foot. The Commissioner was immediately informed.",
"6. Sighting of three suspects in the assembly area",
"45. At about 14.50 hours, it was reported to the operations room that the suspects McCann and Farrell had met with a second man identified as the suspect Savage and that the three were looking at a white Renault car in the car-park in the assembly area.",
"Witness H stated that the three suspects spent some considerable time staring across to where a car had been parked, as if, in his assessment, they were studying it to make sure it was absolutely right for the effect of the bomb. DC Viagas also witnessed the three suspects meeting in the area of the car-park, stating that all three turned and stared towards where the car was parked. He gave the time as about 14.55 hours. He stated that the Security Services made identification of all three at this moment.",
"At this moment, the possibility of effecting an arrest was considered. There were different recollections. Mr Colombo stated that he was asked whether he would hand over control to the military for the arrest but that he asked whether the suspects had been positively identified; he was told that there was 80% identification. Almost immediately the three suspects moved away from the car through the Southport Gate. He recalled that the movement of the three suspects towards the south gave rise to some discussion as to whether this indicated that the three suspects were on reconnaissance and might return for the car. It was for this reason that the decision was taken not to arrest at this point.",
"46. At 15.00 hours, Mr Colombo rang the Commissioner to inform him that it was more and more likely to be McCann and Farrell. When the Commissioner arrived shortly afterwards, Mr Colombo informed him that the suspects McCann and Farrell had met up with a third person thought to be Savage and that an arrest had almost been made.",
"47. The Commissioner asked for positive identification of the three suspects. Identification was confirmed by 15.25 hours when it was reported to the operations room that the three suspects had returned to the assembly area and gone past looking at the car again. The three suspects continued north and away from the car. Soldiers E and F recalled that control was passed to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects. The confirmation of identity which the Commissioner had requested was received almost immediately.",
"7. Examination of the suspect car in the assembly area",
"48. After the three suspects ’ identities had been confirmed and they had moved away from the assembly area, Soldier G examined the suspect car. He conducted an examination from the exterior without touching the car. He described it as a newish-looking white Renault. He detected nothing untoward inside the car or anything visibly out of place or concealed under the seats. He noted that the aerial of the car, which was rusty, was out of place with the age of the car. He was in the area for less than two minutes. He returned to the operations room and reported to the Commissioner that he regarded the car as a \"suspect car bomb\". At the inquest, he explained that this was a term of art for a car parked in suspicious circumstances where there is every reason to believe that it is a car bomb and that it could not be said that it was not a car bomb.",
"49. The Commissioner recalled that G had reported that it was a suspect car bomb since there was an old aerial situated centrally of a relatively new car. He stated that as a result they treated it as a \"possible car bomb\".",
"50. Soldier F referred to the aerial as rendering the car suspicious and stated that this information was passed on to all the parties on the ground.",
"51. Soldier E was more categorical and stated that as far as G could tell \"from a cursory visual examination he was able to confirm our suspicion that they were dealing with a car bomb\".",
"52. Soldier A stated that he believed 100 per cent that there was a bomb in the debussing area, that the suspects had remote-control devices and were probably armed. This was what he had been told over the radio. Soldier C recalled that it had been confirmed by Soldier E that there was a device in Ince ’ s Hall area which could be detonated by one of three suspects who was more likely to be Savage because he had been seen \"fiddling\" with something in the car earlier. He had also been told of the indication of an old aerial on a new car.",
"Soldier D said that it had been confirmed to him by Soldier E that there was a bomb there. To his recollection, no one told them that there was a possibility that the three suspects might not be carrying the remote-control devices with them on the Sunday or that possibly they had not brought a bomb in. He had been told by Soldier E - whom he fully trusted - that there was a bomb in the car.",
"53. At the inquest Soldier G was described as being the bomb-disposal adviser. He had experience of dealing with car bombs in Northern Ireland but at the inquest he stated in reply to various questions that he was neither a radio-communications expert nor an explosives expert. He had not thought of de-activating the suspect bomb by unscrewing the aerial from the car. When it was put to him in cross-examination, he agreed that to have attempted to unscrew the aerial would have been potentially dangerous.",
"8. Passing of control to the military for arrest",
"54. After receiving the report from Soldier G and in view of the fact that the three suspects were continuing northwards leaving the car behind, the Commissioner decided that the three suspects should be arrested on suspicion of conspiracy to murder. At 15.40 hours, he signed a form requesting the military to intercept and apprehend the suspects. The form, which had been provided in advance by the military, stated:",
"\"I, Joseph Luis Canepa, Commissioner of Police, having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military option which may include the use of lethal force for the preservation of life.\"",
"After the form was signed, Soldier F walked across to the tactical net and issued instructions that the military should intervene.",
"Soldier E ascertained the positions of the soldiers by radio. Soldiers C and D had been visually monitoring the movement of the three suspects in Line Wall Road and Smith Dorrien Avenue. Soldiers A and B were making their way north through Casemates Square and into the Landport tunnel. The soldiers were informed that control had passed to them to make an arrest.",
"55. The evidence at the inquest given by the soldiers and Police Officer R and DC Ullger was that the soldiers had practised arrest procedures on several occasions with the police before 6 March 1988. According to these rehearsals, the soldiers were to approach the suspects to within a close distance, cover the suspects with their pistols and shout \"Stop. Police. Hands up.\" or words to that effect. They would then make the suspects lie on the ground with their arms away from their bodies until the police moved in to carry out a formal arrest. Further, DC Ullger stated that special efforts had been made to identify a suitable place in Gibraltar for the terrorists to be held in custody following their arrest.",
"56. On reaching the junction of Smith Dorrien Avenue with Winston Churchill Avenue, the three suspects crossed the road and stopped on the other side talking. Officer R, observing, saw them appear to exchange newspapers. At this point, Soldiers C and D were approaching the junction from Smith Dorrien Avenue. Soldiers A and B emerging from Landport tunnel also saw the three suspects at the junction from their position where the pathway to the tunnel joined Corral Road.",
"57. As the soldiers converged on the junction, however, Savage split away from suspects McCann and Farrell turning south towards the Landport tunnel. McCann and Farrell continued north up the right-hand pavement of Winston Churchill Avenue.",
"58. Savage passed Soldiers A and B, brushing against the shoulder of B. Soldier B was about to turn to effect the arrest but A told him that they should continue towards suspects McCann and Farrell, knowing that C and D were in the area and that they would arrest Savage. Soldiers C and D, aware that A and B were following suspects McCann and Farrell, crossed over from Smith Dorrien Avenue and followed Savage.",
"9. McCann and Farrell shootings",
"59. The evidence of Soldiers A and B at the inquest was to the following effect.",
"60. Soldiers A and B continued north up Winston Churchill Avenue after McCann and Farrell, walking at a brisk pace to close the distance. McCann was walking on the right of Farrell on the inside of the pavement. He was wearing white trousers and a white shirt, without any jacket. Farrell was dressed in a skirt and jacket and was carrying a large handbag.",
"61. When Soldier A was approximately ten metres (though maybe closer) behind McCann on the inside of the pavement, McCann looked back over his left shoulder. McCann appeared to look directly at A and the smile left his face, as if he had a realisation of who A was and that he was a threat.",
"Soldier A drew his pistol, intending to shout a warning to stop at the same time, though he was uncertain if the words actually came out. McCann ’ s hand moved suddenly and aggressively across the front of his body. A thought that he was going for the button to detonate the bomb and opened fire. He shot one round into McCann ’ s back from a distance of three metres (though maybe it may have been closer). Out of the corner of his eye, A saw a movement by Farrell. Farrell had been walking on the left of McCann on the side of the pavement next to the road. A saw her make a half turn to the right towards McCann, grabbing for her handbag which was under her left arm. A thought that she was also going for a button and shot one round into her back. He did not disagree when it was put to him that the forensic evidence suggested that he may have shot from a distance of three feet (see paragraph 111 below). Then A turned back to McCann and shot him once more in the body and twice in the head. A was not aware of B opening fire as this was happening. He fired a total of five shots.",
"62. Soldier B was approaching directly behind Farrell on the road side of the pavement. He was watching her. When they were three to four metres away and closing, he saw in his peripheral vision that McCann turned his head to look over his shoulder. He heard what he presumed was a shout from A which he thought was the start of the arrest process. At almost the same instant, there was firing to his right. Simultaneously, Farrell made a sharp movement to her right, drawing the bag which she had under her left arm across her body. He could not see her hands or the bag and feared that she was going for the button. He opened fire on Farrell. He deemed that McCann was in a threatening position and was unable to see his hands and switched fire to McCann. Then he turned back to Farrell and continued firing until he was certain that she was no longer a threat, namely, her hands away from her body. He fired a total of seven shots.",
"63. Both soldiers denied that Farrell or McCann made any attempt to surrender with their hands up in the air or that they fired at the two suspects when they were lying on the ground. At the inquest, Soldier A stated expressly that his intention had been to kill McCann \"to stop him becoming a threat and detonating that bomb\".",
"64. The shooting took place on the pavement in front of a Shell petrol station in Winston Churchill Avenue.",
"After the shooting, the soldiers put on berets so they would be recognised by the police. They noticed a police car, with its siren going, coming south from the sundial down the far side of Winston Churchill Avenue. A number of policemen jumped out of the car and leapt the central barrier. Soldier A still had his pistol in his hand. He put his hands up in the air and shouted \"Police\". A recalled hearing shooting from behind as the police car was approaching.",
"While neither of the soldiers was aware of the police car or siren until after the shooting, the majority of witnesses, including the police officers P, Q and R who were in the vicinity to support the soldiers in the arrest and a number of the surveillance team as well as civilian witnesses, recalled that the sound of the police siren preceded, if only by a very short time, the sound of the gunfire. Officers P and Q, who were watching from a relatively close distance, considered that Farrell and McCann reacted to the sound of the siren: Q was of the opinion that it was the siren that caused Farrell and McCann to stop and turn.",
"65. The arrival of the police car at the scene was an unintended occurrence. After the Commissioner had handed over control to the military at 15.40 hours, he instructed Mr Colombo to ensure that there was police transport available. Mr Colombo telephoned Chief Inspector Lopez at the Central Police Station, who in turn instructed the Controller Police Constable Goodman to recall the duty police car. The Controller recorded the call at 15.41 hours. He radioed the patrol car informing the officers that they were to return immediately. He did not know where the car was at the time or what the reason for the recall was. When Inspector Revagliatte who was in the car asked if it was urgent, the Controller told him it was a priority message and further instructions would be given on arrival.",
"66. At the time of the message, the police car was waiting in a queue of traffic in Smith Dorrien Avenue. Revagliatte told the driver to put on siren and beacons. The car pulled out into the opposite lane to overtake the queue of traffic. They cut back into the proper lane at the lights at the junction with Winston Churchill Avenue and continued north along Winston Churchill Avenue in the outer lane. As they passed the Shell garage, the four policemen in the car heard shots. Revagliatte instructed the driver to continue. When he looked back, he saw two persons lying on the pavement. The car went round the sundial roundabout and returned to stop on the other side of the road opposite the Shell garage. The police siren was on during this time. When the car stopped, the four policemen got out, three of them jumping the central barrier and Revagliatte walking round to arrive at the scene.",
"67. Officers P, Q and R were in the vicinity of the Shell petrol station and also arrived quickly on the scene of the McCann and Farrell shootings. Officers P and R placed their jackets over the bodies. Officer P dropped his gun while crouched and had to replace it in his holster. Officer Q and Revagliatte carried out a search of the bodies.",
"10. Eyewitness accounts of the McCann and Farrell shootings",
"68. The shooting took place on a fine Sunday afternoon, when there were many people out on the streets and the roads were busy with traffic. The Shell garage was also overlooked by a number of apartment buildings. The shooting consequently was witnessed by a considerable number of people, including police officers involved in the operation, police officers who happened to pass the area on other duties, members of the surveillance team and a number of civilians and off-duty policemen.",
"69. Almost all the witnesses who gave evidence at the inquest recalled that Farrell had carried her bag under her right arm, not as stated by Soldiers A and B under her left arm. The Coroner commented in his summing-up to the jury that this might have had significance with regard to the alleged justification of the soldiers for opening fire, namely, the alleged movement of the bag across the front of her body.",
"70. More significantly, three witnesses, two of whom gave an interview on the controversial television documentary concerning the events \"Death on the Rock\", gave evidence which suggested that McCann and Farrell had been shot while lying on the ground. They stated that they had witnessed the shooting from apartment buildings overlooking the Shell petrol station (see paragraph 125 below).",
"71. Mrs Celecia saw a man lying on a pavement with another nearby with his hands outstretched: while she did not see a gun she heard shots which she thought came from that direction. After the noise, the man whom she had thought was shooting appeared to put something inside his jacket. When shown a photograph of the aftermath of the scene, Mrs Celecia failed to identify either Soldier A or B as the man whom she thought that she had seen shooting.",
"72. Mr Proetta saw a girl put her hands up though he thought it was more in shock than in surrender. After she had been shot and fallen to the ground, he heard another fusillade of shots. He assumed that the men nearby were continuing to fire but agreed that there was an echo in the area and that the sound could have come from the Landport tunnel area.",
"Mrs Proetta saw a man and a woman raise their hands over their shoulders with open palms. They were shot, according to her recollection, by men who jumped the barrier. When the bodies were on the ground, she heard further shots and saw a gun in the hand of a man crouching nearby, though she did not see any smoke or cartridges ejecting from the gun. She assumed since she saw a gun that the shots came from it. It also appears that once the bodies fell they were obscured from her view by a low wall and all she saw was a man pointing in their direction.",
"73. Mr Bullock recalled seeing a man reeling backwards under fire with his hands thrown back.",
"None of the other witnesses saw McCann or Farrell put their hands up or the soldiers shoot at the bodies on the ground.",
"74. Witness I, a member of the surveillance team, stated that he saw McCann and Farrell shot when they were almost on the ground, but not on the ground.",
"75. While the soldiers were not sure that any words of warning were uttered by Soldier A, four witnesses (Officers P and Q, Witness K and Police Constable Parody) had a clear recollection of hearing words \"Police, Stop\" or words to that effect.",
"76. Officer P, who was approaching from the north and had reached the perimeter wall of the Shell garage, states that he saw McCann make a move as if going for a gun and that Farrell made a move towards her handbag which made him think that she was going for a detonator. Officer Q, who was watching from the other side of the road, also saw Farrell make a move towards her handbag, as did Police Constable Parody, an off-duty policeman watching from an overlooking apartment.",
"11. The shooting of Savage",
"77. At the inquest the evidence of Soldiers C and D was to the following effect.",
"78. After the three suspects had split up at the junction, Soldier D crossed the road and followed Savage who was heading towards the Landport tunnel. Savage was wearing jeans, shirt and a jacket. Soldier C was briefly held up on the other side of the road by traffic on the busy road but was catching up as D closed in on Savage. D intended to arrest by getting slightly closer, drawing his pistol and shouting \"Stop. Police. Hands up\". When D was about three metres away, he felt that he needed to get closer because there were too many people about and there was a lady directly in line. Before D could get closer however, he heard gunfire to the rear. At the same time, C shouted \"Stop\". Savage spun round and his arm went down towards his right hand hip area. D believed that Savage was going for a detonator. He used one hand to push the lady out of line and opened fire from about two to three metres away. D fired nine rounds at rapid rate, initially aiming into the centre of Savage ’ s body, with the last two at his head. Savage corkscrewed as he fell. D acknowledged that it was possible that Savage ’ s head was inches away from the ground as he finished firing. He kept firing until Savage was motionless on the ground and his hands were away from his body.",
"79. Soldier C recalled following after Savage, slightly behind D. Savage was about eight feet from the entrance to the tunnel but maybe more. C ’ s intention was to move forward to make arrest when he heard shots to his left rear from the direction in which Farrell and McCann had headed. Savage spun round. C shouted \"Stop\" and drew his pistol. Savage moved his right arm down to the area of his jacket pocket and adopted a threatening and aggressive stance. C opened fire since he feared Savage was about to detonate the bomb. He saw something bulky in Savage ’ s right hand pocket which he believed to be a detonator button. He was about five to six feet from Savage. He fired six times as Savage spiralled down, aiming at the mass of his body. One shot went into his neck and another into his head as he fell. C continued firing until he was sure that Savage had gone down and was no longer in a position to initiate a device.",
"80. At the inquest, both soldiers stated under cross-examination that once it became necessary to open fire they would continue shooting until the person was no longer a threat. C agreed that the best way to ensure this result was to kill. D stated that he was firing at Savage to kill him and that this was the way that all soldiers were trained. Both soldiers, however, denied that they had shot Savage while he was on the ground.",
"Soldier E (the attack commander) stated that the intention at the moment of opening fire was to kill since this was the only way to remove the threat. He added that this was the standard followed by any soldier in the army who opens fire.",
"81. The soldiers put on berets after the incident to identify themselves to the police.",
"12. Eyewitness accounts of the Savage shooting",
"82. Witnesses H, I and J had been involved in surveillance of the three suspects in or about the Smith Dorrien/Winston Churchill area.",
"83. Witness H had observed Soldiers A and B moving after McCann and Farrell up Winston Churchill Avenue. He moved to follow Savage whom he noticed on the corner about to turn into the alleyway leading to the Landport tunnel. He indicated Savage to Soldiers C and D who were accompanying him at this point. While he was moving to follow Savage, H saw the McCann and Farrell shooting from a distance. He continued to follow after Savage, who had gone into the alleyway. He heard a siren, a shout of \"Stop\" and saw Savage spin round. The soldiers were five feet away from Savage. H then turned away and did not witness the shooting itself.",
"84. Witness I had met with Witness H and Soldier D and had confirmed that Savage had gone towards the Landport tunnel. Witness I entered the alleyway after the shooting had begun. He saw one or two shots being fired at Savage who was on the ground. He saw only one soldier firing from a distance of five, six or seven feet. He did not see the soldier put his foot on Savage ’ s chest while shooting.",
"85. Witness J had followed after Savage when he had separated from McCann and Farrell. When Savage was twenty feet into the alleyway near a large tree, she heard noise of gunfire from behind and at that same time a police siren in fairly close proximity. Savage spun round very quickly at the sound of gunfire, looking very stunned. J turned away and did not see the shooting. When she turned round again, she saw Savage on his back and a soldier standing over him saying, \"Call the police\".",
"86. Mr Robin Mordue witnessed part of the shooting but as he fell to the ground himself and later took cover behind a car he saw only part of the incident. He did not recall Savage running. When he saw the soldier standing over Savage, there were no more shots.",
"87. The evidence of Mr Kenneth Asquez was surrounded by the most controversy. A handwritten statement made by him appears to have been used by Thames Television in its documentary \"Death on the Rock\" (see paragraph 125 below). The draft of an affidavit, prepared by a lawyer acting for Thames Television who interviewed Mr Asquez, but not approved by him, was also used for the script of the programme. In them, he alleged that while in a friend ’ s car on the way to the frontier via Corral Road, he passed the Landport tunnel. He heard \"crackers\" and saw a man bleeding on the floor. He saw another man showing an ID card and wearing a black beret who had his foot on the dying man ’ s throat and was shouting, \"Stop. It ’ s OK. It ’ s the police\". At that instant, the man fired a further three to four shots. At the inquest, he stated that the part of the statement relating to the shooting was a lie that he had made up. He appeared considerably confused and contradicted himself frequently. When it was pointed out to him that until the inquest it had not become known that the soldiers wore berets (no newspaper report had mentioned the detail), he supposed that he must have heard it in the street. When asked at the inquest why he had made up the statement, he referred to previous illness, pressure at work and the desire to stop being telephoned by a person who was asking him to give an interview to the media.",
"88. Miss Treacy claimed that she was in the path leading from the tunnel and that she was between Savage and the first of the soldiers as the firing began, though not in the line of fire. She recalled that Savage was running and thought that he was shot in the back as he faced towards the tunnel. She did not see him shot on the ground. Her account contained a number of apparent discrepancies with the evidence of other witnesses; she said the soldier shot with his left hand whereas he was in fact right-handed; no one else described Savage as running; and she described the body as falling with feet towards the nearby tree rather than his head which was the way all the other witnesses on the scene described it. The Coroner in his summing-up thought that it might be possible to reconcile her account by the fact that Miss Treacy may have not been looking at Savage as he spun round to face the soldiers and that by the time she did look he was spinning round towards the tunnel in reaction to the firing. 89. Mr Bullock and his wife stated that a man pushed past them as they walked up Smith Dorrien Avenue to the junction and that they saw that he had a gun down the back of his trousers. They saw him meet up with another man, also with a gun in his trousers, on the corner of the alleyway to the Landport tunnel. The men were watching the shooting outside the Shell garage and, when the shooting stopped, they turned and ran out of sight. After that there was another long burst of shooting.",
"90. Another witness, Mr Jerome Cruz, however, who was in a car in the traffic queue in Smith Dorrien Avenue and who remembered seeing Mr Bullock dive for cover, cast doubts on his version. In particular, he stated that Mr Bullock was not near the end of Smith Dorrien Avenue but further away from the Shell garage (more than 100 yards away) and that he had dived for cover as soon as there was the sound of shooting. He agreed that he had also seen persons crouching looking from behind a wall at the entrance to the pathway leading to the tunnel.",
"13. Events following the shootings",
"91. At 15.47-15.48 hours, E received a message in the operations room that apprehension of the three suspects had taken place. It was not clear at that stage whether they had been arrested or shot. By 16.00 to 16.05 hours, the report was received in the operations room that the three suspects had been shot.",
"92. At 16.05-16.06 hours, Soldier F handed a form to the Commissioner returning control. According to the transcript of the evidence given by the Commissioner at the inquest, this form addressed to him by Soldier F stated that \"at 16.06 hours on 6 March a military assault force was completed at the military option in respect of the terrorist bombing ASU in Gibraltar. Control is hereby handed back to the Civil Power\". Deputy Commissioner Colombo telephoned to Central Station for the evacuation plans to be put into effect. Instructions were also given with a view to taking charge of the scenes of the incidents. Soldier G was also instructed to commence the clearance of the car.",
"93. After the shooting, the bodies of the three suspects and Farrell ’ s handbag were searched. No weapons or detonating devices were discovered.",
"94. At the Shell garage scene, the shell cases and cartridges were picked up without marking their location or otherwise recording their position. The positions of the bodies were not marked.",
"95. At the scene of the Savage shooting, only some of the cartridge positions were marked. No police photographs were taken of the bodies ’ positions. Inspector Revagliatte had made a chalk outline of the position of Savage ’ s body. Within that outline, there were five strike marks, three in the area of the head.",
"96. Chief Inspector Lopez ordered a general recall of personnel and went directly to the assembly area to begin cordoning it off. The fire brigade also arrived at the assembly area.",
"The bomb-disposal team opened the suspect white Renault car but found no explosive device or bomb. The area was declared safe between 19.00 and 20.00 hours.",
"H. Police investigation following the shootings",
"97. Chief Inspector Correa was appointed in charge of the investigation.",
"98. Inside Farrell ’ s handbag was found a key ring with two keys and a tag bearing a registration number MA9317AF. This information was passed at about 17.00 hours to the Spanish police who commenced a search for the car on the suspicion that it might contain explosives. During the night of 6 to 7 March, the Spanish police found a red Ford Fiesta with that registration number in La Linea. Inside the car were found keys for another car, registration number MA2732AJ, with a rental agreement indicating that the car had been rented at 10.00 hours on 6 March by Katharine Smith, the name on the passport carried in Farrell ’ s handbag.",
"99. At about 18.00 hours on 8 March, a Ford Fiesta car with registration number MA2732AJ was discovered in a basement car-park in Marbella. It was opened by the Malaga bomb-disposal squad and found to contain an explosive device in the boot concealed in the spare-wheel compartment. The device consisted of five packages of Semtex explosive (altogether 64 kg) to which were attached four detonators and around which were packed 200 rounds of ammunition. There were two timers marked 10 hrs 45 mins and 11 hrs 15 mins respectively. The device was not primed or connected.",
"100. In the report compiled by the Spanish police on the device dated Madrid 27 March 1988, it was concluded that there was a double activating system to ensure explosion even if one of the timers failed; the explosive was hidden in the spare-wheel space to avoid detection on passing the Spanish/Gibraltarian customs; the quantity of explosive and use of cartridges as shrapnel indicated the terrorists were aiming for greatest effect; and that it was believed that the device was set to explode at the time of the military parade on 8 March 1988.",
"101. Chief Inspector Correa, who acted also as Coroner ’ s Officer, traced and interviewed witnesses of the shooting of the three suspects. Police officers visited residences in the area knocking on doors and returning a second time when persons were absent. The Attorney-General made two or three appeals to the public to come forward. At the inquest, Inspector Correa commented that the public appeared more than usually reluctant to come forward to give statements to the police.",
"102. A post-mortem was conducted in respect of the three deceased suspects on 7 March 1988. Professor Watson, a highly qualified pathologist from the United Kingdom, carried out the procedure. His report was provided to a pathologist, Professor Pounder, instructed by the applicants. Comment was later made at the inquest by both pathologists with regard to defects in the post-mortem procedures. In particular, the bodies had been stripped before Professor Watson saw them, depriving him of possible aid in establishing entry and exit wounds, there had been no X-ray facilities and Professor Watson had not later been provided either with a full set of photographs for reference, or the forensic and ballistics reports.",
"I. THE GIBRALTAR INQUEST",
"103. An inquest by the Gibraltar Coroner into the killings was opened on 6 September 1988. The families of the deceased (which included the applicants) were represented, as were the SAS soldiers and the United Kingdom Government. The inquest was presided over by the Coroner, who sat with a jury chosen from the local population.",
"104. Prior to the inquest, three certificates to the effect that certain information should not, in the public interest, be disclosed, were issued by the Secretary of State for the Home Department, the Secretary of State for Defence and the Deputy Governor of Gibraltar, dated respectively 26 August, 30 August and 2 September 1988. These stated that the public interest required that the following categories of information be protected from disclosure:",
"1. In the case of the seven military witnesses, the objection was to the disclosure of any information or documents which would reveal:",
"(i) their identity;",
"(ii) the identity, location, chains of command, method of operation and the capabilities of the units with which the soldiers were serving on 6 March 1988;",
"(iii) the nature of their specialist training or equipment;",
"(iv) the nature of any previous operational activities of the soldiers, or of any units with which any of them might at any time have served;",
"(v) in the case of Soldier G (the ammunition technical officer), any defence intelligence information, activities or operations (and the sources of intelligence), including those on the basis of which his assessments were made and details of security forces counter-measures capabilities, including methods of operation, specialist training and equipment.",
"2. In the case of Security Service witnesses, the objection was to the disclosure of information which would reveal:",
"(a) the identities of members of the Security Service, and details of their deployment, training and equipment;",
"(b) all sources of intelligence information;",
"(c) all details of the activities and operations of the Security Service.",
"105. As was, however, expressly made clear in the certificates, no objection was taken to the giving of evidence by either military or Security Service witnesses as to:",
"(i) the nature of the information relating to the feared IRA plot, which was transmitted to the Commissioner of Police and others concerned (including general evidence as to the nature of a Provisional IRA active service unit);",
"(ii) the assessments made by Soldier G as to the likelihood of, and the risks associated with, an explosive device and as to the protective measures which might have to be taken;",
"(iii) the events leading up to the shootings on 6 March 1988 and the circumstances surrounding them, including evidence relating to the transfer of control to the military power.",
"106. The inquest lasted until 30 September and during the nineteen days it sat, evidence was heard from seventy-nine witnesses, including the soldiers, police officers and surveillance personnel involved in the operation. Evidence was also heard from pathologists, forensic scientists and experts in relation to the detonation of explosive devices.",
"1. Pathologists ’ evidence at the inquest",
"107. Evidence was given by Professor Watson, the pathologist who had conducted the post-mortem on the deceased on 7 March 1988 and also by Professor Pounder called on behalf of the applicants (see paragraph 102 above).",
"108. Concerning Farrell, it was found that she had been shot three times in the back, from a distance of some three feet according to Professor Pounder. She had five wounds to the head and neck. The facial injuries suggested that either the entire body or at least the upper part of the body was turned towards the shooter. A reasonable scenario consistent with the wounds was that she received the shots to the face while facing the shooter, then fell away and received the shots to the back. Professor Watson agreed that the upward trajectory of the bullets that hit Farrell indicated that she was going down or was down when she received them. Altogether she had been shot eight times.",
"109. Concerning McCann, he had been shot in the back twice and had three wounds in the head. The wound on the top of the head suggested that the chest wounds came before the head wound and that he was down or very far down when it was inflicted. The shots to the body were at about a 45-degree angle. He had been hit by five bullets. 110. Concerning Savage, he had been hit by sixteen bullets. He had seven wounds to the head and neck, five on the front of the chest, five on the back of the chest, one on the top of each shoulder, three in the abdomen, two in the left leg, two in the right arm and two on the left hand. The position of the entry wounds suggested that some of the wounds were received facing the shooter. But the wounds in the chest had entered at the back of the chest. Professor Watson agreed that Savage was \"riddled with bullets\" and that \"it was like a frenzied attack\". He agreed that it would be reasonable to suppose from the strike marks on the pavement that bullets were fired into Savage ’ s head as he lay on the ground. Professor Pounder also agreed that the evidence from strike marks on the ground and the angle and state of wounds indicated that Savage was struck by bullets when lying on his back on the ground by a person shooting standing towards his feet. He insisted under examination by counsel for the soldiers that the three strike marks on the ground within the chalk outline corresponded with wounds to the head. In his view \"those wounds must have been inflicted when either the head was on the ground or very close to the ground indeed\" and when pressed \"within inches of the ground\". 2. Forensic evidence at the inquest",
"111. A forensic scientist specialising in firearms had examined the clothing of the three deceased for, inter alia, powder deposits which would indicate that shots had been fired at close range. He found signs of partly burnt propellant powder on the upper-right back of Farrell ’ s jacket and upper-left front of Savage ’ s shirt which suggested close-range firing. He conducted tests which indicated that such a result was only obtained with a Browning pistol at a range of up to six feet. The density on Farrell ’ s jacket indicated a muzzle-to-target range of three feet and on Savage ’ s shirt of four to six feet.",
"3. Evidence relating to detonation devices",
"112. Issues arose at the inquest as to whether, even if the three suspects had been carrying remote-control devices, they would have been able to detonate the suspected bomb which was approximately 1.4 km from the place where they were shot. Also it was questioned whether the soldiers could reasonably have expected that the applicants could have concealed the devices on their persons without it being apparent and whether in fact the device could have been detonated by pressing only one button.",
"113. Mr Feraday gave evidence for the Crown. He was a forensic scientist employed at Explosives Forensic Laboratory at Royal Armament Research and Development Establishment, with thirty-three years experience of explosives. He produced an ICOM IC2 transmitter, as an example of a device used in Northern Ireland, which was the size of a standard commercial walkie-talkie. It was also produced in evidence by the Government to both the Commission and Court in the Strasbourg proceedings (see paragraph 130 below).",
"While referring to the factors which could affect the range (for example, terrain, weather conditions) Mr Feraday stated that the equipment could, in optimum conditions, operate up to a thirty-mile range. In his opinion, the aerial on the suspect car could have received a signal though its efficiency would have been fairly poor as it was not the right length for the frequency. He considered that one would have to assume that from the distance of about a mile a bomb could be detonated by remote control using that aerial.",
"114. The applicants called Dr Scott, who held a masters degree and doctorate in engineering and was a licensed radio operator. He had been involved in two IRA trials in England. He had conducted tests with similar receivers along the route taken by the three suspects. He referred to the fact that there was rising ground between the sites of the shootings and the assembly area as well as a thick wall and a considerable number of buildings. The IRA used encoders and decoders on their devices to prevent spurious signals detonating their bombs: this required that a good clean signal be received. Having regard to the facts that the aerial, which \"was a joke\" from the point of view of effectiveness, the wrong length for the expected frequency and pointing along the roof rather than standing vertically, he stated that in his professional opinion the purported receiver could not have been detonated by a transmitter in the circumstances of the case. He also stated that the bomb could have been neutralised by removing the car aerial and that such a manoeuvre would not have destabilised the explosive device.",
"115. Dr Scott also explained how the transmitter would operate. Assuming the dial setting the frequency was already set, it would be necessary to activate the on/off power switch, followed by the on/off switch on the encoder and then a third button would have to be pressed in order to transmit. While it would be possible to set the device so that it would be necessary to press one button (the transmit button) in order to detonate a bomb, this would require leaving the power switches on for both the transmitter and the encoder with the risk that the batteries would run down. There would also be the risk that the device might be set off accidentally by being bumped in the street or being hit by a bullet or by a person falling awkwardly so as to hit the edge of a pavement or bench.",
"116. Captain Edwards was called by the lawyer representing the soldiers to rebut this evidence. He was a member of the Royal Corps of Signals and had experience in VHF/HF radio in combat net radio spectrum. He carried out tests to see if voice communications were possible on an ICOM-type radio in the area of or from the Shell garage to Ince ’ s Hall. The equipment used was not identical to that of Dr Scott. He stated that it was possible to receive both voice communication and a single audio tone at the site of the shootings from the assembly area. He did not however use an encoder and his equipment was matched and compatible. Mr Feraday was also recalled. He gave the opinion that if a weak voice communication could be received then the signal would be sufficient to set off a bomb.",
"117. It appears to have been accepted by all that the IRA have developed the use of high-frequency devices, which require shorter aerials and have a surer line-of-sight effect. These are stated to have the characteristics suitable for detonation when the operator of the device has line of sight of the bomb and carry with them less possibility of interference from other radio sources or countermeasures. No examples were known or at least given as to this type of remote-control detonation being used other than in line-of-sight conditions.",
"4. Submissions made in the course of the inquest",
"118. At the inquest, the representative of the applicants, Mr P.J. McGrory, questioned the witnesses and made submissions to the effect, inter alia, that either the decision to shoot to kill the suspects had been made by the United Kingdom Government prior to the incident and the soldiers were ordered to carry out the shootings, or that the operation was planned and implemented in such a way that the killing of the suspects by the soldiers was the inevitable result. In any event, in light of the circumstances, the use of lethal force by the soldiers was not necessary or, if it was necessary, the force used was excessive and therefore not justified. He maintained throughout, however, that he did not challenge that the Commissioner of Police and his officers had acted properly and in good faith.",
"119. Soldier F (the senior military commander) and Soldier E (the tactical commander) denied that there had been a plan, express or tacit, to execute the suspects. When it was put to Soldiers A, B, C and D, they also denied that they had been sent out either expressly or on the basis of \"a nod or a wink\" to kill the suspects.",
"5. The Coroner ’ s address to the jury",
"120. At the conclusion of the inquest, the Coroner addressed the jury in respect of the applicable law, in particular, Article 2 of the Gibraltar Constitution (see paragraph 133 below). As inquest proceedings did not allow for the parties to make submissions to the jury, he summed up the respective propositions of the applicants ’ representatives and the representatives of the soldiers and the Crown referring to the evidence. He concluded from the evidence given by the soldiers that when they opened fire they shot intending to kill and directed the jury as to the range of possible verdicts:",
"\"... If the soldiers set out that day with the express intent to kill that would be murder and it would be right to return a verdict of unlawfully killed. Example two: were you to find in the case of Savage (or any of the other two for that matter) that he was shot on the ground in the head after effectively being put out of action, that would be murder if you come to the conclusion that the soldiers continued to finish him off. In both cases they intended to kill not in self-defence or in the defence of others or in the course of arrest ... so it is murder and you will return a verdict of unlawfully killed. If in this second example you were to conclude that it is killing in pursuance of force used which was more than reasonably necessary, then the verdict should also be killed unlawfully but it would not have been murder. The third example I offer is precisely of that situation. If you accept the account that the soldiers ’ intention was genuinely to arrest (in the sense that they were to apprehend the three suspects and hand them over live to the Gibraltar police force) and that the execution of the arrest went wrong and resulted in the three deaths because either (a) force was used when it was not necessary or (b) the force that was used was more than was reasonably necessary, then that would not be murder ... and the verdict would be, as I say, unlawfully killed. Example four: if you are satisfied that the soldiers were acting properly but nevertheless the operation was mounted to encompass the deaths of the three suspects to the ignorance of the soldiers, then you would also bring in a verdict of unlawfully killed.",
"... So there are only three verdicts reasonably open to you and these are:",
"(a) Killed unlawfully, that is unlawful homicide.",
"(b) Killed lawfully, that is justifiable, reasonable homicide.",
"(c) Open verdict.",
"Remembering that you must be satisfied beyond reasonable doubt where the verdict of unlawfully killed is concerned, there are two situations to consider. The first concerning the soldiers themselves, the second if they have been the unwitting tools of a plot to dispose of the three suspects.",
"As to the first concerning the soldiers themselves, I must tell you that if you are not satisfied beyond a reasonable doubt that they have killed unlawfully, you have then to decide whether your verdict should be an open verdict or one of justifiable homicide. My direction to you is that you should bring in a verdict of justifiable homicide, i.e. killed lawfully, because in the nature of the circumstances of this incident that is what you will have resolved if you do not return a verdict of unlawful homicide in respect of the soldiers themselves. That is the logic of the situation. You may reach a situation in which you cannot resolve either way, in which case the only alternative is to bring in an open verdict, but I must urge you, in the exercise of your duty, to avoid this open verdict. As to the second situation where they are unwitting tools, the same applies ...\"",
"121. The jury returned verdicts of lawful killing by a majority of nine to two.",
"J. Proceedings in Northern Ireland",
"122. The applicants were dissatisfied with these verdicts and commenced actions in the High Court of Justice in Northern Ireland against the Ministry of Defence for the loss and damage suffered by the estate of each deceased as a result of their death. The statements of claim were served on 1 March 1990.",
"123. On 15 March 1990 the Secretary of State for Foreign and Commonwealth Affairs issued certificates under section 40 (3) a of the Crown Proceedings Act 1947, as amended by the Crown Proceedings (Northern Ireland) Order 1981. Section 40 (2) b of the same Act excludes proceedings in Northern Ireland against the Crown in respect of liability arising otherwise than \"in respect of Her Majesty ’ s Government in the United Kingdom\". A similar exemption applies to the Crown in Northern Ireland pursuant to the 1981 Order. A certificate by the Secretary of State to that effect is conclusive. The certificates stated in this case that any alleged liability of the Crown arose neither in respect of Her Majesty ’ s Government in the United Kingdom, nor in respect of Her Majesty ’ s Government in Northern Ireland.",
"124. The Ministry of Defence then moved to have the actions struck out. The applicants challenged the legality of the certificates in judicial review proceedings. Leave to apply for judicial review was granted ex parte on 6 July 1990, but withdrawn on 31 May 1991, after a full hearing, on the basis that the application had no reasonable prospects of success. Senior Counsel advised that an appeal against this decision would be futile.",
"The applicants ’ High Court actions were struck off on 4 October 1991.",
"K. The television documentary \"Death on the Rock\"",
"125. On 28 April 1988 Thames Television broadcast its documentary entitled \"Death on the Rock\" (see paragraph 70 above), during which a reconstruction was made of the alleged surveillance of the terrorists ’ car by the Spanish police and witnesses to the shootings described what they had seen, including allegations that McCann and Farrell had been shot while on the ground. A statement by an anonymous witness was read out to the effect that Savage had been shot by a man who had his foot on his chest. The Independent Broadcasting Authority had rejected a request made by the Foreign and Commonwealth Secretary to postpone the programme until after the holding of the inquest into the deaths.",
"L. Other evidence produced before the Commission and Court",
"1. Statement of Chief Inspector Valenzuela",
"126. While an invitation had been made by the Gibraltar police for a Spanish police officer to attend the inquest to give evidence relating to the role of the Spanish police, he did not attend, apparently since he did not receive permission from his superiors.",
"127. The Government provided the Commission with a copy of a statement made by Chief Inspector Rayo Valenzuela, a police officer in Malaga, dated 8 August 1988. According to this statement, the United Kingdom police had at the beginning of March provided the Spanish police with photographs of the possible members of the ASU, named as Daniel McCann, Mairead Farrell and Sean Savage. The three individuals were observed arriving at Malaga Airport on 4 March 1988 but trace of them was lost as they left. There was then a search to locate the three suspects during 5 to 6 March 1988.",
"This statement provided by the Government was not included in the evidence submitted at the inquest, as the Coroner declined to admit it following the objection by Mr P.J. McGrory who considered that it constituted hearsay in the absence of any police officer from Spain giving evidence in person.",
"2. Statement of Mr Harry Debelius",
"128. This statement, dated 21 September 1988 and supplied on behalf of the applicants, was made by a journalist who acted as consultant to the makers of the Thames Television programme \"Death on the Rock\". He stated that the white Renault car used by the ASU was under surveillance by the Spanish authorities as it proceeded down the coast towards Gibraltar. Surveillance is alleged to have been conducted by four to five police cars which \"leapfrogged\" to avoid suspicion, by helicopter and by agents at fixed observation points. The details of the car ’ s movements were transmitted to the authorities in Gibraltar who were aware of the car ’ s arrival at the border. He refers to the source of this information as being Mr Augustín Valladolid, a spokesman for the Spanish Security Services in Madrid, with whom he and Mr Julian Manyon, a reporter for Thames Television, had an interview lasting from 18.00 to 19.20 hours on 21 March 1988.",
"129. The applicants intended submitting this statement as evidence before the inquest. The Coroner decided however that it should also be excluded as hearsay on the same basis as the statement relied upon by the Government (see paragraph 127 above).",
"3. Exhibits provided by the parties",
"130. An ICOM transmitter device was provided to the Commission and Court by the Government with an improvised encoder attached. The dimensions of the transmitter are 18 cm x 6.5 cm x 3.7 cm; the encoder (which is usually taped to the transmitter and which can be contained in a small flat Strepsil tin) is 8 cm x 9 cm x 3 cm. The aerial from the transmitter is 18 cm long.",
"4. Further material submitted by the applicants",
"131 The applicants also submitted a further opinion of Dr Scott, dated 22 October 1993, in which he reiterated his view that it would have been impossible for the three suspects to have detonated a bomb in the target area from the location where they were shot using an ICOM or any other conceivable concealable transmitter/aerial combination, which he maintains must have been well known to the authorities. He also drew attention to the fact that the strength of a hand-held transmitter is severely attenuated when held close to the human body; when transmitting it should be held well clear of the body with the aerial as high as possible.",
"5. Findings of fact by the Commission",
"132. In its report of 4 March 1994, the Commission made the following findings on questions of fact:",
"- that the suspects were effectively allowed to enter Gibraltar to be picked up by the surveillance operatives in place in strategic locations for that purpose (at paragraph 213);",
"- that there was no evidence to support the applicants ’ contention of a premeditated design to kill Mr McCann, Ms Farrell and Mr Savage (at paragraph 216);",
"- that there was no convincing support for any allegation that the soldiers shot Mr McCann and Ms Farrell when they were attempting to surrender or when they were lying on the ground. However the soldiers carried out the shooting from close proximity. The forensic evidence indicated a distance of as little as three feet in the case of Ms Farrell (at paragraphs 222 and 223);",
"- Ms Farrell and Mr McCann were shot by Soldiers A and B at close range after the two suspects had made what appeared to the soldiers to be threatening movements. They were shot as they fell to the ground but not when they were lying on the ground (at paragraph 224);",
"- it was probably either the sound of the police siren or the sound of the shooting of Mr McCann and Ms Farrell at the Shell garage, or indeed both, which caused Mr Savage to turn round to face the soldiers who were behind him. It was not likely that Soldiers C and D witnessed the shooting of Mr McCann and Ms Farrell before proceeding in pursuit of Savage (at paragraph 228);",
"- there was insufficient material to rebut the version of the shooting given by Soldiers C and D. Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he hit the ground. This conclusion was supported by the pathologists ’ evidence at the subsequent inquest (at paragraphs 229 and 230);",
"- Soldiers A to D opened fire with the purpose of preventing the threat of detonation of a car bomb in the centre of Gibraltar by suspects who were known to them to be terrorists with a history of previous involvement with explosives (at paragraph 231);",
"- a timer must in all probability have been mentioned at the Commissioner ’ s operational briefing. For whatever reason, however, it was not a factor which was taken into account in the soldiers ’ view of the operation (at paragraph 241).",
"III. UNITED NATIONS INSTRUMENTS",
"138. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (\"UN Force and Firearms Principles\") were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.",
"139. Article 9 of the UN Force and Firearms Principles provides, inter alia, that \"intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life\".",
"Other relevant provisions provide as follows:",
"Article 10",
"\"... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.\"",
"Article 22",
"\"... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.\"",
"Article 23",
"\"Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.\"",
"140. Article 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by Economic and Social Council Resolution 1989/65, (\"UN Principles on Extra-Legal Executions\") provides, inter alia, that:",
"\"There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...\"",
"Articles 9 to 17 contain a series of detailed requirements that should be observed by investigative procedures into such deaths."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"133. Article 2 of the Gibraltar Constitution provides:",
"\"1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.",
"2. A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable:",
"(a) for the defence of any person from violence or for the defence of property;",
"(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;",
"...",
"(d) in order to prevent the commission by that person of a criminal offence.\"",
"134. The relevant domestic case-law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest (see, for example, Lynch v. Ministry of Defence [1983] Northern Ireland Law Reports 216; R v. Gladstone Williams [1983] 78 Criminal Appeal Reports 276, at p. 281; and R v. Thain [1985] Northern Ireland Law Reports 457, at p. 462).",
"135. The test of whether the use of force is reasonable, whether in self-defence or to prevent crime or effect an arrest, is a strict one. It was described in the following terms in the report of the Royal Commission appointed to consider the law relating to indictable offences ([1879] 36 House of Lords Papers 117, at p. 167):",
"\"We take one great principle of the common law to be, that though it sanctions the defence of a man ’ s person, liberty and property against illegal violence, and permits the use of force to prevent crimes to preserve the public peace and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by or which might reasonably be anticipated from the force used is not disproportionate to the injury or mischief, which it is intended to prevent.\"",
"Lord Justice McGonigal in Attorney General for Northern Ireland ’ s Reference ([1976] Northern Ireland Law Reports 169 (Court of Appeal)) stated his understanding of this approach as follows (at p. 187):",
"\"... it appears to me that, when one is considering whether force used in any particular circumstances was reasonable, the test of reasonableness should be determined in the manner set out in that paragraph. It raises two questions:",
"(a) Could the mischief sought to be prevented have been prevented by less violent means?",
"(b) Was the mischief done or which could reasonably be anticipated from the force used disproportionate to the injury or mischief which it was intended to prevent?",
"These are questions to be determined objectively but based on the actions of reasonable men who act in the circumstances and in the light of the beliefs which the accused honestly believed existed and held. Force is not reasonable if",
"(a) greater than that necessary, or",
"(b) if the injury it causes is disproportionately greater than the evil to be prevented.\"",
"136. The document annexed to the operational order of the Commissioner of Police entitled \"Firearms - rules of engagement\" provided in so far as relevant:",
"\"General rules",
"1. Do not use more force than necessary to achieve your objective.",
"2. If you use firearms you should do so with care for the safety of persons in the vicinity.",
"3. Warning before firing",
"(a) A warning should, if practicable, be given before opening fire. It should be as loud as possible and must include an order to stop attacking and a statement that fire will be opened if the orders are not obeyed.",
"(b) You may fire without warning in circumstances where the giving of a warning or any delay in firing could lead to death or serious injury to a person whom it is your duty to protect, or to yourself, or to another member in your operation.",
"4. Opening fire",
"You may open fire against a hostage taker",
"(a) If he is using a firearm or any other weapon or exploding a device and there is a danger that you or any member involved in the operation, or a person whom it is your duty to protect, may be killed or seriously injured.",
"(b) If he is about to use a firearm or any other weapon or about to explode an explosive device and his action is likely to endanger life or cause serious injury to you or another member involved in the operation, or any person whom it is your duty to protect ...",
"5. If he is in the course of placing an explosive charge in or near any vehicle, ship, building or installation which, if exploded, would endanger life or cause serious injury to you or another member involved in the operation or to any person whom it is your duty to protect and there is no other way to protect those in danger ...\"",
"137. Also attached to the operational order was a guide to police officers in the use of firearms which read:",
"\"Firearms: Use by Police.",
"The object of any police firearms operation is that the armed criminal is arrested with the least possible danger to all concerned. It is the first duty of the police to protect the general public, but the police should not endanger their lives or the lives of their colleagues for the sake of attempting to make an early arrest. The physical welfare of a criminal armed with a firearm should not be given greater consideration than that of a police officer, and unnecessary risks must not be taken by the police. In their full use of firearms, as in the use of any force, the police are controlled by the restrictions imposed by the law. The most important point which emerges from any study of the law on this subject is that the responsibility is an individual one. Any police officer who uses a firearm may be answerable to the courts or to a coroner ’ s inquest and, if his actions were unlawful (or improper), then he as an individual may be charged with murder, manslaughter or unlawful wounding. Similarly, if his use of a firearm was unlawful or negligent the individual could find himself defending a civil case in which substantial damages were being claimed against him. That a similar claim could be made against the Commissioner of Police will not relieve the individual of his liabilities.",
"The fact that a police officer used his firearms under the orders of a superior does not, of itself, exempt him from criminal liability. When a police officer is issued with a firearm he is not thereby given any form of authority to use it otherwise than strictly in accordance with the law. Similarly, when an officer is briefed about an operation, information about a criminal may indicate that he is desperate and dangerous. Whilst this will be one of the factors to consider it does not of itself justify shooting at him.",
"The final responsibility for his actions rests on the individual and therefore the final decision about whether a shot will or will not be fired at a particular moment can only be made by the individual. That decision must be made with a clear knowledge of the law on the subject and in the light of the conditions prevailing at the time.\"",
"PROCEEDINGS BEFORE THE COMMISSION",
"141. The applicants lodged their application (no. 18984/91) with the Commission on 14 August 1991. They complained that the killings of Daniel McCann, Mairead Farrell and Sean Savage by members of the SAS (Special Air Service) constituted a violation of Article 2 (art. 2) of the Convention.",
"142. On 3 September 1993 the Commission declared the applicants ’ complaint admissible.",
"In its report of 4 March 1994 (Article 31) (art. 31), it expressed the opinion that there had been no violation of Article 2 (art. 2) (eleven votes to six). The full text of the Commission ’ s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [3].",
"FINAL SUBMISSIONS TO THE COURT",
"143. The Government submitted that the deprivations of life to which the applications relate were justified under Article 2 para. 2 (a) (art. 2-2-a) as resulting from the use of force which was no more than absolutely necessary in defence of the people of Gibraltar from unlawful violence and the Court was invited to find that the facts disclosed no breach of Article 2 (art. 2) of the Convention in respect of any of the three deceased.",
"144. The applicants submitted that the Government have not shown beyond reasonable doubt that the planning and execution of the operation was in accordance with Article 2 para. 2 (art. 2-2) of the Convention. Accordingly, the killings were not absolutely necessary within the meaning of this provision (art. 2-2).",
"AS TO THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 (art. 2) OF THE CONVENTION",
"145. The applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage by members of the security forces constituted a violation of Article 2 (art. 2) of the Convention which reads:",
"\"1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.",
"2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary:",
"(a) in defence of any person from unlawful violence;",
"(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;",
"(c) in action lawfully taken for the purpose of quelling a riot or insurrection.\"",
"A. Interpretation of Article 2 (art. 2)",
"1. General approach",
"146. The Court ’ s approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87, and the Loizidou v. Turkey (Preliminary Objections) judgment of 23 March 1995, Series A no. 310, p. 27, para. 72).",
"147. It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe (see the above-mentioned Soering judgment, p. 34, para. 88). As such, its provisions must be strictly construed.",
"148. The Court considers that the exceptions delineated in paragraph 2 (art. 2-2) indicate that this provision (art. 2-2) extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2 (art. 2), read as a whole, demonstrates that paragraph 2 (art. 2-2) does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to \"use force\" which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than \"absolutely necessary\" for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (art. 2-2-a, art. 2-2-b, art. 2-2-c) (see application no. 10044/82, Stewart v. the United Kingdom, 10 July 1984, Decisions and Reports 39, pp. 169-71).",
"149. In this respect the use of the term \"absolutely necessary\" in Article 2 para. 2 (art. 2-2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is \"necessary in a democratic society\" under paragraph 2 of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (art. 2-2-a-b-c).",
"150. In keeping with the importance of this provision (art. 2) in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.",
"2. The obligation to protect life in Article 2 para. 1 (art. 2-1)",
"(a) Compatibility of national law and practice with Article 2 (art. 2) standards",
"151. The applicants submitted under this head that Article 2 para. 1 (art. 2-1) of the Convention imposed a positive duty on States to \"protect\" life. In particular, the national law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State. The State must also give appropriate training, instructions and briefing to its soldiers and other agents who may use force and exercise strict control over any operations which may involve the use of lethal force.",
"In their view, the relevant domestic law was vague and general and did not encompass the Article 2 (art. 2) standard of absolute necessity. This in itself constituted a violation of Article 2 para. 1 (art. 2-1). There was also a violation of this provision (art. 2-1) in that the law did not require that the agents of the State be trained in accordance with the strict standards of Article 2 para. 1 (art. 2-1).",
"152. For the Commission, with whom the Government agreed, Article 2 (art. 2) was not to be interpreted as requiring an identical formulation in domestic law. Its requirements were satisfied if the substance of the Convention right was protected by domestic law.",
"153. The Court recalls that the Convention does not oblige Contracting Parties to incorporate its provisions into national law (see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, para. 84, and The Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 39, para. 90). Furthermore, it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention (see, for example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 18, para. 33).",
"154. Bearing the above in mind, it is noted that Article 2 of the Gibraltar Constitution (see paragraph 133 above) is similar to Article 2 (art. 2) of the Convention with the exception that the standard of justification for the use of force which results in the deprivation of life is that of \"reasonably justifiable\" as opposed to \"absolutely necessary\" in paragraph 2 of Article 2 (art. 2-2). While the Convention standard appears on its face to be stricter than the relevant national standard, it has been submitted by the Government that, having regard to the manner in which the standard is interpreted and applied by the national courts (see paragraphs 134-35 above), there is no significant difference in substance between the two concepts.",
"155. In the Court ’ s view, whatever the validity of this submission, the difference between the two standards is not sufficiently great that a violation of Article 2 para. 1 (art. 2-1) could be found on this ground alone.",
"156. As regards the applicants ’ arguments concerning the training and instruction of the agents of the State and the need for operational control, the Court considers that these are matters which, in the context of the present case, raise issues under Article 2 para. 2 (art. 2-2) concerning the proportionality of the State ’ s response to the perceived threat of a terrorist attack. It suffices to note in this respect that the rules of engagement issued to the soldiers and the police in the present case provide a series of rules governing the use of force which carefully reflect the national standard as well as the substance of the Convention standard (see paragraphs 16, 18 and 136-37 above).",
"(b) Adequacy of the inquest proceedings as an investigative mechanism",
"157. The applicants also submitted under this head, with reference to the relevant standards contained in the UN Force and Firearms Principles (see paragraphs 138-39 above), that the State must provide an effective ex post facto procedure for establishing the facts surrounding a killing by agents of the State through an independent judicial process to which relatives must have full access.",
"Together with the amici curiae, Amnesty International and British-Irish Rights Watch and Others, they submitted that this procedural requirement had not been satisfied by the inquest procedure because of a combination of shortcomings. In particular, they complained that no independent police investigation took place of any aspect of the operation leading to the shootings; that normal scene-of-crime procedures were not followed; that not all eyewitnesses were traced or interviewed by the police; that the Coroner sat with a jury which was drawn from a \"garrison\" town with close ties to the military; that the Coroner refused to allow the jury to be screened to exclude members who were Crown servants; that the public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation.",
"They further contended that they did not enjoy equality of representation with the Crown in the course of the inquest proceedings and were thus severely handicapped in their efforts to find the truth since, inter alia, they had had no legal aid and were only represented by two lawyers; witness statements had been made available in advance to the Crown and to the lawyers representing the police and the soldiers but, with the exception of ballistic and pathology reports, not to their lawyers; they did not have the necessary resources to pay for copies of the daily transcript of the proceedings which amounted to £500-£700.",
"158. The Government submitted that the inquest was an effective, independent and public review mechanism which more than satisfied any procedural requirement which might be read into Article 2 para. 1 (art. 2-1) of the Convention. In particular, they maintained that it would not be appropriate for the Court to seek to identify a single set of standards by which all investigations into the circumstances of death should be assessed. Moreover, it was important to distinguish between such an investigation and civil proceedings brought to seek a remedy for an alleged violation of the right to life. Finally, they invited the Court to reject the contention by the intervenors British-Irish Rights Watch and Others that a violation of Article 2 para. 1 (art. 2-1) will have occurred whenever the Court finds serious differences between the UN Principles on Extra-Legal Executions and the investigation conducted into any particular death (see paragraph 140 above).",
"159. For the Commission, the inquest subjected the actions of the State to extensive, independent and highly public scrutiny and thereby provided sufficient procedural safeguards for the purposes of Article 2 (art. 2) of the Convention.",
"160. The Court considers that it is unnecessary to decide in the present case whether a right of access to court to bring civil proceedings in connection with deprivation of life can be inferred from Article 2 para. 1 (art. 2-1) since this is an issue which would be more appropriately considered under Articles 6 and 13 (art. 6, art. 13) of the Convention - provisions (art. 6, art. 13) that have not been invoked by the applicants.",
"161. The Court confines itself to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with the State ’ s general duty under Article 1 (art. 2+1) of the Convention to \"secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention\", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.",
"162. However, it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented and which involved the hearing of seventy-nine witnesses, did in fact take place. Moreover, the proceedings lasted nineteen days and, as is evident from the inquest ’ s voluminous transcript, involved a detailed review of the events surrounding the killings. Furthermore, it appears from the transcript, including the Coroner ’ s summing-up to the jury, that the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings.",
"163. In light of the above, the Court does not consider that the alleged various shortcomings in the inquest proceedings, to which reference has been made by both the applicants and the intervenors, substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings.",
"164. It follows that there has been no breach of Article 2 para. 1 (art. 2-1) of the Convention on this ground.",
"B. Application of Article 2 (art. 2) to the facts of the case",
"1. General approach to the evaluation of the evidence",
"165. While accepting that the Convention institutions are not in any formal sense bound by the decisions of the inquest jury, the Government submitted that the verdicts were of central importance to any subsequent examination of the deaths of the deceased. Accordingly, the Court should give substantial weight to the verdicts of the jury in the absence of any indication that those verdicts were perverse or ones which no reasonable tribunal of fact could have reached. In this connection, the jury was uniquely well placed to assess the circumstances surrounding the shootings. The members of the jury heard and saw each of the seventy-nine witnesses giving evidence, including extensive cross-examination. With that benefit they were able to assess the credibility and probative value of the witnesses ’ testimony. The Government pointed out that the jury also heard the submissions of the various parties, including those of the lawyers representing the deceased.",
"166. The applicants, on the other hand, maintained that inquests are by their very nature ill-equipped to be full and detailed inquiries into controversial killings such as in the present case. Moreover, the inquest did not examine the killings from the standpoint of concepts such as \"proportionality\" or \"absolute necessity\" but applied the lesser tests of \"reasonable force\" or \"reasonable necessity\". Furthermore, the jury focused on the actions of the soldiers as they opened fire as if it were considering their criminal culpability and not on matters such as the allegedly negligent and reckless planning of the operation.",
"167. The Commission examined the case on the basis of the observations of the parties and the documents submitted by them, in particular the transcript of the inquest. It did not consider itself bound by the findings of the jury.",
"168. The Court recalls that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area. The Court is not, however, bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, and the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).",
"169. In the present case neither the Government nor the applicants have, in the proceedings before the Court, sought to contest the facts as they have been found by the Commission although they differ fundamentally as to the conclusions to be drawn from them under Article 2 (art. 2) of the Convention.",
"Having regard to the submissions of those appearing before the Court and to the inquest proceedings, the Court takes the Commission ’ s establishment of the facts and findings on the points summarised in paragraphs 13 to 132 above to be an accurate and reliable account of the facts underlying the present case.",
"170. As regards the appreciation of these facts from the standpoint of Article 2 (art. 2), the Court observes that the jury had the benefit of listening to the witnesses at first hand, observing their demeanour and assessing the probative value of their testimony.",
"Nevertheless, it must be borne in mind that the jury ’ s finding was limited to a decision of lawful killing and, as is normally the case, did not provide reasons for the conclusion that it reached. In addition, the focus of concern of the inquest proceedings and the standard applied by the jury was whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were \"absolutely necessary\" under Article 2 para. 2 (art. 2-2) in the sense developed above (see paragraphs 120 and 148-49 above).",
"171. Against this background, the Court must make its own assessment whether the facts as established by the Commission disclose a violation of Article 2 (art. 2) of the Convention.",
"172. The applicants further submitted that in examining the actions of the State in a case in which the use of deliberate lethal force was expressly contemplated in writing, the Court should place on the Government the onus of proving, beyond reasonable doubt, that the planning and execution of the operation was in accordance with Article 2 (art. 2) of the Convention. In addition, it should not grant the State authorities the benefit of the doubt as if its criminal liability were at stake.",
"173. The Court, in determining whether there has been a breach of Article 2 (art. 2) in the present case, is not assessing the criminal responsibility of those directly or indirectly concerned. In accordance with its usual practice therefore it will assess the issues in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 160, and the above-mentioned Cruz Varas and Others judgment, p. 29, para. 75).",
"2. Applicants ’ allegation that the killings were premeditated",
"174. The applicants alleged that there had been a premeditated plan to kill the deceased. While conceding that there was no evidence of a direct order from the highest authorities in the Ministry of Defence, they claimed that there was strong circumstantial evidence in support of their allegation. They suggested that a plot to kill could be achieved by other means such as hints and innuendoes, coupled with the choice of a military unit like the SAS which, as indicated by the evidence given by their members at the inquest, was trained to neutralise a target by shooting to kill. Supplying false information of the sort that was actually given to the soldiers in this case would render a fatal shooting likely. The use of the SAS was, in itself, evidence that the killing was intended.",
"175. They further contended that the Gibraltar police would not have been aware of such an unlawful enterprise. They pointed out that the SAS officer E gave his men secret briefings to which the Gibraltar police were not privy. Moreover, when the soldiers attended the police station after the shootings, they were accompanied by an army lawyer who made it clear that the soldiers were there only for the purpose of handing in their weapons. In addition, the soldiers were immediately flown out of Gibraltar without ever having been interviewed by the police.",
"176. The applicants referred to the following factors, amongst others, in support of their contention:",
"- The best and safest method of preventing an explosion and capturing the suspects would have been to stop them and their bomb from entering Gibraltar. The authorities had their photographs and knew their names and aliases as well as the passports they were carrying;",
"- If the suspects had been under close observation by the Spanish authorities from Malaga to Gibraltar, as claimed by the journalist, Mr Debelius, the hiring of the white Renault car would have been seen and it would have been known that it did not contain a bomb (see paragraph 128 above);",
"- The above claim is supported by the failure of the authorities to isolate the bomb and clear the area around it in order to protect the public. In Gibraltar there were a large number of soldiers present with experience in the speedy clearance of suspect bomb sites. The only explanation for this lapse in security procedures was that the security services knew that there was no bomb in the car;",
"- Soldier G, who was sent to inspect the car and who reported that there was a suspect car bomb, admitted during the inquest that he was not an expert in radio signal transmission (see paragraph 53 above). This was significant since the sole basis for his assessment was that the radio aerial looked older than the car. A real expert would have thought of removing the aerial to nullify the radio detonator, which could have been done without destabilising the explosive, as testified by Dr Scott. He would have also known that if the suspects had intended to explode a bomb by means of a radio signal they would not have used a rusty aerial - which would reduce the capacity to receive a clear signal - but a clean one (see paragraph 114 above). It also emerged from his evidence that he was not an explosives expert either. There was thus the possibility that the true role of Soldier G was to report that he suspected a car bomb in order to induce the Gibraltar police to sign the document authorising the SAS to employ lethal force.",
"177. In the Government ’ s submission it was implicit in the jury ’ s verdicts of lawful killing that they found as facts that there was no plot to kill the three terrorists and that the operation in Gibraltar had not been conceived or mounted with this aim in view. The aim of the operation was to effect the lawful arrest of the three terrorists and it was for this purpose that the assistance of the military was sought and given. Furthermore, the jury must have also rejected the applicants ’ contention that Soldiers A, B, C and D had deliberately set out to kill the terrorists, whether acting on express orders or as a result of being given \"a nod and a wink\".",
"178. The Commission concluded that there was no evidence to support the applicants ’ claim of a premeditated plot to kill the suspects.",
"179. The Court observes that it would need to have convincing evidence before it could conclude that there was a premeditated plan, in the sense developed by the applicants.",
"180. In the light of its own examination of the material before it, the Court does not find it established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that Soldiers A, B, C and D had been so encouraged or instructed by the superior officers who had briefed them prior to the operation, or indeed that they had decided on their own initiative to kill the suspects irrespective of the existence of any justification for the use of lethal force and in disobedience to the arrest instructions they had received. Nor is there evidence that there was an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects.",
"181. The factors relied on by the applicants amount to a series of conjectures that the authorities must have known that there was no bomb in the car. However, having regard to the intelligence information that they had received, to the known profiles of the three terrorists, all of whom had a background in explosives, and the fact that Mr Savage was seen to \"fiddle\" with something before leaving the car (see paragraph 38 above), the belief that the car contained a bomb cannot be described as either implausible or wholly lacking in foundation.",
"182. In particular, the decision to admit them to Gibraltar, however open to criticism given the risks that it entailed, was in accordance with the arrest policy formulated by the Advisory Group that no effort should be made to apprehend them until all three were present in Gibraltar and there was sufficient evidence of a bombing mission to secure their convictions (see paragraph 37 above).",
"183. Nor can the Court accept the applicants ’ contention that the use of the SAS, in itself, amounted to evidence that the killing of the suspects was intended. In this respect it notes that the SAS is a special unit which has received specialist training in combating terrorism. It was only natural, therefore, that in light of the advance warning that the authorities received of an impending terrorist attack they would resort to the skill and experience of the SAS in order to deal with the threat in the safest and most informed manner possible.",
"184. The Court therefore rejects as unsubstantiated the applicants ’ allegations that the killing of the three suspects was premeditated or the product of a tacit agreement amongst those involved in the operation.",
"3. Conduct and planning of the operation",
"(a) Arguments of those appearing before the Court",
"(1) The applicants",
"185. The applicants submitted that it would be wrong for the Court, as the Commission had done, to limit its assessment to the question of the possible justification of the soldiers who actually killed the suspects. It must examine the liability of the Government for all aspects of the operation. Indeed, the soldiers may well have been acquitted at a criminal trial if they could have shown that they honestly believed the ungrounded and false information they were given.",
"186. The soldiers had been told by Officer E (the attack commander) that the three suspects had planted a car bomb in Gibraltar, whereas Soldier G - the bomb-disposal expert - had reported that it was merely a suspect bomb; that it was a remote-control bomb; that each of the suspects could detonate it from anywhere in Gibraltar by the mere flicking of a switch and that they would not hesitate to do so the moment they were challenged. In reality, these \"certainties\" and \"facts\" were no more than suspicions or at best dubious assessments. However, they were conveyed as facts to soldiers who not only had been trained to shoot at the merest hint of a threat but also, as emerged from the evidence given during the inquest, to continue to shoot until they had killed their target.",
"In sum, they submitted that the killings came about as a result of incompetence and negligence in the planning and conduct of the anti-terrorist operation to arrest the suspects as well as a failure to maintain a proper balance between the need to meet the threat posed and the right to life of the suspects.",
"(2) The Government",
"187. The Government submitted that the actions of the soldiers were absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention. Each of them had to make a split-second decision which could have affected a large number of lives. They believed that the movements which they saw the suspects make at the moment they were intercepted gave the impression that the terrorists were about to detonate a bomb. This evidence was confirmed by other witnesses who saw the movements in question. If it is accepted that the soldiers honestly and reasonably believed that the terrorists upon whom they opened fire might have been about to detonate a bomb by pressing a button, then they had no alternative but to open fire.",
"188. They also pointed out that much of the information available to the authorities and many of the judgments made by them proved to be accurate. The three deceased were an IRA active service unit which was planning an operation in Gibraltar; they did have in their control a large quantity of explosives which were subsequently found in Spain; and the nature of the operation was a car bomb. The risk to the lives of those in Gibraltar was, therefore, both real and extremely serious.",
"189. The Government further submitted that in examining the planning of the anti-terrorist operation it should be borne in mind that intelligence assessments are necessarily based on incomplete information since only fragments of the true picture will be known. Moreover, experience showed that the IRA were exceptionally ruthless and skilled in counter-surveillance techniques and that they did their best to conceal their intentions from the authorities. In addition, experience in Northern Ireland showed that the IRA is constantly and rapidly developing new technology. They thus had to take into account the possibility that the terrorists might be equipped with more sophisticated or more easily concealable radio-controlled devices than the IRA had previously been known to use. Finally, the consequences of underestimating the threat posed by the active service unit could have been catastrophic. If they had succeeded in detonating a bomb of the type and size found in Spain, everyone in the car-park would have been killed or badly maimed and grievous injuries would have been caused to those in adjacent buildings, which included a school and an old-people ’ s home.",
"190. The intelligence assessments made in the course of the operation were reasonable ones to make in the light of the inevitably limited amount of information available to the authorities and the potentially devastating consequences of underestimating the terrorists ’ abilities and resources. In this regard the Government made the following observations:",
"- It was believed that a remote-controlled device would be used because it would give the terrorists a better chance of escape and would increase their ability to maximise the proportion of military rather than civilian casualties. Moreover, the IRA had used such a device in Brussels only six weeks before.",
"- It was assumed that any remote-control such as that produced to the Court would be small enough to be readily concealed about the person. The soldiers themselves successfully concealed radios of a similar size about their persons.",
"- As testified by Captain Edwards at the inquest, tests carried out demonstrated that a bomb in the car-park could have been detonated from the spot where the terrorists were shot (see paragraph 116 above).",
"- Past experience strongly suggested that the terrorists ’ detonation device might have been operated by pressing a single button.",
"- As explained by Witness O at the inquest, the use of a blocking car would have been unnecessary because the terrorists would not be expected to have any difficulty in finding a free space on 8 March. It was also dangerous because it would have required two trips into Gibraltar, thereby significantly increasing the risk of detection (see paragraph 23 (point (e) above).",
"- There was no reason to doubt the bona fides of Soldier G ’ s assessment that the car was a suspect car bomb. In the first place his evidence was that he was quite familiar with car bombs. Moreover, the car had been parked by a known bomb-maker who had been seen to \"fiddle\" with something between the seats and the car aerial appeared to be out of place. IRA car bombs had been known from experience to have specially-fitted aerials and G could not say for certain from an external examination that the car did not contain a bomb (see paragraph 48 above). Furthermore, all three suspects appeared to be leaving Gibraltar. Finally the operation of cordoning off the area around the car began only twenty minutes after the above assessment had been made because of the shortage of available manpower and the fact that the evacuation plans were not intended for implementation until 7 or 8 March.",
"- It would have been reckless for the authorities to assume that the terrorists might not have detonated their bomb if challenged. The IRA were deeply committed terrorists who were, in their view, at war with the United Kingdom and who had in the past shown a reckless disregard for their own safety. There was still a real risk that if they had been faced with a choice between an explosion causing civilian casualties and no explosion at all, the terrorists would have preferred the former.",
"(3) The Commission",
"191. The Commission considered that, given the soldiers ’ perception of the risk to the lives of the people of Gibraltar, the shooting of the three suspects could be regarded as absolutely necessary for the legitimate aim of the defence of others from unlawful violence. It also concluded that, having regard to the possibility that the suspects had brought in a car bomb which, if detonated, would have occasioned the loss of many lives and the possibility that the suspects could have been able to detonate it when confronted by the soldiers, the planning and execution of the operation by the authorities did not disclose any deliberate design or lack of proper care which might have rendered the use of lethal force disproportionate to the aim of saving lives.",
"(b) The Court ’ s assessment",
"(1) Preliminary considerations",
"192. In carrying out its examination under Article 2 (art. 2) of the Convention, the Court must bear in mind that the information that the United Kingdom authorities received that there would be a terrorist attack in Gibraltar presented them with a fundamental dilemma. On the one hand, they were required to have regard to their duty to protect the lives of the people in Gibraltar including their own military personnel and, on the other, to have minimum resort to the use of lethal force against those suspected of posing this threat in the light of the obligations flowing from both domestic and international law.",
"193. Several other factors must also be taken into consideration.",
"In the first place, the authorities were confronted by an active service unit of the IRA composed of persons who had been convicted of bombing offences and a known explosives expert. The IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members.",
"Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses.",
"194. Against this background, in determining whether the force used was compatible with Article 2 (art. 2), the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The Court will consider each of these points in turn.",
"(2) Actions of the soldiers",
"195. It is recalled that the soldiers who carried out the shooting (A, B, C and D) were informed by their superiors, in essence, that there was a car bomb in place which could be detonated by any of the three suspects by means of a radio-control device which might have been concealed on their persons; that the device could be activated by pressing a button; that they would be likely to detonate the bomb if challenged, thereby causing heavy loss of life and serious injuries, and were also likely to be armed and to resist arrest (see paragraphs 23, 24-27, and 28-31 above).",
"196. As regards the shooting of Mr McCann and Ms Farrell, the Court recalls the Commission ’ s finding that they were shot at close range after making what appeared to Soldiers A and B to be threatening movements with their hands as if they were going to detonate the bomb (see paragraph 132 above). The evidence indicated that they were shot as they fell to the ground but not as they lay on the ground (see paragraphs 59-67 above). Four witnesses recalled hearing a warning shout (see paragraph 75 above). Officer P corroborated the soldiers ’ evidence as to the hand movements (see paragraph 76 above). Officer Q and Police Constable Parody also confirmed that Ms Farrell had made a sudden, suspicious move towards her handbag (ibid.).",
"197. As regards the shooting of Mr Savage, the evidence revealed that there was only a matter of seconds between the shooting at the Shell garage (McCann and Farrell) and the shooting at Landport tunnel (Savage). The Commission found that it was unlikely that Soldiers C and D witnessed the first shooting before pursuing Mr Savage who had turned around after being alerted by either the police siren or the shooting (see paragraph 132 above).",
"Soldier C opened fire because Mr Savage moved his right arm to the area of his jacket pocket, thereby giving rise to the fear that he was about to detonate the bomb. In addition, Soldier C had seen something bulky in his pocket which he believed to be a detonating transmitter. Soldier D also opened fire believing that the suspect was trying to detonate the supposed bomb. The soldiers ’ version of events was corroborated in some respects by Witnesses H and J, who saw Mr Savage spin round to face the soldiers in apparent response to the police siren or the first shooting (see paragraphs 83 and 85 above).",
"The Commission found that Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he had hit the ground (see paragraph 132 above). This conclusion was supported by the pathologists ’ evidence at the inquest (see paragraph 110 above).",
"198. It was subsequently discovered that the suspects were unarmed, that they did not have a detonator device on their persons and that there was no bomb in the car (see paragraphs 93 and 96 above).",
"199. All four soldiers admitted that they shot to kill. They considered that it was necessary to continue to fire at the suspects until they were rendered physically incapable of detonating a device (see paragraphs 61, 63, 80 and 120 above). According to the pathologists ’ evidence Ms Farrell was hit by eight bullets, Mr McCann by five and Mr Savage by sixteen (see paragraphs 108-10 above).",
"200. The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life (see paragraph 195 above). The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives.",
"It considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 (art. 2-2) of the Convention may be justified under this provision (art. 2-2) where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.",
"It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision (art. 2-2).",
"201. The question arises, however, whether the anti-terrorist operation as a whole was controlled and organised in a manner which respected the requirements of Article 2 (art. 2) and whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adequately into consideration the right to life of the three suspects.",
"(3) Control and organisation of the operation",
"202. The Court first observes that, as appears from the operational order of the Commissioner, it had been the intention of the authorities to arrest the suspects at an appropriate stage. Indeed, evidence was given at the inquest that arrest procedures had been practised by the soldiers before 6 March and that efforts had been made to find a suitable place in Gibraltar to detain the suspects after their arrest (see paragraphs 18 and 55 above).",
"203. It may be questioned why the three suspects were not arrested at the border immediately on their arrival in Gibraltar and why, as emerged from the evidence given by Inspector Ullger, the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists ’ intentions it would certainly have been possible for the authorities to have mounted an arrest operation. Although surprised at the early arrival of the three suspects, they had a surveillance team at the border and an arrest group nearby (see paragraph 34 above). In addition, the Security Services and the Spanish authorities had photographs of the three suspects, knew their names as well as their aliases and would have known what passports to look for (see paragraph 33 above).",
"204. On this issue, the Government submitted that at that moment there might not have been sufficient evidence to warrant the detention and trial of the suspects. Moreover, to release them, having alerted them to the authorities ’ state of awareness but leaving them or others free to try again, would obviously increase the risks. Nor could the authorities be sure that those three were the only terrorists they had to deal with or of the manner in which it was proposed to carry out the bombing.",
"205. The Court confines itself to observing in this respect that the danger to the population of Gibraltar - which is at the heart of the Government ’ s submissions in this case - in not preventing their entry must be considered to outweigh the possible consequences of having insufficient evidence to warrant their detention and trial. In its view, either the authorities knew that there was no bomb in the car - which the Court has already discounted (see paragraph 181 above) - or there was a serious miscalculation by those responsible for controlling the operation. As a result, the scene was set in which the fatal shooting, given the intelligence assessments which had been made, was a foreseeable possibility if not a likelihood.",
"The decision not to stop the three terrorists from entering Gibraltar is thus a relevant factor to take into account under this head.",
"206. The Court notes that at the briefing on 5 March attended by Soldiers A, B, C, and D it was considered likely that the attack would be by way of a large car bomb. A number of key assessments were made. In particular, it was thought that the terrorists would not use a blocking car; that the bomb would be detonated by a radio-control device; that the detonation could be effected by the pressing of a button; that it was likely that the suspects would detonate the bomb if challenged; that they would be armed and would be likely to use their arms if confronted (see paragraphs 23-31 above).",
"207. In the event, all of these crucial assumptions, apart from the terrorists ’ intentions to carry out an attack, turned out to be erroneous. Nevertheless, as has been demonstrated by the Government, on the basis of their experience in dealing with the IRA, they were all possible hypotheses in a situation where the true facts were unknown and where the authorities operated on the basis of limited intelligence information.",
"208. In fact, insufficient allowances appear to have been made for other assumptions. For example, since the bombing was not expected until 8 March when the changing of the guard ceremony was to take place, there was equally the possibility that the three terrorists were on a reconnaissance mission. While this was a factor which was briefly considered, it does not appear to have been regarded as a serious possibility (see paragraph 45 above).",
"In addition, at the briefings or after the suspects had been spotted, it might have been thought unlikely that they would have been prepared to explode the bomb, thereby killing many civilians, as Mr McCann and Ms Farrell strolled towards the border area since this would have increased the risk of detection and capture (see paragraph 57 above). It might also have been thought improbable that at that point they would have set up the transmitter in anticipation to enable them to detonate the supposed bomb immediately if confronted (see paragraph 115 above).",
"Moreover, even if allowances are made for the technological skills of the IRA, the description of the detonation device as a \"button job\" without the qualifications subsequently described by the experts at the inquest (see paragraphs 115 and 131 above), of which the competent authorities must have been aware, over-simplifies the true nature of these devices.",
"209. It is further disquieting in this context that the assessment made by Soldier G, after a cursory external examination of the car, that there was a \"suspect car bomb\" was conveyed to the soldiers, according to their own testimony, as a definite identification that there was such a bomb (see paragraphs 48, and 51-52 above). It is recalled that while Soldier G had experience in car bombs, it transpired that he was not an expert in radio communications or explosives; and that his assessment that there was a suspect car bomb, based on his observation that the car aerial was out of place, was more in the nature of a report that a bomb could not be ruled out (see paragraph 53 above).",
"210. In the absence of sufficient allowances being made for alternative possibilities, and the definite reporting of the existence of a car bomb which, according to the assessments that had been made, could be detonated at the press of a button, a series of working hypotheses were conveyed to Soldiers A, B, C and D as certainties, thereby making the use of lethal force almost unavoidable.",
"211. However, the failure to make provision for a margin of error must also be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the Coroner in his summing-up to the jury at the inquest, all four soldiers shot to kill the suspects (see paragraphs 61, 63, 80 and 120 above). Soldier E testified that it had been discussed with the soldiers that there was an increased chance that they would have to shoot to kill since there would be less time where there was a \"button\" device (see paragraph 26 above). Against this background, the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill.",
"212. Although detailed investigation at the inquest into the training received by the soldiers was prevented by the public interest certificates which had been issued (see paragraph 104, at point 1. (iii) above), it is not clear whether they had been trained or instructed to assess whether the use of firearms to wound their targets may have been warranted by the specific circumstances that confronted them at the moment of arrest.",
"Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement (see paragraphs 136 and 137 above).",
"This failure by the authorities also suggests a lack of appropriate care in the control and organisation of the arrest operation.",
"213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention.",
"214. Accordingly, the Court finds that there has been a breach of Article 2 (art. 2) of the Convention.",
"II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION",
"215. Article 50 (art. 50) of the Convention provides as follows:",
"\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"",
"216. The applicants requested the award of damages at the same level as would be awarded under English law to a person who was unlawfully killed by agents of the State. They also asked, in the event of the Court finding that the killings were both unlawful and deliberate or were the result of gross negligence, exemplary damages at the same level as would be awarded under English law to a relative of a person killed in similar circumstances.",
"217. As regards costs and expenses, they asked for all costs arising directly or indirectly from the killings, including the costs of relatives and lawyers attending the Gibraltar inquest and all Strasbourg costs. The solicitor ’ s costs and expenses in respect of the Gibraltar inquest are estimated at £56,200 and his Strasbourg costs at £28,800. Counsel claimed £16,700 in respect of Strasbourg costs and expenses.",
"218. The Government contended that, in the event of a finding of a violation, financial compensation in the form of pecuniary and non-pecuniary damages would be unnecessary and inappropriate.",
"As regards the costs incurred before the Strasbourg institutions, they submitted that the applicants should be awarded only the costs actually and necessarily incurred by them and which were reasonable as to quantum. However, as regards the claim for costs in respect of the Gibraltar inquest, they maintained that (1) as a point of principle, the costs of the domestic proceedings, including the costs of the inquest, should not be recoverable under Article 50 (art. 50); (2) since the applicants ’ legal representatives acted free of charge, there can be no basis for an award to the applicants; (3) in any event, the costs claimed were not calculated on the basis of the normal rates of the solicitor concerned.",
"A. Pecuniary and non-pecuniary damage",
"219. The Court observes that it is not clear from the applicants ’ submissions whether their claim for financial compensation is under the head of pecuniary or non-pecuniary damages or both. In any event, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head. It therefore dismisses the applicants ’ claim for damages.",
"B. Costs and expenses",
"220. The Court recalls that, in accordance with its case-law, it is only costs which are actually and necessarily incurred and reasonable as to quantum that are recoverable under this head.",
"221. As regards the Gibraltar costs, the applicants stated in the proceedings before the Commission that their legal representatives had acted free of charge. In this connection, it has not been claimed that they are under any obligation to pay the solicitor the amounts claimed under this item. In these circumstances, the costs cannot be claimed under Article 50 (art. 50) since they have not been actually incurred.",
"222. As regards the costs and expenses incurred during the Strasbourg proceedings, the Court, making an equitable assessment, awards £22,000 and £16,700 in respect of the solicitor ’ s and counsel ’ s claims respectively, less 37,731 French francs received by way of legal aid from the Council of Europe."
] |
297 | Armani Da Silva v. the United Kingdom | 30 March 2016 (Grand Chamber) | This case concerned the fatal shooting of a Brazilian national mistakenly identified by the police as a suicide bomber. The applicant, his cousin, complained that the State had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer. | The Court held that there had been no violation of Article 2 (right to life – investigation) of the Convention. Having regard to the proceedings as a whole, it found that the UK authorities had not failed in their obligations under Article 2 of the Convention to conduct an effective investigation into the shooting of the applicant’s cousin which was capable of identifying and – if appropriate – punishing those responsible. In particular, the Court considered that all aspects of the authorities’ responsibility for the fatal shooting had been thoroughly investigated. Both the individual responsibility of the police officers involved and the institutional responsibility of the police authority had been considered in depth by the Independent Police Complaints Commission, the Crown Prosecution Service, the criminal court and the Coroner and jury during the Inquest. The decision not to prosecute any individual officer was not due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to prosecute. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"12. The applicant was born in 1974 and lives in London. She is the cousin of Jean Charles de Menezes, who was shot dead by police officers on 22 July 2005.",
"A. Background",
"13. On 7 July 2005 four suicide bombers detonated explosions on the London transport network. Three of the suicide bombers were on underground trains and one was on a bus. Fifty-six people, including the four suicide bombers, were killed in the attack and many more were injured.",
"14. The Metropolitan Police Service (“the MPS”) initiated a major police investigation to establish the identities of persons involved in or otherwise connected with the explosions. Available intelligence indicated that terrorists were actively planning a further attack within a matter of days, and the threat level posed to the United Kingdom from international terrorism was raised from Level 3 to Level 1.",
"15. On 21 July 2005, precisely two weeks after the first bombings, four explosive devices were discovered in rucksacks left on three underground trains and on one bus. As it was feared that the failed bombers would regroup the following morning and attempt to detonate further explosions, the MPS immediately launched an operation to find them (“Operation THESEUS 2”). This operation was led by Police Commander John McDowall as Gold Commander.",
"16. At 4.20 a.m. on 22 July 2005, Commander McDowall was informed that intelligence had identified Hussain Osman as a suspect in the failed bombings of 21 July. Both Mr Osman and another suspect were thought to be living in an apartment at 21 Scotia Road, London.",
"B. Operation THESEUS 2",
"1. Commander McDowall ’ s strategy",
"17. At 4.38 a.m. on 22 July 2005, Commander McDowall decided to mount surveillance operations at both Scotia Road and another London address. The overall aim of the operation at 21 Scotia Road was to establish whether the suspects were present in the apartment and to arrest them safely if they came out. Commander McDowall ’ s strategy for this operation was not recorded; however, it would appear to have been to oversee the premises at Scotia Road through covert surveillance, to follow persons leaving the premises until it was felt safe to challenge them, and then to stop them. In order to implement this strategy, his plan was that a surveillance team from SO12 (Special Branch) should be in attendance at Scotia Road. They were to be supported by a unit from SO19, the Specialist Crime & Operations branch of the MPS. The unit from SO19 consisted of highly trained Special Firearms Officers (“SFOs”) who were usually deployed on pre-planned operations. Although some surveillance officers were armed for their own protection and that of the public, their training did not enable them to be used as a resource to arrest armed suspects. SO19 would normally undertake this task, although armed officers from SO12 could be used for this purpose as a last resort.",
"18. The Crown Prosecution Service (“the CPS”) Review Note later found that if Commander McDowall ’ s strategy had been followed (notably, had the team from SO19 been deployed in time to support the surveillance teams at Scotia Road), events would not have unfolded as they did.",
"2. The command structure",
"19. Commander McDowall appointed Commander Cressida Dick as the Designated Senior Officer (“the DSO”) in charge, who was to be responsible for accomplishing the THESEUS 2 strategy safely. As such, she had responsibility for the operation at 21 Scotia Road on 22 July 2005. She was based in control room 1600, where she was supported by Trojan 80, an experienced SFO from SO19 who was acting as her tactical adviser.",
"20. Detective Chief Inspector C (“DCI C”) was appointed as Silver Commander for the operation at Scotia Road. Although a Silver Commander would usually have ultimate responsibility for the management of an incident and deployment of firearms resources, on this occasion the DSO retained this responsibility and DCI C operated as the DSO ’ s ground commander. DCI C was supported by and accompanied on the ground by Trojan 84, who, like Trojan 80, was an experienced SFO from SO19 who was acting as a tactical adviser. Trojan 84 was in charge of the SFO team to be deployed and he was in direct contact with Trojan 80.",
"21. Detective Superintendent Jon Boutcher (“DS Boutcher”), the Senior Investigating Officer for the investigation into the identity of the persons responsible for the bombings on 7 July 2005, was also appointed as a Silver Commander.",
"3. Implementation of Commander McDowall ’ s strategy",
"22. At 5.00 a.m. on 22 July 2005, a surveillance team from SO12 was called out. No request was made at this stage for a unit from SO19.",
"23. By 6.04 a.m. two surveillance teams from SO12 had been deployed to the Scotia Road address to oversee the premises and to follow anyone coming out of the apartments. 21 Scotia Road was accessed by the same doorway as 17 Scotia Road and the surveillance teams were stationed in an observation van which had a view of that doorway.",
"24. SO13 (the Anti-Terrorist Branch of the MPS) deployed four officers to assist with any arrest and to gain intelligence. DS Boutcher was the link between the control room and SO13.",
"25. At 6.50 a.m. Commander McDowall held a briefing during which the firearms strategy was outlined. Trojan 80 was present at the briefing together with the Silver Commanders for the surveillance operations at Scotia Road and the second London address. The DSO arrived at 7.15 a.m.; however, Commander McDowall spoke to her after the briefing to ensure she had all the information and assistance she needed.",
"26. As they had not been called out earlier (see paragraph 22 above), SFOs from SO19 were allocated to the operation when they reported for duty. At 7.45 a.m. Trojan 84 briefed the SFOs. The briefing was not recorded, but he appears to have told the team that they “may be required to use unusual tactics because of the situation they were in and that they should think about this”. When asked for clarification, Trojan 84 added that, in relation to a critical shot, the instruction would come directly from the DSO. However, if they were deployed to intercept a subject and there was an opportunity to challenge but the subject was non-compliant, a critical shot could be taken. The CPS later found that this briefing “stoked the [SFOs ’ ] fears that they would meet suicide bombers and that they may have to shoot such people”.",
"27. Following the briefing, the unit from SO19 travelled to a police station at Nightingale Lane, which was approximately two miles from Scotia Road. They stopped off for petrol on the way. Upon arrival they received a further briefing from DCI C, which commenced at 8.50 a.m. The briefing was not recorded, but it appears that DCI C confirmed the terrorists had the capacity to attach a device to themselves that would be difficult to detect. He described the individuals involved in the bombings as being “deadly and determined” and “up for it”. The CPS later criticised this briefing as unbalanced, as DCI C had failed to caution the SFOs that not everyone they would stop leaving Scotia Road would be a suicide bomber and that they should not overreact in the heat of the moment.",
"28. The team from SO19 was not deployed on the ground until after 9.30 a.m.",
"4. Events leading to the death of Mr Jean Charles de Menezes",
"29. Jean Charles de Menezes was a Brazilian national who lived at 17 Scotia Road. At 9.33 a.m. he left his apartment building through the common doorway in order to go to work. An officer in the surveillance van saw Mr de Menezes, described him and suggested “it would be worth someone else having a look”. However, as the unit from SO19 had not yet reached Scotia Road it was not possible to stop Mr de Menezes at this stage (as per the strategy outlined at paragraph 17 above). Instead, he was followed by the surveillance officers.",
"30. On leaving Scotia Road, Mr de Menezes walked a short distance to a bus stop and got on a bus heading towards Brixton. The CCTV on the bus did not capture the entire journey due to vibrations but Mr de Menezes was recorded as being on the bus by 9.39 a.m. At this point the surveillance team described him as “a good possible likeness” to Hussain Osman. By 9.46 a.m. the description had changed to “not identical”.",
"31. At 9.47 a.m. Mr de Menezes got off the bus. He was then seen using his mobile telephone before running back to the bus and reboarding.",
"32. There are conflicting accounts of whether a positive identification was made of Mr de Menezes as the suspect at this stage. It appears from the Stockwell One Report of the Independent Police Complaints Commission (“the IPCC” – see paragraphs 45 - 71 below) that those on the ground had not been able to identify Mr de Menezes as Hussein Osman. The fact that the Surveillance Running Log refers to him at each entry as being an “U/I [unidentified] male” lends some support to this position. Nevertheless, those in control room 1600 appear to have believed that a positive identification of Hussein Osman had been made.",
"33. At around the time that Mr de Menezes reboarded the bus, the unit from SO19 began to make its way towards Brixton. The SFO team leader later told the IPCC that he heard over the radio that “it was definitely our man and that he was nervous and twitchy”.",
"34. At 9.59 a.m. the surveillance teams were asked to give a percentage indication of the likelihood that Mr de Menezes was the suspect, and they replied that it was “impossible [to do so] but thought that it was [the] suspect”.",
"35. Mr de Menezes got off the bus at Stockwell and walked towards Stockwell underground station. There were several surveillance officers in the vicinity and their leader offered to stop Mr de Menezes before he entered the station. The DSO initially ordered that they perform the stop, having been informed that the unit from SO19 was not yet in a position to intervene. However, almost immediately thereafter she was informed that the unit was on hand. As a consequence, she countermanded her original order and instructed the SFOs to stop Mr de Menezes. By this time Mr de Menezes was already in the underground station. Trojan 84 relayed the order to the SFOs, informing them that “they want us to stop the subject getting on the tube”. The SFOs were told that they were going to Code Red, which meant that they were to have ultimate control of the situation and that an armed interception was imminent.",
"36. The CCTV at the station shows Mr de Menezes entering the station at 10.03 a.m. wearing a thin denim jacket, a T-shirt and denim jeans, walking calmly and not carrying anything. He went down an escalator and onto a platform. There is no CCTV recording of the lower end of the escalator or of the platform: the relevant tapes, when seized by the MPS, were blank. The IPCC Stockwell One Report and the CPS later found that this was because a cable had been damaged during recent refurbishment work.",
"37. At 10.05 a.m. a number of SFOs entered Stockwell underground station and ran down the escalators. At 10.06 a.m. they followed Mr de Menezes onto the platform. Eyewitness accounts as to what exactly happened next are conflicting, and some of the witnesses gave accounts which, it is now known, could not have been accurate. However, it would appear from the accounts quoted in the IPCC Stockwell One Report that Mr de Menezes went into the third coach of a stationary train and sat down; one of the surveillance officers shouted to the SFOs that Mr de Menezes was there; Mr de Menezes stood up, arms down; he was pushed back onto his seat and pinned down by two police officers; according to one witness his hand may have moved towards the left hand side of his trouser waistband; and two SFOs (Charlie 2 and Charlie 12) shot Mr de Menezes several times and killed him.",
"38. Within days of the shooting, after it had become apparent that Mr de Menezes had not been involved in the attempted terror attacks on 21 July, the Commissioner of the Police of the Metropolis, the Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs expressed their profound regret at his death. A representative of the MPS travelled to meet his family in Brazil and apologised directly to them on behalf of the police. An ex gratia payment was agreed upon to ensure that the family ’ s financial needs were met. They were encouraged to take independent legal advice from a solicitor in the United Kingdom, and they were advised that their legal costs in doing so would be met.",
"C. Post-death investigations",
"1. The initial investigations",
"39. The Police Reform Act 2002 and the Police (Complaints and Misconduct) Regulations 2004 required a police shooting to be referred to the IPCC. However, following the shooting of Mr de Menezes, the Commissioner of the Police of the Metropolis wrote to the Home Office to inform it that he had decided not to refer the matter to the IPCC at that time.",
"40. As it was not immediately clear that Mr de Menezes had not been connected to the attempted bombings, the Anti-Terrorist Branch initially retained primary control of the scene of the shooting. During this time the Department of Professional Standards (“the DPS”), an independent section of the MPS which had been notified of the shooting at 10.38 a.m. on 22 July 2005, ensured the integrity of the scene, interviewed witnesses, and completed forensic retrieval.",
"41. After the shooting, Charlie 2 and Charlie 12 had been taken to a police station. At 2.30 p.m., having taken legal advice, they indicated that they would not be making statements at that time. Instead, they made their statements together at approximately 2.00 p.m. the next day, after they had been told that Mr de Menezes was not connected to the attempted bombings. Some of the details they initially provided have since been either proved false or called into doubt. For example, they initially indicated that Mr de Menezes had been wearing a bulky jacket (CCTV footage showed him wearing a light denim jacket) and that the officers from SO19 had shouted “armed police” when they boarded the train (the IPCC considered such action to be “illogical” when confronting a possible suicide bomber).",
"42. An officer from SO12 had seized the surveillance log at 12.35 p.m. on 22 July 2005. However, at 8.40 p.m. the same day, it was handed back to the officers from the unit. Around this time an amendment appears to have been made to an entry; the words “a split second view of his face. I believe it was [the suspect]” appear to have been altered to read “I believe it was NOT [the suspect]”.",
"43. At 9.45 p.m. on 22 July 2005, the Anti-Terrorist Branch formally handed over control of the scene to the DPS as they were satisfied that Mr de Menezes was not connected to the attempted bombings.",
"44. On 23 July 2005 a post-mortem examination took place and recorded the cause of death as “multiple gunshot wounds to the head. The cause of death is severe disruption to the brain”.",
"2. The first IPCC investigation and the IPCC Stockwell One Report",
"45. On 25 July 2005 the DPS formally referred the investigation to the IPCC, whose investigation began on 27 July 2005 when the DPS provided it with the relevant material in its possession. Because of the seriousness of – and the public interest in – the matter, the IPCC determined that it would use its own staff to carry out the investigation. It was overseen by the Chair of the IPCC personally and the investigating team possessed all the powers and privileges of a police constable carrying out an investigation.",
"46. The purpose of the investigation was to advise the CPS of any criminal offence that might have been committed; to provide it with the evidence necessary to come to a decision regarding any prosecution; to enable the “responsible authorities” of the officers concerned (the MPS and Metropolitan Police Authority, or “MPA”) to consider what disciplinary or other action they might need to take; to inform the Secretary of State for the Home Department of the circumstances of Mr de Menezes ’ death; and to assist the coroner in relation to any inquest.",
"47. In particular, the investigation by the IPCC was to examine :",
"(a) the information that led to the surveillance of the apartments at Scotia Road;",
"(b) the command structure of the operation, including details of the numbers and types of specialist officers deployed and the tactics available to them;",
"(c) the qualification and training of those involved and their suitability to carry out their role;",
"(d) details of the briefing given to the officers involved and any description or photograph of any suspect made available;",
"(e) whether or not the operation was designated as a “KRATOS” operation (the national strategy for dealing with suspected suicide bombers which permitted the use of lethal force if absolutely necessary) and the policy, operational tactics and authority levels of “KRATOS”;",
"(f) the details of the mobile surveillance operation from Scotia Road to Stockwell underground station;",
"(g) the details of police action once Mr de Menezes had reached Stockwell underground station;",
"(h) whether or not the policy and operational authorities of “KRATOS” were followed and were effective; and",
"(i) whether “KRATOS” was compliant with Article 2 of the Convention.",
"48. The IPCC was also to report on the actions and statements of the DPS from the time of the incident to the formal handover of the investigation to the IPCC to ensure that the IPCC investigation met its obligations under Article 2 of the Convention.",
"49. During the course of the investigation, nearly 890 witness statements were taken from police, forensic experts and civilian witnesses, and more than 800 exhibits were collected. The family of Mr de Menezes, together with their legal representatives, were given regular detailed verbal briefings on the progress of the investigation and eventually on its conclusions.",
"50. On 30 September 2005 the IPCC investigating team submitted a report to the IPCC indicating, inter alia, that certain officers might have committed criminal or disciplinary offences. The IPCC therefore wrote to the MPS and to the MPA regarding the officers concerned.",
"51. On 19 January 2006 the IPCC Stockwell One Report was completed and submitted to the CPS. On 6 and 22 March 2006 the legal representatives of Mr de Menezes were briefed on the IPCC investigation and report. IPCC personnel also offered to travel to Brazil to brief any member of his family residing there. On 14 March 2006 the IPCC submitted its recommendations to the MPS, MPA, Her Majesty ’ s Inspector of Constabulary and to the Home Office.",
"(a) Summary of the Stockwell One Report ’ s conclusions",
"52. The report considered all the witness statements and outlined in detail the events of 22 July 2005 and the investigative steps which followed the shooting. In particular it examined the actions and responsibility of the Commanders, their advisers and all the frontline SFOs and surveillance officers. While it accepted that the death of Mr de Menezes was not the result of any deliberate act designed to endanger the life of any innocent third party, it nevertheless concluded that",
"“20.01 [t]here can be no doubt that on the morning of 22 July 2005 a combination of circumstances between 0500 and 1006 led to the killing of an entirely innocent man”.",
"53. With regard to this “combination of circumstances”, it identified a number of failings.",
"54. Firstly, it criticised the briefings given by DCI C and Trojan 84.",
"“20.8 There is no doubt that the briefings provided by [DCI C and Trojan 84] included a comprehensive update on the intelligence including the links between 7 July and 21 July and the possibility that the firearms officers may have to confront one of the terrorists who had survived the suicide bombings the previous day. What the briefing for [SO19], and indeed the other teams, did not include was any rider about the circumstances in which the Operation KRATOS policy could be used. That policy was only one option available to the Metropolitan Police for dealing with suspected terrorists and suicide bombers. The [SO19] officers were not told that it should only be used as a matter of last resort when they were sure of the identity of the person in relation to whom the policy was to be applied. That should have been included in the briefing.”",
"55. Secondly, it criticised the failure to implement Commander McDowall ’ s strategy by deploying the unit from SO19 to Scotia Road earlier.",
"“20.15 The management of the operation between 07:15hrs and 09:30hrs should have involved giving practical effect to the strategy devised by Commander MCDOWALL so that appropriate resources were in place at SCOTIA ROAD from the earliest possible time. Commander DICK was in charge of the operation following her briefing from Commander MCDOWALL. The policy, which is described at paragraphs 6.3 and 6.4, was, in essence, one of containment, stop and arrest. What occurred between 07:15hrs and 10:06hrs was a failure of that policy. Between 07:15hrs and 09:33hrs there was no adequate effort to put in place police resources at SCOTIA ROAD that would have enabled the Metropolitan Police to give effect to the policy. During those hours there was a series of briefings. None of the eight people who left the flats before Mr DE MENEZES left were stopped in accordance with the strategy and when he left he was simply followed while ineffective attempts were made during the course of half an hour to determine whether he was [the suspect]. If appropriate resources had been in place there would have been the opportunity to stop Mr DE MENEZES during the course of his five minute walk from SCOTIA ROAD before catching the bus in TULSE HILL.",
"...",
"20.32 Detective Chief Inspector C, the Silver Commander, was effectively the ground commander with responsibility for SO12, SO13 and [SO19] officers. However owing to the fact that he was still with SO13 and [SO19] at NIGHTINGALE LANE when Mr DE MENEZES left SCOTIA ROAD, and stationary at the T.A. Centre where DE MENEZES was identified as the suspect at BRIXTON, DCI C was always playing ‘ Catch up ’ in respect of the operation.",
"...",
"20.49 ... evidence from the CCTV at STOCKWELL underground station reveals that the [SO19] officers did not enter the station until two minutes after Mr DE MENEZES had passed though the ticket barriers.",
"20.50 While two minutes is a very short time period, the delay in [SO19] getting to the scene and the failure to get a positive identification had enabled a person, believed to be a possible suspect for attempting to detonate a bomb on the underground system the day before, to get on the same bus twice and enter an underground station.”",
"56. Thirdly, the report was critical of the delay in handing the investigation to the IPCC.",
"“17.22 The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independent body established by an Act of Parliament to investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004, was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again.",
"17.23 The fact that there was such concern over the problems with the CCTV tapes at STOCKWELL and the fact that the hard drives on the train were missing highlights the problem. This issue could have been resolved a lot earlier had they been under the control of the IPCC.",
"...",
"17.25 The failure to allow the IPCC access has also been highlighted by the fact that the surveillance log 165330 has been altered.",
"...",
"17.33 Had the IPCC been involved at the commencement of the investigation, the surveillance log would not have been released for amendments to be made.”",
"57. Nevertheless, the IPCC found that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments. Consequently, it concluded that there was “no evidence of a cover-up to withhold this evidence from the investigation”.",
"58. Likewise, two expert witnesses who examined the surveillance log could not agree either that it had been altered or, if it had been, who might have altered it.",
"(b) Prosecutions",
"59. The report also identified a number of individuals whom the CPS might consider prosecuting.",
"(i) Charlie 2 and Charlie 12",
"60. As to the shooting of Mr de Menezes after he had been tackled on the train, the IPCC noted as follows.",
"“20.71 The actions of Charlie 2 and Charlie 12 should be considered in light of the day ’ s events and those of the previous two weeks. At the briefing, they were supplied with a full briefing on the capabilities of the terror suspects. During the operation they had heard the man being followed was being identified as one of the suspects from the previous day ’ s attempted bombings. On arrival at STOCKWELL, [SO19] went to State Red, authorising a firearms intervention, following an order from the DSO to stop the man from entering the station and tube train.",
"20.72 They had seen ‘ Ivor ’ [a surveillance officer from SO12] point at the suspect, who they saw get off his seat. ‘ Ivor ’ then grabbed the man and forced him back to the seats. Both officers state they believed they had to act immediately to prevent loss of life to the people on the train.",
"...",
"20.74 Charlies 2 and 12 clearly believe[d] they were acting in self-defence, and had the right in law to use the force they did. The [CPS] may wish to consider whether the actions of Charlie 2 and Charlie 12 amount to murder in the context of their justification for the shooting of Mr DE MENEZES and having regard to the fact that there were explanations given for the shooting at that time which did not accord with the accounts given 36 hours later.",
"...",
"20.94 ... [ The CPS] ... may also wish to consider whether they were grossly negligent to come to the conclusion that they were confronting a suicide bomber. ”",
"(ii) The DSO",
"61. With regard to the role of the DSO, the IPCC stated as follows.",
"“20.77 The order given by Commander DICK was to stop the suspect getting onto the underground station and subsequently the underground train. When interviewed she was asked to explain the word ‘ Stop ’ and her response was that ‘ Stop ’ is a common word in policing terms and it was meant as ‘ stop and detain ’. This opinion is supported by DCI C and Trojan 80 and 84.",
"20.78 However, the way the order was received by [SO19] must be considered. Following a full briefing, many of the [SO19] officers have described that they believed that they would have to confront a suicide bomber. The [SO19] officers have stated that they believed the man being followed on the bus had been identified as one of the suspects for the failed bombings on 21 July 2005. They had been in a situation of trying to ‘ Catch up ’ with the surveillance team since their briefing had finished. And as they approached STOCKWELL underground station they hear that the suspect had entered the underground station and they received an order to stop him getting on the underground train. I do not believe that the use of the word ‘ Stop ’ can be related to normal policing duties. With the mind-set of the [SO19] officers believing that a suicide bomber had entered the underground station, to receive such an order to stop him from DSO cannot be related to normal duties. They had not had the benefit of a rider to their briefing of the sort to which I refer at paragraph 20.8. If they had received such a briefing they might have been more cautious in the way they approached and dealt with Mr DE MENEZES.",
"...",
"20.82 I [Senior Investigator J.D. Cummins] comment[s] at paragraph 20.47 on the consequences of the surveillance team having failed to adequately identify the person they were following. However, that team had spent thirty minutes following and staying with Mr DE MENEZES and attempting to identify him. That provided Commander DICK with a thirty minute opportunity to act in accordance with the operation strategy. There was no attempt to do so.",
"20.83 The SO12 officers who were following Mr DE MENEZES had been authorised to carry firearms for their personal protection and the protection of the public. In the context of the events of 7 July and 21 July when, respectively, there had been a successful detonation and an attempted detonation of bombs on buses it was a failure of the management of the operation to permit Mr DE MENEZES to get on the bus at TULSE HILL. If he had been a suicide bomber that event could have been catastrophic. Therefore the failure to use SO12 to stop him getting back on the bus in BRIXTON is an even more inexplicable failure to apply the strategy.",
"...",
"20.87 [The DSO] has endorsed that she was the person in command.",
"The [CPS] may wish to consider whether the manner in which this operation was commanded, the failures to have resources properly deployed and the absence of any other tactical options could be considered to be grossly negligent. ”",
"(iii ) “James”",
"62. With regard to the “identification” of Mr de Menezes as the suspect, the IPCC noted:",
"“20.53 ... James [the head of the surveillance teams] did not communicate that some of his team thought that the subject was not [the suspect]. This information should have been fully communicated to [the DSO] as it may have influenced her decision-making. The [CPS] may wish to consider whether this negligence by ‘ James ’ ... satisfies the test for gross negligence.”",
"(iv) The other officers on the train",
"63. As to any potential offence on the part of the eight officers on board the train:",
"“20.91 Given that they believed they were confronting a suicide bomber it is perhaps illogical that they would have challenged him prior to trying to detain him. The [CPS] may wish to consider whether any of the eight officers on the train who state they shouted or heard the words ‘ armed police ’ have conspired to pervert the course of justice. ”",
"(v) Trojan 80, Trojan 84 and DCI C",
"64. As the IPCC did not consider that Trojan 80, Trojan 84 and DCI C had been in a position to influence the outcome of events, it was of the opinion that they could not be held responsible.",
"(vi ) The surveillance log",
"65. In respect of the possible alteration of the surveillance log (see paragraphs 42 and 56 above), the IPCC did not find sufficient evidence against any individual to suggest that criminal proceedings might be appropriate.",
"(c) Operational recommendations",
"66. The IPCC noted that, in the course of its investigation, grave concerns had been raised regarding the effectiveness of the police response on 22 July 2005. These concerns were not only that an entirely innocent member of the public had been killed in error but also that the police response might not have been adequate to stop a terrorist who was intent on causing harm. It therefore made a number of detailed operational recommendations.",
"67. The IPCC pointed out two operational concerns regarding the use of firearms ̶ the substantial delay between the time the unit from SO19 was requested and when it was deployed, and the lack of clarity about the command to “stop” the suspect given the likely mindset of the SFOs. It also made detailed recommendations on command and control issues in firearms operations, including the need to clarify the roles and responsibilities within the chain of command; to establish a clear and common understanding of the circumstances surrounding future operations; and, given the failure to implement Commander McDowall ’ s strategy to ensure the deployment of the unit from SO19 in time, to put in place better communications channels.",
"68. In respect of the surveillance operations, the IPCC expressed concern that the surveillance team, the SFOs, and those in command were not used to working together and were not sufficiently familiar with each other ’ s working practices; that two surveillance officers believed the person being followed was not the suspect and that this was not communicated to the DSO; and that the surveillance log had been altered.",
"69. In relation to the post-incident management, the IPCC repeated its concern regarding the delay in handing the scene and the investigation over to it, and the fact that Charlie 2 and Charlie 12 had been allowed to return to their own base, refresh themselves, confer and write up their notes together.",
"70. As regards the communications infrastructure, the IPCC was concerned that key briefings and strategic and tactical decisions were not recorded and, furthermore, that the command and control of the incident was inevitably lost when the unit from SO19 entered the underground. Concerns were also expressed that the existing Firearms Manual and the “KRATOS” policy were patently insufficient to deal with the current terrorist threat.",
"(d) Publication",
"71. The IPCC Stockwell One Report was not made public until 8 November 2007, as publication was delayed pending the criminal trial of the Office of the Commissioner of the Police of the Metropolis (“the OCPM” – see paragraphs 100 - 01 below).",
"3. The second IPCC investigation and the IPCC Stockwell Two Report",
"72. On 14 October 2005 the MPA referred a complaint to the IPCC regarding the MPS ’ s handling of public statements following the shooting of Mr de Menezes. The IPCC carried out a second investigation and the IPCC Stockwell Two Report was published on 2 August 2007. The contents of that report are not directly relevant to the complaint currently before the Court.",
"D. Disciplinary proceedings against the frontline and surveillance officers",
"73. The IPCC had the power to recommend or direct the MPS to bring disciplinary proceedings against individuals. During the IPCC investigation, fifteen officers were served with notices under Regulation 9 of the Police (Conduct) Regulations 2004, informing them that they were being investigated and warning them that the investigation might result in disciplinary proceedings being brought against them.",
"74. However, on 11 May 2007 the IPCC decided that no disciplinary action should be pursued against any of the eleven frontline and surveillance officers involved in the operation since there was no realistic prospect of any disciplinary charges being upheld. One surveillance officer received “words of advice” in connection with the alteration of the surveillance log.",
"75. A decision concerning disciplinary charges against the two Commanders and their tactical advisers was postponed until after the prosecution of the OCPM (see paragraphs 100 - 01 below).",
"E. The first prosecutorial decision",
"1. The decision",
"76. On receiving the IPCC Stockwell One Report, the CPS considered whether to bring prosecutions against any individual officers for murder, involuntary manslaughter by way of gross negligence (“gross negligence manslaughter”), misconduct in public office, forgery or attempting to pervert the course of justice. It also considered whether to prosecute the OCPM or any individual for offences under the Health and Safety at Work etc. Act 1974 (“the 1974 Act”). In deciding whether or not to prosecute, it first had to apply a threshold evidential test, namely, whether or not there was a realistic prospect of conviction, before asking whether or not prosecution would be in the public interest (see paragraph 163 below).",
"(a) The first decision letter",
"77. By letter dated 17 July 2006, the CPS notified the deceased ’ s family that the Director of Public Prosecutions (“the DPP”) had decided to prosecute the OCPM, not in the Commissioner ’ s individual capacity but as an employer of police officers, for failing to provide for the health, safety and welfare of Mr de Menezes, contrary to sections 3 and 33 of the 1974 Act (see paragraphs 157 - 58 below). No individual was to be prosecuted in relation to the death as there was “insufficient evidence to provide a realistic prospect of conviction against any individual police officer”, that is, it was more likely than not that a jury would not convict.",
"78. The decision letter, in so far as relevant, provided as follows.",
"“In the circumstances of this case, if the prosecution could prove that [the SFOs] were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the [SFO team] were not in place to make such an arrest, nor was this intention made explicit to the [SFOs] who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that. ...",
"The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a ‘ bulky ’ jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles ’ s movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The [SFOs] then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers ’ actions were unlawful. However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers ’ accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said ‘ I got the impression that he was reaching to the left hand side of his trouser waistband. ’ ...",
"As I cannot prove the officers did not act in genuine self-defence, I cannot charge them with murder or any other offence of assault, including manslaughter.",
"There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of ‘ armed police ’ before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard the words ‘ armed police. ’ Both of the [SFOs] say that they shouted ‘ armed police ’ immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired .... Unless I could prove that officers had lied ... to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice.",
"Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. [T]here were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the [1974] Act. Even where I found that individuals had made mistakes, I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the [OCPM], I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case.”",
"(b) The Review Notes",
"79. More detailed reasons were provided in a fifty-page Review Note dated 9 March 2006 as well as in a Final Review Note of 9 July 2006.",
"(i) The IPCC investigation",
"80. In respect of the investigation by the IPCC, the Review Note stated as follows.",
"“I am satisfied that the investigation has complied with Article 2 and the procedural requirements that flow from it. The IPCC is clearly independent of the Metropolitan Police and the investigation has not been limited to the actual shooting on the train but has examined the whole of the operation. I have had a number of discussions with senior investigators at the IPCC who have assisted me with any queries I have raised. I am therefore satisfied that I have sufficient material before me to reach a decision on the criminal liability of those officers involved in the operation that led to the death of Mr de Menezes and the Commissioner as corporation sole.”",
"81. However, the Review Note drew attention to one particular evidential difficulty:",
"“Perhaps the most significant problem in understanding what occurred is that there is an almost complete absence of any worthwhile contemporaneous records and the accounts from the participants vary significantly on all the crucial aspects. It is at times impossible to say with any certainty what was said, by whom, to whom and when. There is also the issue that some accounts were made in the knowledge that something terrible had gone wrong.”",
"82. With regard to the witness statements taken from the passengers on the train, the Review Note indicated that there were inevitable inconsistencies in their recollections of events with the consequence that “the accounts do not match either among themselves or with those of the police”. For example, some of the witnesses confused Mr de Menezes with “Ivor”, one of the surveillance officers.",
"(ii ) Charlie 2 and Charlie 12",
"83. With regard to Charlie 2 and Charlie 12, the Review Note reiterated that there was insufficient evidence to persuade a jury that they did not genuinely believe they were acting in self-defence. It noted that, if they did hold a genuine belief, then the actions they took in shooting dead a “suicide bomber” would be reasonable and would not be unlawful.",
"(iii ) The DSO",
"84. As for Commander Cressida Dick, the Review Note stated that there was no evidence against her to sustain a charge of murder, as she did not order any officer to open fire. The prosecutor was, however, satisfied that there was evidence her actions and direction and failure to plan fell below the standard of a reasonable officer in her position and, as such, a breach of the duty of care and causation could be shown. Nevertheless, he considered that there was “nowhere near enough” evidence to persuade a jury that her conduct was so bad as to justify a charge of gross negligence manslaughter. He also considered the possibility of prosecuting Commander Dick for offences under sections 7 and 33 of the 1974 Act, but, having applied the relevant criteria, found that the prosecution of her or of any of the other individual officers under these provisions would not be in accordance with Health and Safety Executive Policy.",
"(iv ) Trojan 84",
"85. In the Review Note the prosecutor identified Trojan 84 as the officer most closely connected with the death of Mr de Menezes. In particular he had failed to dispatch firearms cover to Scotia Road, he gave the briefing that stoked the SFOs ’ fears that they would meet suicide bombers and that they might have to shoot them, and, finally, he should have known that, once the SFOs were away from the armed response vehicle and were to engage with a potential suicide bomber, the overwhelming likelihood was that they would shoot. However, he could not be prosecuted for murder as he did not direct the officers to fire and his actions were not “bad” enough to satisfy the test for gross negligence manslaughter.",
"(v) Trojan 80 and DCI C",
"86. Likewise, the prosecutor considered that there was insufficient evidence to prosecute Trojan 80, DCI C or the surveillance teams for gross negligence manslaughter.",
"(vi ) Alteration of the surveillance log",
"87. The Review Note considered the alleged alteration of the log (see paragraph 56 above), but found that it had been examined by two experts who did not agree to the required standard either that there had been alterations or, if there had been, who might have made them. Therefore, as it could not be proved that the relevant entry was a forgery, let alone who might have forged it, there was no basis for a prosecution for conspiracy to pervert the course of justice.",
"(vii ) Missing recordings",
"88. It also indicated that there was no evidence the police, or anyone else, had tampered with the recording equipment on the bus, at the station or on the train. Although there were gaps in the recordings at all three locations, the IPCC investigation had revealed that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments.",
"(viii ) The decision to prosecute the OCPM",
"89. The Review Note explained in greater detail the decision to prosecute the OCPM. The prosecutor indicated:",
"“In my view, this operation was badly handled from the moment it passed from Commander [McDowall]. It resulted in an innocent man being shot dead in the most horrific manner. The Metropolitan Police were under tremendous pressure and were doing their best to protect the public from suicide bombers. These are factors that I take into account but these do not detract from the failure to carry out [Commander McDowall ’ s] strategy which would have best protected Mr de Menezes.”",
"90. He continued:",
"“In my view, the lack of planning led to the death of de Menezes and, as such, constituted an offence under section 3 of the [1974 Act]. I believe that if such a charge is preferred, we can prove the case on the evidence already available but a decision not to prosecute individuals will enable the IPCC to seek further evidence to strengthen the case, from those individuals who are at present declining to.”",
"91. The only defence open would be one of “reasonable practicability” and it was",
"“difficult to see how the police could argue the lack of reasonable practicability in ensuring the safety of [Mr de Menezes]. If this came to a contested trial, the police would probably have to call a number of officers ... who were interviewed as suspects. Their failures in the planning would then be highlighted.”",
"2. Judicial review of the first prosecutorial decision",
"92. On 16 October 2006 the applicant sought leave to apply for judicial review of the decision not to prosecute any individual police officer for criminal offences, which she argued was incompatible with Article 2 of the Convention.",
"93. In particular the applicant argued that the threshold evidential test in the Code for Crown Prosecutors (“the Code”), which prevented a prosecution unless a jury, properly directed in accordance with the law, was likely to convict (see paragraph 163 below), was not compatible with Article 2. She also submitted that Article 2 required the courts to undertake a more intensive review of a prosecutor ’ s decision than that provided for in R v. Director of Public Prosecutions, ex parte Manning ([2001] 1 QB 330), in which the Divisional Court stated that it would accord great weight to the judgment of experienced prosecutors and, as such, a prosecutorial decision would be lawful if it was taken in accordance with the Code and was a decision reasonably open to the prosecutor on the material before him (see paragraph 165 below ).",
"94. On 14 December 2006 a Divisional Court of the High Court granted permission to apply for judicial review but dismissed the substantive application.",
"95. In relation to the compatibility of the Code with Article 2, the court found that this Court ’ s jurisprudence did not determine any particular evidential test to be applied when deciding whether or not there should be a prosecution. The test set out in the Code was therefore compatible with the obligation under Article 2 to put in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Bringing prosecutions which were likely to fail, even if they could survive a dismissal application and a submission of no case to answer, would have profound consequences for all parties concerned. Furthermore, if the threshold was lowered in cases where lethal force was employed by State agents, it was likely that a significant proportion of prosecutions would fail because the evidence was lacking. If this were to happen, public confidence in both law-enforcement agencies and in the CPS would be undermined.",
"96. The court also held that Article 2 did not require a change to the established position regarding judicial review of a decision not to prosecute. The “careful scrutiny” review required in Öneryıldız v. Turkey ( [GC], no. 48939/99, § 96, ECHR 2004 ‑ XII) was compatible both with the test outlined in the Manning case (see paragraph 165 below) and with the domestic courts ’ general approach to cases involving fundamental human rights.",
"97. Thirdly, applying the Manning test, the court found that the decision of the CPS was in accordance with the Code and was one which was reasonably open to it. The decision was taken by a very senior and highly experienced prosecutor and it was reviewed by the head of the CPS and by independent counsel. It was lengthy, careful, thorough, clear and detailed, and the CPS had applied the correct test to each individual considered, namely, “whether there was sufficient evidence to provide a realistic prospect of conviction, or, in other words, whether a jury was more likely to convict than not to convict”.",
"98. Although it was not necessary for the court to go so far, it also indicated that it saw “no reason to disagree with the decision”. Consequently, it concluded that the DPP ’ s decision was lawful and dismissed the applicant ’ s challenge to it. Leave to appeal to the House of Lords was refused by the court and, on 26 July 2007, by the House of Lords itself.",
"99. On 22 January 2007 the court also rejected an application by the OCPM to have the charges under the 1974 Act dismissed.",
"3. The prosecution of the OCPM",
"100. On 1 October 2007 the criminal trial of the OCPM commenced. A total of forty-seven witnesses were called to give evidence during the course of the trial, including Commander McDowall and Commander Dick. The prosecution argued that the OCPM was guilty of the following:",
"(a) Commander McDowall ’ s strategy had not been communicated adequately to the officers who took over the running of the operations on 22 July 2005, the surveillance officers or the SFOs;",
"(b) Commander McDowall ’ s strategy for controlling the premises was not adequately planned for or carried out;",
"(c) the control-room officers, the SFOs and the surveillance officers had a confused and inconsistent understanding of the strategy for Scotia Road;",
"(d) officers had not been deployed to stop and question persons emerging from the Scotia Road premises, including Mr de Menezes;",
"(e) the SFOs were not in attendance at Scotia Road when Mr de Menezes emerged from the doorway that was common to numbers 17 and 21;",
"(f) there was no contingency plan for dealing with persons who emerged from the apartment building before the firearms officers arrived;",
"(g) persons emerging from Scotia Road had not been stopped and questioned;",
"(h) a safe and appropriate area where those leaving Scotia Road could be stopped and questioned had not been identified;",
"(i) the briefings given to the SFOs were inaccurate, unbalanced, and provided the SFOs with inadequate and inaccurate information regarding the operation, including the operation at Scotia Road;",
"(j) the information concerning the identification of Mr de Menezes, his clothing, demeanour and likely level of threat, was not properly or accurately assessed or disseminated to officers and, in particular, to the SFOs;",
"(k) doubts concerning the correctness of the identification of Mr de Menezes as the suspect were not communicated to the control room;",
"(l) the control-room officers failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;",
"(m) the SFOs had not been deployed at relevant locations in time to prevent Mr de Menezes from getting on the bus and entering Stockwell underground station;",
"(n) the SFOs failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers;",
"(o) effective steps were not taken to stop underground trains or buses so as to minimise the risk to the travelling public;",
"(p) Mr de Menezes was permitted to get on a bus twice and to enter Stockwell underground station despite being suspected of being a suicide bomber and despite having emerged from an address linked to a suspected suicide bomber;",
"(q) a clear and timely order that Mr de Menezes be stopped or arrested before he entered Stockwell underground station had not been given;",
"(r) accurate information had not been given to the DSO regarding the location of the SFOs when she was deciding whether the SFOs or officers from the Anti-Terrorist Branch should stop Mr de Menezes; and",
"(s) the risk inherent in effecting the arrest of Mr de Menezes by armed officers had not been minimised, whether in relation to the location, timing or manner of his arrest.",
"101. On 1 November 2007 the jury returned a verdict, finding the OCPM guilty of breaching sections 3 and 33 of the 1974 Act (see paragraphs 157-58 below). The jury also attached a rider to its verdict to the effect that Commander Dick bore no “personal culpability” for the impugned events. This rider was endorsed by the trial judge. The OCPM was fined 175,000 pounds sterling (GBP) and ordered to pay costs of GBP 385,000.",
"F. Disciplinary proceedings against the two Commanders and their tactical advisers",
"102. After the trial, the IPCC decided not to issue a recommendation for the senior officers to face disciplinary proceedings. In particular it had regard to the jury ’ s rider that no blame should be attached to Commander Dick, who was the most senior officer.",
"G. The inquest",
"103. The inquest, which had been adjourned pending the trial of the OCPM, commenced on 22 October 2008. In the course of the inquest, seventy-one witnesses were called, including Commander McDowall, Commander Dick, Trojan 80, Trojan 84, Charlie 2 and Charlie 12. The family of Mr de Menezes were represented at the hearing at the State ’ s expense and were able to cross-examine witnesses and make submissions.",
"104. On 24 November 2008 the coroner delivered a written ruling on what, if any, verdicts should be left to the jury. The options available to him were lawful killing, unlawful killing and an open verdict. However, the coroner was not permitted to leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer”, namely, if there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (see paragraph 166 below).",
"105. The coroner therefore considered the verdicts to be left to the jury separately as regards certain police officers.",
"1. The SFOs who shot Mr de Menezes (Charlie 2 and Charlie 12)",
"106. The coroner found as follows.",
"“16. ... There is no doubt that the officers intended to kill Mr de Menezes when they fired. Therefore, if their contention that [they] were acting lawfully in defence of themselves or others could be disproved, they would have committed ... the offence of murder.",
"17. There is agreement between all Interested Persons as to what test I should apply in determining whether the officers acted lawfully in defence of themselves and others:",
"(i) Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.",
"(ii) If the officer did hold the belief, did he use no more force than was reasonably necessary in the circumstances as he believed existed at the time? This is an objective test, but it is applied realistically. Where a person faces a threat, the Courts will not judge with too precise a measure the degree of force he uses... It is also significant for present purposes that a person under threat is not required to wait passively for the blow to fall. A pre-emptive strike can be justified by the circumstances.",
"...",
"18. The legal test is no different when the person facing the threat is a police officer or a soldier. However, as Waller LJ said in Bennett at paragraph 15, the tribunal is entitled to take account of the person ’ s training when applying the two limbs of the test to the facts of the given case. The same must apply to specific briefings as well as general training.”",
"107. It was accepted by the parties that the SFOs honestly believed that the man in front of them in the carriage was Hussain Osman, the person who was strongly suspected of having attempted to explode a bomb on the underground the day before. However, the coroner rejected the submission on behalf of the de Menezes ’ family that the officers did not honestly believe that Mr de Menezes represented an imminent threat. He therefore found that the jury could not properly conclude to the criminal standard of proof that the two officers did not honestly believe that Mr de Menezes represented a mortal threat to those around them. In reaching that conclusion, he stated:",
"“27. If the officers honestly believed that Mr de Menezes represented a mortal threat to themselves and those around them, it could not be said that they used more force than was reasonably necessary ... An argument was made ... to the effect that [one of the officers] used excessive force because he fired too many times ... In my judgment, it has no merit. The events took place in a few seconds, and one cannot fairly say that some of the shots to the head constituted reasonable force and some did not. In any event, the officers had been trained to fire until the threat was neutralised.”",
"108. The coroner therefore declined to leave to the jury the option of returning a verdict of unlawful killing in relation to the actions of Charlie 2 and Charlie 12.",
"2. The senior officers",
"109. The coroner then considered whether the senior officers could safely be found to have committed manslaughter by reason of having caused death by gross negligence. It was accepted by all parties that this offence had to be proved against a particular officer; the failings of a number of persons could not be aggregated. Four elements had to be proved in order to establish that the offence had been committed: the defendant must have owed a duty of care to the victim, the defendant must have breached that duty, the breach must have caused the death (namely, made a more than minimal causal contribution to the death), and the breach must be characterised as “gross”.",
"110. In relation to the duty of care, the coroner concluded that",
"“35. ... a police officer can owe a duty of care in directing other police officers to perform an armed interception. The content of the duty here would be to take reasonable care to ensure that such an interception took place in such a location and at such a time as to minimise, so far as reasonably practicable, the risk of unnecessary injury to the subject of the intervention, to the officers concerned and to others in the immediate vicinity. In this case the duty would not arise before the point at which firearms officers were ordered to move through with a view to performing an interception.”",
"(a) Commander McDowall",
"111. In relation to Commander McDowall, there were three alleged breaches of a duty of care: that he should have set a strategic plan to ensure that suspects were stopped between leaving the premises and reaching the public transport system; that he did not ensure that the unit from SO19 was deployed sooner; and that he had failed to keep himself informed and to ensure that his orders were being followed. In respect of each of these allegations, the coroner did not accept that Commander McDowall had owed any duty of care to Mr de Menezes. However, even if a breach of duty could be established, the coroner did not accept that it had led to Mr de Menezes ’ death.",
"(b) The DSO",
"112. There were three allegations against Commander Dick.",
"“54. ... First, ... that [she] failed to ensure that the block on Scotia Road was kept under careful surveillance control and that tactics were employed to ensure that all suspects could be identified and stopped before reaching a bus stop. As it happens, the nearest bus stop was on Upper Tulse Hill, only a few minutes ’ walk from the block. The first obstacle [to this] argument is the difficulty of constructing a positive duty of care at that stage to stop Mr de Menezes close to his home. In my judgment, no such duty could exist. Even if it could, I consider that it would not have been practicable to implement this as a fixed and inflexible tactical plan... In any event, the surveillance control was good: Mr de Menezes was kept continually under surveillance but the covert status of the operation near Scotia Road was maintained. The failure to stop him at an earlier stage was based on an inability of officers to say whether he was identifiable with the suspect. Therefore, his death was not caused by any failure of surveillance control at Scotia Road.",
"55. Secondly, it is alleged that [the DSO] failed to keep herself informed of where surveillance and firearms officers were as Mr de Menezes was travelling from Tulse Hill towards Stockwell. Again, I do not think that a police officer owes a duty to a person under surveillance to ensure that he is informed of the movements of other officers, at least before any intervention is immediately in prospect. If there were such a duty, it would only be to keep oneself reasonably well-informed, since it would not be practicable to keep note of the precise position of every officer and car. The thrust of the evidence is that [the DSO] did keep herself reasonably well-informed. She was aware, through the surveillance monitor in the control room, that surveillance officers were following Mr de Menezes and of what they were saying. In any event, as [counsel for the family of Mr de Menezes] accepts, nothing could have been done to stop Mr de Menezes between his getting on the bus at Tulse Hill and his alighting at Stockwell. [The DSO] had [the SFOs] at the proper holding point at the time she wanted to deploy them. In the minutes before she ordered the intervention, she was relying upon information from [her tactical adviser] as to the position and readiness of the [SFOs]. In my judgment, she was entitled to rely upon that information. In all those circumstances, any failure on her part to keep herself informed was not causative of the fatal events in the carriage.",
"56. Thirdly, it is submitted ... that [the DSO] failed to exercise proper judgment in her decisions in the last critical minutes, after Mr de Menezes left the bus at Stockwell. In my judgment, she probably did owe a duty of care to him at this stage in making decisions and giving directions for an armed stop. However, she cannot fairly be said to have breached that duty. When she became aware that the subject of surveillance had left the bus, she ordered the [SFOs] to perform an armed stop. Upon hearing that they were not in a position to make the stop, she instructed the surveillance officers to do so. That order cannot be characterised as negligent. If there were any slight delay in giving the order, that can probably be explained by the need to take thought before ordering a suspected suicide bomber to be stopped by officers who were not trained for such situations. Once she was told that the [SFOs] were in position, she countermanded the earlier order. It might be possible to say that she made the wrong decision at that point, given where Mr de Menezes was known to be, but these were fast-moving events and her decision cannot be described as negligent. [It was submitted] that using [SFOs] gave rise to a particular risk that lethal force would be used. However, there were obvious advantages to using officers who had the training and experience to perform armed interventions in a public place.”",
"(c) Trojan 80 (the DSO ’ s firearms tactical adviser)",
"113. As to this officer, the coroner stated as follows.",
"“58. The first charge against [Trojan 80] is that, upon arriving at New Scotland Yard at around 6.00 a.m., he failed to take steps to expedite the despatch of [the unit from SO19] to the Scotia Road area. For the reasons already given, I do not consider that he would have owed a duty of care to Mr de Menezes in this regard. In any event, when he started work, all the critical decisions had been taken in relation to the [SFOs ’ ] deployments. It would probably not have been safe or sensible to try to expedite the deployments at that stage. As explained in paragraph 52 above, I do not think it can be established to the necessary standard of proof that any delay in deploying firearms teams was causally relevant to the death of Mr de Menezes.",
"59. The second allegation is that he failed to devise a tactical plan to ensure that any suspect coming out of the block was stopped before reaching a bus stop. This is, in essence, the same as one of the allegations made against [the DSO]. For the reasons I have given in paragraph 54, this argument fails at every stage.",
"60. The third point made in criticism of [Trojan 80] is that he failed to pass on to [the DSO] accurate information about the position of the [SFOs] in the minutes after it became apparent that Mr de Menezes was leaving the bus. However, [Trojan 80] was reliant for his information on the tactical adviser who was with the team on the ground, ‘ Trojan 84 ’. That officer initially told [Trojan 80] that his team were ‘ not in contention ’ because they were behind the wrong bus. [Trojan 80] duly passed on that information. Even if it were incorrect, it is difficult to criticise him for passing it on.”",
"114. If, contrary to all of the above, any of the allegations were made out, the coroner concluded that none approached the level of gross or criminal negligence.",
"(d) Conclusion",
"115. In light of the above, the coroner decided not to leave the potential short-form verdict of unlawful killing to the jury in respect of the senior officers and instead left them to decide between a verdict of lawful killing and an open verdict.",
"3. Questions",
"116. The coroner also included in his Ruling a list of proposed questions which would be left to the jury and which required responses of “yes”, “no”, or “cannot decide”. Having heard the parties ’ submissions, on 1 December 2008 he finalised the list of questions to include questions of fact concerning the events in the train carriage and questions concerning the factors which had contributed to Mr de Menezes ’ death. However, he refused to leave “open questions” to the jury inviting them to add any other factors which they regarded as causally relevant.",
"4. Judicial review of the coroner ’ s decision",
"117. On 2 December 2008 Mr de Menezes ’ mother had sought leave to apply for judicial review of the coroner ’ s decision to exclude both the verdict of unlawful killing and certain narrative verdict questions. At the hearing, she pursued the second point only because, by that date, the coroner had started summing up and had already indicated the verdicts that were to be left to the jury.",
"118. The claimant argued that the coroner had been obliged to ensure that the jury members were permitted to resolve the disputed factual issues at the heart of the case and were able properly to determine by what means and in what circumstances Mr de Menezes had come by his death. The question of how he came by his death went far beyond determining whether to return a verdict of lawful killing or an open verdict. The coroner ’ s approach had precluded the jury from commenting on whether or not they regarded any particular failings by the police as serious and, if so, how serious – and how important in terms of accountability – these failings were. As such, the jury ’ s findings were at best likely to beg more questions and at worst be confusing or meaningless. The claimant therefore wished to put additional narrative verdict questions to the jury once the coroner ’ s summing up was finished.",
"119. On 3 December 2008 Silber J refused leave to apply for judicial review.",
"120. Firstly, he found that the existing verdicts and questions satisfied the statutory obligation under section 11 of the Coroners Act 1988 and Rule 36 § 1 (b) of the Coroners Rules 1984 (see paragraphs 167 -68 below) to enable the jury members to ascertain by what means and in what circumstances Mr de Menezes had come by his death. Furthermore, the inquiry required by the coroner of the jury in this case was significantly more demanding than that sought from, and given by, the jury in both Bubbins v. the United Kingdom (no. 50196/99, ECHR 2005 ‑ II) and McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324), and in those cases this Court had found that the procedural obligations under Article 2 of the Convention had been met.",
"121. Secondly, the judge observed that the claimant had not pointed to any case decided domestically or in this Court which held that specific questions were required to be asked of a jury over and above asking “by what means and in what circumstances” the deceased had died.",
"122. Thirdly, as the coroner had a discretion “to decide how best in the particular case to elicit the jury ’ s conclusion on the central issue or issues”, the judge considered that the only grounds for interfering with it would probably be Wednesbury grounds, namely, that the coroner ’ s decision was so unreasonable that no reasonable coroner would have done the same.",
"123. Fourthly, the judge found that there was a risk that, if the jury members were required to answer the additional questions proposed by the claimant, they would be acting in contravention of Rule 36 § 2 of the Coroners Rules 1984 by expressing opinions on matters other than those on which they were entitled to comment and in particular by appearing to determine questions of criminal or civil liability.",
"124. Fifthly, he considered that the proposed questions would expose the jury to a risk of making contradictory and conflicting findings.",
"125. Sixthly, the judge found that the claimant had failed to show, even arguably, that there were strong grounds for disturbing the decision of the coroner.",
"126. The claimant ’ s grounds relating to the short-form verdicts were adjourned generally with liberty to both parties to apply to restore. The claimant subsequently agreed that no further action would be taken in relation to these grounds because, inter alia, even if the judicial review was successful the only remedy for the family would be for the court to order a fresh inquest and the claimant did not “see any great benefit in re-hearing all the evidence to enable a different jury to come to a verdict, particularly bearing in mind the very high cost of holding such an inquest”.",
"5. Verdict",
"127. On 12 December 2008 the jury returned an “open verdict”. In answering the questions left to them the jury found as follows:",
"(a) that Charlie 12 did not shout “armed police”;",
"(b) that, while Mr de Menezes did stand up before being grabbed in a bear hug by one of the surveillance officers, he did not move towards the SFOs;",
"(c) that the general difficulty in identifying the man under surveillance in the time available and the innocent behaviour of Mr de Menezes (which may have increased suspicion) were not contributory factors to his death;",
"(d) that the following were contributory factors to his death: the failure to obtain and provide to surveillance officers better photographic images of the failed bomber Hussain Osman; the fact that the views of the surveillance officers regarding the identification of the suspect were not accurately communicated to the command team and the SFOs; the failure by police to ensure that Mr de Menezes was stopped before he reached public transport; the fact that the position of the cars containing the SFOs was not accurately known by the command team as the SFO teams were approaching Stockwell underground station; the shortcomings in the communications system between various police teams on the ground; and a failure to conclude at the time that surveillance officers could have been used to carry out the stop on Mr de Menezes at Stockwell underground station; and",
"(e) it was not clear whether the pressure on police after the suicide attacks in July 2005 was a contributory factor to Mr de Menezes ’ death.",
"6. The coroner ’ s report",
"128. After the verdict, the coroner delivered a report as required under Rule 43 of the Coroners Rules 1984. In the report he identified MPS systems and practices which gave rise to concern and the risk that other deaths might arise in the future. He further identified action which should be taken to prevent the occurrence or continuance of such circumstances or to eliminate or reduce the risk of death created by such circumstances. The coroner also reviewed material indicating which remedial steps had already been taken to develop police practice since the events of July 2005.",
"129. In the report the coroner expressed concerns regarding the command structure employed by the police on 22 July 2005 and observed that the Association of Chief Police Officers (ACPO) manual on the police use of firearms and the command structure should be reviewed. He also made specific recommendations concerning the role of the DSO, who was responsible for ordering any intentional shot that might be required in anti-terrorist operations.",
"130. The coroner also reported on the communication problems that the jury found had contributed to the death of Mr de Menezes. He recommended that changes should be made to the systems and methods of communication to ensure that there was better information available to enable accurate identification to be made and communicated and to ensure that appropriately trained police officers were available to deal with possible terrorist threats on the basis of as much up-to-date information as possible.",
"131. Finally, the coroner made recommendations regarding the recording of briefing and control-room activity and recommended that the practice of police witnesses conferring before recording their accounts of events should cease.",
"H. The second prosecutorial decision",
"132. Following the inquest, further meetings and exchanges of correspondence took place between the CPS and Mr de Menezes ’ family. On 26 March 2009 the family asked the DPP to review the decision not to prosecute in light of new evidence which had emerged at the inquest.",
"133. On 8 April 2009 the DPP confirmed by letter that there remained insufficient evidence to prosecute any individual.",
"134. Mr de Menezes ’ family did not apply for leave to seek judicial review of this decision, considering that there would be no prospect of success in light of the previous judicial-review action. The factual matrix had not significantly changed: the claim would have been on similar grounds to the previous claim for review and was therefore bound to fail.",
"I. Confirmation of decision not to recommend disciplinary proceedings",
"135. By letter dated 2 October 2009, the Chairman of the IPCC rejected the family ’ s request to review its decision not to initiate disciplinary proceedings as no new evidence had emerged during the inquest to justify bringing disciplinary charges against any individual officer.",
"136. He noted that the trial of the OCPM and the inquest had confirmed the conclusion of the IPCC that Mr de Menezes was killed because of mistakes that could and should have been avoided. Indeed, the trial of the OCPM, the coroner ’ s report, the IPCC recommendations, Her Majesty ’ s Inspectorate of Constabulary, the MPA and the MPS had all recognised the organisational failings that led to his death. Major efforts had been made to rectify these organisational failings and it was necessary to take them into account when judging the individual culpability of the officers concerned. Every independent judicial, prosecuting and disciplinary authority which had considered the conduct of the officers had concluded that individual criminal or disciplinary charges were not merited.",
"137. In respect of Charlie 2 and Charlie 12, there was insufficient evidence to undermine their claim that they honestly believed they were dealing with a suicide bomber or to warrant proceedings based on the disciplinary offences of using excessive force or abusing authority. The officers had had at best five to ten seconds to assess whether to shoot to kill and given the overall scene of confusion, coupled with the stress of the circumstances, it was not possible to conclude that the mistakes which were made were deliberate or negligent.",
"138. With regard to Commander McDowall, the IPCC concluded that it was not likely that any tribunal would find that failings which occurred after he set his strategy were due to negligence on his part.",
"139. As for Commander Dick, the IPCC had regard to the criminal jury ’ s unambiguous conclusion that she had no personal culpability, especially as no evidence had emerged at the inquest which would cause a disciplinary tribunal to ignore this finding.",
"140. The IPCC considered that there was no evidence that might cause a tribunal to accept the jury ’ s rider in respect of Commander Dick but not in respect of Trojan 80 or DCI C.",
"141. In respect of “James”, the IPCC accepted that the degree of doubt as to the identity of Mr de Menezes was not communicated sufficiently clearly by the surveillance team. However, the IPCC concluded that this was the result of technical as well as personal shortcomings, the speed and stress of the circumstances and the lack of an unambiguous communications process.",
"J. A civil action for damages",
"142. A civil action in damages was brought by the family of Mr de Menezes (including the applicant) against the Commissioner of the Police of the Metropolis. This was settled by way of mediation during the week of 16 November 2009. The settlement was on a confidential basis.",
"K. Operational changes implemented following the shooting of Mr de Menezes",
"143. Following the death of Mr de Menezes, the MPS took a number of steps to improve its methods of command and control in counter-terrorism operations. In particular a common command model was introduced for planned firearms operations, a smaller team, or “cadre” of firearms commanders was formed, a new cadre of ACPO officers was created to deal with high-risk counter-terrorism operations and a new ACPO Firearms Manual was published.",
"144. In addition, a Surveillance Command was formed to provide consistency of training, procedure and professional practice and to create a platform for increased interoperability (that is, how different units and personnel work together operationally) with other departments and national units. A structured rotation of teams between counter-terrorism and crime operations was implemented to familiarise personnel in both types of operation.",
"145. Furthermore, a new counter-terrorism control room came into operation and steps were taken to clarify the roles and responsibilities of control-room staff and to provide them with high-quality training. Operational delivery of a new secure photo-imaging system for transmitting images of suspects and other data also took place. Audio-recording is now available in the control room, which is activated when dealing with any suicide-bombing threat, and a new and evolving covert airwave communication system has been introduced to ensure effective radio communications are available throughout the London underground system as well as above ground.",
"146. Pursuant to ACPO guidance issued in October 2008, the practice of officers writing up their notes together after an incident has ceased in cases where police officers have discharged firearms. Internal instructions drawn up in consultation with the IPCC and DPS have since extended this change of practice to officers involved in other (non-shooting) death and serious-injury cases."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Relevant criminal offences and defences",
"1. Murder",
"147. The unlawful taking of life with intent to kill or cause really serious harm constitutes the common-law offence of murder, which is punishable by a mandatory sentence of life imprisonment.",
"2. Self-defence",
"(a) Common law",
"148. In England and Wales self-defence is available as a defence to crimes committed by use of force, including murder. The basic principles of self-defence are set out in Palmer v. R ([1971] AC 814):",
"“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.”",
"149. In assessing the reasonableness of the force used, prosecutors will ask, firstly, whether the use of force was necessary in the circumstances; and, secondly, whether the force used was reasonable in the circumstances. The domestic courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be ( R v. Williams (G) 78 Cr App R 276, and R v. Oatbridge 94 Cr App R 367). To that extent it is a subjective test. There is, however, also an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.",
"150. In Palmer Lord Morris stated:",
"“If there has been an attack so that the defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.”",
"151. In R (Bennett) v. HM Coroner for Inner South London ([2006] HRLR 22) the Administrative Court was called upon to consider the compatibility of the law of self-defence in the United Kingdom with Article 2 of the Convention. A police officer had shot and killed Mr Bennett, who was, at the time, brandishing a cigarette lighter shaped like a pistol (for further details, see Bennett v. the United Kingdom (dec.), no. 5527/08, 7 December 2010). At the inquest which followed, the coroner refused to leave the verdict of unlawful killing to the jury. In her summing-up to the jury, she indicated that lawful killing could only occur if the evidence showed that it was probable the deceased died by the deliberate application of force against him and the person causing the injuries had used reasonable force in self-defence or defence of another, even if that force was by its nature or the manner of its application likely to be fatal. In determining whether it was self-defence or defence of another, the coroner directed the jury that the first question to be answered was whether the individual believed, or may have honestly believed, that it was necessary to defend himself or another, having regard to the circumstances which he honestly believed to exist, although the reasonableness of the belief was somewhat relevant because, if the belief on the facts was unreasonable, it might be difficult to decide that it was honestly held. The second question, which arose if the first question was answered favourably to the individual, was whether the force used was reasonable having regard to the circumstances which were believed to exist.",
"152. The deceased ’ s family, who were represented by the same counsel representing Mr de Menezes ’ family in the present case, were granted leave to apply for judicial review of the coroner ’ s decision on the ground, inter alia, that her direction on self-defence, in so far as it concerned the degree of force used, was not accurate having regard to Article 2 § 2 of the Convention. In particular the family argued that the direction did not comply with Article 2 because it applied a test of “reasonableness” in respect of the degree of force used rather than one of “absolute necessity”.",
"153. The Administrative Court judge considered the Strasbourg case-law, including McCann and Others and Bubbins (both cited above), and held as follows.",
"“It is thus clear that the European Court of Human Rights has considered what English law requires for self-defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann [ and Others ]. There is no support for the submission that the court has with hindsight to decide whether there was in fact absolute necessity. That would be to ignore reality and to produce what the court in McCann [ and Others ] indicated was an inappropriate fetter upon the actions of the police which would be detrimental not only to their own lives but to the lives of others.”",
"154. The claimants were granted leave to appeal to the Court of Appeal on the ground that it was arguable that the coroner should have left the verdict of “unlawful” killing to the jury. However, the Court of Appeal noted that counsel “did not challenge the correctness of the Strasbourg jurisprudence to the effect that the test formulated under English law as to whether self-defence had been established was Article 2 compliant”.",
"(b) The Criminal Justice and Immigration Act 2008",
"155. In 2008 the common-law definition of self-defence was incorporated into statute. Section 76 of the Criminal Justice and Immigration Act 2008 provides:",
"“ Reasonable force for purposes of self-defence etc.",
"...",
"(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.",
"(4) If D claims to have held a particular belief as regards the existence of any circumstances—",
"(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but",
"(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—",
"(i) it was mistaken, or",
"(ii) (if it was mistaken) the mistake was a reasonable one to have made.",
"(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.",
"(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.",
"(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—",
"(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and",
"(b) that evidence of a person ’ s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.",
"(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).”",
"3. Gross negligence manslaughter",
"156. Any person causing death by gross negligence may be guilty of manslaughter. In R v. Adomako ([1995] 1 AC 171) the House of Lords stated that the offence of gross negligence manslaughter would be committed where the defendant was in breach of a duty of care owed to the victim; the breach of duty caused the death of the victim; and the breach of duty could be characterised as grossly negligent. In determining whether or not there had been gross negligence and whether this caused the death, it was not possible to aggregate the failures of various individuals.",
"4. Offences under the Health and Safety at Work etc. Act 1974",
"157. Section 3(1) reads as follows:",
"“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”",
"158. Section 33(1)(a) provides that it is an offence for a person to fail to discharge a duty to which he is subject by virtue of, inter alia, section 3 of the 1974 Act.",
"B. Prosecutorial decisions",
"1. The CPS",
"159. In 1986 the CPS was established as an independent body to prosecute criminal cases in accordance with the Code. Pursuant to sections 1 and 3 of the Prosecution of Offences Act 1985, the DPP is the head of the CPS and operates independently under the superintendence of the Attorney General. As a government minister, the Attorney General is accountable to Parliament for the work of the CPS.",
"160. According to the Protocol between the Attorney General and the Prosecuting Departments (July 2009), other than in exceptional cases, decisions to prosecute are taken by prosecutors; the Attorney General will not seek to give a direction in an individual case save very exceptionally where necessary to safeguard national security. Moreover, it is a constitutional principle that in such exceptional cases the Attorney General acts independently of government, applying well-established prosecution principles of evidential sufficiency and public interest.",
"161. The circumstances in which the CPS will pursue a prosecution are governed by the 1985 Act and the Code.",
"2. The Prosecution of Offences Act 1985",
"162. Section 10 provides as follows.",
"“(1) The [DPP] shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them ‑",
"(a) in determining, in any case ‑",
"(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or",
"(ii) what charges should be preferred; and",
"(b) in considering, in any case, representations to be made by them to any magistrates ’ court about the mode of trial suitable for that case.",
"(2) The Director may from time to time make alterations in the Code.",
"...”",
"3. The Code for Crown Prosecutors",
"163. The relevant sections read as follows.",
"“ 5. THE FULL CODE TEST",
"5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below.",
"THE EVIDENTIAL STAGE",
"5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘ realistic prospect of conviction ’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.",
"5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant ’ s guilt.",
"5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. ...",
"THE PUBLIC INTEREST STAGE",
"4.11 Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest.",
"4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender ’ s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.",
"4.13 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. ...”",
"164. An Explanatory Memorandum issued to prosecutors in 1994 provided that",
"“4.14 Crown Prosecutors should resist the temptation to define the evidential test as ‘ a 51% rule ’. The CPS has always stated that weighing evidence (and the public interest) is not a precise science; it is therefore misleading to talk in terms of percentages – particularly to a single percentage point – because it implies that we can give individual pieces of evidence an exact weight and then add them up to reach a decision about prosecution. Crown Prosecutors should continue to avoid using any expressions which could convey the impression that the decision-making process is susceptible of very precise numerical definition. On the other hand, it is not unreasonable to talk of a conviction being ‘ more likely than not ’ .”",
"4. Judicial review of prosecutorial decisions",
"165. In R v. Director of Public Prosecutions, ex parte Manning ([2001] 1 QB 330) Lord Bingham of Cornhill CJ, giving the judgment of the court, stated as follows.",
"“23. Authority makes clear that a decision by the [DPP] not to prosecute is susceptible to judicial review ... But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the [DPP] as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the [DPP] personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the [DPP ’ s] provisional decision is not to prosecute, the decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The [DPP] and his officials ... will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied. ...”",
"C. The threshold evidential test for deciding whether to leave a case to the jury (“the Galbraith test”)",
"166. In R v. Galbraith ([1981] 1 WLR 1039) it was held that a court could not stop a prosecution if there was “some evidence”, even if it was “of a tenuous character”, for example, because of inherent weaknesses or vagueness or because it was inconsistent with other evidence. Moreover, if the strength or weakness depended on the view to be taken of a witness ’ s reliability, or other matters which were generally within the province of the jury and where “on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty”, then the judge should allow the matter to be tried by the jury.",
"D. Inquests",
"1. Statutory basis",
"167. The law governing inquests is found in the Coroners Act 1988 and the Coroners Rules 1984. Section 11 of the Act provides that, at the end of an inquest, a coroner or jury must complete and sign an inquisition. Pursuant to section 11(5), an inquisition shall set out, so far as such particulars have been proved, who the deceased was and how, when and where the deceased came by his death. Neither the coroner nor the jury shall express any opinion on any other matters (Rule 36 § 2 (2)) and in particular “[n]o verdict shall be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability” (Rule 42).",
"168. Section 16(7) provides:",
"“Where a coroner resumes an inquest which has been adjourned in compliance with subsection (1) above–",
"(a) the finding of the inquest as to the cause of death must not be inconsistent with the outcome of the relevant criminal proceedings;",
"...”",
"2. Relevant case-law",
"169. In R (Middleton) v. West Somerset Coroner ([2004] 2 AC 182) the House of Lords considered the implications of Article 2 of the Convention on the interpretation of the Coroners Act and Rules. It concluded that an investigation should be capable of reaching a conclusion which resolved the central issues of fact in the case. Where a choice between “short-form” verdicts (unlawful killing, open verdict, lawful killing) was not capable of resolving those central issues, the inquest would not be Article 2 compliant. In such cases it might therefore be necessary for the judge or jury to return a narrative verdict, in order to be able to answer not only “by what means the deceased came by his death”, but also “in what circumstances”.",
"170. The refusal by a coroner to leave a particular short-form verdict to a jury is governed by R v. HM Coroner for Exeter, ex parte Palmer (unreported, 10 December 1997); R v. Inner South London Coroner, ex parte Douglas-Williams ([1999] 1 All ER); and R (Bennett) v. HM Coroner for Inner South London ([2007] EWCA Civ 617).",
"171. In Palmer the Court of Appeal stated that the coroner should not leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer” in criminal trials, namely that there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (the Galbraith test). By contrast, if the strength or weakness of the evidence depended on the view to be taken of a witness ’ s reliability, then the verdict should be left to the jury.",
"172. In Douglas-Williams (cited above) the Court of Appeal clarified the extent of the discretion of a coroner not to leave to the jury what was, on the evidence, a possible verdict. Lord Woolf MR stated at p. 348:",
"“If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner ’ s conclusion he cannot be criticised if he does not leave a particular verdict.”",
"173. The Court of Appeal further clarified this in R (Bennett) (cited above). Waller LJ, giving the judgment of the court, considered that “there is some (if small) distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge considering whether to stop a case after the conclusion of the prosecution case ”, that is, on a submission of no case to answer. At paragraph 30, he continued:",
"“ ... coroners should approach their decision as to what verdicts to leave on the basis that facts are for the jury, but they are entitled to consider the question whether it is safe to leave a particular verdict on the evidence to the jury i.e. to consider whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury. ”",
"174. A jury or coroner may only return a verdict of unlawful killing if satisfied beyond reasonable doubt that one or more persons unlawfully killed the deceased (see, inter alia, Bennett, and R (Sharman) v. HM Coroner for Inner North London [2005] EWHC 857 (Admin)).",
"III. RELEVANT COMPARATIVE LAW",
"A. Contracting States",
"175. From the information available to the Court, it would appear that, leaving aside the question of private prosecutions, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor. That is the case in Albania, Armenia, Austria, Azerbaijan, Bulgaria, the Czech Republic, Estonia, Finland, Georgia, Hungary, Iceland, Ireland, Italy, Latvia, the Republic of Moldova, Montenegro, Poland, Portugal, Romania, Russia, Serbia, Sweden, Switzerland, Turkey and Ukraine. In a further twelve Contracting States, the prosecutorial decision is first taken by a public prosecutor before being put before a judge and/or a court. This is the position in Belgium, Cyprus, France, Germany, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Monaco, Slovakia, Slovenia and Spain.",
"176. There is no uniform approach among Contracting States as to the threshold evidential test necessary to prosecute a case, although in at least twenty-four States a written threshold does exist. These States are Austria, Belgium, Bulgaria, the Czech Republic, Germany, Finland, France, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Switzerland and Turkey.",
"177. In one group of States, the threshold focuses on whether the elements of the offence have been made out; in the second group, it focuses on the chance of conviction by a court. However, these two categories are not watertight as it is not possible to say how prosecutors and judges apply the tests in practice. For example, a prosecutor applying a test based on the elements of the offence may also consider whether the strength or quality of evidence is sufficient for a conviction.",
"178. In addition to the respondent State, at least four countries fall into the second group: Austria, Iceland, the former Yugoslav Republic of Macedonia and Portugal. In Austria, the test is “the likelihood of conviction before the court”; in Iceland, it is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia the test is whether there is “enough evidence from which [the prosecutor] can expect a conviction”; and finally, in Portugal, it is whether there is a “reasonable possibility of imposing a penalty at trial.”",
"179. In some States once the evidentiary threshold has been reached, the prosecutor must pursue the case. In Italy, for example, a decision to prosecute shall be taken if doubt as to the strength of the evidence could be rectified by new evidence presented at trial. In Germany, the principle of mandatory prosecution holds that “the public prosecution office shall be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications”.",
"180. In other States, the evidentiary threshold allows the prosecutor to bring a case, but does not compel prosecution. The practice in Ireland, for example, as defined by the Guidelines for Public Prosecutors, is “the prosecutor approaches each case first by asking whether the evidence is sufficiently strong to justify prosecuting. If the answer to that question is ‘ no ’, then a prosecution will not be pursued. If the answer is ‘ yes ’, before deciding to prosecute the prosecutor will ask whether the public interest favours a prosecution or if there is any public interest reason not to prosecute.” In Cyprus, even if there is sufficient evidence to pursue a prosecution, there is no legal obligation to do so.",
"181. The decision not to prosecute is susceptible of some form of judicial review or appeal to a court of law in at least eighteen Contracting States, namely Albania, Armenia, Austria, Azerbaijan, Belgium, France (albeit in limited circumstances), Ireland, Italy, Luxembourg, Malta, Monaco, Poland, Portugal, Russia, Spain, Switzerland, Turkey and Ukraine. In at least seven Contracting States, the decision of the prosecutor is normally contested before a hierarchical superior in the prosecution service with the final decision being susceptible of judicial review. These States include Bulgaria, Estonia, Germany, Lithuania, the Republic of Moldova, Romania and Slovakia. Finally, in at least twelve Contracting States there is no possibility of judicially reviewing the decision not to prosecute, although in some cases the decision may be contested to a hierarchical superior in the prosecution service. The States which do not permit judicial review include Cyprus, the Czech Republic, Finland, Georgia, Hungary, Iceland, Latvia, the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Slovenia and Sweden.",
"B. Common-law countries",
"182. In Australia, prosecutorial decisions are taken by the Office of the Director of Public Prosecutions which applies the Australian Prosecution Policy. The first criterion of this policy is that of evidential sufficiency, which is met if there is evidence sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. The existence of a bare prima facie case is not sufficient to justify prosecution. Once it is established that there is a bare prima facie case, it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured.",
"183. In New Zealand, the Solicitor-General has published prosecution guidelines that draw extensively on the Australian Prosecution Policy, the CPS Code for Crown Prosecutors, and guidelines developed by the Public Prosecution Service for Northern Ireland and the Director of Public Prosecutions in the Republic of Ireland. The test is in two parts: the evidential test and the public-interest test. The evidential test is met if “the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction”.",
"184. In Canada, the Public Prosecution Service Deskbook sets the standard in relation to decisions to prosecute. The first criteria is the evidential test, which requires Crown counsel objectively to assess the whole of the evidence likely to be available at trial, including any credible evidence that would favour the accused, to determine whether there is a reasonable prospect of conviction. A reasonable prospect of conviction requires that there be more than a bare prima facie case; however, it does not require a probability of conviction (that is, that a conviction is more likely than not).",
"185. Finally, in the United States of America, the standard is whether there is “probable cause” to bring a prosecution, which means reasonable and objective grounds for belief in guilt.",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION",
"186. The applicant complained that the decision not to prosecute any individuals in respect of her cousin ’ s death was in breach of the procedural aspect of Article 2 of the Convention.",
"187. Article 2 provides as follows:",
"“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.",
"2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:",
"(a) in defence of any person from unlawful violence;",
"(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;",
"(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”",
"188. The Government contested the applicant ’ s argument.",
"A. Admissibility",
"189. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. The parties ’ submissions",
"(a) The applicant ’ s submissions",
"190. The applicant did not complain that her cousin was killed by State agents in circumstances which breached Article 2 in its substantive aspect; consequently, she did not aver that his shooting was unlawful or that the conduct and planning of Operation THESEUS 2 was in breach of Article 2. Rather, her complaints fell solely under the procedural limb of Article 2 of the Convention and related solely to the fact that no individual police officer was prosecuted following the fatal shooting of Jean Charles de Menezes.",
"191. More specifically, she argued that:",
"(a) the investigation into her cousin ’ s death fell short of the standard required by Article 2 of the Convention because the authorities were precluded from considering the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary; and",
"(b) the prosecutorial system in England and Wales prevented those responsible for the shooting from being held accountable and, as a consequence, the procedural requirement under Article 2 of the Convention had not been satisfied.",
"(i) The investigation",
"192. In the applicant ’ s submission, the test for self-defence under domestic law was lower than the standard required by Article 2 of the Convention. Under the law of England and Wales, an officer who used lethal force in self-defence would have a defence if he honestly but mistakenly believed he was under imminent threat, even, so she argued, if that belief was wholly unreasonable. However, the test applied by the Court required an honest belief to be supported by “good reasons”. Therefore, if the honest belief was mistaken, the use of force could only be justified if the person had good reasons for believing it was necessary based on what was seen and known by him or her at the time.",
"193. The applicant contended that, as the investigating authorities were applying a lower standard than that required by the Court, they were prevented from considering whether the use of force by Charlie 2 and Charlie 12 was or was not justified in the circumstances within the meaning of Article 2 of the Convention. In other words, the extent to which the domestic authorities were able to submit the actions of State agents to careful scrutiny was undermined, with the consequence that the State ’ s investigation was unable to secure accountability through a prosecution for a violation of Article 2 (see, for example, Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 52, 10 June 2010).",
"194. In the particular circumstances of the present case, the applicant contended that the authorities could not consider the reasonableness of the mistaken belief of Charlie 2 and Charlie 12 that Mr de Menezes posed a threat; nor were they required to analyse whether those officers had conducted both a careful assessment of the surrounding circumstances and an evaluation of the threat Mr de Menezes posed by his presence on the train.",
"(ii ) The prosecutorial decisions",
"195. Although the applicant did not contend that there must always be a prosecution when there has been a death at the hands of a State agent, she submitted that there should be a prosecution where there was sufficient evidence to justify it. She argued that there had been sufficient evidence to justify the prosecution of a number of police officers involved in Operation THESEUS 2, but that flaws in the prosecutorial system in England and Wales had prevented the persons responsible for the death of her cousin from being held to account.",
"196. The applicant did not submit that prosecutors in England and Wales were not adequately independent for the purposes of Article 2 of the Convention. However, relying on Maksimov v. Russia (no. 43233/02, 18 March 2010), she criticised the fact that the prosecutor normally makes decisions without the benefit of oral testimony. She submitted that in cases like the present, where honesty and credibility were decisive, it was vital that the prosecutor should be in a position to assess the demeanour of witnesses giving oral evidence.",
"197. The applicant accepted that States were entitled to apply a threshold evidential test for permitting prosecutions to proceed, but contended that the threshold in England and Wales was too high. She accepted that “a realistic prospect of conviction” was used in some other States, particularly those with common-law legal systems, but she argued that in England and Wales this test had been interpreted to mean that a conviction should be more likely than not, that is, the chances of conviction were over fifty percent. She contended that the appropriate threshold should be the same as that used by the trial judge in deciding whether to allow a matter to be tried by a jury (the Galbraith test), namely, that there was “some evidence”, even if it was “of a tenuous character”, on which the jury could properly come to the conclusion that the defendant was guilty.",
"198. Although the applicant accepted that this was the same test applied by the coroner in deciding what short-form verdicts to leave to the jury, she argued that the CPS was wholly independent of the coroner and had not been bound by his decision. It could not, therefore, be said that a prosecutor applying the same test would have come to the same conclusion. In any case, the applicant had sought permission to judicially review the coroner ’ s decision but, by the time the Administrative Court considered her claim, the jury had already been directed.",
"199. In light of the absolute nature of Article 2, the applicant rejected any suggestion that there was a margin of appreciation in setting the threshold evidential test. However, even if there were, she submitted that the current threshold, which was substantially higher than the Galbraith test, was too high and therefore incompatible with Article 2 of the Convention. In particular she claimed that the threshold was set too high to maintain public confidence, to ensure adherence to the rule of law and to prevent any appearance of tolerance of or collusion in unlawful acts. Moreover, as the prosecutor could prevent a case from going to trial where there was sufficient evidence in the case for a jury properly to have convicted, there was a chance that life-endangering offences could go unpunished.",
"200. More particularly, the applicant argued that there was a substantial chance that life-endangering offences in fact had gone unpunished in the present case because, had the threshold evidential test been lower, there would have been sufficient evidence to have led to a prosecution of a number of officers, including Charlie 2 and Charlie 12 for murder, and Commander McDowall, Commander Dick, Trojan 84, Trojan 80, DCI C and “James” for gross negligence manslaughter. The fact that the inquest jury, having heard oral testimony, returned an open verdict indicated that they were not satisfied that, at the time they fired, Charlie 2 and Charlie 12 honestly believed that Mr de Menezes represented an imminent, mortal danger.",
"201. Relying on Enukidze and Girgvliani v. Georgia (no. 25091/07, § 274, 26 April 2011), the applicant submitted that the need to secure public confidence by ensuring accountability was particularly fundamental where a fatal shooting by a police officer was concerned and that confidence would be undermined by a perceived failure to prosecute public officials who were alleged to have violated Article 2 of the Convention. Consequently, it would be permissible to have a lower threshold for prosecutions for serious breaches of Convention rights by State agents than for other offences.",
"202. The applicant further alleged that the level of scrutiny that the domestic courts applied to a decision not to prosecute was incompatible with Article 2 of the Convention. This was because, pursuant to the dicta in Manning, even if a court considering a claim for judicial review concluded that a prosecution was likely to succeed, it would only have to order such prosecution if there had been an error of law. Such approach was inconsistent with Article 2 of the Convention.",
"203. In the alternative, the applicant argued that even if individual prosecutions were not required in the present case, the prosecution of the OCPM had not amounted to an adequate acknowledgment of responsibility on the part of the State, as the offence under the Health and Safety at Work etc. Act 1974 was established if there was a possibility of danger instead of actual danger, that is, since proof of actual harm was unnecessary to establish the offence, it was not necessary for the domestic court to determine whether any breach of duty in fact caused the death of Mr de Menezes. Consequently, despite the serious criticisms made in the IPCC report, and the verdict of the inquest jury, no individual or organisation had been held to account for Mr de Menezes ’ death.",
"204. Although the applicant accepted that she could have brought a private prosecution, she argued that this would not have addressed her complaints because it was clear from the Court ’ s case-law that it was the State that had the responsibility for complying with Article 2.",
"205. The applicant further submitted that disciplinary proceedings could not, by themselves, have complied with Article 2 of the Convention as they were essentially administrative proceedings intended to govern future employment. Where serious breaches of the Convention were concerned, effective protection had to be provided by the criminal law because the sanctions available were more punitive and had better deterrents than disciplinary proceedings. In a case such as the present, disciplinary proceedings could not have satisfied the procedural obligation under Article 2 of the Convention because there would have been a manifest disproportion between the gravity of the act and the punishment available.",
"206. More particularly, the applicant contended that police disciplinary proceedings in the United Kingdom were often not sufficiently independent to satisfy the procedural limb of Article 2, as it was usually the Chief Officer of the officer ’ s own force who took all the key steps in the investigation, and the members of the panel which conducted the proceedings could also be from the same force. The proceedings were not conducted in public and at the time of Mr de Menezes ’ death police officers could avoid the disciplinary process by resigning.",
"(b) The Government ’ s submissions",
"(i ) The investigation",
"207. The Government argued that the formulation of the law of self-defence in England and Wales struck an appropriate balance between permitting the use of force to prevent lethal attacks on the public and ensuring that any individuals who may be exposed to a real and immediate risk to life by any operational measures were protected. In doing so, it recognised that it was not for the courts, with the benefit of detached reflection, to substitute their own opinion for that of a police officer required to act in the heat of the moment.",
"208. More particularly, the Government contended that the test of “absolute necessity” in Article 2 § 2 of the Convention ought to be assessed from the standpoint of the person wielding lethal force in self-defence without any requirement of reasonableness by reference to objectively established facts, that is, a person ought to be criminally liable for causing death only where he was aware that in the circumstances his conduct was not absolutely necessary. This was supported by the Court ’ s case-law, which provided that the use of force might be justified where it was based on an honest belief, perceived for good reasons, to be valid at the time ( McCann and Others v. the United Kingdom, 27 September 1995, § 200, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 192, Reports of Judgments and Decisions 1997 ‑ VI; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 178, ECHR 2011). The honest belief did not have to be shown to be reasonable by reference to objectively established facts, although the objective reasonableness of the belief would nevertheless be relevant in determining whether or not it was genuinely held. An honest belief could be held for good reasons even if, objectively, another person might consider the belief to be irrational or based on either a flawed premise or faulty perceptions.",
"209. Finally, the Government argued that the applicant ’ s proposed change to the law could have far-reaching and counter-productive effects. In particular, if officers were liable to prosecution even when their use of force was legitimate based on their honest beliefs at the time, there could be a chilling effect on the willingness of officers to carry out essential duties where they might be required to act in the heat of the moment to avert a danger to life. Consequently, it could have a profoundly detrimental effect on their ability to act in defence of their own lives and the lives of others.",
"(ii ) The prosecutorial decisions",
"210. The Government argued that as the investigative obligation was one of means and not result, Article 2 only required a prosecution where it was justified by the findings of the investigation. The effectiveness of the investigation could not therefore be assessed only by reference to whether it resulted in criminal or disciplinary proceedings against individuals. An effective investigation, carried out against an appropriate framework of criminal law, could lead to the conclusion that such proceedings would not be justified.",
"211. Thus, the fact that no individual officer was prosecuted was not, properly viewed, a specific ground of complaint; the crucial question was why there were no individual prosecutions. In the present case, the reason was that none of the independent authorities who reviewed the case concluded that there was sufficient evidence to justify a prosecution for murder or manslaughter. All necessary measures had been taken to discharge the Article 2 duty and in such a case it was not for the Court to substitute its own assessment of the facts for those of the domestic authorities and courts ( Klaas v. Germany, 22 September 1993, § 29, Series A no. 269).",
"212. With regard to prosecutorial decisions in England and Wales, the Government submitted that the CPS was an independent prosecution service. Although in certain other legal systems this function was carried out by judicial officers, such a system was not mandated by the Convention. On the contrary, Article 2 merely required that such decisions were taken independently on the basis of a thorough review of the evidence. Furthermore, the applicant was wrong to say that a decision was taken by the CPS without the benefit of hearing witnesses. In taking its decision, the CPS had the benefit of all the materials generated by the IPCC during its investigation, including witness statements, and it carried out a review of its decision following the inquest, during which all the key witnesses had given oral evidence.",
"213. The Government further argued that the current threshold evidential test did not require prosecutors to be satisfied that there was a fifty percent or more prospect of conviction. The Explanatory Memorandum issued to prosecutors in 1994 made it clear that although it was not unreasonable to talk about a conviction being “more likely than not”, they should “resist the temptation to define the evidential test as ‘ a 51% rule ’ ” (see paragraph 164 above). This was because it was impossible to measure with arithmetical precision the probability or likelihood of a particular outcome in a criminal case as there were many variable factors and elements of complexity and uncertainty that defied accurate calculation.",
"214. The correct test was whether or not there was a “realistic prospect of conviction” against each suspect on each charge; in other words, whether a reasonable and impartial court, properly directed and acting in accordance with the law, was more likely than not to convict the defendant of the charge(s) alleged. A “merits based” approach was therefore applied, in which the prosecutor essentially asked himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he or she knew about the defence case. In reaching a decision the prosecutor was required to undertake a thorough and conscientious review of the case and it was only when he or she considered on balance that the evidence was not sufficient to merit conviction that the case would not be prosecuted.",
"215. The Galbraith test, on the other hand, was a very low threshold which would be met where there was “some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence”. In the Government ’ s view, if the Galbraith test were the threshold evidential test, prosecutions would have to be brought in cases where there was no realistic prospect of conviction and where the prosecutor considered that the case was unfounded.",
"216. In any case, the Government noted that even if the threshold evidential test had been the Galbraith test, it would not necessarily have led to the prosecution of any individual officer. The Galbraith test was also the test used by coroners in deciding whether to leave a verdict to a jury at an inquest. Furthermore, the elements of the inquest verdict of unlawful killing were precisely the same as the elements of the crimes which the CPS had to consider in taking the decision on criminal charges. However, in the present case, after hearing all the relevant witnesses cross-examined at length, the coroner weighed the evidence against the Galbraith threshold and decided that it was not met.",
"217. Moreover, the Government submitted that in England and Wales the threshold evidential test had been the subject of frequent and anxious consideration through public consultation and political scrutiny. Detailed reviews of the Code for Crown Prosecutors were carried out in 2003, 2010 and 2012 and during those reviews the threshold evidential test had not been subject to substantive criticism by the Equality and Human Rights Commission (EHRC) or any of the human rights organisations with an interest in criminal law. In the 2003 review the then Attorney General specifically considered whether a lower threshold should apply to deaths in custody but found little, if any, support for such an approach as it would be unfair – and inconsistent – to subject potential defendants in such cases to the burden of prosecution in the absence of a realistic prospect of conviction. Public confidence was maintained by prosecuting where the evidence justified it, and not prosecuting where it did not.",
"218. In light of the fact that the threshold evidential test had been given careful and anxious scrutiny, the Government argued that it should be accorded a significant margin of appreciation in assessing the appropriate evidential thresholds for the initiation and continuation of criminal proceedings in all cases.",
"219. This was particularly important in light of the primacy of the jury in the United Kingdom criminal justice system. Once a case was prosecuted, the trial judge could not remove it from the jury if the Galbraith test was satisfied, that is, if there was some evidence, however tenuous, on which the jury could properly come to the conclusion that the defendant was guilty. The trial judge could not, therefore, act as a filter for unmeritorious cases, and a higher threshold evidential test for bringing prosecutions was necessary to ensure that the emotional and financial costs of trial were not incurred simply because there was a bare possibility of conviction. In other words, it was particularly important to weed out weak cases at an early stage because cases which did go to trial were usually pursued right to the end.",
"220. The Government also noted that significant procedural protections had been built into CPS practices in cases of police shootings or deaths in custody: the prosecutor had to write to the family of the victim to explain any decision; the family had to be offered a meeting with the prosecutor to explain the decision; all charging decisions had to be reviewed personally by the DPP and, if there was a decision not to proceed, if it was not plain beyond all doubt that there was no case to answer, advice had to be sought from senior independent counsel. In addition, since June 2013 the victim has had the right to request a review of the CPS decision, first by the local CPS office that made the decision, and then by means of an independent review by either the CPS Appeals and Review Unit or by the relevant CPS Chief Crown Prosecutor.",
"221. Although the Government accepted that in practice prosecution of State agents for causing death were rare, they did not consider this to be a cause for concern. Fatalities caused by armed police officers did not normally require the prosecution of the officer. In England and Wales a rigorous approach to the use of firearms was adopted; in particular, firearms officers were subjected to a high level of screening, training, guidance and monitoring to ensure that they only discharged firearms when it was absolutely necessary to do so. This is evidenced by the statistics: from 2003/04 to 2012/13, the annual number of police operations in which the use of firearms was authorised ranged from 10,996 (in 2012/13) to 19,595 (in 2007/08). However, during the same period the annual number of incidents in which conventional firearms were discharged ranged from three (in 2006/07 and 2012/13) to nine (in 2005/06).",
"222. The Government further argued that the remedy of judicial review was not intended to provide an appeal system on the merits of the prosecutorial decision. In this regard, the primary protection lay not with the judiciary but in the requirement that the initial decision be taken by an independent and qualified prosecutor exercising an impartial judgment based on a public and accessible policy, subject to scrutiny by the DPP. On an application for judicial review, the Administrative Court retained the power to intervene where a decision not to prosecute was based on an error of law or was otherwise irrational or procedurally flawed.",
"223. Finally, the Government submitted that a real tension existed between the paradigm of criminal culpability based on individual responsibility and the increasing recognition of the potential for harm inherent in large-scale or complex activity where no one person was wholly to blame for what went wrong. Cases such as McCann and Others, cited above, indicated that it might be simplistic to attribute an Article 2 breach to the individuals who directly caused the death, especially in a case such as the present where the death resulted from failures in the overall system. In such cases, it would be inaccurate and unfair to ascribe blame to the individuals who happened to form the last link in the chain. It could also be dangerous, diverting attention away from the real problems in the system which could then go unremedied and create risks to life in future. The prosecution of the OCPM, on the other hand, enabled the issues of planning and execution to be directly addressed in the context of a criminal trial.",
"(c) The third-party intervener ’ s submissions",
"(i) The investigation",
"224. The EHRC argued that the criminal-law provisions of England and Wales failed to ensure accountability for deaths occurring under the State ’ s responsibility. In particular, they submitted that the definition of self-defence in English law was drawn very widely, was partially subjective and was inconsistent with Article 2 of the Convention. The clear and constant case-law of the Court is that an “honest belief” must be founded on “good reason”; to permit State officials to escape punishment in criminal proceedings based on an honest but objectively unjustifiable belief was incompatible with the strict requirements of Article 2 of the Convention. The use of force should therefore be objectively justifiable, that is, law-enforcement officers should be required to make reasonable attempts to ascertain the true facts before using lethal force.",
"(ii ) The prosecutorial decisions",
"225. The EHRC further submitted that the criminal-law provisions in England and Wales were inadequate because the threshold evidential test for bringing prosecutions was too high. Although the State should not be obliged to prosecute hopeless cases, it was arbitrary to set the test as high as it currently was and there could be no objection in principle if it were lower. Like the applicant, the EHRC also considered the Galbraith test to be a more appropriate threshold evidential test for bringing a prosecution.",
"226. The EHRC argued that aligning the threshold evidential test for bringing a prosecution with that for leaving a case to the jury would not require the prosecution of every case of a potential violation of Article 2, no matter how weak the evidence. Hopeless or legally unmeritorious cases would not cross this threshold. However, a case which had an assessed forty-nine percent chance of conviction could not sensibly be described as one with little prospect of conviction. A criminal justice system which operated so as to preclude trial in circumstances where evidence existed upon which a properly directed jury could lawfully convict was not one which secured the full accountability required by Article 2.",
"227. Moreover, the lowering of the threshold evidential test in Article 2 cases involving killing by State agents would not involve any irreversible prejudice. Every trial was thoroughly reviewed at the close of the prosecution case and the judge was duty bound to withdraw the case upon a successful submission of no case to answer, that is, if a properly directed jury on one view of the facts could not lawfully convict. If the threshold evidential test for bringing a prosecution were lowered, at worst some cases which would not be prosecuted under the existing test would be withdrawn by the judge at the close of the prosecution case. At best, some which would not have been brought to trial at all under the existing test might result in convictions of State agents for culpable homicide.",
"228. In support of their submissions, the EHRC noted that between 1990 and 2014 there were fifty-five deaths caused by police shootings in England and Wales. However, since 1990 there has been no criminal conviction of an armed officer, even in those cases where an inquest jury recorded a verdict of unlawful killing. Indeed, between 1993 and 2005 there were thirty fatalities and only two prosecutions.",
"2. The Court ’ s assessment",
"(a) The procedural requirement in cases concerning the use of lethal force by State agents",
"229. Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation – as described below – to carry out an effective investigation into alleged breaches of its substantive limb (see Ergi v. Turkey, 28 July 1998, § 82, Reports 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; Giuliani and Gaggio, cited above, § 298; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 69, 14 April 2015 ).",
"230. A general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, taken in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State (see McCann and Others, cited above, § 161). The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Zavoloka v. Latvia, no. 58447/00, § 34, 7 July 2009, and Giuliani and Gaggio, cited above, § 298).",
"231. The State ’ s obligation to carry out an effective investigation has in the Court ’ s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see İlhan v. Turkey [GC], no. 22277/93, §§ 91-92, ECHR 2000-VII; Öneryıldız v. Turkey [GC], no. 48939/99, § 148, ECHR 2004-XII; and Šilih v. Slovenia [GC], no. 71463/01, §§ 153-54, 9 April 2009). It can give rise to a finding of a separate and independent “interference”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect (see Šilih, cited above, §§ 158 ‑ 59).",
"232. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999 ‑ III; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998 ‑ IV; Giuliani and Gaggio, cited above, § 300; and Mustafa Tunç and Fecire Tunç, cited above, § 177 ). What is at stake here is nothing less than public confidence in the State ’ s monopoly on the use of force (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 106, 4 May 2001; Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ II; and Giuliani and Gaggio, loc. cit.).",
"233. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others, cited above, § 324, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Giuliani and Gaggio, cited above, § 301, and Mustafa Tunç and Fecire Tunç, cited above, § 172 ). This is not an obligation of result, but of means (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII; Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; and Mustafa Tunç and Fecire Tunç, cited above, § 173). The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death (as regards autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; on the subject of witnesses, see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and, as regards forensic examinations, see, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Avşar v. Turkey, no. 25657/94, §§ 393-95, ECHR 2001 ‑ VII); Giuliani and Gaggio, cited above, § 301; and Mustafa Tunç and Fecire Tunç, cited above, § 174 ).",
"234. In particular, the investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009, and Mustafa Tunç and Fecire Tunç, cited above, § 175 ). Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Enukidze and Girgvliani, cited above, § 277).",
"235. In addition, the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan, cited above, § 109; Giuliani and Gaggio, cited above, § 303; and Mustafa Tunç and Fecire Tunç, cited above, § 179; see also Güleç, cited above, § 82, where the victim ’ s father was not informed of the decision not to prosecute, and Oğur, cited above, § 92, where the family of the victim had no access to the investigation or the court documents).",
"236. However, disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on private individuals or other investigations and therefore cannot be regarded as an automatic requirement under Article 2. The requisite access of the public or the victim ’ s relatives may therefore be provided for in other stages of the procedure (see, among other authorities, McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III, and Giuliani and Gaggio, cited above, § 304). Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Velcea and Mazăre, cited above, § 113, and Ramsahai and Others, cited above, § 348).",
"237. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI, and Kaya, cited above, §§ 106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 111 and 114, and Opuz v. Turkey, no. 33401/02, § 150, ECHR 2009).",
"238. It cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Mastromatteo, cited above, § 90; Šilih, cited above, § 194; and Giuliani and Gaggio, cited above, § 306) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Zavoloka, cited above, § 34 (c)). Indeed, the Court will grant substantial deference to the national courts in the choice of appropriate sanctions for homicide by State agents. Nevertheless, it must still exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Kasap and Others v. Turkey, no. 8656/10, § 59, 14 January 2014; A. v. Croatia, no. 55164/08, § 66, 14 October 2010; and Ali and Ayşe Duran v. Turkey, no. 42942/02, § 66, 8 April 2008 ).",
"239. Where the official investigation leads to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect the right to life through the law. In this regard, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, for example, Öneryıldız, cited above, § 95, and Giuliani and Gaggio, cited above, § 306 ). The Court ’ s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Mileusnić and Mileusnić-Espenheim v. Croatia, no. 66953/09, § 66, 19 February 2015, and Öneryıldız, cited above, § 96).",
"(b) Application to the present case",
"240. As can be seen from the general principles set out above, the Court has, in its case-law, established a number of requirements for an investigation into the use of lethal force by State agents to be “effective”. In summary, those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim ’ s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition.",
"241. In the present case the applicant has not complained generally about the investigation, which was conducted by an independent body (the IPCC). In the course of the investigation, the IPCC secured the relevant physical and forensic evidence (more than 800 exhibits were retained), sought out the relevant witnesses (nearly 890 witness statements were taken), followed all obvious lines of enquiry and objectively analysed all the relevant evidence (see paragraph 49 above). Moreover, the deceased ’ s family were given regular detailed verbal briefings on the progress of the investigation and, together with their legal representatives, they were briefed on the IPCC ’ s conclusions (see paragraph 49 above). They were also fully briefed on the CPS ’ s conclusions (notably by means of a fifty-page Review Note and a follow-up final Review Note (see paragraphs 77, 79 and 133 above)), they were able to judicially review the decision not to prosecute, and they were represented at the inquest at the State ’ s expense, where they were able to cross-examine the seventy-one witnesses called and make representations.",
"242. Although there was some delay in handing the scene of the incident to the IPCC – a delay the IPCC criticised (see paragraph 56 above) – the applicant has not complained about it and there is nothing to suggest that the delay compromised the integrity of the investigation in any way, which on the whole was carried out promptly and with reasonable expedition. The DPS, an independent section of the MPS, was notified of the shooting within an hour of its occurrence and its officers were able to ensure the integrity of the scene in the early stages of the investigation (see paragraph 40 above). Furthermore, while the IPCC identified issues which could have been addressed earlier had it been notified immediately (for example, the concern over the CCTV tapes at Stockwell underground station, the missing hard drives on the train, and the possible alteration of the surveillance log – see paragraph 56 above), none of these issues proved to be central to the investigation which followed.",
"243. In the Court ’ s view, the above considerations are important to bear in mind when considering the proceedings as a whole, in view of the applicant ’ s specific complaints which solely concern certain aspects of the adequacy of the investigation. As set out in the general principles above, in order to be “adequate” the investigation must be capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. Having regard to the facts of the present case, the applicant contends (a) that the investigating authorities were unable to assess whether the use of force was justified because they were precluded from considering whether the apparently honest belief of Charlie 2 and Charlie 12 that the use of force was necessary was also a reasonable one; and (b) that deficiencies in the criminal justice system in England and Wales undermined the investigation ’ s ability to lead to the punishment of those responsible.",
"(i) Adequacy of the investigation: were the authorities able properly to consider whether the use of force was justified?",
"( α ) The test applied by the Court",
"244. The test consistently applied by the Court in determining whether the use of lethal force was justified is set out in McCann and Others (cited above, § 200).",
"“[T]he use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.”",
"245. The Government have argued that the reasonableness of a belief in the necessity of lethal force should be determined subjectively. Although the applicant has accepted this, the third-party intervener has submitted that an honest belief should be assessed against an objective standard of reasonableness. It is, however, apparent both from the application of the stated test to the particular facts in McCann and Others itself and from the Court ’ s post McCann and Others case-law that the existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that, as it is detached from the events in issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events (see, for example, Bubbins v. the United Kingdom, no. 20196/99, § 139, ECHR 2005-II, and Giuliani and Gaggio, cited above, §§ 179 and 188). Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used (see, for example, Makaratzis v. Greece [GC], no. 50385/99, §§ 65-66, ECHR 2004 ‑ XI; Oláh v. Hungary (dec.), no. 56558/00, 14 September 2004; and Giuliani and Gaggio, cited above, § 189).",
"246. Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. In McCann and Others the Court identified the danger of imposing an unrealistic burden on law ‑ enforcement personnel in the execution of their duty. It therefore found no violation of Article 2 because the soldiers “honestly believed, in the light of the information that they had been given ... that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life” (see McCann and Others, cited above, § 200). A similar approach – that is, one focusing primarily on the honesty of the belief – can be seen in many other cases, including Andronicou and Constantinou (cited above, § 192), Bubbins (cited above, § 140), Golubeva v. Russia (no. 1062/03, § 102, 17 December 2009), Wasilewska and Kałucka v. Poland (nos. 28975/04 and 33406/04, § 52, 23 February 2010) and Giuliani and Gaggio (cited above, § 189).",
"247. In this regard, it is particularly significant that the Court has never found that a person purporting to act in self-defence honestly believed that the use of force was necessary but proceeded to find a violation of Article 2 on the ground that the belief was not perceived, for good reasons, to be valid at the time. Rather, in cases of alleged self-defence it has only found a violation of Article 2 where it refused to accept that a belief was honest (see, for example, Akhmadov and Others v. Russia, no. 21586/02, § 101, 14 November 2008, and Suleymanova v. Russia, no. 9191/06, § 85, 12 May 2010) or where the degree of force used was wholly disproportionate (see, for example, Gül, cited above, §§ 82-83).",
"248. It can therefore be elicited from the Court ’ s case-law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time. If the belief was not subjectively reasonable (that is, it was not based on subjective good reasons), it is likely that the Court would have difficulty accepting that it was honestly and genuinely held.",
"( β ) Compatibility of the test applied in England and Wales",
"249. In the present case the coroner described the test to be applied as follows (see paragraph 106 above).",
"“Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held.”",
"250. Although the Court has previously considered the compatibility of this test with Article 2 of the Convention, those cases do not assist the Court in its consideration of the one at hand. It is true that in Bennett v. the United Kingdom ((dec.), no. 5527/08, 7 December 2010) the Court expressly found that there was “no sufficiently great difference between the English definition of self-defence and the ‘ absolute necessity ’ test for which Article 2 provides”. However, the issue in Bennett was whether the test applied by the coroner, namely that the use of lethal force should be “reasonably justified”, was compatible with the “absolute necessity” requirement in Article 2 of the Convention. The Court was not, therefore, called upon to consider the compatibility of domestic law with the requirement that an honest belief be perceived, for good reasons, to be valid at the time. The issue did arise in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000 ‑ I), in which the Court found that the approach taken by the domestic judge was compatible with the principles established in McCann and Others. However, the approach of the domestic judge in Caraher differs somewhat from the one adopted in the present case, and the Government have accepted the latter to be an accurate reflection of domestic law.",
"251. It is clear both from the parties ’ submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was “absolutely necessary”. This question is essentially one of proportionality, which requires the authorities to again address the question of reasonableness, that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148 - 55 above).",
"252. So formulated, it cannot be said that the test applied in England and Wales is significantly different from the standard applied by the Court in McCann and Others and in its post McCann and Others case-law (see paragraphs 244 ‑ 48 above). Bearing in mind that the Court has previously declined to find fault with a domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Perk and Others v. Turkey, no. 50739/99, § 60, 28 March 2006, and Giuliani and Gaggio, cited above, §§ 214-15), it cannot be said that the definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention.",
"253. It is also clear that in the present case all the independent authorities considering the actions of Charlie 2 and Charlie 12 carefully examined the subjective reasonableness of their belief that Jean Charles de Menezes was a suicide bomber who might detonate a bomb at any second. In the Stockwell One Report the IPCC noted that the actions of Charlie 2 and Charlie 12 should be considered in light of the day ’ s events and those of the previous two weeks. In particular, it had regard to the SFO ’ s briefing, the positive identification of Mr de Menezes by the surveillance teams, the decision to go to State Red when the SFOs arrived at Stockwell, and the DSO ’ s order to “stop” Mr de Menezes (see paragraph 60 above).",
"254. The CPS also had regard to the fact that the events at Stockwell “ happened in a matter of seconds” and there was “some independent evidence that supports the officers ’ accounts that they feared Jean Charles might detonate a bomb” (see paragraph 78 above). The CPS further noted that if Charlie 2 and Charlie 12 did genuinely believe that they were acting in self-defence, then the actions that they took in shooting Mr de Menezes dead would be reasonable and not unlawful (see paragraph 83 above).",
"255. Similarly, the coroner made it clear that he had to consider the reasonableness of the belief of Charlie 2 and Charlie 12 that the use of force was necessary in order to decide whether or not it was honestly and genuinely held (see paragraph 106 above).",
"256. Consequently, it cannot be said that the domestic authorities failed to consider, in a manner compatible with the requirements of Article 2 of the Convention, whether the use of force by Charlie 2 and Charlie 12 was justified in the circumstances.",
"(ii) Adequacy of the investigation: was it capable of identifying and – if appropriate – punishing those responsible?",
"257. Although the authorities should not, under any circumstances, be prepared to allow life-endangering offences to go unpunished, the Court has repeatedly stated that the investigative obligation under Article 2 of the Convention is one of means and not result (see paragraph 233 above). In older cases, the Court stated that “the investigation should be capable of leading to the identification and punishment of those responsible” (see Oğur, cited above, § 88). However, in more recent case-law this requirement has been further refined so as to require that the investigation be “capable of leading to a determination of whether the force used was or was not justified in the circumstances ... and of identifying and – if appropriate – punishing those responsible” (see Giuliani and Gaggio, cited above, § 301; see also Mustafa Tunç and Fecire Tunç, cited above, § 172 ). It therefore follows that Article 2 does not entail the right to have third parties prosecuted – or convicted – for a criminal offence (see Mastromatteo, cited above, § 90, and Šilih, cited above, § 194). Rather, the Court ’ s task, having regard to the proceedings as a whole, is to review whether and to what extent the domestic authorities submitted the case to the careful scrutiny required by Article 2 of the Convention (see Öneryıldız, cited above, § 95).",
"258. As noted at paragraph 241 above, there is nothing before the Court to suggest that in the present case the domestic authorities failed to secure the relevant physical or forensic evidence, or to seek out relevant witnesses or relevant information. Furthermore, the secured evidence was thoroughly analysed and assessed by the IPCC, an independent investigatory body which took witness statements from nearly 890 people and collected more than 800 exhibits; by the CPS; by a judge and jury during the criminal trial of the OCPM, at which forty-seven witnesses were called to give evidence; and by a coroner and jury during the inquest at which seventy-one witnesses were called (see paragraphs 45 - 71, 77-101 and 103 - 27 ). The applicant has not sought to argue the contrary. Therefore, the sole issue before the Court is whether the decision not to prosecute individual officers, and to prosecute only the OCPM in its capacity as an employer of police officers, could itself constitute a procedural breach of Article 2 of the Convention.",
"259. To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant. In fact, it has shown deference to Contracting States both in organising their prosecutorial systems and in taking individual prosecutorial decisions. In Kolevi (cited above) the Court made it clear that",
"“[it] is not oblivious to the fact that a variety of State prosecution systems and divergent procedural rules for conducting criminal investigations may be compatible with the Convention, which does not contemplate any particular model in this respect ... Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means, such as investigation and prosecution by a separate body outside the prosecution system, special guarantees for independent decision-making despite hierarchical dependence, public scrutiny, judicial control or other measures. It is not the Court ’ s task to determine which system best meets the requirements of the Convention. The system chosen by the member State concerned must however guarantee, in law and in practice, the investigation ’ s independence and objectivity in all circumstances and regardless of whether those involved are public figures.” ( § 208)",
"260. Likewise, in Brecknell v. the United Kingdom (no. 32457/04, § 81, 27 November 2007), although the Court held that the initial investigative response lacked the requisite independence (and was therefore in breach of the procedural limb of Article 2), it found no grounds on which to criticise a decision not to prosecute where it was not “apparent that any prosecution would have any prospect of success” and where it could not “impugn the authorities for any culpable disregard, discernible bad faith or lack of will”. In Brecknell the application was lodged nearly three decades after the death in issue; nevertheless, it clearly demonstrates the Court ’ s reluctance to interfere with a prosecutorial decision taken in good faith following an otherwise effective investigation.",
"261. That being said, the Court has, on occasion, accepted that “institutional deficiencies” in the criminal justice or prosecutorial system may breach Article 2 of the Convention. In Kolevi (cited above, § 209) the Court found that such deficiencies in the prosecutorial system resulted in the absence of sufficient guarantees for an independent investigation into offences potentially committed by the Chief Public Prosecutor. In particular it found that the centralised structure of the prosecutorial system made it “practically impossible to conduct an independent investigation into circumstances implicating [the Chief Public Prosecutor]”. Although there was no such obstacle to an effective investigation in the present case, the applicant has argued that there were other obstacles preventing any meaningful prosecutions. If such obstacles existed, they could enable life-endangering offences to go unpunished and, as such, give rise to the appearance of State tolerance of – or collusion in – unlawful acts. Consequently, it will be necessary for the Court to consider each of the applicant ’ s submissions in turn in order to determine whether there were any “institutional deficiencies” giving rise to a procedural breach of Article 2 of the Convention.",
"( α ) The CPS",
"262. In England and Wales the decision whether to prosecute is taken by a prosecutor in the CPS. The Government have asserted – and the applicant has not contested – that the CPS was independent for the purposes of Article 2 of the Convention. In serious cases such as the one at hand, the decision is taken by a senior prosecutor having first taken independent legal advice. The Court has never stated that the prosecutorial decision must be taken by a court (see, for example, Hugh Jordan, cited above, §§ 122-24, in which the Court did not take issue with the fact that the prosecutorial decision was taken by a public official). Indeed, in at least twenty-five Contracting States the decision to prosecute is taken by a public prosecutor (see paragraph 175 above). Consequently, the fact that the decision is taken by a public official is not problematic in and of itself, provided that there are sufficient guarantees of independence and objectivity.",
"263. Furthermore, the Court does not consider that Maksimov (cited above) can be interpreted as authority for the proposition that prosecutors should hear oral testimony from witnesses before taking decisions. In that case, the prosecutorial decision had been taken without any independent investigatory body hearing oral testimony from important witnesses. The situation in the case at hand is quite different, as the IPCC, an independent investigatory body, had conducted a thorough investigation which included interviewing all relevant witnesses and the CPS had access to its findings in taking its prosecutorial decisions (see paragraph 80 above). Moreover, an examination and cross-examination of witnesses was conducted before the coroner at the inquest and he concluded that there was no evidence capable of being left to a jury that could establish unlawful killing in relation to any individual police officer (see paragraphs 103-27 above). Following the inquest, the CPS reviewed its original decision but concluded that there was still insufficient evidence to prosecute any individual (see paragraph 133 above). In such a case, there is nothing in the Court ’ s case-law to suggest that an independent prosecutor must also hear oral testimony before deciding whether or not to prosecute.",
"264. Consequently, the Court does not consider that the applicant ’ s complaints concerning the role and organisation of the CPS disclose any “institutional deficiencies” which prevented the authorities from adequately securing the accountability of those responsible for the death of Mr de Menezes.",
"( β ) The threshold evidential test",
"265. As the Government have explained, in deciding whether proceedings for an offence should be instituted, prosecutors in England and Wales have to apply a two-stage test: firstly, they must ask whether there is enough evidence to provide a “realistic prospect of conviction” against each defendant on each charge (the threshold evidential test); and, secondly, they must decide if a prosecution is needed in the public interest (see paragraph 163 above). In deciding whether there is a realistic prospect of conviction, they should not apply an arithmetical “51% rule”; rather, they should ask whether a conviction is “more likely than not” (see paragraph 164 above).",
"266. It is not in dispute that States should be permitted to have a threshold evidential test to prevent the financial and emotional costs of a trial being incurred where there are weak prospects of success. In Gürtekin and Others v. Cyprus ((dec.), nos. 60441/13 and 2 others, 11 March 2014) the Court implicitly recognised this:",
"“A prosecution, particularly on such a serious charge as involvement in mass unlawful killings, should never be embarked upon lightly as the impact on a defendant who comes under the weight of the criminal justice system is considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Given the presumption of innocence enshrined in Article 6 § 2 of the Convention, it can never be assumed that a particular person is so tainted with suspicion that the standard of evidence to be applied is an irrelevance. Rumour and gossip are a dangerous basis on which to base any steps that can potentially devastate a person ’ s life.” (§ 27)",
"267. Moreover, for the following reasons the Court considers that Contracting States should be accorded a certain margin of appreciation in setting that threshold.",
"268. Firstly, in setting the threshold evidential test the domestic authorities are required to balance a number of competing interests, including those of the victims, the potential defendants and the public at large and those authorities are evidently better placed than the Court to make such an assessment. In this regard, it is clear that the threshold applied by prosecutors in England and Wales is not an arbitrary one. On the contrary, it has been the subject of frequent reviews, public consultations and political scrutiny. In particular, detailed reviews of the Code were carried out in 2003, 2010 and 2012. It is also a threshold that applies across the board, that is, in respect of all offences and by whomsoever they were potentially committed.",
"269. Secondly, there is no uniform approach among Contracting States with regard to the threshold evidential test employed in their legal systems. A written threshold evidential test exists in at least twenty-four Contracting States (see paragraph 176 above). In principle, in twenty of those States the threshold test focuses on the sufficiency of evidence against the suspect; however, in practice it is impossible to state with any certainty that the prosecutorial decision-makers in those States do not also take into consideration the prospect of securing a conviction. In the four countries where the test expressly focuses on the prospect of conviction, the tests differ. In Austria, the test is “the likelihood of conviction”; in Iceland, the question is whether the evidence is “sufficient or probable for conviction”; in the former Yugoslav Republic of Macedonia, it is whether there exists “enough evidence from which the prosecutor can expect a conviction”; and in Portugal, “a reasonable possibility of imposing a penalty at trial” (see paragraph 178 above).",
"270. In any event, the threshold evidential test has to be viewed in the context of the criminal justice system taken as a whole. While the threshold adopted in England and Wales may be higher than that adopted in certain other countries, this reflects the jury system that operates there. Once a prosecution has been brought, the judge must leave the case to the jury as long as there is “some evidence” on which a jury properly directed could convict, even if that evidence is “of a tenuous nature” (this being the so ‑ called Galbraith test – see paragraph 166 above). As weak or unmeritorious cases cannot be filtered out by the trial judge, the threshold evidential test for bringing a prosecution may have to be a more stringent one. In this regard, it is significant that other common-law countries appear to have adopted a similar threshold to the one applied by prosecutors in England and Wales (see paragraphs 182 - 85 above).",
"271. In the circumstances, it cannot be said that the threshold evidential test in England and Wales was so high as to fall outside the State ’ s margin of appreciation. In Brecknell, a case concerning Northern Ireland, the Court indicated that Article 2 did not require States to prosecute cases where it was not apparent that prosecution would have any prospect of success (see paragraph 260 above). This is very similar to the test of “realistic prospect of conviction” applied in England and Wales and the fact that it has subsequently been interpreted by the domestic courts and authorities to mean that a conviction should be “more likely than not” does not, in the Court ’ s opinion, suffice to bring it outside the State ’ s margin of appreciation. In any case, it is impossible to state with any certainty that the test in England and Wales is higher than those employed in the four member States which also have a threshold focusing on the prospect of conviction (see paragraph 178 above).",
"272. The applicant has suggested that the threshold should be lower in cases involving the use of lethal force by State agents. However, there is nothing in the Court ’ s case-law to support this proposition. Although Gürtekin did not concern unlawful killing by State agents, in that case the Court made it clear that the fact that a crime engaging Article 2 of the Convention was particularly “serious” (in that case, mass killings) was not a sufficient reason to prosecute individuals regardless of the strength of the evidence. On the contrary, it found that since the consequences of a prosecution on such serious charges would be particularly severe for any defendant, it should not be lightly embarked upon (see paragraph 266 above).",
"273. The same considerations apply in cases concerning the use of lethal force by State agents. It is true that public confidence in both the law-enforcement agencies and the prosecution service could be undermined if State agents were not seen to be held accountable for the unjustifiable use of lethal force. However, such confidence would also be undermined if States were required to incur the financial and emotional costs of trial in the absence of any realistic prospect of conviction. The authorities of the respondent State are therefore entitled to take the view that public confidence in the prosecutorial system is best maintained by prosecuting where the evidence justifies it and not prosecuting where it does not (see paragraph 217 above).",
"274. In any case, it is clear that the domestic authorities have given thorough consideration to lowering the threshold in cases engaging the responsibility of the State, but decided that it would be both unfair and inconsistent to place an increased burden on potential defendants in these cases. Nevertheless, they did ensure that a number of safeguards were built into the system in cases of police shootings and deaths in custody: the DPP personally reviews all charging decisions; in all cases other than the most straightforward a decision not to prosecute has to be reviewed by independent counsel; the prosecutor has to write to the family of the victim to explain his or her decision; and the family has to be offered a meeting with the prosecutor to explain the decision (see paragraph 220 above). While it is true that there are not frequent prosecutions for police killings in the United Kingdom (as submitted by the third-party intervener at paragraph 228 above), this can be explained by the extremely restrictive policy on the use of firearms by State agents (see paragraph 221 above). As the Government have pointed out, between 2003/04 and 2012/13, the annual number of police operations resulting in the discharge of weapons has always been in single figures, even though the annual number of operations in which the use of weapons has been authorised has ranged from ten thousand to twenty thousand (see paragraph 221 above).",
"275. Furthermore, in the present case it is by no means certain or even likely that individual police officers could have been prosecuted had the Galbraith test been the threshold evidential test for bringing a prosecution against them (that is, if there only had to be some evidence, even if it was of a tenuous character). Indeed, on the facts of the present case the contrary is so, given that the self-same test was used by the coroner, an independent judicial officer, in deciding whether to leave a verdict of unlawful killing to the jury and, after hearing seventy-one witnesses, he concluded that the test was not satisfied in relation to any of the individual police officers concerned (see paragraphs 103 - 27 above). That being said, even if individual prosecutions had been possible had the threshold evidential test been the Galbraith test, it would not follow that the threshold in England and Wales was so high as to be in breach of Article 2.",
"276. In light of the above, the Court does not consider that the threshold evidential test applied in England and Wales constituted an “institutional deficiency” or failing in the prosecutorial system which precluded those responsible for the death of Mr de Menezes from being held accountable.",
"( γ ) Review of prosecutorial decisions",
"277. As already noted, a decision not to prosecute is susceptible to judicial review in England and Wales but the power of review is to be sparingly exercised; the courts can only interfere if a prosecutorial decision is wrong in law (see paragraph 165 above).",
"278. Nevertheless, the Court is not persuaded by the applicant ’ s argument that the scope of review is too narrow. In Gürtekin (cited above, § 28) the Court noted that the procedural obligation in Article 2 did not necessarily require that there should be judicial review of investigative decisions, although such reviews were doubtless a reassuring safeguard of accountability and transparency. The Court further noted that it was not its role to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States which may well vary in their approach and policies. Likewise, in Mustafa Tunç and Fecire Tunç (cited above, § 233), the Court held that while the intervention of a court or a judge enjoying sufficient statutory safeguards of independence was a supplementary element enabling the independence of the investigation as a whole to be guaranteed, it was not in itself an absolute requirement.",
"279. According to the information available to the Court, the decision not to prosecute is susceptible to some form of judicial review or appeal to a court of law in at least twenty-five Contracting States and in these countries the standard of review varies considerably. In seven of these countries the decision must first be contested before a hierarchical superior in the prosecution service. In twelve countries, the decision of the prosecutor may only be contested before such a hierarchical superior (see paragraph 181 above). Consequently, it cannot be said that there is any uniform approach among member States with regard either to the availability of review or, if available, the scope of that review.",
"280. In England and Wales there was, at the relevant time, a right to have prosecutorial decisions judicially reviewed by an independent court. In view of the fact that the prosecutorial decision in the case at hand was made by a senior independent prosecutor, having first taken independent legal advice, and the reasons for that decision were fully explained to the family of the deceased, the Court finds nothing in its case-law which would support the applicant ’ s assertion that Article 2 required the Administrative Court to have greater powers of review. In any event, the Court notes that in the present case the Administrative Court had regard to this Court ’ s case-law, in particular the requirement of “careful scrutiny” enunciated in Öneryıldız. Moreover, it did not simply find that the prosecutor ’ s decision had not been irrational; although not required to go so far, it expressly indicated that it agreed with the prosecutor ’ s conclusions (see paragraph 98 above).",
"281. In light of the above, the Court does not consider that the scope of judicial review of prosecutorial decisions in England and Wales could be described as an “institutional deficiency” which impacted upon the ability of the domestic authorities to ensure that those responsible for the death of Mr de Menezes were held to account.",
"(δ) Partial conclusion",
"282. Accordingly, having regard to the criminal proceedings as a whole, the applicant has not demonstrated that there existed any “institutional deficiencies” in the criminal justice or prosecutorial system which gave rise – or were capable of giving rise – to a procedural breach of Article 2 of the Convention on the facts of the instant case.",
"(iii) Overall conclusion on the applicant ’ s Article 2 complaint",
"283. The facts of the present case are undoubtedly tragic and the frustration of Mr de Menezes ’ family at the absence of any individual prosecutions is understandable. However, it cannot be said that “any question of the authorities ’ responsibility for the death ... was left in abeyance” (compare, for example, Öneryıldız, cited above, § 116, in which there had been no recognition of the responsibility of the public officials for the death of the applicant ’ s relatives ). As soon as it was confirmed that Mr de Menezes had not been involved in the attempted attack on 21 July 2005, the MPS publicly accepted that he had been killed in error by SFOs. A representative of the MPS flew to Brazil to apologise to his family face-to-face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the OCPM were subsequently considered in depth by the IPCC, the CPS, the criminal court and the coroner and jury during the inquest. Later, when his family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation.",
"284. As the Government have pointed out, sometimes lives are lost as a result of failures in the overall system rather than individual error entailing criminal or disciplinary liability. Indeed, in McCann and Others the Court implicitly recognised that in complex police operations failings could be institutional, individual or both. In the present case, both the institutional responsibility of the police and the individual responsibility of all the relevant officers were considered in depth by the IPCC, the CPS, the criminal court, the coroner and the inquest jury. The decision to prosecute the OCPM as an employer of police officers did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State ’ s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test in respect of any criminal offence. Nevertheless, institutional and operational failings were identified and detailed recommendations were made to ensure that the mistakes leading to the death of Mr de Menezes were not repeated. In its Review Note the CPS clearly stated that Operation THESEUS 2 had been badly handled from the moment it passed from Commander McDowall to Commander Dick; that a lack of planning had led to the death of Jean Charles de Menezes; and that the institutional and operational failures were “serious, avoidable, and led to the death of an innocent man”.",
"285. These institutional failures resulted in the conviction of the OCPM for offences under the 1974 Act, which the applicant did not consider to be a sufficiently weighty offence to satisfy the procedural requirements of Article 2 of the Convention. However, this is not a case of “manifest disproportion” between the offence committed and the sanction imposed (see, for example, Kasap and Others, cited above, § 59; A. v. Croatia, cited above, § 66; and Ali and Ayşe Duran, cited above, § 66 ). The cases in which the Court found such “manifest disproportion” are cases in which individuals were found guilty of serious offences but given excessively light punishments. In the present case an independent prosecutor weighed all the evidence in the balance and decided that there was only sufficient evidence to prosecute the OCPM for offences under the 1974 Act. Moreover, having found the OCPM to be guilty as charged, there is no evidence before the Court to indicate that the “punishment” (a fine of 175,000 pounds sterling (GBP) and costs of GBP 385,000) was excessively light for offences of that nature.",
"286. Consequently, having regard to the proceedings as a whole, it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation into the shooting of Mr de Menezes which was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible.",
"287. In light of this conclusion, it is not necessary for the Court to consider the role of private prosecutions or disciplinary proceedings in fulfilling the State ’ s procedural obligations under Article 2 of the Convention.",
"288. Accordingly, the Court finds that in the present case no violation of the procedural aspect of Article 2 of the Convention has been established.",
"II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION",
"289. The applicant complained that the decision not to prosecute any individual for the death of her cousin also constituted a procedural violation of Article 3 of the Convention.",
"290. In the absence of any evidence to suggest that Mr de Menezes was subjected to ill-treatment within the meaning of Article 3, the Court considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ TOGETHER WITH ARTICLES 2 AND/OR 3",
"291. The applicant further complained that as the investigation into Mr de Menezes ’ death was incapable of leading to the prosecution of any individual, she had been denied an effective remedy in respect of her Article 2 and Article 3 complaints.",
"292. As the essence of the applicant ’ s complaint is that no individual was prosecuted for her cousin ’ s death, the Court considers that it more properly falls to be considered under the procedural aspect of Article 2 of the Convention.",
"293. Accordingly, the Court also considers this complaint to be manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention."
] |
298 | Dulaş v. Turkey | 30 January 2001 | The applicant submitted that in November 2003 gendarmes had carried out a search in her village and set fire to the houses, including hers. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave. According to the Turkish Government, the operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam by the PKK (Kurdish Workers’ Party), a terrorist organisation. | The Court found in particular that the destruction of the applicant’s home and possessions by security forces amounted to inhuman treatment contrary to Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It held that, even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms treatment contrary to this provision. Noting the circumstances in which the applicant’s home and possessions had been destroyed as well as her personal circumstances, the Court considered that the destruction of the applicant’s home and possessions by security forces must have caused her suffering of sufficient severity to categorise the acts complained of as inhuman. Moreover, having established that security forces were responsible for the destruction of the applicant’s home and possessions, the Court also held that there had been a violation of Article 8 (right to respect for home) of the Convention and a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"7. The facts of the case, particularly concerning events on or about 8 November 1993 when the gendarmes carried out an operation at Çitlibahçe, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.",
"The Commission heard witnesses in Ankara on 7 February 1997. These included the applicant; Avni Dulaş her son; and Emin Bulen, a villager. The Commission also had regard to the oral evidence given by witnesses on 3 and 4 July 1996 in the case of Çakıcı (see Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV), which concerned the same operation. This included the testimony of İzzet Çakıcı, whose brother had disappeared after being taken into custody by the gendarmes; Remziye Çakıcı, a villager and spouse of the disappeared person; Fevzi Okatan, previously muhtar of the village; Ertan Altınoluk the gendarme commander of the operation; and Mehmet Bitgin, a villager.",
"8. The Commission’s findings of fact are set out in its report of 6 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).",
"A. The Commission’s findings of fact",
"9. Çitlibahçe was in a district in which terrorist activity was intense in 1993. The PKK used to come to the village, holding meetings and taking food by force. The security forces made regular visits and operations were not uncommon. They told the villagers not to give food to the PKK.",
"10. The applicant, Avni Dulaş and Remziye Çakıcı all recalled an incident in July 1993 when villagers were forced by the security forces to pull up their tobacco crops. Although there was some disparity amongst the witnesses as to how this was done, the witnesses’ accounts were similar in stating that the tobacco crops were destroyed by order of the security forces. The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops. The Commission did not make any finding in regard of this aspect as it was not the subject-matter of any specific complaint.",
"11. Shortly before 8 November 1993, PKK terrorists went to the village of Dadaş in the Hazro district and took away five teachers, the imam and the imam’s brother. All, save one of the teachers, were shot. The imam’s brother, though wounded, survived.",
"12. Following the discovery of the bodies of the teachers, the gendarmes at Hazro gathered information from their contacts and sources as to what had happened and who had been involved. They had descriptions of the villagers in the area who had been assisting the PKK in holding the group of teachers. On 8 November 1993, an operation, under the command of Lieutenant Altınoluk, was carried out by the Hazro gendarmes in Çitlibahçe, while gendarmes from Lice went to Bağlan nearby.",
"13. Concerning what happened during the operation at Çitlibahçe, the Commission’s Delegates had earlier found Lieutenant Altınoluk to be an evasive witness, with a volubly unhelpful response to questioning. They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations, which were often contradictory and inconsistent. On the other hand, the Delegates had found that the villagers, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who gave eyewitness accounts, were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions. Their evidence was found to support the testimony of the witnesses heard in this case. In this regard, the Commission’s Delegates found the applicant to be a convincing witness, an elderly, simple and unsophisticated lady who was on the whole credible. Her oral testimony was largely consistent with the statement given by her to the Human Rights Association shortly after the incident. While there were some inconsistencies in her accounts, the Commission considered that they could be attributed to the applicant’s advanced years and the passage of time since the events in question. Her evidence accorded in essentials with that of her son Avni Dulaş and the villager Emin Bilen.",
"14. The Commission found that the Hazro gendarmes included Çitlibahçe in the operation since they intended to look for and take into custody Ahmet Çakıcı, who, as a person already under suspicion of involvement in PKK activities, would be likely to have information about the kidnap group that passed through the village.",
"15. When the gendarmes arrived at the village, early in the morning, they left their vehicles outside and entered. They gathered the men together in one place and the women in another. Ahmet Çakıcı had hidden. A search was carried out by the gendarmes, who also started setting fire to houses. Ahmet Çakıcı was found and taken into custody. He was last seen by the witnesses being taken by village guards and soldiers to the vehicles.",
"16. The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers. They set fire to her house, which had seven rooms and was made of timber. The family stored provisions, crops and wheat inside and these, along with the furniture and other household goods, were destroyed. About fifty houses in the village were burned down. She stated that once they had caught Ahmet Çakıcı the gendarmes left. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave.",
"17. Having regard to the evidence as a whole, the Commission accepted the evidence of the applicant as regards its principal elements. It did not find the matters referred to by the Government as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses, which its Delegates assessed in generally positive terms. While the Commission took note of the applicant’s age, its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence.",
"18. The Commission found in conclusion that the applicant’s property, furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of Çitlibahçe on 8 November 1993. This led to the evacuation of the village. The possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions).",
"19. The applicant and other villagers went to Diyarbakır after the operation. Accompanied by her son and three or four other villagers, the applicant went to the Human Rights Association. She made a statement and thumbprinted it.",
"20. Sometime later, the applicant was summoned to a police station. In his evidence to the Delegates, her son, Avni Dulaş remembered that she had been summoned to the public prosecutor’s office in about the summer of 1995. He accompanied her there. She had been asked to make a statement. The public prosecutor read out of a file, stating that she had complained to Europe about Turkey. He told the Delegates that he thought the prosecutor was trying to put pressure on his mother.",
"B. The Government’s submissions on the facts",
"21. The Government emphasised the terrorism which was prevalent in this region from the early 1990’s and created a public danger threatening the life of the nation. The PKK had killed thousands of innocent victims and exerted intolerable pressure on the local population. The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam.",
"22. The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on 8 February 1993. She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission. He issued a decision of non-jurisdiction, transferring the file to the Hazro governor. The Hazro Administrative Council began an investigation and found that her claims were unsubstantiated.",
"23. The Government submitted that the applicant’s various accounts, oral and written, were inconsistent and implausible, in particular the details purportedly noted down by the Human Rights Association in her application to the Commission.",
"C. New material",
"24. On 11 May 2000, the Government submitted a copy of the statement taken by the Diyarbakır public prosecutor from the applicant via an interpreter on 10 October 1995. This had not been provided to the Commission.",
"25. According to the statement, thumbprinted by the applicant, the letter from the Ministry of Justice, the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them. She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement. As regarded the events, she could not remember the exact date but about two years before 20 or more army vehicles had come to Çitlibahçe, with soldiers and village guards. They rounded up the villagers and set fire to the houses. After the village burned down, she went to Diyarbakır.",
"26. The statement recorded that she was shown the application and letter of authority and asked about them. She stated the thumbprints were hers. She said that she thought her application was going to Ankara to claim her rights. She was illiterate and ignorant and did not know anything about European human rights. She made her statement to them as she thought this would get something done about the damage which she had suffered. She wanted the State to vindicate her rights. She did not want to start a case in Europe in the way that he <the public prosecutor> had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Administrative liability",
"27. Article 125 of the Turkish Constitution provides as follows:",
"“All acts or decisions of the administration are subject to judicial review ...",
"The administration shall be liable to indemnify any damage caused by its own acts and measures.”",
"28. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.",
"29. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:",
"“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”",
"B. Criminal responsibility",
"30. The Turkish Criminal Code makes it a criminal offence",
"– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),",
"– to oblige an individual through force or threats to commit or not to commit an act (Article 188),",
"– to issue threats (Article 191),",
"– to make an unlawful search of an individual’s home (Articles 193 and 194),",
"– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),",
"– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or",
"– to damage another’s property intentionally (Articles 526 et seq.).",
"31. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.",
"32. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).",
"33. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.",
"C. Provisions on compensation",
"34. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.",
"35. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.",
"36. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.",
"D. Provisions on emergency measures",
"37. Extensive powers have been granted to the Regional Governor of the State of Emergency by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.",
"38. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces.",
"39. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:",
"“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”",
"According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.",
"THE LAW",
"I. the court’s assessment of the facts",
"40. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1214, § 78).",
"41. The Government argued that the Commission gave undue weight to the evidence of the applicant and the other villager witnesses whose evidence was in their view unreliable and inconsistent. The Court observes that the Government’s points concerning these witnesses were taken into consideration by the Commission in its report, which approached its task of assessing the evidence with the requisite caution, giving detailed consideration to the elements which supported the applicant’s claims and those which cast doubt on their credibility. It does not find that the criticisms made by the Government raise any matter of substance which might warrant the exercise of its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission (see paragraphs 9-20 above).",
"II. THE GOVERNMENT’S PRELIMINARY OBJECTION",
"42. The Government submitted that the applicant had not used any domestic remedy, not even lodging a criminal complaint, in respect of her allegations. Her only excuse for this was an alleged fear of reprisals. The applicant had available to her an administrative remedy regarding the strict liability of the State for protecting the citizen from damage, as well as the possibility pursuing a civil action for damages.",
"43. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65 ‑ 67).",
"44. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which remedies operate, as well as the personal circumstances of the applicant (see the Akdivar and Others v. Turkey judgment, cited above, p. 1211, § 69, and the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-I, p. 907, §§ 65-66).",
"45. Regard must therefore be had in this case to the situation which existed in south-east Turkey at the time of the events complained of by the applicant, which was characterised by violent confrontations between the security forces and members of the PKK (see the Mentes and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 58). In such a situation, as the Court has recognised in previous cases, there may be obstacles to the proper functioning of the system of the administration of justice (see the Akdivar and Others v. Turkey judgment, cited above, pp. 1211, § 70).",
"46. The Court recalls that, despite the extent of the problem of village destruction, there appeared in these previous cases to be no example of compensation being awarded in respect of allegations that property had purposely been destroyed by members of the security forces or of prosecutions having been brought against them in respect of such allegations. Furthermore, there had consistently been a general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred. The Government have provided no information since that would lead the Court to reach any different conclusion (see the Selçuk and Asker v. Turkey judgment, cited above, p. 908, § 68).",
"47. Accordingly, the Court finds that it has not been demonstrated by the Government with sufficient certainty that effective and accessible domestic remedies existed for complaints such as the applicant’s. Having regard to the circumstances in which her house and property, along with others in her village, were destroyed, the Court considers it understandable if the applicant considered it pointless to attempt to secure satisfaction through national legal channels. The insecurity and vulnerability of the applicant following the destruction of her home is also of some relevance in this context (see the Selçuk and Asker judgment, cited above, p. 908, § § 70-71).",
"48. The Court concludes that there existed special circumstances which dispensed the applicant from the obligation to exhaust domestic remedies. It follows that the Government’s preliminary objection on non-exhaustion must be dismissed.",
"III ALLEGED VIOLATION OF ARTICLE 3 of the CONVENTION",
"49. The applicant invoked Article 3 of the Convention, which provides:",
"“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”",
"50. The applicant submitted that the circumstances in which she had been forced from her house, which was burned in front of her eyes, and forcibly evicted so that she was left destitute and without security amounted as a minimum to inhuman and degrading treatment.",
"51. The Government rejected this complaint as being without any basis.",
"52. Article 3, as the Court has frequently underlined, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15 (see, inter alia, the Aksoy v. Turkey judgment, p. 2278, § 62).",
"53. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52).",
"54. The applicant in the present case was aged over 70 at the time of the events. Her home and property were destroyed before her eyes, depriving her of means of shelter and support, and obliging her to leave the village and community, where she had lived all her life. No steps were taken by the authorities to give assistance to her in her plight.",
"55. Having regard to the manner in which her home was destroyed and her personal circumstances therefore, the Court finds that the applicant must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3 (see also the Selçuk and Asker v. Turkey judgment, cited above, p. 910, §§ 77-78).",
"56. The Court concludes that there has been a violation of Article 3 of the Convention.",
"IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION and article 1 of protocol no. 1",
"57. The applicant complained of the destruction of her home and property, invoking Article 8 of the Convention and Article 1 of Protocol No. 1, which provide:",
"Article 8:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 1 of Protocol No. 1:",
"“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.",
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”",
"58. The applicant submitted that the destruction of her home, property and possessions represented a serious violation of her right to respect for private and family life, her right to respect for home and her right to peaceful enjoyment of property. Further, the expulsion from her home and the fact that she cannot return to her village represented a serious interference with her lifestyle and a continuing violation of her right to peaceful enjoyment of her possessions. She contended that the expulsion from her village constituted separate and additional violations of both Articles above.",
"59. The Government submitted the applicant’s allegations had no factual foundation and that there was no substantiation of her claims that the security forces had burned and destroyed her house and goods.",
"60. The Court has found it established that the applicant’s house and property were deliberately destroyed by the security forces, obliging her to leave her village. There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted particularly grave and unjustified interferences with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions (see also the Mentes and Others v. Turkey judgment, cited above, p. 2711, § 73; the Selçuk and Asker v. Turkey judgment, cited above, p. 911, § 86).",
"61. The Court, accordingly, finds violations of Article 8 of the Convention and Article 1 of Protocol No. 1.",
"V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"62. The applicant complained that she has not had an effective remedy within the meaning of Article 13 of the Convention, which provides:",
"“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"63. The applicant, referring to the previous village destruction cases, submitted that she had no effective remedy available to her in respect of her complaints. There were undoubted practical difficulties and inhibitions barring villagers like the applicant from obtaining redress in south-east Turkey, where broad emergency powers had been conferred on the Emergency Governors and their subordinates. Public prosecutors had never brought any prosecutions concerning the village destructions and in this case conducted no investigation, referring the matter to an Administrative Council, which was a non-judicial body lacking in independence.",
"64. The Government argued that the applicant could have taken administrative or civil proceedings seeking damages or made a criminal complaint to the public prosecutor, which constituted effective remedies within the meaning of Article 13 of the Convention.",
"65. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy v. Turkey judgment, cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, pp. 1895-96, § 103; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).",
"66. Where an individual has an arguable claim that her home and possessions have been purposely destroyed by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigation procedure (see the Mentes and Others v. Turkey judgment, cited above, p. 2715, § 89).",
"67. On the basis of the evidence adduced in the present case, the Court has found that the applicant’s home and property were destroyed, disclosing violations of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. The applicant’s complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113).",
"68. The Court refers to its findings above that it has not been established with sufficient certainty that the remedies referred to by the Government provided in the circumstances of this case any effective prospect of obtaining redress (see paragraph 47 above). Furthermore, while the applicant did not approach any domestic authority with her complaints before introducing her application to the Commission, it appears that, following communication of this application to the Government on 27 February 1995, the public prosecutor summoned the applicant (see paragraphs 20 and 22). A statement taken by him dated 10 October 1995 has been provided, thumbprinted by the applicant, in which she maintained her claim that soldiers had burned her home. It is not apparent however that the public prosecutor took any other investigative step, before issuing a decision of non-competence and referring it to the Administrative Council. The Court has already found in a number of cases that this body made up of civil servants, hierarchically dependent on the governor, an executive officer linked to the security forces under investigation, cannot be regarded as independent (see the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1731-33, §§ 77-82, and the Oğur v. Turkey [GC] no. 21594/93, §§ 85-93, ECHR 1999-III). No thorough or effective investigation was therefore conducted into the applicant’s allegations.",
"69. The Court concludes therefore that there has been a breach of Article 13 of the Convention.",
"Vi. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION",
"70. The applicant invoked Article 18 of the Convention which provides:",
"“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”",
"71. The applicant argued that the enforced evacuation of 2-3 million people from villages in the south-east of Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention.",
"72. The Government denied this assertion.",
"73. Having regard to its findings above, the Court does not consider it necessary to examine this complaint separately.",
"ViI. Alleged practices by the authorities in violation of the convention",
"74. The applicant maintained that there existed in Turkey an officially tolerated practice of destroying villages and failing to provide effective remedies, which aggravated the breach of which she had been victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies.",
"75. Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities.",
"VIII. ALLEGED VIOLATION OF former ARTICLE 25 OF THE CONVENTION",
"76. Finally, the applicant complained that she had been subject to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now replaced by Article 34), which provided:",
"“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”",
"77. The applicant submitted that she had been summoned by the public prosecutor, who asked her about her application to the Commission and put pressure on her.",
"78. The Government argued that the public prosecutor was justified in summoning the applicant in order to pursue his own investigation into her complaints. He had to question her about her application as it was the basis for opening his own file.",
"79. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v. Turkey judgment, cited above, p. 1219, § 105; the Aksoy v. Turkey judgment cited above, p. 2288, § 105; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; and Ergı v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1784, § 105). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see the above mentioned Kurt v. Turkey judgment, loc. cit. ).",
"Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 25 § 1 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt v. Turkey judgments, cited above, p. 1219, § 105 and pp. 1192-93, § 160, respectively). In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention ( ibid .).",
"80. In the instant case, the Court recalls that the Government had not provided any information to the Commission about the authorities’ contacts with the applicant and that the Commission reached its finding of undue interference on the basis of the oral testimony of the applicant and her son. The statement now provided to the Court (see paragraphs 24-26) indicates that the applicant was shown the statement made by her to the Human Rights Association (HRA) and the letter of authority concerning her legal representation before the Commission. It also appears that she was asked to verify her thumbprint and to verify the contents of the statement as accurate. The text of the statement also implies that the applicant was questioned as to whether she wanted to maintain an application to the Commission in Europe and whether she wished to pursue a complaint against the HRA lawyer. Though the applicant maintained that her statement to the HRA was accurate and repeated the substance of her allegation against the security forces, it does not appear that the public prosecutor pursued any questions with a view to adding to the factual detail of the applicant’s complaints.",
"81. In these circumstances, the Court is not satisfied that the interview related solely to the public prosecutor’s duty to collect information about the applicant’s complaints for the purpose of his own investigation. It also trespassed into verifying the authenticity of the applicant’s application and whether she wanted to continue it. The applicant not unreasonably must have felt intimidated by this interview and felt under pressure to withdraw complaints considered as being against the State. This constituted undue interference with her petition to the Convention organs.",
"82. The respondent State has therefore failed to comply with its obligations under former Article 25 § 1 of the Convention.",
"Ix. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"83. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Pecuniary damages",
"84. The applicant claimed pecuniary damage in respect of the loss of her house, household goods, food stuffs, loss of income and costs incurred for alternative accommodation of 76,164.84 pounds sterling (GBP).",
"85. The Government argued the applicant’s claims were out of all proportion to the value of the items listed and were, in any event, unsubstantiated and largely imaginary. Furthermore, the applicant’s allegations that her home and possessions had been destroyed by security forces were unfounded and therefore, there was no requirement to award any compensation. Any just satisfaction should not exceed reasonable limits or lead to unjust enrichment.",
"86. The Court recalls its finding that the applicant’s home and possessions were destroyed by security forces (see § 60 above). In view of this finding it is undoubtedly necessary to award compensation for pecuniary damage. However, as the applicant has not substantiated her claims as to the quantity and value of her lost property with any documentary or other evidence, the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.",
"1. House and outbuildings",
"87. The applicant claimed damages in respect of a house covering 250 square metres, which she valued at GBP 3,224.37 and a barn measuring 250 square metres and valued at GBP 2,149.58.",
"88. The Government disputed that the applicant, a villager in the rural area of Hazro, would own a house of the dimensions claimed.",
"89. The Commission has not made any findings as to the nature and size of the applicant’s house and outbuildings.",
"90. The Court notes that the Government have not provided an inspection report of the site to contradict the applicant’s figures, as in the Bilgin case (see the Bilgin v. Turkey judgment of 16 November 2000, § 142). Making its assessment on an equitable basis therefore, the Court awards an amount of GBP 5,000 in respect of the destroyed buildings, which sum is to be converted into Turkish liras at the rate applicable at the date of payment.",
"2. Other property",
"91. The applicant submitted claims in respect of 300 acres of irrigated arable land, 50 acres of dry arable land, a 20 acre fruit orchard, 30 acres of vineyards, a 50 acre tobacco field and 100 pear trees, assessed altogether at GBP 33,960.16; livestock worth in total GBP 3,731.62, household goods worth in total GBP 2,129.55 and food stuffs and tobacco stores worth an estimated value of GBP 4,824.38.",
"92. The Government submitted that the applicant’s claims were highly exaggerated and failed to reflect economic or any other reality.",
"93. The Court recalls that it has been found established that the contents of the applicant’s house had been destroyed and that, after her house had been burned, she had been obliged to leave Çitlibahçe (see paragraph 60), which must have entailed some consequential losses. The Court further recalls the Commission’s finding that the damaged household goods in the applicant’s home included a fridge, television, kitchen utensils, household goods, and produce, including tobacco, wheat, barley, lentils, and winter provisions (see paragraphs 16 and 18).",
"94. In the absence of any independent and conclusive evidence as to the applicant’s claims for other property and on the basis of principles of equity, the Court awards an amount of GBP 4,000, such sum to be converted into Turkish liras at the rate applicable at the date of payment. The Court has not awarded any sum in respect of the cultivated land and orchards in respect of which it has not been established that the applicant has been expropriated nor in respect of the livestock as it has not been established that this livestock perished as a consequence of the destruction of the applicant’s house and outbuildings.",
"3. Loss of income",
"95. The applicant claimed an amount of GBP 22,904.33 in compensation for loss of income from farming.",
"96. The Government disputed that any award of such a speculative nature should be made.",
"97. The Court is satisfied that the applicant must have suffered loss of income as a result of being forced from her home and village. In the absence of independent evidence on the size of the applicant’s landholdings and income derived therefrom, and having regard to equitable considerations, the Court awards under this head an amount of GBP 3,000, to be converted into Turkish liras at the rate applicable at the date of payment.",
"4. Alternative accommodation",
"98. The applicant claimed the reimbursement of rent to an amount of 1,401,960,860 Turkish liras (TRL) which she paid in Diyarbakır between August 1993 and June 1997 and 1,561,000,000 TRL for rent paid in İstanbul since June 1997, which corresponds to GBP 3,204.61 for a 60 month period.",
"99. The Government considered these claims excessive.",
"100. In the absence of documentary substantiation of this part of the applicant’s claim and having regard to the information at its disposal concerning the rates for rented accommodation, the Court awards the applicant on an equitable basis for costs of alternative housing an amount of GBP 600, such sum to be converted into Turkish liras at the rate applicable at the date of payment.",
"B. Non-pecuniary damage",
"101. Referring to the destruction of her home and possessions, expulsion from her village and her inability to return there, the applicant claimed GBP 50,000 for non-pecuniary damage.",
"102. The Government, rejecting that any violations had occurred, submitted that no award for non-pecuniary damage should be awarded and that, if such an award was to be made, the Court should take into account the economic circumstances prevailing in Turkey.",
"103. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 (see §§ 56, 61 and 69). Additionally, the applicant was hindered in the effective exercise of her right of petition under the Convention (see § 82).",
"104. The Court awards the applicant GBP 10,000 for non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment.",
"C. Costs and expenses",
"105. The applicant claimed a total of GBP 17,881.40 for fees and costs incurred in bringing the application, less legal aid received from the Council of Europe of 7,500 French francs (FRF). A sum of GBP 5,075.16 was claimed in respect of fees and costs incurred by lawyers in Turkey and GBP 3,000 in respect of the Kurdish Human Rights Project (KHRP).",
"106. The Government submitted that the claims for costs and fees were excessive and unsubstantiated. They disputed that any sums should be awarded in respect of the role of the KHRP.",
"107. The Court is not persuaded that the fees claimed in respect of the KHRP were necessarily incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, the Court awards the applicant the sum of GBP 14,900 together with any value-added tax that may be chargeable, less the 7,500 FRF received by way of legal aid from the Council of Europe, such sum to be paid into the sterling bank account in the United Kingdom as set out in her just satisfaction claim.",
"D. Default interest",
"108. The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of the present judgment, namely 7.5% per annum."
] |
299 | Klass and Others v. Germany | 6 September 1978 | In this case the applicants, five German lawyers, complained about legislation in Germany empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that, due to the threat of sophisticated forms of espionage and terrorism, some legislation granting powers of secret surveillance was, under exceptional conditions, “necessary in a democratic society” in the interests of national security and/or the prevention of disorder or crime. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.",
"All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \"the G 10\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).",
"11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).",
"Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.",
"12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:",
"\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\" (ibid, pp. 16-17).",
"13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.",
"On this point, the Agent of the Government made the following declaration before the Court:",
"\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:",
"At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\"",
"The contested legislation",
"14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\". Under the same provision, these rights were to lapse \"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\".",
"15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.",
"The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:",
"\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\"",
"16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:",
"\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.",
"(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\"",
"17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \"imminent dangers\" threatening the \"free democratic constitutional order\", \"the existence or the security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic and the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).",
"Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\" (sub-paragraph 2).",
"18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).",
"The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).",
"Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).",
"19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \"the G 10 Commission\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.",
"20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.",
"The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).",
"21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.",
"The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).",
"The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.",
"The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.",
"For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.",
"22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:",
"\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\"",
"The official statement of reasons accompanying the Bill contains the following passage in this connection:",
"\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...",
"The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\" (Bundestag document V/1880 of 13 June 1967, p. 8).",
"23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).",
"The Agent of the Government admitted that this remedy might be employed only on rare occasions.",
"24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.",
"25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.",
"Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).",
"These provisions are not, however, in issue in the present case."
] | [
"PROCEEDINGS BEFORE THE COMMISSION",
"26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.",
"On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:",
"\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\"",
"27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:",
"\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.",
"As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\"",
"The Commission then expressed the opinion:",
"- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \"civil rights\";",
"- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \"criminal charge\";",
"- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).",
"The report contains various separate opinions.",
"28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:",
"\"I ... invite the Court",
"to find that the application was inadmissible;",
"in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\"",
"She repeated these concluding submissions at the hearing on 10 March 1978.",
"29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:",
"\"May it please the Court to say and judge",
"1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;",
"2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\"",
"AS TO THE LAW",
"I. ON ARTICLE 25 PARA. 1 (art. 25-1)",
"30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \"inadmissible\". They argued that the applicants could not be considered as \"victims\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:",
"\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\"",
"In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.",
"31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \"victims\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.",
"The Delegates considered that the Government were requiring too rigid a standard for the notion of a \"victim\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.",
"The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.",
"32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \"Belgian Linguistic\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).",
"The present case concerns, inter alia, the interpretation of the notion of \"victim\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).",
"33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \"any alleged breach\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \"to be the victim of a violation ... of the rights set forth in (the) Convention\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \"Belgian Linguistic\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).",
"34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.",
"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.",
"35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.",
"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.",
"In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:",
"\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\"",
"This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).",
"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.",
"37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).",
"At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \"victims\".",
"38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \"(claim) to be the victim of a violation\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.",
"Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.",
"II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)",
"39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).",
"41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).",
"Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \"private life\" and \"correspondence\" referred to by this provision.",
"In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \"interference by a public authority\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.",
"The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.",
"42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.",
"43. In order for the \"interference\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \"in accordance with the law\". This requirement is fulfilled in the present case since the \"interference\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.",
"44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \"necessary in a democratic society in the interests of national security\" and/or \"for the prevention of disorder or crime\". Before the Court the Government submitted that the interference was additionally justified \"in the interests of ... public safety\" and \"for the protection of the rights and freedoms of others\".",
"45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \"imminent dangers\" threatening \"the free democratic constitutional order\", \"the existence or security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic or the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).",
"46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.",
"On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.",
"47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.",
"48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.",
"49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).",
"Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.",
"50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.",
"The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.",
"51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \"contact-persons\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.",
"Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).",
"52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).",
"As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).",
"53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.",
"The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).",
"54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \"form of political control\", inadequate in comparison with the principle of judicial control which ought to prevail.",
"It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \"interference\" resulting from the contested legislation to what is \"necessary in a democratic society\".",
"55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.",
"56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.",
"The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.",
"Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.",
"The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.",
"57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.",
"The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.",
"In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).",
"58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.",
"The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \"interference\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \"interference\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).",
"59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.",
"The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.",
"The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.",
"60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.",
"III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"61. The applicants also alleged a breach of Article 13 (art. 13) which provides:",
"\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.",
"63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.",
"64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \"are violated\" is to have an effective remedy before a national authority even where \"the violation has been committed\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \"violation\" has occurred. However, a person cannot establish a \"violation\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \"effective remedy before a national authority\" to everyone who claims that his rights and freedoms under the Convention have been violated.",
"65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \"an effective remedy before a national authority\" within the meaning of Article 13 (art. 13).",
"The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.",
"66. The Court observes firstly that the applicants themselves enjoyed \"an effective remedy\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.",
"67. As regards the issue whether there is \"an effective remedy\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \"national authority\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.",
"In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.",
"68. The concept of an \"effective remedy\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \"necessary in a democratic society\" for any one of the purposes mentioned in Article 8 (art. 8).",
"The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).",
"69. For the purposes of the present proceedings, an \"effective remedy\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \"effective\" in this limited sense.",
"70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.",
"71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).",
"72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).",
"IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)",
"73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:",
"\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"",
"74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \"civil right\", and to the laying of a \"criminal charge\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \"civil\" or the \"criminal\" head.",
"75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).",
"Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.",
"As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.",
"The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).",
"The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated."
] |
300 | Klass and Others v. Germany | 6 September 1978 | In this case the applicants, five German lawyers, complained in particular about legislation in Germany empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them. | The Court held that there had been no violation of Article 8 of the Convention, finding that the German legislature was justified to consider the interference resulting from the contested legislation with the exercise of the right guaranteed by Article 8 § 1 as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 § 2). The Court observed in particular that powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. Noting, however, that democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction, the Court considered that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications was, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime. | Legal professional privilege | Secret surveillance | [
"10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.",
"All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as \"the G 10\"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ).",
"11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).",
"Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.",
"12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia:",
"\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\" (ibid, pp. 16-17).",
"13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.",
"On this point, the Agent of the Government made the following declaration before the Court:",
"\"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement:",
"At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure.\"",
"The contested legislation",
"14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained \"the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic\". Under the same provision, these rights were to lapse \"when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order\".",
"15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.",
"The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:",
"\"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective.\"",
"16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:",
"\"(1) Secrecy of the mail, post and telecommunications shall be inviolable.",
"(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives.\"",
"17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against \"imminent dangers\" threatening the \"free democratic constitutional order\", \"the existence or the security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic and the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).",
"Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only \"the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use\" (sub-paragraph 2).",
"18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ).",
"The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).",
"Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).",
"19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called \"the G 10 Commission\"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.",
"20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.",
"The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).",
"21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.",
"The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).",
"The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.",
"The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.",
"For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.",
"22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:",
"\"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures.\"",
"The official statement of reasons accompanying the Bill contains the following passage in this connection:",
"\"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...",
"The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ...\" (Bundestag document V/1880 of 13 June 1967, p. 8).",
"23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).",
"The Agent of the Government admitted that this remedy might be employed only on rare occasions.",
"24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.",
"25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.",
"Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).",
"These provisions are not, however, in issue in the present case."
] | [
"PROCEEDINGS BEFORE THE COMMISSION",
"26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention.",
"On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention:",
"\"... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25).\"",
"27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated:",
"\"The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities.",
"As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims.\"",
"The Commission then expressed the opinion:",
"- by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion \"civil rights\";",
"- unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion \"criminal charge\";",
"- by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13).",
"The report contains various separate opinions.",
"28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion:",
"\"I ... invite the Court",
"to find that the application was inadmissible;",
"in the alternative, to find that the Federal Republic of Germany has not violated the Convention.\"",
"She repeated these concluding submissions at the hearing on 10 March 1978.",
"29. For their part, the Delegates of the Commission made the following concluding submissions to the Court:",
"\"May it please the Court to say and judge",
"1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act;",
"2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them.\"",
"AS TO THE LAW",
"I. ON ARTICLE 25 PARA. 1 (art. 25-1)",
"30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was \"inadmissible\". They argued that the applicants could not be considered as \"victims\" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows:",
"\"The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ...\"",
"In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention.",
"31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be \"victims\" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court.",
"The Delegates considered that the Government were requiring too rigid a standard for the notion of a \"victim\" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication.",
"The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention.",
"32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the \"Belgian Linguistic\" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157).",
"The present case concerns, inter alia, the interpretation of the notion of \"victim\" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25).",
"33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission \"any alleged breach\" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim \"to be the victim of a violation ... of the rights set forth in (the) Convention\". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the \"Belgian Linguistic\" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48).",
"34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court ’ s view, the effectiveness ( l ’ effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.",
"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.",
"35. In the light of these considerations, it has now to be ascertained whether, by reason of the particular legislation being challenged, the applicants can claim to be victims, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case.",
"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions.",
"In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning:",
"\"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ...\"",
"This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25).",
"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 (art. 25), since otherwise Article 8 (art. 8) runs the risk of being nullified.",
"37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court ’ s judgment (see paragraph 11 above). To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 (art. 8).",
"At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as \"victims\".",
"38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to \"(claim) to be the victim of a violation\" of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions.",
"Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate.",
"II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)",
"39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows:",
"\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"",
"40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above).",
"41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1).",
"Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of \"private life\" and \"correspondence\" referred to by this provision.",
"In its report, the Commission expressed the opinion that the secret surveillance provided for under the German legislation amounted to an interference with the exercise of the right set forth in Article 8 para. 1 (art. 8-1). Neither before the Commission nor before the Court did the Government contest this issue. Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual ’ s right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menance of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an \"interference by a public authority\" with the exercise of the applicants ’ right to respect for private and family life and for correspondence.",
"The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.",
"42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.",
"43. In order for the \"interference\" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been \"in accordance with the law\". This requirement is fulfilled in the present case since the \"interference\" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself.",
"44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was \"necessary in a democratic society in the interests of national security\" and/or \"for the prevention of disorder or crime\". Before the Court the Government submitted that the interference was additionally justified \"in the interests of ... public safety\" and \"for the protection of the rights and freedoms of others\".",
"45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against \"imminent dangers\" threatening \"the free democratic constitutional order\", \"the existence or security of the Federation or of a Land\", \"the security of the (allied) armed forces\" stationed on the territory of the Republic or the security of \"the troops of one of the Three Powers stationed in the Land of Berlin\", the responsible authorities may authorise the restrictions referred to above (see paragraph 17).",
"46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.",
"On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society.",
"47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.",
"48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.",
"49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).",
"Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.",
"50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.",
"The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention.",
"51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed \"contact-persons\" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation.",
"Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above).",
"52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above).",
"As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above).",
"53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission.",
"The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above).",
"54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a \"form of political control\", inadequate in comparison with the principle of judicial control which ought to prevail.",
"It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the \"interference\" resulting from the contested legislation to what is \"necessary in a democratic society\".",
"55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.",
"56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.",
"The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.",
"Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.",
"The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.",
"57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality.",
"The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated.",
"In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above).",
"58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.",
"The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the \"interference\" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the \"interference\". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above).",
"59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it.",
"The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue.",
"The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the \"Belgian Linguistic\" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, \"Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend\". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.",
"60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention.",
"III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)",
"61. The applicants also alleged a breach of Article 13 (art. 13) which provides:",
"\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"",
"62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated.",
"63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law.",
"64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms \"are violated\" is to have an effective remedy before a national authority even where \"the violation has been committed\" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a \"violation\" has occurred. However, a person cannot establish a \"violation\" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an \"effective remedy before a national authority\" to everyone who claims that his rights and freedoms under the Convention have been violated.",
"65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants \"an effective remedy before a national authority\" within the meaning of Article 13 (art. 13).",
"The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances.",
"66. The Court observes firstly that the applicants themselves enjoyed \"an effective remedy\", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law.",
"67. As regards the issue whether there is \"an effective remedy\" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a \"national authority\", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts.",
"In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.",
"68. The concept of an \"effective remedy\", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be \"necessary in a democratic society\" for any one of the purposes mentioned in Article 8 (art. 8).",
"The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13).",
"69. For the purposes of the present proceedings, an \"effective remedy\" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are \"effective\" in this limited sense.",
"70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible.",
"71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above).",
"72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13).",
"IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)",
"73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides:",
"\"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"",
"74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a \"civil right\", and to the laying of a \"criminal charge\" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the \"civil\" or the \"criminal\" head.",
"75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above).",
"Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance.",
"As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article.",
"The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above).",
"The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated."
] |
301 | Gillan and Quinton v. the United Kingdom | 12 January 2010 | This case concerned the police power in the United Kingdom, under sections 44-47 of the Terrorism Act 2000, to stop and search individuals without reasonable suspicion of wrongdoing. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants were born in 1977 and 1971 respectively and live in London.",
"A. The searches",
"7. Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations.",
"8. At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes.",
"9. At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a photographer's jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it.",
"B. The judicial review proceedings",
"1. The High Court",
"10. The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review. Prior to the High Court hearing, the Secretary of State offered the applicants a procedure which would have enabled the High Court to review in closed session, with the benefit of submissions from a special advocate, the underlying intelligence material which had been the basis for the Secretary of State's decision to confirm the authorisation (section 46 of the 2000 Act: see paragraphs 30-31 below). The applicants, however, indicated that they did not consider it necessary or appropriate to proceed in this way, since they did not intend to challenge the assessment that there was a general threat of terrorism against the United Kingdom. Instead, they contended, first, that the authorisation and confirmation in question, since they formed part of a rolling programme of authorisations covering the entire London area, were ultra vires and unlawful, since there were a number of clear indications that Parliament had intended an authorisation under section 44 of the 2000 Act (“a section 44 authorisation ”) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. Secondly, the applicants claimed that the use of the section 44 authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. Thirdly, the applicants claimed that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention.",
"11. On 31 October 2003, the Divisional Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held that Parliament had envisaged that a section 44 authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of State were not ultra vires.",
"Brooke LJ held as follows, in connection with the applicants'second ground of challenge:",
"“The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism.",
"It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power.",
"We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that, in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed .... But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future. ... ”",
"Finally, the court found that the powers were provided for by law and not disproportionate, given the risk of terrorist attack in London.",
"2. The Court of Appeal",
"12. The Court of Appeal gave judgment on 2 9 July 2004 ([2004] EWCA Civ 1067). As to the proper interpretation of the legislation, it held that:",
"“It is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed.",
"We do not find it surprising that the word'expedient'should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism.",
"Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.”",
"13. The Court of Appeal did not consider it necessary to determine whether Article 5 § 1 applied, since it held that any deprivation of liberty was justifiable under Article 5 § 1(b). However it held that, if the point had to be decided, the better view was that there was no deprivation of liberty, taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another. Nor did it consider that Articles 10 and 11 applied. Although the applicants'evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration, those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the Convention and, properly used as a measure of limited duration to search for articles connected with terrorism, the stop and search power would not impinge on the rights to freedom of expression or assembly.",
"14. The respondent Commissioner of the Metropolitan Police had conceded that the stop and search measures amounted to interferences with the applicants'Article 8 rights, and the Court of Appeal accepted that this was the correct approach, describing section 44 as “an extremely wide power to intrude on the privacy of the members of the public”. It considered that the interference was, however, in accordance with the law, for the following reasons:",
"“'The law'that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of'law'in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law. ”",
"Furthermore, given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of the power could not, as a matter of general principle, be said to be disproportionate : the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred. Having regard to the nature of the arms fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, the police were entitled to decide that section 44 powers should be exercised in connection with it. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants.",
"3. The House of Lords",
"15. The House of Lords, on 8 March 2006, unanimously dismissed the applicants'appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing:",
"“ 1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44 -47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance. ”",
"16. The first issue before the House of Lords was as to the proper construction of the statute. The applicants had argued that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism. Lord Bingham rejected this interpretation, since the word “expedient” in the section had a meaning quite distinct from “necessary”. He continued:",
"“ 14. ... But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give'expedient'a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.",
"15. The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants'challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.”",
"17. Lord Bingham rejected the applicants'contention that the “rolling programme” of authorisations had been ultra vires, as follows:",
"“ 18. The appellants'second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ... found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as'a special case, having vulnerable assets and relevant residential pockets in almost every borough'. ”",
"18. On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure. However, since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested, handcuffed, confined or removed to any different place, such a person should not be regarded “ as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting ”. Article 5 did not, therefore, apply.",
"19. As to the question whether Article 8 was applicable, Lord Bingham was:",
"“ 28. ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that'private life'has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level. ”",
"20. Lord Bingham did not consider that the power to stop and search under sections 44-45, properly used in accordance with the statute and Code A, could be used to infringe a person's rights under Articles 10 or 11 of the Convention.",
"21. Despite his doubts as to the applicability of Articles 5, 8, 10 or 11, Lord Bingham went on to consider whether the stop and search powers complied with the requirement of “lawfulness” under the Convention, as follows:",
"“ 34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.",
"35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as'law'rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.”",
"22. Lord Hope of Craighead agreed with Lord Bingham. In particular, he considered that the stop and search power complied with the principle of legality for the following reasons:",
"“ 48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary?",
"49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised.",
"50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word'terrorism'for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to.",
"51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law ... on the ground that it is arbitrary?",
"...",
"55. ... The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily.",
"56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality.",
"57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority. ”",
"23. Lord Brown of Eaton-under-Heywood observed, inter alia:",
"“ 74. Given the exceptional (although, as Lord Bingham has explained, neither unique nor particularly novel) nature of [the section 44] power (often described as the power of random search, requiring for its exercise no reasonable suspicion of wrongdoing), it is unsurprisingly hedged about with a wide variety of restrictions and safeguards. Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these. It can be used only by a constable in uniform (section 44 (1) and (2)). It can be used only to search for terrorist-connected articles (section 45(1) (a)). The person searched must not be required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves (section 45(3)). The search must be carried out at or near the place where the person or vehicle is stopped (section 45(4)). And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search (section 45(4)). Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure, and radically though it departs from our traditional understanding of the limits of police power, it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties. Nevertheless, given, as the respondents rightly concede, that in certain cases at least such a procedure will be sufficiently intrusive to engage a person's article 8 right to respect for his private life, and given too that this power is clearly open to abuse—the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer's part—the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be'in accordance with the law.'",
"75. For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law (as here clearly it does in the 2000 Act); not only must that law be adequately accessible to the public (as here clearly it is —unlike, for example, the position in Malone v United Kingdom (1985) 7 EHRR 14); not only must the law be reasonably foreseeable, to enable those affected to regulate their conduct accordingly (a requirement surely here satisfied by the public's recognition, from the very terms of the legislation, that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it); but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily.",
"76. As I understand the appellants'argument, it is upon this final requirement that it principally focuses: this power, submits Mr Singh, is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse. True, he acknowledges, if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages (and, no doubt, to police disciplinary action). But, he submits, it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise. Assume, for example, that a police officer in fact exercises this power for racially discriminatory reasons of his own, how could that be established? There are simply no effective safeguards against such abuse, no adequate criteria against which to judge the propriety of its use. Certainly it is provided by paragraph 2.25 of Code A (a published code issued under section 66 of the Police and Criminal Evidence Act 1984) that:'Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers'. But, say the appellants, there is simply no way of policing that instruction with regard to the exercise of so wide a random power. No way, that is, submits [counsel for the applicants], unless it is by stopping and searching literally everyone (as, of course, occurs at airports and on entry to certain other specific buildings) or by stopping and searching on a strictly numerical basis, say every tenth person. Only in one or other of these ways, the appellants'argument forces them to contend, could such a power as this be exercisable consistently with the principle of legal certainty: there cannot otherwise be the necessary safeguards in place to satisfy the Convention requirement as to'the quality of the law'...",
"77. I would reject this argument. In the first place it would seem to me impossible to exercise the section 44 power effectively in either of the ways suggested. Imagine that following the London Underground bombings last July the police had attempted to stop and search everyone entering an underground station or indeed every tenth (or hundredth) such person. Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power. That, as Lord Bingham puts it in paragraph 35 of his opinion, is not'to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting [but rather] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.'It is to be hoped, first, that potential terrorists will be deterred (certainly from carrying the tools of their trade) by knowing of the risk they run of being randomly searched, and, secondly, that by the exercise of this power police officers may on occasion (if only very rarely) find such materials and thereby disrupt or avert a proposed terrorist attack. Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action.",
"78. In his 2001 review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1989 (amended as explained by Lord Bingham in paragraph 9 of his opinion) and the Northern Ireland (Emergency Provisions) Act 1996, Mr John Rowe QC said this of the power to stop and search those entering or leaving the United Kingdom with a view to finding out whether they were involved in terrorism:",
"' The “intuitive” stop",
"37. It is impossible to overstate the value of these stops ...",
"38. I should explain what I mean by an “intuitive stop”. It is a stop which is made “cold” or “at random”—but I prefer the words “on intuition”—without advance knowledge about the person or vehicle being stopped.",
"39. I do not think such a stop by a trained Special Branch officer is “cold” or “random”. The officer has experience and training in the features and circumstances of terrorism and terrorist groups, and he or she may therefore notice things which the layman would not, or he or she may simply have a police officer's intuition. Often the reason for such a stop cannot be explained to the layman.'",
"79. Later in his review Mr Rowe noted of the more general stop and search powers originally contained in sections 13A and 13B of the 1989 Act that'these powers were used sparingly, and for good reason'. I respectfully agree that the section 44 power (as it is now) should be exercised sparingly, a recommendation echoed throughout a series of annual reports on the 2000 Act by Lord Carlile of Berriew QC, the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe—see most recently paragraph 106 of his 2005 report, suggesting that the use of the power'could be cut by at least 50 per cent without significant risk to the public or detriment to policing.'To my mind, however, that makes it all the more important that it is targeted as the police officer's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever. In short, the value of this legislation, just like that allowing people to be stopped and searched at ports, is that it enables police officers to make what Mr Rowe characterised as an intuitive stop.",
"80. Of course, as the Privy Counsellor Review Committee chaired by Lord Newton of Braintree noted in its December 2003 report on the Anti-Terrorism, Crime and Security Act 2001:",
"' Sophisticated terrorists change their profile and methods to avoid presenting a static target. For example, al Qaeda is reported to place particular value on recruiting Muslim converts because they judge them to be less likely to be scrutinised by the authorities.'",
"It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items).",
"81. Is such a conclusion inimical to Convention jurisprudence or, indeed, inconsistent with domestic discrimination law? In my judgment it is not, provided only that police officers exercising this power on the ground pay proper heed to paragraph 2.25 of Code A:",
"' The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).'",
"Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination. ”",
"C. The County Court proceedings",
"24. The applicants also commenced a claim in the County Court on 8 September 2004 for, inter alia, damages under the Human Rights Act 1998 on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of Articles 8, 10 and 11 of the Convention, to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism. The claims were stayed pending the outcome of their appeal to the House of Lords and were finally heard in February 2007. The County Court rejected the applicants'claims and determined that the power had, in respect to each of them, been properly and lawfully exercised. The applicants did not seek to appeal against this judgment."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. The introduction of the police power to stop and search without reasonable suspicion",
"25. Police officers have the power to stop and search individuals under a range of legislation. For example, section 1 of the Police and Criminal Evidence Act 1984 allows an officer who has reasonable grounds for suspicion to stop and search a person or vehicle to look for stolen or prohibited items. Section 60 of the Criminal Justice and Public Order Act 1994 allows a senior officer to authorise the stop and search of persons and vehicles where there is good reason to believe that to do so would help to prevent incidents involving serious violence or that persons are carrying dangerous instruments or offensive weapons.",
"26. The police power to stop and search at random where expedient to prevent acts of terrorism was first introduced as a response to the bombing campaign between 1992 and 1994 in and around London. Section 81 of the Criminal Justice and Public Order Act 1994 inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) in similar terms to section 44 of the 2000 Act (see paragraph 30 below), but without any requirement that the Secretary of State confirm the authorisation. The Prevention of Terrorism (Additional Powers) Act 1996 created an additional, separate power to stop and search pedestrians, under section 13B of the 1989 Act. The 1996 Act also established for the first time the confirmation procedure involving the Secretary of State.",
"B. Consideration of the need to retain the power to stop and search without reasonable suspicion",
"27. In 1995 the Government asked Lord Lloyd of Berwick, a House of Lords judge, to undertake an Inquiry into the need for specific counter-terrorism legislation in the United Kingdom following the decrease in terrorism connected to Northern Ireland. The Inquiry included consideration of whether there remained a continuing need for a power equivalent to that in sections 13A and 13B of the 1989 Act. In his Report (Cm 3420, § 10, October 1996), Lord Lloyd noted that between February and August 1996 the police in London had carried out searches of 9,700 drivers and passengers and 270 pedestrians under sections 13A and 13B of the 1989 Act. When considering whether similar powers should be retained in any permanent counter-terrorism legislation that might be enacted, he observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented :",
"“ As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.”",
"In the end Lord Lloyd recommended that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State's confirmation should be required in relation to each provision. Since the Police and Criminal Evidence Act Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for additional safeguards.",
"C. The Terrorism Act 2000",
"28. The 2000 Act was intended to overhaul, modernise and strengthen the law relating to terrorism in the light, inter alia, of Lord Lloyd's Inquiry.",
"“Terrorism” is defined, in section 1, as follows:",
"“(1) In this Act'terrorism'means the use or threat of action where -",
"(a) the action falls within subsection (2),",
"(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and",
"(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.",
"(2) Action falls within this subsection if it -",
"(a) involves serious violence against a person,",
"(b) involves serious damage to property,",
"(c) endangers a person's life, other than that of the person committing the action,",
"(d) creates a serious risk to the health or safety of the public or a section of the public, or",
"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.",
"(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.",
"(4) In this section -",
"(a)'action'includes action outside the United Kingdom,",
"(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,",
"(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and",
"(d)'the government'means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.",
"(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”",
"29. Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist.",
"30. Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to the requirement of reasonable suspicion. These sections provide for a three stage procedure.",
"The first stage, under section 44, is authorisation :",
"“ 44 (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -",
"(a) the vehicle;",
"(b) the driver of the vehicle;",
"(c) a passenger in the vehicle;",
"(d) anything in or on the vehicle or carried by the driver or a passenger.",
"(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -",
"(a) the pedestrian;",
"(b) anything carried by him.",
"(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.",
"(4) An authorisation may be given -",
"(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;",
"(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;",
"(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;",
"(d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.",
"(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.”",
"By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days. The existence and contents of section 44 authorisations are not within the public domain.",
"31. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation but may withhold his confirmation if he considers the area covered to be too wide.",
"32. The third stage, under section 45, involves the exercise of the stop and search power by a police constable:",
"“(1) The power conferred by an authorisation under section 44(1) or (2) -",
"(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and",
"(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.",
"(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.",
"(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.",
"(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.",
"(5) Where -",
"(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and",
"(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),",
"the written statement shall be provided.",
"(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.”",
"33. These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).",
"34. Sections 44-47 of the 2000 Act came into force on 19 February 2001. It was disclosed during the domestic proceedings in the present case that successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time.",
"D. The Code of Practice",
"35. A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document.",
"36. The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided:",
"“1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.",
"1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.”",
"Paragraph 3.5 of the Code provided:",
"“ There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ... ”",
"Certain steps were required by paragraph 3.8 to be taken before the search:",
"“3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:",
"(a) that they are being detained for the purposes of a search;",
"(b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;",
"(c) the legal search power which is being exercised; and",
"(d) a clear explanation of;",
"(i) the purpose of the search in terms of the article or articles for which there is a power to search; ...",
"(iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.”",
"Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11:",
"“3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained .... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances.",
"3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.”",
"A record was required to be made at the time or as soon as practicable (paragraph 4.1):",
"“4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.”",
"E. Reports by Lord Carlile of Berriew QC on the operation of the section 44 stop and search power",
"37. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once every 12 months and Lord Carlile of Berriew QC has been appointed as Independent Reviewer to prepare the annual report, inter alia.",
"38. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said:",
"“ No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons. ”",
"39. In Lord Carlile's “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”, he commented on the section 44 power as follows:",
"“67. Part 5 of the Act contains counter-terrorism powers available to the police to deal with operational situations. During 2003 these powers have become more controversial, particularly because of increased levels of protest arising from the war against Iraq. In particular, section 44 has been the cause of considerable anxiety and debate.",
"...",
"75. Last year I asserted that no particular problems had been drawn to my attention from the operation of these provisions during 2001. The opposite has been the case in relation to 2003. I have received many complaints, some from organisations and others from individuals. I cannot comment here on individual cases ...",
"...",
"79. In London there have been rolling 28 day authorisations for the whole of the area policed by the Metropolitan police and the City of London Police. I have seen detailed figures for the use of the powers in every part of that area. In some parts of London the section 44/45 powers have been used very little. In others, with obvious targets such as an airport or Parliament, there has been more extensive use, as one would expect. There is no part of London where the powers have not been used at all between the beginning of February 2001 and the end of August 2003, the period for which I have statistics. There are huge differences between the boroughs in this context: I take this to be evidence of specific operational decisions by the police. The nature of London means that a terrorist may well live in one borough, have associates in others, and have targets in yet others. Having said that, at present there is no other city with continuous section 44 authorisations.",
"...",
"83. Lord Justice Brooke's judgment [in the present case: see paragraph 11 above] exactly reflects my own concerns on this front. Whilst the section 44 authorisations for the Metropolitan Police area, and for parts of Gloucestershire and neighbouring areas, at the material times were justifiable and proof from judicial review, their use gave some rise for anxiety. That anxiety arises from the contents of section 45, and the difficulty faced in real-time situations by constables confronted by complex legislative decisions.",
"84. Pursuant to section 45, a section 44/45 search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be'for articles of a kind which could be used in connection with terrorism'. This calls at least theoretically for officers to pause for thought between (a) stop, (b) commencement of search, and (c) during search. If the search commences as defined in section 45(1)(a), but the officer realises at any given moment that in reality he is searching for non-terrorism articles, he should change gear into a non-[Terrorism Act 2000] search procedure. This is asking a lot of an officer who may have been briefed in short form at a testing scene.",
"...",
"86. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough. The use of section 44 authorisations elsewhere in the country has been relatively sparing. However, I would urge the Home Office and [the Association of Chief Police Officers] ... to produce new, short, clear and preferably nationally accepted guidelines for issue to all officers in section 44 authorised areas. All briefings should remind officers that, even where there is a section 44 authorisation, other stop and search powers may be judged more appropriate with some individuals stopped. Whilst agreeing with the Chief Constable of Gloucestershire that the powers are drawn widely, and with the Metropolitan Police that they have great potential utility to protect the public, in using the powers appropriate attention should be given to the important right to protest within the law.”",
"40. In his report on the operation of the 2000 Act in 2005 (May 2006), Lord Carlile commented:",
"“ 91. In 2003 and 2004 I received many complaints, some from organisations and others from individuals, about the operation of sections 44 and 45. These and some litigation have been taken seriously by the police. As a result, I have been consulted upon and have been able to contribute to work towards providing a clearer understanding throughout police forces of the utility and limitations of sections 43-45.",
"92. The crucial thing is that police officers on the ground, exercising relatively unfamiliar powers sometimes in circumstances of some stress, should have a greater degree of knowledge of the scope and limitations of those powers. Terrorism related powers should be used for terrorism related purposes; otherwise their credibility is severely damaged. An incident on the 31st March 2006 at a hospital in Staffordshire yet again highlighted this. In a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations.",
"...",
"95. ... [Section 44 ] authorisations have been used extensively in 2005, unsurprisingly in the immediate aftermath of the events of the 7th and 21st July.",
"96. Although available in Scotland, to date section 44 powers have never been authorised by a Scottish police force. I had anticipated that they might have been deployed for the 2005 meeting of the G8 Summit in Scotland. They were not. London apart, I doubt that there is evidence that Scotland is less at risk from terrorism than other parts of the country. This perpetuates the question of why section 44 is needed in England and Wales if it is not required in Scotland. There is no other provision specific to Scots Law to explain the difference of approach. At the very least this demonstrates that other powers are on the whole perfectly adequate for most purposes.",
"97. My view continues as expressed a year ago - that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles. This view has not been affected by the events of July 2005.",
"98. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search.",
"99. The Home Office scrutinises applications critically. It is a sound approach for them to refuse unless the circumstances are absolutely clear.",
"100. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. London is a special case, having vulnerable assets and relevant residential pockets in almost every borough, and fairly extensive use is understandable. However, I emphasise that they should be used sparingly. Evidence of misuse, especially in an arbitrary way, will not find favour with the courts and could fuel demands for repeal. It involves a substantial encroachment into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”",
"41. In his report on the operation of the 2000 Act in 2006 (June 2007), Lord Carlile observed:",
"“ 113. My view continues as expressed in the past two years – that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas but not others with strikingly similar risk profiles.",
"114. I remain sure that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Its utility has been questioned publicly by senior Metropolitan Police staff with wide experience of terrorism policing.",
"115. The Home Office continues to scrutinise applications critically. I think that they could and should refuse more often. There are instances in which public order stop and search powers are as effective – and they are always more palatable to those stopped and searched.",
"116. In my view section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. However, I emphasise again that they should be used sparingly. They encroach into the reasonable expectation of the public at large that they will only face police intervention in their lives (even when protesters) if there is reasonable suspicion that they will commit a crime. ”",
"42. In his report into the operation of the 2000 Act in 2007 (June 2008), Lord Carlile noted that the criticism of the section 44 power had increased further during the preceding year and continued:",
"“130. I am sure beyond any doubt that section 44 could be used less and expect it to be used less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever related to a terrorism offence. ... ”",
"Nonetheless, he concluded that the powers remained necessary and proportionate to the continuing terrorist threat.",
"43. Finally, in his report on the operation of the 2000 Act in 2008 (June 2009), Lord Carlile commented:",
"“140. Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person's freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice; but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to'balance'the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing.",
"141. Useful practice guidance on stop and search in relation to terrorism was produced during 2008 by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers [ACPO]. This guidance emphasises crucial requirement, which include that –",
"● These powers are exceptional",
"● The geographical extent of section 44 authorisations must be clearly defined",
"● The legal test is expediency for the purposes of preventing acts of terrorism",
"● Community impact assessments are a vital part of the authorisation process",
"● The Home Secretary should be provided with a detailed justification for a section 44 authorisation",
"● Chief officers must expect the Home Office to apply detailed and rigorous scrutiny in considering whether to confirm authorisations",
"● Leaflets should be made available to the public in an area where the power is being deployed",
"● Officers must keep careful records",
"...",
"146. My view remains as expressed in the past four years, but reinforced: that I find it hard to understand why section 44 authorisations are perceived to be needed in some force areas, and in relation to some sites, but not others with strikingly similar risk profiles. Where other stop and search powers are adequate to meet need, there is no need to apply for or to approve the use of the section. Its primary purpose is to deal with operationally difficult places at times of stress, when there is a heightened likelihood of terrorists gaining access to a significant location. For example, I have no criticism of its careful use at the time of a major demonstration at London Heathrow Airport : terrorists might well use the opportunity of participation in such a demonstration to enter, photograph or otherwise reconnoitre, and otherwise add to their knowledge of a potential target such as Heathrow. Nor do I criticise its use at or near critical infrastructure or places of especial national significance.",
"147. I now feel a sense of frustration that the Metropolitan Police still does not limit their section 44 authorisations to some boroughs only, or parts of boroughs, rather than to the entire force area. I cannot see a justification for the whole of the Greater London area being covered permanently, and the intention of the section was not to place London under permanent special search powers. However, a pilot project is about to start in which the section is deployed in a different way. I shall examine that project closely. The alarming numbers of usages of the power (between 8,000 and 10,000 stops per month as we entered 2009) represent bad news, and I hope for better in a year's time. The figures, and a little analysis of them, show that section 44 is being used as an instrument to aid non-terrorism policing on some occasions, and this is unacceptable.",
"148. I am sure that safely it could be used far less. There is little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. Whilst arrests for other crime have followed searches under the section, none of the many thousands of searches has ever resulted in conviction of a terrorism offence. Its utility has been questioned publicly and privately by senior Metropolitan Police staff with wide experience of terrorism policing.",
"149. It should not be taken that the lesser usage of section 44 in places other than London means that such places are less safe, or more prone to terrorism. There are different ways of achieving the same end. The effect on community relations of the extensive use of the section is undoubtedly negative. Search on reasonable and stated suspicion, though not in itself a high test, is more understandable and reassuring to the public.",
"150. I emphasise that I am not in favour of repealing section 44. Subject to the views expressed above, in my judgment section 44 and section 45 remain necessary and proportional to the continuing and serious risk of terrorism. ”",
"F. Ministry of Justice statistics on race and the use of the section 44 stop and search power",
"44. Under section 95 of the Criminal Justice Act 1991, the Secretary of State is under an obligation to publish information relating to the criminal justice system with reference to avoiding discrimination on the ground of race. In a report published pursuant to this obligation in October 2007, “ Statistics on Race and the Criminal Justice System – 2006 ”, the Ministry of Justice recorded that:",
"“ A total of 44,543 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34% (Table 4.6). Searches of Asian people increased from 3,697 to 6,805 (up 84%), searches of Black people increased from 2,744 to 4,155 (up 51%). Searches of people in the Other ethnic group also increased, from 1,428 in 2004/5 to 1,937 in 2005/6 (up 36%), as did searches of White people, increasing from 24,782 in 2004/5 to 30,837 in 2005/6 (up 24%). Over half of searches took place in the Metropolitan Police area and 15% in the City of London, compared to 40% and 20% respectively in 2004/5. The large increases in comparison to the 2004/5 figures may be explained, in part, by the London bombings of 7 July 2005. As with stop and searches under s. 1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000.",
"In 2005/6, 25,479 searches of vehicle occupants were made under section 44 (1) (Table 4.7). Seventy-five per cent of those searched in 2005/6 were White, 11% Asian and 8% Black. There was a slight increase in the proportion of White people searched and a slight fall in the proportion of Black people searched under this provision compared to 2004/5. Forty-six arrests of vehicle occupants in connection with terrorism resulted from section 44 (1) searches, compared to 38 in the previous year. Arrests under non-terrorism legislation following the use of this provision remained constant between 2004/5 and 2005/6 at 246. Most arrests following a section 44 (1) search were in London. This most likely reflects the increased use of the powers in London.",
"The number of stop and searches of pedestrians under section 44(2) nearly doubled between 2004/5 and 2005/6 with 19,064 stop and searches recorded in 2005/6. This increase was accounted for by the increase in use of the power in London. Use of the power in areas outside of London decreased by 19% between 2004/5 and 2005/6. In 2005/6, 61% of people stopped under section 44(2) were White compared to 74% in 2004/5 and 72% in 2003/4. The proportions for Black and Asian people fell to 11% and 21% respectively in 2005/6. In 2005/6, 59 arrests in connection with terrorism resulted from section 44 (2) searches compared to 24 in the previous year and five in 2003/4. Arrests under non-terrorist legislation rose from 153 in 2004/5 to 212 in 2005/6.”",
"45. In the report published the following year, in July 2008, “ Statistics on Race and the Criminal Justice System – 2006/7 ”, the Ministry of Justice recorded that:",
"“ A total of 37,000 searches were made under section 44(1) and 44(2) of the Terrorism Act 2000 in 2006/7 compared with 45,000 in 2005/6 and represents a decrease of 16.5% (Table 4.6). Over a third of police force areas did not record any use of this power in 2006/7. Searches decreased for all ethnic groups but the biggest fall was for Asian people (19.1%), followed by those in the White group (15.8%), those in the Other category (15.4%), and lastly Black people (13.3%). Nine areas did increase the number searched under Section 44 and this included the [ Metropolitan Police] who registered an 11.3% rise. This contrasts with the City of London where there was a 69.2% fall. The proportion of Asian people searched under Section 44 in the Met police area (19.1%) exceeded the proportion of Black persons (12.5%).",
"In 2006/7 23,000 searches of vehicle occupants were made under Section 44(1) (Table 4.7). Seventy-two per cent of those searched during this period were White, a fall of three percentage points on the previous year, 10% Black (up 2 percentage points), and 13% Asian (up 2 percentage points). Fourteen arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 46 the previous year. Four of these involved Black persons and four Asians. Arrests under non-terrorism legislation following the use of this provision have remained constant between 2004/5 and 2006/7 at 246.",
"The number of stop and searches of pedestrians under Section 44(2) has reduced by just over 28% between 2005/6 and 2006/7 from 19,000 to 13,700. A large part of this fall can be accounted for by the decrease in the City of London from 3,149 to 425 over the two year period. The proportion of White pedestrians searched under Section 44(2) has increased since the previous year from 61% of the total to 66%. Asian people remain the highest BME group both searched (17%) and subsequently arrested in connection with terrorism (29%) .”",
"46. The most recent report, “ Statistics on Race and the Criminal Justice System 2007/8 ”, published in April 2009, recorded a significant increase in the use of the section 44 powers:",
"“ A total of 117,278 searches of people were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2007/08 compared with 37,197 in 2006/07 and represents an increase of 215% (Table 4.6). Just under a fifth (19%) of police force areas did not record any use of this power in 2007/08. Searches increased for all ethnic groups but the biggest rise was for Black people (322%), followed by those in the Asian group (277%), those in the Other category (262%), and lastly White people (185%).",
"The large rise in the number of stop and searches made under the Terrorism Act largely reflects increases in the use of this power by the Metropolitan police. In 2007/08 the Metropolitan police were responsible for 87% of searches made under section 44 (1) and 44 (2) of the Terrorism Act 2000, compared to 68% of those made in 2006/07. The Metropolitan police used this power on 76,496 more occasions than in the previous year, which represents an increase of 303%. This rise is directly attributable to the robust response by the Metropolitan police to the threat of terror related networks in London since the Haymarket bomb in 2007.",
"Tables 4.7 and 4.8 show selected police force areas, where the total number stopped and searched under s. 44 (1) & (2) of the Terrorism Act 2000 exceeded 1,000 people in 2007/08.",
"In 2007/08, 65,217 searches of vehicle occupants were made under Section 44 (1) (Table 4.7). Sixty-four per cent of those searched during this period were White, a fall of eight percentage points on the previous year, 13% were Black (up 3 percentage points), and 16% were Asian (up 4 percentage points). Thirty-four arrests of vehicle occupants in connection with terrorism resulted from Section 44 (1) searches, compared to 14 the previous year. Nine of these involved Black persons and 10 Asians. Arrests under non-terrorism legislation following the use of stop and search under Section 44 (1) increased to 665 from 246 in 2006/07.",
"The number of stop and searches of pedestrians under Section 44 (2) has increased by 280% between 2006/07 and 2007/08 from 13,712 to 52,061 (Table 4.8). As previously mentioned, this large increase can be attributable to the Metropolitan police's robust response to the Haymarket bombs. The proportion of White pedestrians searched under Section 44 (2) has decreased since the previous year from 66% of the total to 61%. Asian people remain the highest BME group both searched (19%) and subsequently arrested in connection with terrorism (29%) .”",
"G. The Seventh Report of the Joint Committee on Human Rights",
"47. In its Report, “Demonstrating respect for rights? A human rights approach to policing protest”, published in March 2009, the Parliamentary Joint Committee on Human Rights recommended, in connection with section 44 of the 2000 Act:",
"“ Counter-terrorism powers",
"86. A significant number of witnesses expressed serious concerns at the use of counter-terrorism powers on protestors, particularly the power under section 44 of the Terrorism Act 2000 to stop and search without suspicion. Witnesses suggested that the use of the powers contravened the OSCE/ODIHR Guidelines which note:",
"Domestic legislation designed to counter terrorism or'extremism'should narrowly define these terms so as not to include forms of civil disobedience and protest; the pursuit of certain political, religious, or ideological ends; or attempts to exert influence on other sections of society, the government, or international opinion.",
"87. The National Union of Journalists complained that the police had relied on the Terrorism Act 2000 to prevent journalists from leaving demonstrations. Some witnesses noted that restrictions on peaceful protests were increasingly justified by reference to the security threat. The following comment by David Mead reflects the views of a number of witnesses:",
"... there can be no justification to call upon anti-terrorism legislation to police protests/protestors and such use debases the very real threat terrorists are capable of posing to us all.",
"88. High profile examples of the inappropriate use of counter-terrorism powers include: preventing Walter Wolfgang from re-entering the Labour Party conference in Brighton in 2005, following his physical ejection for heckling the then Foreign Secretary Jack Straw MP; and stopping and searching a protestor and a journalist at an arms fair at the Excel Centre in Docklands, East London in 2003. Less well-known examples include the use of stop and search on demonstrators at military bases or people wearing slogans on t-shirts.",
"89. The Research Defence Society and the author and commentator Richard D. North both distinguished protestors (including animal rights extremists) from terrorists. Mr North said'terrorism is a word we ought to reserve for some kind of insurgency, or guerrilla of asymmetrical warfare'. In contrast, Huntingdon Life Sciences argued in relation to protest against its activities by animal rights activists, however, that'insufficient consideration was given to counter-terrorism powers in what was widely considered in practice (but not in name) to be domestic terrorism'.",
"90. When we asked police representatives whether it was appropriate to use counter-terrorism powers against protestors, AAC Allison replied that'there are occasions when we do need to use our counter-terrorism powers: I would say that that is why we have them'.",
"91. Addressing the same question, the Minister was clear that counter-terrorism powers should only be used in relation to terrorism. He noted that the Prime Minister had ordered a review into the use of stop and search powers and as a result new guidance had been published. He pointed out, however, that:",
"If you have a big protest near a big power station or airport, [ ... ] it is very difficult to say that under no circumstances should the police in those situations ever consider using a counterterrorism power when we all know it is perfectly possible for the legitimate protestors to be infiltrated by one or two who may have other desires ...",
"92. The new guidance on stop and search noted that the powers to stop and search under sections 43 and 44 of the Terrorism Act 2000 only allow an officer to'search for articles of evidence that relate to terrorism'and that'[the section 44] power should be used sparingly'. In the light of the decision of the House of Lords in Gillan, which concerned the use of the stop and search power on protestors and journalists outside an arms fair in the Docklands in London, the guidance states that stop and search should never be used to conduct arbitrary searches but should be based on objective criteria. The guidance refers to protests, noting that section 44 may be appropriate for large public events that may be at risk from terrorism, but states'officers should also be reminded at briefings that stop and search powers under the Terrorism Act 2000 must never be used as a public order tactic.'The only reference to human rights is contained in the section of the guidance on the contents of the community impact assessment: it suggests that'the requirements of the Human Rights Act 1998'should be included in the community impact assessment. Although not specifically referring to journalists, the guidance states that the Terrorism Act 2000, even where a section 44 designation is in place, does not prevent people from taking photographs. In addition, although film and memory cards may be seized as part of a search, officers do not have a legal power to delete images or destroy film.",
"93. Whilst we accept that there may be circumstances where the police reasonably believe, on the basis of intelligence, that a demonstration could be used to mask a terrorist attack or be a target of terrorism, we have heard of no examples of this issue arising in practice. We are concerned by the reports we have received of police using counter-terrorism powers on peaceful protestors. It is not clear to us whether this stems from a deliberate decision by the police to use a legal tool which they now have or if individual officers are exercising their discretion inappropriately. Whatever the reason, this is a matter of concern. We welcome the Minister's comments that counter-terrorism legislation should not be used to deal with public order of protests. We also welcome the recommendation in the new guidance to human rights being included in community impact assessments. We recommend that the new guidance on the use of the section 44 stop and search power be amended to make clear that counter-terrorism powers should not be used against peaceful protestors. In addition, the guidance should make specific reference to the duty of police to act compatibly with human rights, including, for example, by specifying the human rights engaged by protest .”",
"H. Metropolitan police proposal to curtail use of the section 44 powers in London",
"48. In May 2009 the Metropolitan Police published a report summarising the conclusions of their review into the use of the power under section 44 of the 2000 Act. The report stated that the “ emerging findings ” from the review supported a three-layered approach to the use of the power, namely that the power should continue to be available in the vicinity of sites across London of key symbolic or strategic importance, but that elsewhere, except where authorised by a specific directive, officers should only stop and search individuals using the power under section 43 of the 2000 Act, where they had grounds to suspect that the person might be engaged in a terrorism-related offence.",
"THE LAW",
"49. The applicants complained that their being stopped and searched by the police under sections 44 -47 of the 2000 Act gave rise to violations of their rights under Articles 5, 8, 10 and 11 of the Convention.",
"Article 5 provides:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.",
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.",
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”",
"Article 8 provides:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"Article 10 provides:",
"“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.",
"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”",
"Article 11 provides:",
"“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.",
"2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”",
"I. ADMISSIBILITY",
"50. The Government submitted that the applicants had not fully exhausted domestic remedies. First, they had not pursued the offer made by the High Court to hold a closed hearing with a special advocate to assist in determining whether or not, in the light of all the evidence relating to the risk of terrorist attack, the police and Secretary of State had been justified in issuing and confirming the authorisation order under section 44 of the 2000 Act (see paragraph 10 above). Secondly, the applicants did not appeal against the County Court's judgment rejecting their claims that, on the facts, the stop and search powers had been used against them in the vicinity of the arms fair unlawfully and for an improper purpose (see paragraph 24 above). It followed, therefore, that insofar as the applicants sought to argue before the Court that either the authorisation order in question or the stop and search measures used against them by the police had not been justified on the facts, they had failed to exhaust domestic remedies.",
"51. The applicants submitted that their complaint in the proceedings before the Court related to the compatibility of the terms of the statutory scheme with the Convention; it was their contention that, even if the power was used in accordance with domestic law, it breached Convention rights. They had brought this challenge in the domestic proceedings up to and including the House of Lords. While it was correct that they had not sought before the national courts to challenge the intelligence which had led to the making of the authorisation under section 44, this did not form part of their challenge in the present application either. The County Court proceedings had been stayed until the House of Lords gave judgment. Once that judgment had been delivered, the resumed County Court proceedings were limited to determining whether the section 44 powers had been exercised in accordance with domestic law. An appeal against the County Court's judgment would not, therefore, have been an effective remedy in respect of the applicants'complaints under the Convention.",
"52. The Court notes that the applicants'complaints in the present case are focussed on the general compatibility of the stop and search powers with the above provisions of the Convention. They do not seek to challenge whether the section 44 authorisation which applied to them was justified in view of the intelligence available to the Metropolitan Police Commissioner and the Secretary of State, nor whether the constables stopped them “for the purpose of searching for articles of a kind which could be used in connection with terrorism.” Since the applicants do not, therefore, dispute that the stop and search measures used against them complied with the terms of the 2000 Act, the remedies identified by the Government would have been neither relevant nor effective in relation to the complaints before the Court. It therefore rejects the Government's preliminary objection.",
"53. The Court notes, in addition, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"II. THE MERITS",
"A. Alleged violation of Article 5 of the Convention",
"1. The parties'submissions",
"54. The applicants contended that when the police officers stopped and searched them they were subjected to a deprivation of liberty within the meaning of Article 5 § 1. It was relevant that the police officer had the power to compel compliance with the section 44 procedure and had express powers to use reasonable force and/or to detain a person who refused to submit. The applicants had had no choice as to whether or not to comply with the police officer's order and would have been liable to criminal prosecution if they had refused. There was a total restraint on their liberty: they could not choose to turn around and walk away. Moreover, this power absolutely to restrict a person's movement was provided for the purpose of securing compliance with the search power, not merely incidental to it. Whilst the procedure might sometimes be relatively brief, that was not necessarily the case, especially given the breadth of the search power and the fact that a person could be required to remain with the police officer for as long as was reasonably necessary to permit the search to be carried out.",
"It was the applicants'case that, if Article 5 did apply, the measures in question were not “lawful” and “in accordance with a procedure prescribed by law” because of the breadth of the discretion afforded to the executive.",
"55. The Government submitted that the Court had never found the exercise of a power to stop and search to constitute a deprivation of liberty within Article 5 of the Convention. Moreover, in a number of cases the Convention organs had refused to find that restrictions on liberty far more intrusive than those at issue in the present case fell within the ambit of Article 5 (the Government referred inter alia to Raimondo v. Italy, 22 February 1994, Series A no. 281 ‑ A; Trijonis v. Lithuania, no. 2333/02, 15 December 2005; Raninen v. Finland, 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII; Gartukayev v. Russia, no. 71933/01, 13 December 2005; and also Cyprus v. Turkey, no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85, § 235; X. v. Germany, no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 131; Guenat v. Switzerland, no. 2472/94, Commission decision of 10 April 1995, DR 81-B, p. 13 ). The Government argued that when the power to stop and search was looked at against this background, the ordinary exercise by the police of such a power would plainly not in usual circumstances engage Article 5, and did not do so in the applicants'cases. There were a number of specific features which argued against the applicability of Article 5 in the particular circumstances of each applicant's case. First, the duration of the searches (20 minutes in respect of the first applicant and either five or 30 minutes in respect of the second) was clearly insufficient to amount to a deprivation of liberty in the absence of any aggravating factors. Secondly, the purpose for which the police exercised their powers was not to deprive the applicants of their liberty but to conduct a limited search for specified articles. Thirdly, the applicants were not arrested or subjected to force of any kind. Fourthly, there was no close confinement in a restricted place. Fifthly, the applicants were not placed in custody or required to attend a particular location: they were searched on the spot.",
"The Government further reasoned that if, contrary to their submissions, Article 5 were held to apply, the stop and search of each applicant was lawful and justified under Article 5 § 1(b).",
"2. The Court's assessment",
"56. The Court recalls that Article 5 § 1 is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§92-93, Series A no. 39; Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93; H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR 2004 ‑ IX).",
"57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention.",
"B. Alleged violation of Article 8 of the Convention",
"1. Whether there was an interference with the applicants'Article 8 rights",
"58. The Court will first consider whether the stop and search measures amounted to an interference with the applicants'right to respect for their private life",
"a. The parties'submissions",
"59. The applicants pointed out that the Court of Appeal had described section 44 as “an extremely wide power to intrude on the privacy of members of the public” and the Metropolitan Police Commissioner had conceded in the domestic court that the exercise of the powers amounted to an interference with the individual's Article 8 rights (see paragraph 14 above). They submitted that Lord Bingham had been wrong to conclude that Article 8 was not engaged because “an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach” the requisite level of seriousness. They reasoned that a person at an airport submitted to be searched because it was known that airport officials had coercive powers and because the freedom to travel by air was conditional upon agreeing to be searched. Such a person could, therefore, choose not to travel by air or leave behind any personal items which he would not wish to have examined in public. Section 44 was, however, qualitatively different. Citizens engaged in lawful business in any public place could, without any prior notice or any reasonable suspicion of wrongdoing whatsoever, be required to submit all their personal effects to a detailed coercive examination. They could not turn away and leave, as they could if they were, for example, hesitant to enter a public building with a search at the entrance. They would have no idea in advance that they were present in an area where active section 44 powers were in force. The Court's case-law, for example Peck v. the United Kingdom, no. 44647/98, §§ 57-63, ECHR 2003-I, made it clear that an individual did not automatically forfeit his privacy rights merely by taking his personal items into a public place such as a street. Moreover, the common thread running through Article 8 was personal autonomy. That concept was substantially undermined by the police power to require submission to a coercive search in a public place, particularly since the lack of prior notice entailed that everyone had to assume that, wherever they went in public, they might be required to submit to a search.",
"60. The Government submitted that the searches of the applicants did not amount to an interference with their right to respect for their private lives. Not every act that might impinge upon a person's autonomy or physical integrity would entail such an interference ( see Costello-Roberts v. the United Kingdom, § 36, judgment of 25 March 1993, Series A no. 247-C ). Whether or not the right to private life was engaged by a particular measure impinging on a person's autonomy or physical integrity would depend both upon the seriousness of that measure and upon the degree to which the person concerned had in the circumstances acted in a sphere where public life or the interests of other people were necessarily engaged. While the Government accepted that in certain circumstances a particularly intrusive search might amount to an interference with Article 8, they submitted that a normal, respectful search under section 45 of the 2000 Act would not and that there was no interference in the applicants'cases. The applicants were not searched at home, or even in a police station, but on the spot. In accordance with the Code (see paragraph 36 above), since neither applicant was asked to remove any articles of clothing, only an examination of outer garments and bags was conducted, of the type to which passengers regularly submit at airports. The applicants were not asked for personal details beyond their names, addresses and places of birth. In both cases, the intrusion was of relatively brief duration. Moreover, the applicants had brought themselves into contact with the public sphere through their voluntary engagement with a public demonstration. The fact that in other circumstances a more intrusive search might be conducted did not enable the present applicants to complain of any interference with their rights under Article 8: the Court did not examine the possible operation of legislation in abstracto.",
"b. The Court's assessment",
"61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. In this connection, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor ( see P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX and Peck, cited above, § § 57-63 ). In Foka, cited above, § 85, where the applicant was subjected to a forced search of her bag by border guards, the Court held that “any search effected by the authorities on a person interferes with his or her private life.”",
"62. Turning to the facts of the present case, the Court notes that sections 44-47 of the 2000 Act permit a uniformed police officer to stop any person within the geographical area covered by the authorisation and physically search the person and anything carried by him or her. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves. Paragraph 3.5 of the related Code of Practice further clarifies that the police officer may place his or her hand inside the searched person's pockets, feel around and inside his or her collars, socks and shoes and search the person's hair (see paragraph 36 above). The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both (see paragraph 33 above). In the domestic courts, although the House of Lords doubted whether Article 8 was applicable, since the intrusion did not reach a sufficient level of seriousness, the Metropolitan Police Commissioner conceded that the exercise of the power under section 44 amounted to an interference with the individual's Article 8 rights and the Court of Appeal described it as “an extremely wide power to intrude on the privacy of the members of the public”. (see paragraphs 14 and 19 above).",
"63. The Government argue that in certain circumstances a particularly intrusive search may amount to an interference with an individual's Article 8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court's view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.",
"64. The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual's Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.",
"65. Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act. For the reasons above, the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008- ... ).",
"2. Whether the interference was “in accordance with the law”",
"a. The parties'submissions",
"i. The applicants",
"66. The applicants submitted that the object of the legal certainty requirement running through the Convention was to give protection against arbitrary interference by the public authorities. It followed that “law” must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power might be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions. The executive could not be granted an unfettered discretion; moreover, the scope of any discretion conferred on the executive had to be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power might be exercised. In addition, there had to be legal safeguards against abuse.",
"67. The applicants submitted that the requirement of accessibility was not met in their case. Whilst sections 44-47 of the 2000 Act were adequately accessible to the public, the authorisation and confirmation were not. Thus, a member of the public would know that a section 44 power to stop and search could be conferred on the police, but would not know at any given time or in any given place whether it had been so conferred. He could not know whether, if he went to any particular location, he would be liable to be stopped and searched and, if he were stopped and searched, he could not know whether the police officer was authorised to carry out the procedure. When, unknown to a member of the public, the power had been conferred on a constable, the constable's discretion to stop and search was broad and ill-defined, requiring no grounds of suspicion and constrained solely by the condition that it could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism.",
"68. They contended that although the 2000 Act and Code A (see paragraphs 28-36 above) informed the public of the availability and scope of the section 44 powers, if duly authorised, they did not require the fact or details of any authorisation to be publicised in any way, even retrospectively. In the applicants'view, the efficacy of the section 44 power would not be weakened by advance notification of its availability. Prior notice would reinforce the deterrent effect of the measure. Furthermore, the availability and scope of other stop and search powers, for example, at ports and borders, were publicised without undermining their efficacy. During the domestic proceedings the Government had consented to the retrospective publication of the authorisations relevant to the case, which covered the whole of the Metropolitan Police District. It could not be correct that the purpose of using the section 44 power had been “wholly undermined” because the extent of the authorisation was now known.",
"69. The applicants further alleged that there were insufficient safeguards against misuse of the power to stop and search. The Government had appointed an Independent Reviewer into the operation of the 2000 Act (see paragraphs 37-43 above). However, concerning the “extensive” deployment nationwide of section 44 powers, for example, Lord Carlile had decided that it would not be in the public interest to provide details of the reasons and events.",
"70. No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants'own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism.",
"ii. The Government",
"71. The Government submitted that the requirement of lawfulness under the Convention was met in the present case by a combination of the legislative provisions; the information given to individuals following a search under section 44; the precise instructions in the Code on how search powers were to be exercised; and the availability of court proceedings to challenge the use of those powers by the police in individual cases. Sections 44-45 of the 2000 Act were clear as to their effect. They gave notice to citizens that they might be required to submit to a stop and search and provided safeguards against abuse, well in excess of provisions of national law that the Court or Commission in cases had held to be sufficiently foreseeable in the national security context (as in, for example, Brind v. the United Kingdom (dec. ), no. 18714/91, 9 May 1994; Al-Nashif v. Bulgaria, no. 50963/99, §§ 117-129, 20 June 2002; Esbester v. the United Kingdom (dec. ), no. 18601/91, 2 April 1993).",
"72. In this regard, it was relevant that the statutory framework in sections 44-46 of the 2000 Act carefully defined and restricted the purposes for which the search powers could be used; who could issue authorisations; under what circumstances and for how long authorisations could be issued; who could confirm those authorisations; in what circumstances and for how long authorisations could be given and in what circumstances the search powers themselves could be exercised. In addition the Code, which was a public document, set out very detailed instructions on the exercise of the stop and search power. It required an officer conducting a search to explain to the individual who was stopped the precise purpose of the search, the nature of the legal power exercised and the fact and nature of any authorisation given for the search. The authorisation could be challenged by way of judicial review proceedings on the ground that it exceeded the enabling power in section 44 of the 2000 Act. If the search were claimed to have been conducted for improper purposes, or contrary to the provisions of the 2000 Act or the Code, it could be challenged by way of judicial review proceedings or in a County Court action for damages. Further protection against any arbitrary interference with individuals'rights was provided by the oversight of Lord Carlile, who was appointed as Independent Reviewer to monitor the exercise of the powers under the 2000 Act.",
"73. The Government rejected the applicants'contention that authorisations should be published in advance. First, and crucially, it would wholly undermine the purpose for which authorisations were given. Publishing details of authorisations would by implication reveal those places where such measures to protect against terrorist attack had not been put in place, identifying them as soft targets for terrorists. It would undermine the ability of the police to use stop and search powers effectively, without giving advance warning to terrorists, where they suspected terrorists to be operating. It would also assist terrorists in assessing the State's effectiveness in penetrating their networks or understanding their activities.",
"74. The Government maintained that there were adequate safeguards against the misuse of the power. The combination of oversight by the Independent Reviewer and scrutiny by the national courts fully met any assertion that the section 44-46 powers could be used arbitrarily. For example, in the applicants'case, the County Court was able to – and did – examine whether the officers used their powers under section 45 for their proper purpose, namely to look for terrorist articles. The officers were not free to act arbitrarily. The applicants had a right to cross-examine them and the court was free to form its own view about their evidence. The fact that, in the event, the County Court accepted the officers'evidence did not in any way indicate that its oversight was inadequate.",
"75. In the Government's view, the applicants'complaints in this connection were, in essence, a collateral attack on the absence of any “reasonable suspicion” requirement in sections 44-46 of the 2000 Act. But there were good reasons why officers should not have to act upon reasonable suspicion: as Lord Bingham pointed out in the House of Lords (see paragraph 21 above), this was to ensure that a constable was not deterred from stopping and searching a person whom he suspected as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It reflected the fact that intelligence rarely provided complete information about when and where a terrorist attack might occur and thus that vital decisions had to be taken on the basis of partial information.",
"b. The Court's assessment",
"76. The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008- ... ).",
"77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96).",
"78. It is not disputed that the power in question in the present case has a basis in domestic law, namely sections 44-47 of the 2000 Act (see paragraphs 28-34 above). In addition, the Code of Practice, which is a public document, sets out details of the manner in which the constable must carry out the search (see paragraphs 35-36 above).",
"79. The applicants, however, complain that these provisions confer an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice. The House of Lords considered that this discretion was subject to effective control, and Lord Bingham identified eleven constraints on abuse of power (see paragraph 16 above). However, in the Court's view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.",
"80. The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power.",
"81. The authorisation must be limited in time to 28 days, but it is renewable. It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary. However, many police force areas in the United Kingdom cover extensive regions with a concentrated populations. The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London. The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a “rolling programme” since the powers were first granted (see paragraph 34 above).",
"82. An additional safeguard is provided by the Independent Reviewer (see paragraph 37 above). However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that “section 44 could be used less and I expect it to be used less” (see paragraphs 38-43 above).",
"83. Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above).",
"84. In this connection the Court is struck by the statistical and other evidence showing the extent to which resort is had by police officers to the powers of stop and search under section 44 of the Act. The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8 (see paragraphs 44-46 above). In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.",
"85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognised. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the statistics (see paragraphs 43-44 above). There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.",
"86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.",
"87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention.",
"C. Alleged violations of Articles 10 and 11 of the Convention",
"88. The applicants further alleged that their rights to freedom of expression under Article 10, and freedom of assembly under Article 11, of the Convention were violated. It was argued that a stop and search which had the effect of delaying, even temporarily, contemporaneous reporting or filming of a protest amounted to an interference with Article 10 rights. It was further argued that the legislation itself, with its inadequate safeguards, might well have an intimidatory and chilling effect on the exercise of those rights in the form of peaceful protest and that this was precisely the position in the case of the first applicant.",
"89. The Government argued that neither the existence of the powers to stop and search nor the exercise of those powers in the particular circumstances of the applicants'case constituted an interference with their Article 10 or 11 rights.",
"90. In the light of its above conclusion that there has been a violation of Article 8, the Court does not consider it necessary to examine the applicants'remaining complaints under the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"91. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"92. The applicants submitted that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of GBP 500 each in respect of non-pecuniary damage.",
"93. The Government submitted that, in view of the short duration of the stop and search, no monetary compensation should be awarded.",
"94. The Court agrees with the Government that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.",
"B. Costs and expenses",
"95. The applicants also claimed GBP 40, 652.06, including value-added tax (VAT), for the costs and expenses incurred before the Court. These included GBP 8,178.92 costs of Liberty (charging at GBP 210 per hour for principal lawyers and GBP 111 per hour for a trainee solicitor) together with the fees of three counsel totalling GBP 32,473.14 including VAT.",
"96. The Government submitted that the hourly rates charged by the applicants'representatives and the number of hours claimed for were excessive, particularly since the issues had already been litigated in detail before the domestic courts.",
"97. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and awards made in comparable cases against the United Kingdom (see, for example, S. and Marper, cited above), the Court considers it reasonable to award the sum of EUR 35,000 covering costs for the proceedings before the Court, less EUR 1,1 50 already received by way of legal aid.",
"C. Default interest",
"98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
302 | Nada v. Switzerland | 12 September 2012 (Grand Chamber) | The Swiss Federal Taliban Ordinance was enacted pursuant to several UN Security Council Resolutions. It had the effect of preventing the applicant, an Egyptian national, from entering or transiting through Switzerland due to the fact that his name had been added to the list annexed to the UN Security Council’s Sanctions Committee of persons suspected of being associated with the Taliban and al-Qaeda. The applicant had been living in an Italian enclave of about 1.6 square kilometres surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by a lake. He claimed that the restriction made it difficult for him to leave the enclave and therefore to see his friends and family, and that it caused him suffering due to his inability to receive appropriate medical treatment for his health problems. He further found it difficult to remove his name from the Ordinance, even after the Swiss investigators had found the accusations against him to be unsubstantiated. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, and a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 8. It observed in particular that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. Furthermore, the applicant did not have any effective means of obtaining the removal of his name and therefore no remedy in respect of the violations of his rights. Lastly, the Court declared inadmissible the applicant’s complaints under Article 5 (right to liberty and security) of the Convention, finding, like the Swiss Federal Court, that the applicant had not been “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Background to the case",
"11. The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano.",
"12. He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder.",
"13. In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology.",
"14. The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture.",
"15. On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”).",
"16. On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title.",
"17. By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda.",
"18. On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them).",
"19. On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant.",
"20. On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder.",
"21. On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance.",
"22. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant.",
"23. On 10 September 2002 Switzerland became a member of the United Nations.",
"24. When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized.",
"25. On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban.",
"26. On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border.",
"27. On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him.",
"28. By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant.",
"29. On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions.",
"30. By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list.",
"31. On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”).",
"32. By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure.",
"33. On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance.",
"34. On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation.",
"35. On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list.",
"36. By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal.",
"37. In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence.",
"38. The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law ( jus cogens ), he argued that Switzerland was not obliged to implement them.",
"39. By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision.",
"40. On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting.",
"B. Federal Court judgment of 14 November 2007",
"41. By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits.",
"42. It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council.",
"43. The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression).",
"44. The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime.",
"45. However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations.",
"46. The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed.",
"47. The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens.",
"48. As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows:",
"“7.4 ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment.",
"The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)).",
"...”",
"49. The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights.",
"50. The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude ( Ermessensspielraum ) in implementing them:",
"“8.1 The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)).",
"The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)).",
"As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list.",
"Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance.",
"...",
"8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance.",
"It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights.",
"The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...”",
"51. The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows:",
"“9.1 The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity.",
"9.2 For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses.",
"United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ...",
"On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.”",
"52. Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows:",
"“10.1 Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions.",
"According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ...",
"10.2 Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation.",
"The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions.",
"The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval.",
"10.3 The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings.",
"The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.”",
"C. Developments subsequent to the Federal Court’s judgment",
"53. Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision.",
"54. On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court.",
"During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient.",
"As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council.",
"55. The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6.",
"56. On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand.",
"57. On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation.",
"58. By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation.",
"59. In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant.",
"60. On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list.",
"61. On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban.",
"62. On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009.",
"63. By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example.",
"D. Efforts made to improve the sanctions regime",
"64. The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions."
] | [
"II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE",
"A. Domestic law",
"1. Federal Constitution",
"65. Article 190 (“Applicable law”) of the Federal Constitution provides:",
"“The Federal Court and the other authorities shall be required to apply federal statutes and international law.”",
"2. Ordinance of 2 October 2000 instituting measures against persons and entities associated with Osama bin Laden, the group “al ‑ Qaeda” or the Taliban (“the Taliban Ordinance”)",
"66. The Ordinance of 2 October 2000, instituting measures against persons and entities associated with Osama bin Laden, the group “al-Qaeda” or the Taliban, has been amended several times. The relevant provisions read as follows, in the version that was in force in the period under consideration in the present case, and in particular at the time when the Federal Court delivered its judgment (14 November 2007).",
"Article 1 – Ban on supply of military equipment and similar goods",
"“1. The supply, sale or brokerage of arms of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts or accessories for the above-mentioned, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.",
"...",
"3. The supply, sale or brokerage of technical advice, assistance and training related to military activities, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited.",
"4. Paragraphs 1 and 3 above shall apply only to the extent that the Property Regulation Act of 13 December 1996, the Federal Act on War Materiel of 13 December 1996 and their respective implementing ordinances are not applicable.",
"...”",
"Article 3 – Freezing of assets and economic resources",
"“1. Assets and economic resources owned or controlled by the individuals, undertakings, groups or entities referred to in Annex 2 hereto shall be frozen.",
"2. It shall be prohibited to supply funds to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, or to make assets or economic resources available to them, directly or indirectly.",
"3. The State Secretariat for Economic Affairs (SECO) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs 1 and 2 above.",
"4. The SECO may authorise, after consulting the competent services of the Federal Department of Foreign Affairs and the Federal Department of Finance, payments from blocked accounts, transfers of frozen capital assets and the release of frozen economic resources, in order to protect Swiss interests or to prevent hardship cases.”",
"Article 4 – Mandatory declaration",
"“1. Anyone holding or managing assets acknowledged to be covered by the freezing of assets under Article 3 § 1 hereof must immediately declare them to the SECO.",
"2. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 3 § 1 hereof must immediately declare them to the SECO.",
"3. The declaration must give the name of the beneficiary, the purpose and the amount of the assets or economic resources frozen.”",
"Article 4a – Entry into and transit through Switzerland",
"“1. Entry into and transit through Switzerland shall be prohibited for the individuals listed in Annex 2 hereto.",
"2. The Federal Office for Migration may, in conformity with the decisions of the United Nations Security Council or for the protection of Swiss interests, grant exemptions.”",
"B. International law",
"1. United Nations Charter",
"67. The United Nations Charter was signed in San Francisco on 26 June 1945. The relevant provisions for the present case read as follows.",
"Preamble",
"“ We the peoples of the United Nations, determined",
"to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and",
"to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and",
"to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and",
"to promote social progress and better standards of life in larger freedom,",
"and for these ends",
"to practice tolerance and live together in peace with one another as good neighbors, and",
"to unite our strength to maintain international peace and security, and",
"to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and",
"to employ international machinery for the promotion of the economic and social advancement of all peoples,",
"have resolved to combine our efforts to accomplish these aims.",
"Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.”",
"Article 1",
"“The Purposes of the United Nations are:",
"1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;",
"...",
"3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and",
"...”",
"Article 24",
"“1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.",
"2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.",
"...”",
"Article 25",
"“The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”",
"68. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. Article 39 reads as follows:",
"“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”",
"69. Chapter XVI is entitled “Miscellaneous Provisions”. Article 103 reads as follows:",
"“In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”",
"2. Resolutions adopted by the Security Council in connection with its measures against al ‑ Qaeda and the Taliban and that are relevant to the present case",
"70. Resolution 1267 (1999) was adopted on 15 October 1999. It created the Sanctions Committee, consisting of all Security Council members. This Committee was in particular entrusted with the task of requesting all States to keep it informed of the steps taken to ensure the effective implementation of the measures required under the Resolution, namely the denial of permission for aircraft associated with the Taliban to use their territory for take-off or landing, unless the Sanctions Committee had approved the flight in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s funds and other financial resources. The relevant parts of this Resolution read as follows.",
"Resolution 1267 (1999)",
"“...",
"The Security Council,",
"Reaffirming its previous resolutions, in particular Resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998 and 1214 (1998) of 8 December 1998, and the statements of its President on the situation in Afghanistan,",
"Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,",
"Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law,",
"Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists,",
"Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security,",
"Deploring the fact that the Taliban continues to provide safe haven to [Osama bin Laden] and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations,",
"Noting the indictment of [Osama bin Laden] and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S/1999/1021),",
"Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security,",
"Stressing its determination to ensure respect for its resolutions,",
"Acting under Chapter VII of the Charter of the United Nations,",
"...",
"3. Decides that on 14 November 1999 all States shall impose the measures set out in paragraph 4 below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph 2 above;",
"4. Decides further that, in order to enforce paragraph 2 above, all States shall:",
"(a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph 6 below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj;",
"(b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need;",
"5. Urges all States to cooperate with efforts to fulfil the demand in paragraph 2 above, and to consider further measures against [Osama bin Laden] and his associates;",
"6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations:",
"...",
"7. Calls upon all States to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph 4 above;",
"8. Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph 4 above and to impose appropriate penalties;",
"9. Calls upon all States to cooperate fully with the Committee established by paragraph 6 above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this Resolution;",
"10. Requests all States to report to the Committee established by paragraph 6 above within 30 days of the coming into force of the measures imposed by paragraph 4 above on the steps they have taken with a view to effectively implementing paragraph 4 above;",
"...”",
"71. By Resolution 1333 (2000), adopted on 19 December 2000, the Security Council extended the application of the sanctions provided for under Resolution 1267 (1999) to any individuals or entities identified by the Sanctions Committee as being associated with al-Qaeda or Osama bin Laden. The Resolution further required a list to be maintained for the implementation of the United Nations sanctions. The passages that are relevant to the present case read as follows.",
"Resolution 1333 (2000)",
"“...",
"The Security Council,",
"Reaffirming its previous resolutions, in particular Resolution 1267 (1999) of 15 October 1999 and the statements of its President on the situation in Afghanistan,",
"Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,",
"Recognizing the critical humanitarian needs of the Afghan people,",
"...",
"8. Decides that all States shall take further measures:",
"(a) To close immediately and completely all Taliban offices in their territories;",
"(b) To close immediately all offices of Ariana Afghan Airlines in their territories;",
"(c) To freeze without delay funds and other financial assets of [Osama bin Laden] and individuals and entities associated with him as designated by the Committee, including those in the [al-Qaeda] organization, and including funds derived or generated from property owned or controlled directly or indirectly by [Osama bin Laden] and individuals and entities associated with him, and to ensure that neither they nor any other funds or financial resources are made available, by their nationals or by any persons within their territory, directly or indirectly for the benefit of [Osama bin Laden], his associates or any entities owned or controlled, directly or indirectly, by [Osama bin Laden] or individuals and entities associated with him including the [al-Qaeda] organization and requests the Committee to maintain an updated list, based on information provided by States and regional organizations, of the individuals and entities designated as being associated with [Osama bin Laden], including those in the [al-Qaeda] organization;",
"...",
"12. Decides further that the Committee shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate, that the prohibition imposed by paragraph 11 above shall not apply to humanitarian flights operated by, or on behalf of, organizations and governmental relief agencies on the list approved by the Committee, that the Committee shall keep the list under regular review, adding new organizations and governmental relief agencies as appropriate and that the Committee shall remove organizations and governmental agencies from the list if it decides that they are operating, or are likely to operate, flights for other than humanitarian purposes, and shall notify such organizations and governmental agencies immediately that any flights operated by them, or on their behalf, are thereby subject to the provisions of paragraph 11 above;",
"...",
"16. Requests the Committee to fulfil its mandate by undertaking the following tasks in addition to those set out in Resolution 1267 (1999):",
"(a) To establish and maintain updated lists based on information provided by States, regional, and international organizations of all points of entry and landing areas for aircraft within the territory of Afghanistan under control by the Taliban and to notify member States of the contents of such lists;",
"(b) To establish and maintain updated lists, based on information provided by States and regional organizations, of individuals and entities designated as being associated with [Osama bin Laden], in accordance with paragraph 8 (c) above;",
"(c) To give consideration to, and decide upon, requests for the exceptions set out in paragraphs 6 and 11 above;",
"(d) To establish no later than one month after the adoption of this Resolution and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above;",
"...",
"17. Calls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraphs 5, 8, 10 and 11 above;",
"...”",
"72. In Resolution 1363 (2001), adopted on 30 July 2001, the Security Council decided to set up a mechanism to monitor the measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring Group”), consisting of up to five experts selected on the basis of equitable geographical distribution.",
"73. In Resolution 1373 (2001), adopted on 28 September 2001 – following the events of 11 September 2001 – the Security Council decided that States should take a series of measures to combat international terrorism and ensure effective border controls in this connection. The passages that are relevant to the present case read as follows.",
"Resolution 1373 (2001)",
"“...",
"The Security Council,",
"...",
"1. Decides that all States shall:",
"(a) Prevent and suppress the financing of terrorist acts;",
"(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;",
"(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;",
"(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;",
"2. Decides also that all States shall:",
"(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;",
"(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;",
"(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;",
"(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;",
"(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;",
"...",
"3. Calls upon all States to:",
"...",
"(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts;",
"...”",
"74. In Resolution 1390 (2002), adopted on 16 January 2002, the Security Council decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions. This Resolution also made the sanctions regime more precise and transparent, because the Sanctions Committee was requested to update regularly the list of persons concerned by the sanctions, to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions, and to make any information it considered relevant, including the list of persons concerned, publicly available. The passages that are relevant to the present case read as follows:",
"Resolution 1390 (2002)",
"“...",
"The Security Council,",
"...",
"2. Decides that all States shall take the following measures with respect to [Osama bin Laden], members of the [al-Qaeda] organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the Committee established pursuant to Resolution 1267 (1999) hereinafter referred to as ‘the Committee’;",
"(a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory;",
"(b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified;",
"(c) Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities;",
"...",
"8. Urges all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee unless to do so would compromise the investigation or enforcement actions; ...”",
"75. In Resolution 1526 (2004), adopted on 30 January 2004, the Security Council requested States, on the submission of new names to be added to the Committee’s list, to supply information facilitating the identification of the persons or entities concerned. It also expressly encouraged States to inform, as far as possible, the persons and entities on the Committee’s list of the measures taken against them, of the Committee’s guidelines and of Resolution 1452 (2002) concerning the possibility of exemption from certain sanctions.",
"76. In response to a surge in criticism of the sanctions regime, the Security Council adopted increasingly detailed resolutions to strengthen the procedural safeguards. In this connection, Resolution 1730 (2006) established the current procedure by creating a “focal point” to receive delisting requests in respect of persons or entities on the lists kept by the Sanctions Committee. Under that Resolution the focal point was responsible for forwarding such requests, for their information and possible comments, to the designating government(s) and to the government(s) of citizenship and residence. That was to be followed by a consultation between the governments concerned, with or without the focal point acting as an intermediary. If recommended by one of those governments, the delisting request was to be placed on the agenda of the Sanctions Committee, which would take decisions by consensus among its fifteen members.",
"77. Resolution 1735 (2006) established a procedure for notifying the individuals or entities whose names were on the list. It further clarified the criteria for delisting as follows:",
"“14. ... the Committee, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria set out in relevant resolutions, in particular Resolution 1617 (2005); in making the evaluation in (ii) above, the Committee may consider, among other things, whether the individual is deceased, or whether it has been affirmatively shown that the individual or entity has severed all association, as defined in Resolution 1617 (2005), with [al-Qaeda], [Osama bin Laden], the Taliban, and their supporters, including all individuals and entities on the Consolidated List;”",
"78. The procedure was subsequently reinforced with the adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the present case. In the latter, adopted on 17 December 2009, the Security Council decided to create an Office of the Ombudsperson, whose task is to receive requests from individuals concerned by the sanctions imposed by the Security Council in the fight against terrorism. Under that Resolution, persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the Ombudsperson, who examines each case impartially and independently and then submits a report to the Sanctions Committee explaining the reasons for or against delisting.",
"3. Vienna Convention on the Law of Treaties (1969)",
"79. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows:",
"“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...”",
"80. Article 30 (“Application of successive treaties relating to the same subject matter”) reads as follows:",
"“1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.",
"2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.",
"3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.",
"4. When the parties to the later treaty do not include all the parties to the earlier one:",
"(a) as between States Parties to both treaties the same rule applies as in paragraph 3;",
"(b) as between a State Party to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations.",
"5. Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.”",
"4. Work of the United Nations International Law Commission",
"81. The report of the study group of the International Law Commission entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, contains the following observations concerning Article 103 of the Charter:",
"4. Harmonization – systemic integration",
"“37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict:",
"... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153]. [1]",
"38. This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways. It may appear as the thumb-rule that when creating new obligations, States are assumed not to derogate from their obligations. Jennings and Watts, for example, note the presence of a:",
"presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ..., pp. 240-44].",
"39. As the International Court of Justice stated in the Right of Passage case:",
"it is a rule of interpretation that a text emanating from a government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [ Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) ICJ Reports 1957 p. 142].",
"...",
"331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine ...”",
"5. Relevant international case-law",
"82. The measures taken under the Security Council resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined, at international level, by the Court of Justice of the European Communities (“CJEC”) and by the United Nations Human Rights Committee.",
"(a) The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission (Court of Justice of the European Communities)",
"83. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P – hereinafter “ Kadi ”) concerned the freezing of the applicants’ assets pursuant to European Community Regulations adopted in connection with the implementation of Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all United Nations member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council’s Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (“the EC Treaty”). They contended that the EC Regulations had been adopted ultra vires.",
"84. On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the “General Court”) rejected those complaints and confirmed the lawfulness of the Regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens ), including those arising from the EC Treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights.",
"85. Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the “Court of Justice of the European Union”). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008, the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the “Community judicature” to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this “would not entail any challenge to the primacy of that resolution in international law”.",
"86. The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages:",
"“...",
"281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23).",
"...",
"290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community.",
"...",
"293. Observance of the undertakings given in the context of the United Nations is required just as much in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.",
"294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them.",
"...",
"296. Although, because of the adoption of such an act, the Community is bound to take, under the EC Treaty, the measures necessitated by that act, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation.",
"297. Furthermore, the Court has previously held that, for the purposes of the interpretation of the contested Regulation, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that Regulation, according to the fourth recital in the preamble thereto, is designed to implement ( Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law cited).",
"298. It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of the United Nations. The Charter of the United Nations leaves the members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order.",
"299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations.",
"300. What is more, such immunity from jurisdiction for a Community measure like the contested Regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.”",
"87. The CJEC concluded that the contested Regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled.",
"(b) The case of Sayadi and Vinck v. Belgium (United Nations Human Rights Committee)",
"88. In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning Communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that Resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to initiate urgently a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so.",
"89. The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants’ right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State Party’s delisting requests showed that the restrictions were not necessary to protect national security or public order.",
"90. The Committee also found an unlawful attack on the complainants’ honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State Party’s requests for removal, their personal contact details were still accessible to the public.",
"91. In the Committee’s opinion, although the State Party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future.",
"92. On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee.",
"6. Relevant case-law of other States",
"93. The measures in question have also been examined at national level, by the United Kingdom Supreme Court and the Canadian Federal Court.",
"(a) The case of Ahmed and others v. HM Treasury (United Kingdom Supreme Court)",
"94. The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions.",
"95. In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations:",
"“6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”",
"96. He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows:",
"“81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee [the Sanctions Committee]. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that Article 3 § 1 (b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that Article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny.",
"82. I would treat HAY’s case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committee’s list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasury’s Sanctions Team informed his solicitors that the delisting request was submitted on 26 June 2009 but that at the Committee’s first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain delisting are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy.”",
"97. The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counterterrorism context (“the Terrorism Order”) and the order implementing the al-Qaeda and Taliban Resolutions (“the al-Qaeda Order”). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown’s dissenting opinion on this point).",
"(b) The case of Abdelrazik v. Canada (Minister of Foreign Affairs) (Federal Court, Canada)",
"98. In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), Canada’s Federal Court took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council Resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary.",
"99. Zinn J, who pronounced the lead judgment in the case, stated in particular:",
"“51. I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.”",
"100. He further observed:",
"“54. ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.”",
"101. After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban Resolutions, the judge concluded that the applicant’s right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment).",
"THE LAW",
"I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS",
"A. Compatibility of the complaints with the Convention and Protocols thereto",
"1. The parties’ submissions",
"(a) The Government",
"102. The Government requested the Court to declare the application inadmissible as being incompatible ratione personae with the Convention. They argued that the impugned measures had been based on Security Council Resolutions 1267 (1999) et seq., which, under Articles 25 and 103 of the United Nations Charter, were binding and prevailed over any other international agreement. In this connection they referred in particular to the provisional measures order of the International Court of Justice in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 15, § 39:",
"“Whereas both Libya and the United Kingdom, as members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in Resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;”",
"The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the measures in issue.",
"103. The Government added that those measures, emanating as they did from the United Nations Security Council, fell outside the scope of the Court’s review. The application in the present case was therefore also inadmissible ratione materiae.",
"(b) The applicant",
"104. The applicant argued that his application was compatible ratione personae with the Convention. He took the view that the direct effect of the obligations under the Security Council Resolutions was irrelevant to the issue of whether or not the restrictions imposed on him were attributable to the respondent State, since those restrictions had been authorised by the Government at national level in accordance with Article 190 of the Federal Constitution. Relying on Article 27 of the Vienna Convention on the Law of Treaties, he added that Switzerland could not hide behind its domestic legal arrangements when it came to fulfilling its international obligations (see paragraph 79 above).",
"105. The applicant also took the view that the Swiss authorities had applied the possibilities of derogation envisaged in the Security Council Resolutions in a much more restrictive manner than was required by the sanctions regime. The Federal Court itself had noted this in its judgment of 14 November 2007. Rather than automatically having to implement the Security Council Resolutions, the national authorities had therefore enjoyed a certain margin of appreciation in taking the measures in issue. The applicant added in this connection that his delisting, as decided by the Sanctions Committee on 23 September 2009, had not taken effect in Switzerland until a week later. He saw this as further proof that the application of the Security Council Resolutions was not automatic.",
"106. Lastly, the applicant argued that it was not a matter, in the present case, of calling into question the primacy of the United Nations Charter under Article 103 thereof – a finding of a violation of the Convention not being, in his opinion, capable of affecting the validity of States’ international obligations – but simply of ensuring that the Charter was not used as a pretext to avoid compliance with the provisions of the Convention.",
"2. Submissions of third-party interveners",
"(a) The French Government",
"107. The French Government took the view that the reservation of Convention observance, in the sense of ensuring “equivalent protection”, could not be applied appropriately in the present case because the measures laid down by Switzerland arose necessarily from the United Nations Security Council Resolutions, which all States were required to apply and which also had to be given precedence over any other international rule. In those circumstances France was of the view that the measures in question could not be regarded as falling within Switzerland’s “jurisdiction” for the purposes of Article 1 of the Convention; otherwise that notion would be rendered meaningless.",
"108. The French Government pointed out that, although in its judgment of 30 June 2005 in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) (hereinafter “ Bosphorus ”) the Court had regarded as compatible with Article 1 of the Convention an application disputing the validity of a national measure simply implementing a regulation of the European Communities that itself stemmed from a Security Council resolution, the Court had noted in that judgment that it was the EC Regulation and not the Security Council Resolution that constituted the legal basis of the national measure in issue (ibid., § 145).",
"109. The French Government were also convinced that, even though the measures in issue did not concern missions conducted outside the territory of the member States, like those in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”), but rather measures implemented in domestic law, the arguments emerging from that case-law, which stemmed from the nature of the Security Council’s missions and States’ obligations arising therefrom, should lead the Court likewise to declare the disputed measures attributable to the United Nations and thus to find the applicant’s complaints incompatible ratione personae with the Convention. Thus they argued that the present case provided the Court with an opportunity to transpose onto the member States’ actual territory the principles established in Behrami and Saramati, taking into account the hierarchy of international law norms and the various legal spheres arising therefrom.",
"110. The French Government also pointed out that, in its Kadi judgment (see paragraph 83 above), the CJEC had relied on the constitutional nature of the EC Treaty for its review of a regulation implementing Security Council resolutions. Such considerations being absent in the present case, the French Government had difficulty conceiving what could justify a finding by the Court, in disregard of Article 103 of the United Nations Charter, that Switzerland was responsible for the implementation of resolutions that it was required to apply and to which it also had to give precedence over any other undertaking.",
"(b) The United Kingdom Government",
"111. The United Kingdom Government observed that the entry-and-transit ban had been imposed on the applicant in the context of the Taliban Ordinance, which they regarded as having merely implemented Security Council resolutions that were binding on all States, having been adopted under Chapter VII of the United Nations Charter (Article 25 thereof): the obligations arising from those resolutions thus took precedence, under Article 103 of the Charter, over all other international agreements. In this connection the United Kingdom Government were of the opinion that the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Article 5 or 8 of the Convention. They took the view that, particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council had used “clear and explicit language” to impose on States specific measures that might conflict with their other international obligations, in particular those arising from human rights instruments. Referring to the judgment recently delivered in Al ‑ Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011), they thus argued that the respondent State had been obliged to apply the measures in issue.",
"(c) JUSTICE",
"112. The organisation JUSTICE considered that the sanctions regime established by Security Council Resolution 1267 (1999) was the source of the draconian restrictions on the Convention rights of the listed persons and their families, in particular the right to respect for their private and family life, the right to the enjoyment of property and freedom of movement.",
"113. The severity of that interference with Convention rights was exacerbated by the inability of the listed persons to challenge effectively the decision to list them, including the evidential basis for the decision. Consequently, the sanctions regime also failed to afford those persons and their families the right of access to a court and the right to an effective remedy. JUSTICE took the view that the procedures of the Sanctions Committee did not therefore provide equivalent protection for those Convention rights.",
"114. Those conclusions, it observed, were reflected in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the United Nations Special Rapporteur on Terrorism and Human Rights and in the decisions of the Canadian Federal Court ( Abdelrazik ), the United Kingdom Supreme Court ( Ahmed ) and the CJEC ( Kadi ) (see “Relevant international case-law” and “Relevant case-law of other States”, paragraphs 82-92 and 93-101 above).",
"115. JUSTICE was convinced that the Court was not obliged to interpret Article 103 of the Charter in such a manner that it would result in Convention rights being displaced. In particular, the “maintenance of international peace and security”, though the primary function of the Security Council, was not the pre-eminent principle either of international law or of the Charter. At least equal importance was to be attached to the principle of respect for fundamental rights, as indeed was reflected in the Preamble to the Charter.",
"3. The Court’s assessment",
"116. In the light of the arguments set out by the parties and third-party interveners, the Court must determine whether it has jurisdiction to entertain the complaints raised by the applicant. For that purpose it will have to examine whether the application falls within the scope of Article 1 of the Convention and thus engages the responsibility of the respondent State.",
"(a) Compatibility ratione personae",
"117. Article 1 of the Convention reads as follows:",
"“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”",
"118. As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; Al-Jedda, cited above, § 74; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII; and Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). “Jurisdiction” under Article 1 is a threshold criterion for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others, cited above, § 130; Al-Jedda, cited above, § 74; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII).",
"119. The notion of jurisdiction reflects the meaning given to that term in public international law (see Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; and Banković and Others, cited above, §§ 59-61), such that a State’s jurisdiction is primarily territorial (see Al-Skeini and Others, cited above, § 131, and Banković and Others, cited above, § 59) and is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312).",
"120. Relying on the Court’s decision in Behrami and Saramati (cited above), the intervening French Government, in particular, argued that the measures taken by the member States of the United Nations to implement Security Council resolutions under Chapter VII of the Charter were attributable to the United Nations and were thus incompatible ratione personae with the Convention. The Court cannot endorse that argument. It would point out that it found in Behrami and Saramati that the impugned acts and omissions of the Kosovo Force (KFOR), whose powers had been validly delegated to it by the Security Council under Chapter VII of the Charter, and those of the United Nations Interim Administration Mission in Kosovo (UNMIK), a subsidiary organ of the United Nations set up under the same Chapter, were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective-security objective (ibid., § 151). In the present case, by contrast, the relevant Security Council resolutions, especially Resolutions 1267 (1999), 1333 (2000), 1373 (2001) and 1390 (2002), required States to act in their own names and to implement them at national level.",
"121. In the present case the measures imposed by the Security Council Resolutions were implemented at national level by an Ordinance of the Federal Council, and the applicant’s requests for exemption from the ban on entry into Swiss territory were rejected by the Swiss authorities (the Federal Office of Immigration, Integration and Emigration – IMES, then the Federal Office for Migration – FOM). The acts in question therefore relate to the national implementation of United Nations Security Council resolutions (see, mutatis mutandis, Bosphorus, cited above, § 137, and contrast Behrami and Saramati, cited above, § 151). The alleged violations of the Convention are thus attributable to Switzerland.",
"122. The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.",
"123. Accordingly, the Court dismisses the objection that the application is incompatible ratione personae with the Convention.",
"(b) Compatibility ratione materiae",
"124. The Government argued that the present application was also incompatible ratione materiae with the Convention. In this connection they emphasised the binding nature of the resolutions adopted by the Security Council under Chapter VII of the United Nations Charter and its primacy over any other international agreement, in accordance with Article 103 thereof.",
"125. The Court finds that these arguments concern more the merits of the complaints than their compatibility with the Convention. Consequently, the Government’s objection as to the incompatibility ratione materiae of the application with the Convention should be joined to the merits.",
"B. Whether the applicant is a “victim”",
"1. The parties’ submissions",
"126. The Government pointed out that on 23 September 2009 the applicant’s name had been deleted from the list annexed to the Security Council Resolutions providing for the impugned sanctions and on 29 September 2009 the Taliban Ordinance had been amended accordingly, with effect from 2 October 2009. Thus, they argued, the impugned measures against the applicant had been completely discontinued. In the Government’s opinion, the dispute had therefore been resolved within the meaning of Article 37 § 1 (b) of the Convention and, as a result, they asked the Court to strike the application out of its list, in accordance with that provision.",
"127. The applicant disagreed with that argument. He took the view that the mere fact that the situation had evolved in such a way that his name had been deleted from the Sanctions Committee’s list, that the Taliban Ordinance had been amended accordingly and that the sanctions against him had been lifted, since the beginning of October 2009, had not deprived him of his victim status as regards the breaches of his rights prior to that date.",
"2. The Court’s assessment",
"128. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; and Eckle v. Germany, 15 July 1982, § 66, Series A no. 51).",
"129. In the present case, the Court observes that the sanctions imposed on the applicant have been lifted and that he is now authorised to cross the border of Campione d’Italia to enter or pass through Switzerland freely. However, the lifting of sanctions, which was not decided until September-October 2009, has not deprived the applicant of his status as victim of the restrictions from which he suffered from the time his name was added, in November 2001, to the Sanctions Committee’s list and to the list annexed to the Taliban Ordinance, or at least from 27 November 2003, when he was informed that he was no longer authorised to cross the border (see paragraph 26 above). The lifting of the sanctions cannot be regarded as an acknowledgment by the Government, even implicitly, of a violation of the Convention, for the purposes of the above-cited case-law. Moreover, it was not followed by any redress within the meaning of that case-law.",
"130. Accordingly, the applicant may claim to have been the victim of the alleged violations of the Convention for a period of at least six years. As a result, the Government’s objection as to an alleged lack of victim status should be dismissed.",
"C. Whether domestic remedies have been exhausted",
"1. The parties’ submissions",
"(a) The Government",
"131. The Government observed that, according to the Security Council’s sanctions regime, exemptions from the entry-and-transit ban could be granted when they were necessary for the fulfilment of a judicial process, or for other reasons, in particular of a medical, humanitarian or religious nature, subject to the approval of the Sanctions Committee (see Resolution 1390 (2002), paragraph 2(b)). To take account of such situations, Article 4a § 2 of the Taliban Ordinance provided that the FOM could, in accordance with the decisions of the Security Council or for the protection of Swiss interests, grant exemptions.",
"132. The Government contended that the various decisions given by the FOM had not been appealed against, and the action taken before it concerned only the question of the delisting of the applicant and the organisations associated with him from Annex 2 to the Taliban Ordinance.",
"133. The Government pointed out that, both before and after the Federal Court’s judgment, the applicant had not appealed against any decision of the former IMES or of the FOM (the IMES having been incorporated into the FOM on its creation in 2005) concerning exemptions from the sanctions regime. In addition, the authorities had granted exemptions (in decisions of 20 September 2006 and 11 September 2008) that had not been used by the applicant. The applicant had explained in this connection that the duration of the exemptions had not been sufficient, in view of his age and the distance to be travelled, for him to make the intended journeys. On this subject the Government pointed out that the first exemption, for one day, had been granted for a journey to Milan in connection with judicial proceedings, and that it took only one hour to drive from Campione d’Italia to the centre of Milan. The second exemption, for two days, had been granted to the applicant for a journey to Berne and Sion, both cities being less than three and a half hours away from Campione by car.",
"134. Lastly, the Government argued that the applicant could at any time have requested to move house, even temporarily, to another part of Italy, the country of which he was a national. Such a request would have been submitted by the competent Swiss authority (the IMES, then the FOM) to the Sanctions Committee. As the sanctions had been formulated in general terms, the Government were of the opinion that the Committee would most probably have authorised the applicant’s move.",
"135. For these reasons the Government submitted that the applicant had failed to exhaust domestic remedies.",
"(b) The applicant",
"136. Concerning the first three refusals by the FOM (26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended that there was no clear domestic case-law as to whether the Swiss authorities had any margin of appreciation in the granting of exemptions from the restrictions imposed on him and that no clarification had been provided by the Federal Court in this connection. Furthermore, no action appeared to have been taken by the FOM or any other authority to clarify the position regarding the grant of exemptions. In his submission it could not therefore be said that an effective remedy, within the meaning of the Court’s case-law, was available.",
"137. As regards the Government’s argument that he had failed to make use of the exemptions granted to him by the FOM (on 20 September 2006 and 11 September 2008), he alleged that they concerned only a partial lifting of the measures imposed on him, in respect of very specific situations. Given his age and the length of the journeys involved, he argued that the exemptions for one or two days were far from sufficient.",
"138. As to the general sanctions regime, the applicant submitted that he had exhausted domestic remedies, because he had challenged before the Federal Court the restrictions imposed by the Taliban Ordinance, of which he complained before the Court.",
"139. The applicant further observed that the Government’s argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting was purely speculative. He also pointed out that such an option – which he did not consider possible in his case, particularly because of the freezing of his assets by the sanctions regime and the fact that it had not been envisaged by the Federal Court – would in any event have provided redress only for part of the impugned restrictions.",
"2. The Court’s assessment",
"140. The Court reiterates that the only remedies Article 35 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see Tsomtsos and Others v. Greece, 15 November 1996, § 32, Reports 1996 ‑ V).",
"141. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX).",
"142. Moreover, an applicant who has availed himself of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, for example, Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III, and Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV).",
"143. In the present case the Court notes that the applicant did not challenge the refusals by the IMES and the FOM to grant his requests for exemption from the sanctions regime and that on two occasions he was granted exemptions that he did not use (see paragraphs 34 and 57 above).",
"144. However, even supposing that those exemptions had alleviated certain effects of the sanctions regime, by allowing him to leave the enclave of Campione d’Italia for medical or legal reasons, the Court is of the view that the issue of exemptions was part of a broader situation whose origin lay in the addition by the Swiss authorities of the applicant’s name to the list annexed to the Taliban Ordinance, which was based on the Sanctions Committee’s list. In this connection, it should be observed that the applicant submitted many requests to the national authorities for the deletion of his name from the list annexed to the Taliban Ordinance – requests that were denied by the State Secretariat for Economic Affairs (SECO) and the Federal Department of Economic Affairs (see paragraphs 30-32 above). The Federal Council, to which he appealed against the Department’s decision, referred the case to the Federal Court. By a judgment of 14 November 2007, that court dismissed his appeal without examining the merits of the complaints under the Convention. Consequently, the Court takes the view that the applicant has exhausted domestic remedies relating to the sanctions regime as a whole, the application of which in his case stemmed from the addition of his name to the list annexed to the Taliban Ordinance.",
"145. In these circumstances, the Court does not find it necessary to address, at this stage, the argument raised by the Government to the effect that the applicant could have been reasonably expected to move from Campione d’Italia, where he had been living since 1970, to another region of Italy. That question will, by contrast, play a certain role when it comes to examining the proportionality of the impugned measures (see paragraph 190 below).",
"146. As to the complaint under Article 8 that the addition of the applicant’s name to the list annexed to the Taliban Ordinance had impugned his honour and reputation, the Court acknowledges that it was raised, at least in substance, before the domestic authorities. The applicant indeed claimed that the addition of his name to the Sanctions Committee’s list was tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case (see paragraphs 33 and 38 above).",
"147. Consequently, the Court dismisses the Government’s objection as to the inadmissibility of the application for failure to exhaust domestic remedies in respect of the applicant’s complaints under Articles 5 and 8.",
"148. As regards the complaint under Article 13, the Court finds that the objection of non-exhaustion of remedies is closely linked to the merits of the complaint. Accordingly, the Court joins it to the merits.",
"II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"149. The applicant complained that the measure by which he was prohibited from entering or passing through Switzerland had breached his right to respect for his private life, including his professional life, and his family life. He contended that this ban had prevented him from seeing his doctors in Italy or in Switzerland and from visiting his friends and family. He further claimed that the addition of his name to the list annexed to the Taliban Ordinance had impugned his honour and reputation. In support of these complaints he relied on Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"A. Admissibility",
"150. The Court finds that it should first examine the applicability of Article 8 in the present case.",
"151. It reiterates that “private life” is a broad term not susceptible to exhaustive definition (see, for example, Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Tysiąc v. Poland, no. 5410/03, § 107, ECHR 2007 ‑ I; Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008; Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). The Court has found that health, together with physical and moral integrity, falls within the realm of private life (see Glor, cited above, § 54, and X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; see also Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). The right to private life also encompasses the right to personal development and to establish and develop relationships with other human beings and the outside world in general (see, for example, S. and Marper, cited above, § 66).",
"152. It should moreover be observed that Article 8 also protects the right to respect for “family life”. Under that provision the State must in particular act in a manner calculated to allow those concerned to lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). The Court determines the existence of family life on a case-by-case basis, looking at the circumstances of each case. The relevant criterion in such matters is the existence of effective ties between the individuals concerned (ibid.; see also K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII, and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 93, 2 November 2010).",
"153. The Court would further reiterate that Article 8 also protects the right to respect for one’s home (see, for example, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109).",
"154. In the light of that case-law, the Court finds that the complaints submitted by the applicant under Article 8 are indeed to be examined under that Article. It cannot be excluded that the measure prohibiting him from entering Switzerland prevented him – or at least made it more difficult for him – to consult his doctors in Italy or Switzerland or to visit his friends and family. Article 8 therefore applies in the present case in both its “private life” aspect and its “family life” aspect.",
"155. Furthermore, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicant",
"156. The applicant alleged that the restrictions on his freedom of movement had prevented him from taking part in family events (such as funerals or weddings), which had taken place during the period when he was unable to travel freely on account of the sanctions regime. He thus claimed to be a victim of a violation of his right to respect for his private and family life. In this connection, he contended that his status as an Italian national, not resident in the territory of the respondent State, did not prevent him from complaining of a violation of his rights by Switzerland, especially given the very special situation of the Campione d’Italia enclave, being surrounded by Swiss territory. He even took the view that, given the integration of Campione d’Italia into the Canton of Ticino, in particular its economic integration, it would have been appropriate for the Swiss authorities to treat him as a Swiss national for the purposes of the sanctions regime. Moreover, he asserted that, contrary to the Government’s allegation, he did not have the option of living elsewhere in Italy.",
"157. The applicant further observed that the addition of his name to the list annexed to the Taliban Ordinance had caused damage to his honour and reputation, since that list enumerated persons suspected of helping to finance terrorism. In support of that view he referred to the case of Sayadi and Vinck v. Belgium (see paragraphs 88-92 above) in which the Human Rights Committee found that the addition of the complainants’ names to the Sanctions Committee’s list had constituted an unlawful attack on their honour.",
"158. In the applicant’s submission, those circumstances were aggravated by the fact that he had never been given an opportunity to challenge the merits of the allegations against him.",
"159. There had thus been a violation of Article 8 on various counts.",
"(b) The Government",
"160. The Government observed that the applicant had been free to receive all the visits he wished in Campione d’Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d’Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the exhaustion of domestic remedies, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8.",
"161. In response to the applicant’s allegation that he had never been able to find out the factors which had led to the impugned measures, or to challenge them before a court, the Government stated that, as shown in their earlier observations, the impugned measures had not breached the applicant’s rights under Article 8. Consequently, the procedural aspect of that provision was not applicable.",
"162. For those reasons the Government were of the opinion that the restrictions imposed did not constitute an interference with the applicant’s rights under Article 8. If the Court were to find otherwise, the Government argued that the measure was in any event necessary in a democratic society under Article 8 § 2.",
"2. The Court’s assessment",
"(a) Whether there has been an interference",
"163. The Court finds it appropriate to begin by examining the applicant’s allegation that he sustained interference with his right to respect for his private and family life on account of the fact that he was prohibited from entering or passing through Switzerland.",
"164. The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory. In other words, the Convention does not as such guarantee the right of an alien to enter a particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII; Boujlifa v. France, 21 October 1997, § 42, Reports 1997 ‑ VI; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94).",
"165. In the present case, the Court observes that the Federal Court found that the impugned measure constituted a significant restriction on the applicant’s freedom (see paragraph 52 above), as he was in a very specific situation on account of the location of Campione d’Italia, an enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that opinion. It takes the view that the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others – in particular his friends and family – living outside the enclave (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v. Switzerland, no. 24404/05, §§ 69-72, both judgments of 29 July 2010).",
"166. In view of the foregoing, the Court finds that there has been an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1.",
"(b) Whether the interference was justified",
"167. The interference with the applicant’s right to respect for his private and family life, as found above, will breach Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether it was “in accordance with the law”, pursued one or more of the legitimate aims enumerated in that paragraph and was “necessary in a democratic society” to achieve such aims. The Court finds it appropriate first to reiterate certain principles that will guide it in its subsequent examination.",
"(i) General principles",
"168. According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (see Bosphorus, cited above, § 153, and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I). Treaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may thus engage its responsibility for Convention purposes (see Al ‑ Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus, cited above, § 154, and the cases cited therein).",
"169. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, for example, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010; Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18).",
"170. When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited above, § 55; and the Banković decision, cited above, §§ 55 ‑ 57; see also the references cited in the International Law Commission study group’s report entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, paragraph 81 above).",
"171. As regards, more specifically, the question of the relationship between the Convention and Security Council resolutions, the Court found as follows in its Al-Jedda judgment (cited above):",
"“101. Article 103 of the Charter of the United Nations provides that the obligations of the members of the United Nations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement. Before it can consider whether Article 103 had any application in the present case, the Court must determine whether there was a conflict between the United Kingdom’s obligations under United Nations Security Council Resolution 1546 and its obligations under Article 5 § 1 of the Convention. In other words, the key question is whether Resolution 1546 placed the United Kingdom under an obligation to hold the applicant in internment.",
"102. In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub-paragraph of Article 1 of the Charter of the United Nations, the third sub-paragraph provides that the United Nations was established to ‘achieve international cooperation in ... promoting and encouraging respect for human rights and fundamental freedoms’. Article 24 § 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.”",
"172. The Grand Chamber confirms those principles. However, in the present case it observes that, contrary to the situation in Al-Jedda, where the wording of the resolution in issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the above-mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that Resolution (see also paragraph 7 of Resolution 1267 (1999), paragraph 70 above, in which the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the Resolution).",
"(ii) Legal basis",
"173. The Court notes that the question of the existence of a legal basis is not a matter of dispute between the parties. It observes that the impugned measures were taken pursuant to the Taliban Ordinance, adopted to implement the relevant Security Council resolutions. To be precise, the ban on entry into and transit through Switzerland was based on Article 4a of that Ordinance (see paragraph 66 above). The measures therefore had a sufficient legal basis.",
"(iii) Legitimate aim",
"174. The applicant did not appear to deny that the impugned restrictions were imposed in pursuit of legitimate aims. The Court finds it established that those restrictions pursued one or more of the legitimate aims enumerated in Article 8 § 2: firstly, they sought to prevent crime, and, secondly, as the relevant Security Council resolutions had been adopted to combat international terrorism under Chapter VII of the United Nations Charter (“Action with respect to threats to the peace, breaches of the peace, and acts of aggression”), they were also capable of contributing to Switzerland’s national security and public safety.",
"(iv) “Necessary in a democratic society”",
"(α) Implementation of Security Council resolutions",
"175. The respondent Government, together with the French and United Kingdom Governments, intervening as third parties, argued that the Swiss authorities had no latitude in implementing the relevant Security Council resolutions in the present case. The Court must therefore firstly examine those resolutions in order to determine whether they left States any freedom in their implementation and, in particular, whether they allowed the authorities to take into account the very specific nature of the applicant’s situation and therefore to meet the requirements of Article 8 of the Convention. In order to do so, it will particularly take account of the wording of those resolutions and the context in which they were adopted (see Al-Jedda, cited above, § 76, with the reference cited therein to the relevant case-law of the International Court of Justice). It will moreover have regard to the objectives pursued by those resolutions (see, to that effect, the Kadi judgment of the CJEC, § 296, paragraph 86 above), as stated mainly in the preambles thereto, read in the light of the purposes and principles of the United Nations.",
"176. The Court observes that Switzerland did not become a member of the United Nations until 10 September 2002: it had thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a member of that organisation, whereas it was already bound by the Convention. Similarly, it had implemented at domestic level the entry-and-transit ban concerning the applicant, as required by Resolution 1390 (2002) of 16 January 2002 (see paragraph 74 above), on 1 May of that year by the amendment of Article 4a of the Taliban Ordinance. The Court acknowledges that this Resolution, particularly in the light of paragraph 2, was addressed to “all States” and not only the members of the United Nations. However, the Court observes that the United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to United Nations member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions (see to the same effect, mutatis mutandis, the Kadi judgment of the CJEC, § 298, paragraph 86 above).",
"177. In the present case, the applicant mainly challenged the Swiss entry-and-transit ban imposed on him in particular through the implementation of Resolution 1390 (2002). Whilst paragraph 2(b) of that Resolution required States to take such measures, it stated that the ban did “not apply where entry or transit [was] necessary for the fulfilment of a judicial process ...” (see paragraph 74 above). In the Court’s view, the term “necessary” was to be construed on a case-by-case basis.",
"178. In addition, in paragraph 8 of Resolution 1390 (2002), the Security Council “[urged] all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory ...” (see paragraph 74 above). The wording “where appropriate” also had the effect of affording the national authorities a certain flexibility in the mode of implementation of the Resolution.",
"179. Lastly, the Court would refer to the motion by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counterterrorism resolutions (see paragraph 63 above). Even though that motion was drafted in rather general terms, it can nevertheless be said that the applicant’s case was one of the main reasons for its adoption. In any event, in the Court’s view, the Swiss Parliament, in adopting that motion, was expressing its intention to allow a certain discretion in the application of the Security Council’s counterterrorism resolutions.",
"180. In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council.",
"(β) Whether the interference was proportionate in the present case",
"181. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, S. and Marper, cited above, § 101, and Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with the cases cited therein).",
"182. The object and purpose of the Convention, being a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145), call for its provisions to be interpreted and applied in a manner that renders its guarantees practical and effective (see, among other authorities, Artico v. Italy, 13 May 1980, § 33, Series A no. 37). Thus, in order to ensure “respect” for private and family life within the meaning of Article 8, the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 86, 13 December 2007).",
"183. The Court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right in issue whilst fulfilling the same aim must be ruled out (see Glor, cited above, § 94).",
"184. In any event, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see, for example, S. and Marper, cited above, § 101, and Coster, cited above, § 104). A margin of appreciation must be left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference (see S. and Marper, cited above, § 102).",
"185. In order to address the question whether the measures taken against the applicant were proportionate to the legitimate aim that they were supposed to pursue, and whether the reasons given by the national authorities were “relevant and sufficient”, the Court must examine whether the Swiss authorities took sufficient account of the particular nature of his case and whether they adopted, in the context of their margin of appreciation, the measures that were called for in order to adapt the sanctions regime to the applicant’s individual situation.",
"186. In doing so, the Court is prepared to take account of the fact that the threat of terrorism was particularly serious at the time of the adoption, between 1999 and 2002, of the resolutions prescribing those sanctions. That is unequivocally shown by both the wording of the resolutions and the context in which they were adopted. However, the maintaining or even reinforcement of those measures over the years must be explained and justified convincingly.",
"187. The Court observes in this connection that the investigations conducted by the Swiss and Italian authorities concluded that the suspicions about the applicant’s participation in activities related to international terrorism were clearly unfounded. On 31 May 2005 the Swiss Federal Prosecutor closed the investigation opened in October 2001 in respect of the applicant, and on 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the proceedings against him in Italy had been discontinued (see paragraph 56 above). The Federal Court, for its part, observed that the State which had conducted the investigations and criminal proceedings could not itself proceed with the deletion, but it could at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting (see paragraph 51 above).",
"188. In this connection the Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005 (see paragraph 61 above). Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (see, in this connection, Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above).",
"189. As regards the scope of the prohibition in question, the Court emphasises that it prevented the applicant not only from entering Switzerland but also from leaving Campione d’Italia at all, in view of its situation as an enclave, even to travel to any other part of Italy, the country of which he was a national, without breaching the sanctions regime.",
"190. Moreover, the Court considers that the applicant could not reasonably have been required to move from Campione d’Italia, where he had been living since 1970, to settle in another region of Italy, especially as it cannot be ruled out that, as a result of the freeze imposed by paragraph 1(c) of Resolution 1373 (2001) (see paragraph 73 above), he could no longer dispose freely of all his property and assets. Regardless of whether a request for authorisation to move house would have had any chance of success, it should be pointed out that the right to respect for one’s home is protected by Article 8 of the Convention (see, for example, Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004 ‑ XI, and Gillow, cited above, § 46).",
"191. The Court would further observe that the present case has a medical aspect that should not be underestimated. The applicant was born in 1931 and has health problems (see paragraph 14 above). The Federal Court itself found that, although Article 4a § 2 of the Taliban Ordinance was formulated more as an enabling provision, it did oblige the authorities to grant an exemption in all cases where the United Nations sanctions regime so permitted, as a more far-reaching restriction on individual freedom of movement would not have been justified either by the Security Council resolutions or by the public interest and would have been disproportionate in the light of the applicant’s particular situation (see paragraph 52 above).",
"192. In reality, the IMES and the FOM denied a number of requests for exemption from the entry-and-transit ban that had been submitted by the applicant for medical reasons or in connection with judicial proceedings. He did not appeal against those refusals. Moreover, in the two cases where his requests were accepted, he waived the use of those exemptions (for one and two days respectively), finding that their length was not sufficient for him to make the intended journeys in view of his age and the considerable distance to be covered. The Court can understand that he may have found those exemptions to be insufficient in duration, in view of the above-mentioned factors (see, in particular, paragraph 191 above).",
"193. It should be pointed out in this connection that, under paragraph 2(b) of Resolution 1390 (2002), the Sanctions Committee was entitled to grant exemptions in specific cases, especially for medical, humanitarian or religious reasons. During the meeting of 22 February 2008 (see paragraph 54 above), a representative of the Federal Department of Foreign Affairs indicated that the applicant could request the Sanctions Committee to grant a broader exemption in view of his particular situation. The applicant did not make any such request, but it does not appear, in particular from the record of that meeting, that the Swiss authorities offered him any assistance to that end.",
"194. It has been established that the applicant’s name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least until the adoption of Resolution 1730 (2006), it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure. Indeed, in the applicant’s case Switzerland was neither his State of citizenship nor his State of residence, and the Swiss authorities were not therefore competent to undertake such action. However, it does not appear that Switzerland ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose (see, mutatis mutandis, the case of Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88 to 92 above). It can be seen from the record of the meeting of 22 February 2008 (see paragraph 54 above) that the authorities merely suggested that the applicant contact the Italian Permanent Mission to the United Nations, adding that Italy at that time had a seat on the Security Council.",
"195. The Court acknowledges that Switzerland, along with other States, made considerable efforts that resulted, after a few years, in improvement to the sanctions regime (see paragraphs 64 and 78 above). It is of the opinion, however, in view of the principle that the Convention protects rights that are not theoretical or illusory but practical and effective (see Artico, cited above, § 33), that it is important in the present case to consider the measures that the national authorities actually took, or sought to take, in response to the applicant’s very specific situation. In this connection, the Court considers in particular that the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health. It further finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order should have allowed some alleviation of the sanctions regime applicable to the applicant, having regard to those realities, in order to avoid interference with his private and family life, without however circumventing the binding nature of the relevant resolutions or compliance with the sanctions provided for therein.",
"196. In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see, for example, Soering, cited above, § 87, and Ireland v. the United Kingdom, 18 January 1978, § 239, Series A no. 25), the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation.",
"197. That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent (see, in this connection, paragraphs 81 and 170 above).",
"198. Having regard to all the circumstances of the present case, the Court finds that the restrictions imposed on the applicant’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other. Consequently, the interference with his right to respect for private and family life was not proportionate and therefore not necessary in a democratic society.",
"(γ) Conclusion",
"199. In view of the foregoing, the Court dismisses the Government’s preliminary objection that the application was incompatible ratione materiae with the Convention and, ruling on the merits, finds that there has been a violation of Article 8 of the Convention. Having regard to that conclusion, and notwithstanding that the applicant’s allegation that the addition of his name to the list annexed to the Taliban Ordinance also impugned his honour and reputation constitutes a separate complaint, the Court finds that it does not need to examine that complaint separately.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"200. The applicant complained that he had not had an effective remedy by which to have his Convention complaints examined. He thus alleged that there had been a violation of Article 13, which reads as follows:",
"“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”",
"A. Admissibility",
"201. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It finds, moreover, that no other ground for declaring it inadmissible has been established. The complaint should thus be declared admissible.",
"B. Merits",
"1. The parties’ submissions",
"(a) The applicant",
"202. The applicant argued, relying on the Al-Nashif v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests of the protection of sources and information critical to national security, on the one hand, and the right to an effective remedy, on the other, could be reconciled through a specially adapted procedure. In the present case, however, no such procedure had been available, either before United Nations bodies or before the domestic authorities.",
"203. He further pointed out that the above-mentioned Sayadi and Vinck case (see paragraphs 88-92 above), where the Human Rights Committee had concluded that an effective remedy was constituted by the court order requiring the Belgian government, which had forwarded the complainants’ names to the Sanctions Committee in the first place, to submit a delisting request to that Committee, was not relevant to the present case for two reasons. Firstly, because he was not complaining that Switzerland had failed to have his name removed from the United Nations list; the Human Rights Committee had clearly confirmed that the relevant authority lay entirely with the Sanctions Committee and not with the State itself. Secondly, in his case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi and Vinck, although observing that the respondent Government were obliged to support the applicant in any endeavour to secure delisting, had not actually ordered it to do so.",
"204. The applicant thus argued that the conformity of the impugned measures with Articles 3, 8 and 9 of the Convention was not subject to the scrutiny of any domestic court and that, accordingly, there had been a violation of Article 13.",
"(b) The Government",
"205. In the Government’s submission, Article 13 required that where an individual had an arguable complaint that there had been a violation of the Convention, he or she should have a remedy before a “national authority”. The Government submitted that, having regard to their previous arguments, the applicant’s complaints were not made out. They argued that, should the Court decide not to follow that assessment, there had not in any event been a violation of Article 13 taken in conjunction with Article 8 in the present case.",
"206. The Government pointed out that the applicant had requested the deletion of his name and those of the organisations with which he was associated from the list annexed to the Taliban Ordinance. That request had apparently been examined by the Federal Court, which had found that the applicant did not have an effective remedy in respect of that issue since, being bound by the Security Council resolutions, it was not able to annul the sanctions imposed on the applicant. The Federal Court had nevertheless emphasised that, in that situation, it was for Switzerland to request the applicant’s delisting or to support such a procedure initiated by him. In this connection, the Government observed that Switzerland was not itself entitled to lodge a delisting request – as the applicant did not have Swiss nationality and did not live in Switzerland – as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant himself, and it had apparently done so by sending his lawyer a formal attestation of the discontinuance of criminal proceedings against him.",
"2. The Court’s assessment",
"(a) Applicable principles",
"207. The Court observes that Article 13 guarantees the availability at national level of a remedy by which to complain about a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention, but the remedy must in any event be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21 December 2000, with the cases cited therein, especially Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996 ‑ VI). Under certain conditions, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, in particular, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116).",
"208. However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State’s laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts, cited above, § 40), but seeks only to ensure that anyone who makes an arguable complaint about a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39).",
"(b) Application of those principles to the present case",
"209. The Court is of the opinion that, in view of its finding of a violation of Article 8 above, the complaint is arguable. It therefore remains to be ascertained whether the applicant had, under Swiss law, an effective remedy by which to complain of the breaches of his Convention rights.",
"210. The Court observes that the applicant was able to apply to the national authorities to have his name deleted from the list annexed to the Taliban Ordinance and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine on the merits his complaints concerning the alleged violations of the Convention. In particular, the Federal Court took the view that whilst it could verify whether Switzerland was bound by the Security Council resolutions, it could not lift the sanctions imposed on the applicant on the ground that they did not respect human rights (see paragraph 50 above).",
"211. The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level, even after its improvement by the most recent resolutions, could not be regarded as an effective remedy within the meaning of Article 13 of the Convention (ibid.).",
"212. The Court would further refer to the finding of the CJEC that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” (see the Kadi judgment of the CJEC, § 299, paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council Resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those Resolutions.",
"213. Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above).",
"214. Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8.",
"IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION",
"215. Relying on Article 5 § 1 of the Convention, the applicant argued that by preventing him from entering or transiting through Switzerland, because his name was on the Sanctions Committee’s list, the Swiss authorities had deprived him of his liberty. Under Article 5 § 4, he complained that the authorities had not undertaken any review of the lawfulness of the restrictions to his freedom of movement. Those provisions read as follows:",
"“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:",
"(a) the lawful detention of a person after conviction by a competent court;",
"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;",
"(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;",
"(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;",
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;",
"(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.",
"...",
"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.",
"...”",
"1. Submissions of the parties and third-party interveners",
"(a) The Government",
"216. The Government, referring to the Guzzardi v. Italy (6 November 1980, Series A no. 39) and S.F. v. Switzerland (no. 16360/90, Commission decision of 2 March 1994, Decisions and Reports 76-B, pp. 13 et seq.) cases, argued that there had been no “deprivation of liberty” in the present case. They stated that the purpose of the measure in question had never been to confine the applicant to the territory of Campione d’Italia. Only a ban on entering and transiting through Switzerland had been imposed on him. The fact that the applicant found that his movements were restricted by the impugned measure was attributable only to himself, because he had chosen to live in an Italian enclave surrounded by Swiss territory. Neither the sanctions as decided by the United Nations, nor their implementation by the Swiss authorities, had obliged him to remain a resident of Campione d’Italia. At any time he could thus have requested authorisation to transfer his home to another part of Italy.",
"217. As regards the effects and conditions of the measure, the Government observed that the applicant was not subject to any restriction apart from the ban – albeit theoretical in their view – on his entry into or transit through Switzerland. In particular, he was not under surveillance by the Swiss authorities, had no specific obligations and could have received as many visits as he wished. He was also able, at all times, to meet his lawyers freely. The Government further pointed out that the border between Campione d’Italia and Switzerland was not patrolled, so the ban on entry into Switzerland could not have been perceived by him as a physical obstacle.",
"218. For those reasons the Government contended that the impugned measure could not be regarded as a deprivation of liberty within the meaning of Article 5 § 1.",
"(b) The applicant",
"219. The applicant argued that the present case could not be compared to S.F. v. Switzerland (cited above), in which the Commission had declared inadmissible the complaint of an applicant under Article 5 that he had not been authorised to leave Campione d’Italia for several years. Firstly, in the applicant’s case the inability to leave the area was not the result of a criminal conviction and, secondly, he had been unable to challenge the impugned restrictions in the context of a fair hearing, unlike the applicant in S.F. v. Switzerland.",
"220. The applicant did not dispute the fact that no physical obstacle prevented him from leaving Campione d’Italia, but he pointed out that the border with Switzerland was nevertheless occasionally subject to spot-checks and that, if it had been discovered in the context of such a check that he was attempting to enter a territory from which he was banned, he would have faced proceedings entailing heavy penalties.",
"221. The applicant stated that Campione d’Italia had a surface area of 1.6 sq. km and that, therefore, the space in which he could move freely was even smaller than that of the applicant in Guzzardi (cited above), who was on an island of 2.5 sq. km.",
"222. Moreover, the applicant pointed out that even the Federal Court itself had recognised that the restrictions amounted in effect to house arrest. For all those reasons, he contended that Article 5 § 1 should be applicable in his case.",
"(c) The French Government",
"223. The French Government, intervening as a third party, were of the opinion that Article 5 of the Convention could not be applicable to the situation of a person who was refused entry into or transit through a given territory, and that the particular circumstances of the case, stemming from the applicant’s residence in an Italian enclave within the Canton of Ticino, could not change that assessment, unless the substance of that provision were to be substantially distorted.",
"2. The Court’s assessment",
"224. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty. No deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds or is provided for by a lawful derogation under Article 15 of the Convention, which allows for a Contracting State “[i]n time of war or other public emergency threatening the life of the nation” to take measures derogating from its obligations under Article 5 “to the extent strictly required by the exigencies of the situation” (see, among other authorities, Al-Jedda, cited above, § 99; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-63, ECHR 2009; and Ireland v. the United Kingdom, cited above, § 194).",
"225. Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, a Protocol not ratified by Switzerland. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; Guzzardi, cited above, §§ 92 ‑ 93; Storck v. Germany, no. 61603/00, § 71, ECHR 2005 ‑ V; and Engel and Others v. the Netherlands, 8 June 1976, § 59, Series A no. 22).",
"226. The Court is further of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question (see Engel and Others, § 59, and Guzzardi, § 92, both cited above) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel and Others, § 59, and Amuur, § 43, both cited above). Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see, mutatis mutandis, Austin and Others, cited above, § 59).",
"227. The Court observes that, in support of his argument that Article 5 must apply in the present case, the applicant relied particularly on the above-cited Guzzardi case. In that case, the application had been lodged by an individual who, being suspected of belonging to a “band of mafiosi”, had been forced to live on an island within an (unfenced) area of 2.5 sq. km, together with other residents in a similar situation and supervisory staff. The Court found that the applicant had been “deprived of his liberty” within the meaning of Article 5 and that he could therefore rely on the guarantees under that provision (see also Giulia Manzoni v. Italy, 1 July 1997, §§ 18 ‑ 25, Reports 1997 ‑ IV).",
"228. By contrast, in the S.F. v. Switzerland case (cited above), where the applicant complained about not being authorised to leave Campione d’Italia for several years, the Commission declared the complaint inadmissible, finding that Article 5 was not applicable in that case. The Grand Chamber finds it appropriate in the present case to opt for the latter approach, for the following reasons.",
"229. In the applicant’s concrete situation, the Court acknowledges that the restrictions were maintained for a considerable length of time. However, it observes that the area in which the applicant was not allowed to travel was the territory of a third country, Switzerland, and that, under international law, that country had the right to prevent the entry of an alien (see paragraph 164 above). The restrictions in question did not prevent the applicant from freely living and moving within the territory of his permanent residence, where he had chosen, of his own free will, to live and carry on his activities. The Court considers that, in these circumstances, his case differs radically from the factual situation in Guzzardi (cited above) and that the prohibition imposed upon the applicant does not raise an issue under Article 5 of the Convention.",
"230. The Court further recognises that Campione d’Italia represents a small area of territory. However, it observes that the applicant was not, strictly speaking, in a situation of detention, nor was he actually under house arrest: he was merely prohibited from entering or transiting through a given territory, and as a result of that measure he was unable to leave the enclave.",
"231. In addition, the Court notes that the applicant did not dispute before it the Swiss Government’s assertion that he had not been subjected to any surveillance by the Swiss authorities and had not been obliged to report regularly to the police (contrast Guzzardi, cited above, § 95). Nor does it appear, moreover, that he was restricted in his freedom to receive visitors, whether his family, his doctors or his lawyers (ibid.).",
"232. Lastly, the Court would point out that the sanctions regime permitted the applicant to seek exemptions from the entry or transit ban and that such exemptions were indeed granted to him on two occasions but he did not make use of them.",
"233. Having regard to all the circumstances of the present case, and in accordance with its case-law, the Court, like the Federal Court (see paragraph 48 above), finds that the applicant was not “deprived of his liberty” within the meaning of Article 5 § 1 by the measure prohibiting him from entering and transiting through Switzerland.",
"234. It follows that the complaints under Article 5 of the Convention are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.",
"V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION",
"235. Relying essentially on the same arguments as those examined by the Court under Articles 5 and 8, the applicant complained of treatment in breach of Article 3. He further alleged that his inability to leave the enclave of Campione d’Italia to go to a mosque had breached his freedom to manifest his religion or belief as guaranteed by Article 9.",
"236. In view of all the material in its possession, and even supposing that those complaints had been duly raised before the domestic courts, the Court does not find any appearance of a violation of Articles 3 and 9 of the Convention.",
"237. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.",
"VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"238. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"239. The applicant did not submit any claim in respect of pecuniary or non-pecuniary damage.",
"240. Accordingly, there is no call to award him any sum on that account.",
"B. Costs and expenses",
"241. As regards costs and expenses, the applicant sought the reimbursement of 75,000 pounds sterling plus value-added tax, for his lawyers’ fees in connection with the proceedings before the Court, together with 688.22 euros (EUR) for expenses incurred by his lawyer in travelling to Campione d’Italia, for telephone calls and for office expenses.",
"242. The Government pointed out that the applicant had chosen to be represented by a lawyer practising in London who charged an hourly rate that was much higher than the average rates in Switzerland, and that this choice had entailed considerable travel expenses. In their submission, even if it were to be accepted that the present case was indeed as complex as the applicant claimed, the number of hours invoiced was excessive. Consequently, they submitted that in the event of the application being upheld, an amount of no more than 10,000 Swiss francs would be a fair award.",
"243. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, ECHR 2010). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (ibid.).",
"244. The Court does not share the Government’s opinion that the applicant should assume the consequences of his choice to be represented by a British lawyer. It would point out in this connection that, under Rule 36 § 4 (a) of the Rules of Court, the applicant’s representative must be “an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them ...”. However, it notes that only the complaints submitted under Articles 8 and 13 resulted, in the present case, in a finding of a violation of the Convention. The remainder of the application is inadmissible. The sum claimed by the applicant is therefore excessive.",
"245. Consequently, having regard to the material in its possession and the criteria set out above, the Court finds it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses he has incurred in the proceedings before it.",
"C. Default interest",
"246. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
303 | Szabó and Vissy v. Hungary | 12 January 2016 | This case concerned Hungarian legislation on secret anti-terrorist surveillance introduced in 2011. The applicants complained in particular that they could potentially be subjected to unjustified and disproportionately intrusive measures within the Hungarian legal framework on secret surveillance for national security purposes (namely, “section 7/E (3) surveillance”). They notably alleged that this legal framework was prone to abuse, notably for want of judicial control. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It accepted that it was a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies, including massive monitoring of communications, in pre-empting impending incidents. However, the Court was not convinced that the legislation in question provided sufficient safeguards to avoid abuse. Notably, the scope of the measures could include virtually anyone in Hungary, with new technologies enabling the Government to intercept masses of data easily concerning even persons outside the original range of operation. Furthermore, the ordering of such measures was taking place entirely within the realm of the executive and without an assessment of whether interception of communications was strictly necessary and without any effective remedial measures, let alone judicial ones, being in place. The Court further held that there had been no violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 8, reiterating that Article 13 could not be interpreted as requiring a remedy against the state of domestic law. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants were born in 1976 and 1986 respectively and live in Budapest.",
"7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation.",
"8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“ TEK ”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”).",
"9. Under this legislation, TEK ’ s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.",
"10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)).",
"11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary ’ s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts.",
"12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained.",
"13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister ’ s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”.",
"14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants ’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament ’ s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence.",
"15. This decision was published in the Official Gazette on 22 November 2013.",
"VII. Internal and Governmental Controls as part of overall accountability systems",
"130. Internal control of security services is the primary guarantee against abuses of power, when the staff working in the agencies are committed to the democratic values of the State and to respecting human rights. External controls are essentially to buttress the internal controls and periodically ensure these are working properly.",
"131. Internal controls mean in the first place that the senior management of the agency must exercise efficient control in practice over the lower ranks of the agency.",
"134. Just as strong internal controls are a precondition for effective executive control over the security agency, a strong executive control over the security agency is a precondition for adequate parliamentary accountability, given that access by parliament to intelligence usually depends on the executive. The same is less true for expert review/authorization systems, to the extent that these have their own access to officials and intelligence material ...",
"137. In order to provide for impartial verification and assurance for the government that secret agencies are acting according to its policies, effectively and with propriety, a number of countries have devised offices such as Inspectors-General, judicial commissioners or auditors to check on the activities of the security sector and with statutory powers of access to information and staff.",
"VIII. Parliamentary accountability",
"150. There are several reasons why parliamentarians should be involved in the oversight of security agencies. Firstly, the ultimate authority and legitimacy of security agencies is derived from legislative approval of their powers, operations and expenditure. Secondly, there is a risk that the agencies may serve narrow political or sectional interests, rather than the State as a whole and protecting the constitutional order, if democratic scrutiny does not extend to them. A stable, politically bi-partisan approach to security may be ensured therefore by proper control, to the benefit of the State and the agencies themselves.",
"153. From a comparative international perspective, the most frequent arrangement is for parliament to establish a single oversight body for all the major security and intelligence agencies, rather than having multiple oversight bodies for specific agencies.",
"IX. Judicial Review and Authorization",
"195. Judicial control over internal security services can take different forms. First, there is prior authorization in a pre-trial phase, and/or post hoc review, of special investigative measures, such as telephone tapping, bugging and video surveillance. This is the normal practice in European States.",
"204. Nonetheless, there is an obvious advantage of requiring prior judicial authorization for special investigative techniques, namely that the security agency has to go “outside of itself” and convince an independent person of the need for a particular measure. It subordinates security concerns to the law, and as such it serves to institutionalize respect for the law. If it works properly, judicial authorization will have a preventive effect, deterring unmeritorious applications and/or cutting down the duration of a special investigative measure. The Parliamentary Assembly has earlier expressed a clear preference for prior judicial authorization of special investigative measures (depending on the type of measures).",
"X. Accountability to expert bodies",
"218. Expert bodies can serve as either a supplement or a replacement for parliamentary bodies or judicial accountability...",
"219. An expert body allows for greater expertise and time in the oversight of security and intelligence services and avoids the risks of political division and grand ‑ standing to which parliamentary committees can be prone. The body may be full or part time, but even if it is part time, the supervision exerted is likely to be more continuous than that exercised by a parliamentary body, the members of which have many other political interests and responsibilities. The members ’ tenure can be made longer than the standard electoral period, something which is particularly important as intelligence has, as already mentioned ..., a relatively long “learning curve”.",
"220. Like parliamentary oversight, the mandate of an expert body can be institutional, meaning that it can be established to exercise supervision only over a specific internal security body (this is in contrast to functional review discussed below) ...",
"222. It is, however, important that the scope of the review is drawn carefully, to avoid disputes as to whether a particular activity falls within the body ’ s mandate and to avoid overlaps with other accountability mechanisms, in particular judicial controls over police powers and Ministerial accountability to parliament.",
"XI. Complaints mechanisms",
"241. Clearly it is necessary for individuals who claim to have been adversely affected by the exceptional powers of security and intelligence agencies, such as surveillance or security clearance, to have some avenue for redress. Quite apart from strengthening accountability, complaints may also help to lead to improved performance by the agencies through highlighting administrative failings. The requirements of human rights treaties, and especially the European Convention on Human Rights, with its protections of fair trial, respect for private life and the requirement of an effective remedy must obviously also be borne in mind.",
"242. Plainly, though, legitimate targets of a security or intelligence agency should not be able to use a complaints system to find out about the agency ’ s work. A complaints system should balance, on the one hand, independence, robustness and fairness, and, on the other hand, sensitivity to security needs. Designing such a system is difficult but not impossible.",
"243. Individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts. As already mentioned, for a variety of reasons, the capacity of the ordinary courts to serve as an adequate remedy in security fields is limited. The case law of the European Court of Human Rights ... makes it very clear that a remedy must not simply be on paper.",
"244. An alternative is to allow an investigation and report into a complaint against an agency by an independent official, such as an ombudsman....",
"245. In these ombudsman-type systems, the emphasis is on an independent official investigating on behalf of the complainant. These independent offices usually exist to deal with an administrative failure by public bodies, rather than a legal error. Their investigations may give less emphasis to the complainant ’ s own participation in the process and to transparency than would be the case with legal proceedings. Typically an investigation of this type will conclude not with a judgment and formal remedies, but with a report, and (if the complaint is upheld) a recommendation for putting matters right and future action...",
"246. A less common variation is for a State to use a parliamentary or expert oversight body to deal with complaints and grievances of individuals.... There may be a benefit for a parliamentary oversight body in handling complaints brought against security and intelligence agencies since this will give an insight into potential failures – of policy, legality and efficiency. On the other hand, if the oversight body is too closely identified with the agencies it oversees or operates within the ring of secrecy, the complainant may feel that the complaints process is insufficiently independent. In cases where a single body handles complaints and oversight it is best if there are quite distinct legal procedures for these different roles.",
"247. On the whole it is preferable that the two functions be given to different bodies but that processes are in place so that the oversight body is made aware of the broader implications of individual complaints. This approach is also supported by the ECHR. The requirement in ECHR Article 13 of a mechanism for remedies for alleging violations of Convention rights which is independent from the authorization process means that a State ’ s control system, e.g. for data processing, may pass the test of “accordance with the law” and “necessity in a democratic society” but that the absence of a remedy means that there is nonetheless a violation of the Convention. As already mentioned, the ECtHR has stated that a remedy must be effective in law and fact. It should be noted in particular that the ECtHR has ruled that a data inspection authority which is independent, and which has formal competence in law to award a remedy for the holding of inaccurate, inappropriate etc. security data, but which in fact lacks the expertise to evaluate this data, is not an effective remedy within the meaning of Article 13.",
"249. In some countries, not only individuals but also members of the services are permitted to bring service-related issues to the attention of an ombudsman or parliamentary oversight body...",
"250. Another method of handling complaints is through a specialist tribunal.”"
] | [
"II. RELEVANT DOMESTIC LAW",
"16. Act no. XXXIV of 1994 on the Police (“the Police Act”) provides as relevant:",
"Section 1",
"“(2) The police – within the scope of its duties as prescribed by the Fundamental Law of Hungary, by this Act and by other laws for preventing and combating crimes, administrating and policing – ...",
"15. ... within the territory of Hungary ...",
"a) tracks terrorist organisations,",
"b) prevents, tracks and repels any attempts of individuals, groups or organisations to carry out terrorist acts and impedes the commission of any crimes by them,",
"c) impedes the promotion of the operation of terrorist organisations by individuals, groups or organisations through providing financial or other support.”",
"Section 7/E",
"“(1) The anti-terrorist organ does not exercise any investigatory competence. It:",
"a) fulfils the tasks prescribed in section 1 subsection (2) point 15, and within these tasks ...",
"ad) – within the framework of the fight against terrorism and in order to safeguard the national security interests of Hungary – prevents, tracks and repels any attempts to carry out terrorist acts ( terrorcselekmény ) in Hungary. ...",
"d) on the basis of the decision of the Minister responsible for policing as endorsed by the Minister responsible for foreign affairs – in line with the rules of international law – contributes to rescuing Hungarian citizens who are – outside the territory of Hungary – in distress due to an imminent and life-threatening danger of act of war, armed conflict, hostage-taking or terrorist action; to ensuring their safe return to Hungary and to carrying out their evacuation; to this end it cooperates with the Member States and the organs of the European Union, with the organs of the North Atlantic Treaty Organization, with the related international organisations and with the authorities of the concerned foreign country.",
"e) acquires, analyses, assesses and forwards information relating to foreign countries or being of foreign origin which is required for fulfilling the task prescribed in section d) above.",
"(2) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-points aa) to ac) and in point c) – perform secret intelligence gathering in line with the provisions of Chapter VII of the Act on Police.",
"(3) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-point ad) and in point e) – perform secret intelligence gathering in line with the provisions of sections 53-60 of Act no. CXXV of 1995 on the National Security Services (the “Nbtv.”), in the course of which it may request and handle data according to the provisions of sections 38-52 of Nbtv. The secret intelligence gathering provided in section 56 points a)-e) of Nbtv. is subject to authorisation of the Minister responsible for justice.”",
"The crime of “terrorist act” ( terrorcselekmény ) is defined in section 261 of the Old Criminal Code and sections 314 to 316 of the New Criminal Code.",
"17. Act no. CXXV of 1995 on the National Security Services (the “National Security Act”, “Nbtv.”) contains the passages below.",
"Under section 11(5), complaints about the activities of the anti-terrorist organ shall be investigated by the Minister of Home Affairs who shall inform the complainants of the outcome of the investigations and of the relevant measures within 30 days (this deadline may, on one occasion, be extended by another 30 days).",
"Section 14(4) contains provisions concerning the relevant competences of the National Security Committee. In exercising parliamentary supervision, the Committee is entitled to request information from the Minister and the directors of the national security services about the country ’ s national security situation and the functioning and activities of the services (sub-section (a)).",
"In individual complaint procedures, where a complainant does not accept the results of the investigation under section 11(5), the Committee may investigate complaints alleging unlawful activities on the part of the National Security Services if, under the affirmative vote of at least one third of the Committee members, the gravity of the complaint justifies an investigation. In investigating a complaint the Committee shall examine the complaint at issue and may request the Minister to submit his opinion on the case. If the Committee is of the view that the operation of the Services has been unlawful or abusive, it may request the Minister to conduct investigations and to inform the Committee of the results of the investigations or may itself carry out fact-finding investigations if it has the impression that the operation of the Services is contrary to the relevant laws. In carrying out the fact-finding investigations, the Committee may inspect the relevant documents in the records of the National Security Services and may hear staff members of the National Security Services. Relying on the findings the Committee may invite the Minister to take the necessary actions.",
"Section 43",
"“The National Security Services may use data having come to their knowledge exclusively for the purpose that corresponds to the legal basis for ordering their acquisition, except",
"a) if the data are indicative of the commission of a criminal act and forwarding the data is legally allowed, or",
"b) if they substantiate an obligation to inform another National Security Service and the party receiving the data is itself authorised to obtain them.”",
"Section 44",
"“(1) For the purpose of fulfilling their tasks the National Security Services may request data from each other and are obliged to provide data to each other in line with the provisions of this Act.",
"(4) The bodies requesting data disclosure shall be responsible for the management of data disclosed to them according to the provisions of this Act and the data management legislation; they shall register the data they receive and their utilisation and, upon request, they shall inform the National Security Service thereof.”",
"Section 45",
"“(1) The National Security Services may, under an international obligation, transfer personal data to foreign data processing authorities within the framework of laws on protection of personal data.”",
"Section 50",
"“(2) Personal data processed by the National Security Services shall be deleted immediately if",
"a) the deadline specified in subsection (1) has expired;",
"b) deletion was ordered by a court in data protection proceedings;",
"c) processing of the data is unlawful;",
"d) the conditions specified in section 60 (2) are met;",
"e) processing of the data became manifestly unnecessary.”",
"Section 53",
"“(2) The National Security Services may apply the special means and methods of secret intelligence gathering only if the intelligence needed for the performance of the tasks laid down in the present Act cannot be obtained in any other way.”",
"Section 56",
"“The National Security Services may, under an external permission",
"a) search a dwelling secretly and record by means of technical equipment what they perceive;",
"b) keep a dwelling under surveillance by means of technical equipment and record what they perceive;",
"c) open and check postal mail and any closed parcel belonging to an identifiable person and record their contents by means of technical equipment;",
"d) detect the content of communications transmitted by electronic communications network and record it by means of technical equipment;",
"e) detect the data transmitted by or contained on a computer or network, record it by means of technical equipment and use it.”",
"Section 57",
"“(1) The motion to obtain permission for secret intelligence gathering as specified in section 56 may be submitted by director generals of the Information Authority, the Constitution Protection Authority, the Military National Security Service and – in order to carry out its task specified in section 8 (1) f) above – the Special Service for National Security.",
"(2) The motion shall contain:",
"a) the premises of the secret intelligence gathering, the person(s) concerned identified by name or as a range of persons, and/or any other information capable of identifying such person or persons;",
"b) specification of the secret intelligence gathering and reasoning substantiating its necessity;",
"c) the date of the beginning and the end of the activity;",
"d) in the case of a motion to obtain permission specified in section 59 below, reasoning why the requested intelligence is absolutely necessary in the specific case for the successful functioning of the National Security Service.”",
"Section 58",
"“(3) The ... Minister in charge of justice ... decides [on the motion] within 72 hours to be counted from the motion ’ s submission ... [he] grants permission or, in case of an ill-founded request, rejects it. No appeal lies against the decision.",
"(4) Unless this law stipulates otherwise, the authoriser allows the secret intelligence gathering for a period of a maximum of 90 days upon each request. In justified cases and upon a motion from the director generals, this time limit may be extended by 90 days, unless this law stipulates otherwise.",
"(6) The authoriser does not inform the person concerned about the proceedings or about the occurrence of secret intelligence gathering.”",
"Section 59",
"“(1) The directors of the National Security Services themselves may [exceptionally] authorise the secret gathering of information within the meaning of section 56 at the latest until the decision given [by the Minister] if the external authorisation procedure entails such delay as obviously countering, in the given circumstances, the interests of the successful functioning of the National Security Service.”",
"Section 60",
"“(1) Secret intelligence gathering based on external permission shall be discontinued immediately if",
"a) it achieved its aim defined in the permission;",
"b) its continuation does not promise any results;",
"c) its time-limit has been expired without extension;",
"d) the secret intelligence gathering is unlawful for any reasons whatsoever.",
"(2) In the framework of the special procedure defined in section 59 (1), secret intelligence gathering shall also be discontinued immediately if the authoriser does not permit its continuation. In that case, the data obtained by secret intelligence gathering shall be destroyed immediately, according to the laws regulating the deletion of qualified data.”",
"Section 74(a) defines the notion of national security interests in the following terms:",
"“Securing the sovereignty and protecting the constitutional order of Hungary and, within that framework,",
"aa) obtaining intelligence on aggressive efforts targeted against the independence and territorial integrity of the country,",
"ab) obtaining intelligence on and combating covert efforts violating or threatening the political, economic or defence interests of the country,",
"ac) obtaining information of foreign relevance or origin required for government decisions,",
"ad) obtaining intelligence on and combating covert efforts aimed at altering or disturbing by unlawful means the country ’ s constitutional order guaranteeing respect for fundamental human rights, pluralist representational democracy, the constitutional institutions and",
"ae) obtaining intelligence on and combating acts of terrorism, illegal arms and drugs trafficking, and illegal trafficking in internationally controlled products and technologies;”",
"18. Act no. CXI of 2011 on the Commissioner for Fundamental Rights (“Ajbt.”) provides as follows:",
"Under section 18 (1) f), law enforcement organs – including the anti ‑ terrorist organ – are authorities subject to investigation by the Ombudsman. There is only one limitation on the investigations conducted by the Ombudsman: the report drafted on the secret intelligence activities of organs authorised for using secret intelligence devices shall not contain data from which the conclusion can be drawn that in the given case secret intelligence activities were or have been carried out by the organ [cf. section 28(3)]. The Commissioner for Fundamental Rights shall annually submit a report to Parliament about the investigated cases and may – except for proposals for amendments – request Parliament to investigate any given case. Where the finding of an abuse or maladministration affects classified data, the Commissioner for Fundamental Rights shall – simultaneously with the annual report or, if the abuse or maladministration is very grave or affects a great number of natural persons, before the submission of the annual report – submit the case to the competent parliamentary committee in a report classified according to the Act on the Protection of Classified Data.",
"The applicants submitted a statement obtained from the Commissioner ’ s Office on 9 July 2014, according to which the Commissioner had never enquired into the field of secret surveillance measures.",
"19. Act no. CLI of 2011 on the Constitutional Court provides as follows:",
"Section 26 (1)",
"“Persons or organisations affected by a particular case may, under Article 24 (2) c) of the Fundamental Law, submit a constitutional complaint to the Constitutional Court where due to the application in the related court proceedings of a piece of legislation contravening the Fundamental Law,",
"a) their rights enshrined in the Fundamental Law have been violated, and",
"b) legal remedies have been exhausted or no remedy exists.",
"(2) By way of derogation from subsection (1), such Constitutional Court proceedings may, exceptionally, also be initiated where",
"a) the injury originated directly from the application or becoming effective of a provision contravening the Fundamental Law, without a court decision, and",
"b) no procedure to redress the injury is available or the available remedies have already been exhausted by the complainant. ...”",
"Section 27",
"“Against a judicial decision contravening the Fundamental Law within the meaning of Article 24 (2) d.) of the Fundamental Law, a person or organisation affected by the particular case may file a constitutional complaint with the Constitutional Court where the decision on the merits of the case or another decision terminating the judicial proceedings",
"a) has violated the complainant ’ s rights enshrined in the Fundamental Law, and",
"b) the complainant has already exhausted the legal remedies or no legal remedy exists.”",
"20. Decision no. 32/2013. (XI.22.) AB of the Constitutional Court establishing the constitutional requirement to be met in respect of section 58 (3) of Nbtv. and rejecting the related constitutional complaint contains the following passages:",
"“... 1. The Constitutional Court finds that ... in order to make the external control effective, the decision of the Minister responsible for justice ... authorising secret intelligence gathering must be supplied with reasons. ...",
"[42] 1.1. The regulations in force specify two types of secret intelligence gathering: secret surveillance linked to the investigation of particular crimes and secret surveillance not linked to the investigation of particular crimes. ...",
"[47] 1.2. Secret surveillance not linked to the investigation of particular crimes is either not subject to external authorisation [sections 54-55 of Nbtv.] or is subject to external authorisation [sections 54-55 of Nbtv.] In cases specified in the Act authorisation means authorisation by a judge or by the Minister of Justice.",
"[48] According to the reasoning of Nbtv., from international practice several examples can be mentioned for States making a distinction between intelligence gathering linked to the investigation of particular crimes (including the closely related fields of crime prevention and crime detection) and intelligence gathering carried out for national security purposes.",
"[49] On the basis of this principle, a system of divided authorisation has been adopted in the Act. For the purpose of detecting actual criminal offences, secret intelligence gathering is authorised – similarly to the solution applied in the Act on the Police – by a judge designated for the task by the President of the Budapest High Court, whereas section 56 activities carried out in the course of general intelligence gathering shall be authorised by the Minister of Justice. ...",
"[51] Section 53 (2) of Nbtv., according to which secret intelligence gathering may only be carried out if the data required to perform the statutory tasks cannot be obtained in any other manner, shall apply to both cases. ...",
"[62] Under section 14 (4) of Nbtv. Parliament ’ s National Security Committee shall exercise control over the authorisation process of the Minister of Justice. ...",
"[69] 2. Secret intelligence gathering governed by Nbtv and not linked to the investigation of particular crimes ... has not been examined by the Constitutional Court yet. However, in its decision no. 2/2007. (I. 24.) AB (henceforth: Abh.1.) the Constitutional Court specified the general aspects under which secret intelligence gathering and secret surveillance are acceptable in a democratic, rule-of-law State.",
"[70] Since the content of Article B) (1) of the Fundamental Law is identical to the content of Article 2 (1) of the former Constitution, and since from the rules of interpretation applicable to the Fundamental Law no conclusion contrary to the above opinion of the Constitutional Court can be inferred, the statements of principle made on the necessity and proportionality of secret intelligence gathering can be maintained.",
"[71] The Constitutional Court has also taken into consideration the Strasbourg Court ’ s jurisprudence, as recalled in its former decisions. Cases related to “covert investigations” were examined by the Court in light of the Convention provisions set forth in Article 8 which protects the right to respect for private life. In its judgments the Court held that in a democratic society the rights enshrined under Article 8 § 1 can only be restricted within the limits specified in paragraph 2, that is only for the purposes specified in that provision and only in case the necessity of the restriction is justified.",
"[72] Lawfulness under the Court ’ s case law does not merely require that a given restriction be specified under the law. The phrase “in accordance with the law” requires that the regulation itself should meet the rule-of-law principles. Since secret intelligence gathering does, per definition, exclude the possibility of an effective remedy, it is imperative that the process authorising such information gathering should contain sufficient guarantees for the protection of the rights of the individuals. Therefore, the use of secret intelligence gathering must be subject to a three-stage control: when the interference is ordered, while the interference is carried out and when the interference is terminated. Control must be exercised by “bodies” independent of the executive power. First of all, only constant, continuous and mandatory control can guarantee that in a given case the requirement of proportionality is not violated ....",
"[73] In its judgments the Court laid down the minimum requirements to be met by a legal regulation on the use of secret intelligence devices. The Court emphasised that since the interference with the fundamental rights is secret and since the use of such devices provides “unpredictable” opportunities for the executive power, it is indispensable that the procedures themselves provide sufficient guarantees for the observance of the rights of the individuals. Therefore States must create precise and detailed rules that can be abided by and accessed by the citizens. From the legal regulation the competence of the authority applying such devices, the essence of the measures and the manner of their practice should be clear and apparent. As to the requirement of the clarity of rules the Court also pointed out that the laws should specify the cases and circumstances which warrant such interference and the conditions of the interference. As a minimum guarantee the laws should determine the criteria based on which the scope of persons potentially affected can be determined and should contain provisions regulating the documentation of the use of secret intelligence devices and specifying the rules applicable to the protection and destruction of the documentation. As to decision-making on the application of secret intelligence devices, an excessively wide margin of appreciation may not be granted for the authorities (e.g. Valenzuela Contreras v. Spain (58/1997/842/1048)). As to the application of secret intelligence devices, the requirement that access to the information by outside persons should be restricted serves as an additional guarantee (e.g. Kopp v. Switzerland (13/1997/797/1000) 25 March 1998).",
"[74] Use for a particular purpose means that secret intelligence devices may only be used for reasons specified in Article 8 § 2 .... Compliance with the necessity test is closely linked to this issue. It is a basic requirement that any interference should be justified by pressing public interest and should be proportionate both to the danger needed to be countered and to the injury caused.",
"[75] An examination of these issues should not be confined to scrutinising whether the statutory conditions laid down for the restriction meet the necessity-proportionality test but should also extend to examining the necessity of the use of secret intelligence devices in the particular case. As to the requirement of necessity it is of paramount importance that any use should only take place in case of “aggravated” (serious) threat and only in case the traditional investigative means and devices prove to be inefficient in the particular circumstances of a case; moreover, any use of the secret intelligence devices should take place according to a strict procedure that can be known in advance ...",
"[76] From the Convention and the relevant case law of the Court the Constitutional Court has concluded that national security, public security and the prosecution of crime are interests for which even covert investigations – which amount to serious law-restricting devices – can be used where the above specified criteria are met.",
"[77] 3. The Constitutional Court has examined the contested provision within the confines of the complainants ’ complaint. The complainants challenged the anti-terrorist organ ’ s secret intelligence gathering activities carried out for purposes other than prosecuting crime. They alleged non-compliance with the Fundamental Law of the contested provision by alleging that the provision at issue allowed for the anti-terrorist organ ’ s secret intelligence gathering under Nbtv. – while Nbtv. contained no guarantees for the observance of the fundamental rights at issue.",
"[78] The complainants did not make a distinction between the various stages of the secret intelligence gathering (ordering, carrying out and terminating the interference) but picked out some elements of the application [of this measure] and complained about those elements. As to the ordering of the interference they complained that the permission of the Minister responsible for justice did not constitute a sufficient guarantee, in particular in view of the fact that the grounds on which the request for authorisation can be made are not exhaustively enumerated. The complainants are of the view that following the termination of the interference the fate of the information irrelevant for the purposes of the surveillance and the fate of the data related to persons not concerned in the case is not settled. ...",
"[80] Therefore, within the confines of the complaint the Constitutional Court must examine whether the authorisation by the Minister responsible for justice of secret intelligence gathering for the anti-terrorist organ and the handling of data following the termination of the interference does or does not violate the fundamental rights invoked, namely the right to privacy and the right to informational autonomy....",
"[92] 3.2. The Constitutional Court has first examined the constitutionality of the authorisation by the Minister responsible for justice. The first phase of secret surveillance is the ordering of the interference. Since in applying section 7/E (3) of the Act on the Police (henceforth: Rtv.) the Minister responsible for justice gives – by authorising the use of the secret intelligence gathering devices and methods listed in section 56 a)-e) of Nbtv. – consent to a State interference which seriously violates fundamental rights, the process of interference must be regulated under the law, the prescribed norms must be clear, and the process must be subject to external control mechanisms. ...",
"[94] ... The contested provision of Rtv. authorises the anti-terrorist organ to carry out, in performing certain of its tasks, secret intelligence gathering under the Nbtv. The Rtv. clearly specifies the two tasks for the performance of which secret surveillance under the Nbtv. may be carried out: namely, the performance of the tasks specified in section 7/E (1) a) and ad) and in section 7/E (1) e).",
"[95] The task specified under section 7/E (1) a) (subsection (ad)) to be performed in the framework of combating terrorism is the prevention, detection and suppression of endeavours to commit an act of terrorism in the territory of Hungary with a view to promoting Hungary ’ s national security interests. Item e) refers back to item d) which allows for the obtaining, analysing, assessing and forwarding of information on a foreign State or originating in a foreign State in so far as the information is necessary for the performance of the task specified there. The tasks specified under item d) are participation in the rescue, return to Hungary and evacuation of Hungarian nationals who have got into trouble due to acts of war or armed conflicts outside the territory of Hungary imminently threatening the lives and limbs of Hungarian nationals or due to terrorist acts or hostage-taking acts, as well as cooperation for such purposes with the member States and institutions of the European Union, the organs of the North Atlantic Treaty Organization, the international organisations concerned by the case and the authorities of the foreign State at issue. These tasks shall be carried out upon a decision to that effect taken by the Minister responsible for law enforcement in agreement with the Minister responsible for foreign affairs.",
"[96] Section 7/E (3) of Rtv., contested by the complainants, refers to Nbtv. and repeats the Nbtv. rules on secret intelligence gathering (sections 53-60) and the handling of the acquired data [sections 38-52]. Section 7/E (3) of Rtv. provides for the application, mutatis mutandis, of the Nbtv. provisions both to the investigation of a complaint about an activity of the anti-terrorist organ, and to the parliamentary control of the anti-terrorist organ and to the investigation of a report alleging unlawful operation on the part of the anti-terrorist organ [section 11 (5), section 14 (1)-(2) and (4) a)-f) and (5), section 15 (3), section 16, section 18 and section 27 (4) of Nbtv.] Moreover, the contested provision clearly provides that the Minister responsible for justice shall be entitled to authorise the use, within the scope of the statutory tasks, of the secret intelligence devices enumerated in an exhaustive list. Therefore section 7/E (3) of Rtv. meets the requirement of being prescribed by law and the requirement of clarity of norms, as it sufficiently specifies the conditions of ordering and the circumstances of executing the measure regulated in the Act.",
"[97] Thereafter the Constitutional Court has proceeded to examine whether in the given case the authorisation of secret intelligence gathering by the Minister responsible for justice provided sufficient guarantees for the observance of the fundamental rights of the individuals. ...",
"[102] Secret intelligence gathering for the purposes of national security may only take place under Section 7/E (1) a) ad) or e) of Rtv., that is in order to combat endeavours to commit an act of terrorism in the territory of Hungary and in relation to the protection of Hungarian nationals have got into trouble in a foreign country. ...",
"[105] The scope of national security-related tasks is much broader than the scope of the tasks related to the investigation of particular crimes as for the purposes of national security the events of real life are examined not for their criminal law relevance, and those events do not necessarily entail legal consequences. Identifying and combating endeavours aimed at committing acts having relevance from the aspects of securing the sovereignty of the State and of protecting the lawful order of the State may fall outside the sphere of particular criminal offences. Therefore national security-related tasks are not comparable to secret intelligence gathering linked to investigating a crime, which is carried out under section 69 of Rtv. and is subject to authorisation by a court. The prevention and elimination of risks to national security require political decisions, therefore decisions of this type fall in the competence of the executive power. This consideration justifies that general character secret intelligence gathering should be authorised by the Minister responsible for justice.",
"[106] However, in granting the authorisation the Minister responsible for justice must weigh the interests of national security against the injury done to the fundamental rights. Therefore in addition to assessing the national security interests of the country from a political (home and foreign affairs) aspect, the person granting the authorisation should also strike a fair balance between the interests of national security and fundamental rights. In doing so, it must start from the principle that secret intelligence methods for national security purposes may only be used even by the anti-terrorist organ as a last resort means of detection. Section 53 (2) of Nbtv. clearly provides for the ultima ratio nature of secret intelligence methods: the special devices and methods of secret intelligence gathering can only be used where the data needed for the completion of a prescribed task cannot be obtained in any other way, namely by the traditional means of detection. This provision of Nbtv. is intended to serve as a legal guarantee similar to that which the specification in the law of the acts amounting to criminal offences constitutes in the context of secret intelligence gathering linked to the investigation of a particular crime and carried out upon the suspicion of an offence.",
"[107] ... The request for authorisation must be supported with reasons. The ... grantor of the authorisation shall base his decision on the content of the request: the request shall be granted or, in case of ill-foundedness, rejected. Hence, in case the requesting authority cannot sufficiently justify that the data required for performing its tasks cannot be acquired in any other manner no authorisation for the use of intelligence devices and methods shall be given. ...",
"[114] As to the ordering and carrying out of the secret intelligence gathering external control is a fundamental guarantee. Control over the activities performed by the anti-terrorist organ under the rules of Nbtv. is exercised by the National Security Committee (henceforth: Committee) of the Parliament ... Upon the Committee ’ s request the Minister of Justice shall provide information on the nature of the authorised information gathering and on the type of the case (section 14(4) b) Nbtv.).",
"[115] The Committee may acquire information about irregularities related to the operation of the Services (anti-terrorist organ) from, among others, its own inquiries, from citizen complaints or from information from the staff members of the Services. ...",
"[119] Nbtv. sets one single bar to the Committee ’ s control: the Committee may not learn of information which might endanger the prime importance national security interests in protecting the methods and sources (participating persons) relied on in the case at issue (section 16(1) of Nbtv.).",
"[120] The operation of the National Security Services and of the anti-terrorist organ and of the Minister of justice ’ s authorising activity can be controlled, in addition to the Parliament, by the Parliamentary Commissioner for Fundamental Rights as well.",
"[121] Under section 18 (1) f) of Act no. CXI of 2011 on the Parliamentary Commissioner for Fundamental Rights (henceforth: Ajbt.) law enforcement organs, including the anti-terrorist organ, are authorities that can be examined by the Ombudsman. ... Hence no obstacle exists to an examination by the Ombudsman, the only bar being that – similarly to the control by Parliament – the report made on the examination of the secret intelligence activities of the authorities authorised for using secret intelligence devices and methods may not contain data from which the secret intelligence gathering activities carried out by the organ in the case at issue can be inferred (section 28(3)). The Commissioner for Fundamental Rights may present, in case the conditions specified under section 38 of Ajbt. are met, the cases examined by him to Parliament in an annual report and may, with the exception of motions for amendments, request Parliament to examine a case. ...",
"[122] On the basis of the above information the Constitutional Court has concluded that Nbtv. allows for the control of the authorisation granting of the Minister of Justice by bodies independent of the executive power. ...",
"[124] 3.3 In examining the reference in section 7/E (3) of Rtv. the Constitutional Court has observed that section 58 (3) of Nbtv. does not expressly provide for a reasoned decision ...",
"[127] A necessary element of any judicial decision to be taken on secret intelligence gathering under the Rtv. is an examination of the compliance of the request for authorisation with the statutory requirements. ...",
"[128] [...] The reference in section 7/E (3) of Rtv. also requires authorisation from the Minister of Justice for national security-related secret intelligence gathering carried out by the anti-terrorist organ, which is part of the Police Service, in order to combat endeavours to commit an act of terrorism in the territory of Hungary or in relation to the protection of Hungarian nationals who have got into trouble in a foreign country. ...",
"[130] Since Nbtv. does not expressly require the Minister of Justice to issue a reasoned decision, the authoriser is under no obligation to provide reasoning. In the absence of reasoning, however, no posterior understanding, analysis or review of the aspects and reasons giving rise to the decision in a particular case is possible for those who exercise external control.",
"[131] Though section 58 (3) of Nbtv. prescribes that the authorisation grantor shall base his decision on the content of the request, this content is, per definition, one-sided since in arguing for the necessity of the secret information gathering the request will solely invoke national security interests. The authorisation grantor must strike a fair balance between the interests of national security and fundamental rights enshrined under Article VI (1)-(2) of the Fundamental Law for persons affected by secret intelligence gathering and must ensure, in addition to determining the necessity of the restriction, that the restriction is proportionate. ...",
"[132] Given that the special nature of secret surveillance excludes the possibility of a remedy, a restriction of the right to privacy and of the right to informational autonomy that is proportionate to the protection of national security will require effective external control already in granting the authorisation for the use of the secret intelligence devices.",
"[133] The National Security Committee and the Commissioner for Fundamental Rights may only constitute effective external control over the authorisation activity of the Minister of Justice if the Minister ’ s decision authorising the secret surveillance contains sufficiently detailed reasons. The reasons should be of a depth and detail that enable those who exercise the external control to review the balance struck between the interests of national security and the fundamental rights at issue.",
"[134] Upon the authorisation granted in section 46 (3) of Abtv., in order to ensure effective external control, the Constitutional Court has laid down as a constitutional requirement ensuring compliance with Article VI (1)-(2) of the Fundamental Law that in applying section 58 (3) of Nbtv. the decision of the Minister responsible for justice ordering secret intelligence gathering must be supported by reasons.",
"[135] 3.4. Thereafter the Constitutional Court has examined whether the data handling by the anti-terrorist organ following the termination of the secret intelligence gathering violates the right to informational autonomy. The complainants complained that Nbtv., contrary to Rtv., fails to provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case. ...",
"[138] Based on the above considerations the Constitutional Court has established that though Nbtv., contrary to section 73 (3) of Rtv., does not expressly provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case, from the joint interpretation of the phrase “obviously unnecessary” in section 50 (2) e) and of section 43 of Nbtv. it clearly follows that any data unnecessary for achieving the aim serving as a legal ground for the data acquisition, in particular the data related to persons not concerned by the case, must be deleted ex officio. Therefore the above regulation meets the principle of being purpose-bound and is suitable to prevent storing data acquisition. Moreover, Nbtv. allows for the concerned persons to file a request for the deletion of their personal data, which request can only be rejected by the Chief Director on specific grounds. External control exists over the data processing as well, since the reasons for the rejection of a request must also be sent to the National Data-Protection and Information Freedom Authority [section 48 of Nbtv.].",
"[139] Therefore the Constitutional Court dismisses, in this respect as well, the complaint alleging non-compliance of the contested provision with the Fundamental Law and seeking the annulment of the contested provision. ...”",
"III. European Commission for Democracy through Law (“The Venice Commission”)",
"21. The Report on the Democratic oversight of the Security Services adopted by the Venice Commission at its 71st Plenary Session (Venice, 1 ‑ 2 June 2007) (CDL-AD(2007)016-e) contains the following passages:",
"“81. In the light of the importance and nature of the interests at stake, security intelligence gathering is one of the main areas of national decision-making which a government is most unwilling to submit to national legislative scrutiny and judicial review and, a fortiori, to international supervision and control.",
"82. For a variety of reasons, there can be tension as regards national security policy, not only between the governing party and the political opposition in a State, but also constitutional tension between the executive and the legislative power, tension within a government (especially a coalition government), and tension between political masters and the staff of security intelligence agencies. A large degree of secrecy must accompany national security policy making and operations. However secrecy also has the effect of increasing the government ’ s control over policy at the expense of the legislative power, and of insulating the former from criticism. This is exacerbated by the fact that nowadays, there is a link between “external” and “internal” threats to the State. Accordingly, security and intelligence information tends to form an indivisible whole. ...",
"86. It is particularly important, as regards the limited scope of parliamentary and judicial control, to note the special nature of security intelligence. The heart of a security agency is its intelligence files. “Hard” data, purely factual information, is insufficient for a security agency, or for that matter, any police organization. It also needs to gather speculative intelligence in order to determine which people are, or are probably or possibly, threatening national security. This information can be obtained in different ways. A large proportion of non-open source internal security information comes from informants. Like factual information, such “soft intelligence” can, and must if the agency is to do its job properly, be collated to produce a personality profile of a suspect or an analysis of a suspected activity. ...",
"IV. OTHER RELEVANT INTERNATIONAL TEXTS",
"22. Several elements of international law, relevant in this context, are outlined in the judgment Dragojević v. Croatia (no. 68955/11, §§ 62 to 66, 15 January 2015).",
"23. In Digital Rights Ireland v Minister for Communications & Others, (cases C-293/12 and C-594/12, 8 April 2014), the Court of Justice of the European Union held as follows:",
"“26. In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users ’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period.",
"27. Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.",
"...",
"52. So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court ’ s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C ‑ 473/12 IPI EU:C: 2013:715, paragraph 39 and the case-law cited).",
"...",
"62. In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits.”",
"24. The 2013 Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, contains the following conclusions and recommendations:",
"“78. Communications techniques and technologies have evolved significantly, changing the way in which communications surveillance is conducted by States. States must therefore update their understandings and regulation of communications surveillance and modify their practices in order to ensure that individuals ’ human rights are respected and protected.",
"79. States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; an infringement upon one can be both the cause and consequence of an infringement upon the other. Without adequate legislation and legal standards to ensure the privacy, security and anonymity of communications, journalists, human rights defenders and whistleblowers, for example, cannot be assured that their communications will not be subject to States ’ scrutiny.",
"80. In order to meet their human rights obligations, States must ensure that the rights to freedom of expression and privacy are at the heart of their communications surveillance frameworks. To this end, the Special Rapporteur recommends the following:",
"A. Updating and strengthening laws and legal standards",
"81. Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society. Legislation must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority. Safeguards must be articulated in law relating to the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorize, carry out and supervise them, and the kind of remedy provided by the national law.",
"82. Individuals should have a legal right to be notified that they have been subjected to communications surveillance or that their communications data has been accessed by the State. Recognizing that advance or concurrent notification might jeopardize the effectiveness of the surveillance, individuals should nevertheless be notified once surveillance has been completed and have the possibility to seek redress in respect of the use of communications surveillance measures in their aftermath.",
"83. Legal frameworks must ensure that communications surveillance measures:",
"(a) Are prescribed by law, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application;",
"(b) Are strictly and demonstrably necessary to achieve a legitimate aim; and",
"(c) Adhere to the principle of proportionality, and are not employed when less invasive techniques are available or have not yet been exhausted.",
"84. States should criminalize illegal surveillance by public or private actors. Such laws must not be used to target whistleblowers or other individuals seeking to expose human rights violations, nor should they hamper the legitimate oversight of government action by citizens.",
"85. The provision of communications data by the private sector to States should be sufficiently regulated to ensure that individuals ’ human rights are prioritized at all times. Access to communications data held by domestic corporate actors should only be sought in circumstances where other available less invasive techniques have been exhausted.",
"86. The provision of communications data to the State should be monitored by an independent authority, such as a court or oversight mechanism. At the international level, States should enact Mutual Legal Assistance Treaties to regulate access to communications data held by foreign corporate actors.",
"87. Surveillance techniques and practices that are employed outside of the rule of law must be brought under legislative control. Their extra-legal usage undermines basic principles of democracy and is likely to have harmful political and social effects.",
"B. Facilitating private, secure and anonymous communications",
"88. States should refrain from compelling the identification of users as a precondition for access to communications, including online services, cybercafés or mobile telephony.",
"89. Individuals should be free to use whatever technology they choose to secure their communications. States should not interfere with the use of encryption technologies, nor compel the provision of encryption keys.",
"90. States should not retain or require the retention of particular information purely for surveillance purposes.",
"C. Increasing public access to information, understanding and awareness of threats to privacy",
"91. States should be completely transparent about the use and scope of communications surveillance techniques and powers. They should publish, at minimum, aggregate information on the number of requests approved and rejected, a disaggregation of the requests by service provider and by investigation and purpose.",
"92. States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature and application of the laws permitting communications surveillance. States should enable service providers to publish the procedures they apply when dealing with State communications surveillance, adhere to those procedures, and publish records of State communications surveillance.",
"93. States should establish independent oversight mechanisms capable to ensure transparency and accountability of State surveillance of communications.",
"94. States should raise public awareness on the uses of new communication technologies in order to support individuals in properly assessing, managing, mitigating and making informed decisions on communications-related risks.",
"D. Regulating the commercialization of surveillance technology",
"95. States should ensure that communications data collected by corporate actors in the provision of communications services meets the highest standards of data protection.",
"96. States must refrain from forcing the private sector to implement measures compromising the privacy, security and anonymity of communications services, including requiring the construction of interception capabilities for State surveillance purposes or prohibiting the use of encryption.",
"97. States must take measures to prevent the commercialization of surveillance technologies, paying particular attention to research, development, trade, export and use of these technologies considering their ability to facilitate systematic human rights violations.",
"E. Furthering the assessment of relevant international human rights obligations",
"98. There is a significant need to advance international understanding on the protection of the right to privacy in light of technological advancements. The Human Rights Committee should consider issuing a new General Comment on the right to privacy, to replace General Comment No. 16 (1988).",
"99. Human rights mechanisms should further assess the obligations of private actors developing and supplying surveillance technologies.”",
"25. The European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens ’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs contains the following passages:",
"The impact of mass surveillance",
"“...",
"G. whereas the revelations since June 2013 have caused numerous concerns within the EU as to: ...",
"- the possibility of these mass surveillance operations being used for reasons other than national security and the fight against terrorism in the strict sense, for example economic and industrial espionage or profiling on political grounds;",
"- the undermining of press freedom and of communications of members of professions with a confidentiality privilege, including lawyers and doctors;",
"- the respective roles and degree of involvement of intelligence agencies and private IT and telecom companies;",
"- the increasingly blurred boundaries between law enforcement and intelligence activities, leading to every citizen being treated as a suspect and being subject to surveillance;",
"- the threats to privacy in a digital era and the impact of mass surveillance on citizens and societies;",
"...",
"T. whereas fundamental rights, notably freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination, as enshrined in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights, are cornerstones of democracy; whereas mass surveillance of human beings is incompatible with these cornerstones;",
"...",
"Democratic oversight of intelligence services",
"BW. whereas intelligence services in democratic societies are given special powers and capabilities to protect fundamental rights, democracy and the rule of law, citizens ’ rights and the State against internal and external threats, and are subject to democratic accountability and judicial oversight; whereas they are given special powers and capabilities only to this end; whereas these powers should be used within the legal limits imposed by fundamental rights, democracy and the rule of law and their application should be strictly scrutinised, as otherwise they lose legitimacy and risk undermining democracy;",
"BX. whereas the fact that a certain level of secrecy is conceded to intelligence services in order to avoid endangering ongoing operations, revealing modi operandi or putting at risk the lives of agents, such secrecy cannot override or exclude rules on democratic and judicial scrutiny and examination of their activities, as well as on transparency, notably in relation to the respect of fundamental rights and the rule of law, all of which are cornerstones in a democratic society;",
"BY. whereas most of the existing national oversight mechanisms and bodies were set up or revamped in the 1990s and have not necessarily been adapted to the rapid political and technological developments over the last decade that have led to increased international intelligence cooperation, also through the large scale exchange of personal data, and often blurring the line between intelligence and law enforcement activities;",
"BZ. whereas democratic oversight of intelligence activities is still only conducted at national level, despite the increase in exchange of information between EU Member States and between Member States and third countries; whereas there is an increasing gap between the level of international cooperation on the one hand and oversight capacities limited to the national level on the other, which results in insufficient and ineffective democratic scrutiny;",
"CA. whereas national oversight bodies often do not have full access to intelligence received from a foreign intelligence agency, which can lead to gaps in which international information exchanges can take place without adequate review; whereas this problem is further aggravated by the so-called ‘ third party rule ’ or the principle of ‘ originator control ’, which has been designed to enable originators to maintain control over the further dissemination of their sensitive information, but is unfortunately often interpreted as applying also to the recipient services ’ oversight;",
"CB. whereas private and public transparency reform initiatives are key to ensuring public trust in the activities of intelligence agencies; whereas legal systems should not prevent companies from disclosing to the public information about how they handle all types of government requests and court orders for access to user data, including the possibility of disclosing aggregate information on the number of requests and orders approved and rejected;",
"Main findings",
"...",
"6. Recalls the EU ’ s firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection;",
"7. Considers that data collection of such magnitude leaves considerable doubts as to whether these actions are guided only by the fight against terrorism, since it involves the collection of all possible data of all citizens; points, therefore, to the possible existence of other purposes including political and economic espionage, which need to be comprehensively dispelled;",
"8. Questions the compatibility of some Member States ’ massive economic espionage activities with the EU internal market and competition law as enshrined in Titles I and VII of the Treaty on the Functioning of the European Union; reaffirms the principle of sincere cooperation as enshrined in Article 4(3) of the Treaty on European Union, as well as the principle that Member States shall ‘ refrain from any measures which could jeopardise the attainment of the Union ’ s objectives ’;",
"10. Condemns the vast and systemic blanket collection of the personal data of innocent people, often including intimate personal information; emphasises that the systems of indiscriminate mass surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens; stresses that privacy is not a luxury right, but is the foundation stone of a free and democratic society; points out, furthermore, that mass surveillance has potentially severe effects on freedom of the press, thought and speech and on freedom of assembly and of association, as well as entailing a significant potential for abusive use of the information gathered against political adversaries; emphasises that these mass surveillance activities also entail illegal actions by intelligence services and raise questions regarding the extraterritoriality of national laws;",
"12. Sees the surveillance programmes as yet another step towards the establishment of a fully-fledged preventive state, changing the established paradigm of criminal law in democratic societies whereby any interference with suspects ’ fundamental rights has to be authorised by a judge or prosecutor on the basis of a reasonable suspicion and must be regulated by law, promoting instead a mix of law enforcement and intelligence activities with blurred and weakened legal safeguards, often not in line with democratic checks and balances and fundamental rights, especially the presumption of innocence; recalls in this regard the decision of the German Federal Constitutional Court on the prohibition of the use of preventive dragnets ( ‘ präventive Rasterfahndung ’ ) unless there is proof of a concrete danger to other high-ranking legally protected rights, whereby a general threat situation or international tensions do not suffice to justify such measures;",
"...",
"14. Points out that the abovementioned concerns are exacerbated by rapid technological and societal developments, since internet and mobile devices are everywhere in modern daily life ( ‘ ubiquitous computing ’ ) and the business model of most internet companies is based on the processing of personal data; considers that the scale of this problem is unprecedented; notes that this may create a situation where infrastructure for the mass collection and processing of data could be misused in cases of change of political regime; ...”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"26. The applicants complained under Article 8 of the Convention that they could potentially be subjected to measures within the framework of “section 7/E (3) surveillance”. They submitted that the legal framework was prone to abuse, notably for want of judicial control.",
"Article 8 provides as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"27. The Government contested these allegations.",
"A. Admissibility",
"1. The parties ’ submissions",
"28. The Government did not formally contest the applicants ’ potential victim status within the meaning of the Court ’ s jurisprudence, under which the mere existence of a piece of legislation allowing for the use of secret intelligence devices served as a ground for victim status, even if no such device had ever been used against an applicant. However, the Government disputed the applicants ’ allegations that – as staff members of a watchdog organisation – they were affected more directly by the possibility of being subjected to secret surveillance than others.",
"29. Moreover, the Government submitted that in their constitutional complaint the applicants had not complained about the presence or absence of guarantees in the entire process of secret intelligence gathering. They had only complained about the authorisation by the Minister of Justice of the interference and the data handling following the termination of the interference. The Government emphasised that in respect of any further complaints that the applicants might have in relation to other phases of the process, they had failed to exhaust the available domestic remedies.",
"30. Regarding victim status, the applicants emphasised that the lack of meaningful external control over the use of covert surveillance had put individuals ’ privacy in danger as nothing prevented the political power from using this prerogative arbitrarily. Their watchdog activity might not serve as a ground for secret intelligence gathering. Nevertheless, their statement ‑ according to which they, as staff members of watchdog organisations voicing criticism against the Government, felt more frustrated and worried about being subjected to secret surveillance than average citizens probably did – could not be regarded as fear based on completely unfounded assumptions, especially if considering some of the Government ’ s recent measures as being directed against civil organisations.",
"31. Concerning exhaustion of domestic remedies, the applicants did not dispute that their constitutional complaint had been focused on the system of authorisation, since only the safeguards built into this phase were able to provide adequate protection to right to privacy. This meant that guarantees related to later procedural phases were unable to counterbalance the detriment caused to the right to privacy if there was no control mechanism built into the process of authorisation of secret surveillance that was able to impede legally unjustifiable interventions into the private sphere. However, the question as to whether this assertion was correct might only be assessed considering the procedure as a whole. The Government ’ s suggestion that the Court should refrain from the assessment of procedural phases beyond the authorisation phase was pointless and practically not feasible. Moreover, the applicants emphasised that the complaint lodged with the Constitutional Court and the complaint submitted to the Court did not completely correspond to each other in terms of the arguments forwarded, and that therefore the Court should not refrain, purely relying on the principle of subsidiarity, from examining the question as to whether the other guarantees provided in the procedure ensured adequate protection.",
"2. The Court ’ s assessment",
"32. As to the applicants ’ victim status, the Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006).",
"33. However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has accepted that, under certain circumstances, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him. The Court ’ s approach to assessing whether there has been an interference in cases raising a complaint about the legislation allowing secret surveillance measures was set out in its Klass and Others judgment (cited above, §§ 34 and 36) as follows:",
"“34. ... the effectiveness ( l ’ effet utile ) of the Convention implies in such circumstances some possibility of having access to the Commission. If this were not so, the efficiency of the Convention ’ s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.",
"The Court therefore accepts that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures.",
"...",
"36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. ...",
"The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25, since otherwise Article 8 runs the risk of being nullified.”",
"34. Following Klass and Others (cited above) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82 ), the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a “reasonable likelihood” that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996); subsequently, the Court applied a similar approach (see Halford v. the United Kingdom, 25 June 1997, §§ 56 to 57, Reports of Judgments and Decisions 1997 ‑ III ).",
"35. More pertinently with regard to the present application, in other cases which concerned complaints about the legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia (dec.), no. 54934/00, § 78, ECHR 2006 XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58 to 60, 28 June 2007; Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30 to 35, 10 February 2009 ).",
"36. In the case of Kennedy v. the United Kingdom (no. 26839/05, § 124, 18 May 2010 ) the Court held that in order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by the Court.",
"Most recently, the Court adopted, in Roman Zakharov v. Russia ( [GC], no. 47143/06, §§ 170-172, 4 December 2015), a harmonised approach based on Kennedy, according to which firstly the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affect all users of communication services by instituting a system where any person can have his or her communications intercepted; and secondly the Court will take into account the availability or remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies.",
"37. The Court observes that the present applicants complained of an interference with their homes, communications and privacy on the basis of the very existence of the law permitting secret surveillance and the lack of adequate safeguards, admitting that their personal or professional situations were not of the kind that might normally attract the application of surveillance measures. They nevertheless thought they were at particular risk of having their communications intercepted as a result of their employment with civil-society organisations criticising the Government.",
"38. The Court observes that affiliation with a civil-society organisation does not fall within the grounds listed in section 7/E (1) point (a) sub-point ( ad ) and point (e) of the Police Act, which concern in essence terrorist threats and rescue operations to the benefit of Hungarian citizens in dangerous situations abroad. Nevertheless, it appears that under these provisions any person within Hungary may have his communications intercepted if interception is deemed necessary on one of the grounds enumerated in the law (see paragraph 16 above). The Court considers that it cannot be excluded that the applicants are at risk of being subjected to such measures should the authorities perceive that to do so might be of use to pre-empt or avert a threat foreseen by the legislation – especially since the law contains the notion of “persons concerned identified ... as a range of persons” which might include indeed any person.",
"The Court also notes that, by examining their constitutional complaint on the merits, the Constitutional Court implicitly acknowledged the applicants ’ being personally affected by the legislation in question for the purposes of section 26(1) of the Act on the Constitutional Court (see paragraph 19 above).",
"It is of importance at this juncture to note that they are staff members of a watchdog organisation, whose activities have previously been found similar, in some ways, to those of journalists (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, 14 April 2009). The Court accepts the applicants ’ suggestion that any fear of being subjected to secret surveillance might have an impact on such activities (see, mutatis mutandis, Nagla v. Latvia, no. 73469/10, § 82, 16 July 2013). In any case, whether or not the applicants belong to a targeted group, the Court considers that the legislation directly affects all users of communication systems and all homes.",
"39. Considering in addition that the domestic law does not appear to provide any possibility for an individual who alleges interception of his or her communications to lodge a complaint with an independent body, the Court is of the view that the applicants can claim to be victims of a violation of their rights under the Convention, within the meaning of Article 34 of the Convention.",
"40. Concerning the exhaustion of domestic remedies, the Court is satisfied that the applicants brought to the attention of the national authorities, in the instant case the Constitutional Court, the essence of their grievance, that is, the alleged insufficiency of guarantees in the rules governing “section 7/E (3) surveillance”. While noting the Government ’ s objection according to which this constitutional complaint was focused on but a few central issues, the Court considers that, because of the nature of the problem, the system of guarantees preceding the measures, prevailing during their application and following it is a complex set of arrangements which must be assessed in its entirety (see Klass and Others, cited above, §§ 39 to 60). Consequently – and assuming that the procedure before the Constitutional Court was at all an effective remedy to exhaust in the circumstances – the fact that the applicants ’ constitutional complaint did not encompass all possible issues but highlighted a few cannot be held against them so as to enable the rejection of their complaints on account of non ‑ exhaustion of domestic remedies, in so far as their representations made to the Court on these issues can be seen as supplementing the ones submitted to the Constitutional Court (see, mutatis mutandis, Gustafsson v. Sweden, 25 April 1996, § 51, Reports 1996 ‑ II).",
"41. Moreover, the Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.",
"B. Merits",
"1. Arguments of the parties",
"( a ) The Government",
"42. With regard to the necessity of judicial authorisation in the context of Article 8, the Government referred to the Venice Commission ’ s Report on the Democratic Oversight of the Security Services (CDL-AD(2007)016, adopted at the Venice Commission ’ s 71 st Plenary Session, Venice, 1-2 June 2007). Relying on several observations made in this report, the Government submitted that the domestic courts were not suitable to determine the necessity of secret intelligence gathering for national security purposes due to the nature of the data to be assessed, to the inherent subjectivity of the risk assessment, to the political nature of the notion of national security and to the wide margin of appreciation afforded in this field to the Government.",
"43. In the Government ’ s view, it was an inherent feature of a judicial decision that the judge examines the compliance of the proposed decision with the rules of positive law or with rules that could be inferred from positive law. In the field of authorising national security-purposed secret intelligence gathering no positive law specifying any exact criteria providing grounds for judicial decisions existed or could be created. The reason for that was that, in authorising national security secret intelligence gathering, the decision, for which the decision-maker bore political responsibility, was to be taken by assessing the country ’ s security interests and by taking into account home and foreign political aspects. Consequently, the Minister of Justice – bearing political responsibility ‑ was a person more qualified than judges to make such decisions. In any case, experience showed that judicial review in this field was not more apt than governmental supervision.",
"44. Moreover, the Government reiterated that the national security related authorisation activity of the Minister of Justice had always been controlled by the Parliamentary Committee for National Security and by the Data Protection Ombudsman and there were no signs indicating that the authorisation mechanism was formal or arbitrary.",
"45. Finally, the Government argued – relying on the observations made by the Court in Klass and Others (cited above), in Goranova-Karaeneva v. Bulgaria (no. 12739/05, 8 March 2011) and in Golder v. the United Kingdom (21 February 1975, Series A no. 18) – that the complaint related to the lack of an effective legal remedy under Article 13 was manifestly ill ‑ founded.",
"( b ) The applicants",
"46. Replying to the arguments based on the Venice Commission ’ s Report, the applicants stressed that because ordinary courts were, in practice, frequently confronted with difficulties in dealing with the large discretion afforded to the Government in this area, as observed by the Venice Commission, it could not be concluded that judicial control resulted in a less adequate control of secret surveillance for national security purposes. The actual conclusion of the Report was that only a complex arrangement of guarantees designed to involve judges in the control of security services could ensure the adequate protection of individuals. As pointed out in the Venice Convention ’ s Report, “[i]n order for judicial control to be effective, the judges must be independent and possess the necessary expertise”.",
"47. The applicants also emphasised that the preconditions for the use of special secret surveillance instruments and methods of intelligence information gathering were not precisely defined in the law and this might also lead to arbitrary decision-making in the absence of judicial control. In this connection the applicants referred to the Court ’ s case-law, arguing that restrictions on the right to privacy by means of secret surveillance might only be in line with the Convention if the restriction was properly defined by the law (cf. Malone, cited above).",
"48. The applicants further argued that the Data Protection Ombudsman and the Parliamentary Committee for National Security were not a substitute for the judicial control in the authorisation phase since they constituted oversight, rather than remedial, mechanisms and these had only general consequences not affecting the concrete case. Upon queries addressed to these two organs, the applicants found that none of them had ever dealt with a case on surveillance of citizens. These potential control mechanisms were thus not effective.",
"( c ) The third parties",
"( i ) Center for Democracy & Technology (CDT)",
"49. The CDT drew the Court ’ s attention to the States ’ advanced present ‑ day capabilities for sophisticated and invasive surveillance, as well as to their ability to build a detailed profile of any individual ’ s activities and relationships using intercepted data. It mentioned the vast amount of information that could be retrieved from a physically seized computer or other personal electronic device. It further emphasised the development of the possibilities to intercept communication and metadata, such as contacts and location information, remotely, by tapping Internet or telephone networks. In addition to mass surveillance and the sophisticated analysis of the intercepted data, States were also able to conduct targeted surveillance of specific individuals by installing remotely malicious software on their devices, even enabling secret surveillance agencies to record keystrokes, sounds, photos or videos, unbeknown to the owner.",
"50. According to the CDT, in the light of such surveillance capabilities, Article 8 required judicial oversight over all secret surveillance programmes conducted for the purpose of national security. Regarding those exceptional cases where judicial oversight was impossible, the CDT invited the Court to provide clear guidance to Contracting Parties and applicants by adopting a set of specific criteria for determining whether a non-judicial oversight process was sufficient to prevent the abuse of Article 8 rights – although the CDT maintained that Article 8 nevertheless required judicial control as the last resort. Finally, the CDT concluded that anyone within the jurisdiction of a Contracting Party who had a credible claim to have been the victim of an Article 8 violation arising from a secret national security surveillance programme must have access to a remedy that was effective in the sense that the remedial body was obliged to conduct an investigation into the complaint, and was both empowered and obligated to provide effective redress for the violation.",
"( ii ) Privacy International",
"51. Privacy International reviewed the relevant jurisprudence, both of the Court and national courts in Europe, Canada and the United Sates, highlighting recent decisions affirming that surveillance measures, including mere access to data retained by communications service providers, must be subject to judicial control or dependent upon the issuance of a judicial warrant. Moreover, Privacy International overviewed the international human rights standards relevant to the question of judicial control of surveillance, referring ‑ among other things ‑ to United Nations announcements and to the International Principles on the Application of Human Rights to Communications Surveillance which all include the need for judicial control of surveillance and for the right to an effective remedy.",
"2. The Court ’ s assessment",
"52. It is not in dispute between the parties that the measures which the TEK is entitled to apply under section 56 of the National Security Act (see paragraph 17 above), that is, to search and keep under surveillance the applicants ’ homes secretly, to check their postal mail and parcels, to monitor their electronic communications and computer data transmissions and to make recordings of any data acquired through these methods can be examined from the perspective of the notions of “private life”, “home” and “correspondence”, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Klass and Others, cited above, § 41).",
"53. In the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an “interference by a public authority” with the exercise of the applicants ’ right to respect for private and family life and for correspondence (see Klass and Others, cited above, § 41). Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007 ‑ I).",
"54. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim. This provision, “since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42).",
"55. The Court finds that the aim of the interference in question is to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 § 2. This has not been in dispute between the parties. On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society (see Klass and Others, cited above, § 46).",
"56. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig v. France, 24 April 1990, § 34, Series A no. 176 ‑ B; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000 ‑ 11; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998 ‑ V; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; Association for European Integration, cited above, § 76; and Roman Zakharov, cited above, § 231 ).",
"57. When balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant ’ s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, §106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; Kennedy, cited above, §§ 153 and 154; and Roman Zakharov, cited above, § 232).",
"58. The Court has found an interference under Article 8 § 1 in respect of the applicants ’ general complaint about the rules of “section 7/E (3) surveillance” and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine this legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicants. In the circumstances, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with in respect of the “section 7/E (3) surveillance” regime and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kvasnica, cited above, § 84).",
"59. The expression “in accordance with the law” in Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26; Lambert v. France, 24 August 1998, § 23, Reports 1998-V; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX (extracts); Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 61, 26 April 2007; Association for European Integration, cited above, § 71; and Liberty, cited above, § 59). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236).",
"60. It is not in dispute that the interference in question had a legal basis. The relevant rules are contained in statute law, that is, in the Police Act and the National Security Act. Their accessibility has not been called into question.",
"61. The applicants, however, contended that this law was not sufficiently detailed and precise to meet the “foreseeability” requirement of Article 8 § 2, as it did not provide for sufficient guarantees against abuse and arbitrariness.",
"62. The reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures ( see Roman Zakharov, cited above, § 229).",
"63. In the present case, two situations may entail secret surveillance, namely, the prevention, tracking and repelling of terrorist acts in Hungary (section 7/E (1) a) ( ad ) of the Police Act) and the gathering of intelligence necessary for rescuing Hungarian citizens in distress abroad (section 7/E (1) e), see in paragraph 16 above).",
"The applicants criticised these rules as being insufficiently clear.",
"64. The Court is not wholly persuaded by this argument, recalling that the wording of many statutes is not absolutely precise, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260 ‑ A). It is satisfied that even in the field of secret surveillance, where foreseeability is of particular concern, the danger of terrorist acts and the needs of rescue operations are both notions sufficiently clear so as to meet the requirements of lawfulness. For the Court, the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all situations that may prompt a decision to launch secret surveillance operations. The reference to terrorist threats or rescue operations can be seen in principle as giving citizens the requisite indication (compare and contrast Iordachi and Others, cited above, § 46). For the Court, nothing indicates in the text of the relevant legislation that the notion of “terrorist acts”, as used in section 7/E (1) a) ( ad ) of the Police Act, does not correspond to the crime of the same denomination contained in the Criminal Code (see paragraph 16 above).",
"65. However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 247).",
"66. The Court notes that under “section 7/E (3) surveillance”, it is possible for virtually any person in Hungary to be subjected to secret surveillance. The legislation does not describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the underlying situations be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraphs, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Under the relevant Hungarian law, the proposal submitted to the responsible government minister must specify, either by name or as a range of persons, the person or persons as the interception subjects and/or any other relevant information capable of identifying them as well as the premises in respect of which the permission is sought (section 57 (2) of the National Security Act, see paragraph 17 above).",
"67. It is of serious concern, however, that the notion of “persons concerned identified ... as a range of persons” might include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens. The Court notes the absence of any clarification in domestic legislation as to how this notion is to be applied in practice (see, mutatis mutandis, Roman Zakharov, cited above, § 245). For the Court, the category is overly broad, because there is no requirement of any kind for the authorities to demonstrate the actual or presumed relation between the persons or range of persons “concerned” and the prevention of any terrorist threat – let alone in a manner enabling an analysis by the authoriser which would go to the question of strict necessity (see in paragraphs 72 and 73 below) with regard to the aims pursued and the means employed – although such an analysis appears to be warranted by section 53 (2) of the National Security Act, according to which “secret intelligence gathering [may only be applied] if the intelligence needed ... cannot be obtained in any other way”.",
"68. For the Court, it is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. The techniques applied in such monitoring operations have demonstrated a remarkable progress in recent years and reached a level of sophistication which is hardly conceivable for the average citizen (see the CDT ’ s submissions on this point in paragraphs 49-50 above), especially when automated and systemic data collection is technically possible and becomes widespread. In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens ’ Convention rights. These data often compile further information about the conditions in which the primary elements intercepted by the authorities were created, such as the time and place of, as well as the equipment used for, the creation of computer files, digital photographs, electronic and text messages and the like. Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens ’ trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens ’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities ’ enhanced technical possibilities to intercept private information (see paragraphs 23 and 24 above).",
"69. The Court recalls that in Kennedy, the impugned legislation did not allow for “indiscriminate capturing of vast amounts of communications” (see Kennedy, cited above, § 160) which was one of the elements enabling it not to find a violation of Article 8. However, in the present case, the Court considers that, in the absence of specific rules to that effect or any submissions to the contrary, it cannot be ruled out that the broad-based provisions of the National Security Act can be taken to enable so-called strategic, large-scale interception, which is a matter of serious concern.",
"70. The Court would add that the possibility occurring on the side of Governments to acquire a detailed profile (see the CDT ’ s submissions on this in paragraph 49 above) of the most intimate aspects of citizens ’ lives may result in particularly invasive interferences with private life. Reference is made in this context to the views expressed by the Court of Justice of the European Union and the European Parliament (see paragraphs 23 and 25 above). This threat to privacy must be subjected to very close scrutiny both on the domestic level and under the Convention. The guarantees required by the extant Convention case-law on interceptions need to be enhanced so as to address the issue of such surveillance practices. However, it is not warranted to embark on this matter in the present case, since the Hungarian system of safeguards appears to fall short even of the previously existing principles.",
"71. Moreover, under section 57 (2) b), in the motion requesting permission from the Minister, the director must substantiate the necessity for the secret intelligence gathering (see paragraph 17 above). However, reading the relevant provisions jointly, the Court is not reassured that an adequate analysis of the aims pursued and the means applied in performing the national security tasks is possible or guaranteed. Indeed, the mere requirement for the authorities to give reasons for the request, arguing for the necessity of secret surveillance, falls short of an assessment of strict necessity (see in paragraphs 72 and 73 below). There is no legal safeguard requiring TEK to produce supportive materials or, in particular, a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measure ‑ and this on the basis of an individual suspicion regarding the target person (see Roman Zakharov, cited above, §§ 259 and 261). For the Court, only such information would allow the authorising authority to perform an appropriate proportionality test.",
"72. Quite apart from what transpires from section 53(2) of the National Security Act, the Court recalls at this point that in Klass and Others it held that “powers of secret surveillance of citizens ... are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions” (see Klass and Others, cited above, § 42, quoted in paragraph 54 above). Admittedly, the expression “strictly necessary” represents at first glance a test different from the one prescribed by the wording of paragraph 2 of Article 8, that is, “necessary in a democratic society”.",
"73. However, given the particular character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens ’ privacy, the Court considers that the requirement “necessary in a democratic society” must be interpreted in this context as requiring “strict necessity” in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court ’ s view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal. The Court notes that both the Court of Justice of the European Union and the United Nations Special Rapporteur require secret surveillance measures to answer to strict necessity (see paragraphs 23 and 24 above) – an approach it considers convenient to endorse. Moreover, particularly in this context the Court notes the absence of prior judicial authorisation for interceptions, the importance of which will be examined below in paragraphs 75 et seq. This safeguard would serve to limit the law-enforcement authorities ’ discretion in interpreting the broad terms of “persons concerned identified ... as a range of persons” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual ’ s communications exist in each case (see, mutatis mutandis, Roman Zakharov, cited above, § 249). It is only in this way that the need for safeguards to ensure that emergency measures are used sparingly and only in duly justified cases can be satisfied (see Roman Zakharov, cited above, § 266).",
"74. Furthermore, in respect of the duration of any surveillance, the National Security Act stipulates, first, the period after which a surveillance permission will expire (that is, after a maximum of 90 days, as per section 58 (4) of the National Security Act) and, second, the conditions under which a renewal is possible. Permissions can be renewed for another 90 days; and the government minister in charge must authorise any such renewal upon a reasoned proposal from the service involved (see paragraph 17 above). Section 60 stipulates that the permission must be cancelled if it is no longer necessary, if the continued surveillance has no prospect of producing results, if its time-limit has expired or if it turns out to be in breach of the law for any reason. The Court cannot overlook, however, that it is not clear from the wording of the law – especially in the absence of judicial interpretation – if such a renewal of the surveillance warrant is possible only once or repeatedly, which is another element prone to abuse.",
"75. A central issue common to both the stage of authorisation of surveillance measures and the one of their application is the absence of judicial supervision. The measures are authorised by the Minister in charge of justice upon a proposal from the executives of the relevant security services, that is, of the TEK which, for its part, is a dedicated tactical department within the police force, subordinated to the Ministry of Home Affairs, with extensive prerogatives to apply force in combating terrorism (see section 1(2) subsection 15 of the Police Act quoted in paragraph 16 above). For the Court, this supervision, eminently political (as observed by the Constitutional Court, see point 105 of the decision quoted in paragraph 20 above) but carried out by the Minister of Justice who appears to be formally independent of both the TEK and of the Minister of Home Affairs – is inherently incapable of ensuring the requisite assessment of strict necessity with regard to the aims and the means at stake. In particular, although the security services are required, in their applications to the Minister for warrants, to outline the necessity as such of secret information gathering, this procedure does not guarantee that an assessment of strict necessity is carried out, notably in terms of the range of persons and the premises concerned (see section 57 (2) of the National Security Act quoted in paragraph 17 above).",
"76. The Court notes the Government ’ s argument according to which a government minister is better positioned than a judge to authorise or supervise measures of secret surveillance. Although this consideration might be arguable from an operational standpoint, the Court is not convinced of the same when it comes to an analysis of the aims and means in terms of strict necessity. In any case, it transpires from the parties ’ submissions that anti-terrorism surveillance measures in Hungary have never been subjected to judicial control, for which reason it is not possible to pass judgement on its advantages or drawbacks. The Court finds therefore the Government ’ s argument on this point unpersuasive (see, a contrario, Roman Zakharov, cited above, § 259).",
"77. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Roman Zakharov, cited above, § 258 ). However, the political nature of the authorisation and supervision increases the risk of abusive measures. The Court recalls that the rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, §§ 55 and 56). The Court recalls that in Dumitru Popescu (cited above, §§ 70-73 ) it expressed the view that either the body issuing authorisations for interception should be independent or there should be control by a judge or an independent body over the issuing body ’ s activity. Accordingly, in this field, control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny (see Klass and Others, cited above, §§ 42 and 55). The ex ante authorisation of such a measure is not an absolute requirement per se, because where there is extensive post factum judicial oversight, this may counterbalance the shortcomings of the authorisation (see Kennedy, cited above, § 167). Indeed, in certain respects and for certain circumstances, the Court has found already that ex ante (quasi-)judicial authorisation is necessary, for example in regard to secret surveillance measures targeting the media. In that connection the Court held that a post factum review cannot restore the confidentiality of journalistic sources once it is destroyed (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 101, 22 November 2012; for other circumstances necessitating ex ante authorisation see Kopp v. Switzerland, 25 March 1998, Reports 1998 II).",
"For the Court, supervision by a politically responsible member of the executive, such as the Minister of Justice, does not provide the necessary guarantees.",
"78. The governments ’ more and more widespread practice of transferring and sharing amongst themselves intelligence retrieved by virtue of secret surveillance – a practice, whose usefulness in combating international terrorism is, once again, not open to question and which concerns both exchanges between Member States of the Council of Europe and with other jurisdictions – is yet another factor in requiring particular attention when it comes to external supervision and remedial measures.",
"79. It is in this context that the external, preferably judicial, a posteriori control of secret surveillance activities, both in individual cases and as general supervision, gains its true importance (see also Klass and Others, cited above, §§ 56, 70 and 71; Dumitru Popescu, cited above, § 77; and Kennedy, cited above, §§ 184-191), by reinforcing citizens ’ trust that guarantees of the rule of law are at work even in this sensitive field and by providing redress for any abuse sustained. The significance of this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks. The Court notes the lack of such a control mechanism in Hungary.",
"80. The Court concedes that by the nature of contemporary terrorist threats there can be situations of emergency in which the mandatory application of judicial authorisation is not feasible, would be counterproductive for lack of special knowledge or would simply amount to wasting precious time. This is especially true in the present-day upheaval caused by terrorist attacks experienced throughout the world and in Europe, all too often involving important losses of life, producing numerous casualties and significant material damage, which inevitably disseminate a feeling of insecurity amongst citizens. The observations made on this point by the Court in Klass and Others are equally valid in the circumstances of the present case: “[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime” (cited above, § 48).",
"81. Furthermore, where situations of extreme urgency are concerned, the law contains a provision under which the director of the service may himself authorise secret surveillance measures for a maximum of 72 hours (see sections 58 and 59 of the National Security Act quoted in paragraph 17 above). For the Court, this exceptional power should be sufficient to address any situations in which external, judicial control would run the risk of losing precious time. Such measures must however be subject to a post factum review, which is required, as a rule, in cases where the surveillance was authorised ex ante by a non-judicial authority.",
"82. The Court notes at this juncture the liability of the executive to give account, in general terms rather than concerning any individual cases, of such operations to a parliamentary committee. However, it cannot identify any provisions in Hungarian legislation permitting a remedy granted by this procedure during the application of measures of secret surveillance to those who are subjected to secret surveillance but, by necessity, are kept unaware thereof. The Minister is under an obligation to present a general report, at least twice a year, to the responsible parliamentary committee about the functioning of national security services, which report, however, does not seem to be available to the public and by this appears to fall short of securing adequate safeguards in terms of public scrutiny (see Roman Zakharov, cited above, § 283). The committee is entitled, of its own motion, to request information from the Minister and the directors of the services about the activities of the national security services. However, the Court is not persuaded that this scrutiny is able to provide redress to any individual grievances caused by secret surveillance or to control effectively, that is, in a manner with a bearing on the operations themselves, the daily functioning of the surveillance organs, especially since it does not appear that the committee has access in detail to relevant documents. The scope of their supervision is therefore limited (see, mutatis mutandis, Roman Zakharov, cited above, § 281).",
"83. Moreover, the complaint procedure outlined in section 11(5) of the National Security Act seems to be of little relevance, since citizens subjected to secret surveillance will not take cognisance of the measures applied. In regard to the latter point, the Court shares the view of the Venice Commission according to which “individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts.” (see point 243 of the Report, quoted in paragraph 21 above). A complaint under section 11(5) of the National Security Act will be investigated by the Minister of Home Affairs, who does not appear to be sufficiently independent (see Association for European Integration, cited above, § 87; and Roman Zakharov, cited above, § 278).",
"84. The Court further notes the evidence furnished by the applicants according to which the Commissioner for Fundamental Rights has never so far enquired into the question of secret surveillance (see paragraph 18 above).",
"85. In any event, the Court recalls that in Klass and Others a combination of oversight mechanisms, short of formal judicial control, was found acceptable in particular because of “an initial control effected by an official qualified for judicial office” (cited above, § 56). However, the Hungarian scheme of authorisation does not involve any such official. The Hungarian Commissioner for Fundamental Rights has not been demonstrated to be a person who necessarily holds or has held a judicial office (see, a contrario, Kennedy, cited above, § 57).",
"86. Moreover, the Court has held that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for any recourse by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their justification retrospectively. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should be provided to the persons concerned (see Weber and Saravia, cited above, §135; Roman Zakharov, cited above, § 287 ). In Hungarian law, however, no notification, of any kind, of the measures is foreseen. This fact, coupled with the absence of any formal remedies in case of abuse, indicates that the legislation falls short of securing adequate safeguards.",
"87. It should be added that although the Constitutional Court held that various provisions in the domestic law read in conjunction secured sufficient safeguards for data storage, processing and deletion, special reference was made to the importance of individual complaints made in this context (see point 138 of the decision, quoted in paragraph 20 above). For the Court, the latter procedure is hardly conceivable, since once more it transpires from the legislation that the persons concerned will not be notified of the application of secret surveillance to them.",
"88. Lastly, the Court notes that is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see Roman Zakharov, cited above, § 284). However, the Government were not able to do so in the instant case.",
"89. In total sum, the Court is not convinced that the Hungarian legislation on “section 7/E (3) surveillance” provides safeguards sufficiently precise, effective and comprehensive on the ordering, execution and potential redressing of such measures.",
"Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.",
"II. ALLEGED VIOLATIONS OF ARTICLE 6 AND ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION",
"90. The applicants further complained that their exposure to secret surveillance measures without judicial control or remedy amounted to a violation of their rights under Article 6 as well as Article 13 read in conjunction with Article 8 of the Convention.",
"91. The Government contested that argument.",
"92. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.",
"93. The Court reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law (see Ostrovar v. Moldova, no. 35207/03, § 113, 13 September 2005; Iordachi, cited above, § 56). In these circumstances, the Court finds no breach of Article 13 of the Convention taken together with Article 8.",
"94. Moreover, having regard to the finding relating to Article 8 (see paragraph 89 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 of the Convention.",
"III. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"95. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"96. Each applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.",
"97. The Government found the claim excessive.",
"98. The Court considers that in the circumstances of the present case the finding of a violation of Article 8 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained.",
"B. Costs and expenses",
"99. The applicants also claimed, jointly, EUR 7,500 for the costs and expenses incurred before the Constitutional Court and the Court in Strasbourg. This corresponds to altogether 50 hours of legal work billable by their lawyer at an hourly rate of EUR.",
"100. The Government contested this claim.",
"101. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads.",
"C. Default interest",
"102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
304 | Beghal v. the United Kingdom | 28 February 2019 | This case concerned the use of counter-terrorism legislation, namely Schedule 7 of the Terrorism Act 2000, giving police and immigration officers the power to stop, search and question passengers at ports, airports and international rail terminals. The applicant had been stopped and questioned when she arrived at East Midlands Airport in January 2011 following a visit to her husband, who was in prison in France for terrorism offences. She complained about the police powers under Schedule 7 of the counter-terrorism legislation. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the legislation in force at that time had not been sufficiently circumscribed nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions, without being formally detained or having access to a lawyer. In reaching that conclusion the Court did not consider amendments since made to the legislation. In particular, as of 2014, border officials have been required to take a person into detention if they wish to examine him or her for longer than an hour, to only commence questioning after the arrival of a solicitor, and to release those being questioned after six hours. | Terrorism and the European Convention on Human Rights | Prevention of terrorism | [
"I. THE CIRCUMSTANCES OF THE CASE",
"A. Schedule 7",
"5. Schedule 7 to the Terrorism Act 2000 (“TACT”) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.",
"B. The facts of the present case",
"6. The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences.",
"7. On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m.",
"8. At the United Kingdom Borders ’ Agency (“UKBA”) desk the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be “a person concerned in the commission, preparation or instigation of acts of terrorism”. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant ’ s luggage was taken to another room and searched.",
"9. The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9 .00 p.m., while she was praying, one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched.",
"10. At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival.",
"11. In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1 (see paragraph 42 below). The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions.",
"12. At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was “free to go”.",
"13. The applicant ’ s lawyer arrived at approximately 10.40 p.m.",
"14. The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed.",
"15. On 12 December 2011 the applicant appeared before Leicester Magistrates ’ Court, where she pleaded guilty to the third charge and was sentenced to be conditionally discharged. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles 5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union.",
"16. The applicant appealed to the High Court against the District Judge ’ s ruling.",
"C. The judgment of the High Court",
"17. On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed.",
"18. With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be “in accordance with the law”; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self ‑ incrimination without her lawyer in attendance.",
"19. The High Court delivered its judgment on 28 August 2013. In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 of TACT (the provisions under consideration in Gillan and Quinton ), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see paragraphs 42 and 43 below ) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an “island nation”, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls.",
"20. Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore “in accordance with the law”. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see paragraphs 48 - 49 and 56 - 61 below ) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of “reasonable suspicion” for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism.",
"21. In this regard, the court observed:",
"“The manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘ ...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred ’ – Lord Bingham ’ s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] – [77], also set out above; for our part, the ‘ level of precision ’ of these powers ( ibid ) falls and falls comfortably on the right side of the line. ”",
"22. The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant ’ s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate.",
"23. In view of the court ’ s conclusions in respect of Article 8, it found that the applicant ’ s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant ’ s rights, and the applicant accepted that the interference was “in order to secure the fulfilment of any obligation prescribed by law”, the only issue to be determined was whether the interference was “lawful”, and the conclusions in respect of Article 8 had determined that it was.",
"24. Finally, the court considered the applicant ’ s argument under Article 6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant ’ s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant ’ s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence.",
"D. The judgment of the Supreme Court",
"25. The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015.",
"26. Prior to the judgment, Schedule 7 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; reduced the maximum period of detention from nine hours to six hours; required the periodic review of detention by a review officer; provided that the questioning of an examinee should not commence until after the arrival of a requested solicitor; and stipulated that examining officers should be designated and trained for this purpose (see paragraphs 52 - 53 below). The Code of Practice was amended to reflect these changes (see paragraphs 54 - 55 below). In considering the applicant ’ s complaints, the Supreme Court had regard to the amended Schedule 7 power.",
"1. The opinion of the majority",
"(a ) Article 8",
"27. With regard to the Article 8 complaint, Lord Hughes (with whom Lord Hodge agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section 44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.",
"28. Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton.",
"29. Lords Hughes and Hodge further accepted that the interference with the applicant ’ s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom ’ s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming.",
"30. Lords Neuberger and Dyson added that:",
"“Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.”",
"(b ) Article 5",
"31. Although Lords Hughes, Hodge, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5.",
"(c ) Article 6 § 1",
"32. In respect of the applicant ’ s complaint under Article 6, Lords Hughes, Hodge, Neuberger and Dyson accepted that the privilege against self ‑ incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty).",
"2. Lord Kerr ’ s dissenting opinion",
"(a ) Legality",
"33. Lord Kerr disagreed with the majority that the Schedule 7 powers were “in accordance with the law”. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, Lord Kerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?).",
"34. In response to the majority ’ s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one ’ s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of “in accordance with the law”. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use.",
"35. Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power – and not its actual use – which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour.",
"36. Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally.",
"(b ) Proportionality",
"37. Lord Kerr was not persuaded that the interference with the applicant ’ s rights under Articles 5 and 8 was “necessary”. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism.",
"(c ) Privilege against self-incrimination",
"38. Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person ’ s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr ’ s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self ‑ incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self ‑ incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence."
] | [
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"A. Terrorism Act 2000 (“TACT”) (as in force at the relevant time)",
"39. Section 40(1)(b) of TACT defines a “terrorist” so as to include a person who has been concerned in the commission, preparation or instigation of acts of terrorism. Section 1 of TACT defines “terrorism” as follows:",
"“(1) In this Act “terrorism” means the use or threat of action where—",
"(a) the action falls within subsection (2),",
"(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and",
"(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.",
"(2) Action falls within this subsection if it—",
"(a) involves serious violence against a person,",
"(b) involves serious damage to property,",
"(c) endangers a person ’ s life, other than that of the person committing the action,",
"(d) creates a serious risk to the health or safety of the public or a section of the public, or",
"(e) is designed seriously to interfere with or seriously to disrupt an electronic system.",
"(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.",
"(4) In this section—",
"(a) “action” includes action outside the United Kingdom,",
"(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,",
"(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and",
"(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.",
"(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”",
"40. Schedule 7 of TACT, which is headed “Port and Border Controls”, provided as relevant:",
"“Power to stop, question and detain",
"2.—(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).",
"(2) This paragraph applies to a person if—",
"(a) he is at a port or in the border area, and",
"(b) the examining officer believes that the person ’ s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland.",
"(3) This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland.",
"(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).",
"... ... ...",
"6.—(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—",
"(a) stop a person or vehicle;",
"(b) detain a person.",
"... ... ...",
"(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.",
"(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.",
"... ... ...",
"8(1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—",
"(a) search the person;",
"(b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;",
"(c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;",
"(d) search a ship or aircraft for anything falling within paragraph (b).",
"... ... ...",
"(3) A search of a person under this paragraph must be carried out by someone of the same sex.",
"... ... ...",
"Offences",
"18.—(1) A person commits an offence if he—",
"(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule,",
"(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or",
"(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.",
"(2) A person guilty of an offence under this paragraph shall be liable on summary conviction to—",
"(a) imprisonment for a term not exceeding three months,",
"(b) a fine not exceeding level 4 on the standard scale, or",
"(c) both .”",
"41. Pursuant to Schedule 8 a person detained under Schedule 7 acquires rights which he or she did not have prior to detention (for example, to have a named person informed, and to consult a solicitor) but also obligations (for example, to give fingerprints, non-intimate and intimate DNA samples).",
"B. Home Office (2009) Examining Officers under the Terrorism Act 2000 Code of Practice (“the Code”)",
"42. The Code, which is issued by the Secretary of State for the Home Department pursuant to paragraph 6(1) of Schedule 14 of TACT and is a public document admissible in evidence in criminal and civil proceedings, contains detailed provisions as to the exercise by examining officers of their functions under that legislation. It provides, as relevant:",
"“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.",
"10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the powers in such a way as to minimise causing embarrassment or offence to a person who is being questioned.",
"Notes for guidance on paragraphs 9 and 10 [in bold in the original]",
"The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity. The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.",
"Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them.",
"Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be exercised arbitrarily. An examining officer ’ s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as:",
"Selections for examinations should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person ’ s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination.",
"Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other purpose. An examination must cease and the examinee must be informed that it has ended once it has been ascertained that the person examined does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism.",
"Unless the examining officer arrests the person using powers under the Act, a person being examined under Schedule 7 need not be cautioned.",
"11. The examining officer should explain to the person concerned either verbally or in writing that they are being examined under Schedule 7 of the Terrorism Act 2000 and that the officer has the power to detain that person should they refuse to co-operate and insist on leaving. The examining officer should keep the length of the examination to the minimum that is practicable. An examination begins after a person has been stopped and screening questions have been asked. Once an examination lasts for one hour, an explanatory notice of examination, a TACT 1 form ( ... ), must be served by the examining officer on the person. The contents of the TACT 1 form should be explained to the person by the examining officer. Where a person ’ s examination is protracted or where it is thought likely to be protracted, the examining officer should make arrangements to ensure that the person has the opportunity to have refreshments at regular intervals.",
"... ... ...",
"Records",
"14. Records of all examinations should be kept locally at a port, border area or police station in the event of a complaint or query but in addition a record of all exams over an hour should be held centrally for statistical purposes. The record should include the name of the person examined; the total duration the examination from the start until completion; whether the person was detained and if so when detention began and ended.",
"15. Records of examination that last under an hour or in the case of a child of any duration should be kept at the port, border area or at a police station for reference purposes in the event of a complaint or query. Records of examination that last over an hour, however, should be kept centrally for statistical purposes.",
"... ... ...",
"Searches",
"28. An examining officer may search a person who is being questioned for the purpose set out in paragraph 9 above, and their belongings, including baggage. He may also under paragraph 10 authorise another person to carry out a search on his behalf. As under paragraph 10 above every reasonable effort should be made to reduce to a minimum the potential embarrassment or offence that may be caused to a person being searched. ...",
"29. A personal search should only be carried out by someone of the same sex. ”",
"C. 2009 National Policing Improvement (“NPIA”) Practice Advice (“the Practice Advice”)",
"43. The Foreword to the Practice Advice provides:",
"“Special Branch ports officers carry a significant responsibility as part of the police contribution to ensuring National Security. It is vital that they are equipped with powers that enable them to carry out their role effectively and efficiently.",
"Schedule 7 ... provides these officers with unique powers to examine people who pass through the United Kingdom ’ s borders. It is essential that they are applied professionally so that the police maintain the confidence of all sections of the public. Any misuse of these powers could have a far-reaching negative impact on police community relations and hinder progress made in support of the Government ’ s counter-terrorism strategy.”",
"D. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2011",
"44. The report provided the following figures concerning the frequency of the exercise of Schedule 7 powers:",
"“In the year to 31 March 2011, over the UK as a whole:",
"(a) There was a total of 85,423 Schedule 7 examinations, 20% down on 2009/10.",
"(b) 73,909 of those examinations were on people, and 11,514 on unaccompanied freight.",
"(c) 2,291 people (3% of those examined - a similar percentage to 2009/10) were kept for over an hour.",
"(d) 915 people were detained after examination (1% of those examined, up from 486 in 2009/10).",
"(e) 769 people had biometric samples taken.",
"(f) There were 31 counter-terrorism or national security-related arrests. However 25 of those were in a single force area, reflecting that force ’ s policy (since amended) as regards the action they take for those withholding or giving of false information during an examination.",
"(g) 101 cash seizures by the police thought to relate to counter-terrorism were made, amounting in total to £844,709, mostly at airports.",
"These figures have to be set against the numbers of passengers travelling through UK airports (213 million), UK seaports (22 million) and UK international rail ports (9.5 million) during the year. In total, only 0.03% of passengers were examined under Schedule 7 in 2010/11.”",
"45. With regard to the ethnic origin of the persons stopped, the report summarised the data in tabular form:",
"2010/11",
"White",
"Black",
"Asian",
"Other",
"Mixed or not stated",
"Examined < 1 hour",
"46%",
"8%",
"26%",
"16%",
"4%",
"Examined > 1 hour",
"14%",
"15%",
"45%",
"20%",
"6%",
"Detained",
"8%",
"21%",
"45%",
"21%",
"5%",
"Biometrics",
"7%",
"21%",
"46%",
"20%",
"6%",
"46. The report continued:",
"“No ethnicity data are collected for port travellers generally. It may well be that the proportion of ethnic minorities among those using UK ports and airports for travel is higher than the proportion in the UK population as a whole. It is most unlikely however that white people are in a minority among travellers. Detentions (plainly) and examinations (almost certainly) are thus imposed on members of minority ethnic communities – particularly those of Asian and other (including North African) ethnicity – to a greater extent than their presence in the travelling population would seem to warrant.",
"That fact alone does not mean that examinations and detentions are misdirected. As I argued in my last annual report (paras 9.14-9.21), Schedule 7 should not be used (as section 44 stop and search was from time to time used) in order to produce a racial balance in the statistics: that would be the antithesis of intelligence-led policing. The proportionate application of Schedule 7 is achieved by matching its application to the terrorist threat, rather than to the population as a whole.",
"There is however no room for complacency. The ethnic breakdown of the terrorist threat is hard to pin down: but ... [e]ven in Great Britain ... white people constitute approximately a quarter of those arrested and charged with terrorist offences – a proportion that would no doubt rise considerably if Northern Ireland data were included. ...",
"The ethnicity figures provide, in themselves, no basis for criticism of the police. They do however underline the need for vigilance, particularly when some minority communities are understandably sensitive about the application of Schedule 7. It is important for all involved with the application of Schedule 7 to remember that:",
"(a) perceived ethnic background or religion should not be used, alone or in combination with each other, as the sole reason for selecting a person for examination;",
"(b) UK terrorists are of all colours: a substantial proportion of them (even outside Northern Ireland) are white; and that",
"(c) apparently innocuous decisions (for example, to check the plane from Pakistan rather than the plane from Canada) may reflect unconscious racial bias.”",
"47. Although the report indicated that certain groups (most notably Muslims) felt that they were being singled out, between 1 July 2011 and 23 May 2012 only twenty complaints had been received.",
"48. In concluding that the utility of Schedule 7 powers was not in doubt, the report noted:",
"“Schedule 7 examinations have certainly been instrumental, first of all, in securing evidence which assists in the conviction of terrorists. That evidence does not take the form of answers given in interview (which because of the compulsion to answer would almost certainly be inadmissible in any criminal trial) but rather consists of physical possessions or the contents of mobile phones, laptops and pen drives.",
"It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the copper ’ s nose. Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.",
"...",
"Secondly, Schedule 7 examinations have been useful in yielding intelligence about the terrorist threat. Sometimes words spoken in interview, though not themselves admissible as evidence, may start a train of enquiry that leads to a prosecution. Of great importance, however, is intelligence of a more indirect kind – which may come from intelligence-led stops or from stops on the basis of risk factors. Schedule 7 examinations are perhaps most prized by the police and security services for their ability to contribute to a rich picture of the terrorist threat to the United Kingdom and UK interests abroad.",
"...",
"Thirdly, Schedule 7 examinations may assist disruption or deterrence. Young, nervous or peripheral members of terrorist networks can sometimes be dissuaded from plans e.g. to travel abroad for training by the realisation – communicated by a port stop – that the police have an idea of who they are and what they are about.",
"...",
"Finally, a Schedule 7 examination – once it has been completed, and this has been made clear to the person examined – may serve as an opportunity for the identification of those who may agree to be recruited as informants.”",
"E. The report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts in 2012",
"49. In this report the Independent Reviewer specifically addressed whether Schedule 7 should include a requirement of “reasonable suspicion”. In particular, he sought to explore with police and intelligence services the extent to which stops which were not intelligence-led or otherwise based on suspicion were useful. He observed that general arguments for a no ‑ suspicion power included the following:",
"“Were reasonable suspicion (or even just subjective suspicion) to be required for all stops:",
"(a) The substantial deterrent threat of Schedule 7 in its current form could be avoided altogether by using “clean skins” to transport the tools of the terrorist ’ s trade.",
"(b) Anybody who was stopped would know that the police had evidence on which to suspect them: the mere fact of a stop could thus alert the traveller to the existence of surveillance, whether human or technical, with consequences that could include the ending of effective surveillance and the endangering of a human source.",
"(c) The authorities would be unable to stop and question the travelling companion(s) of a person whom they suspect of involvement in terrorism: the mere fact of travelling with a suspected person will not be enough to constitute a reasonable suspicion of involvement in terrorism.”",
"50. The Independent Reviewer was briefed by MI5 and by the police on a number of no-suspicion stops in recent months which had brought significant benefits in terms of disrupting potential terrorists. These included both untargeted and targeted examinations, since there could be intelligence on somebody sufficient to merit a stop without the threshold of reasonable suspicion being reached. While he accepted that a number of such stops had been “of real value in protecting national security”, he recognised that that did not automatically make them proportionate. He considered this was ultimately a matter for Parliament, but noted that any requirement of suspicion would",
"“reduce the potential efficacy of Schedule 7. Equally, however, they would give a measure of protection to persons who may currently be selected for these attentions without even being suspected of any crime.”",
"51. The Independent Reviewer also addressed the compulsion to answer questions under Schedule 7. In this regard, he indicated that:",
"“Compulsion to answer questions under Schedule 7 is of the essence of the power, its utility beyond question when it comes not only to identifying people as terrorists but to gathering intelligence – an important by-product of the Schedule 7 examination, albeit one that can never serve as the prime motive for a stop.",
"Such a strong power requires strong safeguards on the use to which answers can be put. At the least, it is essential that answers are not used in proceedings where they could incriminate the person who gave them. I believe it to be generally accepted that answers given under compulsion in Schedule 7 interviews could never be used in a criminal trial ... ”",
"F. The Anti-Social Behaviour, Crime and Policing Act 2014",
"52. The Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) made several changes to the Schedule 7 powers. Most notably, it required examining officers to take a person into detention if they wished to examine him or her for longer than one hour; it reduced the maximum period of detention from nine hours to six hours; it introduced a requirement for the periodic review of detention by a review officer; and it required that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters.",
"53. The 2014 Act further required that examining officers should be designated for this purpose by the Secretary of State and a Code of Practice should be issued which provided for the training to be undertaken by them.",
"54. A new version of the Code of Practice was promulgated in July 2014 to reflect those amendments and also the judgment of the Supreme Court in the applicant ’ s case. In particular, it provided that the Schedule 7 powers could only be used by police officers who had been accredited by their chief officer as having met a national standard in the use of the powers; and it confirmed that the exercise of the powers should not be arbitrary.",
"55. It further provided that detained persons were entitled to consult a solicitor in private at any time, and that the examining officer had to postpone questioning until the person had consulted a solicitor in private, unless the examining officer reasonably believed that postponing questioning would be likely to prejudice the purpose of the examination.",
"G. Subsequent annual reports of the Independent Reviewer of Terrorism Legislation",
"1. 2013",
"56. In his review of the operation of the terrorism legislation in 2013, the Independent Reviewer made some remarks about the apparent “considerable ‘ disproportionality ’ ” between the ethnic classification of those examined and detained under Schedule 7 and the ethnic classification of the port-using (or airport-using) public. In particular, he noted that the Schedule 7 power was not intended to be exercised randomly but rather to gain information about persons concerned in the commission, preparation or instigation of acts of terrorism. As terrorists were not, at any one moment in time, evenly distributed across the various ethnic groups, if the power was being skilfully used, one would expect its exercise to be ethnically “proportionate” not to the United Kingdom population, nor even to the airport-using population, but rather to the terrorist population that travels through United Kingdom ports. In conclusion he stated that he had no reason to believe that Schedule 7 powers were being exercised in a racially discriminatory manner.",
"57. Although the Independent Reviewer welcomed the amendments being introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, he identified three issues he had previously addressed which remained outstanding:",
"“ a) the fact that no suspicion is required for the exercise of most Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop;",
"b) the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and",
"c) the need for clear and proportionate rules governing the data taken from electronic devices. ”",
"58. He recommended, inter alia, that detention should be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40(1)(b) and that detention is necessary in order to assist in determining whether he is such a person; that on periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40(1)(b), and that detention continues to be necessary in order to assist in determining whether he is such a person; and that a statutory bar should be introduced to the introduction of Schedule 7 admissions in a subsequent criminal trial.",
"59. Finally, he expressed his belief that his recommendations would improve fairness and accountability without reducing the efficacy of the Schedule 7 powers or exposing the public to additional risk from terrorism. He observed that his recommendations had been endorsed by the Joint Committee on Human rights, which fully agreed with them, save as to the thresholds for detention and for copying data, which it continued to advise should require reasonable suspicion; and the Home Affairs Select Committee, which expressed the view that the introduction of a suspicion test for the ancillary powers, the use of answers given under compulsion in a criminal court and the treatment of legally privileged material, excluded material and special procedure material should be subject to further review.",
"2. 2015",
"60. In his review of the operation of the terrorism legislation in 2015, the Independent Reviewer repeated the following recommendations:",
"“(a) that a suspicion threshold should be applied to detention and to the copying of data from personal electronic devices;",
"(b) that safeguards should be provided in respect of legally privileged material, excluded material and special procedure material;",
"(c) that safeguards should be applied to private electronic data gathered under Schedule 7; and",
"(d) that there should be a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial.”",
"3. 2016 and 201 7",
"61. Finally, in his review of the operation of the terrorism legislation in 201 7, the Independent Reviewer indicated that while there had been a significant decline in the total number of examinations in recent years, there had been an increase in the number of “resultant detentions”. According to the Independent Reviewer, this was not a particularly worrying pattern, and was likely due to better capture of passenger manifest data across the United Kingdom, and better use of targeting techniques.",
"H. The Counter-Terrorism and Border Security Bill",
"62. The purpose of the Bill, which was introduced on 5 June 2018, is to “make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes”.",
"63. The Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT.",
"64. Schedule 3 of the Bill further contains a power – modelled on Schedule 7 of TACT – for “examining officers” to question any person who is in a port in the United Kingdom or in the Northern Ireland border area for the purpose of determining whether the person appears to be, or has been, engaged in “hostile activity”. As with Schedule 7, the power to examine a person can be exercised whether or not there are grounds for suspecting that a person is engaged in hostile activity.",
"I. Relevant case-law",
"1. R (David Miranda) v. Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2016] EWCA Civ 6",
"65. Mr Miranda is the spouse of a journalist who had received encrypted material from Edward Snowden. The data, which contained United Kingdom intelligence material, had been stolen from the National Security Agency. Mr Miranda was detained for nine hours by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 of TACT. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. The Security Service had asked the police to make the stop, with the principal objective of mitigating the risk to national security that the material in Mr Miranda ’ s possession might pose.",
"66. In judicial review proceedings Mr Miranda claimed that the use of the Schedule 7 power against him was unlawful because (i) the power was exercised for a purpose not permitted by the statute; and (ii) its use constituted a disproportionate interference with his rights under Articles 5, 8 and 10 of the Convention. He also claimed that the use of the power was incompatible with the rights guaranteed by Article 10 of the Convention in relation to journalistic material.",
"67. The Court of Appeal accepted that the police exercised the power for its own purpose of determining whether Mr Miranda appeared to be a person falling within section 40(1)(b) of TACT. The fact that the exercise of the Schedule 7 power also promoted the Security Service ’ s different (but overlapping) purpose did not mean that the power was not exercised for the Schedule 7 purpose. In this regard, the police had clearly recognised that they could not act as a conduit for the furtherance of the Security Service ’ s purposes, and had had to be persuaded that the conditions for a lawful Schedule 7 stop had been met before they agreed to proceed. Moreover, as Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility, the court accepted that the power was exercised for a lawful purpose. In assessing proportionality, the court accepted that the Schedule 7 stop was an interference with press freedom, but held that the compelling national security interests clearly outweighed Mr Miranda ’ s Article 10 rights on the facts of the case.",
"68. However, with regard to the compatibility of the Schedule 7 powers with Article 10 of the Convention, the court found that the constraints on the exercise of the powers did not afford effective protection of journalists ’ Article 10 rights. The court ’ s central concern was that disclosure of journalistic material (whether or not it involved the identification of a journalist ’ s source) undermined the confidentiality that was inherent in such material and which was necessary to avoid the chilling effect of disclosure and to protect Article 10 rights. If journalists and their sources could have no expectation of confidentiality, they might decide against providing information on sensitive matters of public interest. Consequently, it was of little or no relevance that the Schedule 7 powers could only be exercised in a confined geographical area or that a person could not be detained for longer than nine hours. Similarly, while the fact that the powers had to be exercised rationally, proportionately and in good faith provided a degree of protection, the only safeguard against the powers not being so exercised was the possibility of judicial review proceedings. However, while judicial review might be an adequate safeguard in the context of Articles 5 and 8, it would provide little protection against the damage done if journalistic material was disclosed and used in circumstances where this should not happen.",
"2. R (CC) v. Commissioner of Police of the Metropolis and another [2012] 1 WLR 1913 and R (on the application of Elostra) v. Commissioner of Police of the Metropolis [2014] 1 WLR 239",
"69. In R(CC) the High Court upheld a challenge by an individual against the use of the Schedule 7 power on the basis that the examining officers were not in fact exercising it for the purpose of determining whether he appeared to be a terrorist. The claimant was a British national who had been arrested in Somaliland and deported to the United Kingdom. In anticipation of his return, a control order was made against him. The High Court found that the Schedule 7 powers were exercised on his arrival for the purpose of getting information – untainted by any torture allegations – which might confirm the propriety of the making of the control order. According to the court, this had nothing to do with determining whether he appeared to be a terrorist in any particular way and as a consequence the power had not been used lawfully. However, in reaching this conclusion the judge remarked:",
"“I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.”",
"70. In R(Elostra) the High Court held that an examination under Schedule 7 which was conducted without adherence to the proper safeguards was unlawful. More particularly, it held that a person who was detained under Schedule 7 – at a police station or elsewhere – was, by virtue of the Code of Practice, entitled to insist on legal advice before answering any questions.",
"3. R. v. Gul [2013] UKSC 64",
"71. The principal issue in this appeal was the definition of “terrorism” in section 1 of TACT; more precisely, whether it included military attacks by non-State armed groups against national or international armed forces in a non-international armed conflict. The Supreme Court held that there was no basis for reading the natural, very wide, meaning of section 1 of TACT restrictively. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres. Moreover, the United Kingdom ’ s international obligations could not require it to define “terrorism” more narrowly, since there was no accepted definition of “terrorism” in international law.",
"72. The court noted, however, that the very wide definition of “terrorism” gave rise to certain concerns. While the case did not concern the use of Schedule 7 powers, it observed that:",
"“63. The second general point is that the wide definition of “terrorism” does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of ‘ terrorism ’ is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.",
"64. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in ports and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e. that he has ‘ committed an offence ’, or he ‘ is or has been concerned in the commission, preparation or instigation of acts of terrorism ’ ), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection. On this appeal, we are not, of course, directly concerned with that issue in this case. But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"73. The applicant complained that the exercise of Schedule 7 powers breached her rights under Article 8 of the Convention, which reads as follows:",
"“1. Everyone has the right to respect for his private and family life, his home and his correspondence.",
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”",
"74. The Government contested that argument.",
"A. Admissibility",
"75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.",
"B. Merits",
"1. Whether there was an interference with the applicant ’ s rights under Article 8 of the Convention",
"76. The Government accepted that, taken as a whole, the applicant ’ s examination pursuant to Schedule 7 of TACT gave rise to an interference with the right guaranteed to her under Article 8 of the Convention. In the present case, in addition to being stopped and questioned, the applicant and her luggage were searched. In Gillan and Quinton v. the United Kingdom, no. 4158/05, § 63, ECHR 2010 (extracts) the Court held that the use of “coercive powers” to require an individual to submit to a “detailed search of his person, his clothing and his personal belongings” amounted to a clear interference with the right to respect for private life. While the Court expressly recognised the potential distinction between the “stop and search powers” under section 44 of TACT and “the search to which passengers uncomplainingly submit at airports or at the entrance of a public building” (see Gillan and Quinton, cited above, § 64), Schedule 7 powers were clearly wider that the immigration powers to which travellers might reasonably expect to be subjected. In view both of this fact, and of the Government ’ s concession, the Court would accept that there was an interference with the applicant ’ s rights under Article 8 of the Convention.",
"2. Whether that interference was “in accordance with the law”",
"(a) The parties ’ submissions",
"( i ) The applicant",
"77. The applicant submitted that the Schedule 7 powers were insufficiently circumscribed and contained inadequate safeguards to be “in accordance with the law ”. In the year of her examination, more than 68,000 people were stopped pursuant to Schedule 7. The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.",
"78. More particularly, the applicant contended that the powers under the Schedule 7 regime were more intrusive than the stop and search powers under sections 44-45 of TACT, which the Court had held not to be “in accordance with the law” in Gillan and Quinton. First of all, section 44 required a senior officer to give authorisations if he thought it “expedient for the prevention of acts of terrorism”. In contrast, Schedule 7 powers applied at all times at all ports. Secondly, while powers under sections 44 and 45 were directed at the narrow purpose of “searching for articles of a kind that could be used in connection with terrorism”, Schedule 7 powers had a much broader purpose and permitted a far wider investigation into an individual ’ s activities, beliefs and movements. Thirdly, section 45 only permitted an officer to search a person ’ s outer clothing and possessions, and detention was only permitted to the extent necessary to carry out that limited search. In contrast, a Schedule 7 suspicion-less examination could take place at a police station, could permit detailed and intrusive searches, and at the time the applicant was stopped, detention could last for up to nine hours. Fourthly, section 45 contained no power to interrogate, whereas Schedule 7 permitted a lengthy interrogation that a person was required by law to answer. Finally, section 45 permitted an officer to retain items found during the search of a person only if the officer reasonably suspected that the item was intended to be used in connection with terrorism. Schedule 7, on the other hand, permitted any item to be retained for seven days for examination, regardless of whether or not such suspicion existed.",
"79. According to the applicant, there were also important similarities between the section 44 and Schedule 7 powers: they both fell within the same framework of counter-terrorism legislation under TACT; they both involve intrusive measures which might be used without subjective grounds for suspicion; the use of both sets of powers had a significantly disproportionate impact on persons of non-white ethnic origin; and the safeguards relied on by the Government were similar.",
"80. In this regard, the applicant acknowledged that some safeguards existed, notably those identified by Lord Hughes in the Supreme Court. However, she argued that they were insufficient to meet the requirement of legality. To begin with, given the large number of people passing through United Kingdom ports every day, the fact that the Schedule 7 powers were restricted to travellers at ports did not significantly reduce their impact. Moreover, Schedule 7 powers could not be equated with immigration powers, to which travellers might reasonably expect to be subjected. They were based at ports because they were “choke points” and not because they had any specific connection to a person ’ s travel.",
"81. Furthermore, restriction to the statutory purpose, restriction to specially trained and accredited officers, and restrictions on the type of search and duration of questioning provided negligible safeguards which did not cure the risk of arbitrariness in the exercise of a broadly defined, suspicion-less power. This was especially so given that the Code in force at the time of the applicant ’ s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights. Although individuals were entitled to consult a solicitor, this offered no protection against the risk of arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of a solicitor (as happened in this case).",
"82. In addition, the explanatory notice given to those questioned was generic; examining officers were not required to explain the reasons why a particular individual was selected for examination under Schedule 7. There was also no requirement for officers to record the reason why a particular individual was selected for examination, and since the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise) the scope for using judicial review proceedings to challenge a particular Schedule 7 examination was extremely limited. Finally, the Independent Reviewer only carried out a post-hoc review of a small number of Schedule 7 stops, since his capacities did not stretch to a thorough port ‑ by ‑ port monitoring, and the Government was not obliged to give effect to any changes he proposed.",
"( ii ) The Government",
"83. The Government contended that the exercise of a power on a “no suspicion” basis could be “in accordance with the law”. In such a case, the relevant factors to be considered were the field covered by the measure in issue (being relevant to the level of precision required); and the relevant law together with how the system worked in practice.",
"84. As to the field covered by the measure, the Government stated that it was focussed on entry and exit points to the United Kingdom. As these points were the first line of defence against the entry and exit of terrorists, they provided a unique opportunity to target checks where they were likely to be the most effective.",
"85. Regarding the relevant law, the Government argued that there were sufficient effective safeguards in the manner of its operation to meet the requirements of legality. In particular, they drew attention to the factors identified by Lord Hughes and Lord Hodges, which were adopted by Lord Neuberger and Lord Dyson, namely: the restriction to those passing into and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including the procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.",
"86. Moreover, there was no evidence that the powers had been used in a racially discriminatory fashion, and in fact such a use was expressly prohibited by the Code of Practice.",
"(b ) The Court ’ s assessment",
"( i ) General principles",
"87. The words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008).",
"88. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise ( Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts)). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96; Gillan and Quinton, cited above, § 77; and Ivashchenko v. Russia, no. 61064/10, § 73, 13 February 2018 ).",
"( ii ) Application of those principles to the case at hand",
"89. The Court notes that the power in question has a legal basis in domestic law, namely Schedule 7 of TACT and the accompanying Code of Practice. In view of the applicant ’ s complaint, the principal question for the Court to address in the present case is whether, at the time the applicant was stopped at East Midlands airport, the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life. In making this assessment, it will consider the following factors: the geographic and temporal scope of the powers; the discretion afforded to the authorities in deciding if and when to exercise the powers; any curtailment on the interference occasioned by the exercise of the powers; the possibility of judicially reviewing the exercise of the powers; and any independent oversight of the use of the powers.",
"( α ) The geographic and temporal scope of the powers",
"90. The Schedule 7 powers can only be exercised by police officers at ports and border controls. The majority of the Supreme Court considered that this restriction distinguished the case from Gillan and Quinton, cited above, since the “stop and search powers” under section 44 of TACT could be exercised throughout the whole of the United Kingdom (see paragraph 27 above). However, Lord Kerr, in his dissenting opinion, considered that the Schedule 7 powers were much broader than the “stop and search” powers, since they were not subject to any express authorisation and they were not temporally or geographically limited. As a consequence, they had the potential to affect the 245 million people who pass through the United Kingdom ’ s ports and borders every year (see paragraphs 33 - 36 above).",
"91. Although the Court sees the logic behind the comparison to Gillan and Quinton, the important question is not whether the Schedule 7 powers are wider or narrower than the “stop and search” powers, or how the safeguards which curtail the exercise of both powers measure up, but rather whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference.",
"92. In this regard, while the Court would accept that in view of their permanent application at all ports and border controls, the Schedule 7 powers are wide in scope, this does not, in itself, run contrary to the principle of legality. The Court has expressly acknowledged both the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012). ) and the importance of controlling the international movement of terrorists (see, for example, McVeigh, O ’ Neill and Evans v United Kingdom (1981) 5 EHRR 71, § 192). Ports and border controls will inevitably provide a crucial focal point for detecting and preventing the movement of terrorists and/or foiling terrorist attacks. Indeed, all States operate systems of immigration and customs control at their ports and borders, and while these controls are different in nature to the Schedule 7 powers, it is nevertheless the case that all persons crossing international borders can expect to be subject to a certain level of scrutiny.",
"( β ) The discretion afforded to the authorities in deciding if and when to exercise the powers",
"93. The Schedule 7 powers may be exercised by examining officers for the purpose of determining whether a person is concerned in the commission, preparation or instigation of acts of terrorism. Examining officers therefore enjoy a very broad discretion, since “terrorism” is widely defined (see R. v. Gul, at paragraphs 71 - 72 above ) and the Schedule 7 powers may be exercised whether or not he or she has objective or subjective grounds for suspecting that a person is concerned in the commission, preparation or instigation of acts of terrorism.",
"94. In Gillan and Quinton the Court criticised the fact that officers could exercise the stop and search powers without having to demonstrate the existence of any reasonable suspicion (see Gillan and Quinton, cited above, § 83 ). Similarly, in Ivashchenko the Court was concerned by the fact that the customs authorities had been able to examine and copy data contained on the applicant ’ s laptop and storage devices without at least “some notion of a reasonable suspicion” that he had committed an offence ( Ivashchenko, cited above, §§ 84-85). A requirement of reasonable suspicion is therefore an important consideration in assessing the lawfulness of a power to stop and question or search a person; however, there is nothing in either case to suggest that the existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, this is an assessment for the Court to make having regard to the operation of the scheme as a whole and, for the reasons set out below, it does not consider that the absence of a requirement of reasonable suspicion by itself rendered the exercise of the power in the applicant ’ s case unlawful within the meaning of Article 8 § 2 of the Convention.",
"95. First of all, the Court has repeatedly held that the national authorities enjoy a wide margin of appreciation in matters relating to national security (see, among many examples, Konstantin Markin v. Russia [GC], no. 30078/06, § 134, ECHR 2012 (extracts)) and there is clear evidence that the Schedule 7 powers have been of real value in protecting national security. According to the Independent Reviewer, they were “instrumental” in “securing evidence which assists in the conviction of terrorists” (see paragraph 48 above). While the majority of examinations which led to convictions were intelligence-led, examinations could be useful even if they did not lead to a conviction. Intelligence gathered during the examinations contributed to a rich picture of the terrorist threat to the United Kingdom and its interests abroad, and could assist in the disruption or deterrence of terrorists ’ plans (see paragraph 48 above). Were “reasonable suspicion” to be required, terrorists could avoid the deterrent threat of Schedule 7 by using people who had not previously attracted the attention of the police (“clean skins”); and the mere fact of a stop could alert a person to the existence of surveillance (see paragraph 49 above).",
"96. Secondly, it is important to distinguish between the two distinct Schedule 7 powers, being the power to question and search a person; and the power to detain a person. As the power to detain would, under normal circumstances, entail a greater interference with a person ’ s rights, and therefore has greater potential for abuse, it may well have to be accompanied by more stringent safeguards. However, as the applicant in the present case was not formally detained, the Court must limit its examination to the lawfulness of the power to question and search.",
"97. Thirdly, the Court considers it relevant that the Schedule 7 power – and in particular the power to question and search – is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country. While there was no requirement of “reasonable suspicion”, guidance was nevertheless provided to examining officers which attempted to clarify when the discretion could be exercised. According to the Guidance Notes accompanying the Code of Practice in force at the time of the applicant ’ s examination, the power had to be used proportionately and officers had to take particular care to ensure that the selection of persons for examination was not solely based on their ethnic background or religion. Instead, the decision to exercise Schedule 7 powers had to be based on the threat posed by the various active terrorist groups and be based on a number of considerations, including the following factors: known or suspected sources of terrorism; individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected, and supporters or sponsors of such activity who are known or suspected; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; the means of travel (and documentation) that a group or individuals involved in terrorist activity could use; and emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity (see paragraph 42 above). While not relevant to the Court ’ s assessment of the case at hand, it nevertheless notes that pursuant to the Anti-Social Behaviour, Crime and Policing Act 2014 and the new Code of Practice, examining officers now have to be accredited by their chief officer as having met a national standard in the use of the powers (see paragraphs 54 ‑ 55 above).",
"98. Fourthly, the reports of the Independent Reviewer would suggest that the powers are not, in fact, being abused (see paragraphs 44 - 51 and 56 ‑ 61 above). In 2011, only 0.03% of passengers travelling through ports were examined under Schedule 7. In the following years, the Independent Reviewer noted a significant decline in the total number of examinations. Furthermore, although persons of minority ethnic communities, and especially those of Asian and North African ethnicity, were stopped more often than their percentage in the travelling population would objectively warrant, as noted by the Independent Reviewer, this did not mean that examinations were misdirected. Therefore, although the Independent Reviewer recommended vigilance, he considered that the figures in themselves provided no basis for criticism of the police.",
"99. In light of the foregoing, the Court considers it necessary to assess whether the other safeguards in respect of the exercise of the Schedule 7 powers are sufficient to protect individuals from its arbitrary exercise.",
"( γ ) Any curtailment on the interference occasioned by the exercise of the powers",
"100. At the time the applicant was examined, Schedule 7 provided that a person detained under that power had to be released not later than the end of a period of nine hours from the beginning of the examination (see paragraph 40 above). The Code of Practice further required that the examining officer keep the length of the examination “to the minimum that is practicable”. At the beginning of the examination, the examining officer had to explain to the person concerned either verbally or in writing that she was being examined under Schedule 7 of TACT and that the officer had the power to detain her should she refuse to co-operate and insist on leaving. A record had to be kept of the examination; at the port, if the examination lasted less than one hour, or centrally, if it lasted longer (see paragraph 42 above). However, despite the fact that persons being examined were compelled to answer the questions asked, neither TACT nor the Code of Practice in force at the relevant time made any provision for a person being examined (who was not detained) to have a solicitor in attendance. Consequently, persons could be subjected to examination for up to nine hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer.",
"101. The legislation has since been amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (see paragraphs 52 - 53 above), which requires examining officers to take a person into detention if they wish to examine him or her for longer than an hour. It further provides that the questioning of an examinee should not commence until after the arrival of a requested solicitor, unless postponing questioning would be likely to prejudice the determination of the relevant matters, and gives the person being examined the right (insofar as practical) to have a named person informed of his or her whereabouts. The 2014 Act also reduced the maximum period of detention from nine hours to six hours and required the periodic review of detention by a review officer.",
"102. Nevertheless, the Court must have regard to the legislation in force at the time the applicant was examined pursuant to the Schedule 7 powers, when the only safeguard capable of curtailing the interference occasioned by the exercise of those powers was the requirement that she be released not later than the end of a period of nine hours from the beginning of the examination.",
"( δ ) The possibility of judicial review of the exercise of the powers",
"103. While it is possible to seek judicial review the exercise of the Schedule 7 powers, the applicant argues that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” would make it difficult, if not impossible, to prove that the power was improperly exercised. The Court accepted a similar argument in Gillan and Quinton, finding that the right of an individual to challenge a stop and search by way of judicial review or an action in damages had clear limitations ( Gillan and Quinton, cited above, § 86).",
"104. Those limitations would appear to be equally relevant to challenges to the Schedule 7 power by way of judicial review. In R (Elostra) the claimant successfully challenged his detention under Schedule 7 on the basis that the police officers had not waited for his solicitor to arrive at the airport before beginning to question him, as required by the Code of Practice. The judge therefore found that the officer ’ s actions had been unlawful (see paragraph 70 above). However, challenges to the lawfulness of the decision to exercise the Schedule 7 power would appear to have been less successful. In R ( David Miranda), the Court of Appeal accepted that the detention of a journalist ’ s spouse at the request of the security service, which was principally concerned with determining whether the material he carried posed a threat to national security, was nevertheless lawful since before agreeing to the stop the police confirmed that the statutory grounds had been made out. In reaching this conclusion, the court observed that “Parliament had set the bar for the exercise of the Schedule 7 power at quite a low level, the power having been given to provide an opportunity for the ascertainment of a possibility” (see paragraph 65 - 68 above). While in R(CC) the court found that the examining officers had not exercised the power for the purpose of determining whether the individual appeared to be a terrorist or not, the judge remarked that it was “a very rare case” since the powers were “properly given a wide construction” (see paragraph 69 above).",
"105. It would therefore appear that the absence of any obligation on the part of the examining officer to show “reasonable suspicion” has made it difficult for persons to have the lawfulness of the decision to exercise the power judicially reviewed.",
"( ε ) Any independent oversight of the use of the powers.",
"106. The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. The Independent Reviewer, a role that has existed since the late 1970s, is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the United Kingdom. These reports are laid before Parliament, to inform the public and political debate on anti-terrorism law in the United Kingdom. The significance of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information and personnel.",
"107. The oversight provided by the Independent Reviewer should not, therefore, be underestimated. Nevertheless, his reviews are invariably ad ‑ hoc and insofar as he is able to review a selection of examination records, he would not be in a position to assess the lawfulness of the purpose for the stop. Moreover, while his reports are scrutinised at the highest level (the Government in fact publishes its formal response to his annual reports), a number of important recommendations have not been implemented, despite having received support from the Joint Committee on Human Rights and the Home Affairs Select Committee. In particular, the Independent Reviewer has repeatedly called for the introduction of a suspicion requirement for the exercise of certain Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; and criticised the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings (see paragraphs 57 ‑ 60 above). Although the Counter-Terrorism and Border Security Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT (see paragraph 63 above), the Government have not introduced any suspicion threshold for the exercise of the power to detain.",
"108. Therefore, while of considerable value, the Court does not consider that the oversight of the Independent Reviewer is capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime.",
"( iii ) Conclusion",
"109. In conclusion, the Court considers that when the applicant was stopped at East Midlands airport in January 2011, the power to examine persons under Schedule 7 of TACT was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. While it does not consider the absence of any requirement of “reasonable suspicion” alone to have been fatal to the lawfulness of the regime, when considered together with the fact that the examination could continue for up to nine hours, during which time the person would be compelled to answer questions without any right to have a lawyer present, and the possibility of judicially reviewing the exercise of the power would be limited, the Court finds that the Schedule 7 powers were not “in accordance with the law”. It follows that there has been a violation of Article 8 of the Convention.",
"110. In reaching this conclusion the Court has only had regard to the Schedule 7 power to examine as it was at the time the applicant was stopped. It has not considered the amendments which flowed from the Anti ‑ Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person ’ s rights under the Convention.",
"II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION",
"111. The applicant further complained that she had been deprived of her liberty within the meaning of Article 5 § 1 of the Convention, and that the deprivation gave rise to a violation of Article 5 of the Convention as it was not “in accordance with the law”.",
"112. The Government contested that argument.",
"113. As this complaint is based on the same facts as the applicant ’ s Article 8 complaint, it must also be declared admissible. However, having regard to the finding relating to the Article 8 complaint (see paragraphs 109 ‑ 110 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 (see, for example, Gillan and Quinton, cited above, § 57).",
"III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION",
"114. The applicant further complained that the exercise of coercive police powers to compel her to provide answers that might have been incriminating, without any prior and effective assurance that her answers would not be used against her in a criminal trial, violated her rights under Article 6 of the Convention.",
"115. Article 6 of the Convention provides, insofar as relevant:",
"“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”",
"116. The Government argued that the process of examining the applicant was entirely removed from any criminal investigation. A Schedule 7 investigation was not an investigation into an offence that had been committed; the applicant was not notified that she was subject to any criminal allegation; and no criminal proceedings were brought. Consequently, no issue arose under Article 6.",
"117. The applicant contended that compulsory questioning by police officers engaged the right to a fair trial under Article 6 of the Convention, since the purpose of the investigation was to enable the police to determine whether the person being questioned appeared to be a “terrorist”. Although the definition of “terrorist” was extremely broad, in most cases such an inquiry would include an investigation into whether someone had personal involvement in criminal offences. Moreover, the Schedule 7 powers had the substantive characteristics of a police power to investigate criminal activity.",
"118. The applicant further submitted that there had been a violation of Article 6 on account of the degree of coercion and the absence of any statutory safeguards relating to the subsequent use of the material obtained from her, which extinguished the very essence of the privilege against self ‑ incrimination. She did not complain about her subsequent prosecution for failing to comply with a duty under Schedule 7; rather, her complaint concerned the absence of safeguards preventing material obtained during a Schedule 7 examination from being used in any possible subsequent prosecution for a terrorism-related offence.",
"119. The Court has repeatedly held that the protections afforded by Article 6 § 1 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 and Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017.",
"120. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “ charged with a criminal offence ” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect ( Simeonovi, cited above, § 111).",
"121. None of those events occurred in the present case. The applicant was neither arrested nor charged with any (terrorism-related) criminal offence. Although she was questioned for the purpose of determining whether she appeared to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism, this cannot, of itself, engage Article 6 of the Convention. First of all, the Schedule 7 power did not require police officers to have “reasonable suspicion” that she was concerned in the commission, preparation or instigation of acts of terrorism. As such, the mere fact of her selection for examination could not be understood as an indication that she herself was suspected of involvement in any criminal offence. On the contrary, the applicant was explicitly told by police officers that she was not under arrest and that the police did not suspect her of being a terrorist (see paragraph 8 above). Moreover, the questions put to her were general in nature and did not relate to her involvement in any criminal offence (see paragraph 11 above). The Court has already noted that the Schedule 7 power is a preliminary power of inquiry expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the country (see paragraph 97 above). While it would not exclude the possibility that it could be exercised in such a way as to engage Article 6 of the Convention, there is no evidence to suggest that it was so exercised in the present case.",
"122. In light of the forgoing, the Court does not consider that Article 6 of the Convention was engaged by the applicant ’ s examination under Schedule 7 of TACT. It does not consider it necessary to examine the second aspect of the applicant ’ s complaint, which concerned the absence of any safeguards relating to the subsequent use of material obtained in interview. Although it would not exclude the possibility that Article 6 could be engaged by the use of any statements made during a Schedule 7 examination in subsequent criminal proceedings (see Saunders v. the United Kingdom, 17 December 1996, § 67, Reports of Judgments and Decisions 1996 ‑ VI ), that was not the case here.",
"123. Accordingly, the applicant ’ s Article 6 complaint must be rejected as incompatible ratione materiae with the provisions of the Convention within the failing to comply with a duty under Schedule 7 meaning of Article 35 § 3 (a) of the Convention.",
"IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"124. Article 41 of the Convention provides:",
"“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”",
"A. Damage",
"125. The applicant seeks “just satisfaction commensurate to any finding of a violation of [her Article 8, 5 and 6 rights] by the Court”. She has not, therefore, expressly claimed any pecuniary or non-pecuniary damage (see, by way of comparison, Mihu v. Romania, no. 36903/13, §§ 82-84, 1 March 2016). Nevertheless, the Court may exercise a degree of flexibility in respect of non-pecuniary damage, by, for instance, agreeing to examine claims for which applicants did not quantify the amount, instead “leaving it to the Court ’ s discretion” (see, among many other examples, Guzzardi v. Italy, 6 November 1980, §§ 112-14, Series A no. 39; Frumkin v. Russia, no. 74568/12, §§ 180 ‑ 82, 5 January 2016; Svetlana Vasilyeva v. Russia, no. 10775/09, §§ 43-45, 5 April 2016; Sürer v. Turkey, no. 20184/06, §§ 49 ‑ 51, 31 May 2016).",
"126. That being said, the Court does not consider it appropriate to make an award in respect of non-pecuniary damage in the present case. First of all, it has found a violation of Article 8 only. Secondly, as the breach of Article 8 was linked to the quality of the law in force at the relevant time, it has not been called upon to assess the proportionality of the applicant ’ s examination. Thirdly, it notes that the applicant does not contend that in her case the Schedule 7 power was exercised in an arbitrary or discriminatory fashion.",
"B. Costs and expenses",
"127. The applicant also claimed GBP 37,196.46 for the costs and expenses incurred before the Court. This figure is comprised of GBP 15,624 for Senior Counsel; GBP 14,545 for two junior counsel; GBP 6,985.51 for the solicitor; and GBP 38.95 for postage.",
"128. The Government argued that it had not been shown that these costs had been actually and necessarily incurred. The relevant legal issues had already been argued in the Supreme Court; there was no sufficient basis for three counsel to be instructed, together with a solicitor; and the applicant ’ s observations were not of such length of complexity to justify the amounts claimed.",
"129. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 25,000 covering costs under all heads.",
"C. Default interest",
"130. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
Subsets and Splits